author: Wyly, J. MoR&aN, J.

text:
    No. 5719.
    George S. Lacey vs. Rufus Waples and City of New Orleans.
    By section thirty-one oí the act No. 7 oí the extra session oí 1870, which constituted tne new charter of the city of Now Orleans, it is declared tnat the salary of the City Attorney shall be fixed by the Common Council at a sum not to exceed six thousand dollars per annum, and that he shall receive no extra compensation, nor shall any other attorney be appointed to assist him, unless by a vote of a majority of the Council.
    The proceeding to homologate the third drainage assessment, if instituted and eon- ■ ducted by plaintiff, was but the discharge of a duty devolving on him as Citv Attorney, because the law creating the office required him to represent the corporation “ in all proceedings and actions to which it was party.” There is noth- ■ 'ing in the record to show that " an extra fee was allowed by a vote of a majority ■ of the members of the Council,” or indeed that any vote was ever taken in regard to it.
    Plaintiff takes a fallacious position when contending that the act of 1861 in regard to the drainage districts, requiring, when the tabloau of assessment is homolo-gated, that the delinquent taxpayers shall be condemned in the additional sum of ten per cent for counsel fees and costs, entitles him to the remuneration claimed, notwithstanding the prohibitive feature of the city charter, because, as he alleges, the former is a special law, and is not repealed by the latter, which is ■ -agen rral law. The error lies in assuming that the charter of the city is a general law. Both acts are special statutes, and ,the latter is the law applicable to ’ the claim for extra compensation sot up by the plaintiff.
    Plftintiff’is estopped from denying that the ownership of the judgment in ques- ■ tion is in the city of New Orleans by the judicial admissioris, in the petition for the homologation of the tableau of assessment — which petition he filed, ■as he says, through his subordinate, Rufus waples, the Assistant City Attorney. In that petition on behalf of the city of New Orleans to homologate, the drainage assessment, it is alleged that the city was subrogated by law to the ' rights, powers, and facilities possessed by the commissioners of the several drainage districts, and judgment is prayed in favor of the petitioner in the ..capacity aforesaid.
    An attorney-at-law, in the face of his own judicial admissions in a suit which he brought for his client, can not bo permitted, when he comes to sue to be decreed a part owner of the judgment thus obtained, to allege that his former client had . no interest in the suit, and therefore has no interest in contesting with him in •regard to the title or ownership of said judgment.
    The exigencies of plaintiffs ease have forced him to the position of maintaining that New Orleans is really not the owner of the judgment in controversy, and therefore has no right to set up legal defenses against him; but, should this be true, he has no cause of action against New Orleans, and had no right to bring her into court.
    New Orleans is the real beneficiary in the drainage laws. She is the owner of the judgment against the delinquent taxpayers, and is the person entitled to enforce its collection. A party who has the exclusive right to merge a claim into a judgment, and after judgment to make the money on execution, must be regarded in law as the owner of said judgment.
    The Mississippi and Mexican Gulf Ship Canal Company have no direct interest in the judgment the title to which is the subject of this controversy. If every cent due in consequence of said judgmont should at once be collected, or at once be lost, the Mississippi and Mexican Gulf Ship Canal Company would neither be enriched nor impoverished.
    The Mississippi and Mexican Gulf Ship Canal Company have, however, an indirect interest in the judgment. They arc the contractors to do the work of draining, the city under the supervision of the city surveyors. They have an interest in the solvency of the party for whom they are employed to work, and as the work progresses from month to month they may require payment out of the funds set apart for the purpose.
    The fact that the State mado the contract in behalf of the city affects the interest of New Orleans in the beneficial results contemplated by said act no more than if the contract had been made by the city herself, and the fact that, under this contract, New Orleans is required to apply the procoeds of the judgment, when collected, to the discharge of the debt for keoping-up the drainage of the city, does not impair kor ownership of the judgment against the delinquents any more than the obligation incurred by the city to apply any and evory other resource to the purpose for which it was appropriated.
    The above-mentioned prohibitive clause of the charter of the city of New Orleans defeats also the pretensions of Waples, the intervenor. He was not employed by a vote of a majority of the City Council, and therefore can not compel the city to allow him a fee in the case.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      -Frank N. Butler, for plaintiff and appellant.

      Rufus Waples, in propria persona, defendant and appellee.

      Cotton & Levy and Fernandez & Kruttschnitt, on behalf of Alfred Phillips, of counsel for the city of New Orleans, defendant and appellant.
   Wyly, J.

On the seventeenth of March, 1872, the city of New Orleans, by Rufus Waples, Assistant City Attorney, instituted proceedings in the Eighth District Court to homologate the tableau of assessment for the Third Drainage District, pursuant to the acts of 1858, 1861, and 1871 in regard to the drainage of New Orleans.

The petition alleged that the city of New Orleans was “subrogated by law to the rights, powers, and facilities possessed by the commissioners of the several drainage districts;” that a copy of the plan describing' the several pieces of property and a copy of the tableau of assessment were duly filed on the second of March, 1872, in the office of the Recorder of Mortgages for the parish of Orleans, and that proper notices to the delinquent taxpayers had been duly published in the official journal as required by law. Upon these allegations the petitioner prayed for judgment homologating the assessment and subjecting the property described therein “to a first-mortgage lien and privilege in favor of your petitioner in the capacity aforesaid, for such amounts as may be assessed on it for its portion of the whole costs of drainage of said section, in accordance with the provisions of the statute by which said privilege lien and mortgage were created.”

No opposition was filed.

On the eighth of November, 1872, on motion of Rufus Waples, the tableau of assessment was homologated and judgment was rendered “ against the property described as assessed in said roll, and also against the owner or owners of each property respectively, with ten per cent,Mil additional to the amount assessed', for counsel fees and costs as provided by law.” * * *

The total amount of this judgment was $627,598 94, and also the additional sum of ten per cent thereon.

George S. Lacey, the City Attorney at the time the above judgment was rendered, now sues Rufus Waples, the Assistant City Attorney, and they eit of New Orleans, to be decreed the owner of this ton per cent on $627,598 94, that is, to bo declared the owner of this part of said judg-mont; ho also prays judgment against the city for whatever part of said ton per centum it has heretofore collected, and that the city be decreed to pay over to him the balance thereof as fast as collected.

Rufus Waples and the city of New Orleans filed separate answers. And Waples subsequently intervened and claimed that he was the attorney of record and was entitled, if any one, to the ten per centum for counsel fees and costs; that as Lacey rendered no services in causing the homologation of the tableau of assessment, he is entitled to no compensation on account thereof; that he, the intorvenor, was Assistant City Attorney when the petition was filed, but ho ceased to hold said office when- the judgment of homologation was subsequently entered up on his motion, and that he abandons to the city three-fourths of the ten per cent counsel fees stated in the judgment, and only claims one-fourth thereof, the same being a reasonable and fair compensation for his professional services rendered in said case subsequent to the severance of his connection with the city as Assistant City Attorney.

The court gave judgment rejecting the demand of plaintiff, and gave the intervonor judgment decreeing him to be the owner of one-fourtli of the ten per cent counsel fees stated in said judgment of homologation.

From this judgment, plaintiff, George S. Lacey, and the city of New Orleans have appealed.

There are several reasons which, in our judgment, are conclusive against the pretensions of plaintiff—

First — Assuming he performed the service of causing the homologation of the tableau of assessment, which was opposed by no one, we think, so far from being entitled to this large fee, Lacey, the City Attorney, was prohibited from receiving any compensation whatever by section thirty-one of act No. 7 of the extra session of 1870, being the new charter of the city, which provides “ that it shall be the duty of the* Council, at its first regular meeting after its induction into office, or as soon thereafter as practicable, to elect a secretary. * * * Also a City Attorney, learned in the law, who shall be the legal adviser of the corporation in all matters in which legal advice may be necessary, and shall represent the corporation in all judicial -proceedings and actions to u'hich it may be a party or in which it may have an interest, and shall in all cases, when required by the Mayor or any Administrator of department, furnish a written opinion of the legality or constitutionality of any law or ordinance to be submitted to or pending before the Council, or as to any questions involved in the discharge of their respective duties. . Ho shall hold his office for a term of two years, unless sooner removed as provided for in this act, and shall receive a salary, lo be fixed by the Common Council, not to exceed six thousand dollars per an-num; he shall be allowed no extra fee or compensation, not shall any other attorney be appointed to assist him, unless by a vote of a majority of the members of the Council, and shall be empowered to employ one or more clerks as the. Council may deem necessary and allow.”

The meaning of this section could hardly be. made plainer than it is set forth in the language employed by the G-eneral Assembly. It defines the duties of the City Attorney, not only in regard to the advice he shall give in all matters relating to the corporation or which concern the Mayor and Administrators, but in precise terms it declares that the City Attorney “shall represent the corporation in all judicial proceedings and actions to wliicn it may be a party or in which it may have an interest.” * * * And it also declares that his salary shall be fixed by the Common Council at a sum “not to exceed six thousand dollars- he shall be allowed no extra fee or compensation, nor shall any other attorney be appointed to assist him, unless by a vote of a majority of the Council.” * * *

The proceeding to homologate the third drainage assessment, if instituted and conducted by plaintiff, was but a discharge of a duty devolving on him as City Attorney, because the law creating the office required him to represent the corporation in all “ proceedings and actions to which it was a party.” And for the discharge of this and other duties his compensation was limited to a salary of six thousand dollars, and he was prohibited from receiving- any extra fee or compensation, “ unless by a vote of a majority of the members of the Council.”

Has the plaintiff been allowed an extra fee for homologating the tableau of assessment of the Third Drainage District ? There is nothing in the record to show that such a fee. was allowed “by a vote of a majority of the members of the'- Council,” or, indeed, tliaj; any vote was ever taken in regard to it. Plaintiff, however, contends that when tho Council assigned him to the duty of attending to tho drainage case it impliedly •consented that he should have the ton per cent allowed by tho act of 1861 for counsel feos and costs a,gainst delinquent taxpayers.

A sufficient answer to this is that if plaintiff attended to ihe suit he merely performed one of his duties specified in section 81 of the charter, and for which with other duties that section limited his compensation to a salary not to exceed six thousand dollars ; and as it prohibited extra compensation without a vote of a majority of the members, the Council could give no implied consent nor do anything to increase the compensation except in tho manner required by said section. Plaintiff also contends that the act of 1861 in regard to the- drainage districts, requiring, when the tableau of assessment is ho uologated that the delinquent taxpayer shall be condemned in tho additional sum oí ten per cent for counsel fees and costs, entities him to this remuneration, notwithstanding the prohibitive feature of tho city .charter, because the. former is a special law and is not repealed by the latter, which is a general law. The fallacy in this position lies in assuming that the enarter of the city is a general law. Both acts arc special statutes, one. in regard to the drainage districts, and section thirty-one of the, other in regard to the office of City Attorney. .They have different objects; and tho latter is the law applicable to the claim for extra compensation sot up by plaintiff, and must control in determining his rights in relation thereto.

Another argument which the plaintiff makes hi support of his demand to be decreed a part owner of the judgment which the oity of New Orleans obtained against the delinquent taxpayers, is tho assertion that the city has no interest in said judgment or tho ton per centum attorney’s fees and costs recovered therein, because by act No. 30 of the acts of 1871 the city of New Orleans occupies’only tho position of a fiduciary, that the real beneficiary is the Mississippi and Mexican Gulf Ship Canal Company, that the city “acquired nothing and became tho possessor of nothing ” under said statute, and is without interest to set up abstract questions of law to defeat plaintiff’s demand. What does plaintiff sue for ? He brings a suit in the nature of a petitory action to lie decreed the part owner of an incorporeal thing, a judgment which New Orleans recovered against various delinquent taxpayers wiion homologating the drainage assessment of tho Third Drainage District. Instead of being satisfied to recover upon tho strength of his own title, plaintiff proposes to oust the defendant, the city of New Orleans, of part of tno judgment which she recovered on the alleged weakness of the title which she holds.

But if it be true that the Mississippi and Mexican Gulf Ship Canal Company are tlie real beneficiaries of the drainage laws, the real owners of the judgment in question (the title of which is nominally in New Orleans), wliy did not plaintiff cause them to be made parties before putting at issue the title of said judgment or demanding that the adjudication be made in relation to the title or the ownership of said judgment or any part thereof ? How can this court adjudicate upon the title of the judgment which New Orleans recovered in homologating the drainage assessment of the Third Drainage District, or any part thereof, when, as plaintiff claims, the real owners of said judgment have not been sued and are not before the court?

But plaintiff is estopped from denying that the ownership of the judgment in question is in Now Orleans by the judicial admissions in the petition for the .homologation of the tableau of assessment, which petition he claims that he filed, through his subordinate, Rufus Waples, the Assistant City Attorney. In that petition which Waples, the Assistant City Attorney, filed in behalf of Now Orleans to homologate the drainage assessment, it is alleged that the city was “ subrogated bij law to the rights, poivers, ami facilities possessed by the commissioners of the several drainage districts;” and judgment is prayed. “ in favor of your petitioner in the capacity afen-esaid.”

Will an attorney-at-law, in the. face of his own judicial admissions' in a suit which he brought for a client, be permitted, when he comes to sue to be decreed a part owner of the. judgment thus obtained, to allege that his former client had no interest in the suit and judgment, and therefore has no interest in contesting with him in regard to the title or ownership of said judgment? that by a statute in force prior to said suit and judgment his client had no title to the claim set up in said suit; indeed, never was the. owner of the judgment; and therefore the said client has no right to resist the demand of himself to be decreed part owner of said judgment ?

It is a rule of general application that a defendant in court will be required to do what he ought to have done out of court. The city of New Orleans lra-s been made a defendant and called by plaintiff into this litigation to do what? To transfer to plaintiff a part of the judgment homologating the drainage assessment. But the exigencies of plaintiff’s case force, him to take the position that N ow Orleans is really not the owner of the judgment in controversy, and therefore, has rio right to set up legal defenses. ’■ '

Then, what cause of action has ho against New Orleans’-and why was she brought into court? But it seems to us New Orleans is the real beneficiary in the drainage laws, is the owner of the judgment, and is the person entitled to enforce its collection. A party who has the exclusive right to merge a claim into a judgment, and after judgment to make the money on execution, must be regarded in law as the owner oí said judgment.

Under the drainage statutes Now Orleans had the undoubted right to merge into judgment every claim against delinquent drainage taxpayers, and the right to enforce the collection thereof. The city is the beneficiary; her territorial possessions are to be drained and protected from overflows, and consequently the lots and squares within her limits are made more valuable, and the health of her inhabitants improved.

Now, what is the interest of the. Mississippi and Mexican Gulf Ship Canal Company in the judgment, the title of which is the subject of this controversy ?

They are not the owners of the judgment. If every one of the delinquent taxpayers condemned in said judgment should become insolvent, the loss would not fafl upon said company. If every cent due in said judgment should at once be collected, or at once be lost, the Mississippi and Mexican Gulf Ship Oanál Com]¡any would neither be enriched, nor impoverished, as the one or the other contingency might happen; unless, perhaps, the whole city should become insolvent.

The Mississippi and Mexican Gulf Canal Company, however, have an indirect interest; they are the contractors to do the work of draining the city under the supervision of tlio city surveyors; they have an interest in the solvency of the party for whom they arc employed to work; and as the work progresses, from month to month,-they may require payment out of the funds sot apart for the purpose.

In the act of 1871 the State made a contract for tlio benefit of the city of New Orleans and the inhabitants thereof with the Mississippi and Mexican Gulf Ship Canal Company, to build levees, out canals and ditches necessary to effectually drain the city, requiring the work to be done under the supervision of the city surveyors, requiring- New Orleans to pay for such work as it progresses, from month to month, at prices stated in the act, and requiring the city to take in hand the collection of all the drainage assessments, and, as it becomes necessary, to make new drainage assessments and collections and apply the money to the payment of the expense attending the drainage of New Orleans as contemplated in said act.

The fact that the State made the contract in behalf of the city affects the interest of New Orleans in the beneficial results contemplated by said act, no more than if the contract had been made by the city herself. The fact that under this contract New Orleans is required to apply the proceeds of the judgment, when collected, to the discharge of the debt for keeping up the drainage of the city does not impair her ownership of the judgment any more than the obligation incurred by the city to apply any and every other revenue to the purpose for which it was appropriated.

Wc conclude, therefore, that New Orleans has an interest in the judgment In question, and can set up legal defenses. Also, the legal defense set up is a good one, that by'section thirty-one of the charter plaintiff as City Attorney was prohibited from receiving any extra compensation.

The prohibitive clause of the charter also defeats the pretensions of Waples, the intervenor. For, assuming that the judgment was entered up by him after he had ceased - to be the Assistant Oity Attorney, he knew from said prohibitive clause of the charter that the Council could not employ an attorney to assist the City Attorney, “ unless by a vote of a majority” of the members thereof. He was not thus employed, and he can not compel the city to allow him a fee in the case.

It is therefore ordered that the judgment, as to plaintiff, rejecting his demand, be affirmed with costs; and as to the intervenor, that the judgment in his favor be annulled and that his demand be rejected with costs of the intervention.

Rehearing refused.

MoR&aN, J.

dissenting. The Legislature in 1858 (Acts 1858, p. 114,). authorized an assessment upon real estate within the limits of the city of New Orleans, and appointed drainage commissioners to carry on the drainage thereof. In 1861 (Acts 1861, p. 43.) the Legislature prescribed the mode in which the taxes levied in conformity with the act of 1858 should bo collected, and fixed a commission of ten per cent for counsel fees and costs. In 1871 (Acts, p. 75,) the Legislature intrusted the drainage of the city to the Mississippi and Mexican Gulf Ship Oanal Company, a. company then in existence. The Administrators of the city of Now Orleans wore subrogated'to all the rights, powers, and facilities possessed and enjoyed by the drainage commissioners. The drainage tax when collected to be placed to the credit of the Mississippi and Mexican Ship Canal Company and held as a fund to be applied only to the purposes of drainage.

George S. Lacey was City Attorney from May, 1870, to December, 1874. The city charter under which he held his office provides that he shall hold his office for a term of two years, unless sooner removed, “ and shall receive a salary to be paid by the Common Council, not to exceed six thousand dollars per annum. He shall be allowed no extra fee or compensation, nor shall any other attorney be appointed to assist him, unless by a vote of a majority of the members of the Council.” Acts 1870 (extra session), p. 43. By ordinance of the tenth of May, 1870, the salary was fixed at six thousand dollars per annum.

The office of Assistant City Attorney was created by ordinance of the city of New Orleans, passed on the tenth of May, 1870. His salary was fixed at the rate of thirty-five hundred dollars per annum. It was also provided that the office could be dispensed with at any time by a vote of the Council.

Rufus Waples was appointed Assistant City Attorney under this ordinance.

On the twenty-ninth of November, 1871, the following letter was addressed to Mi’. Lacey:

“ MAYORALTY OF NlSW ORLEANS, )
“ New Orleans, November 29,1871. J
“ George S. Lacey, Esq., City Attorney:
“ The Council, in committee, have had under consideration the matter of the collection of drainage tax, and they deem it a matter of very great importance that it shall have' the individual attention of one of our attorneys. They have therefore directed me to suggest to you to assign Mr. Waples to that duty, and to relieve him from the management of all new suits, and, as far as may be consistent with the city’s interests, from the further prosecution of the suits in which he may now 1)0 engaged.
“(Signed) BENJ. E. ELANDERS, Mayor.”

In conformity with the above suggestion, on the same day, Mr. Lacey wrote Mr. Waples as follows:

“ Rufus Waples, Esq., Assistant City Attorney:
“ You are hereby assigned to the duty of collecting the drainage assessment, to the exclusion of all other professional duties, except attention to the following cases.” Here follows a list of cases not necessary to enumerate.

The assessment rolls were made out according to law, and proceedings were instituted upon them. These proceedings were conducted by Waples, Assistant Attorney. They were instituted in April; 1872, in the Superior District Court of New Orleans.

On the eighth of November of the same year, “ on motion of Rufus Waples, attorney for the petitioner,” and on his producing due proof it was adjudged that the “ assessment roll be and it is hereby approved and homologated, and this approval and homologation shall operate as and is a final judgment against the property described as assessed, in said roll, and also against the owner or owners of each property respectively, with ten per centum in addition to the amount assessed for counsel fees and costs as provided by law, with interest at the rate of six per cent per annum from the date of the assessment thereof according to law.”

At the time this judgment was rendered Waples’s official relations with the city had ceased. He made the motion after consultation with Mr. Shaw, one of the Administrators, and Mr. Mayo, the clerk intrusted with the making out of the assessment rolls.

Under this judgment tlie oity lias collected a number oi assessments and, with them, the ten per cent in addition awarded by the judgment.

Lacey claims that this ten per cent is duo to him. Waples says that one-fourth thereof belongs to him as a quantum meruit.

The city says they all belong to her, as Lacey and Waples were both salaried officers of the oity, and can only claim the salaries attached to their respective offices.

It will be observed that the city does not object to the collection of the ten-per-cent tax. It objects simply to paying it out after it is collected. It seems to me that the city has no claim to this money. She is entitled to the amount of tax levied and collected, and no more, because the law designates to what purposes the penalty shall be appropriated.

It is clear, also, we think, that the judgment against the delinquent payers of the drainage tax is now final. The law provides that ten per cent in addition to the tax shall be paid by the contributors, and designates that this ten per cent shall be assessed for the payment of counsel fees and costs. When, therefore, the judgment is collected, the penalty is also to be collected, for the purposes above stated. To whom is this penalty to be paid ? Not to the intorvenor, I think, for ho was directed to give his attention almost entirely to this part of the business of the office, and his salary must be considered compensation for his services while lie was acting as Assistant Oity Attorney. He is not entitled to a quantum meruit, because he was not employed by the city, after Ms official connection had ceased, to represent her, and he was no longer Assistant Attorney when the judgment by default was confirmed. He acted, as it appears, at the instance of one of the Administrators of the city and one of the clerks in one of the departments thereof, but neither the Administrator nor the clerk had the necessary authority to employ him. He must therefore be considered as a volunteer, a service which is usually rendered without pay and without thanks.

Who had control of all suits for or against the city during the tune these proceedings were carried on ? I think tMs question is answered by the resolution of the Board of Administrators passed on the twenty-' ninth of May, 1872, wMch is subsequent to the assignment of Waples to duty in the drainage cases. The resolution is as follows:'

“ Resolved, That the City Attorney, in the opinion of the Council, has direction and control of all suits by or against the city, including drainage, and all special or assistant attorneys and officers of the legal department are required to report to Mm and act under Ms direction in all cases in which he may not recuse Mmself.”

It scarcely needed the resolution of the board to give Lacey, the City Attorney, authority to direct the Assistant City Attorneys, for they'were all, necessarily, subordinate to him, but the resolution was adopted, and if his authority in tlio premises could have been questioned, the resolution of the board under which he acted put the question at rest. By it direction and control of all suits in which the city was interested, including drainage, were asserted to be in him, and all the assistant city attorneys were required to report to him and act under his instructions in all cases where he was not recused.

The proceedings then, under the drainage assessments, like all other legal business of the city, were necessarily under his control and direction. Therefore, in my opinion, if any one is entitled to tlio ten per cent he is. The city claims that he is not entitled to it, because lie was a salaried officer, and prohibited from receiving any more than the fixed amount thereof. Strictly speaking, this is not correct, for, as I read the ordinance, ho could receive extra compensation upon the vote of the Council. But, for the purposes of this case, it may be assumed Dial ordinance was prohibitory. What would be the extent of its application? Laceywould not have been entitled to claim any extra compensation from the city. Well, he doesn’t claim any extra compensation from the city. Should this judgment go in his favor, the city will not be called upon to pay him-one dollar out of its revenues or property. All he can receive is the sum already collected and whatever may be collected from the drainage assessments hereafter. It is the taxpayers who will pay him, not the city, and whether they pay to him or to the city is, it may be assumed, a matter of indifference to them. Whether they could have been relieved from the penalty if they had defended the suits brought against them is another matter. But they did not, and the judgment is now final against them, payment of which, in tato, they can not escape.

Now, there is nothing in the ordinance creating the office or fixing the salary of the City Attorney which prohibits him from receiving compensation from other sources.. And as the Legislature enacted that ten per cent on the drainage assessment should be added to the amount assessed to be due by the payers of this assessment, for counsel fees and costs, and as -the Legislature intrusted the collection of these assessments to the city, the City Attorney is, I think, entitled to the provision stipulated in the act in favor of the counsel who should, by judgment, enforce their collection.

The amount in controversy is, I think, much exaggerated, for the fees depend upon the collection. of taxes on land a part of which is under water and not worth the tax. But, great or small, I think the law gives it to Lacey, and that he is therefore entitled to it.

I therefore dissent.

Mr. Justice Taliaferro concurs in this opinion.


source: Caselaw Access Project

author: Taliaferro, J.

license: Public Domain

text:
    No. 6090.
    Jourdain Savoie, Administrator, vs. Pierre A. Thibodeaux.
    Tilt! court, a tj.ua in this case pcrpctuntoiL the injunction so far as to suspend tlio. execution of a judgment to the amount of four hundred dollars, credited on the judgment, and in other respects dissolved it without damages and at the costs of the plaintiff in injunction.
    .The defendant, having obtained a, new trial, moved to dissolve the injunction on matters apparent on the face of the papers, stating:
    First — That the plea is one of compensation.
    Second — That the lawpj'ohibils tlie injunotion of an entire judgmont, under a ple.a of partial set-off.
    Third — Insufficiency of the bond.
    The court below decided correctly that, in relation to the' first ground, the plea that the judgment, was credited with four hundred dollars must bo taken as true for the purpose of the rule; and in relation to the second and third grounds, that they were good; that a bond for double the amount of the sum claimed to have been paid should have been given.
    Jlut, in conformity with the jurisprudence of this Slate, the judge, a tjiw properly ruled that, although an injunction may have been imprudently granted, it will not be dissolved when it is plain from the record that the party would bo entitled to the writ immediately.
    APPEAL from the' Fifteenth Judicial District Court, palish of La-fourche. Beattie, J.

      J. ti. Goode, for plaintiff and appellant.

      0. Knob-loch, for defendant and appellee.
   Taliaferro, J.

The defendant, having purchased at a probate sale, in the year 1869, of the. property of the succession of Jourdain Savoie two tracts of land, executed in favor of the administrator two promissory notes, each for the sum of three hundred and titty dollars, payable respectively in the mouth of March of the years 1870 and 1871, a mortgage and vender’s privilege' in favor of the succession to secure their payment.

In the year 1873, the administrator instituted an action via ordinaria to enforce payment of these notes, obtained judgment, and caused execution to be issued. Thereupon the defendant enjoined the sale on the ground that the execution had issued for the sum of !(?805, with interest at eight per cent on half that amount, from first of April, 1870, for and like rate of interest on the other half from the first of April, 1871, and for costs of suit, when really the judgment was credited with the payment of four hundred dollars as of date April 1, 1869. The answer to the injunction suit denies that plaintiff is entitled, even under his allegations, to an injunction, and that the same was wrongfully issued, no bond having been given as required by law. He prayed a dissolution of the injunction, with damages, oto.

The judgment of the lowin' court perpetuated the injunction so far as to suspend the execution of the j udgment to the amount of four hundred dollars credited on the judgment, and in other respects dissolved it without damages, and at the costs of the plaintiff in injunction. The defendant applied for and obtained a now trial. Ho moved to dissolve the injunction on matters apparent on the face of the papers; stating, first, that the plea is one of compensation; second, that the law prohibits the injunction of an entire judgment under a plea of partial set-off; third, insufficiency of the bond.

The court decided that, in relation to the first ground, the plea that the judgment was credited with four hundred dollars must be taken as true' for the purposes of the rule; and in relation to the second and third grounds, that they were-good; that a bond for double the amount of the sum claimed to have been paid should have been given. But in conformity with the jurisprudence of the Htato, lie ruled that although an injunction may have been imprudently granted it will not be dissolved when it is plain from the record that the party would be entitled to the writ immediately.

The motion was overruled and the defendant in injunction appealed.

We think the judgment was properly rendered. 21 An. 824; 28 An. 171; 25 An. 222 and 670.

It is therefore ordered that the judgment appealed from be affirmed with costs.


author: Howell, J.

text:
    No. 6084.
    State of Louisiana vs. Jack Thomas, alias Blind Jack.
    Admitting it to bo good law that, under an indictment or information tor burglary and larceny, tlio jury may /hid the accused guilty of both, or either of them, the accused in this case had no cause to eomiilam of the charge by the, judge, as it was more favorable to him than it would have been with the additional charge asked by his counsel, under (he charge they were to iind him guilty of both crimes, or not guilty of either : whereas, under the other charge asked for, they would be authorized, in case they did not find him guilty of burglary, to Iind him guilty of larceny, He was therefore in a bettor position under the charge as given than.he would have been under the one that was asked. Under sueli circumstances it is not necessary to reverse the judgment and remand the case for a new trial.
    APPEAL from the Fifteenth Judicial District Court, parish of La-fourche. Beattie, J.

      T. L. V'hular, District Attorney, and A. P. Field, Attorney General, for plaintiff and appellee.

      (Vay Knobloeh and J. S. Billiea, for, defendant and appellant.
   Howell, J.

The defendant, having been found guilty on an information for burglary arid larceny, and sentenced to imprisonment tit hard labor in the Penitentiary for ton years, appealed.

On the trial the district judge charged the jury that “ under the information the jury were restricted to two verdicts, to wit: ‘guilty’ or ‘ not guilty,’ whereupon counsel for accused asked his honor to charge the jury that they could likewise, under the information in said case, bring in a verdict ‘guilty of larceny,’ which charge his honor, the judge, refused to give, whereupon counsel for the accused reserved this bill of exceptions.” Admitting it to be good law that, under an indictment or information for burglary and larceny, the jury may find the accused guilty of both or either offense, the accused in this case had no cause to complain of the charge given by the judge, as it was more favorable to him than it would have been with the additional charge asked, for under the charge given the jury would have to find him not guilty, although they might think him guilty of larceny only. Under the charge they were to find him guilty of noth crimes or not guilty of either, and if they should think him not guilty of burglary, but guilty of larceny, then they' would have to find him not guilty; whereas, under the additional charge asked, they would be authorized, in such contingency, to find him guilty of larceny. He was therefore in a better position under the charge as given than he would have been, had the judge given also the charge asked for. • IVe do not think, under the circumstances, it is necessary to reverse the judgment and remand the case for another trial. The jury evidently thought the accused- guilty of both crimes.

Judgment affirmed.


author: Wyly, J.

text:
    No. 4520.
    Walter Bailey and Mrs. Aldrich vs. City of Carrollton, Mayor, and Council.
    The evidence in this ease shows that plaintiffs have, newer boon paid for the land occupied by the. streets, described in their petition, although another person was paid for a si rip of his land sitnaied in the, same, locality; that these streets have been-opened from four to seven years; that they have been ditched, improved, and occupied by the city of Carrollton; that there has been no formal ordinance, however, directing the. opening of these streets. The charge that the streets have been dedicated to public use by the owners is wh_ Uy unfounded. The conclusion is that. the. plain! ill's ought to recover the value of thoir property which was taken and occupied by the city of Carrollton, and which is proved to be worth twelve hundred dollars.
    APPEAL from the Second Judicial District Court, parish of Jefferson. Pardee, J.

      Clarke., Bayne c& Itenehmc, for plaintiffs and appellants.

      W. Scott, Z. McKay, .and B. F. .Tonne., for defendants and appellees.
   Wyly, J.

Plaintiffs, the owners of the strips of ground occupied as Plum and Dublin streets in the city of Carrollton, bring- this suit.against said corporation for fifteen hundred dollars, the alleged value of said property, for which they have novel' been compensated. The defense is that the streets were never appropriated or occupied or taken without compensation; that if they were laid out and used by the public the same was done by the acts oí plaintiffs themselves and foJ the sole benefit arising therefrom to themselves by said voluntary dedication. Defendant avers that the opening of said streets was never sought by said city, nor has said city by any act required the opening of said streets; that they are not necessary or needful to said city, and that they were dedicated to the public- by the plaintiffs’ own acts.

The evidence shows that plaintiffs have never been paid for the land occupied by these, streets, although another person, Whitney, was paid for a strip of his land, being a part of Dublin street; that these streets have been opened from four to seven years; that they have been ditched, improved, and occupied by the city of Carrollton; that there has been no formal ordinance, however, directing the opening of these streets. The charge that the streets have been dedicated to public use by the owners is wholly unfounded. The value, of the property is proved to be twelve hundred dollars.

Our conclusion is that the plaintiffs ought to recover the value of their property taken and occupied by the city of Carrollton.

It is therefore ordered that the judgment herein in favor of defendant be annulled, and it is decreed that plaintiffs recover of the city of New Orleans, the successor of the city of Carrollton, twelve hundred dollars, with legal interest from judicial demand, and costs of both courts.


author: Howéll, J.

text:
    No. 4701.
    J. P. Broadwell vs. Henry Smith et al. W. F. Ogden, Intervenor.
    Tliis caso, is one not within tho. jurisdiction of this court, being a suit against, ten different persons on ton distinct contracts and the amount in no one exceeding five hundred dollars. These claims can nol lie considered as consolidated with tho consent of parties.
    The fact that the evidence, which may have boon offered in support of defendanis’ exception was not taken down, does not conclude them, as tho petition itself shows the contracts and debts to bo separate and independent, and not one of the claims to amount to five hundred dollars.
    The issue between plaintiff and imervenor can nol give jurisdiction to this court. The intervention must follow the principal demand. If the latter he dismissed tho former must go with it.
    APPEAL from tho Fourth District Court, parish of Orleans. Lynch, J.

      Breaux, Fenner <£• Hall, for plaintiff and appellant.

      Semines & Moll, for defendants and appellees.'
   Howéll, J.

The plaintiff has appealed from a judgment dismissing his demand and dissolving the writ of sequestration obtained by him.

The case is one not within the jurisdiction of this court, being a suit, against ten different 'persons on ten distinct contracts and the amount in no one. exceeding five hundred dollars. It can not bo considered as ton cases consolidated by consent of the parties to bring it within the authority of Heirs of Ballio vs. Prudhomme et al., 8 N. S. 338, cited by plaintiff. The defendants resisted their being joined in one suit in the court below, and they resist it here. The fact that the evidence which may have been offered in support of their exception was not taken down, does not conclude them, as the petition itself shows the contracts and debts to be separate and independent, and no one of the claims to amount to ñve hundred dollars. Nor can the issue between plaintiff and intervener give jurisdiction to this court. The intervention must follow the principal demand. If the latter be dismissed the former must go with it. O. P. article 392.

It is therefore ordered that the appeal herein be dismissed with costs.

Rehearing refused,


author: Howell, ,T.

text:
    No. 4656.
    The New Orleans, Florida, and Havana Steamship Company vs. the Ocean Dry Dock Company.
    The plaintiffs suo the defendants for the amount of subscription by the latter to the stock of the former. But the subscribing to the stock of the plaintiffs is not incident al to, nor necessarily connected with, the purpose and business for which t lie defendants were organized as a company, and is clearly beyond the power and authority conferred by the charter. The owning and navigating of steamships is a distinct business, and it seems rational that the docking and repairing of such vessels would be the subordinate, secondary consideration, and not that the owning of stock in a steamship company would be an incident to the business of docking and repairing vessels. It follows that the obligation sot out in plaintiffs’ petition can not be enforced.
    A corporation, being the creature of the law, possesses only those powers which the charter of its creation confers upon it, either expressly or as incidental to its very existence.
    The modern doctrine is to consider corporations as having such powers as are specifically granted by the act of Incorporation, or are necessary for the purpose of carrying into effect tlic. powers expressly granted, and not as haying any others.
    ('orporations can not enter into a business other than that which they are authorized by law to do, and persons dealing with the managers must take notice of the limitations imposed upon their authority by their charters.
    APPEAL from the Fourth District Court, parish of Orleans. Lynch, J.

      Leovy & Monroe, for plaintiffs and appellants.

      Bentinck Egan for defendants and appellees.
   Howell, ,T.

The plaintiffs sued the defendants for the amount of subscription by the latter to the stock of the former. The defense, among other grounds, is that the alleged subscription is ultra vires, the defendant company being incorporated solely for “the building- and maintaining or purchasing one or more docks, and the docking, repairing, and building of river and sea-going- vessels, and for such other business as belongs or Is incidental to the purpose and business aforesaid,” and not to incorporate other companies or take stock therein.

The plaintiffs contend that, by the testimony of the president of the defendant company, the subscription was made as being incidental to the objects for which his company was incorporated, as the inducement “ was that the dry dock company should have the business of docking and repairing the vessels of the steamship company.” This position, that the subscription was incidental to the business of the defendants, within the purview of their charter, is a deduction from the evidence on the merits of the case, and if it be accepted as proven, the evidence also shows that the defendant company did not get the business of docking and repairing the vessels of the plaintiff company; and hence the, latter can derive no advantage from the position.

But the subscribing to the stock of the plaintiff company is not incidental to nor necessarily connected with the purpose, and business for which the defendant company was organized, and is clearly beyond the power and authority conferred, by the charter. The owning and navigating steamships is a distinct business, and it seems rational that the docking and repairing of such vossels would be the subordinate, secondary consideration, and not that the owning of stock in a steamship company would be an incident to the business of docking and repairing vessels. It follows that the obligation set out in plaintiffs’ x>etition can not be enforced.

“ A corporation, being the- creature of the law, j)0ssesses only those powors which the charter of its creation confers ux>on it, either expressly or us incidental to its very existence.” 7 An. 314.

“ The modern doctrine,” says Chancellor Kent, “ is to consider corporations as having such powers as are specifically granted by the act of incorporation, or are necessary for the purpose of carrying into effect the powers expressly granted and not as having any others. * * * As corporations are the mere creatures of the law, established for special purposes, and deriving all their powers from the acts creating them, it. is perfectly just and proper that they should be obliged strictly to show their authority for the business they assume and be confined in their operations to the mode and manner and subject matter proscribed.” 2 Kent, sections 279,' 299.

In the case of Pierce vs. Madison, 21 Howard 441, the Sui>reme Court of the United States held jthat corporations can not ent r into a business other than that which they were authorized by law to do, and persons dealing with the managers must take notice of the limitations imposed upon their authority by their charters. And hence, where railroad companies, without authority of law, assume to xmrehase a steamboat, to be run in connection with their railroad, the notes given for their boat were void, and the holder could not recover on them against tlio corporation.

And in the, case of Sumner vs. Marcy, 3 Woodbury & Minot’s Rep. 105, it was held that a manufacturing company can not legally invest money in a. bank for the purpose of carrying on the banking business, nor can it issue promissory notes in payment of shares in a banking company which will bind the corporation or its members.

These principles of law, so well settlod and fully recognized, apply to the subscription to stock in this case.

Judgment affirmed.


author: Ludeling, C. J. Taliamíuro, J.,

text:
    No. 5903.
    Succession of Bernard Stoltz. On Appeal from Judgment Canceling Mortgages.
    This succession was not administered as a vacant one, and whatever doubts may have existed at some lime in regard to the right to soil for cash succession properly to pay debts for less than the appraisal thereof they should now bo regarded as settled by tlio repealed decisions of this court, under tlio jurisprudence of lilis Slate, at least, this principle has become a rule of property which should not bo disturbed.
    APPEAL from the, Second District Court, parish of Orleans. 'Hanoi, J.

      Burk & DinkelspieX and George H. Braughn, for executrix and ap-pellee.

      McEnery, ElHti & MUn, for defendant and appellant.
   Ludeling, C. J.

The executrix of the succession obtained an order to sell property to pay debts. The piece of property upon which the appellant held a mortgage was sold for cash for less than its appraisement, and on a rule having been taken against the mortgagee to show cause why tlio mortgage should not be canceled by the Recorder of Mortgages, ho urged the nullity of the sale, because it was sold for cash and for less than its appraisement, claiming that the property should have been sold on a credit of one and two years ; or, if it could have been sold for cash at all, only for its appraised value.

This succession was not administered as a vacant succession, and whatever doubts may have existed at some time in regard to the right to soli succession property to pay debts for less than the appraisal thereof wo think, should now bo regarded as settled by the repeated decisions of this court. See, 7 La. 317 ; 13 La. 86 ; 10 Rob. 398. In the last-named case this court said : “ It has been repeatedly held that when the sale is made to pay debts, the property may be sold for less than the appraisement.” This was reaffirmed in 11 Rob. 510 ; 2 An. 967 ; and i An. 579.

We can not regard the decision in 12 An. 368 as overruling these decisions; no reference in it is made to the former decisions, and the opinion was based exclusively on articles 990, 991, and 992 of the- C. P. In Richards, Administrator, vs. Denel et al. this court said : “ The powers, rights, and duties of an administrator are assimilated by article 1042 to those of curators of vacant estates.”. Under article 1051 “He must proceed to the sale of the property of the succession he administers, and to the settlement of its affairs * * * In such sales no law requires that the property shall produce its appraised value, or that a reappraisement be made in ease the first estimation be not obtained.” In the succession of Wadsworth this court said : “The objection is put in argument upon the technical ground that the sale could not bo made for less than the amount of appraisement in the inventoi’y. We think this point is covered by the cases of Tewles vs. Weeks, 7 La. 312, and Richards vs. Denel, 11 Rob. 508. It is particularly to be observed in the present case that there are no minor heirs, and that the sale was ordered on a credit upon application of the administrator, and for the parpóse of paying debts.” 2 An. 967, Under the jurisprudence of this State, at least, this principle has become a rule of property which should not bo disturbed.

It is therefore adjudged that the judgment appealed from be affirmed with costs of appeal.

Taliamíuro, J.,

dissenting, I am clearly of the opinion that there is no law of this State that authorizes the sale of property of an estate for loss than its appraised value where the sale is made for cash. The articles 1169 and 1170 of the Civil Code do authorize the sale of the property of vacant estates for two-thirds of its appraised value on a credit of one and two years. Failing to bring two-thirds of its appraised value, it may be sold on a credit of one, two, and three years. These articles apply exclusively and especially to sales of immovable property of vacant estates which remain, after all the debts of the estate have been paid and the estate finally settled. In such cases, there being no heirs or persons entitled to the remaining immovables who have appeared and claimed it, the law-giver directs that the curator shall retain the property twelvemonths to enable the owners to come forward and receive it. If no one entitled to the property presents himself within that time, the curator is directed to sell as above stated in conformity with the articles recited. In all sales made in pursuance of these articles the property is sold as a matter of expediency and not as a matter of necessity. It is sold on a credit and not for cash. It is sold in the interest of unknown owners, if any such should ever appear to receive from the State treasury the proceeds realized from the sale of it. It is sold in pursuance of public policy, which is against its remaining out of commerce. It is evident that the articles 1169 and 1170 have no application whatever to sales of succession property for cash to pay debts.

There is not besides those' articles anything to be found in the Codes or Statutes of the State authorizing the sale of succession property for less thapl its appraised value' when the sale is made for cash to pay debts, except, perhaps, in sales under executory process, where by the act importing confession of judgment there, is waiver of appraisement. The articles 1164,1166,1166, and 1167 of the Civil Code treat of the mode of procedure in selling the. property of vacant successions to pay debts; but these articles contain no provision in reference to whether the property shall bring its appraised value, or whether it may be sold'for less. The articles 1668, 1669, and 1670 of tire Civil (iodo treat of the. duties of testamentary executors in regard to obtaining the means necessary to discharge the debts and legacies of sums of money to be paid out of a succession; but these articles are silent as to whether the property shall bring its appraised valuó or be sold for less. But these articles point in an unmistakable manner to the provisions of the Code of Practice, that do, in direct and plain-terms, proscribe fully and e-learly in every particular, the formalities to bo observed jn soiling the property of'every kind of succession,’in eases where the property is soldier the purpose of paying the debts of the succession. Tims, article 1670 of the Civil Code prescribes that “the testamentary executor shall proceed to the sale above mentioned and to the payment of the debts .of the succession in the same manner as is prescribed for curators of vacant' successions.” Now, what is the manner prescribed for the sale of the property of vacant successions? The entire proceedings fixed by law to be observed in sales of succession property to pay debts are found in articles 990, 991, and 992 of the Code of Practice, and they are found nowhere else. Article 990 of the Code of Practice directs that—

“It shall be the duty of the several judges of probate on the application of the creditors, or any creditor, of a vacant estate, to cause, on the requisite advertisement being made, so much of the property of said estate as is necessary to pay the debts of tlu» samo which may be due, to bo offered for sale and sold at public auction to the highest bidder, for cash if the creditors require it, and if on thus offering said property for sale, the appraised valve ¡should not he hid and, obtained, then the same, in not less than fifteen nor more than twenty-five days from the time it is thus offered, be sold at public auction, and after public advertisement, to the highest bidder, for what it will bring, on a credit of twelve months; provided that in all sales of effects belonging to successions, minors, or interdicted persons, on a credit, the purchaser shall give a twelvemonths bond, with good security, to be approved by the representatives of the estate, minor, or interdicted person, and a mortgage retained on the property sold; if it be mortgaged property, the bond to be duly re-' corded, so as to operate a mortgage, such bond to have force and effect as twelve-months bonds taken, in sales under writs ol' fieri facias; and the collection of such twelve-months bonds shall bo enforced in the same manner as twelve-months bonds taken in accordance with articles 719 and 720 of the Code of Practice, upon execution issued upon such twelvemonths bonds by the. dork of the court which issued, the order for sale of the property, and such e.lerks are hereby authorised and required to issue such executions on the demand of any person having the, legal right to control such bond.”

Article 991 directs that “it shall be. the duty of the judge of probate in all cases of vacant estates, on the, application of the creditors or of any creditor thereof, whoso debt shall not then be due, to sell, after the usual advertisements upon the conditions contained in the preceding article, so much of the estate as will bo sufficient to pay the. claim or claims of the creditors who shall make the application, and in such terms of credit as will correspond with the falling- due of the several claims of the creditors.”

These two articles, it will be noticed, speak specially of vau(t,ni estates. Now comes the next article, 992, which applies the rules and principles laid do.wn in articles 990 and 991 to all kinds of estates, in these, terms, to wit:

Article 992. — “ The principles contained in the two preceding articles shall applyto all successions accepted with benefit of inventory, whether the heirs or minors are of age, and to all successions administered by administrations. ”

But it is held that the. jurisprudence of the State has settled the doctrine that when the sale of succession property is made, to pay debts, the property may be sold for loss than its appraisement. I do not so understand the import of the decisions referred to to sustain this opinion. I propose to refer to these decisions and discuss their purport and meaning, as shown by the. te.rj ns and expressions used and in reference to their contents. *.

Fifth Louisiana, p. 434 — In this case the property was sold for its appraised value, and there is nothing which touches the question.

Seventn Louisiana, p. 312. — The succession was insolvent. It was administered by the tutrix of her minor child. The- tutrix treated it as insolvent estate, and made a surrender of it to the creditors. They fixed the terms ón which the property was sold, and it was sold for something less than the appraisement. The tutrix, authorized by a family meeting, agreed to the, proceedings of the creditors. The sale- wa,s hold valid. The surrender of the. estate was recognized as legal. The court said:. “A sound interpretation of the law in relation to the administration of estates, whether vacant or accepted with benefit of inventory, will in many cases authorize a departure from the rule requiring property of. minors to bring- its appraised value before it can be sold.” That case was one in point, because it was legally surrendered to the creditors as insolvent, and the creditors by law wen- vested with the right of selling the property on their own ternas. The- minor in that ease had no reversionary interest whatever in the property. The whole of it when sold did not pay the debts of the estate. The action taken by the tutrix and the family me -ting- were entirely nugatory. Auother instance supporting-the announcement of the court is the exceedingly common case of selling- the property of estates on a credit of twelve months for whatever it will bring-, without regal d to appraisement, where the purpose of selling is the raising of money to pay debts. Yet another instance is where, in an authentic act, the benefit of appraisement of the mortgaged property is waived. But nothing- decided in the case under consideration touches the question: Can the property of estates be legally sold for cash for less than the appraised valne ?

Eleventh Louisiana, 156. — The heirs appealed from a judgment rendered by a probate court homologating a sale. In argument it was contended that the property was sold for less than its appraised value, and the sale was therefore null. The court refused to consider the objection, because it was not alleged in the pleadings. This case has no bearing on the question.

Thirteenth Louisiana, 84. — Nothing appears in this case touching the point. It was remarked by the court that “ when creditors sue for their debts and procure a sale of the estate for their payment, the'land may be sold as in other cases, although minors be interested therein.”- •

Tenth Rooertson, p. 898. — It is here stated by the court that “ it has been repeatedly held that when the sale is made to pay debts the property may be sold for less than the appraisement.” This is a mere repetition of what was said in sonic- of the preceding cases just referred to, and does not come any nearer the point than they do. 2 An. 96.

This case has no bearing- on the question. Now, in the case of Fritz, on rule taken by Davis, 12 An. 868,1 think the court has directly decided the question. Here, the terms of sale of the property of a succession accepted with benefit of inventory were for cash. The property and immovables did not bring the- appraisement. Held, that there was no sale which the purchaser could compel the tutrix to complete, although the property was ordered to be sold to pay. debts. It should, have been readvertised and sold on terms of credit of less: than twelve months. Judge Merrick, the organ of the court, founded the judgment on articles 990, 991, and 992 which, in the decree, he quotes in extenso. Subsequent decisions have repeated in substance the vague, indefinite language used in most of the cases I have reviewed, and which I contend do.not authorize the salo of succession property for less than its appraised value when sold for cash to pay debts, but go no further than to announce vaguely that the property of estates when sold to pay debts may be sold for less than its appraisement, which is-true only in respect to sales on twelve-months credit.

Rehearing refused.


text:
    No. 5901.

      City of New Orleans vs. Estate of Samuel Stewart.
    Here til» given name of the deceased, in (lie suit of the city of New Orleans vs. (lie estate of Samuel Stewart, is mentioned, and the constitution itself, as wall as the statutory law, contení plates that a “ succession ’’ may he. a plaintiff or defendant. This word “estate.” is.,synonymous witti “succession.” This disposes of the objection that there was no defendant before the court, the notice having been published according to law.
    This suit not being probale is not embraced in the provisions of section seven of act No. 78 of 1872, nor in the clause in act No. 2 of 1872. on this subject, in relation to section live of act, No. 2 of the special session of 1870.
    But, if it lie conceded that section seven of act No. 78 of 1872 is still in force, the jurisdiction of tax suits against successions given by it to ilio Second District Court is merely concurrent, and not exclusive,. This disposes of the objection that the judgment appealed from did not order the taxes to lie paid in due course of administration. This requirement of the law applies to probate matters.
    APPEAL from the Superior District Court, parish of Orleans. Haw-kim, J.

      13. F. Jonas, City Attorney, and Üamiuel P. Blanc, Assistant City Attorney, for plaintiff and appellee.

      Charles Lauque,, for defendant and appellant.
   Howell, J.

Mrs. Nisida Stewart, executrix, lias appealod from a judgment against the “ estate of Samuel Stewart ” for taxes due the city of New Orleans, and she complains —

First — That the citation was not sufficient, because an estate or a succession is a tiling, and not a person. She cites tlio cases of City vs. Heirs of Schmidt, 10 An. 771, and City vs. Heirs de St. Romes, not reported. These eases do not sustain her position. Tlic objection in them to the notice was vagueness, because it did not express the particular person by a given name, whose heirs were to be cited. Here the given name of the deceased is mentioned, and the. constitution itself, as well as the statutory law, contemplates that a “ succession ” may be a plaintiff or defendant. The word “estate” is'synonymous with “succession.” This disposes of the second objection that there was no defendant before the court, the notice having- boon published according to law.

The next objection is that the Superior District Court was without jurisdiction over the succession. She contends that although the act enacting the Superior District Court gives to that court jurisdiction of all suits wherein the city of New Orleans is a party, yet it specially reserves to the Second District Court the exclusive jurisdiction it had before the passage of the act, and by section seven of act No. 73 of 1872 jurisdiction of tax suits against successions was conferred on the Second District Court.

The clause in act No. 2 of 1873 on this subject is in these words: “ And provided, further, that this act shall not be construed to prevent the Second District Court for the parish of Orleans from exercising all the powers granted by section five of act No. 2 of the special session of 1870.” That section roads: “That the Second District Court for the parish of Orleans shall continue to have exclusive probate jurisdiction, as provided by existing laws, and shall have power and authority to issue such writs of injunction and mandamus as shall or may be necessary to the full exercise of its probate jurisdiction.”

•This suit not being probate, is not embraced in the foregoing provisions of law; but if it be conceded that section seven of act No. 73 of 1872 is still in force, the jurisdiction of tax suits against successions given by it to the Second District Court is merely concurrent, and not exclusive. Hence this objection is without force. This disposes of the last objection, that the judgment appealed from did nbt order the taxes to be paid in due course of administration. This requirement of the law applies to probate matters.

Judgment affirmed.


text:
    No. 6106.
    Charles F. Gaudé vs. Francois Gaudé.
    The pltsu of proscription oí ono, two, and three years is not applicable to the account sued upon, which is for the reimbursement oí outlay, moneys advanced, provls--ions furnished, etc., for the use and benefit of the defendant by the plaintiff as neguliorum i/mior, and which can be prescribed only by the term of ton years.
    The written acts themselves declared upon in defendant’s peremptory exception to. plaintiff’s claim, must interpret themselves, and parol evidence can not be introduced by said defendant to establish a general settlement of affairs between himself and plaintiff different from that alleged in said defendant’s peremptory exception.
    APPEAL from the Fifteenth Judicial District Court, parish of La-fourche. Beatt-ie, J.

      J. S. Goode, for plaintiff and appellee.

      C. Knoblock, for.defendant and appellant.
   Taliaferro, J.

The defendant is sued upon an account for goods’, wares, and merchandise furnished, money advanced, and taxes, physician’s bill, and money paid to others at the request of defendant, aggregating the sum of $1023 74, for which plaintiff prays judgment with legal interest, as allowed by law, on each item oí indebtedness, with costs, etc. •The defendant pleaded the general issue, and set up in reconvention a demand against the plaintiff of fifty-nine hundred dollars, with interest. This demand he predicates upon the, declaration that in April, 1866, he sold to his son (who is the plaintiff in this suit) his plantation called “ Morning Star,” for the price of sixteen thousand dollars, represented by eight notes of two thousand dollars each. Ho avers that his son, without defendant’s knowledge or consent, took possession of and still retains two of these notes. He further avers that he paid for plaintiff a debt of nineteen hundred dollars, which the latter owed to Oneziphore Toups, administrator of the succession of Marie L. Toups; the two notes of two thousand dollars each, taken, as he alleges, by plaintiff, and the nineteen-hundred-dollar debt to Toups, administrator, paid for plaintiff, making the amount of the reeonventional demand. Pending the trial, the defendant filed a peremptory exception in which he pleads the prescription of one, two, and three years, and that by certain notarial acts therein specified, the plaintiff’s claim, and all other possible differences between the parties, were canceled and extinguished.

The xfiaintiff had judgment for $1011 14, with interest, and defendant appealed.

We find no force in the defense. The plea of prescription of one, two, and three years is not applicable to the account sued upon, which is one for reimbursement for outlays, advances, etc., made for the use and benefit of the defendant by the plaintiff as negoüorum gestor, and which is prescribed only by the term of ton years. 12 Rob. 148; 2 An. 779; 10 An. 395.

In regard to the two notes of two thousand dollars each which the defendant alleges in his petition, his son, the plaintiff, took possession of without his knowledge or consent, the defendant, when upon the stand, admitted that the two mortgage notes were given to his son by the consent of the defendant.

In his peremptory exception the defendant alleges that by the sale he made to his son of the Morning Star plantation and the sale to Myrtle Gaudé of the Adam plantation it was understood and agreed upon by the parties that mutual receipts should be exchanged between them; that the sales mentioned in the answer were a final settlement of all demands of one against the othér. The defendant specially alleges that by these sales a full and entire settlement of all business affairs between himself and the plaintiff was effected. But these acts of themselves show nothing of the sort, and upon the trial of the case in the court below the defendant introduced a witness to prove that the only-settlement ever effected by him was the one evidenced by the acts of sale of sixteenth August, 1875, by Charles E. Gaudé to Erangois Gaude. To the introduction oí this evidence, the plaintiff’s counsel objected on the ground that the acts themselves alleged upon in defendant's peremptory exception must interpret themselves, and that parol evidence was inadmissible to establish a general settlement oí the affairs oí the parties different from that alleged in defendant’s peremptory exception. The objection was sustained by the court, and defendant reserved a bill oí exceptions.

We think tho evidence was properly rejected. 0.0. article 2276; 16 An. 305; 18 An. 577. The defendant, we think, has failed to make out a. valid defense, and that the judgment was properly rendered in favor of the plaintiff.

It is therefore ordered that the judgment appealed from be affirmed with costs.


text:
    No. 6001.
    Succession of Hampton Elliot. Oppositions to Account.
    The court a gjia, decided properly in requiring tho balance duo oil tho note of Elliot, after exhausting tho mortgage given to secure it, to be deducted from the mass of tho ostato before tho partition. It was a debt of tho deceased. Tho consideration thereof is immaterial. Mrs. Elliot must contribute to pay it, because the slatuto of Mississippi “gives hor one-half of the personal estate after paying the debts of the deceased.”
    The assets having boon placed in bank by order of tho court pending litigation, the loss thereof occurring by tho failure of the bank must fall equally upon both the owners of said assets, Mrs. Burke, the universal legatee and testamentary execu-Irix of the deceased, and Mrs. Elliot, his wife. Mrs. Burke was under no obligation to protect Mrs. Elliot fi'om loss occurring to funds not under her control. Being a half-owner, Mrs. Elliot had as good an opportunity to pursue the delinquent bank, or clerk, if they were in fault, as Mrs. Burke.
    The item of live hundred dollars charged by Elliot’s attorney for having, among other services rendei-od. “ entei'ed upon the business of securing evidence” for a contemplated suit for separation between Elliot and his wife, which was never brought, can not be regarded as legitimate. An attorney ought not to recover on such a demand. Tho court below' erred in not rejecting this item so far as Mrs. Elliot is eoneornod.
    Mrs. Elliott does not occupy the, position of lieir. The moment the doath of hor husband occurred, she was by tho laws of the placo oí thoir domicile (Mississippi) vested with tho. ownership of ono-half of the personal estate alter paying the debts of the deceased. Therefore the judge a ano did not err in deciding that she was not liable, to contribute, to tho payment of tho attorneys omployod by tho universal legatee and testamentary executrix. There is no, more reason why Mrs. Elliot should contribute to pay Mrs. Burke’s attorneys than tho latter should contribute, to pay the foes of tho attorneys of tho former.

      k PPEAL from the Second District Court, parish oí Orleans. Edward D. White, acting in place of Judge Tissot, recúsed.

      E. Howard Mc-VoM) and T. Wharton Collem, for Mrs. Elliot, appellant.

      J. L. Tissot, B. Ehabkelford, and Labcdt & Aroni, for Mrs. Burke, executrix and appellant, and for themselves.

      B. B. Forman, for executors of Ritchie.
      Seminen & Mott, for Winchester & North.

      A. J. Villere, for Joseph Du-vigneaud.

      J. S. Whittaker, E. Sabouri/n, and E. Bermudez, for Mrs. Risley and Mrs. Bishop.
   Wyly, J.

In January, 1875, this court settled the controversy between Davis, Mrs. Risley, Mrs. Burke, and Mrs. Elliot in regard to the. property belonging to the succession of Hampton Elliot, deciding that the deed to Davis was a simulation whereby Elliot sought to conceal his property from his wife, whom he had abandoned; that the pencil will set up by Mrs. Risley was invalid; that the will made by Hampton Elliot in Mississippi, the place of his domicile, whereby he made Mrs. Virginia Burke his universal legatee, was valid; that tin*, charge of concubinage set up against Mrs. Burke to show her incapacity to receive the legacy was not sufficiently proved, and that Mrs. Elliot, the surviving widow; was by the laws of Mississippi entitled to one-half of the personal estate after paying the debts of the deceased. See 27 An. 42.

Soon after this decision Mrs. Burke, the testamentary executrix and universal legatee, filed an account which was opposed by Mrs. Elliot; it was also opposed by several creditors. Mrs. Elliot also sued for a partition, which was ordered.

Both these cases were consolidated, and from both judgments Mrs. Burke has appealed.

Mrs. Elliot, also joining in the appeal, prays that the judgment be amended as to three items which we will mention hereafter.

The creditors have not appealed.

In this court the controversy is between Mrs. Elliot, the. surviving widow, and Mrs. Burke, the universal legatee, in regard to the settlement and partition of the estate.

The universal legatee contends that one-half of the large amount of attorneys’ fees incurred by her in the course of the litigation between herself and the other three contestents, to wit: Mrs. Risley, Davis, and Mrs. Elliot, should be charged up to Mrs. Elliot; that as testamentary executrix she incurred this expense for the common benefit, and Mrs. Elliot, the surviving widow, should pay one-half thereof; that it is a succession debt, and Mrs. Elliot occupying the position of heir must allow this sum to be deducted from the estate before the partition thereof.

By the laws of Mississippi, the domicile of Elliot, his surviving widow is entitled to one-half of the personal estate after paying the debts of the deceased.

The attorneys’ fees in question were not the debts of the deceased. They were expenses incurred by Mrs. Burke, mainly for her own benefit, and to defeat the claims set up by Mrs. Elliot. To Mrs. Elliot it was a matter of indifference which of the wills of the deceased should be de-torminod 1 lit' valid ono. Tho rights accorded to her existed independently of tilt' trills. Site had an interest, however, in defeating tlie simulated title set np l)y Davis to the personal estate oí Elliot. She employed able eounsel, not only to defeat the J'iglits set up under the two wills, hut also to resist the pretensions of Davis; and to the defeat which the latter sustained tho eounsel of Mrs. Elliot contributed quite as much as the counsel of Mrs. Eurico.

There is no more reason why Mrs. Elliot should contribute to pay Mrs. Burke’s attorneys than tlu1 latter should contribute to pay the, fees of the attorneys of tho former. Mrs. Elliot does not occupy the, position of heir. The moment the deatli of hor husband occurred slio was, by the laws of the place, of their domicile, vested with tho ownership of one-half of the personal estate after paying the debts of tho dee,eased. Wo think the court a (pia did not err in deciding this point in favor of Mrs. Elliot.

\Ye turn now to the errors assigned by tlu* appellee, Mrs. Elliot, in respect to which she prays an amendment of the judgment:

first — Mho objects to the claim of Winchester <fc North placed on the account.

Hccond — To tlie item of $:-57(>l 2J-, 1 he loss sustained by tho failure of Cavaroc's bank or by the fault of the'clerk of the court, M. 0. Tracy.

Third — To the item of $5(575 5(5, the balance due on the note of Elliot 1<> Mrs. Bishop after exhausting tho mortgage.

As to the last item, the balance due on the note of Elliot after exhausting the. mortgage given to secure it, we think there is no doubt tho court decided properly in requiring it to be deducted from the mass of the ('state before the partition. It was a debt of tlie deceased. The consideration thereof is immaterial Mrs. Elliot must contribute to pay it, because the statute1 of Mississippi only gives her ono-hali of the personal ('state “after paying the debts of tin1 deceased.”

As to the item of $87(51 -24, we think tho judge below did not err in deducting it from tho mass oí tho estate. Tho assets had been placed in bank by order of the court ponding tin1 litigation, and the loss occurring by the failure of tin1 hank must fall equally upon both the owners. We do not lind Mrs Burke under any obligation to protect Mrs. Elliot, from loss occurring to tlu1 funds not under her control. Being a half-owner, Mrs. Elliot had as good opportunity to .pursue the delinquent bank, or clerk, if he was in fault, as Mrs. Burke.

As to the claim of Winchester ¿t North for alleged services as attorneys of Hampton Elliot, we are of opinion that it should be rejected to the amount of $2050, on the bar of prescription set up by Mrs. Elliot. The item of live hundred dollars charged by said attorneys for entering uimn tlie business of securing evidence ” for, a contemplated suit for separation between Elliot and his wife, which was never brought, we do not regard as legitimate; an attorney ought not to recover on such a demand. We think the court erred in not rejecting this item so far as Mrs. Elliot is concerned.

It is therefore ordered that, as to @2050 of the claim of Winchester & North, the judgment of the court below bo amended by rejecting it as to Mrs. Elliot, and, as amended, that the judgments hi these consolidated cases be affirmed, appellant paying costs of appeal.


text:
    No. 6107.
    Pierre Rousseau vs. Estate of Blaise Bourgeois.
    The only question in this caso is, whether or not, the nica oí list pendens should be maintained in an executory proceeding.
    Here the writ in the first suit having issued for too much, was returned into court, tho costs were all paid, and, instead of ordering an alias writ on a prayer for moro than tlio amount really duo, the plaintiff filed another petition and prayer for the correct sum and obtained a now order. Tho second petition was, under tho oireumstaneos, a virtual abandonment of the first, or merely supplemental' thereto, changing tho amount claimed on tho same note. It is certain that, the plaintiff could not have proceeded oil both orders at tlio samo time to sell the same property under the one single mortgage, and tlio defendant has no ground of complaint as to tho second order.
    The executory proceeding is not a suit in the ordinary signification of the term, but is merely tlio aid of tho judicial power to give force and effect to what is equivalent to a judgment confessed; and when there are actually no proceedings pending oil tho petition filed there can be soon no reason why another demand for a writ may not be filed, provided the defendant is not injured thereby, and in this ease no injury or any annoyance could result to the defendant by the filing oí the second petition for the executory process.
    APPEAL from tho Fifteenth Judioial District Court, parish of La-fourche. Beattie, J.

      J. 8. Goode, for plaintiff and appellee.

      Clay Iinobloch, for defendant and appellant.
   Howell, J.

The only question urged .before us in this case is whether or not the plea of I'm pendens should be maintained in an executory proceeding.

Tho appellant relies on the case of Taylor vs. Hill, 21 An. 639, to sustain the plea. That ease differs materially from this. The defendant in the executory proceedings took a devolutive appeal from the order of seizure and sale, and, pending the appeal, the plaintiff and appellee instituted suit via ordinaria against the defendant and appellant for an alleged balance on the claim, to which the plea of Us pendens was opposed and properly sustained, as the whole question was pending in the case on appeal. Here the writ in the first suit, having issued for too much, was returned into court, the costs were all paid, and, instead of ordering an «Has writ on a prayer for more than tjie amount really due, the plaintiff filed another petition and prayer lor the correct sum and obtained a new order. All this occurred in vacation, and the second .petition was, under the circumstances, a virtual abandonment oí the first or merely supplemental thereto, changing the amount claimed as due on the same note. It is clear that the plaintiff could not have proceeded on both orders at the same time to sell the same property under the one single mortgage, and the appellant has no ground of complaint as to the second order.

Reference is also made to several cases recognizing the right of plaintiff in executory process to issue alias writs upon the petition filed, but this is not exclusive. The executory proceeding is not a suit in the ordinary signification of the term, but is merely the aid of the judicial power to give force and effect to what is equivalent to a judgment confessed; and when there are actually no proceedings pending on the petition filed, we can see no reason why another demand for a writ may not be filed, provided the defendant is not injured thereby; and in this .case no injury or annoyance could result to the defendant by the filing of the second petition for the executory process.

Judgment affirmed.


text:
    No. 6025.
    State of Louisiana vs. William L. Thompson.
    The first ground of defense on the part of defendant is, that the grand jury which indicted him was not legally organized, being the grand jury which was organ-izpd by Judge Braughn whilo acting, undor the appointment of Judge Atocha, the presiding judge of said court, but it is well settled that objections of this character must be made before going to trial, which was not done in this ease. Besides, there is nothing in this record showing when the grand jury was organized and by whom.
    The indictment was found on the fifteenth June, 1875, and it ivas returned into court, recorded and filed, on the twenty-first of June, 1875. During all this time this court will take judicial notice that Judge Braughn ivas the judge of said court by commission issued to him by the Governor after the death of Judge Atocha.
    The second ground of defense is presented in a bill of exceptions which defendant took to the rule of the court» (ina, refusing to allow him to challenge peremptorily four jurors. But defendant ivas not entitled to challenge peremptorily the jurors in Question, because his ease does not como within the provision of section 997 of the Revised Statutes, allowing such challenge.
    APPEAL from the Superior Criminal Court, parish of Orleans. Steele, J.

      A. P. Field, Attorney General, for plaintiff and appellee.

      S. Bel-den, for defendant and appellant.
   Wyly, J.

The defendant, who was convicted of the offense of oppression and extortion in office, and sentenced to a fine of three hundred and ten dollars, has appealed from the judgment against him.

The first ground of defense urged in the brief of defendant is: the granel jury wliich indicted him was not legally organized, being the grand jury oí which Frank was foreman, and organized by Judge Braugim while acting under the appointment of Judge! Atocha, the presiding judge of said court. It is well settled that objections of this character must 1)0 made before going into the trial, which was not done in this case. Besides, there is nothing in the record showing when the grand j my was organized and by whom. The indictment was found on the fifteenth of June, 1875, and it. wu,s returned into court, ’oc-orded and hied, on the twenty-first of June, 1875. During all of this time, wo will take, judicial notice that Judge Braugim was the judge of said court by commission issued to him by the (iovernor after the death of Judge Atocha.

The next objection is presented in a bill of exceptions which defendant took to the niling of the court refusing to allow him to challenge peremptorily four jurors.

Section 997 of the lievisod Statutes provides that “in all criminal prosecutions in this Hiato for any crime the punishment af which may he imprisonment at bard labor fora term of twelve mouths or more, tin' defendant in such prosecution shall he entitled to challenge peremptorily and without showing any cause any number of pirors not exceeding twelve; and this, whether such imprisonment shall he peremptory, or within the discretion of the court.”

The punishment for the offense charged in the caso at bar is not imprisonment at hard labor; it is merely a line, or imprisonment, or both at the. discretion of the court. "Revised Statutes, section 8(i8. Defendant was not entitled to challenge peremptorily the jurors, because nis ease does not come within the provision of section 997 allowing' it. The constitutional objection raised by the defendant to the discrimination between grave and minor offense's in regard to the light of peremptory challenges is not perceived.

The next objection urged in the- brief is the bill of exceptions taken by the defendant to a. city ordinance offered and l’cccived in evidence on the part of the prosecution.

To the bill of exceptions the judge adds : “The objection was only us to the effect of the evidence offered, and not to its admissibility.” As the ordinance is not annexed to the bill nor contained in the record, this court of'■course' can have no knowledge as to ¡is character or effect. As its admissibility was not questioned when it was received, there is no error of which the defendant can claim relief.

There are other bills of exceptions in the record, but as they are not urged by the defendant, they will no! be' noticed.

Wo see no error in the case.

Judgment affirmed.

liehearing refused.