author: Nicholls, O. J. Miller, J.

text:
    No. 1478.
    State ex rel. John Hill et al. vs. The Judges of the Court of Appeals for the Third Circuit of the State of Louisiana.
    Assessments or taxes to build and maintain levees under acts organizing and pro-Tiding for Boards of Commissioners of levee districts, though treated as local assessments not subject to the rule of conformity, or the limitation applicable to general taxation, still are taxes within the purview of Art. 81 of the Constitution, giving to this court appellate jurisdiction in all cases involving the constitutionality or legality of any toll, impost or tax whatever. Constitution, Art. 81; Acts No. 44 of 1886, No. 79 of 1890; Burroughs on Taxation, Chapter XXII; 11 An. 338, 222 ; 28 An. 323; 29 An. 460; 43 An. 339.
    ^PPLIOATION for a Mandamus.

      T. H. Lewis, E. N. Cullom and Kenneth Raillio for the Eelators.

      J. R. Thornton for the Respondents.
   Application por a Writ op Mandamus.

The opinion of the court was rendered by

Nicholls, O. J.

Relators aver that they, each and severally, own large quantities of swamp land in the parish of St. Landry, situated within the limits and territory comprising the Red River, Atchafalaya and Bayou Bceuf Levee District, as defined and established by Act No. 79 of the General Assembly, approved July 5, 1890, That in the years 1892 and 1893, relators severally and each for himself or herself, filed in the District Court for St. Landry parish, suits before said court in which they declared and averred in substance as follows: That is to say (all of said suits having by consent been consolidated for trial and tried on appeal under such consolidation) . That their lands are by said act, approved July 5, 1890, within a district subject to a system of special taxation, which the board of commissioners of said levee district, are empowered by said act to levy, assess and collect upon all lands in said district benefited by the levee system. That assuming to act under and by virtue of the power and authority granted and conferred upon them by said act, said board of commissioners have caused and directed the assessor of the parish of St. Landry to list all aforesaid property as subject to the special taxation and local assessments provided for in Act No. 79 of 1890, and said property has been carried on the special assessment roll, listing and describing all property which is .alleged and claimed to be subject to the special taxation provided for in said act, and a copy of said assessment has by said assessor been filed in the office of the sheriff and ex-officio tax collector of St. Landry parish, and T. S. Fontenot, the sheriff, is now proceeding to the collection of taxes levied and carried on said roll as provided for in Sec. 9 of the act aforesaid, and relator’s aforementioned property is assessed on said rolls filed in the sheriff’s office as follows: At the rate of five (5) cents per acre of said lands, and at the rate of five (5) mills upon the valuation of said lands as fixed by said assessor, and the said sheriff, ex-officio tax collector, unless enjoined will sell the same for cash to pay and satisfy the said alleged taxes or local assessment. Relators further declared in the alternative in said suits in substance as follows: That said Act No. 79, if it purports to authorize the levying and collection of the aforesaid taxes or assessments, is illegal and unconstitutional, because said lands are not protected, reclaimed from overflow or inundation, improved or benefited by the levees built or proposed to be built by said board. That they require no such protection and can derive no possible benefit from said levee, but, on the contrary, said levees will injure their aforesaid lands and in fact detract from their value, and that therefore said assessments are a taking of private property without compensation; that the special averment is made in the petition of John Hill and Mrs. Olementine Phelps, that said acreage tax is further illegal, because it is levied indiscriminately at the same rate upon the cultivated and settled lands on the front, as upon the swamp lands involved in these suits, the latter being worth not more than fifty cents per acre, while the former class of lands are worth not less than eight to ten dollars per acre, as will be seen by copies of the petitions in said suits annexed; that though said averment of nullity is not specially made in the other suits, yet by consent, all the testimony in the John Hill suit in support of that averment, was offered in all the other cases and is to be considered by the court; that relators further averred in the said suits, that the acreage and valuation taxes of five mills upon their aforesaid lands, amounted to, íd the case of each of the relators, a sum exceeding one hundred and under two thousand dollars.

That relator after making the said averments, which are substantially given as made in the said suits, sued out a writ of injunction restraining the assessor and tax collector from proceeding any further in the assessment of said lands or in the collection of taxes thereon until the further orders of the District Court of St. Landry parish, and they prayed for judgment in their favor, each for himself and herself, and against the sheriff and tax collector and said assessor, asking the perpetuation and maintenance of the injunction sued out in said suits, declaring said tax illegal and unconstitutional, and declaring the assessment of said acreage tax to be illegal, and for judgment further decreeing the property belonging to each of relators severally not to be subject to the aforesaid taxes or local assessments, and ordering the same to be stricken from the assessment rolls and tax rolls of the parish of St. Landry.

That though they use the word “ tax ” in their pleadings they do not wish to be understood as contravening by the use of that term the settled doctrine of the Supreme Court that an acreage tax for special levee purposes is not a tax proper,” but a local contribution, based upon supposed benefits conferred, and therefore not the subject of an appeal to the Supreme Court under Art. 81 of the Constitution of 1879.

Relators further aver that after the filing of the said suits in the District Court for St. Landry, the same were, after issue joined in said suits, duly assigned for trial, and tried pursuant to law, the Board of Levee Commissioners answering in each and every case by pleading the legality and constitutionality of the aforesaid tax or local assessment and the act of the Legislature authorizing said tax or assessment, ánd praying for a dissolution of the injunction sued out by relators respectively, and for a rejection of the demand of relators in said suits. Relators further declare that judgments in each of the aforesaid suits were duly rendered by the District Court of St. Landry, in each and every case, rejecting and disallowing the demands and prayers of the relators in said suits and dissolving the injunction taken out by them in said suits respectively. They aver that they each and severally, prosecuted suspensive appeals from the aforesaid judgments to the court of appeals of the third circuit of the State of Louisiana, sitting in and for the parish of St. Landry, and said appeals were duly filed in said court.

That on said cases coming up for a hearing in said Circuit Court of Appeals, sitting at Opelousas, the counsel for the Board of Commissioners in each and every one of the cases, filed a motion to dismiss the appeals taken as aforesaid, on the ground that said Court of Appeals was without jurisdiction rations materias, for the reason that the constitutionality and legality of the taxes are in contestation, and that therefore said appeal was not legally cognizable by said Court of Appeals. That after the hearing of the said motion to dismiss in each and every case, the said Court of Appeals sustained said motion to dismiss all and singular the appeals taken in said cases by relators respectively, as would appear by the judgments of dismissal annexed to relators’ petition. Relators, each for himself and herself, aver that in dismissing the appeals taken by relators as aforesaid, and in declining to pass upon the merits of said causes, the Court of Appeals has done an act amounting to a denial of justice to relators respectively, and they aver that the Court of Appeals, under the averments of their petitions and under the evidence, alone had jurisdiction of the cases.

They aver that they have no other mode of obtaining relief from the said illegal and unwarrantable action of the Court of Appeals except by application to this court for relief and redress in the premises, as of right. That they will be irreparably injured unless the Court of Appeals be ordered to reinstate said cases upon the docket of their court for trial, and ordered to proceed to try and finally determine the same according to law, and this relators, each for himself and herself, asks shall be done, and that a writ of mandamus issue to the judges of said court ordering them so to do.

The judges answer that they do not think, under the allegations of the original petition, that they have appellate jurisdiction, but under Art. 81 of the Constitution the Supreme Court has; that for these reasons the appeals were dismissed on motion of appellees’ counsel.

In sustaining the motion to dismiss the appeal in the case of John Hill vs. T. S. Eontenot, Sheriff and Tax Collector, the Court of Appeals said:

“The petition alleges that the sheriff and tax collector of St. Landry parish had seized and advertised certain lands therein described for levee taxes, assessed by the levee commissioners in the Red River, Atchafalaya and Bayou Bceuf Levee District. The taxes consisted of five mills tax proper and five cents acreage tax, amounting in the aggregate to two hundred and thirty-nine dollars and twenty-three cents. The petition alleges that said tax and local assessment of the acreage tax is in violation of Arts. 1, 2, 156, 203 and 218 of the Constitution of 1879.

“Article 81 of the Constitution confers jurisdiction on the Supreme Court in all cases where the constitutionality or legality of a tax shall be in contestation. We have carefully considered the brief of counsel and authorities referred to urging jurisdiction in the court, because the amount of the tax and illegality of the assessment are within the jurisdiction of this court. We are satisfied, however, that the constitutionality and legality of a tax are in contestation, whether it is called a tax or local assessment, and comes within the appellate jurisdiction of the Supreme Oourt.

“ The complaint that the valuation of the property is excessive must be made before the police jury as a board of reviewers as a condition precedent before an appeal can be taken thereon. 39 An. 206. For these reasons the court is without jurisdiction and the motion to dismiss the appeal should prevail, and it is so ordered at appellant’s costs.”

Appellants in these different cases, claiming that the action of the Oourt of Appeals in respect to its own jurisdiction was not well founded, have applied to this court for a writ of mandamus to compel the reinstatement of the cases on the docket of that court and a trial and determination by it of the issues involved.

By Art. 213 of the Constitution of 1879 it is declared, that “a levee system shall be maintained in the State and a tax not to exceed one mill may be levied annually on all the property subject to taxation and shall be applied exclusively to the maintenance and repairs of levees,” and by Art. 214 “that the General Assembly may divide the State into levee districts and provide for the appointment or election of levee commissioners in said districts, who shall, in the method and manner to be provided by law, have supervision of the erection, repairs and maintenance of the levees in said district; ’ to that effect it may levy a tax not to exceed five mills on the taxable property situated within the alluvion portions of said districts subject to overflow.”

The second of these articles is merely supplemental or ancillary to the first — the two looking to the creation of an effective levee system in the State.

By the first all property in the State subject to taxation may be charged, independently of any question of direct benefit to the owners of the property subjected to the charge from the levee system, with an annual tax not to exceed one mill, to be applied to the maintenance and repairs of levees generally in the State. By the second, all taxable property situated within the alluvion portions of levee districts, which the Legislature is authorized to create, subject to overflow, may be charged annually with a tax not to exceed five mills, to be applied to the erection, repair and maintenance of levees within the district, also without regard to the question as to whether the owners of the property charged with the tax are or are not benefited by the levees erected, repaired and maintained in the special levee district. In both cases all discussion as to the justice or propriety of the imposition of taxes in aid and furtherance of objects from which direct and immediate benefits shall not enure or be seen to enure to the parties charged, is cut off by the provisions of the Constitution itself, which silences all individual contentions on that subject, and withdraws from courts any consideration of arguments of that character.

In 1890 the General Assembly of the State, claiming to be legally and constitutionally authorized so to do, created by Act No. 79 of that year a “ levee district to be known and styled the Red River, Atchafalaya and Bayou Boeuf Levee District ” and provided for a board of levee commissioners for that district. The object and purpose of the creation of the district and of the powers and duties of the board, were those pointed out by Art. 214 of the Constitution just-referred to. In order to enable this board to carry out its special duties all taxable property in the alluvion portions of the district subject to overflow were declared subject to be charged with the tax provided for in Act 214 — that is to say, a tax not to exceed five mills; but over and beyond this amount the tenth section of the act enacted that for the purpose of raising additional funds for said district the said Board of Levee Commissioners shall have power, and it is hereby authorized, to levy an annual contribution or assessment upon all lands in said district subject to taxation for levee and drainage purposes not to exceed five cents per acre. Said contribution or assessment shall be assessed, collected and paid into the State treasury to the credit of the Red River, Atchafalaya and- Bayou Boeuf Levee District in the same manner and at the same time as other taxes herein provided for are assessed, collected and paid.”

The “Board of Levee Commissioners” provided for in this act, having been appointed by the Governor and organized, caused, it would appear from the pleadings in this case, to be listed by the assessor of the parish of St. Landry all the property deemed subject to taxation for levee and drainage purposes in the parts of the parish of St. Landry subject to overflow within the levee district, and levied a tax of five mills upon said property and an additional contribution assessment or tax of five cents per acre upon the same, among which was included certain property of the relators. The tax contribution or assessment not having been paid upon the same, they were advertised for sale by the tax collector of St. Landry in enforcement of the tax, but the sales of their respective properties •were enjoined by the present relators. It is not pretended that these lands are not within the territorial limits of the levee, nor that they are not within the alluvion portions of the district subject to overflow; in other words, it is not claimed that the lands do not fall under the literal terms of the law as lands subject to taxation for levee and drainage purposes. What is asserted is, that though falling inside the literal terms of the law, that none the less they are not subject to the charges for which they are now sought to be sold by the tax collector.

It is maintained by the plaintiffs in injunction that not only were the lands and the owners of the same not benefited by the levee system and the levees of the special levee district, but that they were actually injured thereby; that quoad those lands and the owners thereof, the charges imposed were not local assessments in consideration of benefits received, but so far as those lands and their owners were concerned were really taxes, and taxes illegally assessed, for the reasons and grounds assigned in their pleadings. The claim asserted in the injunctions was that under the guise of local assessments for special benefits received or to be received, the General Assembly, and the Board of Levee Commissioners under its authority, had imposed and was attempting to impose and enforce an illegal and unconstitutional tax, from which they sought, through the courts, to be relieved. We are ignorant of the reasons assigned by the District Court for dissolving the injunctions, as the judgments in the different cases are in the record. We are told, however, that the levee board maintained that the charges were not taxes, tolls or imposts, but local assessments for special benefits. When the parties appealed to the Court of Appeals, the Board of Levee Commissioners made a motion to dismiss on the ground of want of jurisdiction rations mat erics. The court sustained the motion for the grounds assigned in its judgment. Relators argue that the board having, in the District Court in defence of the merits, urged that the charges imposed were neither a tax nor an illegal tax, is estopped in the appellate court from urging there that they are taxes for the purposes of defeating the jurisdiction; but the test of jurisdiction is not the grounds which may be set up in defence to the claim set up in the petition, but the claim itself set up in the petition, and, besides this, if the Court of Appeals was in reality without jurisdiction ratione materias, it would be forced ex officio to notice its want of power to decide the issues raised. The dismissal would not rest upon the motion of the defendants, and no estoppel would apply to the court assuming, it would apply to the Board of Levee Commissioners.

We are of the opinion that the eases involve the issue of tax and illegal tax vel non, and that that is an issue which has to be passed upon and determined by this court and not the Court of Appeals.

The eighty-first article of the Constitution, dealing with the appellate jurisdiction of this court, extends it “to all cases in which the constitutionality or legality of any tax, impost or toll, whatever maybe the amount thereof,” and directs that “in such cases” the appeal on the law and the facts shall be directly from the court in which the case originated, to the Supreme Court.

We are of the opinion that the use of the words all cases, and of the words “any tax, impost or toll whatever” clearly indicates on the part of the framers of the Oonsticution an emphasized intention to give to the terms tax, toll and impost, the widest meaning to which they were susceptible, and to allow every citizen to have submitted to the test of legality and constitutionality by the highest court of the State, any charge upon his property imposed by the State or its subordinate political agencies, when claimed to be legally and constitutionally imposed by them in aid of governmental put-poses, whether extending over the whole State or over particular localities.

In the cases referred to in relators’ petition the charges imposed upon the respective properties, were unquestionably authorized and imposed by the General Assembly, and its subordinate agency, the Levee Board, in aid of the governmental public levee-system, authorized by the Constitution to be maintained by the State.

The fact that charges imposed by the State or its subordinate agency, may differ and vary from each as to the particular circumstances and conditions under which they may be imposed, and the extent or resulting effect of their imposition, does not prevent, for the purpose of the special question of the jurisdiction of courts in dealing with them, their falling in an extended sense under the terms “tax, toll or impost.”

It is for this court, and it alone, finally to determine whether charges imposed upon the property of the citizen are or are not taxes, imposts or tolls, and, if so, whether they are legally and constitutionally imposed.

As eases arise under differing circumstances and under differing pleadings, we will determine whether the particular case falls within our exclusive appellate jurisdiction for decision or not. In the cases involved in this litigation we hold that we have such exclusive appellate jurisdiction. Counsel claim that there are decisions of this court which should lead us to a different conclusion; but the decisions relied on must, in these particular cases, yield to the conclusion reached by us, if, as contended by counsel, they would be in conflict with it.

We are not called on in this opinion to determine what the character of the charges referred to really are, whether they have been imposed inside of legal and constitutional powers, or whether they have been imposed in violation of legal and constitutional restrictions, limitations and prohibitions — those matters are to be determined hereafter; all that we are called upon to deal with here is the single question of appellate jurisdiction in respect to the issues raised by the litigation. On that point we are of the opinion that the Court of Appeals correctly dismissed the appeals for want of jurisdiction. The mandamus applied for must therefore be and it is hereby refused.

Concurring Opinion.

Miller, J.

The jurisdiction of this court under the Constitution extends to all cases in which the constitutionality or legality of any tax, toll or impost whatever, is involved. It is manifest the word tax in this part of the Constitution is used in its largest sense. After the words describing the jurisdiction of this court as extending to all cases involving the legality or constitutionality of any tax, toll or impost, there is added the word “whatever,” i. e., whatever the character of that tax, toll or impost. Constitution, Art. 81. While it is clear that enforced contributions in the nature of local assessments, as such assessments are termed under the levee acts, are levied without reference to the rule of uniformity or of the limitation applicable to general taxation, still these local assessments are none the less taxes. They are treated as taxes in the text books and are taxes in the natural sense of the word, though restricted in their operations and freed from the provisions in the Oonstitution regulating general taxation. Burroughs on Taxation, Chapter XXII, discriminates the local assessment from a general tax, as an assessment imposed on the property of a particular district created by the Legislature, and leviedjOn the theory of the benefit of that property to be secured by the tax. He designates that assessment as a tax. On what ground then is this court to hold that “ any tax whatever ’ used in the jurisdictional article of the Constitution does not include that mass of taxation levied in the form of local assessments? Can it be supposed that the organic law, in extending the jurisdiction of this court to all cases involving the legality or constitutionality of any toll, impost or tax whatever, ever contemplated that, under this sweeping jurisdictional grant, the State or the citizens could be deprived of the jurisdiction of the highest court of the State over questions of the legality or constitutionality of taxation in the form of local assessments. Manifestly no such narrow construction of the grant of jurisdiction to this court can be supported.

The frequent contentions ,on the subject of local assessments in our courts, have turned mainly on the issue whether this form of taxation can be exerted under the uniformity rule and limitation in the Constitution, in respect to general taxation. Our courts have reached the conclusion that ¡these local assessments are to be imposed without reference to this limitation or rule of uniformity. But that conclusion does not at all support the contention that local assessments are not taxes within the purview of Art. 81 of the Constitution, giving to this court jurisdiction whenever the legality or constitutionality of any tax whatever is involved, a jurisdiction to be exerted by appeal to this court direct from the court in which the case presenting the question originates. Burroughs on Taxation, Chap. XXII; The Drainage Case, 11 An. 338 et seq.; Crandall Case, 11 An. 222; 38 An. 323; 39 An. 460; 43 An. 337; Const., Arts. 81, 203, 209, 213, 214; Act No. 79 of 1890; Act No. 44 of 1886.

The decision in 33 An. 276, maintains that a question of the constitutionality or legality of an assessment under one of these levee acts is not within the jurisdiction of this court. Under what I conceive to be the requirement of the organic law announced in Art. 81 of the Constitution, that decision, in my judgment, can not be followed.

The issue now before us is simply as to the jurisdiction of this court.

I concur in the opinion of the Chief Justice.


source: Caselaw Access Project

author: Nicholls, C. J.

license: Public Domain

text:
    No. 1471.
    Isaac Goldberg vs. Albert F. Dobberton.
    1. Where persons mutually engage in bandying opprobrious epithets an action of slander is not to be encouraged for words thus uttered.
    2. The interchange of opprobrious epithets and mutual vituperation and abuse will justify a judge in approving a verdict for the defendant, although the slanderous words were proved, and a verdict rendered in such a case will not be disturbed by the Supreme Court.
    APPEAL from the Twelfth Judicial District Court for the Parish of Calcasieu. Four net, J.

      E. L. Wells and D. B. Gorham Attorneys for Plaintiff and Appellant.

      A. P. Pujol Attorney for Defendant and Appellee:
    Cites Johnson vs. Barnet, 36 An. 320.
    “ One who is himself in fault can not recover damages from another who has retaliated in kind, although the latter was not justifiable in law, and this holds good in spite of the truism that one'wrong does not justify another.” 36 An. 38; 15 An. 48.
    The verdict of the jury in cases of this nature is “never disturbed by appellate tribunals unless glaringly unjust or manifestly erroneous.” Young vs. Bridges, 34 An. 335; 10 An. 559; 28 An. 94; 30 An. 926.
    The courts of Louisiana have never encouraged litigation of this kind. 9 An. 358; 34 An. 336.
   The opinion of the court was delivered by

Nicholls, C. J.

Plaintiff alleges that on the public streets of the town of Lake Charles, and at the residence of the petitioner in the said town, in the presence and hearing of a large number of persons, the defendant, maliciously and without cause, slandered and defamed petitioner’s wife, calling her by many vile names, and applying to her many vile epithets, which are set out in the petition, all of which was done by Dobberton with a malignant spirit, with the full purpose of damaging and injuring plaintiff, although defendant well knew that his declarations were wickedly false and slanderous, and that Dobberton has accordingly damaged and injured his said wife and himself. That she had always demeaned herself with modesty, virtue and chastity, and has heretofore enjoyed a good reputation and the esteem, respect and friendship of all her acquaintances and of the community, but that since the utterance of said vile and infamous slander her good name and character have been seriously damaged, and her friends and acquaintances have fallen away from and ceased to visit her, and in several instances have totally ignored her; that her spirit has been humbled and crushed, and she has suffered untold mental agony. That said cruel slander has constantly preyed upon her mind, making her nights sleepless and her days miserable. That being then and at the time of the institution of the suit in a delicate situation, her nervous system has been greatly shocked, her health injured and her life imperiled, and in consequence of said malicious acts of Dobberton they have been injured as aforesaid in the sum of ten thousand dollars.

That he himself has been injured and damaged by the defendant in the additional sum of five thousand dollars for this; that Dobberton, not content with slandering and abusing his said wife as aforesaid, upon being requested by petitioner to cease his said abuse and leave his premises, cursed and abused him, calling him by all manner of vile, vulgar and slanderous epithets too vulgar to be repeated, and, further, threatened the lives of petitioner and his wife, and in putsuance of his threats made a felonious assault upon them while peaceably at home by hurling heavy beer bottles and other deadly missiles at them, they barely escaping from his murderous assaults by hastily closing and bolting their doors. That by reason of said vile and slanderous abuse, uttered with the view of publicly defaming and injuring petitioners and bringing them into contempt and disrepute among his neighbors, in which he has been, unfortunately, too successful, and said wanton 'and malicious trespass as aforesaid, and the injury done to petitioner’s feelings and that of his said wife as aforesaid, and the loss and expenses to which he has been placed by said tortious acts of Dobberton, and to secure his just rights thereon, he has been damaged and injured in said further sum of five thousand dollars, which he should recover from judgment. He prays for judgment against defendant for damages for fifteen thousand dollars.

Defendant pleads first, the general issue to that portion of plaintiff’s demand wherein he seeks to obtain judgment for alleged libel and slander to plaintiff’s wife. For answer to that portion of plaintiff’s demand wherein he seeks to recover judgment against him for libel and slander of himself, he pleads in bar of plaintiff’s right to such recovery that plaintiff and he mutually engaged in cursing and abusing each other at the time stated; that the language attributed te him in plaintiff’s petition was preceded by language equally libelous, slanderous and defamatory on the part of plaintiff, who cursed and defamed him, applying to him many opprobrious, vulgar and indecent epithets; that at the time he was defamed, libeled and ■slandered as aforesaid, and when he used the language attributed to him to plaintiff, said declarations were without malice and were used in a moment of heat and passion, induced by the immediate preceding words of plaintiff; that both parties being equally in fault, plaintiff had no right to recover herein. He specially denies that he committed any assault or threw bottles at plaintiff. He prayed for and obtained a trial by jury. The jury rendered a verdict in favor of the defendant. After an unsuccessful attempt to obtain a new trial plaintiff appealed.

The families of the plaintiff and of the defendant occupied houses about fifteen feet apart, separated by a fence. Plaintiff’s premises were leased from the defendant. On the 29th of May, 1898, plaintiff and defendant met at some point in the business part of the town of Lake Charles, where a conversation took place between them in reference to the continued occupancy of the property by Goldberg. Plaintiff says that Dobberton, in a loud tone, charged him with not keeping the premises in a cleanly condition; that being embarrassed by this, he withdrew without using any harsh or opprobrious language. The fact here mentioned is not referred to in the pleadings, but shown by the testimony, and is only important as it was doubtless the origin of the subsequent trouble between the parties. Plaintiff ’s testimony in the case begins with the statement that on his return home he heard the defendant abusing his wife, and that he heard him apply to her an insulting and disgraceful epithet, which he mentions, telling her to get out of his house, ‘ to get out at once; ’ ’ that defendant took a bottle toward the fence and threw it into the dining-room; that in the meantime he jumped over the fence, when plaintiff’s wife closed the door; that defendant, then went from the rear of the yard, where this had occurred, to the front, cursing both plaintiff and his wife, and again repeating as to her the opprobrious terms which he had already used. That he went into the front street and there again used the same language. Plaintiff says that when defendant applied to his wife the particular expression mentioned, he, the plaintiff, said that was going too far, that he would break his neck; that he went into the room and got a revolver, but when he got back his wife held him and locked the door, so that he should not go any further.

It will be seen that Goldberg’s testimony takes up the trouble as one already commenced between plaintiff’s wife and Dobberton when he first came to a knowledge of it. He does not attempt to explain how it was or why it was that defendant came to use the language attributed to him to Mrs. Goldberg, or to say who commenced the conversation in which the insulting expressions were employed, and what was said at the commencement.

The only persons who seem to have been present at the beginning of the trouble were Goldberg and wife, Dobberton and Lizzie Smith, a colored woman employed by the Goldbergs, who was examined as a witness for the defence. Her testimony was loosely taken and does not give occurrences with any definiteness as to the time and order in which they took place.

Prom it, it would appear, however, that on Goldberg’s returning home he related to his wife the circumstances connected with the meeting of himself and Dobberton on the street, which we have spoken of, and that a conversation took place between the two in relation to that matter in which some expression not complimentary to Dobberton was made use of by Mrs. Goldberg; that Dobberton, who was standing in his own yard at the time, heard this remark and became very much angered.

A very excited, wordy altercation followed, in which Goldberg himself is not shown, in so far as the witness’ testimony goes, to have used any particular expression, though to use her expression all three were fussing.” She denies that Dobberton went into plaintiff’s yard, or jumped over the fence or threw any bottles. She-denies that at that time defendant used toward Mrs. Goldberg the-objectionable epithets spoken of in the petition. She says, however,, that not wishing to get involved in the trouble she left before it was over; that she heard the parties still talking, but did not hear what they said. She says that in the course of that part of the conversation which she did hear that she heard Mrs. Goldberg make a very insulting remark to Dobberton, which remark witness repeated in court. This witness on being asked whether she had not, on the-night of the disturbance, told a certain person named that defendant had applied to Mrs. Goldberg the epithets complained of, denied having done so. At a later stage of the proceedings the person referred to was produced and testified that the witness had told her on the night in question that defendant made use of one of the expressions, giving to her its corresponding word in French.

Dobberton’s version of the affair is that at the time of the quarrel he was in his back yard, when he heard a woman using very vulgar language about some Dutchman; that at first he paid no attention^ but finally he said something, though without mentioning any one’s name; what he did say we do not know, as the transcript has left out some portion of this testimony. We think it clear that he must have said something uncomplimentary, which called out a remark from Goldberg’s wife, for after making Dobberton declare that he had said something, without mentioning names, the transcript makes him here say, evidently to her, “ I ain’t talking to you,” and immediately afterward that then this lady said, “lam talking to you” (using an insulting expression toward him).

Dobberton testifies, that after this, Goldberg from across the fence commenced abusing and cursing him violently, which language he admits he returned in kind. He says that Goldberg told him if he would come across the fence he would break his neck; that he tried to get over the fence, but that his wife took hold of him and prevented; him; that he then went to the front toward the gate on the street and invited the plaintiff to come out and break his neck; that it was. this threat of plaintiff’s which made him mad. He admits using-profane language and cursing on the street, but denies that he ever cursed Mrs. Goldberg at any time there. He states that he always respected her as a lady, and denies that either on this or any other occasion did he make use of the words alleged in the petition, about her or to her.

We say here that there is nothing in the record which in the 'slightest degree would go to impugn the character of the plaintiff’s wife. The testimony of those who have known her all her life show that an attack upon it would have been thoroughly unjustifiable, and defendant so admits. The only person who testifies to defendant’s having applied to plaintiff’s wife the epithets mentioned in the petition is the plaintiff himself, and his testimony is met by that of the positive testimony of the defendant to the contrary.

If the particular expressions complained of were in fact used, they •could not have worked any damage to character, as no third person has been produced on the stand who heard them. We are unable from the record to say who commenced the war of words and who was first to blame. The whole matter seems to have been one of those quarrels constantly occurring between neighbors, to the credit of neither, from which if either or both suffer damages it is from the ■fact of the quarrel itself and not from the force and effect of the various insulting or disgraceful epithets which are hurled at each other in the course of it.

We do not think that had defendant under the circumstances of this ease made use of the expressions charged that any one hearing them as so used would have considered them other than violent expletives, utterly wrong and reprehensible, but none the less not really carrying within themselves charges of the commission of the offences which the terms themselves would have implied as having been committed had they been made coolly and deliberately. After a careful examination of this case we have come to the conclusion that at worst it would fall within the rule announced in Fulda vs. Caldwell, 9 An. 358, where it is said that the interchange of opprobrious epithets and mutual vituperation and abuse will justify a judge in approving a verdict for the defendant although the slanderous words were proved, and a verdict rendered in such a case will not be disturbed by the Supreme Court. See on this subject Arteta vs. Arteta, 15 An. 48; Young vs. Bridges, 34 An. 336; Bigner vs. Van Benthuysen, 36 An. 38.

In Johnson vs. Barrett, 36 An. 320, this court said that where persons mutually engage in bandying opprobrious epithets an action of slander is not to be encouraged for the words thus uttered. We see no reason to disturb the verdict of the jury and the judgment of the court thereon rendered. The judgment appealed from is hereby affirmed.


text:
    No. 1474.
    Estate of Mary T. Hardy.
    1. Under See. 10 of tbe Revised Statutes any creditor or person interested has the-right to require that administrators shall give new or additional security for • the faithful performance of their office as often as once in. every twelve months,, and oftener if the court, on motion to that effect, may judge it to be necessary. The tutrix of a minor who is an heir in a succession, by reason of representation of her deceased father, is authorized in her capacity as tutrix to make this-motion, although she be also administratrix of the succession of the father,. The minor is a “ party interested ” in the matter.
    2. Where, since the administrator of a succession qualified as such under Art, 1048 of the Civil Code, the United States Court of Claims has approved a claim-* against the government for over ten thousand dollars, the recognized claim i&a credit of the succession, and the District Judge acted correctly in ordering an inventory to be made of the same and the administrator to give additional security based upon it. The administrator has no right to have the giving of. the new bond postponed until Congress shall have made an appropriation to-pay the claim.
    3. The administrator has no right to limit the amount of the new bond so as to correspond with the share which the minor may have in the new asset by reason of the other heirs not having asked or exacted additional security.
    APPEAL from the Eleventh Judicial District Court, Parish of St.. Landry. Perrault, J.

    The record shows that in October, 1890, James M. Dowlingwas qualified as administrator of the succession of Mary T. Hardy,. wife of Thomas O. Anderson. That, for the purpose of qualifying as such, he furnished a bond for four hundred and sixty-four dollars, the only known property at that time being a small piece of land near the town of Opelousas, valued in the inventory at one hundred and twenty-seven dollars. That this tract, together with another-small tract in Acadia parish, which seems to have been overlooked, when the inventory was made, was sold at public auction, the price-of both amounting to two hundred and fifty dollars. Mrs. Anderson-left as her heirs a number of children and grandchildren. Prior to her death she had advanced against the United States a claim for-stores and supplies taken by or furnished to the government during the late war, which, after her death, was prosecuted in the name of her administrator, the appointment of Dowling having doubtless been made for that very purpose. The claim referred to has been recently approved by the Court of Claims to the amount of. ten. thousand six hundred and ten dollars, and although Congress has as yet taken no action in the matter, there is every reason to suppose that ultimately an appropriation will be made to pay the same and that it will be paid either to the succession representative or to the heirs.
    Matters being in this situation, E. K. Anderson, one of the sons of the deceased, and the minor'children of another son, William F. An■derson, represented by their mother and tutrix, served a rule upon the ■administrator to show cause why he should not furnish bond with ■security for one fourth over and above the said sum of ten thousand six hundred and forty dollars, conditioned as the law directs, in view of this newly obtained asset of the succession, and why, in the event ■of his neglecting, failing or refusing to furnish said additional bond, he should not be destituted of his office as administrator and Henry L. Garland, senior, should not be appointed and qualified in his place. 'The administrator excepted to the rule: (1) That it was premature in this, that there has been as yet no appropriation made to pay the claim; (2) that it is premature for all the demands therein contained; (3) that the only party in the rule is Mrs. Virginia Garland, who claims but one-fifth of the succession, the other four heirs objecting to said increase of bond, and she consequently has no right to ask a bond on the whole estate; (4) that the court can at the present only pass ■on the application for increase of bond, and can not, in anticipation of the failure to furnish a new bond for increased amount remove the present administrator, should he fail to comply; (5) that no one else can be appointed ex officio by the court; that no appointment can be made without previous publication required by law.
    Mrs. Virginia Garland subsequently intervened in the rule as administratrix of the succession of her first husband, William F. Anderson, making the same allegations and prayers in that capacity as she had previously made in her capacity as tutrix.
    This intervention was filed by reason of an exception taken to the application of the tutrix for an increase of bond on the ground that the succession of William F. Anderson had been placed under administration, with his widow as the administratrix thereof, and the ■administratrix was alone authorized to require an increase of the ■bond. The intervention was never served, and its consideration by the court was opposed on that ground.
    In the judgment pronounced by the court this opposition was held to be well founded, and all evidence taken under it stricken out.

      The District Judge sustained the fourth and fifth exceptions of the administrator, but overruled the first three. He ordered that an inventory be taken of the claim awarded to the estate by the Court of Claims, and ordered James M. Dowling, the administrator, “ to give additional bond, as required by Art. 1048 of the Civil Code, within ten days from the date of the judgment, upon the basis of the inventory and appraisement of said claim ordered to be made.
    The administrator appealed.

      H. L. Garland and E. N. Oullom Attorneys for Plaintiff and Appellee.

      A. Voorhies and W. S. Frazee Attorneys for Defendant and Appellant.
   The opinion of the court was delivered by

Nicholls, C. J.

Article 1048 of the Civil Code says: “ The security to be given by every administrator thus named shall be one-fourth beyond the estimated value of the movables and immovables, and of the credits comprised in the inventory, exclusive of the bad debts. By bad debts are understood those which have been prescribed against and those debts due by bankrupts who have surrendered no property to be divided among their creditors.”

It is not pretended that this claim has been prescribed, or that the United States has gone into bankruptcy, and it certainly must be classed as a “ credit.” Art. 1048, C. C., is intended to safeguard and protect all partners in interest against misconduct on the part of succession representatives, and to insure the faithful administration and proper application of everything of value which passes or is liable to pass through their hands, and it has to be construed liberally in aid of that purpose. We think this claim has reached a point at which it may be fairly presumed that within a short period the government will provide for its payment, and that the amount paid will pass into the hands of the administrator in office when the period for that payment arrives. The heirs have the right to anticipate the happening of that event, and, in view of the law’s necessary delays in removing one administrator and replacing him by another, if such necessity should arise, to make certain that when the payment is made the administrator then in position shall have fully guaranteed the fidelity of his gestión. .

We see no good reason why the administrator should not give the security now. Whether it be given now or later, the responsibility of the sureties will not be advanced to a date prior to that of legal settlement, nor will it be a dollar less in one case than in the other.

We see no necessity for the continued existence of the administration of this succession except for the collection of this very asset. There seems to be no property in his hands and no one could be injured by the present exaction of a new bond, whilst on the other hand the rights of all parties will be protected beyond all possible contingencies. If the administrator be unwilling to give the bond, it will be very easy for him to resign and permit some one to qualify who will give it. No one could possibly be prejudiced by this course and we think the heirs entitled to have it followed.

It is argued that, granting that additional security can be demanded, the tutrix of these children, who represent only one of five branches of heirs of Mrs. Anderson, would be only entitled to exact a new bond to cover one-fifth of the government claim, and that counsel of the tutrix has admitted a willingness that this should be done. We presume that counsel meant that the tutrix would be willing if the minors could be legally secured by such a bond, but it is evident they would not. In the first place, though the value of the assets of the succession has been brought to our notice, we are ignorant as to who the creditors may be or to what amount they may have claims. Again, the court would not be authorized to vary the form in which it should be given nor the effect of the same. A bond given for one-fifth of the claim, made in legal' form, would necessarily enure to the benefit of all parties in interest and could not possibly be limited to the protection of the minors alone. The latter, therefore, would not receive from such a bond the security which this expressed willingness to receive must be held to have contemplated. The other heirs have done nothing which would estop them from claiming the benefit of any bond which may be given, though they might not themselves have asked for it. We think the judgment of the court appealed from is correct and it is hereby affirmed.

Rehearing refused.


author: Nicholls, O. J.

text:
    No. 1475.
    American National Bank vs. Viterbo & Bros.
    'Two acts of sales declares simulated and fraudulent, in view of the testimony as to the relations of parties, the small means of the purchasers relatively to the value of the things purchased, the simultaneous passing by the vendors of a series of acts by which they transferred all of their property to third persons, the suddenness of the propositions to sell, the celerity with which terms of sale were fixed and sales made, the active interest in the affairs of the vendees manifested by the vendors after the sales, and the correspondence of after occurring events with prior announced intentions by the vendors.
    APPEAL from the Seventeenth Judicial District Court, Parish of Calcasieu. Fournet, J.

    The present suit was instituted against the commercial firm of L. Viterbo & Bros., doing business in Calcasieu parish, upon their promissory note for five thousand dollars, dated November 2, 1893, payable to the order of John A. Hubbard, endorsed by Hubbard in blank and discounted by the plaintiff. With the main demand was coupled a prayer for a writ of attachment of defendants’ property, the application for which was based upon ¿negations that plaintiffs verily believed that defendants were about leaving the State permanently without there being a possibility, in the ordinary course of ordinary proceedings, of obtaining or executing judgment against them previous to departure, or that they have left the State permanently, or that they concealed themselves to avoid being cited or forced to answer in this suit, or that they have mortgaged, assigned or disposed of, or are about to mortgage, assign or dispose of their property, rights or credits with intent to defraud their creditors, or to give an unfair preference to some of them, or they have converted or are about to convert their property into money or evidences of debt with intent to place it beyond the reach of their creditors.
    The order was granted, and acting under it the sheriff seized a stock of goods in a store in the town of Jennings: certain mules, horses, agricultural implements and seed rice on a farm which had been leased and cultivated by defendants. The merchandise attached was appraised at three thousand two hundred and sixty-two dollars, and the farming implements, mules, etc., at six thousand four hundred and seventy-eight dollars. The writ was executed on February 3, 1894. On February 19, U. R. Gassin and W. D. Reeves intervened in the suit, the former claiming ownership by purchase from defendants of the stock of goods, and the latter of the property seized upon the farm, also by purchase from defendants. Defendants moved to dissolve the attachment on various grounds. The motion was overruled and the defendants answered, praying for trial by jury, and the prayer being granted the issues raised in the ease were subsequently so tried. The property claimed by intervention was delivered to the claimants on forthcoming bonds.
    Plaintiffs answered the interventions, charging simulation and fraud in the alleged purchases of the property. On the trial the jury rendered a verdict in favor of the plaintiffs against the defendants and in favor of the plaintiffs against the intervenor Gassin, but in favor of the intervenor Reeves against the plaintiffs. The plaintiffs appealed from the judgment in favor of Reeves. Gassin appealed from the judgment against him on his intervention. The defendants did not appeal.

      A. P. Pujol and W. B. Spencer Attorneys for Plaintiff, Appellant.

      Moise & Gahn and W- F. Schwing Attorneys for Intervenors, Gas-sin, Appellant, and Reeves, Appellee.
   The opinion of the court was delivered by

Nicholls, O. J.

The law governing the case is simple, and the attention and efforts of counsel of the different parties have been principally directed to the facts.

Viterbo & Bros., the defendants, were largely engaged in the rice business — partly as planters, partly as purchasers, and partly in connection with the house of John A. Hubbard, a large rice dealer in the city of New Orleans. Their relations with Hubbard were such that financial ruin to him meant ruin to them. Their close intercourse with this firm brought them to a knowledge in advance of the general public that it was on the eve of failure, and they at at once set to work to prepare themselves against the coming storm. They accordingly, by a series of transactions closely following each other in date, and just prior to the announced failure of Hubbard which followed, transferred all their property to different parties under acts purporting to be acts of sale. The transferees were all intimate friends of, and one of them a connection, by marriage, with the vendors. Gassin had been the overseer of the Viterbos for several years, and Reeves was the father-in-law of one of the partners. Both of these vendees claim to have been utterly ignorant and unsuspicious of any good reason why the defendants, who, according to the theory of the cases of the two intervenors, were in well-to-do, prosperous circumstances, should so suddenly and in the course of so short a time dispose of paying investments and valuable properties; and both seem to have come to terms of sale with a celerity not usual to men with the small means, which the testimony indicates them to have had, and with a confidence as to the precise objects bought existing at the moment of the sales, and the value of the same, rarely found in ordinary business transactions.

In the brief of the intervenors it is said, “While it is clear that Viterbo &Bros. were perpetrating a legal fraud upon their creditors, still their intent, purpose, motive, and the fraudulent act are not binding upon either Gassin or Reeves, unless they were cognizant of or parties to it.” We think the evidence in the case brings it, as against Gassia and Reeves, within this stated requirement. We are satisfied those parties were aware of what the defendants were attempting to do, and gave them their aid and assistance to effect that purpose. We are of the opinion that the two acts of sale are pure simulations.

Leon Viterbo announced to one of the witnesses several days before the acts were passed that he intended to do precisely what was done afterward, naming to him the very parties, but expressing some want of confidence as to whether Reeves was reliable and could be trusted.

The connection of Gassin with the pretended sale of the rice to him by Viterbo & Bros., which was disposed of by Ernst & Co., and his ignorance of what transpired subsequently to his pretended purchases, with respect to the things purchased, unmistakably show the want of reality in this whole transaction with him, and his thorough knowlege of the whole situation of the parties. We think it would serve no good purpose to go into details of testimony to show upon what our conclusions in this case rest. The relations of the parties to each other; the small means of the purchasers relatively to the value of the things purchased; the suddenness of the proposition to sell and the celerity with which terms were fixed and sales made; the continued active interest by the vendors in the affairs of the vendees after the sales, and the correspondence of after occurring events with prior announced facts, are salient features of the case. We may say, also, that we are satisfied that Reeves was perfectly well informed as to the pretended sale made to Gassin simultaneously with that made to himself, and that it is impossible for him to have been in good faith in the premises, and we have no idea he would have been willing to have really risked a dollar of his own under the circumstances.

The jury drew a correct conclusion in respect to the purported sale to Gassin, but it erred in sustaining the sale to Reeves. We do not see on what ground they drew a distinction between the two cases.

Por the reasons herein assigned it is hereby ordered, adjudged and decreed that the verdict of the jury, in so far as it was in favor of the intervenor, W. D. Reeves, be and the same is hereby set aside, as is that portion of the judgment based thereon, and it is now ordered that the demand in intervention of W. D. Reeves be and the same is hereby dismissed and rejected at his costs.

It is further ordered, adjudged and decreed that the judgment of the lower court dissolving the attachment sued on and executed against the property claimed by W. D. Reeves in the said intervention be and the same is hereby annulled, avoided and reversed, and the said attachment reinstated upon said property, and the said property be sold in due course of law to satisfy the judgment.

It is further'ordered that the judgment appealed from be otherwise affirmed, costs of appeal to be borne by W. D. Reeves and U. R. Gassin.


author: Watkins, J.

text:
    No. 1467.
    L. Gaston Dauterive vs. Opera House Association et als.
    If, in answer to a petitory action, tlie defendant urges pleas of estoppel, and therein incorporates an exception of the want of proper parties defendant, which pleas and exceptions are repeated by warrantors when cited, it is better practice to refer same to the merits to stand as parts of the answers of the warrantors when filed. And this is particularly true when plaintiff, in his petition, has denied the existence of the facts on which the pleas of estoppel are founded, necessitating tlie administration of proof.

      2. In a petitory action it is competent ior the plaintiff to set up the absolute nullity of any antecedent judicial proceedings, with the view of disembarrassing the title under which he asserts ownership of the property, without formally making the participants therein parties to the suit.
    A clear distinction is taken between a petitory and revocatory action in this respect.
    APPEAL from the Nineteenth Judicial District Court, Parish of Iberia. Voorhies, J.

      L. O. Hacker and Foster <& Broussard Attorneys for Plaintiff and Appellant.

      Walter J. Burke and Weeks & Weeks Attorneys for Defendants and Warrantors, Appellees.
   The opinion of the court was delivered by

Watkins, J.

The averment of plaintiff’s petition is, that he is the owner of an undivided one-third interest in a certain described lot of ground, with the improvements thereon, situated in the city of New Iberia, having a front of sixty-four (64) feet on the southwest side of Main street, with a .depth of about one hundred and seventy (170) feet, bounded northwest or above by lot of Mrs. Widow Johnson, northeast by Main street, and southwest by property of the estate of William Robertson, deceased, or assigns.

That he acquired the ownership of said property by a donation inter vivos from Mrs. Joseph Dubuclet, plaintiff’s great-grandmother, his brother and sister owning jointly with him one-third each, and petitioner specially disavows any title or claim of ownership thereof, as having been derived by inheritance from his father or mother, or from any other person whomsoever, same having been illegally disposed of by his father, B. D. Dauterive.

That he has never been divested of his right, title and interest, as above set forth, in the aforesaid property; and “that all proceedings by which it is claimed and pretended he has been (divested) are absolutely null and void and in no manner or sense binding on him.”

That at the time it is claimed he was divested of ownership and possession of said property, by reason .of certain illegal acts, he was a minor of tender years, and that the attempt to deprive him. of Ms property, as well as the manner of doing same, were absolutely null and void for the following reasons, viz.:

1. Because the court in which all the proceedings were had was without jurisdiction ratione materias et personas.

2. Because there never was legally appointed to him a tutor and under-tutor, and no law authorizing their appointment to be made while his father and mother were living.

3. Because the family meeting.which advised the sale of the property in which he has an interest was null and void ab initio.

4. That the appointment of an under-tutor ad hoc who concurred in the recommendation of the family meeting was absolutely null and void, and his concurrence in no manner binding on his rights of property.

5. Because the family meeting in their proces verbal assign no reasons or necessity for the sale.

6. Because the application for the sale, and the order thereon based, was an attempt to defraud petitioner and deprive him of his property.

7. Because no party in interest demanded a partition.

8. Because the proceedings of the aforesaid family meeting were never legally homologated, the court being without jurisdiction to homologate same.

9. Because your petitioner being, at the time, a minor, was unrepresented in the proceedings purporting to divest him of his property.

10. Because the proceedings purporting to partition this property, in which he had an interest, were inaugurated under a law that had no application to the subject matter thereof.

Then follows this general sweeping allegation, viz.:

Petitioner alleges that the orders of court, and all proceedings had in the premises, looking to the consummation of the same, by which it was attempted to deprive him of his property, are absolutely null and void, because your petitioner was not represented in any of them. '* * * Because there was no necessity for the sale. * * * That the attempt to divest his title was unwarranted and illegal, and the result of a fraudulent conspiracy; and that he received no portion of the proceeds of sale — if any were paid.”

He further avers that all the nullities and defects above set forth are fundamental, absolute, radical nullities, and that he could not, by reason thereof, have been, nor was be divested of his title and ownership therein.”

It is further averred that the aforesaid property is wrongfully and illegally in the possession of defendant as owner; and that its possession is and was ab initio in bad faith, entitling petitioner to rents and revenues at the rate of five dollars per month from--18Y9, until the final determination of this suit.

His prayer is for citation and judgment in conformity to the foregoing allegations.

In limine the defendant excepted to the want of proper parties defendant, and prayed the suit be dismissed; and, reserving the benefit of its exceptions, it answers, averring that it is the legal and bona fide owner of the property by title translative of property, and for a valuable and adequate consideration — setting forth the causes and circumstances of sale, and, amongst others, that the price was duly paid, and enured to the benefit of the plaintiff, who has, in this, and various other ways, ratified the same.'

The plea of a want of a previous tender is urged. “Defendant avers that the plaintiff is estopped by word, deed, act and record from claiming the property in question in this suit, all of which estoppels defendant specially sets up in defence.”

He also pleads the prescription of one, four, five and ten years.

He further pleads and avers that, if any of the proceedings, judgments and transfers through which it claims be illegal or defective, and null, that any and all such illegalities, or nullities, are only relative, and can not be collaterally attacked, or brought into question, except by a direct action.

The defendant then alleged that it derived title from an association of persons, firms and corporations, composing the social person styled O. W. Georges & Oo. — enumerating them individually and severally — by a written and duly recorded deed of sale, in 1888, which contained a stipulation of full warranty.

It shows that each and every one of the members of said association are the warrantors of its title to said property, and that it desires to call each of said persons in warranty, to defend this suit; and that it is entitled to have against each of said warrantors the same judgment that may be rendered against it, as defendant in this suit.

There is then a demand in reconvention, the specifications of which are, in substance, that there is now situated on said premises an opera-house building, and all the appurtenances thereto belonging: such as fencing, outbuildings, walks, pipes, gas-fixtures, and other valuable and permanent improvements. That said building contains, in addition to the opera house proper, two stores and a hall, and that the cost of material and price of workmanship therein was thirty thousand dollars — same having been erected during the years 1887-88.

It is also averred that an annual expenditure of two hundred and fifty dollars is necessary for current repairs, and that the buildings have been kept regularly insured at a large cost annually, say three hundred and fifty dollars per annum.

That it has also been put to a large expense annually for taxes, say one hundred and fifty dollars per annum.

The averment is then made that in the event a judgment is rendered in plaintiff’s favor, it is entitled to be reimbursed all of said values and expenditures; and judgment is prayed in reconvention for same, and defendant to be decreed entitled to retain possession until said reimbursement is made.

The prayer, in other respects, is in conformity to the foregoing averments of the defendant’s answer.

Various parties who were called and cited in warranty made appearance for the sole purpose of excepting to the plaintiff’s action, and, in various forms of phraseology, excepted, that the petition disclosed no cause of action; that they urged the various exceptions that are set out in defendant’s answer; that the calls in warranty disclosed neither cause nor right of action, and that the plaintiff s estopped from asserting title to the property by deed, word and record.

Some of them specify a particular act as an estoppel and say ‘‘ that, plaintiff is more particularly estopped by the allegations and averments of a certain act passed before P. Laurent Renoudet on the 24th of March, 1890, wherein petitioner declares that the claims now set forth have long been settled between himself and his father, B. D. Dauterive, and to which act special reference is made for more particular specifications.

And also by his appearance and declarations in acts of sale made by his father, B. D. Dauterive, and Enzelina Landry, on the 17th of June, 1890; and to Marie Estelle Rebbick, on the 28th of December, 1889.”

Others specify plaintiff’s acts of ratification and acquiescence in the-sale of the property to be his acceptance of the proceeds of sale and his authorization for the cancellation of a mortgage resting thereon in his favor and that of his co-owners.

On these cumulated, diverse and possibly conflicting exceptions, the cause went to trial, and from a judgment sustaining some of them, and dismissing his suit, the plaintiff has appealed.

It is manifest that this is a petitory action of ordinary form wherein the absolute nullity of various interfering judicial proceedings are averred, in order to brush them aside and remove them from further consideration.'

As ad'juvatory to this action petitioner alleges that at the time these judicial proceedings were inaugurated and consummated he was a minor and unrepresented. That he has, at no time, nor in any manner, recognized or acquiesced in said proceedings and sale; and that he did not receive any portion of the proceeds of sale. Butr perhaps, the most striking and significant allegations of the petition are (1) that plaintiff acquired title by donation inter vivos from Mrs, Dubuclet, his great-grandmother; (2) that he specially disavows any title or claim of ownership of the property “ as having been derived by inheritance from his father or mother, cr any other person whomsoever.”

It would appear that this averment had been made, ex industria, with a view of meeting and forestalling just the exceptions as have been interposed.

It is, further, of importance to consider the fact that the defendant — with whom alone the plaintiff deals in this court — is in court, on answer containing the broadest and most explicit response to the demands of the petition, and therein has incorporated the substance of all the various exceptions that were, subsequently, tendered by warrantors — the specific averment on the subject being “ that the plaintiff is estopped by word, deed, act and record from claiming the property in question in this suit.”

In this situation the question of difficulty presented to the judicial mind is the method by which these questions of estoppel can be.segregated from the body of the case, already at issue by answer of the defendant, at the instance of warrantors subsequently appearing therein. Particularly in view of the fact that the plaintiff had previously disavowed, most specifically, all the acts and conduct on which the warrantors’ pleas of estoppel are predicated.

An examination of the “reasons for judgment ” which are assigned by the judge a quo clearly illustrates this difficulty; because they trenched largely on the merits of the cause — and necessarily so — in determining the exceptions.

We are clearly of the opinion that all these pleas of estoppel involve matters appertaining to the merits of the cause, and with which same are so commingled that a fair and intelligent decision of these can not be reached otherwise than on a trial of the merits, to which they ought to be referred, to stand as parts of the answer of warrantors.

But this ruling does not apply to the exception to the want of proper parties defendant.

In determining this exception it must be observed that plaintiff was particularly careful to state that all of the badges of nullity were absolute in character; while the defendant, joining issue on that question, affirmed that the alleged nullities we re merely relative, and, consequently, the proceedings could not be collaterally attacked.

It is evident that in determining whether proper parties have been made, the allegations of the petition must be considered from the plaintiff’s standpoint. If on the trial the fact is ascertained that the alleged nullities in the judicial proceedings adverted to are not absolute but relative, they will not avail the plaintiff, and he may, on that account, be driven to his revocatory action. But having pursued the petitory form of action, he was entitled to avail himself of any absolute nullity that he could point out as a means of disencumbering hisTitle. A fair illustration of this practice is given in the case of Gravenburg vs. Bradford, 44 An. 400, and in discussing that question in that case we said:

“We take it to be clear and undoubted that this is a petitory action of ordinary form, in which it became necessary for the plaintiffs to set up the absolute nullity of the probate sale to Wedge of the Boisderé land claim in 1892, and the consequences flowing therefrom, in order to remove an apparent obstacle to their recovery of the property from Bradford, as Wedge’s assignee of the land scrip, which he gave in exchange for patents.

“ This is not, in any sense, an action of nullity or rescission, seeking the help of a judicial decree revoking a judicial sale. Such sale and proceedings are only collaterally drawn in question, and plaintiff’s full reliance is placed upon the Boisderé succession records, to exhibit and prove the want of jurisdiction of the Probate Oourt of Lafayette parish to grant the order of sale and the consequent nullity of Wedge’s title to the land claim.” Belard vs. Gebelin, 46 An. 326; Bledsoe vs. Erwin, 33 An. 618; Walworth vs. Stevenson, 24 An 253.

So in the instant case the plaintiff’s reliance is placed on the absolute nullities he has suggested in the judicial proceedings, which are collaterally drawn in question to show that his property was not alienated according to the forms prescribed by law.

The case relied upon by the defendant’s counsel — Heirs of Burney vs. Ludeling, 41 An. 627 — is not in point. That was a revocatory action, coupled with an action of revendication, and had for object the revocation and annulment of divers outstanding mesne conveyances, which intervened between the plaintiff’s and defendant’s title; and, in order to reach and recover the property, it was deemed necessary that same should be set aside. And, in order that this result be obtained, ail the parties to the intervening titles were deemed and decided to be necessary parties to the suit. And such was our decision in that case.

We are of opinion that all necessary parties are before the court, and this exception must be overruled.

We observe that the District Judge, in passing on the exceptions, rendered judgment rejecting finally (plaintiff’s) demand and claim, and dismissing (his) suit;” that was error. The judgment must be reversed.

It is therefore ordered and decreed that the judgment appealed from be annulled and reversed; and it is further ordered and decreed that the exception as to want of proper parties be rejected, and that all of the pleas of estoppel be referred to the merits to stand as parts of the answers of warrantors when filed, and that the cause be reinstated and remanded for trial on the merits according to law and the views herein expressed, defendants and appellees to pay cost of appeal, those of the lower court to await final judgment therein.

Rehearing refused.

Mr. Justice Breaux, being a party to the record, is recused.


author: Watkins, J. Watkins, J.

text:
    No. 1463.
    Cleophas Comeau vs. Gottlieb Miller, Mary J. Fisher, Third Opponent.
    1. An order oí appeal may be taken at any time within one year, to be computed from the day on which final judgment is rendered, but the appellant muslfile the transcript in the court of appeal on the return day of tlie appeal.

      2. The surviving widow in necessitous circumstances may urge her preference claim for one thousand dollars by way of third opposition to executory proceedings by one of her deceased husband’s special mortgage creditors — the death having supervened pending the sale of the property.
    8. The court having granted an order directing the sheriff to withhold from the proceeds of sale a sufficient amount to cover opponent’s demand, her privilege may be executed against same after the sale is made — her privilege being transferredito the proceeds of sale.
    4. A mere paper assignment by third opponent of her homestead claim to her husband’s seizing creditor, without any consideration, is a nullity, and can not found any rights in his favor, and can not exclude the assertion of her rights afterward.
    5. The waiver or renunciation o£ a homestead claim, it being a provision of law in favor of the destitute, is against public policy.
    APPEAL from the Eleventh Judicial District Court, Parish of Acadia. Ohappuis, J. ad hoc.

    if. L. Garland for the Succession of Comeau, Appellant.

      Bdw. L. Wells for Third Opponent, Appellee.
   On Motion to Dismiss Appeal.

The opinion of the court was delivered by

Watkins, J.

The ground of appellee’s motion is, that appellant has been guilty of laches in bringing up the appeal, not having filed the transcript of appeal in this court within one year next succeeding the signing of the judgment appealed from. Hence her averment is that the plaintiff’s right of appeal lapsed. The record shows that the judgment was signed on the 16fch of June, 1893, and that the transcript was filed in this court on the 3d of July, 1894 — more than twelve months intervening between those two dates.

But in this case the judgment of the District Court did not become final until the date of the adjournment of the term on the 26th of June, 1893, and the appeal was taken by petition and citation, the judge’s order having been granted on the 3d of July, 1893, making the appeal returnable to this court on the first Monday of July, 1894, and the service of the citation of appeal having been made on the 4th day of May, 1894. It was pérmissible for the court to fix the return day as he did (O. P. 583) ; and the order of appeal having been granted within one year, “ computed from the day on which final judgment was rendered ” (O. P. 593), it was timely.

These rules do not, however, appertain to the mode or time of lodging the transcript of appeal in this court, for the rule of law is that “ the appellant must return the said petition of appeal and the transcript of the proceedings into the court of appeal on the return day thereof.” C. P. 587.

The appellant has complied with the law in bringing up and filing the transcript. There is, therefore, no merit in the defendants’ motion and it is denied.

On the Merits.

Plaintiff’s counsel state her claim thus:

Cleophas Oomeau, the mortgage creditor of Gottlieb Miller, instituted executory proceedings against the property mortgaged, and during the pendency of those proceedings and before sale the debtor died. Thereafter the widow of deceased was made a party thereto, and the sale proceedings continued against her.

On the day of sale the widow filed a third opposition claiming a privilege superior in rank to that of the seizing creditor, securing her claim for one thousand dollars as the surviving widow of the deceased, in necessitous circumstances and entitled to be paid from the proceeds of sale, in preference to the seizing creditor.

To this third opposition several exceptions were filed on the part of Eliza Roy, the surviving widow of Oomeau — who had in the meanwhile departed this life — (1) no cause of action against the proceeds of sale in the sheriff’s hands; (2) that third opponent has disposed of her rights, as widow in necessitous circumstances, by a formal written act, of date December 23, 1891, and same is a complete bar to her recovery thereof; (3) that third opponent has, since the death of her husband, appropriated and disposed of the effects of his estate, and same constitutes a further bar to the assertion of her claim.

Contemporaneously therewith third opponent entered a special plea to the effect that she was altogether ignorant of ..any such document; but averring that if any such paper existed as imported a relinquishment of her homestead that same was executed and signed by her through error of fact and law, and that same was obtained by fraudulent representations of Oomeau to the effect that it was for her own benefit, she being at the time completely under his influence and control; that she never received any consideration therefor, and that same is null and void; and she prays to be relieved from its effects, as a fraud practised upon her.

(a) The record shows that on the filing of the third opposition an order was made directing the sheriff to retain in his hands, out of the proceeds of the sale of the property mortgaged, the sum of one thousand two hundred dollars to await the further order of the court in the premises. The seizure and sale against which this opposition was directed was based on an ordinary conventional mortgage, securing the payment of a promissory note of Miller for the sum of seven hundred dollars, dated June 12, 1885, and due on demand; and a similar note for one thousand one hundred and fifty dollars and seven cents dated October 5, 1839, and due at one day after date. But the act of mortgage contained the stipulation of no vendor’s lien.

Under those executory proceedings Oomeau became the adjudicatee of the mortgaged property on the 19th of December, 1891, and, under a written agreement between him and third opponent, he retained in his hands the one thousand two hundred dollars specified in the order of court, instead of making a deposit with the sheriff.

On the 23d of December, 1891 — only a few days after his purchase at sheriff’s sale — Oomeau conveys the same property to third opponent and Miss Mary Fisher — “ to each an undivided one-half ” — -on the following terms and considerations, to-wit:

“Mrs. Miller to pay for her undivided one-half interest in said property the sum of one thousand five hundred and sixty dollars, as follows, viz.: The sum of five hundred and sixty dollars, payable in twelve months from date, and one thousand dollars payable in one, two and three years from date, with eight per cent, interest from maturity, for which amounts notes are given as hereinafter set forth, payable to the vendor’s order and secured as hereinafter provided. Miss Fisher is to pay for her share of the property the sum of one thousand dollars, payable in one, two and three years,” for which she was to execute her notes secured by mortgage.

From the foregoing it is quite clear that third opponent’s claim was good in law, on the face of the papers, because the act of mortgage which was the subject of the executory proceedings contained no vendor’s lien, and her claim arose at the death of her husband pending the sale. The order of court directing the retention of the sum of twelve hundred dollars preserved her rights, and it was perfectly competent for the third opponent to consent for the mortgage creditor to retain the fund in his hands pending her opposition.

Such an agreement was recently recognized and enforced in the case of Bourgeois vs. Octave Jacobs, 45 An. 1310.

(b) The agreement of December 23, 1891, which is relied upon as showing that the third opponent parted with all of her rights as widow in necessitous circumstances, is unique and exceptional. It contains the following significant recital, viz.:

“Whereas, in executory proceedings of C. Oomeau vs. Gottlieb Miller, her deceased husband, she has filed a third opposition claiming the widow’s homestead of one thousand dollars in preference to all creditors; * * * and whereas, said Oomeau has sold to her the undivided one-half of the property seized and sold in said proceedings, for the price and sum of one thousand five hundred and sixty dollars, payable as above recited; and whereas, the price, terms and conditions aforesaid are a great advantage to her, in consideration thereof she hereby agrees and consents to assign, and by these presents does transfer and assign to said Oomeaux any and all amounts of money which she may be adjudged to be entitled to in virtue of her said third opposition.”

Bearing in mind the fact that Oomeau conveyed to Miss Mary Fisher one-half interest in the land for the price of one thousand dollars, and to third opponent the other half interest for the sum of one thousand five hundred and sixty dollars, it is difficult to appreciate “the great advantage” for which she agreed, on the self-same day, to assign to Oomeau her right to the one thousand dollars actually in his hands. Or, in other words, the third opponent having already paid, in notes, five hundred and sixty dollars more than her sister, for exactly the same quantity of land, she was so much favored by the operation that she voluntarily consented to relinquish one thousand dollars more. At that rate, the third opponent actually paid two thousand five hundred and sixty dollars, as against Miss Fisher’s payment of one thousand dollars. And in order to demonstrate that the one thousand five hundred and sixty dollars was a real and actual consideration for the land, the record attests that scarcely had one twelvemonth rolled by when the executrix of Comeau’s estate obtained an order of seizure and sale on the two notes first maturing and sent'her half interest to sale. We are thus enabled to see and appreciate “the great advantage” Mrs. Miller enjoyed in this transaction.

It is perfectly apparent that she did not receive one dollar in the way of consideration for the valuable right she apparently assigned to Comeau.

In treating of this question the District Judge says:

“ The evidence satisfies the court that the plaintiff” — i. e , the third opponent — “ although a woman of ordinary intelligence, had unlimited confidence in Oomeau, who possessed over her an influence which was calculated to cause her to abandon any and all rights which she might have at his simple bidding, or upon his representation that such a course was the best. The plaintiff swears that for many years neither she nor her husband conducted any business transaction or venture without the advice and counsel of Oomeau. That prior to the sale of Pointe Aux Loupe Springs property, and since, Oomeau always promised her that he would see to it that her claim for one thousand dollars, as widow in necessitous circumstances, should be secured to her, and that she relied, implicitly, upon his statements. That, at first, she had no attorney, because Comeau told her that she did not need one — that he and his attorneys would attend to the matter for her.
“ The court is also satisfied that the plaintiff never appreciated the effect of the act of renunciation of December, 1893, and that she signed the same upon the representations and promises made to her by Oomeau.
* * s;« * * *
“ But admitting that this renunciation was executed by Mrs. Miller, of her own free will and accord, and that she thoroughly understood its import, it is evident that it was made without consideration. She swears absolutely that she never received anything for her signature.”

For these reasons, amongst others, the District Judge overruled this exception, and our examination of the evidence has led us to the same conclusion.

.Nor is this the true theory of the ease in point of fact, but it is equally true in point of law; for this court recently decided that “the widow’s and minor’s portion, under Act March IT, 1852, is a provision for the destitute and can not be waived in favor of a creditor,” etc. Succession of Waddell, 44 An. 361.

Such a waiver or renunciation on the part of a destitute widow can not be readily presumed, and it is manifestly against public policy.

(c) With regard to the third exception we deem it sufficient to say that if the third opponent has appropriated and used any portion of the effects of the community since her husband’s death, that does not have the effect of an estoppel against her entire claim, but the value of such effects will be ascertained and credited against her on settlement.

All of the defendant’s exceptions having been overruled, he filed an answer pleading a general denial, accompanied by the following special defences, viz.:

1. That as Comeau is a creditor possessing the security of a vendor’s lien, he is entitled to be paid out of the proceeds of the sale of the property by preference.

2. That third opponent’s indebtedness to the estate of Miller amounts to one thousand five hundred and sixty dollars for the price of land sold to her, and she should be made to pay that amount before receiving any part of the one thousand dollars held in reserve under the order of the court.

As has already been shown neither of these defences are good, first, because the mortgage under which the first executory proceedings sent the land to sale contained no vendor’s lien, and the second was predicated on a conventional sale made to third opponent and Mrs. Fisher, long subsequent to the death of her husband and the acquisition of her right to a homestead.

And, in addition to this, the executrix of Comeau became the adjudicatee under the second seizure and sale, and the price yielded thereby was very nearly sufficient to discharge all the notes of the third opponent.

In summing up the evidence on the merits of the case the District Judge found that the “ evidence shows conclusively that at the time of the death of third opponent’s husband (she) was in necessitous circumstances, and that beyond the judgment obtained against her husband by Black for the recovery of the purchase price of furniture, which judgment was transferred to her by him, she had no property. Mrs. Miller swears that at the.time of her husband’s death the furniture sold by Black was worth forty-eight dollars, and that she has .been using same since her husband’s death. The court is of opinion that she should be charged with the value of it at the time of his death.

$ >}. * tfr * * ❖

“ It is also in proof that Mrs. Miller has collected, since the death of her husband, money due his estate amounting to fifty-four dollars and eighty-five cents * * * and consequently she should be charged with that amount also. The court therefore finds that the third opponent is entitled to receive from the succession of her husband the sum of eight hundred and ninety-seven dollars and fifteen cents, which, added to the total credits of one hundred and two dollars and eighty-five cents — the amount of her means at the time of her husband’s death — make up the total of one thousand dollars,”, etc., to which allowance she is entitled to receive as widow in necessitous circumstances.

We have examined the record and scanned the testimony of all the witnesses with great care, and feel satisfied that the opinion of the judge a quo is correct.

Judgment affirmed.

On Application for Rehearing.

Watkins, J.

On careful re-examination of the earnest application for rehearing, the views entertained in our original opinion are confirmed.

(a) While it is true that, in satisfaction of the two notes described in our opinion, Miller made a dation to Oomeau, and on the same date Oomeau conveyed to Miller, on terms of credit, retaining a vendor’s lien; and that it is true that said dation and sale were subsequently revoked at the suit of Adler, a creditor of Miller, the effect of which was that said dation and sale were unaffected as to other creditors of Miller; yet it is equally true that Oomeau acquiesced in the annulment of the dation and sale, and proceeded to foreclose his original mortgage, apparently on the theory that same had revived and become exigible again. In thus proceeding he evidently abandoned Miller’s dation to him in satisfaction of said notes as the consideration thereof, and his title thereunder, which was the foundation of his sale to Miller.

Certainly the two transactions could not and did coexist.

The dation, if maintained, settled the original notes and mortgage. If the sale of Oomeau to Miller, containing the vendor’s lien, is maintained, the original notes and mortgage have no existence. But if the original notes and mortgage still exist, and are enforceable, the dation and subsequent sale must have passed out of existence. But the estate of Oomeau, having obtained executory process on the original notes and mortgage, and sent the property to sale thereunder, and become the adjudicatee, is conclusively presumed to have abandoned the dation and sale thereunder to Miller.

While these executory proceedings were in progress — possibly on the very day of sale — Mrs. Miller set up her homestead privilege, ranking the Oomeau mortgage. In this emergency, cla'm is made under the dation of Miller to Comeau, and the sale on the same day from Comeau to Miller — the latter containing a vendor’s lien— notwithstanding the previous abandonment of it.

It is impossible to conceive in what way the vendor’s lien in the last act to Miller can be imported into the first act, on which tie seizure and sale opposed was predicated. To do this would be to give effect to the two series of notes of Miller, and enforce two special mortgages, of wholly different dates and tenor, under a single order of seizure, in which the latter is not mentioned; and in spite of the fact that Oomeau surrendered the first notes to Miller, as the consideration of the dation, and sold the property to Miller in consideration of the last ones.

It was on this theory that we did not treat this question in ■our original opinion, and considering that Adler’s claim against Miller was ranked by the homestead claim subsequently arisen, it was equally unnecessary that it should be discussed.

(b) We have noticed the argument of Oomeau’s counsel in respect to Mrs. Miller’s claim only bearing a general privilege. But that does not seem important, in view of the fact that its rank is superior to all others, except the vendor’s lien, and the expenses of selling the property. Under the circumstances of this case, we are of opinion that the widow in necessitous circumstances can not be turned around to another action, or to some other possible source, for satisfaction of her demands. It was clearly the right of Oomeau to have provoked an administration of the succession of Miller, and thus produced a eoneursus for the benefit of all concerned. This, Mrs. Miller could not have done effectually, because she could not have prevented the executory proceedings of Comeau, and would have been driven to an opposition at last in order to recover the proceeds of sale, just as she has done. Qui bono?

(o) We have also given due attention to the argument of Comean’scounsel, to the effect that the widow should have demanded payment of the heirs of the deceased. Under the evidence in the-record this would have been an idle ceremony, and totally unavailing. Miller died utterly insolvent,- and there is no proof that he left any heirs at his death. Certainly there-were none who have hazarded the consequences of-a simple and unconditional acceptance of his insolvent estate. Consequently there were no heirs on whom she could have called.

We are of opinion that the case has been correctly decided.

Rehearing refused.