author: Nioholls, O. J.

text:
    No. 11,398.
    The State of Louisiana vs. Clayton Frier.
    1. The State has the right to have rejected as jurors parties who declare that under no circumstances would they render a verdict of guilty based solely upon circumstantial evidence, and to propound to jurors on their voir dire questions directed to the ascertainment of that fact. State vs. Shelor, 3i An. 994.
    2. The overruling by the court of a challenge to the competency of a juror, who, on his vow- dire declared “that he had formed an opinion from rumor, and that it would take strong evidence to remove this opinion; that he had no bias or prejudice, like or dislike, for or against the accused; that he could render a fair ■and impartial verdict between the State and the accused, according to the law and the evidence on the trial without being in any way influenced by what he had heard, or the opinion lie had formed, sustained.” State vs. Ganz, 43An. 367,
    3. The refusal by the court to submit to the jury a special charge “ that in cases depending upon circumstantial evidence it is but reasonable, in case of doubt, to expect that some motive, and that a strong one, should be assigned as inducement to commit an act from which our nature is abhorrent, and the consequences of which is usually so fatal to the criminal,” sustained.
    A PPEAL from the Thirteenth District Court, Parish of West Feliciana. Brame, J.

      M. J. Cunningham, Attorney General, and Jos. L. Golson, District Attorney, for the State, Appellee.

      S. MeC. Lawrason for Defendant and Appellant.
   The opinion of the court was delivered by

Nioholls, O. J.

This is a prosecution of the defendant under an indictment charging him with shooting while lying in wait with intent to kill and murder his brother, Sidney A. Frier.

The defendant was convicted by the jury of shooting with intent to kill and murder and sentenced to the penitentiary for fifteen years. He has appealed.

Three bills of exceptions are submitted for our consideration.

'The first bill states that upon empaneling the jury the district attorney asked each and every juror upon his voir dire the following question: “If it appears by the testimony of witnesses that the guilt of the accused is proven by a chain of circumstances, would you then convict, or in other words, would you convict on circumstantial evidence.”

To the propounding of which question the accused, by counsel, objected, as being prejudicial to him, giving the State an unfair advantage in the selection of the jury, and as being tantamount to asking the juror whether he would require much or little evidence to convict. All the jurors answered this question in the affirmative but one, J. H. N. Austen, who said that in capital cases he would not, and two others who said they would not under any circumstances, whereupon the court ordered them, to stand aside and refused to allow them to sit upon the jury, over the said objection of defendant, to which ruling of the court in permitting said question and setting aside said jurors defendant excepted.

The district judge, in signing the bill, said: “The accused exhausted his peremptory challenges before the jury was fully empaneled. The jurors mentioned in this bill as being refused and set aside were challenged for cause by the State and the challenges sustained by the court. The question asked the jurors was carefully explained to them to mean whether or not they would in any case or under any circumstances render a verdict of guilty based solely upon circumstantial evidence.”

The second bill states that “ upon empaneling the jury the jurors -Harvey. Lewis White and Dave Michel, being examined upon their ■voir dire, answered that they had formed and expressed an opinon ■on the case and that it would take very strong evidence to remove this opinion, whereupon accused by counsel challenged said jurors for cause, and the court having overruled the challenges, he peremptorily challenged two of said jurors and the third named juror was taken upon the jury because defendant had then exhausted his peremptory challenges. To which ruling of the court in the case of each of said jurors the defendant excepted.” Referring to these objections the court said: “ Harvey said in answer to questions by the court that he had formed an opinion from rumor — it was not a fixed opinion; he had no bias or prejudice, like or dislike, for or against the accused; that his opinion could be changed if the evidence was •strong enough. He could go on the jury and after hearing the evidence on the trial and the law as given by the court and render a fair and impartial verdict between the State and the accused without being influenced in any way by what he had heard or by the ■opinion he had formed.”

“ Lewis White said in answer to questions by the court: He had formed an opinion from rumor and that it would take very strong evidence to remove this opinion; that he had no bias or prejudice, like or dislike, for or against the accused; that he could render a fair and impartial verdict between the State and the accused according to the law and the evidence on this trial without being in any way influenced by what he had heard or the opinion he had formed.

“Dave Michel made the same answers to the questions of the court as did Lewis White, except that he said it would take strong evidence to remove the opinion he had formed.”

The court further said that the accused, through counsel, urged especially for the consideration of the court in each of these cases “ that the accused might have no evidence to rebut the evidence offered and adduced by the State and might have to depend entirely upon the argument of his counsel to combat the inferences to be drawn from said evidence and that the case depended upon circumstantial evidence.”

The third bill is to a refusal by the district judge to charge the jury as requested by counsl of the accused that “ in cases depending upon circumstantial evidence it is but reasonable in ease of doubt to expect that some motive, and that a strong one, should be assigned as inducement|to|commit an act from which our nature is abhorrent and the consequences of which is usually so fatal to the criminal.”

Defendant claims that the charge was pertinent and had not been covered by the charge of the court.

The court' said it refused the charge requested on the grounds—

1. That so far as any part of the requested charge might be pertinent or proper it had been fully covered by the written charge of the court already given.

2. It was misleading.

3. It announced no principle of law applicable to this or any other case.

4. It was merely argumentative.

5. Practically it was a request that the court should charge the jury it would be unreasonable for them to find a verdict unless a strong motive for the crime was proven at the trial.

The objections urged by the defendant to the right of the district attorney to propound to each juror on his voir dire the question which he did was not well taken in the form in which the question was asked and as explained to the jurors (State vs. Shields, 33 An. 994). The State has the right to have rejected as jurors parties who declare that under no circumstances would they render a verdict of guilty based solely upon circumstantial evidence. The action of the court in excluding as jurors the three persons referred to in the first bill of exceptions was not error. The case about to be tried being upon a charge punishable by death, Austen’s answer as fully unfitted him for a juror, as the absolute and general answers of the other two unfitted them. The State and the defence both concur in the statement that this case was based exclusively upon circumstantial evidence.

The ruling of the court upon the fitness of the three jurors, Harvey, White and Michel, was evidently based upon and is justified by the line of decisions cited in and acted upon in State vs. Ganz, 43 An. 367.

The special charge asked for was properly refused to be submitted by the judge to the jury. We assume from it that the State had failed to assign and to show affirmatively the existence of a motive on the part of the accused for the commission of the crime. Had the request been granted we think the jury would have unquestionably been led to believe from the language in which it was couched that the case before it was, in the opinion of the judge, one of doubt, and one which reasonably called for the assignment and proof by the State of a strong motive in the defendant to commit the crime. The judge correctly declined to make such a statement.

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


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 11,402.
    The State ex rel. D. Negrotto, Sr., vs. The Judges of the Court of Appeals.
    In case an exception of no cause of action,is sustained in the'District Court, the suit dismissed and an appeal is prosecuted to the Circuit Court of Appeals, the latter is without authority or jurisdiction to dispose of the case Anally upon its merits on the theory that such an exception admits the truth of plaintiff’s allegations for all the purposes of the case.
    Such question does not involve the regularity and correctness of the judgment of said court, hut their right to render any judgment in that attitude of the case.

      y^PPLICATION for Certiorari.

      J. Zach. Spearing for the Relator.

      Branch K. Miller for the Respondents.
   The opinion of the court was delivered by

Watkins, J.

Relator avers that he is defendant and appellee in the suit entitled Frank Haas et al. vs. D. Negrotto, No. 1062 of the docket of the Circuit Court of Appeals, in and for the city of New Orleans, the object of which is to annul a tax sale.

That to said suit he tendered and caused to be filed a plea of prescription, and also an exception of no cause of action, which were, upon the trial thereof, sustained and the suit dismissed; that from said judgment the plaintiff prosecuted an appeal to the court of the respondents, and therein said exception and plea of prescription were fixed for trial, argued and submitted; and that those were the only issues or questions that were presented to or argued before the respondent judge, or which could-in any manner have been considered or taken as an answer to the merits. That no evidence had been offered, admitted or taken in said cause at anytime; that said exceptions were tried in the lower court upon the face of the papers; that the judge of the Civil District Court did not consider or determine the cause on its merits at all; that said cause was not tried in the court of the respondent on its merits, nor was said cause appealed to said court on the merits — the only trial or hearing of said cause in said court having been upon said exception and plea of prescription.

Relator further avers that notwithstanding said state of facts, the respondents did render a pretended judgment and decree upon the merits of said cause, in favor of the plaintiff, annulling his (relator’s) title to the property in controversy, recognizing plaintiff to be the owner thereof; that within the legal delay he applied to said judges for a rehearing and was refused; and that his only remedy is by certiorari. '

He further represents that said proceedings and judgment of the respondent judges are absolutely null and void, and of no legal effect; and if same are permitted to remain undisturbed they will work him a great and irreparable injury — said judgment and decree having been rendered without the court having heard the relator or his witnesses on the merits of his cause; and that to permit said illegal, null and void judgment to remain undisturbed would be to condemn relator- without granting him a hearing or trial, and deprive him of his property without due process of law.

Respondents substantially return that there was in the suit of Haas vs. Negrotto “ a joinder of issue of law on the exception filed by the defendant to the effect that the plaintiffs’ petition disclosed no cause of action which admitted that all the facts therein were true, in manner and form as alleged; and that there was thus a joinder of issue between the parties upon all the merits of the case propounded by the plaintiffs; and that upon this issue the parties were heard as they desired; and thereafter, and upon mature consideration, and according to the best judgment of respondents * * * the opinion and decree now complained of was rendered; (and) nothing has since occurred (that) has caused the judges of the court to doubt the correctness of their action in the premises.”

Hence, respondents submit that this court is without jurisdictional competency, either in the exercise of its appellate or supervisory powers, to inquire into and decide whether the proceedings and judgment of their court were or were not in conformity to law.

Respondents have sent up to this court — in connection with their return — the original papers and proceedings in the suit of Haas vs. Negrotto, in order that their validity may be ascertained.

The district judge states in his reasons for judgment that the defendant excepted that the petition disclosed no cause of action, and that the plaintiffs’ demand is barred by the prescription of three years; and, upon examination of the face of the papers, he decreed that “the exceptions herein filed are therefore maintained and that plaintiffs’ suit be dismissed at their cost.”

The judgment rendered is in exactly similar words, viz.: “It is ordered, adjudged and decreed that the exceptions herein filed be maintained, and that plaintiffs’ suit be dismissed at their cost.”

But, in the opinion and decree of the respondent judges, no mention is made of the fact that the District Court judgment was pronounced upon the defendant’s exceptions alone; and they proceed, broadly, to discuss the law of the entire case, in all its bearings upon the merits of the controversy — it being concluded thus:

It is-clear beyond controversy, therefore, that, for the foregoing reasons, the judgment of the District Oourt herein in favor of the defendant, Domingo Negrotto, Sr., is erroneous and must be reversed, and a decree be entered therein in favor of the plaintiffs as prayed for in their petition.

££ It is therefore now ordered, adjudged and decreed that the judgment of the District Oourt herein b.e reversed and avoided; and that the plaintiffs have judgment recognizing them as the lawful owners of the property described in the pleadings, and as such entitled to ¡undisturbed and peaceable possession thereof,” etc. (Our. italics.)

¡ In the opinion of the respondent judges, upon an application for a ■rehearing, they make this statement of their own reasons for refusing it, viz.:

“ Negrotto’s exception, that plaintiff’s petition disclosed no cause .of action, if sustained, as it was by the judge a quo, puts an end to ■ the suit, adversely to the plaintiffs. Such an exception is one of the ■peremptory class, to be tried and determined in limine. If sustained, .it terminates the suit; if overruled, the defendant may answer over. Jennings vs. Vickers, 31 An. 679.

í£ A decision maintaining an exception of this nature is necessarily .a decision upon the merits, inasmuch as it decided that, admitting all the facts alleged to be true in manner and form as alleged, the case stated in the petition is without merits in law.

. <£ For the reasons stated in our original opinion, which go to the root of the whole matter in holding that no State Legislature has the power to enact such a statute as Act 82 of 1884, of the State, under the operation of whose provisions, exclusively, Negrotto claims title,” etc.

. From the foregoing it appears that the respondents entertained the same idea of the effect of a plea of no cause of action, on the trial and decision of the case in their court, as they do in their return, to-wit: That a joinder of issue upon an exception of no cause pf action is, in fact, a joinder of issue between the parties upon all the merits of the ease propounded by the plaintiffs — -such a plea admitting that the acts alleged are true. But the contention of the relator’s counsel is, that the respondent’s theory, in this respect, is .altogether erroneous, and contrary to the established jurisprudence of this court. That the rendition of an absolute and final judgment against the defendant (relator here), on the state of the record as it appeared before the court of the respondents, at the time it was decided by them, was an absolute refusal to hear the defendant, or his witnesses, in the sense of Code of Practice, Art. 857 — the defendant not having filed an answer in the lower court, and no judgment by default having been entered up against him; or in other words, before issue had been joined upon the record of the controversy before the court of first instance.

Relator’s counsel further insists that such a judgment absolutely prohibits the lower court from entertaining any further pleadings in the cause, or hearing any evidence therein; that it denies the defendant the right of filing any further plea or proof therein, or of urging any matter of defence whatever; that it arbitrarily takes his property and turns it over to the plaintiffs without their having offered any evidence in support of their title or having had a day in court.

That all of these serious and fatal consequences flow from the fact that the respondents assumed, as a matter of law, that a joinder of issue on an exception of no cause of action admitted the truth of all the averments of the plaintiff’s petition, and constituted “a joinder of issue between the parties upon all the merits of the case.”

Counsel for the respondents have furnished us with a large number of authorities touching the authority of this court to examine and determine the question presented for our consideration and summarizes them to the following effect, viz.:

“The above authorities and numerous others show that in a proceeding like the present one the only questions that can be properly submitted to this court are the validity vel non of the proceedings of the inferior court on the face of the papers; whether or not there has been a usurpation of power or an arbitrary refusal to hear the party complaining; whether or not he has been denied the substantial right to present to the court his case for its adjudication. The writ of certiorari can not be made to perform the functions of an appeal; the court having jurisdiction of the case, and an issue within their jurisdiction having arisen, its conclusions upon that issue are final and can not be reviewed. There exists no power to weigh its reasoning or to test the methods by which its judgment was arrived at. The record in point of form being complete, the intrinsic correctness of the court’s doings within that record have been determined by the highest power known to the law, and are closed against any inquiry by this court.
“The Court of Appeals having made its adjudication upon a matter within its power to adjudicate upon pleadings made, its construction of these pleadings and its conclusions as to what decree is re - sponsive thereto is inviolate, and is as beyond the supervisory power of any other tribunal as are the decrees of your honors over which there may exist no appellate jurisdiction.”

The foregoing propositions are, in the main, correct, and at the same time not inconsistent with the theory of the relator, which, as we understand it, places before us the invalidity of the proceedings had by the respondents in the suit of Haas vs. Negrotto, and which he has had broughtup “to theendthattheirvalidity.be ascertained” (C. P. 855) ; and said proceedings being before us, his theory is further to the effect that the proceedings of the respondents are absolutely void in the various particulars enumerated, and should be set aside — because the respondents have, in effect, refused to hear the relator or his witnesses. O. P. 857.

Assuming, in prsesenti, that the relator’s complaint is founded in point of fact, the law is clear, for it says:

“If upon examining the certified record thus sent, it shall appear to the court issuing the mandate that the proceedings are null and have not been sanctioned by the party complaining of them, it shall avoid the proceedings and direct the inferior judge to try the case anew in conformity with the provisions of the law.” C. P. 864.

Prom the foregoing plain textual provisions of the Code of Practice, certiorari brings up to the court issuing the mandate all of the proceedings that are complained of as absolutely vo^d, to the end that their validity be ascertained; and the court finding the proceedings to be absolutely void is bound to avoid them and direct the inferior judge to try the cause anew.

And inasmuch as this court has “ control and general supervision over all inferior courts,” coupled with the power to issue writs of certiorari and the like, it has and can exercise supervision and control over the court of the respondents. Art. 90 of the Const.

This has been decided by this court in many ca3'es, and notably in the following, viz.: State ex rel. Cobb & Gunby vs. Judges of Circuit Court, 32 An. 774; State ex rel. Harper vs. Judges of Circuit Court, 33 An. 338; State ex rel. Winter vs. Judges of Circuit Court, 33 An. 1096; State ex rel. Gilmer vs. Judges of Circuit Court, 33 An. 1201; State ex rel. Cupples vs. Judges of Circuit Court, 34 An. 1016; State ex rel. Insurance Company vs. Judges, 36 An. 316; State ex rel. Forman vs. Judges, 37 An. 111; State ex rel. Planting Company vs. Judges, 37 An. 582.

Finding that it is the accepted theory of our jurisprudence under the operation of Art. 90 of the Constitution, that Circuit Courts of Appeal come within its meaning and intendment as ‘ ‘ inferior courts ’ ’ with respect to the exercise of the supervisory power of this court, we must ascertain what is the.uniform and established jurisprudence of this court in regard to the scope and object of the plea of no cause of action — that is to say, whether such a plea is such an admission of fact as to operate, between the parties, such a joinder of issues on the merits of the cause as to authorize the judge to try and decide the case finally, and without any other or further plea or answer oh the part of the defendant.

The correct rule is formulated in Conery vs. Waterworks, 39 An. 770, in the following words, viz.:

“ It is the province of the appellate court to review proceedings of the inferior court and to determine whether its rulings and decrees therein embraced are right or wrong, and not to deal with matters and issues distinctly presented by the pleadings, but not considered or decided by that court.” 19 La. 207; 9 R. 256; 7 An. 622; 10 An. 552; 11 An. 746; 15 An. 159.
“ We conclude therefore that it is proper to remand the case, that the all-important issue raised by the exception referred to, and not passed on by the court of first instance, may be there tried and determined.”

In Wood vs. Henderson, 2 An. 220, the court said:

“We are of opinion, therefore, that the petition for injunction did exhibit sufficient grounds for relief, and that the exception was properly overruled. But this did not justify the court below in proceeding further, and rendering, upon the exception, a final judgment in favor of the plaintiff in injunction. Upon the dismissal of the motion, or exception, the defendants in injunction are entitled to file an answer in the cause and put at issue the allegation of the plaintiff’s petition.”

In Eulalie vs. Long, 9 An. 11, it was held that an exception that the petition shows no ground of action admits the truth of all the allegations of the petition; but if the exception be overruled, the defendant will have leave to answer over.

In DeLaCroix vs. Gauns, 13 An. 177, the court, in treating of an exception of no cause of action, said:

The district judge, conceiving that the second exception was well taken, dismissed the suit, and the plaintiff has appealed.”

In this view this court concurred and remanded the cause to enable the defendant to answer, and “ for further proceedings according to law.” Vide Lea vs. Terry, 20 An. 428.

But perhaps there is no stronger or clearer case than that of Smith vs. Donnelly, 27 An. 97, in which the court put their opinion in these words, viz.:

“ But we are unable to dispose of the case and render a judgment in favor of the plaintiff as he asks us to do, because no issue has been joined on the demand for the homologation of the award of the amicable compounders, and because the case was not tried, and no evidence offered on the merits of the demand for judgment on the notes. We have no original jurisdiction of these demands.”

Keeping in mind the two recognized rules underlying the foregoing decisions, (1) that in case the plea of no cause of action is overruled the defendant is entitled to file an answer and offer evidence in his behalf, and (2) that while the plea admits, »£or the purposes of the trial and decision of same, that the allegations of the plaintiffs’ petition are true, yet when the same is overruled by the court it does not become seized oí jurisdiction of the merits until after answer filed or issue is joined. Consequently, if on appeal from a judgment sustaining a plea of no cause of action same is annulled and reversed, the appellate court can not deprive the defendant of his rights to answer and introduce evidence, nor can it acquire original jurisdiction of the merits.

And it is with due respect to the opinion of our learned brothers of the Circuit Court that we submit that their judgment has done both, if it is to be maintained.

In our opinion the question here presented is not one involving the correctness, regularity or integrity of respondents’ judgment as such', but their right to render any judgment on the merits of the cause for or against either party to the suit, in the condition of the cause then before them.

There is certainly to be found no support for the position of the respondents in Jennings vs. Vickers, 31 An. 679.

On reason and authority it seems evident that the proceedings in the respondent’s court are wholly void, and same should be annulled and avoided, and respondents should be directed to try the case anew in conformity with the provisions of the law.

It is therefore ordered, adjudged and decreed that the writ of certiorari be made absolute, and that the proceedings of the respondents be annulled and avoided, and that the respondents be commanded to try the case anew in accordance with the provisions of the law.

Rehearing refused.


author: McEnery, J.

text:
    No. 11,312.
    The State of Louisiana vs. Ben Schexneider.
    If during the pendency of an appeal from a judgment of forfeiture on an appearance bond the defendant is convicted and sentenced, the surety on the bond is entitled to be discharged.
    APPEAL from the Eleventh District Oourt, Parish of St. Landry. Perrault, J.

      M. J. Cunningham, Attorney General, and E. B. DuBuisson, Dis trict Attorney, for the State, Appellee.

      Laurent Dupré and C. W. DuRoy for E. P. Veazie, Surety, Appel lant.
   The opinion of the court was delivered by

McEnery, J.

The accused was indicted for horse stealing. He gave bond for his appearance. This bond was forfeited. On the last day of the term at which he was to appear he was surrendered by the surety on his bond.

The surety took a rule on the district attorney to show cause why the forfeiture should not be set aside. The rule was discharged. The surety appealed.

Pending this appeal the defendant was convicted and is now serving the sentence imposed upon him at hard labor.

This fact appears from the certificate of the trial judge filed in this case.

The judgment appealed from must therefore be reversed. Lafleur vs. Mouton, 8 An. 489; State vs. Hamill, 6 An. 259.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and the surety on the appearance bond be discharged.


author: McEnbry, J.

text:
    No. 11,333.
    The State of Louisiana vs. Jean Carreau et als.
    A justice of the peace has no jurisdiction over a municipal ordinance to enforce a penalty by hue or imprisonment for its violation.
    Where a justice of the peace illegally imposes the penalty as a police magistrate, the remedy to correct his illegal act is by invoking the‘supervisory jurisdiction of this court, and not by appeal.
    ^PPEAL from the First Justice’s Court, Parish of St. Bernard.

      Frank MoGloin for the Board of Health, Plaintiff and Appellee.

      G. V. Soniat for Defendants and Appellants.
   The opinion of the court was delivered by

McEnbry, J.

The police jury of St. Bernard passed a health ordinance relating to the slaughtering of cattle in that parish. The penalty for violating the ordinance is a fine of $25, and in default of the payment of the fine imprisonment in the parish jail for not more than thirty days.

The defendants were arrested on a warrant issued on an affidavit charging defendants with the violation of said ordinance, and were convicted and sentenced to pay a fine, and in default of pacing the same to be imprisoned in the parish jail.

The defendants filed several pleas in the course of the trial, and put at issue the legality and constitutionality of said ordinance.

Their defence being overruled, on conviction they appealed to this court under Art. 81 of the Oontstitution. This article grants the right of appeal to this -court in all cases in which the constitutionality or legality of any tax, toll or import whatever, or of any fine, forfeiture or penalty imposed by a municipal corporation, shall be in contestation, whatever may be the amount thereof.

This article contemplates that the appeal shall be from a court having jurisdiction of the municipal ordinance imposing the penalty, and in a proceeding in which the constitutionality or legality of the ordinance can be presented.

In this case it is evident that the justice of the peace who issued the warrant on affidavit charging the defendants with a violation of said ordinance, and who tried the case and imposed the penalty, had no jurisdiction of the matter.

It was not a civil proceeding to collect a fine imposed by the police jury of St. Bernard parish, but it was a summary proceeding to enforce a penalty under police regulations. ■

He acted in the capacity of police magistrate, and entertained jurisdiction in a case not conferred on justices of .the peace by the Legislature. Board of Health vs. Nunez, 45 An. 205.

To make the case appear more clear we will suppose that the Oivil District Oourt, Orleans parish, should attempt to enforce a city ordinance for an infraction of a police regulation, and the defendant should plead the illegality and unconstitutionality of the ordinance. He certainly could not appeal from the judgment. His remedy would be to invoke the supervisory jurisdiction of this court by application for writs of certiorari and prohibition.

In the instant case we have no hesitancy in saying that the justice of the peace usurped a jurisdiction, and the remedy to correct his illegal acts should have beeu by timely application for necessary and appropriate writs to this court. The appeal is therefore dismissed.


author: McEnery, J. Breaux, J.

text:
    No. 11,231.
    Ernest DuB. Lukis vs. Chas. J. Allen.
    The preparation of a petition in its mechanical arrangement is left to the taste of the attorney.
    The only requisite for it is that it be a written or printed document, prepared in accordance with Arts. 171,172, Code of Practice.

      If for convenienee3 and as a matter of taste, the attorney uses a green blank form of a petition as a part of it, on which is printed the address to the court, and typewriting on white sheets for the other part, both fastened or pasted together so that the green blank form is the last sheet, but so arranged that the printed address appears above the typewriting, and the whole thus arranged is a logical statement of the cause of action, it is a compliance with Arts. 171,172, Code of Practice.
    The caption Or address to the court is an essential part of the petition, und it can not be omitted in the copy served on the defendant.
    The service of citation will not cure this defect.
    PPEAL from the Civil District Court for the Parish of Orleans. Théard, J.

      Harry H. Hall for Plaintiff and Appellant.

      Carroll & Carroll for Defendant and Appellee.
   The opinion of the court was delivered by

McEnery, J.

The plaintiff filed a suit against the defendant, and the petition was made up of a part of the blank form for a petition, and the other in typewriting. The blank form, which also served for an outside wrapper, had the caption in printing: “To the Honorable the Judges of the Civil Districc Court for the parish of Orleans.”

Immediately under and following this caption or address to the court the typewritten part of the petition commenced :

“ The petition of Ernest DuB. Lukis, who resides in London, with respect represents,” etc.

The typewritten and blank form parts were at the upper ends of the sheets pasted together, so that the printed part on the last sheet (blank form) projected above the typewritten sheets, so that the reading of the petition from the printed portion of the blank could be pursued without interruption to its conclusion.

On the blank form there were the words which usually follow the address of the court, but they were omitted and excluded from the petition. They were meaningless, as they formed no part of the petition. Nothing in a petition not preceding the signature forms any part of it.

The copy of the petition served on the defendant omitted the address to the court.

The defendants filed exceptions to the petition: (1) That the petition was not properly addressed to the court; (2) that the copy served on him was not an exact and faithful copy; (3) that if these exceptions were overruled the petition disclosed n'o cause of action.

The district judge sustained the last. Plaintiff appealed.

The defendant contends that the address was on the outside wrapper of the petition, and was not therefore a part of the petition. Usually there is no wrapper, the last sheet of the petition serving for this purpose, on which the filing is endorsed. The sheets of paper on which the petition is written can be and often are fastened or pasted together. The preparation of the petition in its mechanical arrangement is left to the taste of the attorney.

It can be fancy, on green paper, or on white and green, so arranged as to alternate in colors, if so desired. The only requisite for it is that it; be a written or printed document, prepared in accord-' anee with Arts. 171 and 172, Code of Practice.

If for convenience and as a matter of taste, as we presume it was done in this case, the attorney used a green blank form for a part of the petition, and white sheets with typewriting for the other, and pasted them together so that the blank form containing the address should project above the white sheets and typewritten parts, we can find no reasonable objection to the arrangement. The petition thus arranged in this case contains all the requirements of Arts. 171 and 172, Code of Practice, in consecutive and logical order.

The copy of the petition served on the defendant omitted the address to the court. Art. 172, Code of Practice, requires that the petition must mention the name or title of the court to which it is addressed, and this is essential to the validity of the petition, which is admitted by plaintiff’s attorney in his earnest effort to maintain the caption of the petition in this case. Art. 175, Code of Practice, requires the clerk of court to make out an exact and faithful copy of the petition to be served on the defendant. But the plaintiff contends that the citation served with the petition cured the defect of the omission in the petition of the address to the court, as the citation contains the name or title of the court, names and residence of both plaintiff and defendant. This seems reasonable, but Art. 178, Code of Practice, requires a copy of the petition to be annexed to the citation. This copy must be such as is required by Art. 175, Code of Practice. The address to the court is an essential part of the petition and its omission can not be excused in the copy served on the defendant.

The plaintiff’s suit, of course, can not be dismissed for the failure of the clerk to make a true copy of the petition to be served on the defendant. He is entitled to delay for the service of same.

It is therefore ordered, adjudged and decreed that the judgment appealed from be avoided and reversed, and it is now ordered that this case be remanded to be proceeded with according to law and the views herein expressed, defendant to pay costs of appeal.

Fenner, J., dissents.

Opinion by

Breaux, J.

In the exception to plaintiff’s action for the avoidance of a sale on the ground of misrepresentation and failure of consideration, the defendant’s grounds are threefold:

1. That the petition is not addressed to the court.

2. That the copy served upon him is not a true copy of the petition.

3. That the petition discloses no cause of action.

The petition is addressed to the court in print on a separate sheet of a different color than that on which the petition is typewritten.

The petition was pasted on the printed cover just below the caption, which reads: “To the Honorable the Judges of the Oivil District Court for the parish of Orleans.”

On the reverse of the wrapper is the usual endorsement: the court, the title of the suit, the name of the attorney and the date of filing.

The petition and the caption are united with mucilage, making the two a sufficiently plain document.

The clerk failed to copy the caption of the petition.

We have stated the grounds of the exception without reference to the alternative pleas.

The last, that relating to the cause of action, is pleaded in the alternative.

After stating the first and second grounds and following them with a prayer for the dismissal of the suit, the plaintiff in exception adds that should they be overruled, and not otherwise, reserving the benefit of the exception: the petition discloses no cause of action.

This differences the case from those cases holding that want of ■citation is waived by defendant, who appears for any other purpose than to plead the want of citation.

The article of the Code of Practice requires “ mention of the name or title of the court to which it is addressed,” and that a true and faithful copy of the petition shall be served upon the defendant.

The copy served does not contain the caption required.

A distinction is maintained in jurisprudence between the technical sufficiency of a citation as a basis for the maintenance of a judgment and its sufficiency for the purpose of interrupting prescription. Satterly vs. Morgan, 33 An. 848.

The question comes before us on an objection made in limine.

We adhere to our previous ruling that another service should have been ordered.

In remanding the case for further service no question arises regarding the effect of the service as heretofore made.


author: Parlange, J.

text:
    No. 11,342.
    The State of Louisiana vs. Alcide Jacques.
    . One o£ the general rules of criminal pleading is that a count should contain but one substantive charge. An exception to the rule is where one offence includes another, and the former could not be charged without also charging the latter. In such a case the defendant may be convicted of either offence, provided always the allegations are sufficient.
    2. If a pleader, in drawing up a charge under a statute, so enlarges upon it as to unnecessarily bring within the allegations, in one count, an adequate technical charge for another offence under another statute, the count is bad for duplicity.
    3. The offence of cutting and stabbing under Act 44 of 1890 is contained in the similar offence under Act 43 of 1890.
    4. The offence of inflicting a wound less than mayhem, under Sec. 794 R, S., amended by Act 17 of 1S88, is not contained in the offences under Act 43 of 1890.
    . The permissible joinder of cognate offences in different counts of the same indictment affords all the scope needful to present a change under its different aspects.
    APPEAL from bhe Eleventh District Court, Parish of St. Landry. Perrault, J.

      M. J. Cunningham, Attorney General, and E. B. DuBuisson, District Attorney, for the State, Appellee.

      E. P. Veazie for Defendant and Appellant.
   The opinion of the court was delivered by

Parlange, J.

The defendant was prosecuted under an information charging him with cutting and stabbing with a dangerous weapon, under Section 791 of the Revised Statutes, as amended by Act 43 of 1890. The jury found him guilty under Act 44 of 1890, Which provides punishment for “whoever shall shoot, stab, cut, strike or thrust any person with a dangerous weapon with intent to kill.”

The district judge charged the jury that five verdicts might be found, to-wit: 1. Guilty, as charged; 2. Guilty under Act 44 of 1890; 3. Guilty of assault aud battery; 4. Guilty of assault; 5. Not guilty. The defendant did not then ask for additional charges. The jury, after deliberating, returned into court with the following verdict: “We the jury find the defendant guilty with intent to commit manslaughter.”

The district judge then informed the jury “ that the verdict thus rendered was ambiguous and not stated with legal certainty,” and after further charging the jury as to the legal meaning and intent of Section 791 of the Revised Statutes and of Act 44 of 1890, he remanded them back to the jury room for further deliberation and finding. At this stage of the proceedings the defendant’s counsel requested the court to further charge the jury that, if the evidence warranted, they could find a verdict under the following statutes, to-wit: 1. Section 794, Revised Statutes, for inflicting a wound less than mayhem with a dangerous weapon, or with intent to kill; 2. Section 796, Revised Statutes, for assault and battery; 3. Section 797, Revised Statutes, for assault. The district judge refused the additional charges. The jury retired a second time, deliberated anew and returned a verdict of guilty under Act 44 of 1890.

The defendant’s counsel reserved a bill of exception to the refusal of the district judge to charge as he was asked, and the defendant having been sentenced to imprisonment in the State penitentiary for the term of eight months, he has appealed.

The defendant did not move for a new trial, nor did he move in arrest of judgment. No brief on his behalf has been filed in this court, and no assignment of errors has been made.

We are not concerned with the refusal of the district judge to charge a second time that verdicts of assault and battery and of simple assault were receivable under the information. Whether the defendant was entitled to such a charge or not, he had the benefit of it and will not be heard to complain that the district judge refused to reiterate the charge.

The point in the case is whether the defendant was entitled to a charge that a verdict could be lawfully returned under Sec. 794 R. S.

One of the general rules of criminal pleading is that a count of an indictment or information must contain but one substantive charge; and a count charging two or more distinct offences is bad for duplicity. There are exceptions to the rule, one of which is that when an offence necessarily includes another, and when the major offence can not be charged without also setting out the minor, a count in such a case, charging both offences, is not bad. The rationale of this exception is obvious. If the exception did not exist, it would be impossible to frame a valid indictment for an offence whenever the allegations required to charge it also described another offence. But when, without necessity, the pleader so enlarges upon a criminal statute as to bring within his charge under that statute another offence denounced by another statute, the count is bad.

When the charge for the major offence necessarily includes a charge for the minor, a verdict as to either is responsive, provided always that all the necessary allegations to charge the minor offence are pleaded in the indictment or information.

Applying these principles to the instant case it is evident that a verdict of “ cutting and stabbing with intent to kill,” under Act 44 of 1890, is clearly responsive to a charge of “cutting and stabbing with intent to kill and murder,” under Act 43 of 1890, amending Sec. 791 R. S. The offence denounced by the former act necessarily contains the offence denounced by the latter, and the information in the instant case necessarily contains all the required allegations for a charge under either act.

But a charge of “ cutting and stabbing with a dangerous weapon with intent to kill and murder’.’ does not contain the av erment requisite for a charge of “inflicting a wound less than mayhem with a dangerous weapon” under Sec. 794 R. S. as amended. This court has held that it is essential in an indictment under Sec. 794 R. S. to allege the inflicting of a wound less than mayhem, or words of equal import. Jackson’s case, 43 An. 183; and see Pratt’s case, 10 An. 191; John’s case, 32 An. 812; Parker’s case, 42 An. 973; Day’s case, 37 An. 785.

A criminal pleader who, in drawing up a charge under Sec. 791 R. S., would so enlarge upon it as to unnecessarily bring within the allegations of the indictment an adequate technical charge under Sec. 794 would produce a count which would be bad for duplicity.

The joining of two or more charges in one count is not to be allowed,’unless it be done under one of the well recognized exceptions to the general rule stated. Duplicity is calculated to complicate criminal procedure without benefit or reason, and to confuse juries. It may hamper the prosecution or prove unfair to the defence.

The permissible joinder of cognate offences in different counts of the same indictment, under well established rules, affords to the criminal pleader all the scope which is needful to present a charge under different aspects so as to provide for variances between proofs and allegations, for the views of the court as to the particular accusation which will be borne out by a criminal transaction and for the misapprehension of the guilty act by the jurors, if it be presented to them only under one of its forms.

The district judge states that when the jury returned into court the first time it was evident to him that their intention was to find a verdict under Act 44 of 1890, and that he therefore charged them anew as to Acts 43 and 44 of 1890. We concur with the district judge in his opinion as to the intention of the jury. But whatever their intention may have been, the district judge did not err in refusing the irresponsive and ambiguous verdict, nor in recharging them as he did, nor in refusing to charge them that they might return a verdict under Section 794, Revised Statutes. Such a verdict would not have been responsive.

We find no error; therefore it is ordered that the judgment appealed from be affirmed.


author: Parlance, J.

text:
    No. 11,372.
    The State of Louisiana vs. James Henry Jones.
    An indictment for murder is fatally bad which charges that two persons “ in and upon one C, D. unlawfully, wilfully, feloniously and of his malice aforethought did make an assault on him, the said O, D., unlawfully, feloniously and of his malice aforethought did then and there kill and murder.

      PPEAL from the Nineteenth District Court, Parish of Iberia. Voorhies, J.

      M. J. Cunningham, Attorney General, and R. F. Broussard, District Attorney, for the State, Appellee.

      Todd & Todd for Defendant and Appellant.
   The opinion of the court was delivered by

Parlance, J.

The defendant, James Henry Jones, has been tried for murder, convicted and sentenced to death. He appeals. He has excepted as follows: to the refusal of the district judge to give certain charges to the trial jury; to the overruling of a motion for a new trial; to the refusal of the district judge to grant his counsel a delay to prepare a motion in arrest of judgment; and to an order which the district judge caused to be entered nunc pro tuno on the minutes of his court, showing that on a previous day the indictment had been amended on motion of the district attorney, by inserting therein the surname of the defendant. The defendant moved unavailingly in arrest of judgment. He has filed an assignment of errors in this court.

The indictment contains two counts. The first count reads as follows:

That one James Henry Jones and Albert Spencer, both of the parish of Iberia aforesaid, on the 2d day of the month of March, in the year 1892 of our Lord, with force and arms at the parish of Iberia aforesaid, in and upon one Chas. Deblanc, in the peace of the State then and there being unlawfully, wilfully, feloniously and of his malice aforethought did make an assault on him, the said Ohas. Deblanc, unlawfully, feloniously and of his malice aforethought did then and there kill and murder.”

The second count charges three certain other persons with having, before and after the committing of said crime, counseled, procured and commanded the two defendants named in the first count, to commit said crime.

It is firmly settled that malice aforethought must be specially charged in an indictment for murder. See Green’s case, 42 An. 644. In that ease this court sustained a motion in arrest of judgment because an indictment for murder charged malice aforesaid instead of malice aforethought. Ia Williams’ case, 37 An. 776, this court held that an indictment for'murder was fatally defective for omitting to charge that the murder was committed “ wilfully,” although it did charge that the defendant feloniously and of his malice aforethought killed and murdered the deceased.

“ In an indictment for murder it must be alleged that the offence was committed of the defendant’s malice aforethought, words which can not be supplied by the aid of any other.” Wharton, Or. PI. and Prac., Sec. 258.

The act of 1855 reduced the common law indictment for murder to a mere skeleton. It provided the simple requirement of charging “that the defendant did feloniously, wilfully and of his malice aforethought, kill and murder the deceased.” It would seem that even an extreme advocate of the simplification of criminal pleading would he satisfied, when comparing an indictment for murder as required by the common law with the requirement of the act of 1855. It is difficult to see how that act could have required less. This court has held that in prosecution for murder nothing less than the form of charge stated in the act of 1855 is sufficient.

It is elementary that an indictment must be clear and specific, that it must charge all the essentials of a crime, and that as to essentials nothing can be taken by intendment. This doctrine is applied with greater strictness in capital cases.

Does the indictment in the instant case charge distinctly that the defendant Jones did “ feloniously, wilfully and of his malice aforethought, kill and murder ” a human being?

The indictment charges that the defendant Jones and another person, in and upon one Ohas. Dablanc, “ unlawfully, wilfully'and of his malice aforethought, did make an assault on him, the said Chas. Deblanc, unlawfully, feloniously and of his malice aforethought, did then and there kill and murder.”

According to the rules of grammar the word his, in both of the instances in which it is used as above shown, would refer to the nearest antecedent, to-wit: the deceased. Even if we apply the principle “ that the relative must be referred to that antecedent to which the tenor of the instrument and the principles of law require that it should relate, whether exactly according to the rules of syntax or not,” we would still be confronted with a grave difficulty, since the words “ of his malice aforethought” would then relate not to one but to two persons apparently charged.

“By Hawkins it is deemed ‘that an indictment against two or more, laying the fact charged against them in the singular, is insufficient.’ ” Bishop, Cr. Pro., Vol. 1, Sec. 349.

Are we to say which of the two persons apparently charged with the murder acted of malice aforethought? Are we to hold that it was Jones who so acted and not his co-defendant? Besides, does the indictment state with the clearness required in a prosecution for a capital of-fence, who committed the murder? The pleader intended to charge an assault culminating in murder.

The assault is set out in the averment that Jones and Spencer “in and upon one Chas. Deblane * * * unlawfully, feloniously and of his malice aforethought, did make an assault on him, the said Chas. Deblane;” and the murder was intended to be charged by what follows immediately without any connecting link with the preceding language, to-wit: “unlawfully, feloniously and of his malice aforethought did then and there kill and murder.” This charge of murder is bad; first, because of the averment of malice in the singular; second, because of the omission of the word “wilfully;” and finally, because it seems that more clearness is required in charging who the perpetrators of a murder are, and in setting out who the victim was. However, the defect in charging malice is clearly sufficient to vitiate the indictment. It is fatally bad, and upon it capital punishment can not be lawfully inflicted.

We deem itunnecessary to pass upon defendant’s other complaints.

It is therefore ordered, adjudged and decreed that the verdict, sentence and judgment appealed from be and the same are hereby reversed, avoided and set aside; that this cause be remanded to the lower court, and that the defendant remain in custody to await the further orders or proceedings of the lower court.


author: Watkins, J. Nicholls, O. J.

text:
    No. 10,680.
    Ernest J. Smith vs. Miss Lizzie Lewis.
    Where the plaintiff in an hypothecary action against a third possessor of mortgaged property declares (as his instrument of attack) upon a judgment which by its terms decrees no interest, the blow inflicted is gauged by and corresponds with the weapon used. A judgment of the character mentioned does not carry with it, as such, interest against the third possessor. If interest could under any circumstances be claimed by the holder of such a judgment, it would arise, not from the judgment itself proprio vigore, but from extrinsic facts.
    The recording of a judgment in favor of a ward against his tutrix, which is silent as to any mortgage securing payment of such judgment, and which contains nothing to show the name of the tutrix nor the date of tutorship, is not a legal compliance with the law of registry; and though the judgment may still be alive, the mortgage which secured it originally has ceased to exist if the inscription of the legal mortgage of the ward has perempted.
    APPEAL from the Nineteenth Judicial District Court, Parish of St. Mary. Beattie, J., acting in place of judge recused.

      D. Caffery & Son for Plaintiff and Appellee.

      Foster <& Mentz for Defendant aDd Appellant.
   The opinion of the court was delivered by

Watkins, J.

This is an hypothecary action in the ordinary form, for the recognition and enforcement of a legal mortgage, resulting from the registry of an abstract of the inventory of the succession of Simeon Smith, father of the plaintiff, on the 12th of December, 1855, against his mother, Arpher M. Smith, who was duly qualified and confirmed natural tutrix, on certain property of the defendant, as a third possessor.

His averment is that upon a final statement of accounts of the tutrix, a judgment of homologation was rendered, showing a balance in petitioner’s favor of $10,750.85, which bears 5 per cent, per annum interest from the rendition of said judgment — it having, in terms, recognized said mortgage from the date above specified.

After admitting as a credit on said judgment “the amount realized from the succession of Mrs. Arpher M. Smith, deceased (his mother), and the amount received from Homer H. Smith, as.third possessor of property covered by his mortgage,” he claims there isa balance due him of $8050, with 5 per cent, per annum interest from 1st of December, 1881, which is secured by the legal mortgage operating on the defendant’s property.

The defendant urged a plea of discussion, and, in the alternative, certain exceptions, and a plea of prescription, and same having been disposed of, she answered in extenso; and on the trial, judgment was rendered in favor of the plaintiff, recognizing his legal mortgage, enforcing same against defendant’s property, as to an undivided one-half interest, and reducing plaintiff’s claim to $585.65, with 5 per cent, per annum interest from the 18th of October, 1884. From that judgment both parties have appealed.

In this court the death of the plaintiff has been suggested and the appeal revived in the name of the dative testamentary executrix of the deceased.

The controversies in this litigation are quite analogous, in many respects, to those agitated and decided in Smith vs. Johnson, 35 An. 943, it being a precisely similar' action, with same plaintiff, and the object of which was the enforcement of the same mortgage, against the defendant Johnson, as a third possessor of a portion of the property affected thereby; but, on examination of the opinion in that case, we find but one question decided that is involved in this case, and that is the peremption of the mortgage for want of timely reinscription.

For accuracy of statement we will quote from that opinion, same having been filed in evidence:

“ The plaintiff, E. J. Smith, was born in 1848. His father, Simeon Smith, died in 1853, and, in the same year, his mother, Mrs. Arpher M. Smith, was confirmed natural tutrix. As required by the Constitution of 1868, and legislation thereunder, the minor’s mortgage was recorded by inscription of the abstract of the inventory of the estate of Simeon Smith, on November 9, 1869. At this date plaintiff was of age.
“In 1872 Mrs. Smith filed her account of tutorship to plaintiff, and on December 2, 1872, judgment was rendered homologating her account, giving judgment in favor of the minor against (her as) tutrix, for the sum of $10,734.85, and decreeing that the ‘tacit or legal mortgage of said ward on the property of his said tutrix be and the same is hereby recognized to have effect from the date of her confirmation as such tutrix.’ The judgment was recorded on August 1, 1873, and reinseribed on August 1,1881, and the judgment was itself revived in February, 1881.
“The original inscription of the minor’s mortgage resulting from the recordation of the abstract of inventory in 1869 was never re-inscribed.”

That statement of facts is strictly applicable to the present case, with the exception of one, which is the reinscription of the abstract of inventory, it appearing from an agreed statement of facts that is appended to the transcript, that such reinseription was made in the book of conventional mortgages in 1881 — a fact not appearing in the Johnson case. And with the further exception that the judgment of homologation now appears to have been duly recorded in book of mortgages on the 17th of December, 1872, instead of on August 1, 1873, as therein stated.

In the brief of the defendant’s counsel “ the substantial defences ” are enumerated, and all others may be considered to have been waived. They may be fairly summarized as follows, viz.:

1. That the judgment homologating the final account of plaintiff’s tutrix awards no interest, and it forms res judicata.

2. That the claim of the plaintiff does not bear interest, because of the usufruct of his mother on the property of the estate of his deceased father, to the extent of the community interest of the deceased.

3. That at the death of plaintiff’s mother — which happened in September, 1879 — his mortgage ranked all others, and that, at the sale of the property of his succession, the whole of the realty inventoried was adjudicated to him at the price of $5850.

4. That, subsequent to this adjudication, when plaintiff threatened his brother, Homer H. Smith, with an hypothecary action against the portion of the mortgaged property he possessed, he received in compromise of said litigation the sum of $5000, and this sum should be credited upon his judgment.

5. That, subsequent to the sale of the property which is herein sought to be rendered, liable to plaintiff’s mortgage, his mother sold (on the 12th of September, 1872) to one H. H. Broad a portion of the mortgaged property for the sum of $3700, and in that act of sale the plaintiff intervened, and waived and renounced his rights of mortgage; therefore, this sum should be credited on his judgment.

6. That in the suit of plaintiff against Johnson, he realized the sum of $4500, in October, 1884, and that sum should be credited on his judgment.

7. That the mortgage in favor of Beverly O. Smith, against plaintiff’s mother as tutrix, is perempted for want of reinscription within the term prescribed by law.

The defendant called in warranty her immediate vendor, Patrick Byrne, and his vendor, G. G. Walker, and demanded an alternative judgment against the former of $400, and against the latter for $600.

I.

The first question to be determined and disposed of is defendant’s plea of res judicata, which is raised on the judgment homologating the final account of the tutrix. That judgment is couched in the following terms, viz.:

It is * * ordered, adjudged and decreed that the said account be homologated and approved in all its parts, and that said Ernest J. Smith do have judgment against and recover from Mrs. Arpher M. Smith, his tutrix, the sum of $10,734.85, and that the costs of these proceedings be borne by said ward.”

This is followed by the paragraph that is quoted from the Johnson case, and the date and signature of the judge follows it.

There is nothing said about interest in the brief statement of accounts which the tutrix furnished to the plaintiff subsequent to his majority. No mention is made of interest in the petition of the tutrix, which accompanied her account when it was filed and homologated.

The contention of defendant’s counsel is, that the judgment homologating the final account of a tutor is a final judgment; it fixes the rights of the parties; it is for a specific sum; a ft. fa. can issue thereon; an appeal can be taken from it; and a judicial mortgage results from its proper registry.” Brief, p. 10.

Therefore, he urges that it is controlled by the same rule of interpretation as ordinary money judgments are.

In Succession of Anderson, 33 An. 581, it is stated that “ the only, serious question involved in this case is one of law, viz.: Whether interest can be collected on a judgment for money, which, by its terms, is silent as to interest;” and on a full and careful consideration of all authorities, from Saul vs. His Creditors, 7 N. S. 437, to Succession of Regan, 12 An. 116, we held that it was a misfortune which might have been repaired before that judgment became final, but which is now past remedy.”

That case was quite recently quoted with approval, and we said: “ The conclusions of the court rested on, and were completely justified by, several previous adjudications enforcing similar views.” Insurance Company vs. Harbor Protection Company, 39 An. 585; Schulhoefer vs. City of New Orleans, 40 An. 512.

If the question at issue here is controlled by the jurisprudence applicable to money judgments, the claim of defendant must be maintained.

In Cochran vs. Violet, 37 An. 221, we examined and dealt with the effect of certain judgments homologating annual accounts of tutorship, and held that, under the terms of R. O. O. 356, such judgments are only “ prima facie evidence of the correctness of the accounts homologated,” and said, “ they are judgments which can not serve as a basis for executory process, or for a seizure and sale. * * *

“They are entitled to the same weight, nothing more, nothing less, as a voluntary acknowledgment of indebtedness made by the tutrix, at the time, as the judgment would be, that is obtained by a creditor in a succession in process of liquidation, when the administrator has declined to recognize the claim. * * *
“The prescription which extinguishes money judgments does not apply to such judgments, as have a conditional existence only.”

Not only so, but we held that judgments homologating such accounts did not affect or interrupt the prescription of four years which runs against a minor in favor of the tutor, in respect to the right of action of the former against the latter, “ respecting the acts of the tutorship.”

We said: “ The prescription runs, whether the tutor has or not, , during the minority, rendered an account. His entire omission does not prevent prescription from running. * * *

“ Under the plain letter of the law, O. P. 998, the plaintiff ought to have sued his tutrix for a settlement within the four years from his obtaining his majority.” R. O. O. (356) 362.

We have quoted from that opinion as a leading case for the purpose of showing fully and clearly the distinction which is taken in the code, as well as in jurisprudence, between judgments which homologate annual accounts of tutorships and those homologating final accounts, “ respecting the acts of the tutorship.” And from that distinction necessarily arises the conclusion that the latter class of judgments is final and conclusive as to the tutor and the emancipated minor. And in case the tutor files no final account, and the emancipated minor allows the utile tempus to pass, without resorting to an action to compel one, his rights and claims are effectually barred. This being the proper construction of the articles of the code relating to the different accounts of tutorship, the conclusion appears to be irresistible that the emancipated minor can assert no claims against his tutor other than such as are recognized in his final account, and established in the judgment homologating it. Such a judgment has the same effect and binding force of any final judgment.

While it is perfectly true “that the sum which appears to be due by the tutor as the balance of his accounts bears interest without judicial demand from the day on which the accounts were closed ” (R. O. O. 360), yet the right to judicially claim interest is unaffected thereby. The use of the plural noun accounts” indicates that an extra-judicial settlement was meant, and that the date on which those accounts are stated and closed is the one from which interest commences to run, andmay be recovered, on proper demand and decree.

But we do not mean to extend this doctrine to judgments simply homologating accounts — even final accounts of tutorship — but where, as in this case, the judgment proceeds beyond a simple homologation, and awards a final and specific money judgment, in favor of an emancipated minor, or one who has attained his majority, against his tutrix, it possesses all the characteristics of other money judgments, and constitutes the absolute measure of liability. If it incorrectly disallowed interest, or failed to allow interest, the only remedy was by new trial, or appeal. The defendant’s plea of res judicata was good and should have been sustained.

II.

Our conclusions in reference to the defendant’s plea of res judicata dispenses us from the consideration of the usufruct of plaintiff’s mother, as exonerating his estate from the payment of interest to him, as a beneficiary heir of his father, Simeon Smith, deceased.

III.

The third, fourth and sixth grounds of defence, being germane to each other, may be taken together and considered, as they appertain to payments made on the plaintiff’s judgment.

(a) In reference to the Johnson suit, it is satisfactorily shown that the plaintiff really collected $3500, and that sum must be applied as credit on his judgment. The judgment’was for the sum of $4500, but during the pendency of a devolutive appeal therefrom, the writ was compromised by the plaintiff accepting $1000 less.

(b) At the probate sale of the property of the succession of Mrs. Arpher M. Smith, the realty was adjudicated to the plaintiff, as purchaser, at the stated price of $5800; one-third in cash and the remainder in one and two years’ time. Subsequently, the plaintiff threatened to proceed against his brother, Homer H. Smith — who was at the time administrator of their mother’s succession — in the enforcement of his legal mortgage on property in his possession, when a transaction and compromise took place between them, whereby the latter assigned to the former the judgment against the tutrix, in favor of his brother, Beverly C. Smith, for exactly the same amount as that of the plaintiff against her; and of which he, Homer H. Smith, was holder, as collateral security for an indebtedness of Beverly C. Smith to him.

In the same transaction, Homer H. Smith agreed to pay, and the plaintiff to receive, the sum of $5000 in full acquittance of his demands, and therefor to release his mortgage on the property of the former.

This consideration was paid to the plaintiff by surrendering to him the two notes which he had theretofore executed in favor of Homer H. Smith, administrator of Mrs. Arpher M. Smith’s succession. The written agreement between the parties states that the judgment of Beverly O. Smith was transferred “ subject to certain credits thereon,” and that the price of $5000, therein stipulated as the consideration that Homer H. Smith was to pay for the release of plaintiff’s mortgage on his property, was “ credited as payments on the above described judgments pro rata, in the proportion that the respective amounts' of said judgments bear to the said sum paid.” Now, it appears from the record, that, on the date on which judgment was rendered in favor of Beverly O. Smith, he was paid by his mother the sum of $5996, thus leaving a balance of $4738.55 due him on his judgment of $10,734.55.

But while this agreement was predicated on the basis of $5000, as the whole price Homer H. Smith was to pay for the release of the plaintiff’s mortgage, yet it is the price of adjudication to the plaintiff of his mother’s succession property, which is the measure of his obligation.

It is manifest that both the $5000 which is stipulated in the agreement, and the $5800, amount of adjudication, can not be allowed as credits on the plaintiff’s judgment.

The former was paid and compensated in the settlement of the latter. '

Now it appears from the transcript that the Beverly C. Smith’s judgment was recorded on the 15th of July, 1873, and never subsequently reinscribed. It is against this legal mortgage that the defendant’s plea of peremption is urged. Beverly Smith was of full age in 1872, when he obtained judgment against his tutrix, and, therefore, it was necessary that his mortgage should have been properly reinscribed within ten years from July 15, 1873. Lemille vs. Thompson, 34 An. 1041; Smith vs. Johnson, 34 An. 943.

It was in full force in 1881, when the transaction betweeñ the plaintiff and H. H. Smith occurred, though it has since become perempted.

But the judgment of plaintiff was recorded prior to that of Beverly Smith, and was, therefore, superior in rank, and entitled to preference and priority in receiving payment from the proceeds of the common debtor’s property; and to it the $5800 should have been applied. Homer H. Smith and the plaintiff could not, by their agreement, otherwise impute those proceeds to the prejudice of the defendant as third possessor.

IV.

Defendant contends that, inasmuch as the plaintiff intervened in an act of sale, made by the tutrix ’on the 12th of September, 1872, of a part of the mortgaged property, and waived and gratuitously renounced his rights of mortgage therein, the price of $3700 must be credited on his judgment.

But plaintiff’s counsel replies that “it is quite certain that there is no credit in favor of the original debtor. Can there be any credit in favor of a third possessor? Can there be one claim against the original debtor and another against the third possessor?” Brief, p. 9.

The identical question raised here was decided adversely to the defendant’s contention, in Powell vs. Hayes, 31 An. 789; although in that case a special mortgage was under consideration, against the enforcement of which discussion is not allowed. In that case the court said:

“Now, the third possessor of mortgaged property is not privy to the contract between the creditor and the original mortgagor. He is not bound for the debt. The creditor has never consented to take him as surety. Without the consent of the creditor no one can become surety of the debtor in a conventional obligation. * * There being no privity between the mortgage creditor and the third possessor, he is under no obligation to preserve his privileges and mortgage against others in order that the third possessor may have subrogation thereto in their entirety. It may be that the third possessor, having an interest in discharging the debt, will, upon payment thereof, be entitled to subrogation to the then existing rights of the mortgage creditor.”

Article 715 of the Code of Practice provides that the creditor With a general mortgage must proceed against the holder of property subject thereto who has most recently acquired, and, in the inverse order of alienation, to the one who acquired most anciently.

Of course, the rights of all purchasers of parts of the mortgaged property are fixed by their respective acts of conveyance. The one who first acquires a portion could not anticipate that another would purchase a part of the mortgaged property. Certainly there is not and could not be any privity between purchasers at different dates. The one making the first purchase of a part leaves it in the power of another to acquire the remainder; and the one who makes the last purchase buys with full knowledge. Each of these dealings are separate and distinct one from the other.

What reason is there why the legal mortgagee can not intervene in the subsequent act, and renounce his right of mortgage without consideration, and not subject himself to the penalty of having to credit his mortgage debt with the amount of the sale, at the instance of antecedent purchaser? What duty or obligation does the mortgagee owe to the antecedent purchaser who buys without his consent or knowledge? There is none that we can conceive of. The reasoning of the court in Powell vs. Hayes seems to be strictly applicable to a legal mortgage. The only difference which can exist between the legal and conventional mortgage in this respect relates to the plea of discussion; and of which the antecedent purchaser is deprived by the mortgagee’s remuneration.

But in this connection it must be observed that under the terms of the Oivil Oode the plea of discussion of the third possessor is limited to “property mortgaged for the same debt, within the possession of the principal debtor.” Article 3403.

It is the provisions of the Code of Practice alone which extend the right of discussion to junior possessors of mortgaged property.

From the fact that the Code of Practice requires of the hypothe- . cary defendant to advance the cost of discussion, it is clear that only a grace is extended to him as a senior possessor, and not an obligation imposed on the mortgage creditor.

But the mortgagee’s renunciation caused the defendant no injury, because the 3410th article of the Revised Civil Code declares that “ the third possessor, who has either discharged the mortgaged debt or relinquished the property mortgaged, or suffered it to be sold under execution, has, according to law, an action in warranty against the principal debtor.'” (Italics ours.)

So if the purchaser — any purchaser — be ousted by reason of the mortgages resting on the property at time of sale, his recourse is against his vendor and warrantor for reimbursement, and not against the mortgagee, with whom he had nor has any contractual or even quasi' contractual relations. And what gives force and significance to the quoted article in this connection is the fact that it is found in the chapter of the title appertaining to mortgages, which treats “ of the effect of mortgages against third possessors and of the hypothecary action.”

We are of opinion that this part of the defendant’s demand is not well grounded and must be rejected.

V.

Deducting from the capital of plaintiff’s judgment the sums allowed as credits thereon, and we have this statement, viz.:

To amount of plaintiff’s judgment.................................................................$10,734 55

Or.

By amount collected on Jolmson judgment under compromise.....$3,500 00

Ry amount proceeds of sale of real estate of Mrs. Smith’s succession to the plaintiff......................................................................$5,800 00 — $9,300 00

Balance due on judgment............................................................. $1,484 55

For this sum the plaintiff is entitled to judgment, and to this amount the judgment must be amended and increased.

It is therefore oidered, adjudged and decreed that the judgment of the lower court be so amended and increased as to award to the plaintiff and appellant the sum of $1484.55, and that all costs be deducted from the proceeds of the sale of the hypothecated property.

It is further adjudged and decreed that the judgment appealed from be, in all other respects, affirmed.

On Rehearing.

Nicholls, O. J.

Both parties applied for a rehearing in this case.

Plaintiff contends there is error in the judgment herein rendered.

1. In not allowing interest on closed accounts of plaintiff’s tutorship from the time the account was closed.

2. In placing the judgment of B. O. Smith behind the judgment of Ernest J. Smith; in not pro-rating the credits on said judgments arising from the sale of the succession property of Mrs. Alpha M. Smith, and in imputing the whole amount of Ernest J. Smith’s bid of $5800 on the real estate of said succession as a credit on his judgment exclusively, when in point of fact B. O. Smith’s judgment- was alive and entitled to share in the proceeds of said sale.

3. In not allowing Homer Smith and E. J. Smith to pro-rate the amounts paid by Homer Smith for his peace in the compromise between him and Ernest Smith as they did — that is, to each judgment pro rata, giving to E. J. Smith’s judgment its share of the credit, and to B. C. Smith’s judgment its share likewise.

Defendant urges, 1st. “That the judgment of plaintiff should be credited with the sum of $4500 instead of the credit of $3500 allowed by the court; the said $4500 being the sum actually received by plaintiff in the execution of his judgment against W. W. Johnson, on the ground that the defendant having the right to force the discussion of the property of Johnson, and having exercised that right, has also the right to force the plaintiff to apply the proceeds of the property to the payment of his judgment; the right of discussion necessarily carrying the right to force the application of the proceeds of the property discussed.”

2. “ That the court erred in not crediting the judgment of plaintiff with the sum of $5000, this being the amount received by plaintiff in a notarial act from H. H. Smith on account of his judgment and which plaintiff in a notarial act before George B. Sheppard declares to have been received on said judgment and specially credits the judgment in said act with said sum.”

3. “The judgment of plaintiff should be credited with the sum of $3750, the amount of plaintiff’s renunciation in the sale from his tutrix to H. H. Broad.”

We have carefully re-examined the record.

The plaintiff, Ernest Smith, and Beverly O. Smith, his brother, were, at the death of their father, minors. Their mother was ap - pointed and qualified as their tutrix. The abstract of inventory in the succession of the father was recorded as required by law on the 9th November, 1869, and reinscribed August 1, 1881.

On November 8, 1869, Beverly Smith obtained a judgment against his tutrix for the sum of $10,743, which was reduced on the day of its rendition, by a partial payment of $5996, to the sum of four thousand seven hundred and thirty eight dollars. The amount of the judgment was in liquidation of the rights of Beverly Smith against his mother as his tutrix, and it was secured at that time by the general mortgage on the tutor’s property. The failure in the judgment to recognize fhat fact did not destroy the actually existing mortgage. This judgment was inscribed on 15th July, 1873.

On the 20th December, 1872, Ernest J. Smith obtained a judgment against his tutrix for the sum of $10,734.85, and recognizing that payment of the same was secured by the minor’s mortgage.

This judgment was recorded August 1, 1873. and reinscribed August 1, 1881.

It was revived 28th February, 1881, and judgment of revival recorded the same day.

On the 11th September, 1871, Mrs. Alpha M. Smith and Mrs. Ellen Hine sold to H. H. Broad certain property for the price of thirty-seven hundred and fifty dollars. On the next day (12th September, 1871) Ernest Smith and Beverly Smith renounced their mortgage on the property so sold.

Mrs. Alpha Smith died September 1, 1879. At the sale of her succession property made on the 5th May, 1880, Ernest Smith purchased property to the amount of $5800, one-third cash and the balance represented by notes payable in one and two years, with 8 per cent, interest from date.

At that date more than ten years had elapsed from the date of the inscription of the abstract of inventory (Nomember 9, 1869) , and it had not at that time been reinscribed; but Beverly Smith’s judgment (which, as we have seen, did not refer to or recognize the minor’s mortgage) was, as such, alive, and its inscription on 15th July, 1873, had not perempted.

It appears that on the 27th May, 1869, Mrs. Alpha M. Smith had sold certain property to another son, Homer H. Smith, on which the mortgages in favor of Ernest and Beverly Smith rested.

The son, on the death of his mother, was appointed administrator of her succession, and in that capacity he had in his possession in 1881 the two notes representing the credit instalments of the purchaser made hy Ernest Smith at the succession sale. Having loaned money, or made advances to his brother, Beverly, to an amount of about $1400, the latter had transferred to him by way of collateral security the judgment which he had obtained, as we have said, against his mother and tutrix. Thus matters stood, when Ernest Smith threatening to proceed by way of an hypothecary action against Homer, as third possessor of the property which he had purchased from the tutrix, an act was passed (27th August, 1881) between the parties in which Homer Smith transferred to Ernest the Beverly Smith judgment which he held as collateral, with the obligation assumed on the part of Ernest to hold and sa ve him (Homer) and his property harmless against all claims which could be urged by Beverly.

Ernest Smith having thus become the holder of the two judgments, the act proceeds to recite that Ernest Smith, claiming a mortgage on the property byjvirtue of the two judgments, declared that “for and in consideration of the sum of $5000, this day to him paid by Homer H. Smith, receipt of which he hereby acknowledges, and which said sum of $5000 is hereby credited as payments on the above described judgments pro rata in the proportion that the respective amounts of said judgments bear to the said sum paid, that he did and does hereby forever abandon, relinquish and declare fully paid, satisfied and extinguished all claims, demands, mortgages, judgments, rights of action, hypothecary rights and all other rights of whatever nature which he may have and hold as the owner and possessor of the said above described judgments bearing upon the above described property, and guaranteeing (as we have above stated) the said Homer H. Smith against harm or eviction on the part of the heirs of Beverly Smith or his assigns from the collateral judgment herein transferred, and the said Homer Smith canceling and surrendering, and delivering the two certain promissory notes, each for the sum of $1988.33 dated, drawn and signed by Ernest J. Smith on the 5th May, 1880, and payable one in one year and the other in two years after date, to the order of H. EL Smith, administrator, and conditioned to bear 8 per cent, per annum from date until paid, and the payment thereof secured by a special mortgage and vendor’s privilege on the property purchased by said Ernest J. Smith, at the succession sale of the property belonging to the estate of Mrs. Alpha M. Smith, as fully described in the deed of said property from said administrator; the said Ernest J. Smith hereby grants a full and final receipt and discharge to said Homer H. Smith for all claims, demands and actions as the holder and owner of said described judgments which he may have against the said Homer H. Smith as administrator of the succession of Mrs. Alpha Smith, resulting from the sale of the property belonging to said succession made on the 5th May, 1880.”

Subsequently to this, Ernest Smith proceeded by an hypothecary action against one Johnson as third possessor of property, subject to his mortgage, and in that action certain property was seized, and on the 30th of August, 1884a sold to a third person for the price of forty-five hundred dollars, which the purchaser paid to the sheriff and the latter to the plaintiff.

The third possessor having taken a devolutive appeal in the premises, the matter was compromised by the plaintiff paying to Johnson $1000 of the purchase price, he actually receiving therefore from the action $3500.

On the 28th November, 1882, the present hypothecary action was instituted against the defendant as third possessor of property claimed to have belonged to Mrs. Alpha Smith during the tutorship, and to be affected by the general mortgage resulting from the tutorship of the plaintiff.

The property was sold by T. D. Hiñe and Mrs. Alpha Smith on August 22, 1862, to John Walker, by John Walker to G. G. Walker September 22, 1871, by G. G. Walker to Patrick Byrne, August 20, 1874, by Patrick Byrne to Miss Lewis (the defendant) March 22, 1880.

In ascertaining the rights of parties we take as the starting or initial date in our investigations the 27th day of August, 1881, that being the date of the act between the plaintiff, Ernest Smith, and his brother Homer, and in dealing with the judgments of Ernest and Beverly Smith against their mother and tutrix we shall not include interest upon either, as by the terms of neither judgment was interest decreed.

Where the plaintiff in an hypothecary action against a third possessor of mortgaged property declares as his instrument of attack upon a judgment which, by its terms, decrees no interest, the blow inflicted is gauged by and corresponds with the weapon used.

A judgment of the character mentioned does not carry with it, as such, interest against the third possessor. If interest could under any circumstances be claimed by the holder of such a judgment it would arise, not from the judgment itself proprio vigoi-e, but from extrinsic facts.

We are not called on to say whether plaintiff in an hypothecary action would have the right as against a third possessor who absolutely denies all liability, makes no tender and forces plaintiff into a protracted litigation, he himself remaining pending the litigation in possession of property bearing fruits, to claim interest on the judgment from judicial demand, not as resulting directly from the judgment but from the refusal of the third possessor to either surrender the property or pay the debt. It may be that under Articles 3453, 2553 of the Oivil Oode, plaintiff might be entitled to interest if under such circumstances he claimed interest.

Returning to a consideration of the situation of parties on the 27th day of August, 1881, it will be seen that on that day Ernest Smith owed as a purchaser at the sale of the property of his mother’s succession the cash portion of that purchase price, nineteen hundred and thirty-three dollars and thirty-three and a third cents, and the amount of his two notes, thirty-eight hundred and sixty-six dollars sixty-six and two-third cents, with interest on this last amount from the 5th May, 1880, to the 27th day of August, 1881. The whole indebtedness at that time, therefore, being six thousand two hundred and five dollars.

Now, at the date of the sale and on the 27th day of August, 1881, Ernest Smith was a judgment creditor to the amount of ten thousand seven hundred and thirty-four dollars, and Beverly Smith was a judgment creditor to the amount of four thousand seven hundred and thirty- eight dollars.

At that date more than ten years had elapsed since the inscription of the abstract of inventory in the matter of the succession of Simeon Smith, the father of the parties; but Beverly Smith had, as we have stated, obtained a judgment against his mother and tutrix, which he (had caused to be recorded on the 15th July, 1873, and if the inscription of that judgment had the effect of preserving the evidence of a general mortgage in favor of Beverly Smith on the property of his tutrix the mortgage had not perempted, but was in full force.

The judgment referred to was as follows:

“ In this matter it appearing to the satisfaction of the court that the tutrix had delivered to her ward, Beverly O. Smith, the full and final account of her tutorship on the 1st September, 1869, with the vouchers in support of said account, the receipt of which was duly acknowledged by said Beverly C. Smith, as per his receipt in the record, and no opposition having been filed to the homologation of said account, and the law and the evidence being in favor of said homologation, it is therefore ordered, adjudged and decreed that said account be homologated and approved in all its parts, and that the said Beverly O. Smith do have judgment against his said tutrix for the sum of ten thousand seven hundred and forty-five dollars, subject to such credits as may have been given by said ward to said tutrix before the rendition of the judgment.”

It will be noticed that the name of the tutrix is not given in the judgment. The judgment is silent as to any mortgage securing payment of the judgment, and there is nothing in it to show the date of the tutorship. So long as the inscription of the abstract of inventory was not perempted, the indefiniteness of this judgment may perhaps have been cured or supplemented by the recorded ab - stract, but when the effect of that registry ceased and the rights of parties quoad inscription had to rest exclusively on the recorded judgments, a very different condition of things arose. We are of the opinion that the recording of this judgment was not a legal compliance with the law of registry, and that • though the judgment may be alive, the mortgage securing it has ceased to exist. This being the case the whole of the price due on the 27th August, 1881, by Ernest Smith (six thousand two hundred and five dollars) resulting from his purchase on the 5th May, 1880, of his mother’s succession, was to be credited on his judgment and extinguished as to that extent. The balance due him on his judgment after the application of these proceeds was four thousand five hundred and twenty nine dollars.

On the 27th August, 1881, the act to which we have referred between Homer Smith and Ernest Smith was passed. In that act both parties recognized and declared a payment of five thousand dollars by Homer Smith to Ernest Smith, and as resulting therefrom the crediting pro rata of the amounts due that day on the two judgments of Ernest and Beverly. What were the amount of the two judgments at that time? Ernest’s judgment had been reduced to four thousand Jive hundred and twenty-nine dollars, whilst Beverly’s remained intact and unpaid at the sum of four thousand seven hundred and thirty-eight dollars. Waiving all objections which might be urged to the application of the five thousand dollars to the two judgments, and giving effect to the agreement between the parties, we have to distribute Jive thousand dollars between the two judgments according to the amount mentioned — in round numbers twenty-five hundred dollars would be credited on each judgment. Deducting that amount from Ernest Smith’s judgment, there would remain a balance due him of two thousand and twenty-nine dollars.

In the enforcement of plaintiff’s claim against Johnson, $3500 were actually realized and paid over to the plaintiff. This payment extinguished entirely plaintiff’s judgment.

Plaintiff very vigorously denies that he has recovered a cent of the $5000 mentioned in the Homer Smith act. It may be that no money passed between the parties, but both considered that Ernest Smith was, through the provisions of that act, benefited to the amount of $5000, and the plaintiff consented to regard the benefit received in the light of a payment to that amount.. He may have acted in error of law and unadvisedly, but we are bound to give effect to his contract.

In connection with the act of 27th August, 1881, the fact must not be overlooked that through it Ernest Smith became the holder with control thereof of the Beverly Smith judgment, a fact to which he evidently attached great importance. We can not undertake to say what would be the original rights and obligations of Homer, Beverly and Ernest Smith inter se should Beverly pay his indebtedness, reclaim his judgment and stand upon his rights. We have to deal with the rights of parties from the position in which they have themselves placed them at the present time.

For the reasons herein assigned it is ordered, adjudged and decreed that the judgment heretofore rendered herein be set aside, and it is now ordered, adjudged and decreed that there be judgment in favor of defendant against plaintiff rejecting his demand and dismissing his suit with costs in both courts.

Parlange, J., takes no part.