author: Levy, J. Bermudez, C. J.

text:
    No. 8019.
    Pierre Verges vs. Félix Gonzales, Sheriff, et al.
    On the Motion to Dismiss.
    A party, 'who pays the amount of a judgment against him, by compulsion and under protest, cannot be considered as acquiescing in the judgment and be thereby deprived of his right of appeal. Decision in 29th An. 762, affirmed.
    The surety on an injunction bond, though constructively in court, should be notified of the judgment rendered against him, if he filed no answer or actual appearance, and, in default of such notice, he is always in time for a suspensive appeal.

      The same surety inasmuch as the case was tried without his appearance and virtually ex parte, as to him, is entitled to the maintenance of his appeal even if the Transcript is defective by the fault of the plaintiff in the case, the other appellant.
    The failure of an appellant to perfect his suspensive appeal by giving bond within the legal delay, does not deprive him of his right to a devolutive appeal within the year.
    In the absence of written evidence in the record, and the assignment of errors being insufficient, the neglect of the appellant to have asked for, and obtained a statement of facts» will cause the dismissal of the appeal.
    Tn a suit by injunction, there being a reconventional demand by the defendant, and the merits of the case being properly put at issue by the pleadings, the defendant, in obtaining the dissolution of the injunction, on the trial in the absence of the plaintiff, is entitled, not merely to a judgment of nonsuit, but to one that should be conclusive between the parties, and if not appealed from, should constitute res judicata.

    On the Merits.
    It is only inNsuits by injunction restrainig the execution of a money judgment, that the defendant can obtain in the same decree the dissolution of the injunction and damages.
    The prayer for general relief would in no case warrant a judgment for. damages against the surety on the bond, when none are asked against him.
    APPEAL from the Twenty-Eourth Judicial District Court, parish of St. Bernard. Livaudais, J.

      John S. Tulty and Sambola & Ducros for Defendants and Appellees:
    On The Motion to Dismiss.
    Eirat — If the testimony taken on the trial of the case in the lower court has not been reduced to writing, and the record contains no bill of exceptions, or statement of facts, or special verdict, or if the assignment of errors filed in the appellate court is without foundation, the appeal should be dismissed.
    Second — When the transcript of appeal does not show a written note of the evidence received on the trial below, the presumption, then, is that the court which rendered the judgment did so on proper and sufficient evidence.
    Third — Should the record be incomplete by reason of the omission of any proceeding had, or of any document offered in evidence in the inferior tribunal, and no effort be made by the appellant to supply the omission, the appeal cannot be maintained.
    Eourtb — A party, who has failed to press his application for a new trial in the court a qua, is guilty of laches, and cannot be relieved by the Supreme Court from the consequences of his own remissness and indifference.
    Eifth — A court of appeals never does interfere with or control the discretionary power of an inferior one in matters of new trials, except in very clear cases.
    On the Application eor Rehearing.
    Eirst — No other errors of law appearing on the face of the record can be noticed by the appellate court than those especially embraced in the assignment of errors, and any not so assigned is presumed to be waived. C. P. 897; Minor (Alabama) 11; 7 Pickering (Mass.) 145; 15 Conn. 83; 5 B. Munroe (Kentucky) 340; 6 Dana (Kentucky) 242 ; 3 Howard (Miss.) 77; 9 Porter (Alabama) 386.
    Second — When a judgment appealed from by the surety on an injunction bond is not shown to be unjust on its merits, and the appeal of the principal on the bond is dismissed, the judgment of the lower court thus final as to the latter will become thereby res judicata as to the former to all intents and purposes, and the judgment rendered below against the surety should then be affirmed as to him, as a proper course to end a fruitless litigation. 2 3ST. S. 537; 19 L. 396; 3 An. 589; 10 An. 262, 535; 31 An. 248.

      Third — A person, not a party to the suit or judgment, against whom no judgment is asked and who is, however, condemned thereby, can appeal as to any matter personal to himself only to the court who has appellate jurisdiction over the amount to which he may he injured by said judgment, without regard to tho amount or value involved as regards his co-appellant. 4 R. 319; 28 An. 324.

      Branch K. Miller for the Surety, Appellant:
    On the Motion to Dismiss.
    First — Where property is about to be sold under a fi. fa. illegally issued, pending a suspensive appeal, and the defendant in execution pays the amount of the writ to prevent the illegality, there is no voluntary execution of or acquiescence in the judgment. 29 An. 762.
    Second — The party cast is entitled to notice of judgment, except where he has been cited personally and filed an answer, or where he has appeared and filed an answer. 3 La. 258; 9 M. 517.
    Third — On a motion to dismiss on the ground of acquiescence in the judgment appealed from, the appellant has the right to the remanding of the case to try that issue if the record does not show that there has been no acquiescence. 28 An. 272 ; 29 An. 546; 3 An. 150 ; 23 An. 37; 10 An. 574.,
    Fourth — The surety in injunction is not in court on the trial of the injunction, unless there is a reconventional demand in damages against him, and when neither the record nor the minutes furnish any clue that testimony was taken in the lower court, he is not required to call for a statement of facts.
    Fifth — No judgment can be rendered against the surety in injunction at the same time with the principal, unless there is a prayer for judgment against the surety.
    On the Merits.
    First — In injunction, cases enjoining the execution of a money judgment, no judgment can he rendered against surety at the same time with the principal, unless there is a prayer for judgment against the surety.
    Second — Where, without the fault of the appellant, the facts necessary to decide the case are not before the court, the case will be remanded for a new trial. C. P. 906; 23 An. 28; 18 An. 278, 455, 560 ; 20 An. 505, 155 and 63.
    The prayer for general relief is available only to explain vague allegations, or to authorize ordinary decrees justified by the pleadings and evidence; but not to authorize the application of the unusual, extraordinary and highly penal provisions of the Act of March 25, 1831. 9 An. 540 ; 11 An. 69.

      Albert Voorhies for Plaintiff and Appellant:
    First — The merits of an assignment of errors are prematurely passed upon, if examined in a motion to dismiss.
    Seoond — This case should be remanded and not dismissed as appellees were themselves clearly at fault in not filing their documentary evidence.
   On the Motion to Dismiss.

The opinion of the Court was delivered by

Levy, J.

Appellee moves to dismiss this appeal, as to the appellant, J. M. Oientat, on the ground that he has acquiesced in the judgment appealed from and applied for his suspensive appeal after legal delays had elapsed. He also filed a supplemental motion to dismiss on the following grounds: 1st. That the certificate of the clerk of the lower court is incorrect and untrue, in that the testimony of certain witnesses was heard by the court a qua on the trial of this ease, although the same was not taken down in writing, and that no mention is made thereof either in the body of said transcript or in said certificate. 2d. That the record of appeal is incomplete, inasmuch as it contains no minute entry of the trial of the case below, and no note of evidence taken on the trial, either of the case or of the rule for a new trial, nor does it contain certain receipts which were offered by mover on the trial of the case on its merits. 3d. That evidence was actually offered bn the trial of the rule for new trial and acted upon by the court, which is not contained in the transcript. 4th. That appellant failed to prosecute his application for a new trial in the court below, and cannot in this Court be relieved from the consequences of his own laches. 5th. That appellant’s case is not one which would justify this Court in interfering with or controlling the discretionary power or right of the lower court in matters of new trial. 6th. That Yerges, one of the appellants, had first applied for and obtained an order for a suspensive appeal, which he did take up but failed to prosecute, and he is therebv debarred from the right of applying for and prosecuting a devolutive appeal.

As to the first ground, that of acquiescence, the record shows that the payment of the amount for which a fieri facias had been issued and his property seized thereunder and about to be sold, by the appellant Cientat, was not such voluntary execution of the judgment as would constitute acquiescence therein. He paid the amount under the advice of counsel, on the very eve of the sale of his property by the sheriff, with a protest, and with the declaration, acknowledged in the sheriff’s receipt, ■that it “ was made under compulsion of an impending sale” of his property, to satisfy theyi. fa. issued under the judgment herein appealed, which sale was about to take place. Said receipt also contains the statement by the sheriff, to whom the payment was made, that, Oientat “ protests against the payment, and makes it only to avoid the sale and sacrifice of the property seized and advertised as aforesaid,” and specially " insists that the execution under which said payment is made is wrongful and illegal by reason of his having taken a suspensive appeal from the judgment in this case,which is not yet determined in the Supreme Court,” and that “ he insists upon his right of appeal aforesaid, and in no sense acquiesces in or voluntarily executes said judgment.” The case of Johnson vs. Clark & Meader, 29 An. 762, in which the facts are quite similar to those in this case, and where a motion to dismiss the appeal was made, the Court passed on the very question raised herein, and the reasons there given seem to us to be decisive, and the doctrine then held must be applied to thisgcase. The Court said: “ The defendants did not voluntarily execute the judgment of the lower court. They disregarded the sheriff’s first notice, requiring the payment of the fieri fa cias, whereupon, he informed them that, if payment was not made by a given hour, he should seize, advertise for sale, and sell their stock in trade, and to that end, the officer proceeded to prepare, in form, his notices of seizure. To avert this, the defendants paid, and took immediate legal proceedings to stay the fund in the sheriff’s hands. The consequences of a seizure of their stock and its advertisement for sale would have been far-reaching and most injurious to them. Their payment, to avert such consequences, cannot be held in any other light than compulsory. The act should be unequivocal to authorize a presumption of the abandonment of so important a right. Leggett vs. Peet, 1 La. 296; Yale vs. Howard, 24 An. 458.” The ground that Cientat applied for his suspensive appeal after legal delays had elapsed cannot prevail in this case. Although for the purposes of rendering him liable on the injunction bond, as surety, he was constructively before the court, yet this constructive appearance should not operate to debar him of his right of appeal and take him out of the rule established by the Code of Practice. Arts. 575 and 624. The defendant thus constructively before the court as surety, not having answered, having made no actual appearance in the case, was entitled to notification of the judgment rendered against him. No such notice appears to have been given, and we think his appeal was taken in time. As to the validity of the judgment against the surety, we are not called upon to decide in this motion, nor shall we enter into a discussion as to the surety being even constructively before the court in a case where the injunction does not enjoin a monied judgment.

As to Cientat, he cannot be held responsible for the deficiencies of the transcript, when the minutes of the lower court failed to show that certain testimony was taken and certain documents filed by the plaintiff. He took the case as the record of the court showed it, and the failure of the plaintiff to file the documents and of the court and the parties to the suit to have the testimony taken down in writing, should not be visited upon him or imputed to him as a fault, and that, especially, when the case was tried in his absence, and virtually ex parte as to him. The motion to dismiss cannot, therefore, be sustained as to Cientat.

As to Verges : The failure to perfect his suspensive appeal and its abandonment by not giving bond within the delay fixed by law, did not prevent him from availing himself of the right to a devolutive appeal, which he has taken. In the case above cited, 29 An. 762, (Johnson vs. Clark & Meader), it was held : “ The appellee has a right to demand the dismissal of the appeal if the appellant has neglected to give a sufficient bond, or omitted any other legal formality; but a judgment of dismissal pronounced on such demand does not preclude the appellant from having the judgment of the lower court reviewed, if he claims his second appeal within the year. The present appeal is within time.” 11 La. 380; 15 An. 116; 27 An. 244. But Verges is met with a serious obstacle in the way of his prosecution of this appeal. It does not appear from the record that any request was made to have the testimony on trial reduced to writing, or that any bill of exceptions was taken or any statement of facts asked for, while the assignment of errors is clearly insufficient and does not show such error in law, patent on the face of the record, as would justify us in maintaining the appeal. In Fonda vs. Denton, 13 An. 343, this Court held that: “ the failure to appear and prosecute the opposition cannot deprive the party interested of the benefit of the judgmont.” The failure of the appellant Verges', a party to all the proceedings, to ask for and obtain a statement of facts, was surely a fault imputable to himself.

We find no evidence in the record, but the judgment itsplf states that “ considering the law and evidence are against plaintiff and in favor .of defendants, etc.,” and in such case we will presume that the j udgment was properly rendered, and upon evidence properly before the Court.

In this ease there was a reconventional demand, and, therefore, the judgment was not to be confined to one of nonsiiit. (Hen. Dig., Judgment, viii, No. 18).

The case of Moch vs. Garthwaite, 11 An. 287, is decisive of this point, where the Court held: “Where a plaintiff is seeking to recover from a defendant a sum of money, or to enforce from him the recognition of some right, or the performance of some obligation, a trial had in his absence will entitle the defendant merely to a judgment of nonsuit as against the plaintiff; but this rule is strictly applicable to cases where the position of the party sued is purely defensive, and cannot be extended to cases where the defendant is himself obstructed in the recognition or enforcement of his own rights or counter-claims against the plaintiff. Thus a plaintiff cannot by discontinuing or submitting to a nonsuit, prevent a defendant from trying his claim in reconvention.” And, again: “ We think that where in an injunction suit the issues have been once properly presented to the court upon pleadings involving issues upon the merits, that the judgment dissolving the injunction, unless appealed from, will be conclusive between the same parties, where the same grounds are again set up to enjoin a second seizure for the same'debt or of the same property.” This doctrine is fortified by the following eases: 5 An. 298; 21 An. 814.

It is, therefore, ordered that the motion to dismiss the appeal of Jean M. Cientat be denied at costs of appellee, and the appeal of Pierre Verges be dismissed at his (Verges’) costs.

Rehearing refused.

On the Merits.

The opinion of the Court was delivered by

Bermudez, C. J.

J. M. Oientat, surety on the injunction bond furnished in this case, complains that he was mulcted in damages by the judgment dissolving the injunction; that he was not sued, and that there was no demand from the defendant in injunction that he be condemned in damages.

The injunction obtained in this case was not sought to arrest the execution of a money judgment. Its object was to prevent the putting in possession of an adjudicatee of real property claimed by the plaintiff, a third person, as owner.

Article 304 of the Code of Practice does not apply to cases of this description. 32 An. 718, 974.

In suits of this character, the injunction must first be dissolved, and the defendant in injunction must be left to his recourse on the bond for damages. If it were true, that he could in such a case claim at the same time a dissolution and damages, he could do so only by a proceeding in the nature of a direct suit, in which the surety should be cited and afforded an opportunity to defend himself. Under no circumstances, however, could he recover damages against the surety without asking for the same. A prayer for general relief would not warrant a judgment against the surety.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from, as far as it affects J. M. Oientat, be reversed, and that this case as concerns him be remanded to the lower court, there to be reinstated in the condition in which it stood before it was fixed for trial; appellees to pay costs in both courts.


source: Caselaw Access Project

author:
Bermudez, C. J.
     Fenner, J.

license: Public Domain

text:
    No. 8143.
    Schmidt & Zeigler vs. A. C. Brown and R. Strauss.
    This Court will take notioe exproprio motu of tlie unappealable amount of tlie matter in dispute before them, and dismisB tbe appeal.
    APPEAL from the Tenth Judicial District Court, parish of Bed Biver. Logan, J.

      J. F. Pierson for Plaintiffs and Appellants.

      L. B. Watkins for Defendants and Appellees.
   The opinion of the Court was delivered by

Bermudez, C. J.

Although the plaintiffs sue for $1373 81, with legal interest from judicial demand, and the question of jurisdiction be pretermitted by the appellees, we feel bound, proprio motu, to notice and determine that this case, now before us on its merits, is not appealable.

The amount sued for is made up of several items: a capital sum of $637 57, interest, $79 74; costs, $332; and attorneys fees, $325; total, $1373 81.

To ascertain the nature of the demand, it is necessary to understand the facts from which it originates.

The plaintiffs, Schmidt & Zeigler, obtained a judgment against James Crow for $637 57, with interest and costs. They issued and levied a fi. fa. on real and movable property belonging to the defendant.

Availing himself of the privilege accorded Mm by law, E. S. 3411, the latter released that property from seizure on furnishing a forthcoming bond for $1500, with the defendants in this suit as sureties therein.

Prior to the day of sale, the defendant obtained an injunction, and prior to trial he made a surrender of his assets to his creditors, which was accepted by the court.

The plaintiffs then brought this action against the sureties on the delivery bond, claiming from them the amount of their judgment, $637 57, with interest and costs, adding thereto an item of $325 for attorney’s fees, for services in the injunction suit and in the present action.

It is evident that the item for attorney’s fees is one for which, under no circumstance, the defendants in this ease can be liable. They are sureties on the delivery bond and not on the injunction bond. Their liability cannot be extended beyond the production of the bonded property and in default to the payment of the judgment creditor. Besides, the plaintiffs in their brief, formally say that they do not insist on that item here. They restrict their demand to $1013, to which they say that they are entitled. Eliminating from the bill 'this fictitious item, the balance claimed is $1048 81. It is composed of three items: tb.e capital, $637 57; the interest, $79 74; the costs, $331 50; total, $1048 81.

Had the injunction obtained by the defendant been passed upon, either maintained or dissolved, neither party could have appealed from the judgment rendered to this Court, for the plain reason that the amount in dispute would have been that claimed in the petition and awarded by the judgment, viz: $637 57, exclusive of interest. 30 An. 427; 15 An. 292.

Under the Constitution, the jurisdiction of this Court attaches only to cases in which the matter in dispute exceeds one thousand dollars, exclusive of interest, Art. 81; which means the capital of the sum claimed, which can bear interest.

If, therefore, the item of $79 74 for interest, which forms part of the remaining balance of $1048 81, be stricken therefrom, that balance would be reduced to $969 07, composed of the capital claimed, $637 57, and of the costs of suit added, $331 50. We do not propose to consider whether the item of costs is one chargeable,-so as to make the case an appealable one. It is sufficient that, by dropping from the itemized bill the charges for fees and interest, it be reduced to a figure below that fixed by the organic law, as the initial point for the exercise of our appellate powers.

The liability of the sureties in this ease is to be measured by that of the principal. They cannot be bound under more onerous conditions.

The obligation of the principal on the bond was to produce the property on the day of sale. The sureties bound themselves in solido with him for such production. The bond provides for no penalty. The law under which it was. taken is silent on the subject. The penalty, however, must exist, but it is subject to legal inference. Under the jurisprudence as settled, it is that, in default of the delivery, the sureties are bound, not for the value of the property, but for the amount of the judgment, provided it does not exceed the value of the property. B. C. C. 3037; 2 An. 160; 4 An. 372; 7 An. 571; 13 An. 342; 28 An. 643’.

The amount of the judgment in this case would be $637 57, with interest and costs. Had the plaintiffs obtained a certificate of forfeiture from the sheriff and produced it to the clerk, they could have obtained from that officer, against the sureties, a writ for no more than the amount due them, as awarded by the judgment against Crow. Had the sureties enjoined the execution, and had the injunction been dissolved, or perpetuated, neither the plaintiffs nor the defendants could have appealed from the judgment, for the plain reason that the amount in dispute, exclusive of interest, would have been a capital of only $637 57; 32 An. 929. We could allow no interest on interest where the interest is not clearly capitalized.

The rulings in 28 An. 110, and No. 4486, N. B., have no application to this case. They were made while the Constitution of 1868 was in. force, and under a jurisprudence which allowed the cumulation of interest with the capital, up to the date of institution of suit, to test the question of appellate jurisdiction. 21 An. 155; 22 An. 25, 111; 24 An. 118; 20 An. 565; 32 An. 48; 5 E. 90; 2 An. 793; 32 An. 929.

It is, therefore, ordered that the appeal in this case be dismissed at appellants’ costs.

Dissenting Opinión.

Fenner, J.

I am unable to discover the necessity or propriety of discussing the appealable character of a judgment which is not before us on appeal.

The action before us is brought upon a bond and sounds in damages. Its, appealable character is determined by the amount seriously, and not fictitiously, demanded as damages. The judgment in the suit, in proceedings upon which the bond was given, is referred to only as an element in fixing the measure of damages; and if the damages claimed'in this suit exceed $1000, that makes .it appealable, irrespective of the elements of which such damages are composed.

I must, therefore, dissent from the opinion and decree herein.


author: Bermudez, C. J.

text:
    No. 8248.
    The State ex rel. J. Buisson vs. Judge of the Second City Court.
    The City Courts have no jurisdiction of a suit involving the right of possession of immovable property. Therefore, they have no authority to eject an alleged trespasser from a house, when the relations of the parties are not those of landlord and tenant.
    APPLICATION for a writ of Prohibition.

      Q. Duplantier for the Relator.

      W. B. Murphy for the Respondents.
   The opinion of the Court was delivered by

Bermudez, C. J.

The relator complains that a suit was brought against him before the Second City Court, wherein the plaintiff, alleging herself the owner of certain improved real estate in his possession, and charging him with being a usurper, prays that he be ejected therefrom. He avers that he has pleaded to the jurisdiction-of said court; that his exception was overruled; that on his failure to answer a default was taken, and afterwards confirmed, against him; that said court is devoid of jurisdiction ratione materice, has exceeded the bounds of its jurisdiction, and that unless prevented, said court will proceed to execute the judgment of ejectment, and that he has no re'medy by appeal. He accordingly prays for a prohibition.

- The respondents have answered, but have not justified the exercise of the powers complained of.

The relations of the parties are not those of landlord and tenant.

The city courts of New Orleans are clothed with the civil jurisdiction which vested in justices of the peace previously inexistence. It extends to all eases in which money or movable property not exceeding one hundred dollars is claimed. In the case of State ex rel. Fredericks vs. T. Duffy et al., O. B. 54, f. 80, 33 An. p. ., recently decided, we held that those courts could entertain suits by landlords for the expulsion of tenants, in proper cases.

See, also, 32 An. 1234, 428.

Article 1068 of the Code of .Practice, which applies to city courts. provides:

“ Justices of the peace haveno jurisdiction when the right of property or the possession of an immovable is called in question, although the amount of the demand may not exceed the sum of which they are allowed to take cognizance.”

Applying that law to the case before us, in which a right to the possession of an immovable is' invoked, we consider that the relator is entitled to the relief sought.

It is, therefore, ordered that a peremptory and perpetual prohibition issue herein to the respondents, as prayed for, and that respondents pay the costs of this proceeding.


author: Todd, J.

text:
    No. 6635.
    Bernard Schoembs vs. Joseph Krieger.
    The purchaser at a tax-sale cannot proceed by Rule against the former owner to be put in possession. He must institute a suit by Petition and Citation. Affirming Decision in 32 An. 704.
    PPEAL from the Fourth District Court, parish of Orleans. Lynch, . J.

      B. O. Mlioit for Appellant.

      Geo. II. Braughn for Appellee.
   The opinion of the Court was delivered by

Todd, J.

This is an appeal taken by Mrs. Annie Hoffman, duly authorized by her husband, from a judgment rendered, by the late Fourth District Court of the parish of Orleans, on the 6th March, 1876.

The appellant is a third person who claims to have been aggrieved by said judgment, and has shown an appealable interest.

The plaintiff in the case, claiming to be the purchaser at a tax-sale of certain immovable property, situated in the city of New Orleans, proceeded by rule against the defendant, the former owner, to be put in possession of the property.

The defendant filed an exception, denying the right of the plaintiff to proceed by rule in such a case, which was overruled. Subsequently, an answer was filed and judgment rendered against the defendant, making the rule absolute, and requiring the sheriff to put plaintiff in possession ot the property in question, and it is from -this judgment that the appellant, not a party to the proceedings in the lower court, has taken this appeal.

We have been favored with no argument, oral or printed, from the plaintiffs counsel. The appellant’s counsel invokes the decision in the case of Fischel vs. Mercier, 32 An. 704. recently rendered by us, as authority for the reversal of the judgment. We held in that case that a purchaser of immovable property at a tax-sale could not legally proceed by a rule to be placed in possession of the property. That ruling is applicable to the present case, the two cases being strictly parallel. The exception filed by the defendant in this case in the court a qua should have been sustained.

We express no opinion in regard to the rights of the appellant against the property in question, nor as to the validity of the tax-sale relied on by plaintiff as investing him with a title to the property; but simply decide that the remedy adopted by him to get possession of the property was illegal and unwarranted.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed; and proceeding to render such judgment as should have been rendered by the lower court, it is further ordered, adjudged and, decreed that the suit or proceeding be dismissed, plaintiff and appellee to pay costs of appeal.


text:
    No. 8206.
    John Rawle, Agent, vs. Mrs. E. M. Feltus and Husband.
    An appeal bond, which does not contain the condition that the appellant shall prosecute the appeal, and which is not given to secure the payment of the costs of both the Supreme Court and the inferior Court, is defective and invalid.

      APPEAL from the Ninth Judicial District Hough, J. Court, parish of Tensas.

      Steele & Garrett for Plaintiff and Appellee:
    In a bond for appeal, the condition that “the appellant shall prosecute his appeal ” is material, and its omission will authorize the dismissal of the appeal. C. P. 579; 27 An. 645; 22 An. 296; 2 An. 1013.
    "When the condition of an appeal bond for a devolutive appeal is only for payment of the costs of the appeal, the appeal should be dismissed. 28 An. 805; 13 An. 417; 3 An. 135, and C. P. 578.
    The defect in the original bond cannot be cured by substitution of another bond after motion made to dismiss the appeal. 13 An. 417.

      Gllnton & Young for Defendants and Appellants.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Todd, J.

The appellee moves to dismiss the appeal on the grounds, substantially,:

“ That the bond does not set forth in substance that it is given as surety; that the appellant will prosecute his appeal, and satisfy whatever judgment should be rendered against him.”

The sole condition expressed in the appeal bond in this case is as follows:

“ The condition of this obligation is such, that if the above bound Mrs. Feltus shall pay the costs of said appeal, then this obligation to be null and void.”

The bond, which is executed for a devolutive appeal, is fatally defective for want of compliance with the legal requisites prescribed by Arts. 578 and 579 C. P.

1. It must be given as surety that the appeal will be prosecuted. 2 An. 1013; 27 An. 645.

2. It must be given to secure the payment of the costs, both of the Supreme Court and the inferior court. C. P. 578; 4 An. 3; 13 An. 417; 28 An. 805.

The appeal is, therefore, dismissed at the appellants’ costs.


text:
    No. 8251.
    The State of Louisiana ex rel. C. L. C. Cass vs. J. T. Clark, Clerk.
    Although tho jurisdiction of the lower Court ceases when the order of appeal has been granted and the bond filed, yet the Court retains its power over its Clerk; to compel him to fulfil the ministerial duties of his office, in the case.
    A.PPLICATION for a writ of Mandamus.

      H. L. JEdwards and K JE. Moise for the Relator:
    First — That under Art. 11 of the Constitution, a party, upon making proper affidavit, and upon certificate of counsel, that there is error in the judgment against him, is entitled to an appeal in forma pauperis.

    • Second — That where the appeal in forma pauperis has been granted in the lower court without costs to appellant, the clerk of the court is bound to prepare and deliver the transcript in tho cause, and cannot demand judicial stamps from him.
    Third — That by “ adequate remedy ” in Art. 11 of the Constitution, is meant full and compíete remedy, and relator is entitled to an appeal in forma pauperis thereon.
    Fourth — The State is bound to protect and vindicate the rights of its citizen, even to the extent of permitting him to litigate his rights, if he be so poor as not to be able to do so without the aid of the State.
    Fifth — That in all divorce suits, the State and society are interested parties, to such an extent, that if they deem that justice has not been done by the lower court, the State could of her own volition, appeal the case to a higher court.
    Sixth — That if the State is so interested in a divorce suit, that she herself, through her proper officer, could appeal, she will not stretch forth her hand to prevent either of the other parties, but on the contrary, will assist/ where there., is necessity, either of them to an appeal.

      Seventh — The rigor of our law in divorce suits has of late years been relented by the courts, but public policy requires a speedy return to its strictness and former strength.

      Fred. D. King for the Despondent:
    First — No law of this State authorizes an appeal to any one in forma pauperis.

    Seoond — It is against the reason and spirit of the law to allow an appeal in forma pauperis, a fall hearing having been once given the party.
    Third — The clerk has a direct pecuniary interest, and is justified thereby in his refusal to obey the plaintiffs request.
    Fourth — Act No. 136 of 1880 prohibits the relief herein applied for.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an original application for a mandamus to 'compel the defendant to prepare and deliver, without costs, to the relator, the transcript of appeal in the case of Marie Louise Cass against him, on which judgment was rendered in favor of plaintiff and against the defendant, both on the merits and on the reconventional demand, granting a separation from bed and board.

The relator charges that after the judgment had become final, he applied for and obtained an order of appeal therefrom, returnable to. this Court, on giving a bond, which he furnished, and directing the clerk of the lower court to prepare and deliver to the appellant the transcript of appeal, free from costs, in forma pauperis; that he has called upon the clerk for such transcript, and that said officer refuses to comply with the order of the District Court. He asks this Court to enforce the order of that court.

We allowed the relator a rule on that officer to show cause why he should not' comply with the demand made of him. To that rule an elaborate return is made, supported by a similar brief. .

We have attentively read the petition of the relator, the printed argument in support of it, and have come to the conclusion that if the relator_have a right to require the preparation and delivery of the transcript of the ease in which he was cast, without subjection to any disbursement, he should address his complaint and prayer for relief not to this, but to the District Court which granted the order, and to which the defendant is amenable as its ministerial officer.

Although the jurisdiction of the lower court may have ceased on the case since the order of appeal was granted, and the bond thereunder was furnished, as to the parties to the suit, the power of the court, over its clerk, to compel him to perform as such, in that court, duties which may be found to be imposed upon him by law, has not terminated.

Our original jurisdiction in matters of mandamus, does not extend to cases like that now presented. Const. Art 90.

The application is", therefore, refused.


author: Levy, J.

text:
    No. 7816.
    Parish Board of School Directors vs. Rosa B. Rollins et al.
    In default of satisfactory proof tliat the lot of ground claimed in this case as school land, •was ever selected as such under the Act of Congress, this Court holds that there should be judgment of nonsuit against the Plaintiif, without passing upon the issues of title and prescription raised by the pleadings.
    APPEAL from the Thirteenth Judicial District Court, parish of Tensas. Sough, J.

      Thos. P. Farrar and F. S. Farrar for Plaintiff and Appellant.

      J, W. Montgomery for Defendants and Appellees.
   The opinion of the Court was delivered by

Levy, J.

The Board of School Directors of the parish of Tensas instituted this, a petitory action, against the defendants, to recover from them a section, or lot No. 16, situated in Township 13, Range 13 East, in said parish, which they allege has been set aside and dedicated by the United States for the purposes of education. Defendants plead the prescription of thirty years, of open, public, peaceable and uninterrupted possession of said property, and call in warranty their vendors Clark and wife, who in turn call in warranty Gillespie and wife, their vendors. There was judgment in favor of defendants rejecting plaintiff’s demand with costs, and plaintiff has appealed. Defendants have proved uninterrupted possession as owners, through themselves and their vendors for more than forty years. Plaintiff contends that lands dedicated and set apart by Congress for school purposes cannot be acquired by prescription, being out of commerce and imprescriptible. Defendants hold that, if- they became school lands under the general law, or were made so by selection of the Secretary of the Treasury under the law of 20th May, 1826, they then became severed from the public domain, and were open to a title by prescription.

Before we can be called upon to decide this question, we'must have a case before us to which it would be applicable.

In the case of Barton’s Executrix vs. Hempken, 19 La. 510, this Court held “that it is only under the general laws, and where the township is surveyed in square sections, that every 16th section is reserved as school land; and that, in fractional or irregular townships on water courses, the Secretary of the Treasury is required by law to select and designate the school 'lands.” * * * “ In this case it does not appear that any such selections or lists have been made and forwarded for approval, or that the lot in question was ever selected under the Act of Congress. It was not reserved from sale unless selected under the law, and the commissioner does not say it was.” The court further held: “ In this ease there is a final judgment for the defendants upon the verdict of the jury, which we think is incorrect. The plaintiff has not made out such a case as will entitle her to recover, but- we think the door should be left open to a further investigation of the matter;” and annulling the judgment and setting aside the verdict, the court rendered a judgment of nonsuit. We do not think, in this case, there has been satisfactory proof of the selection of the section or lot claimed, and we think, as did this-Court in the case .above cited, that “ the door should be left open to a further investigation of the matter.”

The judgment appealed from is, therefore, annulled, avoided and reversed, and it is ordered and adjudged that there be judgment of nonsuit against the plaintiff, with costs in both courts.


text:
    No. 8144.
    H. D. Troxler et al. vs. C. Colley, Sheriff, et al.
    Property acquired by an heir at a partition sale, and paid for by means of Ms heritable share, is his separate property, and does not fall into the Community of acquets and gains, as property acquired during marriage.
    This vexatious question fully discussed and examined, and the authorities reviewed.
    Difference between the text of the Code of 1808 and that of the Code of 1825.
    Decisions in cases of Hache vs. Ayrand, 14 An. 178, and Breaux vs. Carmouche, 15 An. 588 overruled in that respect.
    APPEAL from the Twenty-Sixth Judicial District Court, parish of St. Charles. Hahn, J.

      Breaux & Hall for Plaintiffs and Appellants:
    Hirst — Property purchased at a sale for a partition among co-heirs, and paid with the inheritance of the heir is separate. 2 An. 930 ; 4 An. 803; 5 An. 743 ; 17 L. 296; 1 R. 347 $ 4 R. 115; 1L. 522.
    Second — Partition is a sort of exchange among co-heirs. C. C. 1382.
    Third — Plaintiffs have a judgment putting them in exclusive possessiou as sole owners of this property; creditors of any party whom it is alleged has an interest in such property cannot disregard such judgment.
    Hourth — Oral proof admissible to show that notes given by co-heirs were surrendered to them * in partition of estate. Squier vs. Stockton, 5 An., 743,

      Jas. Legendre and L. De Toorter for Defendant and Appellee:
    Hirst — O. C. 2332, 2334, 2402, 2406, 1341, 1342, 1343, 1344. 2616.
    Second — The general rule is that all property purchased during marriage by either husband or wife is community property, even should the purchase be made with the separate iunds either of the wife or husband. 1 L. 206 ; 10 L. 148; 17 L. 296 ; 1 R. 43]; 9 R. 210; 5 An., 610, 611; 6 An., 731; 7 An., 92; 10 An., 784; 11 An., 326; 20 An., 531 * 24An., 521; 26 An., 552 ; 32 An., 162.
    Third — An heir who acquires at a sale made to effect a partition does not become sole owner under his ancient title as heir, but is invested with a new title as purchaser, and if he be married, the purchase is presumed to he made on account of the community, unless he declare his intention to he otherwise in the act hy which his acquisition is evidenced. 14 An., 178, Hache vs. Ayrand; 15 An., 588, Breaux vs. Carmouche.
    Fourth — Property purchased, hy the husband at a sheriff’s sale, under a judgment in his favor, belongs to the community, which is to he dehted, when settled, in his favor with the price paid. 18 L. 361, German vs. Hicholls.
    Fifth — This intention of separate investment on the part of the husband, who is the head of the community, must he expressed in the act of purchase, otherwise the property purchased falls into the community. 14 An., 618.
    Sixth — "Where the separate funds hear no proportion to the value of the property substituted, such acquisition belongs to the community. Bouligny vs. Fortier, 16 An., 215.
   The opinion of the Court was delivered by

Todd, J.

The sheriff of the parish of St. Charles seized under a writ of fi. fa., issued to enforce payment of a judgment in favor of F. Brugier against Widow F. E. Troxler, an undivided interest in certain immovable property as belonging to the judgment debtor.

The sale was enjoined by the plaintiffs, who claimed to be owners of the property. They allege title to it by inheritance from their father, the late Frangois Emilien Troxler, who inherited the same from his father, Frangois Troxler, also deceased.

The defendant resists the claim of the plaintiffs, and denies their ownership of the property; and avers that it belongs to the Widow Troxler, the judgment debtor; that the entire property was purchased by her late husband, Frangois Emilien Troxler, the father of the plaintiffs, during his marriage with the said Mrs. Troxler, and belonged to the community between them; and that the interest seized was acquired by her as surviving widow in said community upon the dissolution of the marriage by the death of her husband, and was owned by her at the date of the seizure.

There was judgment in the lower court, rejecting plaintiffs’ demand and dissolving the injunction, and from this judgment the present appeal was taken.

We gather from the record the following facts bearing upon the subject of this controversy :

Frangois Troxler, the grand-father of the plaintiffs, died in 1854, leaving an estate, of which the land in dispute formed part.

In July of that year, the entire property of the estate, movable and immovable, was sold under an order of court to effect a partition among the heirs, and the plantation, of which the land in controversy was part, was adjudicated to three of the sons and heirs of the deceased, of whom the father of the plaintiffs was one.

In October of the same year (1854) a partition was made between the brothers, adjudicatees at the partition sale, and another brother, in whom an interest was acknowledged — the plantation being divided into four parts, Erangois Emilien Troxler, receiving that part the undivided half of which is seized in this case as belonging to his surviving widow. These' proceedings, the sale and act of partition, took place during the marriage of the said Erangois Emilien Troxler and Mrs. E. E. Troxler, the wife who survived him, and the judgment debtor as stated. It is shown that the property acquired by the said Erangois Emilien Troxler by virtue of these proceedings, did not exceed his heritable interest in the estate of■ his father; and that, in the adjudication and subsequent partition, no money was paid; but the property in question was settled for out of his share, or by his share, in the succession.

Under these facts the question arises, and it is the sole question for our determination, whether this property fell into the community then existing between Erangois Emilien Troxler and his wife, or became his separate property. If the former, the half of it belonged to his surviving widow on the dissolution of the marriage, and was properly seized for her debt; if the latter, it was transmitted to his heirs, the plaintiffs, who claim it in this action.

The decisions of our courts have not been entirely harmonious and uniform on this subject, and this fact has induced us to give the question the closest study and investigation, and to review all the decisions bearing on it and the general principles of law applicable thereto.

Art. 2334 C. C. declares: “ The property of married persons is divided into separate property and common property. Separate property is that which either party brings into the marriage or acquires during the marriage by inheritance or by donation made to him or her particularly. Common property is that which either party brings into the marriage or acquires in any manner different from that above declared.”

The plaintiffs contend that their ancestor acquired this property by inheritance, and hence it never fell into the community; the defendants, that it was acquired, not by inheritance, but by purchase, and hence comes under the last clause of the article quoted, and under Art. 2402 of the Code, declaring property purchased during the marriage, whether in the name of the husband or the wife, to belong to the community. And the point of contestation is whether this particular property was acquired by inheritance or by virtue of a sale and purchase.

By inheritance is meant the right to a thing derived from another by virtue of heirship, the right to succeed to the property or estate of a person who has died intestate; the transmission of such right from the ancestor to the heir; property thus derived is also termed an inheritance.

The legal heir, who is called to the inheritance, acquires the rights of the deceased immediately on his death, and is considered as seized of those rights from the moment of the death, and the possession of the deceased continues in the heir. O. O. 940, 941, 242.

If the father of the plaintiffs had been the sole heir of his father, Frangois Troxler, and his estate had consisted alone of the property in controversy, of which he had gone into the possession of as such heir, there could be no question but that he acquired this property by inheritance. It is equally clear that if the estate consisted of this and other property, as it did, and that the deceased had a number of heirs, as was the case in this instance, and those heirs seized of the estate on the death of their father, had partitioned that estate in kind among themselves, that the portion falling .to each heir would be acquired by inheritance. It sometimes happens, though, where there are a number of heirs, that the estate that falls to them is of such a character that it is impossible for each heir to get his share of it by a partition in kind; that such mode of partition is impracticable. In that case the law provides that the estate shall be sold at public auction, and the rights or interests of the heirs in the property is transferred to the .proceeds, and these proceeds, which represent the property, are divided. And it is further provided that, if one or more of the heirs’ should prefer to have a portion of the property in kind instead of a share of the proceeds, he can become a purchaser to the amount of his heritable share, and is not bound to pay .any surplus beyond this, until his portion is definitively fixed by a partition. C. C. 1343.

The object and purpose both of a partition and of a licitation or sale of the succession property to effect a partition, is a common one, that is, to ascertain and define the respective interests of the heirs; to transfer the general and undivided interest which each heir has in all and every part and parcel of the property, movable and immovable, to specific property or a specific amount of money, which stands in lieu of and as a representative of such general and undivided interest. In substance, this general interest in all 'the property of the succession, the heir may be said to exchange, by the effect of these proceedings, for the specific thing he receives as the result of them. If considered as an exchange, it is the reciprocal exchange which the heir makes of his general interest in the entire succession, which.he has acquired by direct inheritance from the deceased, and which is his separate property by virtue of such inheritance, for a specific part thereof, a specific thing. If it be an exchange, there can be no question that property received in exchange for separate property whether of a husband or wife is of the same identical character as that which was given for it. 3 L. 233; 9 An. 185.

From this analysis of the subject.it would seem a perversion of the law to say that an heir to whom a particular part of an estate falls by a partition proceeding, whether it be a partition in kind or by lieitation, derives his right and title to such property by virtue alone of such proceeding per se, and that in case of lieitation, it was the adjudication, and the adjudication alone, that conferred the right, although he may not have paid one dollar for the property. It seems to us that such a construction of the law evinces a total disregard of the spirit of it. Now it is certain that though an heir may derive a right directly and immediately from a proceeding by lieitation, to • take possession of a specific piece of property that had belonged to the succession, with the title of owner, yet the source or origin of his right to do so was not the lieitation itself, and the adjudication under it, but from the ownership of this very property by his ancestor, and the transmission of this right of the ancestor by inheritance; and the proceeding by lieitation was but the means by which the proper measure of the right, thus • transmitted, might be made in favor of the heir, and his interest under it fixed and defined.

We are, however, told by the counsel for the defendant, that the law terms this lieitation a sale, and are referred to the language of the article of the Oode, which declares that all purchases made during the marriage by the husband fall into the community.

Words alone, used in a law, do not of themselves, considered without reference to the context and subject-matter, fix and control the meaning of that law. And courts, to ascertain the true intent of a law, will not be governed in construction of it solely by isolated words or terms used in the body of it, but will subject such words and terms to the proper analytical tests to' determine their real meaning, and make them subservient to the manifest or declared object of the law.' Thus, in regard to these words “ sale ” made to effect a partition and “ purchases ” at such sale by the heir. The proceeding, in a oertain sense, is a sale proper with all the requisites of a public sale. The property is exposed to the highest and last bidder, and if that highest and last bidder be not one of the heirs but a stranger, and the whole or part of the succession property should be adjudicated to such stranger, who pays the price of the adjudication, then, undoubtedly, there would be a public sale and a purchaser at such sale. But suppose the property, when exposed, is adjudicated to the heir or heirs, who pay no part of the price bid, because not required to do so, and who subsequently satisfy their bid, not by paying money, but by_ means of their hereditable share in the succession, and out of such share ? Such a proceeding cannot properly be called a sale and purchase, because lacking some of the essential elements of such contract. He does not acquire the thing by payment of a price in money for it, but receives it as by a prior right, and through which, then and there his ownership under a prior heritable right is determined and declared.

The whole confusion on this subject has been caused, we apptehend, by the change made in the Code of 1808 by that of 1825, as to the language and terms bearing on this point.

Article 174 of the Code of 1808 declares that “ the cant or licitation is not a sale; it is a mode of partaking, one of the effects of the action of partition of a thing held in common; it is the complement of the partition.”

These words are omitted in the corresponding article of the Code of 1825 and the present Code, which provides that, where a partition in kind is impracticable “ the judge at the instance of any one of the heirs shall order that it be sold,” etc.

It is admitted that, under the Code of 18U8, and the settled jurisprudence of the State with reference to cases arising under the article of that Code referred to, property acquired by an heir of the succession under such proceeding, remained his separate property, and did not fall into the community. Savenat vs. Breton, 1 L. 520; Porter vs. D. E. Peyster, 18 L. 355.

This mode of partition, as it existed under the Code of 1808, corresponds with the proceeding termed licitation in the French jurisprudence; and which Pothier, after giving the origin of the word in matters of partition, defines thus (Pothier, Vente, Nos. 638, 639); “We understand by licitation, an act by which the co-heirs or other co-proprietors of a thing by undivided interests, put it up at auction among themselves in order that it shall be adjudged to belong wholly to him offering the most and bidding last, under a charge upon such last bidder to pay to each of his co-proprietors a part in the price equal to the undivided interest which each of the said co-proprietors had in the property offered previous to the adjudication.”

The difference, and the only difference between the licitation thus defined and the sale, as it is termed, to effect a partition among coheirs, under the present Code, is, that by the former the property was exposed at auction to be bid for by the heirs alone, the bidding to be confined to them, and all persons excluded; whereas, by the latter, the bidding is left free to all persons, and the property is adjudicated to the highest and last bidder, though such bidder be a stranger.

The heir, at such licitation, to whom the property was adjudicated, was thought or considered as holding or acquiring by inheritance direct from the intestate. Pothier, lb.

We cannot see where, under the present system, the property of a succession is exposed at public sale, ordered and made to effect a partition among the heirs, and one of the heirs should become the adjudicatee of a specific part of such property, and that part the equivalent or less than the heritable share of such heir in the succession, and granted or adjudicated to him, and received by him in satisfaction or in consideration of such share, why the same rule should not apply, as where he receives and holds it by licitation under the former system. If he acquires in the one case by inheritance, the reasons are equally strong and pertinent why he acquires by the same right or the same mode in the other case. In fact the distinction that is sought to be drawn between the two cases seems to us to rest alone on the baldest technicality.

Our views on this point are sustained by the earlier decisions of this Court, after the change of the law referred to was made. Stroud vs. Humble, 2 An. 930; Squier vs. Stockton, 5 An. 743; Succession of Van Rensallier, 6 An. 803. And they are opposed by the decision in the case of Breaux vs. Carmouche, 15 An. 588, and also to some extent by that in the case of Hache vs. Ayrand, 14 An. 178; and these decisions, in so far as they are in conflict with the doctrine herein enunciated, and to the cases cited above, which support the views now expressed, may be considered overruled.

The fact that at the partition sale mentioned several of the other heirs of Frangois Troxler became the joint adjudicatees with the father of. the plaintiffs of undivided pórtions of the succession property, and that it was only by a subsequent act of partition between these co-heirs that the property in question fell to him, has been urged, as excluding the right or title to the property of the said Frangois Emilien Troxler, thus acquired, from the operation of the principles herein laid down. We see no force whatever in this position. The fact mentioned does not affect the question or vary- the rule. It may be said that by the said adjudication made to the several heirs of portions of the property in indivisión, they but received together or jointly the portions of the estate that they were entitled to by right of the inheritance, and the partition entered into soon after only had the effect to terminate the indivisión, and define and fix the respective rights of these heirs in the property previously severed from the estate by the adjudication.

The judge a quo held that the property seized belonged to the judgment debtor, Mrs. F. E. Troxler, as surviving widow of Frangois Emilien Troxler, and was liable to seizure for her debt. The judgment was erroneous, and must be reversed.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and proceeding to render such judgment as should have been rendered by the lower court, it is ordered, adjudged and decreed that the plaintiffs be, and they are hereby declared to be, and recognized as joint owners of the property described in the petition, and that the injunction against the sale of the same be perpetuated, defendants to pay costs oí both courts.

The Chief Justice takes no part in this opinion, on account of relationship to some of the parties; and Mr. Justice Fenner recuses himself, having been of counsel in the case.


text:
    No. 8178.
    Miguel Basso vs. E. G. Benker, Sheriff, et al.
    When the plaintiff in injunction seeks to restrain tli© execution of a judgment,’ on the ground that the property seized belongs to him, and not the judgment debtor, the only issue in the case is that of ownership.
    The right of redemption of property sold at a tax sale, given by law to the creditors of the former owner, is not confined to mortgage creditors.
    "When the tender is made according to law to the purchaser at the tax sale, for the purpose of redemption, his title, inchoate so far, is defeated, whether he, accepts or improperly refuses the tender. From that time, a creditor of the former owner has the right to seize the property.
    APPEAL from the Fifteenth Judicial District Court, parish of Pointe Coupee. Toist, J.

      Haralson & Claiborne, Chas. W. BuBoy .and Albert Voorhies for Plaintiff and Appellee:
    On the Application eor Rehearing
    First — The opinion and decree of the Court virtually concede that the writ of fi. fa. was issued prematurely.
    Second — Act of 1877, No. 96, Sec. 57, expressly limits the right of redemption to cases where the purchase has been made “ by the State, or any city or parish.” If, when the purchase is made by individuals, the right of creditors and of their debtor are fixed by Act of 1873, No. 47, Sec. 6, and Act of 1875, No 14, then the right of redemption must be exercised within six months, and not two years,-and the creditors or their debtor, must besides reimbursing outlays, pay 50 per cent, additional and costs, and not one per cent, per month.
    Third_The remedy of the owner, who claims the right of redemption, is, after due tender, to sue for retrocession and possession.
    Fourth — The remedy of the creditors acting in behalf of their debtor is : 1st, to make the required tender for him; and 2d, to sue in his stead for retrocession and possession, — “m order to make the same available to ike payment of thev)' debts.” C. C. 1990 (1986).
    Fifth — Neither the owner, or his creditors, can disregard the tax sal© and the purchaser’s refusal to retrocede aud give possession. The effect of the tender is simply to preserve the right to claim the enforcement oí the agreement or obligation of redemption.
    Sixth — In such judicial action there is no question raised as to ownership or title; but the issue is exclusively one of tender and right of redemption.
    Seventh — In the action to compel retrocession and obtain possession, the former owner and the purchaser are necessary parties, whether the action be brought by the owner himself or by his creditors.

      Eighth — As a corollary ^ creditors, having no other rights to exercise hut their debtor’s, cannot disregard the fact that their debtor has not sued for retrocession and possession, aud that the purchaser holds possession, and denies not only the efficacy of the alleged tender, hut even the existence of the right of redemption. They cannot, therefore, seize' as if the debtor was legally in possession, and thereby compel the purchaser to resort to an injunction in order to litigate between him and themselves alone, the fact or validity of tender, as well as the right of redemption itselt.
    Ninth — The purchaser being in possession is not required to bring a petitory action in order to vindicate his title. His injunction, therefore, does not properly raise a question of ownership or title, bat is intended to protect his possession.
    O. O. Provosty for Defendants and Appellants:
    First — "Where plaintiff in injunction seeks to restrain the execution of a judgment on the ground that the property seized belongs to him and not the judgmeut debtor, the question of ownership is the only one which can be examined, for, in such case, the plaintiff is without interest, and, therefore, •without right to provoke any other issue. 12 An., 181.
    Second — The ownership of the property being the only issue in such case, irregularities or in-formalities in making the seizure cannot injure such plaintiff, for, if in all respects regular and formal, the seizure is null, if plaintiff owns the property. 14 La., 280; 1 B. 297.
    Third — Although the property seized is in the possession ot one holding under aprima facie valid and recorded tax title, no direct action to test the validity of such title is requisite, unless, 1st. The necessity for such action is averred in the petition 5 or, 2nd, Objection is made on the trial that such invalidity cannot be collaterally established. 15 An., 531; 31 An., 330.
    Fourth — "When the issues are fully made by the pleadings, tried, and submitted without objection to the form ot the action, such objection when raised in argument cannot be considered. .
    Fifth — As between the original parties to a contract of sale and mortgage no registration thereof is requisite, so none is necessary as to one who subsequently purchases the property, and retaining from the price the amount of the prior mortgage, assumes and promises to pay it. 32 An., 283.
    Sixth — Any creditor of the owner of land sold under Section 53 of Act 96 of 1877, p. 147, may redeem it, and the offer to redeem made bona fide and according to that act to the purchaser at the tax sale, is an all-sufficient exercise of the right of redemption.
    Seventh — And such offer being improperly refused, is for all the purposes and rights of the creditor just as if it had been accepted. 31 An., 330 ; Mourlon, p. 236, vol. 3.
    Eighth — Consequently, the purchaser who, after such refusal, procures the Auditor’s confirmation of the tax sale, does so in fraud, and such confirmation is null, because obtained by fraud, and because from the date of such refusal the Auditor had no power to make such confirmation.
   The opinion of the Court was delivered by

Levy, J.

Leon Séré, Syndic of the insolvent estate of D. Bouligny, by virtue of a writ of fieri facias issued on a judgment rendered in the suit of Séré, Syndic, vs. L. V. Porche, seized a certain tract of land or plantation in the parish of Point Ooupee, which he claimed as being affected by and subjected to his judgment recognizing his mortgage thereon, and his right to seize and sell the same.

This land was assessed to P. S. Wiltz, and was seized by the tax collector and offered for sale to be sold in payment of taxes due. It was adjudicated to Miguel Basso, on the 5th of December, 1877, and on the same day the tax collector executed an act of sale to the said Basso. On the 30th of December, 1879, the Auditor of the State, executed an act confirming unto said Basso the tax sale.

Basso, the purchaser at tax sale, and the possessor of the property seized, enjoined the seizure under the fieri facias. In his petition he averred and claimed that, he was the true owner of the property, denied, that Séré, Syndic, was a mortgage creditor, averring that if he ever had any claim or mortgage bearing on said property, the same is perempted and barred by the prescription of ten years, not having been reinscribed; denied that the seizure was valid and legal; prayed for an injunction restraining further proceedings under the seizure; that the injunction be perpetuated, the seizure declared null and void, and the property decreed not to be liable to seizure in said suit of Séré, Syndic, vs. Porche, and for damages against the defendants in injunction to the amount of $400. The injunction prayed for was granted.

Defendants, in their answer, allege that the tax collector’s act of sale and the Auditor’s confirmation are null and void, and the plaintiff has no right or title to the property under or by virtue of these acts, because Séré, Syndic, being a creditor of Wiltz, (who is described in the acts as the owner) duly claimed the right to redeem the said property within" two years from the date of the sale, and did tender and offer to said Basso, the purchaser at said sale, personally, the full amount of the purchase money and all taxes paid by said Basso, on said property, between the date of his said sale and the date of the tender and offer, and did all that was required by law, to effect such redemption, but that said Basso, wrongfully and improperly refused said offers of redemption and denied the claim and right of said Seré to redeem, alleging as his reason, that the mortgage in favor of Bouligny had not been reinscribed; that Basso concealed said offers of redemption from the Auditor, and his (Basso’s) illegal refusal thereof illegally and without right procured the said confirmation from the Auditor. They prayed for damages for attorney’s fees incurred, and for the wrongful issuance of the injunction, for rejection of plaintiff’s demands and dissolution of the injunction.

There was judgment in favor of plaintiff, decreeing the seizure enjoined to be null and void; that the property be restored to the possession of Basso, plaintiff, perpetuating the injunction and awarding $250 damages to plaintiff. Defendants have appealed.

The pleadings of both parties hereto have distinctly put at issue the ownership of this property. The plaintiff, appellee, enjoins its seizure on the ground that it is his, and sets up and offers in evidence his muniments of' title. Defendants, appellants, assert the ownership to be in Wiltz, and that the property is subject to Séré, Syndic’s judgment and mortgage; deny the validity of the title claimed by plaintiff as derived from the tax sale and its confirmation, and allege that the right of redemption to which Séré, Syndic, as creditor of Wiltz, was entitled, has been seasonably availed of by Séré by a tender and offer to Basso, the purchaser at tax sale, of the amount paid by him, interest, costs and taxes between the sale and tender. Plaintiff alleges that the mortgage in favor of Bouligny sought to be enforced on the property is barred by the prescription of ten years, not having been reinscribed within ten years after its inscription.

The real question for our decision is that of ownership. 12 An. 181. Where the plaintiff in injunction seeks to restrain the execution of a judgment, on the ground that the property seized does not belong to the judgment debtor, but to the plaintiff in injunction, no other issue can be made but that of ownership.”

We will first consider whether the tender made within the delay fixed by law and of the proper amount, even though refused by the purchaser at a tax sale, is sufficient to defeat the perfection of the tax sale title, and the tender thus made operates to entitle the owner or creditor to perfect the redemption after the lapse of the time.

We think the right of redemption is not confined to a mortgage creditor; a simple judgment creditor has the' right. Séré, Syndic, is shown by the record to be a judgment creditor. The question of prescription of his mortgage claim is not-absolutely necessary to fie passed upon here, and we do not do so, although the authorities incline strongly to the establishment of the principle, that the description of a mortgage and recital of the property itself in'an act of assumption, duly inscribed, as also such description and recital in a duly registered judgment recognizing such mortgage, operates as a reinscription of the mortgage act itself. 5 An. 675; 24 An. 524; 14 La. 214. We do not however decide that question herein.

In Montgomery & Delony vs. Burton, 31 An. 330, the Court said: “ The tender having been improperly refused, of course it was for all the purposes of the defendant’s rights, just as if it had been accepted, and the only question remaining for our conclusion, is the consequence of the tender upon the rights of the parties. Whether a tax title is inchoate or not, until the delay for redemption, need not, as we have said, be now examined, because whatever may be the law upon that subject, there can be no doubt that the right of redemption sprang into being from the very fact of the sale, and became attached to it as a dissolving condition. This being the case, every obstacle, if any existed, to the execution of the mortgage was removed, and as the evidence of the tender, after the seizure, was received without objection, we consider that at least from that date the seizure was valid.”

We cannot recognize the ownership of the plaintiff in the property seized, because the tender and offer to redeem, made in time, prevents the perfection of the inchoate title derived from the tax sale, and regarding this tender as entitling the creditor to redemption of the property on payment of the amount due the purchaser, which, when this is made, he has the right to insist upon and enforce the dissolving condition of the tax sale, and, therefore, the title to and ownership of the property seized cannot be recognized by us as in the plaintiff in injunction. At the same time, as no tender appears to have -been made in the court below, in the proceedings in the injunction suit, the plaintiff in injunction is entitled to reimbursement of the purchase price, costs, and taxes paid and interest on his payment of taxes; and we feel called upon to render such decree as will do justice and accord equity to all parties. As to the mortgage claims of the defendants, we do not pass upon them, so as to preclude any parties in interest from contesting them under a plea of prescription or other plea, but reserve to all interested any defenses to which they may be legally entitled in opposing or contesting the legality or validity of the seizure or the claim, under which it is made.

It is, therefore, ordered adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed, and proceeding to render such judgment as should have been rendered by the OoUrt below, it is ordered adjudged and decreed that the injunction issued in this case be dissolved, and that on payment to the plaintiff, Miguel Basso, by the seizing creditor of the amount of the purchase money of the tax sale, interest as allowed by law, and taxes which have been paid by him on the property seized, viz: the amount due at the date of tender November 20th, 1877, being the sum of two hundred and twelve and 50-100 dollars, the writ enjoined be proceeded with according to law, and that plaintiff’s (Miguel Basso) demand to be recognized as owner of said property by virtue of his alleged title under the tax sale, be rejected. Appellee to pay.the costs of both Courts.

Rehearing refused.


author: Fenner, J.

text:
    No. 8105.
    The State of Louisiana ex rel. Butchers’ Union Slaughter House and Live Stock Landing Co. vs. The Judge of the Civil District Court of New Orleans, Division E.
    A suspensivo appeal from, a judgment dissolving a preliminary injunction and rendered on a Rule nisi, does not deprive the defendant of the right of having the case tried on the merits in the lower Court, even where the injunction is the sole relief sought by the plaintiff.
    Application for Writ of Prohibition.

      3. Belden, F. O. Zaoharie and A. A. Grandpré for the Relator.

      Henry L. Lazarus, Judge, Respondent.
   The opinion of the Court was delivered by

Fenner, J.

The relator brought suit against three defendants, viz: (1) the Crescent City Live Stock Landing and Slaughter-House Co., (2) the City of New Orleans, (8) the State of Louisiana. It applied for and obtained writs of injunction against each of said defendants. In the same suit, relator filed a supplemental petition wherein it applied for and obtained a similar writ of injunction against the Board of Health. The Board of Health appeared and moved to dissolve the injunction issued against it. Contemporaneously, the Board of Health brought suit against the relator, praying for injunction against the latter.

The two causes pending before the same division of the Court, the Judge thereof issued a rule nisi in the last-mentioned case, made said rule and the rule to dissolve the injunction in the first-mentioned case, returnable on the same day, and ordered them cumulated for the purposes of trial.

The issues involved in those rules were exclusively between the relator and the Board of Health.

On the trial of said rules, the Judge, in separate judgments, dissolved the injunction which had been granted in favor of relator against the Board of Health, and refused the injunction prayed for by the Board of Health against relator.

From the first judgment relator appealed suspensively; from the second judgment the Board of Health appealed, also suspensively; and both appeals are pending, undetermined, in this Court.

All four of the defendants in the suit brought by relator, viz: the Crescent City Slaughter-House Co., the City of New Orleans, the State of Louisiana and the Board of Health, having filed answers and placed the case at issue on the merits, it was regularly assigned for trial, and the Court was proceeding to try the same, when relator filed this application for a writ of prohibition.

He avers substantially that there is no question involved in the trial of said cause on its merits other than those involved in the aforesaid appeals; that the effect of said appeals was to transfer said cause to this Court, and to deprive the Civil District Court of further jurisdiction thereof during the pendency of said appeals; and he prays for the writ prohibiting the Judge and also the parties, “ from further proceeding in said cause and from entertaining any jurisdiction in said cause, until the further order of this Court.”

A judgment dissolving a preliminary injunction, on rule and on the face of the papers, is ordinarily a mere interlocutory judgment which does not prevent the cause from proceeding to determination on the merits. The case is not different even where the injunction is the sole relief sought.

The effect of such a judgment is simply to declare that, on the face of the papers, the plaintiff is not entitled to the injunction.

Had the judgment been one refusing to dissolve, manifestly the defendant would have had the right to put in his defenses and proceed to trial on the merits, and to show, that notwithstanding the prima facie sufficiency of plaintiff’s title to the relief asked, he is yet not entitled to it on the defenses of law and fact set up in the defendant’s answer.

The effect of the suspensive appeal from the judgment dissolving the injunction, is, during its pendency, to maintain the preliminary injunction and to leave the cause in precisely the position it would have occupied had the dissolving judgment not been rendered.

We can perceive no principle preventing the defendant, thus continued subject to the injunction, from defending and trying his case on the merits, where he may show that, whether the dissolving order oh the face of the papers be maintained or not, he is entitled to relief on his own defenses of law and fact.

If it were otherwise, the judgment in favor of defendant on his motion to dissolve might operate an absolute injury' to him, when suspensively appealed from, by suspending his clear defenses on the merits.

, In the ease at bar, however, it is plain that the judgment dissolving an injunetion against one only of four defendants, and the appeal therefrom, can have no effect whatever on the rights of the other three defendants to proceed with the trial of the cause.

The defendant did not exceed his jurisdiction in fixing and proceeding with the trial of the cause on its merits.

The application is refused.

Rehearing refused.


author: Poché, J.

text:
    No. 8183.
    T. J. Hickman et al. vs. Mary P. Dawson and Husband et al.
    A defendant, who does not insist upon tbe trial of an exception before the case is tried on the merits, is presumed to have waived tbe exception.
    The weE established rule of law, that the validity of a tax-sale cannot be attacked coHaierally, but only in a direct suit, does not apply to a petitory action, in which the defendant alleges the tax sale as his title. There, the plaintiff has the right to show the illegality of the title opposed to him, though it be a tax- sale ‘prima facie valid.
    —.[n such a case, all matters of defense set up in the answer must he considered as open to every objection of law and fact, as if such objections bad been speciaUy pleaded.
    APPEAL from the Eleventh Judicial District Court, parish of Natchitoches. Pierson, J.

      Chaplin, Dranguet and. Chaplin for Plaintiffs and Appellants:
    It ia competent for parties to waive rights and forms when not prohibited by law; the appellees have waived their objections to form in this case, by not excepting, at the proper time, to the mode of proceeding. 18 An. 65,468; 4 L. 482; 14 L. 248; 12 R. 194; 14 An. 520.
    An exception relating to the form of action cannot be plead after answering to the merits. Such exceptions are dilatory, and are waived by pleading to the merits. They are also waived if parties without requiring a decision thereon proceed to trial on the merits. 10 An. 20 and 140.
    If it appear that both parties have consented to try the issue of the validity of a sale in a collateral proceeding, this Court wül pass upon the issue iu that form of action. See 31 An. 839.
    The plea that plaintiffs must tender the price as a condition precedent to the action, must be pleaded in limine and the amount to be reimbursed set forth. 30 An. 310.
    In a petitory action, the plaintiff has a legal right to attack whatever title may be set up by defendant, in his answer, and is not obliged to file any additional pleadings to enable him to do so. 11 An. 467, 546; 13 An. 412; 8H.S. 141; 3 L. 392.

      Wrn. U. Jack and JD. C. Scarborough for Defendants and Appellees:
    Plaintiffs in a petitory action, claiming property as owners by inheritance, are not entitled to recover it for themselves on the bare proof that they are the heirs of the decedent who some ten years before her death was shown to be owner. It is incumbent upon them to show that they are the sole heirs, that the property belonged to the decedent at the time of her death, and accordingly passed into her succession; and furthermore, that they have accepted the estate iu some of the modes prescribed by law or have otherwise been legally vested with title.
    Plaintiffs in petitory actions must stand or fall according to the strength or weakness of their own titles; defects in defendant's title will not strengthen or validate theirs; they are required to show from their own vantage ground all facts and particulars necessary to sustain their pretensions.
    "When it is clearly in the power of a party to produce proof of a pertinent fact in his own favor, and he fails to do so, the presumption arises that it would have been unfavorable to his pretensions. *
    Tax sales under the Constitution of 1868, have the same legal status according to judicial sales; in this, that they are prima facie valid; hence, being prima facie valid, they stand good until attacked and overthrown by direct action. Their validity cannot be drawn-in question in a collateral manner.
    Itis a solecism to say that a title prima facie valid could be an absolute nullity on its face, because if a sale at all in fact and form, it is prima facie valid.
    A tax sale being prima facie valid, cannot be attacked and avoided under cover of a petitory action; it is necessary, in the very nature of things, that such a title must be assailed directly, and its nullities or vices be pleaded and proven.
    The object of a petitory action is not to establish ownership, but to recover possession, for ownership must exist to warrant the action; hence, the defendant holding possession under prima facie and recorded title, will not be destituted of his title and tenure, unless and until his title is attacked and annulled under proper proceeding.
   The opinion of the Court was delivered by

Poché, J.

Plaintiff's, in a petitory action, seek to be recognized as owners, and to recover possession of a valuable plantation, situated in the parish of Natchitoches, and alleged to be in the illegal possession of defendants. They allege title as the only heirs of their deceased mother, Mary E. Blanchard, who had acquired the property by purchase from the succession of her father, Frangois Gaiennie.

The defendants first filed an answer and general denial, and then set up title to the property under a tax sale in 1872, followed by an averment that under a petitory action, containing no allegation of the nullity of such tax sale, plaintiffs could not assail their title; pleaded the prescription of three and five years, and concluded with a reconventional demand in case of eviction, for the purchase price, for taxes since paid by them on the property and for the value of the improvements placed thereon by them since their purchase.

They subsequently filed the following exception in bar of plaintiffs’ action:

1st. That they are the owners and possessors of the property under a tax deed translative of property duly of record, and that such titles, like those in judicial sales, cannot be annulled collaterally, but must be attacked by direct action.

2d. That it is'a condition precedent to the institution of an action to annul a tax sale, that the plaintiff should make restitution or tender of reimbursement to the purchaser of the amount paid by him in disencumbering the property of its real charges.

Plaintiffs have appealed from the judgment of the lower court, which rejected their demand and dismissed their petition, reserving their right to sue by direct action for the nullity of defendant’s tax-sale, and reserving to the latter all the claims set up by them in reconvention. It does not appear from the record that defendants’ exceptions were passed upon or disposed of. In his written opinion, the district judge informs us that defendants having gone to trial on the merits, without insisting upon their exceptions, he considered them as having waived their said exceptions. This construction is strongly urged by plaintiffs’ counsel, but it is earnestly resisted by defendants’ attorneys, who suggest a misapprehension of the precise status of the case on the part of the judge, .for they were under the impression that the trial which took place was on their exceptions, and not on the merits.

As we must be guided by the record, we are bound to conclude that the exceptions were not tried, and as the principal plea urged on exception was incorporated in the answer, we do no injustice to defendants in following the course of the District Judge, in .considering that their exceptions, which were presented after an answer to the merits, have been waived, and in confining our investigation to the matters of defense urged in their answer.

After the introduction by plaintiffs of their evidence in support of their alleged title to the property, defendants then offered, as the muniment of their title, the tax deed of 1872, as alleged in their answer. Whereupon plaintiffs, in rebuttal, offered to prove the nullity of said tax sale, for reasons of defects in the assessment and description of the property, in the notices required to be served on the delinquent taxpayer and in the advertisement of the property for sale.

Defendants objected to the introduction of such evidence—

" Because plaintiffs had not alleged such irregularities, or nullities sought to be established in the tax-deed, and because it is not competent to consider collaterally any such nullities not patent on the face of the tax-deed.”

The objection was sustained by the District Judge, and plaintiffs’ bill of exceptions to his ruling on this point, presents a question of vital importance, which requires our serious attention. We agree with the District Judge that the defects or elements of nullity charged against the tax-deed, are not patent upon its face; and, if existing at all, must be proved by evidence on trial of the instrument itself; and that unsupported by such evidence the charge of nullity cannot be maintained. But the judge excluded such testimony on the ground that a tax-deed being a prima facie valid sale, cannot be attacked collaterally, but that elements of nullity must be the subject of a direct action in nullity.

We have carefully examined the numerous authorities which he quotes in support of his conclusion, and have read with interest his able review of the jurisprudence on the validity of tax-sales, when attacked collaterally.

But the authorities which he cites are predicated upon cases where the validity of the tax-deed was attacked by a third person, seizing the property of his debtor, without regard to the expropriation of the debtor’s property under a tax-sale. In such cases, when the purchaser under such a sale, appeared in the proceedings and exhibited his tax-deed, it was properly held, and it is now the settled rule, that such sale could not be attacked collaterally for any latent defect, or unless the deed itself discloses on its face the absolute nullity of the sale. 25 An. 237; Lannes vs. Bank, 29 An. 112; Jury & Gillis vs. Allison, 30 An. 1235; Renshaw & Cammack vs. Imboden, 31 An. 661.

A different rule applies in a petitory action where plaintiff alleges title in himself, and in which defendant to resist him successfully must show a better title in himself.

In such a case, all matters of defense set up in the answer must be considered as open to every objection of law and fact, as if such objections had been specially pleaded.

The title which defendant sets up in such an action is presumed to be traversed or resisted in all its vital elements, and is thus open to every attack which might be levelled at it in a direct action in nullity. While plaintiff must recover upon the strength of his own title and not upon the weakness of his adversary’s, the law allows him to meet the title opposed to him, with the same means of defense which his adversary may urge against his own title.

In the case of McMaster vs. Steward, 11 An. 546, it was held: “The act of sale being set up by the defendant in his answer, is open to every means of defense in the hands of the plaintiff, without pleading the same otherwise than orally on the trial. Maillot vs. Wesley, 11 An. 467; Spencer vs. Grimball, 6 N. S. 301. In applying this rule to the present ease we do not lose sight of the provision in the Constitution of 1868, requiring courts of justice to receive tax deeds as prima facie evidence of a valid sale'.

We have given full effect to this rule, in maintaining the tax sale set up in the answer, as prima facie valid, but we must allow to plaintiff in his petitory action all the weapons of attack which are afforded to him by law.

In our opinion the District Judge erred in excluding the testimony offered by plaintiffs, for the purpose of showing the nullity of their adversary’s tax title; and we shall remand the case on that ground.

The plea of prescription urged by defendants is not tenable. The defects in the tax sale relied on by plaintiffs are not matters of form, but radical defects. Woolfolk vs. Fonbene, 15 An. 15; Lague vs. Boagni, 32 An. 912.

In their brief defendant’s counsel argue that plaintiffs have failed to show legal title in themselves, in failing to show that their mother had the ownership and possession of the property at the time of her death, which occurred in May, 1871. The answer to this is, that this omission is supplied by defendants’ own evidence, which shows that in 1872 the identical property was seized and sold for taxes as property belonging to her succession. An admission in the record that plaintiffs were the sole heirs of Mrs. M. E. Blanchard refutes another objection urged in the same manner by defendants to the omission of such proof by plaintiffs.

The action instituted in this case by plaintiffs, is in itself an acceptance by them of their mother’s succession, and answers defendant’s ' argument that they had not shown such acceptance.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed; and it is ordered that this case be remanded to the lower court, to be tried according to law and to the views herein expressed; that the costs of this appeal be paid by defendants, and that the costs incurred in the lower court abide the final decision of the cause.

Mr. Justice Levy recuses himself for the reason of his having been of counsel.