author: Breaux, J.

text:
    No. 12,612.
    State ex rel. Immanuel Presbyterian Church vs. Owen Riedy.
    The pendency of another suit between the same parties, for the same object, arising out of the same cause of action, will not abate the suit unless specially pleaded in limine.
    The court will not supply the plea, although evidence was admitted without objection.
    •Where the matter relates to property rights of religious societies, the controversy is generally to be decided as other controversies between persons.

      Mandamus will lie to compel an officer of a religious corporation to deliver records to his successors, who are properly entitled to them.
    The boohs and records being subject to inspection by those having an interest, the corporation is entitled to a prompt remedy to have them restored. O. P., Arts. 831 and 832.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Benjamin Bice Forman for Relator, Appellant.

      J. £f. Ferguson and Edwin T. Merrick for Defendant, Appellee.
    Argued and submitted January 26, 1898.
    Opinion handed down February 7, 1898.
    Rehearing refused March 21, 1898.
   The opinion of the court was delivered by

Breaux, J.

This was an appeal from a judgment of the District Court quashing the writ of provisional mandamus issued and refusing relator’s application and dismissing its suit as in case of non-suit.

The relator was incorporated under the laws of this State.

It alleges that respondent, Riedy, was . lately acting pastor of its church, and that while he was acting as pastor he-took possession of its records and books consisting of — first, the minutes of the sessions of its ruling body in its ecclesiastical capacity; second, minutes of its board of trustees in its civil capacity; third, minutes of its church meetings; fourth, account book and ledger showing the accounts of the church. That he had been suspended by the presbytery from the exercise of his functions as minister of the gospel because he has wrongfully converted to his own use the charitable funds of the church, amounting to nearly eleven thousand dollars.

That he never was the legal custodian of the books and papers, and that he has been called upon to deliver them to those entitled to their possession; that the possession of those books and records is necessary for the proper conduct of the business and affairs of the church. The weight of the testimony sustains the allegations of plaintiff’s petition as relates to the books and papers claimed.

Respondent excepted; that relator disclosed no cause of action, and pleaded a general denial. He specially denied that he converted property to his own use. He averred that he was the legal custodian of the records and books which are in his possession; having appealed to higher authority in the church from the order of suspension made by the presbytery.

He testified that the boobs and papers in his possession are necessary in his defence of the suits pending against him in the District Court. To sustain his appeal in the matter of jurisdiction the president of the Board of Trustees made oath that, the value of the property, rights and credits of relator, the conduct and administration of which is, involved, exceed two thousand dollars.

Evidence of another suit being pending between the parties having been admitted in evidence without objection it was urged although defendant had interposed no written exception of Us pendens that that plea should be sustained.

We have not found it possible to agree with that position. Lis pendens is a special plea in a defence to a mandamus or in any other case. It has been decided that lis pendens should be specially pleaded. Bourguignon vs. Destrehan, 5 L. 116. The defence was not noticed for .the same reason in Long vs. Long, 8 L. 108; “ it was only in argument urged that there was another pending .suit,” and the court held “that a plea should have been filed.” It has been held that in order to be of any avail as a defence it must be filed in limine. Weeks vs. Flower, 9 L. 386; White vs. Gleason, 15 An. 479.

The absence of the plea is not supplied by evidence offered on the trial of the merits.

Moreover we have not found of record the suit invoked in argument as lis pendens. There is, however, evidence before the court that there is suit pending against the relator in the Oivil District-Court.

Respondent informs us that the cause of action is the same in the two actions, while the relator and appellant contends that the suit before the District Court filed in 1897 is not on the same cause of action nor for the same object, and if it were that a withdrawal of the demand for the books obviated all difficulty. We infer that this-withdrawal was made in the case just stated.

The court has considered evidence received without objection, where it had bearing upon the merits of a question. We have not found a decision holding that evidence thus admitted will give effect to res judicata or lis pendens, though not pleaded. It has been repeatedly decided; it must be pleaded; it can not be supplied by the court.

This brings us to the question whether a mandamus can issue to compel the respondent to perform certain duties stated in relator’s petition.

This court has decided that the provisions of the law of mandamus under our Code of Practice is more extensive than it is under the common law. Hatch vs. N. O., 1 R. 470, 512. It follows if mandamus is the proper remedy at common law, that it lies under our law.

“ The rule is well settled,” said Mr. High, in his “Extraordinary Remedies,” par. 306, “ upon principle and authority, that mandamus will lie to compel the surrender and delivery of corporate books and records to the officers properly entitled to them. And where the term of office has expired, either by removal or by lapse of time, and the officer refuses to surrender the corporate records and documents to his successor duly elected and entitled to their custody and control, mandamus will go to compel the delivery.”

Where the subject matter relates to the property rights of religious societies, it is within the court’s jurisdiction. Watson vs. Jones, 13 Wall. 680.

In a recent case we held that mandamus will lie to compel the board of management of a corporation, in a proper case, to let a shareholder inspect its books. Boursette vs. Gas Co., 49 An. 1556. For the same reason it should go to one who, as treasurer or custodian of a religious corporation who have refused to deliver the corporate records, to compel them to surrender them to the proper •officer.

These books being subject to inspection as stated, it is reasonable •and proper that the corporation should have prompt remedy to have its books and other records restored to the proper officer.

It is ordered, adjudged and decreed that the judgment appealed from is annulled, reversed and avoided, and the respondent is ordered to deliver to relator or to the officers of the Immanuel Presbyterian Church the books of account that he kept as treasurer, the minutes of the Board of Trustees, and all other books and papers pertaining to the said church in his possession. Costs of both courts to be paid by defendant and appellee.


source: Caselaw Access Project

license: Public Domain

text:
    No. 12,726.
    State of Louisiana vs. Jack Brittin.
    Tlie power to grant a change of venue is, in great part, confided to the District Court. His refusal to' change the venire will not be reversed unless it is clearly shown that it was erroneous.
    An objection to the manner of drawing a ventre can not be successfully made by one under accusation, unless made on the first day of the weels for which the venire was drawn.
    -A motion to annul and set aside the venire made by a defendant in one ease can not be made available by another defendant in another case. State vs. Courtney, 28 An. 79á; State vs. McCoy, 29 An. 593; State vs. Washington, 33 An, 897.
    APPEAL from the Twenty-first Judicial District Court for the Par1 ish of Jefferson. Rost, J.

      M. J. Cunningham, Attorney General, and Robert J, Perkins, Dis vtrict Attorney, for Plaintiff, Appellee.

      Wm. L. Thompson for Defendant, Appellant.

      Argued and submitted January 29, 1898.
    Opinion handed down February 21, 1898.
   The opinion of the court was delivered by

Breaux, J.

An indictment for murder was returned against the defendant on the 9th of December, 1896. He was twice placed on trial. At the first trial the jury failed to agree; the result of the second trial was a verdict of manslaughter. He was sentenced to a service of six years in the State penitentiary. From the verdict and sentence he appeals.

In the District Court, on the tenth day of December, 1896, the accused moved for a change of venue.

In April following he withdrew his plea of “ not guilty,” which had been previously entered, and entered a motion to quash the indictment on the ground that a judgment had been rendered in the matter of Waggner vs. Marrero, quashing and setting aside the entire jury venire for the term at which he had been indicted.

The refusal of the court to grant a change of venue gave rise to the first objection presented for our decision.

The accused in the motion alleged that there was a strong and violent prejudice against negroes in the parish in which he was indicted, and that he being of that race would not obtain a fair and impartial trial in that parish. The testimony of a number of witnesses was taken on the motion for a change of venue, and newspapers published in the city of New Orleans were filed containing articles calling public attention to the lawless conduct of men indifferent locali-. ties. Witnesses testified that it had become common and was felt in many places. We read the testimony with the closest attention we could bring to bear.

We closed the transcript despite the deplorable acts shown to have been committed, not convinced that there were not men enough in the parish to select, in the manner pointed out by law, a jury that would give a fair trial to an accused colored man.

The first jury empaneled did not agree, and a mistrial was entered. The second trial resulted in a verdict for manslaughter. A number of the witnesses swore that a jury could be found that would reiurn a fair and impartial verdict.

The trial judge saw and heard these witnesses, and by his refusal to change the venue made it manifest that he believed their testimony. We have not found that he erred. The matter of change of venue is largely addressed to the sound diseretion of the trial court. It was not clearly shown that it was abused. State vs. Gonsoulin, 38 An. 459.

This court said, in State, vs. White, 30 An. 365: “ As a general proposition it is true that a change of venue in a criminal cause is confided to the discretion of the District Judge exclusively, whose decision upon its propriety, rightfulness and necessity is final.” Citing State vs. Bunger, 11 An. 607. There is no necessity in this case to give to the discretion of the trial judge so unlimited á scope.

In our judgment the application is within the general rule, and the ruling does not call for the interference of this court.

A prejudice extending as far as charged and sworn to by some of the witnesses, is negatived and rebutted by the testimony of other witnesses, by the verdict of one jury, and by the weight to which the finding of the trial judge is entitled.

This brings us to the second objection set forth in defendant’s motion to quash the indictment, filed at a term subsequent to the term he was indicted — that is, April, 1897, a number of judicial days after the indictment against him had been returned.

The position was substantially that the ground for quashing the venire on the motion of the defendant in one case can be made available by another defendant in another case. The motion in Waggner vs. Marrero, to challenge and set aside the general venire of jurors was filed on the first day of the December term of 1896, on a number of grounds.

. The court sustained the motion and declared the general venire null.

The accused through counsel contends that the true bill in his case should be quashed and set aside for reasons set forth in the judgment rendered annulling the general venire.

The reason for sustaining the motion to quash and annuling the general venire in the cited cases supra was that the jury commissioners did not meet at the clerk’s office within the time and in the manner directed by Sec. 5 of the Act of 1896, and that these commissioners could not, as they did, legally at one and the same meeting select thé general venire list and draw the panel for the jury term.

It remains for us to determine whether (the grand jury having been declared an illegal body in another case on a motion to set aside the general venire) the true bill found against the defendant is a nullity.

The statute provides “ that all objections to the manner of selecting juries or to any defect or irregularity that can be pleaded against any array or venire must be urged on the first day of the term, or all such objections shall be considered as waived, and shall not afterward be urged.”

The defendant not having availed himself of the right to challenge the court is without authority to determine that the objection is not waived. The statute is positive and clear that all defects or irregularities not raised on the first day of the term shall be considered waived, and the decisions have always held that one in custody or against whom a prosecution is pending must file such a motion in due time. The defendant had the opportunity to 'challenge the array.

The following excerpt is from Thompson and Merriam on Juries, Sec. 545. This and other American courts uniformly held that, where the right of challenge exists, one held in custody or to answer before indictment can object to the panel or td the individual grand jurors only by way of challenge.”

Here we have seen the right to challenge exists, but it is limited to a time stated and if not made within the time it is considered waived.

A similar point was decided in State vs. Oourtney, 28 An. 794. The court held: the defendant should himself have made the objection .at the proper time.

In State vs. Washington, 33 An. 897, the court said:

But such objection urged only after plea and trial and on a motion for a new trial comes too late.”

In our judgment effect must be given to the “ statutory waiver.’> It is as out of season after the first day of the term as it is after the verdict has been rendered; save in exceptional cases such as that the accused was not under charge on the first day of the term, which was not the case here. The defendant was under accusation. There is nothing in the statute which can be construed as embracing other than the one- by whom the challenge to the array is interposed. If it were otherwise, although the challenger were to succeed in having the venire annulled on grounds entirely personal to himself other accused though silent, when they should have moved, would be included within the terms and effect of the annulling order.

Again:

If no one were to file a challenge to the array on the first day of the term, no objection could be urged on the ground of irregularity in drawing of the venire. But if one challenged the array and met with success, all would be equally relieved under the theory of defendant. The accused has not alleged that this cause was injuriously affeced by the irregularity complained of by a litigant in a civil suit on whose motion the venire was set aside. He based his motion to quash the indictment in his case exclusively on the fact that the venire had been declared null in a civil suit. In our judgment it devolved upon him to show in so far as he was concerned wherein there was any informality or irregularity .in the drawing. It may happen that informalities are fatal to the venire out of which a jury is to be selected to hear and decide a cause in a civil suit and not fatal as relates to an indictment found by the grand jury selected from the •venire annulled in the civil suit.

“ So that irregularities therein unless plainly operating to the prejudice of the challenging party form no ground for challenging the array. Thompson on Trials, par. 34.

The objection which should be urged on the first day of the term is to the formation, drawing and summoning of the second jury.

For other defects the rule does not apply.

It has been held, that the ineompetency of one of the grand jurors vitiates the act of indictment, and the motion to quash will prevail after the first day of the term; it will not prevail to set aside the general venire after that day.

In the case here not only the motion was not made on the first day -of the term, but the motion to quash the indictment on grounds before stated was made weeks after the indictment had been found And after the change of venue had been refused.

As we interpret the jurisprudence upon the subject it was entirely ' too late.

We did not find that the sections of the work of Mr. Bishop on Criminal Proceedings, to which our attention was invited, apply. He in those sections interprets the different statutory enactments in jurisdictions where challenges to the array are not limited to the first day of the term.

Under the common law, as we find it, the plea in abatement to the indictment was not allowed as a substitute to the challenge to the array. Pars. 509, 510, Thompson and Merriam on Juries. But whether allowed or not, at common law it can not be of any avail, as authority when filed too late, as here, in view of the statutes requiring challenges to the array on grounds before stated, to be filed on the first day of the term.

The verdict, sentence and judgment in this case are therefore affirmed.


author: Nicholls, O. J.

text:
    No. 12,644.
    State ex rel. Capitol City Oil Mills Company vs. Hon. F. A. Monroe, Judge, and Boland S. Leathers et als.
    The jurisprudence of the State has recognized the right of a plaintiff in injunction when the injunction taken out at his instance has been permitted to be bonded by the defendant, and he has been refused a suspensive appeal from such order to bond, to test the correctness of the District Judge’s ruling on the character and results of the act enjoined by calling into exercise in his behalf the supervisory powers of the Supreme Court, under an application for a mandamus to the judge to grant the appeal asked for. The position of the parties, and the scope of the issues presented to the court for decision under such circumstances, are discussed in Puckette vs. Hicks, 39 An. 901; State cx rel. Violett vs. Judge, 46 An. 81, 82; State ex rel. Lehrman vs. Judge, 46 An. 163, ei seq.

    For the purposes of a decision, as to whether the act prohibited was one such as would work plaintiff an irreparable injury, the allegations of the petition for injunction are to be taken as true, with the limitation that this extends to and covers only allegations well pleaded, not to conclusions of law. nor matters of mere evidence pleaded therein. An allegation that the act restrained, if permitted, would occasion irreparable injury, is a mere inference and deduction from the acts and facts charged, the verity and soundness of which the Supreme Court can review. Orescent City Stock, etc., vs. Police, 32 An. 1194, 1195,1196,
    The issue presented to the court (though in a different form) is substantially the same as that which it would have to pass on, had the suspensive appeal asked for been granted, and had the appellee moved to dismiss the appeal on the face of the papers, on the ground that it should not have been granted, as it was from an interlocutory decree working no irreparable injury. Villavaso vs. JEJarthet, 30 An. 417.
    QN APPLICATION for a Writ of Mandamus.

      Farrar, Jonas, Kruttsohnitt & Gurley, for Relator.
    Respondent Judge pro se.

      Geo. W. Flynn for B. S. Leathers and Boss Oil Mills, Respondents.
    Submitted on briefs November 10, 1897.
    Opinion handed down December 13, 1897.
    Rehearing refused February 21, 1898.
   The opinion of the court was delivered by

Nicholls, O. J.

Relators aver that in October, 1897, they instituted a suit in the Oivil District Oourt for- the parish of Orleans, in which they represented that they were engaged in the purchase of cotton seed and the manufacture of the same into oil, cake and other products, and had been so engaged for many years. That it had found it to be to the mutual interest of themselves and of the planters producing cotton seed and designing to sell the same to them that relators should furnish, at their own cost and expense, cotton seed sacks to such planters as were disposed to sell their cotton seed to relators, and that in the course of said business they had sent out a very large number of sacks through the country adjacent to the Mississippi river and its tributaries in the States of Louisiana and Mississippi, which were distributed to planters and delivered to them with the express understanding that they were to be used in shipping seed to relators only, or to be returned to them empty at the end of the season; that the said course of business had been adopted by themselves and other persons and corporations engaged in the purchase of cotton seed and the manufacture thereof into products for several years, and was practically universally pursued throughout the districts aforesaid; that Boland S. Leathers, the master of the steamboat Natchez, had for several years past been engaged as master and owner or part owner of steamboats, in the business of a common carrier on the Mississippi and its tributaries, and in the pursuit of such business had been fully informed of the course of business pursued by relators and others as described, and with the agreements and understandings and agreements between relators and the planters, and that he, in the course .of his business as a carrier, had repeatedly himself delivered sacks to planters for owners of oil mills, and was fully informed as to the manner, in which the cotton-seed business was. Conducted; that said Leathers, with full knowledge of the said course of business and relator’s ownership of the cotton-seed sacks so delivered by them to the planters with whom they did business, and which sacks were identified by the name and brand of relators thereon, and well knowing that said sacks were delivered to said planters by relators solely for the limited purpose of being filled with seed to be sold to relators at market price or otherwise, to be returned to them empty, nevertheless purchased seed in sacks so belonging to relators so purchasing seed for his own account or for that of a cotton-seed mill leased and conducted by him, either alone or in association with others, under the name of the “ Boss Oil Mill; ” and that said Leathers had taken possession of a large number of sacks bearing relator’s mark and to it belonging, and held the same in his possession and in that of the Boss Oil Mill, in the city of New Orleans; that relator had suffered damages through the conduct of said Leathers in the sum of five hundred dollars, being the value of the use of said sacks during the time that they had been in the possession of said Leathers and said Boss Oil Mill, being a 'fair and reasonable compensation for the rental and use of said sacks and for the deterioration of their value, and for the other damages set forth in their petition; that relator’s trade and business which had been established by it through years of effort and careful attention would be diverted and relator irreparably ¡injured unless said Leathers and said Boss Oil Mill should be enjoined as by relator prayed for from thereafter taking possession of any sacks belonging to relators and identified by their mark and brand.

That in and by said petition relators prayed among other things that upon its giving bond in an 'amount to be fixed by the court a writ of injunction should issue against said Leathers and said Boss Oil Mill, their agents, clerks, employees, assistants and officers, enjoining and restraining them and each of them from taking possession of any bags upon the banks of the Mississippi river or its tributaries in the States of Louisiana or Mississippi belonging to relators and identified by its mark and brand, which said marks and brand were alleged to be in the words and letters following, to-wit: “0. 0. 0. M. 0., Baton Rouge,” and that in and by the prayer of said petition relators further prayed for citation of said Leathers and of said Boss Oil Mill, and for judgment perpetuating said injunction, and for other relief as in said petition contained. That said petition was duly verified by affidavit according to law, and that upon the same an order was duly entered ordering an injunction to issue in the premises as by relators prayed for; that said injunction duly issued and was duly served upon defendants; that defendant Leathers subsequently applied to Hon. Frank M. Monroe, judge of the Civil District Court, to whom said case had been allotted according to law for the dissolution of said injunction upon bond; that said judge upon said application rendered an ex parte order allowing said Leathers to bond said injunction. Relators aver that all said facts would appear by the record in that suit, which they declare they make part of their application, and aver would be presented at the hearing of the same.

Relators aver that they did seasonably thereafter apply to the Civil District Court for a suspensive appeal from said order, but that the Hon. Frank A. Monroe, to whom said application for an appeal was made, had wrongfully refused and declined to render an order of appeal in the premises, as would appear from the petition for an appeal duly filed in the cause with the refusal of the judge to grant the same endorsed upon the said petition in writing; that in applying for said appeal relators requested the judge to fix the amount of said bond therefor, as he was required by law to do and also to fix the return day for the same, and that relators were and are still ready to give such bond as may be fixed in the premises.

Relators aver that it appears from the face of the papers that the damages accruing from the dissolution of said injunction will be irreparable; that in addition to the pecuniary damages which (as would appear from affidavit of record) will largely exceed two thousand dollars, the damages to accrue from the failure to dissolve said injunction will be the entire breaking up of relators’ business through the wrongful appropriation of its property by defendants, and that the amount of the injury to be suffered by relators through such wrongful appropriation of their property can not be estimated in dollars and cents, and no adequate relief exists save and except the said writ of injunction.

The premises considered relators pray that an alternative writ of mandamus issue, commanding said Frank A. Monroe, Judge of Division “0” of the Civil District Court to render an order upon the application of relators, granting relators a suspensive appeal from the order allowing Boland S. Leathers to bond said injunction and requiring him to fix the amount of bond for said appeal and a return day for the same.

That after due proceedings said alternative writ be made absolute • and perpetual.

The District Judge for answer averred that “ in his best judgment, it appeared upon the face of the papers that the damage to the relators which might result from the dissolution of the injunction on bond, as set forth in relator’s petition, could not in the nature of things be irreparable, but sounds in dollars and cents, and hence; under the jurisprudence as established by the Supreme Oour't, a suspensive appeal does not lie from the order dissolving said injunction on bond.”

Opinion.

On the 15th of October, 1897, the Boss Oil Mills and Boland S. Leathers were upon the petition of the Capital City Oil Mill Company and Louisiana corporation, doing business therein and having its domicile in the city of Baton Rouge, “enjoined, restrained and prohibited from taking possession of any bags on the banks of the Mississippi river or its tributaries in the State of Louisiana or Mississippi belonging to petitioners and identified by its mark and brand, viz.: C. 0. O. M. C., Baton Rouge,” and to remain enjoined, restrained and prohibited until further orders of the Civil District Court.

On the eighteenth of the month Borland S. Leathers, one of the defendants in injunction, applied for and obtained an order from the court dissolving the writ of injunction upon his furnishing bond and security.

The order was granted upon the averment that the writs of injunction worked an irreparable injury to defendants.

On the 28th of October relators applied for a suspensive appeal to the Supreme Court from the order to bond, alleging that it was an interlocutory order which caused them irreparable and pecuniary damages exceeding two thousand dollars.

The District Judge refused to grant the appeal, assigning in writing as his reason that the injunction was dissolved, as he believed, from the facts disclosed upon the face of the papers, that the dissolution would not work the plaintiff (relator herein) irreparable injury; that he was of the opinion that a suspensive appeal ought not to be granted from the order.

Plaintiff in the suit then applied to the Supreme Court as relator for a mandate directing the District Judge to grant the suspensive appeal which he had refused.

Both the order granting the injunction and that authorizing its bonding were ex parte. If the act prohibited by an injunction be not such as might work an irreparable injury to the party at whose instance the injunction issued, the court is authorized at its discretion to dissolve the same on bond to be furnished by the party enjoined.

Article 807 of the Code of Practice conveys that power in unambiguous terms.

In equally unambiguous language, a right of appeal is granted by law (Code of Practice 566) from all interlocutory judgments when such judgment may cause the party legally aggrieved thereby an irreparable injury. ’’

The whole issue before us on this application is whether or not the conclusions of the District Judge, that the act prohibited by the injunction which issued in this case was not of a character to work an irreparable injury to the plaintiff at whose instance it was issued and therefore was subject to be dissolved on bond, were well founded or not. If they were, then his action in ordering the bonding of the injunction and in refusing to grant a suspensive appeal therefrom must stand as against relators’ application.

While the right of the District Judge to order the dissolution of an injunction which he has issued is conditioned upon the fact that “ the act prohibited by the injunction is not such as may work an irreparable injury, to the plaintiff,” the right of the plaintiff in injunction, whose injunction has been bonded, to appeal suspensively from the order granting the dissolution is conditioned upon the opposite fact that the act prohibited should be such as might work him an irreparable injury, and, therefore, one such as the court could not legally dissolve on bond after the injunction had been granted The right is only an absolute right when that condition of things really exists. The District Court is necessarily called upon to decide primarily both upon the right of the defendant to'have the injunction bonded, and that of the plaintiff in injunction, after the injunction should have been ordered to be dissolved on bond, to be granted a suspensive appeal from such order. A refusal to grant the suspensise appeal would be the logical outcome of an order to bond, for the latter order would necessarily have had to be based upon conclusions irreconcilable with a right to the appeal asked.

In view of the fact that the right to a suspensive appeal would be-absolute if plaintiff in injunction was correct in respect to the consequences of a continuance of the acts prohibited, the jurisprudence of the State has recognized his right to test the correctness of the judge’s ruling on the character and results of the act enjoined by calling into exercise in his behalf our supervisory powers under an application for a mandamus to the judge to grant the appeal asked for when refused.

The position of parties situated as are those before the court and the scope of the issues presented to the court for its decision have been fully discussed in Puckette vs. Hicks, 39 An. 901; in State ex rel. Violett vs. Judge, 46 An. 81 and 82, and State ex rel. Lehman vs. Judge, 46 An. 163 et seq.

In State ex rel. Violett, following out closely the views of the court in the case of Puckette vs. Hicks, we said: “The question is whether the judge was warranted and justified in his refusal. On such an inquiry this court has necessarily to determine whether the judge’s discretion, which only extends legally to cases wherein the dissolution of the injunction would not work irreparable injury to the plaintiff, has been legally applied or not. If we find it has not, we grant relief; otherwise relator takes nothing by his application to us. As has been said several times by this court each case must stand or fall upon its own special state of facts. (White vs. Casanave, 14 An. 57; Blanc vs. Murray, 36 An. 167.) Por the purpose of our decision we take as true the allegations of fact contained in the petition for injunction, confining ourselves to the restricted issue on the pleadings as to the correctness vel non of the judge’s action in the matter-of the refusal of the appeal, which carries with it the determina- ' tion of the question whether the bonding of the particular case-would or would not work irreparable injury to the plaintiff. If we could under any circumstances extend our inquiries touching the injunction proper, the matter which we could consider would have to be very exceptional and radical in character. The whole subject has been very fully discussed in State ex rel. Puckette vs. Hicks, 39 An. 901, where- a mandamus was asked by plaintiff in injunction tohompel the defendant judge to grant a suspensive appeal from an order dissolving a preliminary injunction.” We quoted from a portion of the decision in that case, in which the court said that in the inquiry before us the allegations of plaintiff’s petition were taken for true so far as the facts therein set forth are concerned; that by this was not meant that the court was to be concluded by mere allegations in the petition that the acts restrained will occasion irreparable injury; that such allegations were mere inferences and deductions from the acts and facts charged, the verity and soundness of which the court could review. Citing Crescent City vs. Police Jury, 32 An. 1194, 1195 and 1196.

That it had to examine the facts charged and the nature and character of the injury which might be inflicted by the acts complained of and thus determine whether such injury might- be irreparable or not. That it was difficult to lay down any precise rule as to what gives an injury the quality of being irreparable, but that the general principie was that an injury, the damage from which is merely in the nature of pecuniary loss and could be fairly and fully repaired by compensation in money is a reparable injury for which a bond of sufficient amount and property secured would afford all adequate relief. Citing Crescent City vs. Police Jury, 32 An. 1194.

The statement that the allegations of the petition for injunction are to be taken as true for the purpose of a decision as to whether the prohibited act was one such as would work plaintiff in injunction irreparable injury must be taken with the limitation attached to the rule announced, which is that it extends to and covers only allegations well pleaded, not to conclusions of law nor matters of mere evidence pleaded in the petition (Fertilizing Company vs. Wolff, 48 An. 631), nor surplusage.

We have in this case at bar “ examined the facts charged and the nature and character of the injury which might be inflicted by the acts complained of,” which it is our duty to do as recognized in the decisions cited, and State ex rel. Abraham vs. Judges, 45 An. 887, 888, and Villavaso vs. Bartlet, 38 An. 417, and have reached the conclusion that the District Judge did not err in refusing relator a suspensive appeal. Had he granted an appeal and had the appellee, on its reaching this court prayed for its dismissal on the face of the papers upon the ground that it should not have been granted, inasmuch as it was from an interlocutory decree working no irreparable injury, we should have been forced to have sustained the motion. The issue presently before us is substantially the same as would have been presented to us under these hypothetical conditions though presented in a different form. (Villavaso vs. Bartlet, 38 An. 417.)

In Southern Cotton Oil Company vs. Leathers and Union Oil Company vs. Leathers, 49 An., p.— , decided, this day, in which the pleadings differ in no material respect from those in the present case, and in which the judges of the Civil District Court granted suspensive appeal, to the plaintiffs in injunction from their orders allowing the bonding of the injunction, this court on motion of the appellees dismissed the appeals as having been improvidently granted. The conclusions reached in those cases control the one at bar. We note the objection made by the relator that defendant in injunction in his application to bond suggested to the court that a continuance of the injunction would work to him an irreparable injury, instead of declaring that the act prohibited by the injunction was not such as might work an irreparable injury to the plaintiff, but we do not think that fact makes any material difference in the situation. The District Judge has ordered to be bonded an injunction which he had granted ex parte, for the reason specially assigned by him that it would not work plaintiff an irreparable injury, and basing himself on that conclusion he has refused to grant a suspensive appeal from this refusal. It is the correctness of that conclusion with which we have to deal.

We are not called on to express any opinion as to whether the injunction which issued in this case should have been granted or not, to say whether relator would have been entitled to recover damages for the acts complained of or not, or if so entitled what those damages would be. We go no further than to say, that granting that the injunction was properly issued and that damages were legally demandable, the damage or injury would not be an irreparable injury. (King vs. Harper, 33 An. 496.)

We are of the opinion that we can not afford relator the relief he asks.

For the reasons assigned, it is hereby ordered, adjudged and decreed that the orders heretofore granted herein are set aside, and it is now ordered that relator’s application for a writ of mandamus be and the same is refused.

Mr. Justice Miller — I dissent.


author: Nicholls, C. J.

text:
    No. 12,678.
    Mrs. Sarah C. Lane, Wife, vs. John A. Bursha, Husband.
    A wife having sued her husband for a separation of bed and board, grounded upon abandonment, the husband was summoned according to law to return to the matrimonial domicile, and immediately complied with the order, whereupon the wife left the house and went to reside with her father. The return of the husband was evidently bona fde, and not colorable to put an end to the suit. The wife then filed a supplemental petition averring cruel treatment and want of support by her husband. The court found these allegations to be not well founded, and the real source of complaint to be differences between her parents, who had gone to reside with their daughter and her husband. There was no reason to suppose that the husband through his conduct intended to wound the feelings and sensibilities of his wife. Her first duty was to her husband. Differences between the husband and the wife’s parents, in which the wife sides with the latter, furnish no ground for separation.
    A PPEAL from the Twenty-fourth Judicial District Court for the Parish of St Mary. Allen, J.

      Mentz & O’Neill and Carroll & Carroll for Plaintiff, Appellant.

      Wilson & Mayer for Defendant, Appellee.
    Argued and submitted December 31, 1897.
    Opinion handed down January 24, 1898.
    Rehearing refused February 21, 1898.
   The opinion of the Court was delivered by

Nicholls, C. J.

Plaintiff alleged in her petition her marriage to her husband in 1894, and that of their marriage there was one child twenty-one months of age. That her husband quit the matrimonial domicile in which they had been established since then in the parish of St. Mary, and still continued at the date of her petition to reside away from it; that he refused to return and live therein. That he had been guilty of cruelty toward her as well as of outrages, which cruelty and outrages were of such a nature as to render their living together insupportable to her.

That she desired to be separated from bed and board from him. and finally to be relieved of the bonds of matrimony existing between them. She prayed that she be given the provisional custody of the infant child; that her husband be summoned in the manner required by law to return to their common domicile; that after due hearing and delays, and after due summons to her husband as prayed for, and after due proof of the charges made, that there be judgment in her favor separating her from bed and board from her husband, and that defendant pay the costs of suit. That her husband, before his marriage, acquired certain property, which she described in her petition, which had been increased in value by reason of improvements put thereon to the extent of twenty-four hundred dollars, and that in the event of a judgment in her favor that she have judgment for one-half the said sum, with legal interest from judicial demand.

By order of court plaintiff was authorized to stand in judgment in the suit and given provisionally the custody of the child. Defendant was ordered to be summoned to return to the common matrimonial domicile in the manner required by law.

Defendant was (as ordered) summoned on the 16th February, 1897, to return to the matrimonial domicile.

On the 2d of March defendant answered. He admitted his marriage to the plaintiff. He averred that he had always acted and conducted himself toward his wife and child as a true and devoted father and husband; that he at no time ill treated or refused to support his family with all the necessaries of life; that his wife lived happily with him until the interference of her mother and father, who prevailed upon her to leave and quit him unless he would transfer to his wife and child all of his real estate, which he refused to do and which refusal caused the present trouble.

That he at no time quit the marital dwelling, but, on the contrary, his wife quit the same to live with her father and mother. That he was a carpenter by trade and had been and was still engaged thereat about seven or eight miles from his home. That he had on numerous occasions requested his wife to come and live with him near his work, as it would be very inconvenient for him to go home daily. That in obedience to the order of the court he returned to the marital dwelling, which he, however, had not quit, and upon his entering the same his wife and child deserted him and went to live with her father. He specially denied ever having done anything ill toward his family and averred that he had at all times, and especially at the time of his return home under the summons of court, requested his wife to remain and live with him. He denied that he had ever abandoned his wife and child or the matrimonial domicile, and averred that his wife followed the dictates of her mother and father. He prayed that her action be dismissed with costs.

Plaintiff filed a supplemental petition on the 11th of March, in which she alleged that about a week before the filing of her original petition her husband threatened to take her life; that he went into his house taking his gun, and with said gun in his hands threatened to take her life, and was prevented by other persons standing around. She averred that be lived a way from his home though within reach of it, and always failed and refused to support his wife and child; that it became necessary for her to do this herself, and though she was sick and weak the only means she had of doing so was to sell milk and vegetables, which she was compelled to do by peddling them about the town of Patterson and vicinity; that this was a great tax on her physical strength and against the advice of her physician, but that the failure of her husband to support her and child compelled her to do this. That he had, at all times, been negligent of her comfort and had been indifferent and did nothing to take care of her; that she was weak and sickly, and that this was cruelty and of such a kind as to render their living togethes insupportable. She renewed the allegations of the original petition and her prayers as before made.

Defendant, through his counsel, asked and obtained leave from the court to file a plea of estoppel to the following effect:

That the supplemental petition contained allegations contrary to and inconsistent with the original petition. That plaintiff could not be heard to set up by supplemental petition specific acts of cruelty after having in her original petition founded her action upon abandonment.

That upon proof of the defendant having returned to the matrimonial domicile as prayed forin the original petition and in obedience to the orders of the court (abandonment being the ground upon which the action was based), plaintiff could not be heard to prove specific acts of cruelty, as the return to the matrimonial domicile put an end to the said suit.

In the event said plea should not prevail defendant pleaded the general issue. He prayed that the demand under the supplemental petition be dismissed with costs.

The District Court rendered judgment decreeing that plaintiff’s action be dismissed and rejected at her costs and she appealed.

Opinion.

Plaintiff’s action as originally brought was for a separation from bed and board based on abandonment — the judgment asked for being evidently based upon the belief that the husband would refuse to comply with the summons served upon him to return to the matrimonial domicile which she alleged he had left. This expectation was not realized, as the husband, upon having the summons served on him complied at once with the order. The wife herself immediately left the husband’s home, going to that of her parents. The course taken by the defendant forced the plaintiff into a change of front, for shortly after she filed a supplemental petition, grounding her right to a separation upon alleged cruelty and seeking to utilize the abandonment which had been set up, no longer as the substantive basis of the action, but merely as “evidence” in support of a charge of cruelty.

We have examined the evidence with care, and find no error in the judgment of the District Court. The facts of the case have not been as fully developed as possibly they might have been, but we think the husband and wife are not near so iar apart as the latter’s pleadings would indicate. What troubles have arisen seem to date from the time that the wife’s parents (after the burning of their own residence) took up their abode at that of their son-in-law. That condition of things is apt to engender differences between the husband and the father and mother of the wife, and we think we are warranted from a consideration of the whole evidence in the case in reaching the conclusion that his absence from his home was more due to these than to any indifference to his wife. We are of the opinion that had the wife’s parent’s left the property, and had she remained at home, relations between the spouses would long ago have been resumed,- and this suit would not have been brought, and we are strongly of the opinion that there exists to-day no valid reason why the parties should remain apart. We find no evidence of cruelty by the husband to the wife. Her demand upon him to return to her is inconsistent with the existence at that time of any well founded reason on her part for a separation, while his return under the summons indicates that he has not lost his affection for her. There is nothing in the record which would tend to show that the return was merely colorable, in order to cut away the foundation on which the-suit rested. We think it was done bona fide.

It is claimed that the husband failed to support his wife and child. During the period that this neglect is charged to have occurred the parents were living on the husband’s property, cultivating and (for some time at least) having complete control of it. We think it scarcely true for the father to say under such circumstances that the onus of support was entirely thrown upon him. He would very naturally and very properly contribute to the support of the daughter and child under such conditions. In any settlement to be made between the parties in the business relations which they are shown to have had together, it is more than possible that an item on this subject will figure. Outside of this, plaintiff was not without remedy Though the laws of Louisiana do not authorize, as they do in some of the States, a direct action (independently of divorce proceedings) by the wife against her husband for maintenance, she is authorized, under proper conditions on his refusal to provide for herself and child, to purchase the necessaries of life for themselves on his credit.

It may be in the case at bar that the affection of the plaintiff for her parents is greater than that which she has for her husband; it may be that the husband in his relations and differences with them may have acted in a manner to have met with her disapprobation and censure, but the wife must bear in mind that in entering into the married state she took her husband for better or for worse and took upon herself an obligation by which she promised that forsaking all others she would cleave only unto him. We do not feel justified in awarding a separation between plaintiff and defendant by reason of troubles between the husband and the wife’s parents. They are certainly much to be regretted, and, if possible, to be avoided, but we can not enter here into the merits of those collateral issues in order to see and determine which of the parties was to blame in the premises. We have no reason to suppose that any course of conduct which the husband adopted in his intercourse or dealings with his father and mother-in-law was done with a view of wounding the feelings or sensibilities of his wife.

With a young infant of only a few months old linking these people together, it is to be hoped that reflection and a sense of duty by each will cause them to resume their marital relations and that the parents of the wife will (as they should) give their assistance in bringing this about.

We conceive it to be our duty under the state of facts disclosed by this record to leave the way open to that end.

The judgment of the District Court is hereby affirmed.


text:
    No. 12,693.
    Mrs. Estelle J. Shidet vs. Jules Dreyfuss Company, Limited, et al.
    It is negligence to throw from the interior of a building the debris of carpenters’ work done therein upon a constantly traveled public sidewalk, and to leave it there throughout the night of Saturday, all Sunday and all Sunday night, and the lessees of the building are responsible for personal injuries received by a passer upon the sidewalk falling over the same at night, there being no light nor other warning, or notice given of the presence of such obstructions, and the night being dark.
    Such an accident was one which might reasonably have been, and should have been, anticipated and guarded against. The lessee had no right to take the chances of the sidewalk being lighted up either by the moon or by the electric lights of the city. Plaintiff had the right to be walking precisely where she was; she was not bound to walk on the gutter’s edge, or oh the middle of the sidewalk, but had the right to assume and presume that the whole way was clear. Heckman vs. Evenson, 73 N. W. 430.
    APPEAL from the First Judicial District Court for the Parish of Caddo. Land, J.

      T. C. Barret, Thatcher & Welsh for Plaintiff, Appellee.

      Leonard & Randolph for Defendant, Appellant.
    Argued and submitted January 12, 1898.
    Opinion handed down February 7, 1898.
    Rehearing refused February 21, 1898.
   The opinion of the court was delivered by

Nicholls, O. J.

The plaintiff in this action sued the owners of a certain building in the city of Shreveport, described injher petition — the lessee of said building and a contractor who was 'engagedjin doing certain work upon the front and in the interior of the same in solido for five thousand dollars damages for personal injuries received by her on the night of the 13th of September, 1896. A severance having been granted the case was taken up and tried before a jury as against the lessees of the building, the Jules Dreyfuss”Company, Limited.

A verdict was rendered against the lessee for the sum of fifteen hundred dollars, for which amount the court gave judgment after refusing defendant’s motion for a new trial. Defendant appealed.;

In the Supreme Oourt plaintiff prayed for an increase in the amount of the judgment.

In her petition she averred that on the night in question she was-walking in company with her nephew, Fred. Boise, and Mr. John Bammert on the sidewalk of Market street, a public thoroughfare of the city of Shreveport, and alongside the said building, when she fell over a pile of boards or lumber on the sidewalk alongside of said store. That the cause of her said fall was tripping or stumbling, over said lumber which was on said sidewalk. That by her fall her leg was broken between the knee and ankle. That there were no lanterns or lights placed at said pile of lumber which obstructed the said sidewalk, neither was there any warning or notice of any kind calling the attention of passers-by to said obstruction. That the night was dark and she used all due diligence and care in pursuing her way along said sidewalk, and did not see, nor did the said Boise and said Bammert who accompanied her, and they likewise stumbled and fell over the same obstructions. That her said injury was caused by the gross neglect of the owners of said buildings, the said contractor and the said Jules Dreyfuss Company, Limited, putting said obstructions upon the said sidewalk, and in having no lanterns or lights or notice or warning of any kind upon or near said obstructions. That at that date she was employed as matron at the Charity Hospital in Shreveport at a salary of fifty dollars per month. ' That in consequence of said injuries caused as aforesaid, and by said negligence, she suffered great bodily pain and shock; that she was confined to her bed for many weeks and was still confined to her bed as a direct consequence of said injuries. That she had been damaged by said negligence of said defendants, and without any lack of care or diligence on her part, in the sum of two hundred dollars, and special damages in loss of time from her said employment, and in the further sum of two hundred dollars for doctor’s bills and medical attendance, medicines, appliances, nursing, etc., all rendered necessary from her said injury, and in the further sum of forty-six hundred dollars for her great bodily suffering and pain.

Defendant, after pleading the general issue, specially denied that, plaintiff suffered any injury through the fault' or negligence of defendant, and averred that if any injury was sustained, which was: denied, it was through the negligence of plaintiff and through no neglect or fault of defendant.

The plaintiff, while walking on the sidewalk of one of the principal streets of Shreveport, was thrown to the ground and had her leg broken by an obstruction which some one had placed on that sidewalk directly opposite the window of a building occupied as a store by the Jules Dreyfuss Company, Limited. Just prior to the accident the building had been undergoing some repairs and changes under a contract made by one Frank Denham with the Dreyfuss Company, Limited. A portion of the work covered alterations in the shelving in the interior of the store in which Dreyfuss Company were doing business as dry goods merchants. As the work progressed and after its completion the parts of the old lumber of the shelving which ■were replaced by new pieces and the odds and ends and debris, which could no longer be utilized, were removed through the window ■ of which we have spoken. Some of these were piled lengthwise :along the outer edge of the sidewalk next the gutter; others along ■the wall of the Dreyfuss building, and some in an irregular pile extending from the wall toward the middle of the sidewalk.

When plaintiff met with her injury, she, her grandson, about nine years old, and a gentleman friend were walking abreast of each other — the latter next the wall, the grandson in the centre, and plaintiff on the outer side. The hour at which the accident happened seems to have been a little after 8 o’clock on the evening of Sunday, the 13th of September, 1896. The moon had been up an hour or two, but it threw little if any light at the time upon the street or sidewalk, as intervening buildings prevented its doing so. The city of Shreveport is provided with a system of electric lights for the lighting of the public streets, but upon nights on which the moon is up, these lights are either not lighted at all or delayed in being lighted- beyond the usual hour. The store of the Dreyfuss Company forms one of the corners of Market and Texas streets. Just across the street there is a large hotel building known as the Phoenix Hotel. The portion of that building forming the corner of Texas and Market streets is occupied as a saloon by Dreyfuss & Caperton, who during the week days cause to be lighted at that corner an electric light, provided and paid for by themselves separate and distinct from the city lights. Plaintiff’s demand for damages for the injuries which she received by her fali is contested mainly upon the ground that the obstructions upon the streets were not placed there by themselves or their employees, but by Denham and some of his employees, on which hypothesis they contend they are not responsible, inasmuch as Denham was an independent contractor for the work done, and he alone is chargeable with the consequences of acts done by himself or his workmen. ' Defendants make also a very strong effort to prove that at the time of the accident the sidewalk along their building was under a strong light both from the moon and from the electric lights referred to, and that plaintiff was guilty of contributory negligence in not seeing and avoiding the construction on the sidewalk. The jury before whom the case was tried obviously held, under conflicting evidence, that the testimony of the plaintiff and of plaintiff’s witnesses, going to show that the sidewalk at the spot where and at the time when the accident occurred was not lighted, but that the obstructions were hidden and concealed from view by darkness, was correct. The jury (also under conflicting evidence) obviously held, that the particular portion of the obstructions which caused plaintiff to fall and break her leg, was placed upon the sidewalk by the Dreyfuss Company or its employees in the discharge of their ordinary duties as such. We have examined the evidence with care, and we are not prepared to say that the jury erred in its conclusions on either point. If the debris upon the sidewalk which caused plaintiff to fall was placed there by the defendant or its employees the question of “ Independent contractors ” disappears from the case.

The testimony introduced by the plaintiff as to whether at the ¡time and at the place of the accident the spot where it occurred was lighted or in darkness, is direct and positive to the effect that it was jn darkness. That relied on by defendant (though it be true as stated) does not successfully controvert it. It may well be that the city electric lights had been lighted prior to the accident, but it by no means follows from that that they were burning or giving light at the precise time when it was necessary that they should be burning in order for plaintiff to see the obstructions before her.

The evidence establishes that electric lights not only flicker, but that they frequently go out entirely, though they resume in a short time their brightness. It is quite possible (in fact under the evidence we are bound to say), assuming that lights had been, in point of fact, burning before the time of the accident- and that when burning the effect of the same extended to the sidewalk opposite the window of the Dreyfuss building (which latter fact is by no manner of means certain), that the accident occurred precisely in one of these periods of temporary darkness. The jury were doubtless familiar with the locality at which the accident occurred; the distances from point to point, as well as the relative situación of the windows of the Phoenix Hotel, those of the Dreyfuss & Oaperton saloon, and those of the Dreyfuss Company building, opposite which the accident occurred. We do not think the “ Commercial light ” at the Dreyfuss & Oaperton corner plays any part in the solution of the questions at issue in this case. The accident occurred on a Sun.day, and that light was not made use of on that night. Had it been burning it is questionable whether with the intervening lumber piled along the outer edge of the sidewalk of the Dreyfuss Company building, and with the shadow from that light, which it is shown an intervening post would cast upon that sidewalk, the situation would have been materially changed. Be all this as it may, we do not think the evidence is in such a condition as to justify us in setting aside the verdict of the jury. It must be conceded that there was gross negligence in throwing the debris remaining from the work done in the Dreyfuss Company store upon a constantly traveled public sidewalk, and leaving it there throughout the night of Saturday, all Sunday and all Sunday night. All the probabilities come in aid of the testimony adduced to the effect that the employees of the Dreyfuss Company placed the obstructions upon the sidewalk. The house was engaged in an active business, requiring for that purpose that the interior of the building should be cleared of the useless material lying upon the floors, and we think with the jury that the debris in question were swept upon the sidewalk by the porter of the house or by their office boy.

We think the result which happened was one which the Dreyfuss Company might reasonably have anticipated, and one which they should have anticipated. They had no right to take the chances of their sidewalk being lighted up either by the moon or by the electric lights of the city. The plaintiff had the right to be walking precisely where she was. She was not bound to walk on the gutter’s edge or in the middle of the sidewalk, but had the right to assume and presume that the whole way was clear. Heckman vs. Evenson, 73 N. W. 430.

It is urged that the damages claimed do not extend under the pleadings to damages for injuries' resulting in permanent bodily injury; that the damages found must be held to have been fixed purely as for pain and suffering, and that viewed from that standpoint the amount of damages returned by the verdict is excessive. The verdict of the jury was a general one. Accepting the view taken of it by appellant we do not feel warranted in saying it was given for too large an amount.

For the reasons herein assigned, it is hereby ordered, adjudged and decreed that the judgment appealed from be and the same is hereby affirmed.


author: Nici-iolls, O. J.

text:
    No. 12,704.
    Parish of Ouachita vs. City of Monroe.
    The Supreme Court ia not vested with appellate jurisdiction (independently of the amount in dispute) in every case in which the constitutionality of an act of the General Assembly is placed at issue. That issue of itself determines its jurisdiction only in eases in which the constitutionality or legality of any tax, toll or impost whatever, or of any fine, forfeiture or penalty imposed by a municipal corporation, should be in contestation.
    Act No. 128 of 1896, ordering the city of Monroe to pay to the parish of Ouachita expenses incurred for the arrest, prosecution, trial and conviction of persons accused of crime in certain cases, and those incurred for other specially designated purposes, may, by way of consequence and result, cause an incretse in the amount of taxes imposed by the city on its inhabitants, but the city in its corporate capacity is chargeable with and is charged with no taxes, and the statute does not order the city to impose taxes upon its citizens. The amounts it is directed to pay may well be paid from sources of revenue other than taxation.'
    The statute is too contingently, remotely and indirectly connected with the subject of taxation to cause the attach upon its constitutionality made by the city vest jurisdiction in the Supreme Court under Art. 81- of the Constitution.
    Should illegal taxation result from the law, the individual citizens who will'be sought to be charged under the same will themselves test the validity of the law.
    A PPEAL from the Fifth Judicial District Court for the Parish of Ouachita. Potts, J.

      Percy Sandel, Stubbs & Bussell for Plaintiff, Appellee.

      Thomas 0. Benton, City Attorney {Hudson, Potts & Bernstein, of Counsel), for Defendant, Appellant.
    Argued and submitted January 14, 1898.
    Opinion handed down February 7, 1898.
   The opinion of the court was- delivered by

Nici-iolls, O. J.

The plaintiff asks judgment against the defendant for the sum of fourteen hundred and forty six dollars, with interest from the 10th of February, 1897.

The action is grounded upon the following allegations:

That the Legislature of the State by Act No. 81 of 1878 exempted all real and personal property situated and being in the corporate limits of the city of Monroe, and all persons, firms and corporations within said city, from payment of all taxes and licenses to the parish of Ouachita from and after the first day of January, 1878. That in order that the city of Monroe should bear a just and equitable proportion of the burdens of local government, the Legislature of the State passed Act No. 57 of 1876, whereby the city of Monroe was required to pay to the parish of Ouachita one-fourth of certain expenses therein set forth. That since the passage of Act No. 57 of 1876 the city of Monroe had increased very extensively in property and population, and in order that said city and its inhabitants should bear the expenses of local government in proportion to the property and population within the corporate limits of said city, the Legislature of the State passed Act No. 128 of 1896 so as to read as follows:

“ That hereafter the city of Monroe shall pay the parish of Ouachita all expenses incurred in and arising from the detection, arrest, prosecution, trial, conviction, punishment and transportation to prison of all persons accused of crimes, offences and misdemeanors committed within the corporate limits of said city, provided that the sheriff and clerk and District Attorney and constable and justices of the peace shall collect their costs and fees in all such criminal cases directly from the city of Monroe, and that said city shall further pay to the parish of Ouachita one-third of all expenses incurred by the parish of Ouachita for the registration of voters and conduct of elections, per diem and mileage of jurors, and issuing of jury certificates, boarding and lodging jurors in capital and other cases in which the jury is not allowed to separate — feeding and maintaining prisoners in jail, all jail supplies, including bedding, fuel, lights, clothing for prisoners, etc., fuel, lights, salary of janitor and all other incidental expenses incurred in the case of the parish court house and jail; the erection and construction and repair of the public buildings for the parish inside the corporate limits of the city of Monroe and improvements to the Court House Square — premiums of insurance on all public buildings of parish, attendance of sheriff on the several courts, books, stationery, blank forms and other supplies for the parish officers — sheriff’s salary in criminal matters as fixed by the Constitution of 1879 — public printing for the parish and supplies for the inspector of weights and measures.

“ And provided further, that hereafter the city of Monroe shall receive all fines imposed and collected and all bonds forfeited and collected in criminal cases arising in the corporate limits of the city of Monroe, and one-third of the fines imposed and collected and one-third of the bonds forfeited and collected in all cases arising within the parish of Ouachita outside of the city of Monroe.”

• That in compliance with the provisions of law, Sec. 11 of Act 57 of 1876, within ten days after the 1st of January, 1897, the president and clerk of the police jury of the parish of Ouachita made out and certified under oath a statement in detail of all expenses on account of the items above set forth, which had been settled and liquidated by the said parish of Ouachita from time to time in the manner required by law, which said detailed statement was delivered by said president and clerk of the police jury to the mayor of the city of Monroe within the time and in the manner required by law. Plaintiff annexed said detailed statement to his petition.

Petitioner further averred that thirty days had elapsed since the said delivery of the statement, and that the indebtedness claimed was long since due. That it remained unpaid notwithstanding amicable demand.

Defendant first pleaded the general issue.

It admitted it was legally indebted to plaintiff for the items of the account sued on, for which it was bound under Act No. 57 of 1876 amending the charter of the city of Monroe, adopted in 1871 and amended in 1873, but it alleged that the city had made a formal legal tender of the amount so due to the president of the Police Jury of Ouachita, to-wit, the sum of five hundred and twenty dollars and thirty-five cents.

Defendant specially .denied that it was indebted in any manner or in any amount for the items of the account sued on which were not provided for and set forth in the aforesaid Act No. 57 of 1876 as a part of the charter of the city of Monroe.

Defendant specially denied that it was bound in any manner or for any amount under the provisions of Act No. 128 of 1896 as far as it changes or amends the provisions of Act No. 57, the latter act being'* an amendment to and forming a part of the original charter of the city of Monroe. It averred that said Act No. 128 is unconstitutional for the following reasons:

That it violates the twelfth paragraph of Art. 46 of the Constitutution of 1879, which provides that “The General Assembly shall not pass any local or special laws on the following specified objects: creating corporations or amending, extending or explaining the charters thereof: Provided, this shall not apply to the corporation of the city of New Orleans or to the organization of Levee Districts and Parishes.”

Defendant averred that the act of 1876 was an amendment to the eleventh section of Act No. 81 of 1873, amending the original charter of the city of Monroe under Act 102 of 1871, and as such .the Said Act No. 57 of 1876 was incorporated into and became a part of the original charter of Monroe as above set forth, and that the Legislature was without power under the provisions of the Constitution of 1879 to amend, renew, extend or explain said charter. That even if Act No. 128 of 1896, on which plaintiff’s claim was based, had not been violative of said paragraph of Art. 46 of the Constitution, even then, and in that case, the said act was not adopted in accordance with the provisions of Art. 48 of the Constitution; that said act was never advertised in accordance with the provisions of said article as precedent to the passage of such a local act. That no notice “stating the substance of the contemplated law ” was ever published prior to the passage of said Act No. 128, and on said account said act is unconstitutional.

' Defendant averred that the first section of said Act No. 128 is in conflict with Arts. 119 and 121 of the Oonstituiion, in so far as it orders the costs of the sheriff and clerk to be collected directly from the city of Monroe. That Art. 119 fixes and establishes the compensation of the sheriffs of the several parishes of the State, and Art. 121 declares that the clerk of the District Court “ shall receive no compensation for his services to the State or parish in criminal matters.”

That the provisions of Act No. 128 were irregular, unequal, unjust and oppressive to the city of Monroe, and its material interests, and its enforcement would be disastrous in its consequences. That said act was hurriedly passed in the last days of the session of 1896, without the previous notice required by the Constitution, and without the consideration which its importance deserved.

The District Court rendered judgment in favor of the plaintiff for twelve hundred and seventy-four dollars and seventy-four cents, with eight per cent, per annum interest from 10th of February, 1897, until paid. The city of Monroe appealed.

Appellee prayed in the Supreme Court that the judgment be amended so as to grant to it the full relief asked for.

The action as brought is simply a demand for a moneyed judgment against the city of Monroe for fourteen hundred and forty-six dollars.

The claim is based upon an alleged liability of that city to the parish of Ouachita, several acts of the Legislature, by which the city was charged with that obligation of paying to the parish expenses and costs of a certain designated character primarily paid and to be paid by the parish. The city defended the action upon an allegation of the unconstitutionality of Act No. 128 of 1896, under authority of the provisions of which the claim of liability was mainly predicated. The grounds of unconstitutionality set up were that it was violative of the twelfth paragraph of Art. 46, and also violative of the forty-eighth article of the Constitution. The twelfth paragraph referred to was a prohibition upon the General Assembly enacting any local or special law creating corporations, or amending, extending or explaining the charters thereof, while the forty-eighth article required an advertisement to be made. Article 48 declares that “ no local or special law shall be passed on any subject not enumerated in Art. 46, unless notice of the intention to apply therefor shall have been published without cost to the State in the locality where the matter or thing to be affected may be situated, which notice shall state the substance of the contemplated law and shall be published, at least, thirty days prior to the introduction into the General Assembly of such bill and in the same manner provided by law for the advertisement of judicial sales. The evidence of such notice having been published shall be exhibited in the General Assembly before such act shall be passed, and every such act shall ■contain a recital that such notice has been given.” As will be seen neither article alludes to the subjection’of taxation.

If this court were vested with appellate jurisdiction in every ease in which the constitutionality of an act of the General Assembly was at issue, independently of the amount of the matter in dispute, this appeal would be properly before us, but such is not the fact. That issue of itself determines our jurisdiction only in cases in which the constitutionality or legality of any tax, toll or impost whatever, or of any fine, forfeiture or penalty imposed by a municipal corporation shall be in contestation. Constitution, Art. 81. We find no issue of that character involved in this appeal. The act attacked might well be violative of both of the articles of the Constitution and yet involve no question of taxation. In truth it does not deal with that subject at all. It is true that it imposes (and in so doing it may unconstitutionally impose) upon the city of Monroe the payment of a certain class of expenses and costs, and that its enforcement may (though not necessarily) by way of result and consequence cause the city to increase the amount of taxes imposed by it upon its citizens, but the city in its corporate ■capacity is chargeable with and is charged with no taxes, and it is not ordered by the act to impose taxes upon its citizens. The amounts it is directed to pay may well be paid from revenues of the city derived from sources of income other than those of taxation. The sources of revenue which the act itself directs to be placed at the disposal of the city may suffice of themselves to meet the payment of the claims. If the fact should be otherwise and it should become necessary that taxation be ordered to meet the same, the individual citizens who will be sought to be charged with these taxes will have ample opportunity to test the legality of the law under which they were caused to be imposed. Act No. 128 of 1896 is too contingently, remotely and indirectly connected with the subject of taxation to make the attack which the city has made upon it in this case a matter appealable to this court under Art. 81 of the Constitution.

This court being without jurisdiction ratione materise in the premises, we are forced to dismiss the appeal. The appeal is hereby ■dismissed.


author: Miller, J. Breaux, J.

text:
    No. 12,550.
    Mutual Building and Homestead Association vs. Fidelity and Deposit Company of Maryland.
    X. The owner contracting with two partners for the erection of a building will not be deemed to discharge one of the contractors simply because they dissolve their partnership, and the owner makes one of the payments to the partners charged by the dissolution with the completion of the building contracts of the firm and authorized by the other partnerto receive such payment. Novation is never presumed and the discharge of neither of the contractors can be inferred from the owner’s action. Civil Code, Arts. 2185, 2186,2190, 2192 et seq.
    2. Nor will the consent of the, owner in such case to the abandonment by one of the contractors be inferred, no such consent having been asked or granted and both contractors remaining bound to the owner.
    3. The contract of suretyship will not be deemed avoided under the stipulation of notice to the sureties of any act of the building firm for whose performance of th.eir contract the sureties bind themselves, because the sureties are not apprised of the dissolution of the building firm, the firm remaining bound after as before the dissolution for the'fulfilment of their contract, and notice having been given of the subsequent abandonment by the firm of their contract work.

      On Rehearing. — None of the rights of the defendant were injuriously affected by the acts of plaintiff, who was the obligee of a bond given to secure an obligation of contractors under a building contract.
    APPEAL from the Oivil District Oourt for the Parish of Orleans. Monroe, J.

      J. Zaeh. Spearing for Plaintiff, Appellant.

      Purnell M. Milner (Harry H. Hall, of Oounsel), for Defendant, Appellee.
    Argued and submitted December 18, 1897.
    Opinion handed down January 10, 1898.
    Rehearing granted February 7, 1898.
    Submitted on briefs March 7, 1898.
    Opinion handed down March 21, 1898.
   The opinion of the court was delivered by

Miller, J.

This suit was brought on the contract of defendants by which they bound themselves as sureties for the faithful performance of the engagement of Anderson & Allen to build a house for the plaintiff. The petition in substance avers the failure of the contractors, Anderson & Allen, to complete the building; that plaintiffs had to finish it at an expense exceeding the price stipulated to be paid the contractors; that laborers and furnishers of materials in consequence of the default of the contractors have recorded liens against the building; that under defendants’ suretyship they are bound to pay the excess upon the contract price of plaintiff’s expended to finish the building, are bound also to have the liens against the building canceled, and the petition claims judgment accordingly; the defence is, in effect, that the suretyship became void because the plaintiff, with knowledge that the contractors for the building had dissolved their partnership after they commenced the building, failed to communicate that dissolution to defendants; that after the dissolution plaintiffs made a payment to one of the contractors who, under the agreement with his partner, was to complete the building begun by both; that plaintiff assented to the continuance of the work by one only of the contractors, and because the plaintiff failed to record the building contract as required by the Act No. 180 of 1894. From the judgment against plaintiffs they prosecute this appeal.

The building contract was made on the 27th August, 1895. On the 19th October in the progress of the work the third payment became due to the contractors and on the demand of one of them, and the exhibition of the agreement of dissolution with his partner authorizing plaintiff to pay the partner making the demand, they made that payment; a day or two afterward plaintiffs were informed by their supervising architect that the contractor receiving the payment had left the city, that the workmen on the building were unpaid and had quit work; thereupon there was some discussion between plaintiff and the other contractor with reference to the completion of the building by him; in these discussions the agent of defendants took part, but after a few days this effort to secure the completion of the building failed, and on the 25th October, as we read the record, defendants were notified in writing by the plaintiffs of the abandonment of the work by the contractors, and plaintiff s demanded that defendants under their suretyship should take charge of and complete the building; defendants replied they had been discharged of all liability and this suit followed.

The argument for the defendants insists there was a change by the plaintiffs in their contract with Anderson & Allen, by which defendants, as sureties, were discharged, and in this connection we have the citations of the authorities affirming the principle that any material change by the act of the creditor of the surety’s contract will discharge him, entitled as he is, to stand on the contract as he made it. Brandt on Suretyship, pp. 93 and 94. The application of this principle the argument supposes is found in the fact that plaintiff made the third payment to Anderson & Allen after the dissolution of their partnership had become known to plaintiffs. On that dissolution known to plaintiff and .their payment to Anderson rest the defendants’ argument that plaintiffs have varied the surety’s contract by discharging Allen. The plaintiffs certainly are not responsible for the dissolution of Allen & Anderson. The payment to Anderson was due when the plaintiffs were called on; there had been no default and the erection of the building was then in progress. In the dissolution Allen, binding himself to finish all the firm’s contracts, was fully authorized to collect money due the firm. Plaintiffs naturally required evidence of Anderson’s authority to receive; that was furnished, and after consulting their counsel made the payment. In our view the plaintiffs were bound to pay, and we can not perceive that in paying what was due, and could not have been withheld, the plaintiffs have lost their recourse on defendants as sureties of Anderson & Allen. The knowledge of plaintiffs of the dissolution, and that Anderson had bound himself to finish all the work of the firm and the payment to Anderson, did not imply that the plaintiffs discharged Allen. No such discharge was asked or granted; and if asked, we are authorized to infer from the ordinary modes of human action, would certainly have been refused. We find no basis,in plaintiffs’ conduct on which to base a discharge of Allen, and the law forbids the implication of such discharge unless it clearly results from the conduct of the parties. C. C., Arts. 2185, 2196, 2186, 2192 et seq. In our view both partners remained bound to plaintiffs after as before the dissolution. Nor do we understand that Allen ever claimed the discharge his sureties now insist was granted him, and with the most careful consideration we are unable to deduce that discharge from the intercourse of the parties. The surety is discharged when by the act of the creditor, the subrogation to all his rights against the principal for whom the surety is bound can not be transferred to him by subrogation. C. C., Art. 3061. In our view all plaintiffs’ rights against Allen are intact, and will pass to defendants when they pay the debt.

It is earnestly pressed on us that the sureties were discharged by the alleged non-compliance of plaintiffs of the stipulation in the defendants’ contract requiring immediate notice to them of any fact that might result in loss to defendants. The answer avers that plaintiffs failed and neglected to notify the defendants of the dissolution of the firm of Anderson & Allen; or of plaintiffs’ acting on the dissolution or of their consent to the continuance of the work by Anderson alone, or of the third payment to him and his receipt for the payment. Of course, if there had been any consent of plaintiff to the continuance of the work alone by Anderson and the discharge of Allen, the effect of that discharge would make unimportant the question of notice. The plaintiffs had no agency in bringing about the dissolution or control over it. No consent on their part was given or asked to the continuance of the work by Anderson. All the plaintiffs did was to make the third payment to him which, in our view, they were bound to make, and the payment carries no assent to that dissolution or continuance of the work by Anderson. The argument for the defendants in its other aspect is that the dissolution should have been notified on Saturday, the 19th October, when brought to plaintiffs’ knowledge. On this branch of the case our attention has been called to the full cognizance of all the facts by defendants’ general agent here, and to the part taken by him in the efforts to have the building completed by Anderson. Again, it is contended that no possible harm could result to defendants, because they were not notified on Saturday, the 19th, or Monday, the 21st. In this connection the knowledge of their agent is insisted upon and it is also urged that on the 25th October all attempts to secure the finishing of the building having failed, defendants had written notice of the condition accompanied with the demand they should take charge of and complete the building. The answer of defendants to all this, is that the knowledge of their general agent here on the spot is not their knowledge, and irrespective of any other question they are entitled to stand on the letter of their contract of- written notice to them. If we are to accept this view at least plaintiffs are entitled to a fair construction of the stipulation as to notice. They insist the contract placed no such duty on them as defendants’ argument exacts. The contract does not define “ dissolut-ion ” or specify any fact that is to be notified. The stipulation is-notice of any fact that might cause loss to defendants. Allowance-then is to be made in construing the stipulation of that appreciation the plaintiffs naturally might place on the dissolution under all the circumstance brought to their notice. With both the contractors bound, no release of either sought or given; the work still progressing and no default having occurred, plaintiffs might well suppose no loss to defendants was impending. Are they to lose their bond and defendants to go free of all liability, because under these circumstances defendants were not notified of the dissolution? It is quite certain plaintiffs themselves had no appreciation that the dissolution, confined in its effect to the partners, not freeing either from their obligation to plaintiffs or to defendants, menaced any loss to them or to defendants. The plaintiffs seem to have had the confidence when they made the third payment and after they consulted counsel that the work would be executed. After Anderson left the work and the effort to have it completed by Allen failed owing to his want of means, the defendants were notified in writing. It seems to us this was all that could with reason be expected of plaintiffs. We do not feel at liberty to construe this contract of suretyship so as to avoid it, upon that import the defendants insist should have been attached by plaintiffs to the notice of dissolution given them, when the fact thus made known under all the circumstances, neither impressed the plaintiffs or was of a character to impress them as requiring any notice to defendants. If this stipulation of written notice now invoked by defendants to avoid their contract, is so worded as to-leave the fact to be notified open to reasonable interpretation by plaintiffs, they are not, it seems to us, to forfeit their right on the bond, merely and only because they did not giye immediate written-notice of the dissolution, but contented themselves with written-notice of the failure to complete the building by the contractors and the demand that defendants should take charge of it and fulfil their contract. We think the notice to defendants given by plaintiffs was timely and sufficient.

Another defence is that plaintiffs failed to record their building contract as required by the act of 1894, providing that the owner must require security from the contractor for payment of the laborers on the building and of the material men; reserving their-right to record their bills and thus secure their privileges, and pro-Tiding that the owner shall be responsible for all balances due the workmen and material men if the contract is not recorded. The deduction in defendants’ brief seems to be that by the failure to record the contract the defendants can not be subrogated to the privileges on the building of the workmen and material men. The building as we understand it belongs to plaintiffs. As against plaintiffs’ right to recover on their bond, we do not see how defendants could urge any privileges acquired against the plaintiffs’ property. If defendants paid any of the workmen or material men, the amounts might well be deemed payments pro tanto on the bond. We do not perceive, however, the bearing of the failure to record the building contract, on the issue of plaintiffs’ right to recover the excess over the contract price, the plaintiffs have paid to finish the building. The omission to record may have some pertinence to other ques - tions between these parties, we do not propose to dispose of in this controversy.

We find no evidence in this record that the plaintiffs have paid any of the privileges that appear to have been recorded against the building after Anderson abandoned the work. It may be that the owner not having paid the contractors by anticipation, is not liable for any of the recorded claims, and it may be that the building is not subject to any such privileges. We therefore find no basis on which the sureties can be held for any of the privilege claims, and the recovery must be restricted to the amount claimed for finishing the building.

It is therefore ordered and adjudged that the decision of the lower court be annulled and reversed, that plaintiffs do have and recover from defendants one thousand and ninety-eight dollars and twenty-five cents with legal interest and costs, and as to the privileges recorded against the property for which judgment is claimed in the petition, that there be judgment of non-suit.

On Application for Rehearing.

Breaux, J.

The appellant takes it for granted that the court assumed that it as surety was not discharged for the reason that, under the articles of the Code, no such discharge could be claimed.

That having thus assumed to determine the relations of the parties (exclusively with reference to the articles of the Code relative to sureties), the court overlooked entirely the express contractual stipulations of the act of suretyship.

We must enter a kindly denial to that suggestion.

It is true that, interpreting the different articles of the Oode, we held substantially that it was a question of subrogation. That upon the obligee of the bond was imposed the obligation to protect all the securities in order that upon payment of the bond by the security it would become subrogated to all of the right plaintiff had against the principals (the contractors) of the bonds. Had the plaintiff failed to guard all of its right as payee of the bond, it would not have been in its power to transfer to the security upon payment the right which the law provides a security should have upon payment of the principal obligation. There was no negligence committed on the part of plaintiff and no act done, if the articles of the Civil Code alone be considered, which in the least impaired the rights of the securities against the principals on the bond. But we did not, as apprehended by the defendant, overlook the stipulations contained in the contract of suretyship between plaintiff and defendant. The agreement of the contractors, principals on the bond, was personal to themselves, and the fact that one continued with the work under the contract and the other chose to transfer to him his right, was not an agreement in which the plaintiff was concerned, or to which it was in any respect a party. A few days after the agreement between these contractors, one of them applied for an amount due.

The work having been done satisfactorily, the amount was paid.

The workmen of these contractors had not been paid. They had the mechanic’s privilege on the building. One of the conditions of this bond was to secure the plaintiff against the claim of “subcontractors, laborers, mechanics, workmen and furnishers.”

The payment to the contractor who remained (as the plaintiff’s officers evidently thought) to continue in good faith with the work of building, was made at the time agreed upon among all parties concerned. It appears that neither of those contractors were in good faith — one was as anxious as the other to abandon the contract and one was as indifferent as the other aaout paying their employees and workmen. The object of the bond was to protect plaintiff from any failure on the part of the contractors to pay these very claims.

These propositions are not at this time disputed by the defendant. The contention, now, is limited to the contract itself as being more far reaching than the articles of the Oode upon the subject, particularly as to the necessity of notice of the dissolution of the asserted partnership.

It is clear in our judgment the contract provided the surety should be notified in writing of any act which might involve a loss. Upon this branch of the case we note that the contractors individually and without suggesting a partnership signed the contract. The bond also, subsequently furnished, was signed individually, save that in the body of the bond the principals referred to themselves as co-partners. When one of the partners came to collect the third instalment he produced in support of his right to collect, a copy of the agreement dissolving the partnership authorizing him to collect amoufit due the partnership, which had been signed a few days previous. The payment made by the plaintiff to the contractor was made to him as to one authorized, as he was, to receive payment. This payment did not have the effect of prejudicing the rights which the defendant had. They remained unaffected; the amount was due. A few days after the plaintiff was notified, as required by the contract of suretyship. It is not evident that the delay caused a loss or that the necessity of giving notice was such as to render it imperative on tne part of the plaintiff to give immediate notice. It appears that everything was done in the utmost good faith until the day that contractors abandoned the work.

We have seen that immediately after the final abandonment of the building, the notice was given. We think there was a substantial compliance with the contract.

Heretofore our decree granted compensation for the services of plaintiff’s attorney.

We have given this claim further attention and after some consideration have concluded to reduce the amount of the fee.

Our decree established that plaintiff was entitled to five hundred and ninefy-eight dollars plus counsel fee.

In view of this amount and the services rendered in the case, we think that the fee should be considerably less.

There was another question, that relating to other claims recorded against the property, but not sufficiently proven on the trial to sus - tain a decree. The matter is argued by the plaintiff in the reply brief of its counsel. We have found no reason on this score to change our previously rendered opinion.

It is therefore ordered, adjudged and decreed that the attorney’s fee heretofore allowed be reduced to one hundred dollars.

It is further ordered and decreed, after this deduction and amendment, that our prior decree be reinstated.

The opinion heretofore rendered, and the decree are made the opinion and decree of the court, after deduction and amendment as above.