author: Pochb. J.

text:
    No. 9802.
    The State of Louisiana vs. Michel Sonnier.
    In an information charging an assault with intent to kill, it is not necessary that the pleader should qualify both the “act” and the “intent” as felonious. To qualify the intent is sufficient.
    The averment that the party assailed was then in the peace of the State, is not necessary to be proved; its omission is therefore not a matter of substance which would vitiate Cho information; hence, objection grounded on its omission cannot be made by a motion in arrest of judgment.
    APPEAL from the Thirteenth District Court, Parish of St. Landry. Hudspeth, J.

      John N. Ogden and JS. P. Veaeie, District Attorneys, for the State, Appellee.

      W. 0. Perrault for Defendant and Appellant:
    1. “If the offense be statutory it is indispensable to describe it, if not in the letter, at least in the spirit of the statute oreating the offense. The substance must be rigidly given.” Yoorhies Crim. Jur. p. 388, no. 69, 70, 72; same book. p. 387, no. 67^ ,68; Wharton Crim. Prac. and Plead (8feh ed.) §§ 152,153, 154,163, 166; 5 Ann. 324: Bishop Grim. Proc. § 360 and notes, § 362 and notes, §§ 268, 277.
    2. An information framed under See. 793, R. S. of Louisiana, whi«b does not aver that the assault was made with felonious intent, or that the intent was to feloniously kill-and slay, is defective and bad for uncertainty, because in snob cases the intent forms the gist of the offense and must be specially averred. Wharton’s Crim. Law (8th ed.), Yol. 1, §641; 36 Ann. 99; Yooihies Crim. Jur. p. 388, No. 72; Wharton’s Precedents of Ind. §242; Bish. C. P. §556.'
    3. An information framed unfer said Sec. 793, which does nob allege that the party assaulted was a “person in the peace of the State then being,” is fatally defective. The law in said section intended to deal with unprovoked assaults upon peaceable and unprovoking persons; and although not material to be averred in murder or manslaughter cases, is of the essence of the offense created and punished by Sec. 703 of It. S. of Louisiana. Voor. Grim. Jur. p. 144, p. 387, no. 07, 68: also p. 388, no. 69, 72; Whar. Or. P. and P. §§ 152, 153. 154. 166: Bisb. C. P. §§268, 556.
   The'opinion of the Court was delivered by

Pochb. J.

Defendant appeals from a conviction of an assault with intent to kill, under section 793 of the Revised Statutes, and from a ■sentence of imprisonment and a fine exceeding three hundred dollars.

Tiis complaint, by means of a motion in arrest of judgment, presents two questions:

1st. The alleged defect of the information in this, that it does not qualify the assault, or the intent as felonious.

2d. The fatal omission of the words, “ in the peace of the State then being.”

1st. A serious doubt may exist as to the nature of the offense denounced by section 793, and as to the intention of the law-giver, to therein provide for a felonious offense.

But be that as it may, we find that the information in this case charges the accused with an assault with intent to kill and feloniously slay,” etc., and we conclude that the iutent is thereby sufficiently described. In such cases, it is not indispensable to qualify both the act and the intent. State vs. Bradford, 33 Ann. 921.

It is true that the information is drawn in a very inartistic manner, but the argument of defendant’s counsel, predicated on the idea that the words “kill” and “slay” arc not synonymous, is somewhat hypercritical.

2d. There is no merit in the second ground of the motion. This Court has held, on good authority, as well as on reason, that the omission of this averment is no ground for a motion in arrest of judgment. State vs. Vincent, 36 Ann. 771.

We have also held, and we reaffirm the ruling, that the omission of the words “ in the peace of the State then being,” was covered by section 1063 of the Revised Statutes, which provides that “no indictment for any offense shall be held insufficient for want of the averment of any matter unnecessary to be proved,” and that such an averment was not necessary; hence the omission of the same does not vitiate the indictment. State vs. Simeon, 36 Ann. 923.

We therefore conclude that an objection on that ground does not involve a matter or defect of substance, and that it cannot avail the defendant under a motion in arrest of judgment.

Judgment affirmed.


source: Caselaw Access Project

author: Todd, J.

license: Public Domain

text:
    No. 9803.
    The State of Louisiana vs. David Philbin et al.
    Where a statute uses the words “wilfully or maliciously” to qualify the act therein declared an offense, the indictment may charge the act as “wilfully and maliciously” done; or it suffices if it is charged as wilfully done or as maliciously done, using either of the qualifying]words alone.
    Where a common law crime, such as murder, forgery, or the like, is denounced hy a statute by name, indictments for such crime should be charged in the words and qualifications prescribed by the common law for indictments for such offenses.
    When, however, a statute denounces a certain act or acts an offense and specifically describes the act, though such offense may bear a close relation to a well known common law offense, and belong to the same species, the offense thus declared is properly a statutory offense, and maybe charged in the language of the statute.
    An indictment, under Sec. 843,.for setting fire to and burning an outhouse, etc., charging that it was done “feloniously, unlawfully and maliciously,” is valid.
    APPEAL from the Criminal District Court for the Parish of Orleans. Balter, J.

      M. ,T. Cuwrdngham, Attorney General, and Lionel Adams, District Attorney, for the State, Appellee:
    Where the defense denounced by the statute consists in wilfully or maliciously setting fire to and burning a building, the indictment may charge the burning to have been done “feloniously, unlawfully and maliciously.” It is permissible, hut not essential, to set out that the criminal act was both wilful and malicious, 1 Eish. C. Proc. §§ 436, 434, 558; Bish. on Stat. Crimes, §244; Whart. Or. P. and P. §§228,362, 163.

      F. B. JEarliart for Defendants and. Appellants:
    The crime of arson, in this State, is the “ wilful and malicious burning of tbe bouse of another.” State vs. Pulord, 33 Ann. 683.
    In Louisiana, the Supreme Court holds that the generic term of arson is included in Secs. 841, 842, 343, B. S., La.; 33 Ann. 683.
    The commission of any one of the distinct offenses enumerated in these sections constitutes the crime of arson. 33 Ann. 683.
    Arson being a common law offense, this Court holds iu an indictment for the commission of a common law offense, under a statute: “It is insufficient to charge in the statutory terras alone, hut must he charged with all the essential averments of the common law for the same offense here.” State vs. Flint, 33 Ann. 1292, and authorities there cited by Justice Fenner on rehearing; Bishop’s Cr. Proc. vol. 3, par. 599, 600, p. 365, 3d edition; Bishop’s^Stat..Crimes, 2d ed., par. 88, p. ; 76 lb. pp. 115 to 132; Bishop’s Crim. Pro., vol. 1, par. 339; State vs. Hannefcd, 54 V. p,'t83; C. L. Mag., vol. 4, p. 272; State vs. Bradley, Del. Gen. Sessions, Crim. Law Mag., vol. 3, p. 796.
    Wilfully and maliciously. These words cannot he supplied in the indictment by “feloni* ously, unlawfully and wilfully.” Bishop’s Crim. Pro., 3d ed., par. 613, p. 373; 34 B. H. 510; 13 Allen, 554; 108 Mass. 487; B. C. P., vol. 2, pars. 42, 43, 44, pp. 19, 20.
    Where the statutory words were “feloniously, unlawfully and maliciously,” and those iu the indictment were “feloniously, voluntarily and maliciously,” tbe variance was held to be fatal. Bex vs. Beader. 4 Carr & P. 245; Bex vs. Turner, 1 Moody, 239.
    The word or, in Secs. 841, 842, 843, B. S. of La., means wnd. Should read in the indictment, “wilfully and maliciously.” This word or is construed and in the case of State vs. Mitchell, 5 Iredell Bep. N. C., p 350; State vs. Price, 37 Ann. 219.

      Justice Pochó, organ of tho court, in State vs. Williams, 37 Ann. 777, says a serious difference of opinion may exist on the proposition that the word “wilfully *’ is synonymous with the words “feloniously” and “of his malice aforethought.” It may so he said oí the words “ unlawfully ” and “wilfully.”
    Arson is defined at common law to he the voluntary and malicious burning of the house of another. 3 Inst., 66; 1 Leach, 245; Chitty’s Crim. Law, vol. 3, ed. of 1841, p. 1120.
    It must he wilful and malicious. IHale, 509; 2 East. P, C. 1019; Chitty’s Crim. Law, vol. 3, p. 1120.
    In the indictment at common law the terms voluntarily (or wilfully) and maliciously are requisite. 2 East. P. C. 1021; Chitty’s Crim. Law, vol. 3, J124. 1125; Rex vs. Reader, 4 Carr & Payne, 245. As to form of indictment: Chitty’s Crim. Law, vol. 3, p. 1127; Wharton G. L., pars. 625.1673; Wharton’s Precedents, Indictments and Pleas, 3d ed., vol. 1, p. 389, et seg.

    The case of Chapman vs. Com., 5 W. 427, is not in point. This was not common law arson, but the burning of a barrack of hay or grain. A barrack is not a house or barn, hut a thatched roof erected over a rick of grain.
   The opinion of the Court was delivered by

Todd, J.

The defendants were sentenced to seven years’ imprisonment at hard labor.

The indictment under which they were tried and convicted charged that the defendants “did feloniously, unlawfully and maliciously set fire to and burn a certain building * * * known as Hill’s soda water manufactory,” etc.

Amotion in arrest of judgment was made. The ground of the motion was substantially, that the offense charged was the crime of arson at common law, and that the indictment in charging that the act was done feloniously, unlawfully and maliciously, was insufficient in law, and that the offense being arson the hill should have charged that the setting fire to or burning was done feloniously, wilfully aud maliciously, in conformity to the requirements of the common law.

This indictment purports to he based on Section 843 of the Revised Statutes.

Section 841, R. S., declares that “every person who shall wilfully or maliciously set fire to or burn a house *• * * in the night time, in which a human being is usually staying, * *■ * shall suffer,” etc.

Section 842 provides that “ whoever shall wilfully or maliciously set fire to or burn any house * 6 * in the day time * * * shall suffer,” etc.

Section 843 declares in substance that whoever shall wilfully or maliciously set fire to or burn an outhouse or other building- not used as a dwelling, shall suffer, etc.

If the indictment in this instance can be considered as charging a statutory offense under any one of the above named sections, the language, or words therein used, viz: “feloniously, unlawfully and malicously,” would be sufficient. Wharton Cr. P. and P., § 228; 1 Bishop Cr. Pro., §436; Bishop Statutory Crimes, §244; State vs. Price, 37 Ann. 218.

For, as settled by these authorities, where the words qualifying the act constituting the offense are in the alternative, or separated by the disjunctive “or,” they may be joined by the conjunctive “and,” or it ■will suffice to use in the indictment one only of the qualifying words. As for instance, in this case where the words of the statute are “ wilfully” or “maliciously,” they may be set forth in the bill “wilfully” and “maliciously,” or the indictment may charge that the act was wilfully done or that it was maliciously done — using either of the qualifying words alone.

This indictment charges that the act was feloniously, unlawfully and maliciously done; and since the word “maliciously” is used, it is enough, and the word unlawfully maybe regarded as surplusage; that is, provided that in this instance it is sufficient to follow the language of the statute.

But the counsel for the accused contend that the offense for which the defendant is prosecuted, is the crime of arson at common law, and that the indictment must conform strictly to the forms and words prescribed by the common law in indictments for that crime, and refers us to a decision of this Court, State vs. Flint, 33 Ann. 1292, in support of his contention. That was the case of an indictment for forgery, and we did hold in that case that the common law form for the prosecution of that crime must be followed in this State. The reason for such a ruling was that our statute relating to that offense simply denounced the crime of forgery substantially byname only, without defining the crime or declaring what act or acts would constitute the offense. So, if the crime of arson had been denounced by the statute without descriptive words of the act or acts that constituted it, then resort would have to be made to the common law for rules to guide in the prosecution of it; and the case, in such event, would come strictly within the rule laid down in the Flint case above mentioned. But it is altogether different in this instance. The statutes above referred to, on one of which this prosecution is founded, do not denounce eo nomine the crime of arson, they do not contain the word “ arson,” but they declare certain acts— which are specifically described under varying conditions — -as so many offenses subject to different punishments; and these offenses, thus declared, though relating to the same subject as arson — the setting fire to and burning buildings and like structures — differ in one or more essential particulars from that crime, as defined by the common law.

When acts, thus specifically described, are declared offenses, and the penalties prescribed by statute, they are really statutory offenses;-and are to be charged not according to the strict requirements of the common law, but the indictment may follow the language of the statute or statutes.

The counsel, however, refers us to the case of the State vs. Fulford, 33 Ann. 683, as ruling that the offense declared by the statute under which this prosecution was instituted was the crime of arson, as known to the common law. The party in that case was indicted under the same statute that we are now considering and a plea of the prescription of one year was interposed in bar of the proceeding, and in dealing with that plea, it was stated by the organ of the Court that the offenses declared in these statutes against setting fire to and burning houses, etc., were included in the generic term of arson, and were different grades of that offense. In one sense this is entirely true, since such an act of burning, in common parlance, is termed or called arson. But the question now presented was not before the Court in that case, and the Court nowhere said in that opinion that the acts denounced in any one of these statutes constituted the crime of arson as defined by the common law.

Judgment affirmed.


author: Fenner, J.

text:
    No. 9582.
    The State of Louisiana vs. Joseph Natal.
    The legality and constitutionality of the Private Market Ordinance of the City of Kew Orleans, Uo. 4798, A. S., have been hitherto fully affirmed by this Court.
    Under Article 86 of the Constitution, prosecutions for the violation of said ordinance may be properly carried on in the name of the State.
    A PPEÁL from the First Recorder’s Court of the City of New Or. leans.

      Walter R. Rogers, City Attorney, and Branch K. Miller, Assistant City Attorney, for Plaintiff and Appellee.

      Belden c6 Armbruster for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

This appeal is taken from a sentence imposing a fine for violation of an ordinance of the city of New Orleans, No. 4798, A. S., known as the Private Market Ordinance.

The objections to the legality and constitutionality of said fine are several, viz:

1st. That the prosecution cannot be conducted in the name of the State on the affidavit of a private individual, but that the city is the proper and necessary party to conduct such prosecutions.

Under Article 86 of the Constitution, which provides that c‘ all prosecutions shall be carried on in the name and by the authority of the State of Louisiana,” and in the absence of any legislative direction authorizing prosecutions for violations of her ordinances, to be conducted in the name of the city of New Orleans, we think the prosecution was properly instituted in the name of the State. 1 Dillon Munic. Corp. §429, and authorities there cited; see also, State vs. Gisch, 31 Ann. 544, which was a prosecution in the name of the State under the same ordinance.

2d. The remaining objections go to the legality and constitutionality of the ordinance.'

They have been heretofore considered and overruled by this Court in two cases. State vs. Gisch, 31 Ann. 544; City vs. Wolf, 36 Ann. 986.

Judgment affirmed.


author: PochÉj J. Watkins, J.

text:
    No. 9840.
    The State ex rel. W. D. Gooch vs. J. E. Robinson, Justice of the Peace, Parish of DeSoto.
    Iii an application for writs of certiorari and prohibition, the complaint of tbe relator that the inferior court has issued an unwarranted execution against his property, will not be favorably entertained by the Supreme Court, if the record shows that the relator had himself previously submitted to the court a qua the question of the alleged illegality of the execution which he resists, by means of an injunction.
    The judgment rendered on said injunction by a court of competent jurisdiction must be held as having disposed of all the points of law involved in the alleged illegality of the execution, especially when it appears that there had been a regular trial, in which all the rules of legal procedure had been observed. Hence, sucha judgment cannot be reviewed otherwise than on appeal.
    The supervisory jurisdiction of the Supremo Court under a ccrtioraA'i must be restricted to* an examination into the validity of the proceedings held in the lower court; it cannot be exercised to review the judgment as to its correctness either on the law or on the facts of the case.
    The supervisory powers of the Court must not be confounded with its appellate jurisdiction.
    ^/^PPLICATION for Certiorari and Prohibition.

      Wm. Goss for the Relator.

      Geo. JE. Head for the Respondent.
   The opinion of the Court was delivered by

PochÉj J.

Relator complains that an illegal and unwarranted execution against Mm has been issued by respondent, under the following circumstances:

As a judgment creditor in respondent’s court, relator issued an execution and caused the seizure of property belonging to his debtor; and on the opposition of a tliird party, a judgment was rendered by the justice of the peace, allowing- the proceeds of the property thus seized to the third opponent.

Subsequently, demand was made upon relator by the constable of the court for payment of costs incurred in the third opposition, for the preservation and preparation for sale of the property seized and sold under execution as above stated. On his refusal to pay the costs thus demanded of him, on the ground that the same were unlawfully charged to him, the respondent illegally caused execution to issue against him in satisfaction of the costs thus illegally charged to Mm, amounting- to a sum less than ten dollars, in the absence of any and all legal prerequisites.

Whereupon relator sued out of respondent’s court a writ of injunction in order to restrain said unwarranted execution. On trial, his injunction was dissolved and the execution was thus allowed to proceed against him. Hence, his present application was made with a view to test the validity of the respondent’s proceedings.

Conceding that the execution complained of had been wrongfully obtained, and that on the trial of relator’s injunction respondent erred in rendering a judgment dissolving the same and sustaining the wrongful execution, we find no warrant for our interference in the premises undei our supervisory jurisdiction.

In the trial of the injunction over which respondent had undoubted jurisdiction, a jurisdiction invoked by the relator himself, all the rules of procedure and all the forms of law were followed and observed by the justice of the peace — who rendered his judgment only after a legal trial and after full hearing of the parties.

The record contains no suggestion of the least invalidity of the proceedings, and the validity of the same is the only question for review under the writ of certiorari. Under such a proceeding this Court can exercise no appellate jurisdiction, and cannot review the judgment in order to pass upon or test its correctness, either in law or in fact. Such an examination is exclusively and solely within the province of the court having appellate jurisdiction in the premises. If no appeal lies from the judgment, it shares the fate of- all judgments which are not appealable in nature or character.

The only question open for discussion in the proceeding before us, under the pleadings, is the alleged error of the respondent in rendering a judgment maintaining and countenancing an execution alleged to have been obtained in wanton violation of law.

To attempt to review that judgment would be on our part an assumption of an appellate jurisdiction which does not exist, and -would involve us in a greater error than that which is charged against the respondent. State ex rel. Wood & Bros. vs. Judge, 38 Ann. 377; State ex rel. Berthoud vs. Judge, 34 Ann. 782; State ex rel. Wood vs. Judge, No. 9773, not reported.

We are, therefore, powerless to grant any relief to relator under these proceedings.

It is, therefore, ordered that the alternative writs herein granted be set aside, that said writs be declined, and that relator’s application be hence dismissed at his costs.

Mr. Justice Watkins dissents from this opinion, and reserves his right to present his views in writing.

Dissenting Opinion.

Watkins, J.

Relator obtained final judgment against Isam Henry on the 29th of October, 1885, for his debt and cost; and, under execution, caused to be seized, in satisfaction thereof, among other things, a lot of seed cotton.

This cotton the constable had ginned, packed and advertised for sale.

On the 14th of November, 1885, R. H. Smith filed in the district court a third opposition suit, claiming a preference on the proceeds of the sale of the cotton, on the ground that he was a creditor of the judgment debtor for necessary plantation supplies furnished.

This case was transferred to the justice court, and judgment was rendered thereon the 29th of April, 1886, for the proceeds of sale and the cost of opposition.

Subsequently the constable demanded of the relator, as the plaintiff in the original suit, payment of $27.75 cost, incurred therein.

Of this he paid $17.40, and refused to pay $10.35 as excessive, illegal and not approved. The items objected to were for hauling, weighing and ginning the said cotton, and the bagging and ties furnished.

At the request of the constable, and with the assent of third opponent, the respondent issued an execution under the judgment in the third opposition suit, and directed it against relator, judgment credit- or in the original suit, and thereunder the constable seized relator’s property.

This sale he enjoined on the ground that said cost was' not legal and demandable of him, and could not be enforced against him by execution.

The respondent dissolved this injunction, and ordered the sale to be proceeded with, and relator made application for certiorari, with a view to test the validity of the execution for cost and proceedings thereunder.

While it is true that respondent had full and complete jurisdiction over the injunction suit, which relator had invoked in his own favor; and that all the rules of proceedure and the forms of law were therein pursued; yet, relator’s complaint of the issuance of the execution, by the respondent, in a cause in which there was no judgment against him, and for the recovery of costs not approved, and not taxed as cost, contradictorily with him, and not covered by the fee bill — stands out clearly and prominently.

Relator did not apply for a writ of prohibition, and, consequently, no question is raised with regard to the respondent’s jurisdiction. C. P. 845, 840, 851.

The application for certiorari necessarily admits his jurisdiction.

The writ only' commands him to send to this court a certified copy of his proceedings, in order that their “ validity may be ascertained.” C. P. 855.

The writ is only granted when “'the suit is to be decided in the last resort, and when there lies no appeal, by means of which proceedings absolutely void might be set aside,” C. P. 857, 864 ; or when final judgment has been rendered, and execution has issued. C. P. 866.

In the latter ease, the writ of certiorari will arrest the execution, until the validity of the proceedings can be determined.

If, upon an examination of the record, the proceedings appear to be null and void, “and have not been sanctioned by the party complaining of them,” it is the duty of this court to “ avoid the proceedings, and direct the inferior judge to try the case cmew, in conformity with the provisions of the law.” C. P. 864.

The execution issued for a sum less than $10, and hence, an injunction against it, by the debtor in the writ, could not be appealed to the district court. The amount sought to be collected, was below the lower limit of its appellate jurisdiction. Const., art. 111.

This is the test of its appellate jurisdiction. 9 Ann. 236; 12 Ann. 784; 13 Ann. 150; 18 Ann. 398; 16 Ann. 47; 21 Ann. 307; 36 Ann. 423.

The judgment rendered by respondent was final, and unappealable.

A suit seeking to compass the nullity of an execution, as one that was illegally issued, cannot be regarded as a sanction of it.

The Code clearly contemplates recourse being first sought by the relator, in the court having jurisdiction of his demands; and that the stage of such suit must be “in the last resort/’ or judgment must have been actually rendered therein, when certiorari is applied for.

I-Iis pursuit of that relief was not a sanction of the action, or execution.

The case at bar bears no analogy to the State ex rel. Zuberbier & Behan vs. Judge, 33 Ann. 15, wherein relators were shown to have voluntarily appeared, and made answers as garnishees, in response lo a citation, afterwards objected to as illegal.

Instead of sanctioning the execution, the relator enjoined and resisted its enforcement.

In State ex rel. Geale vs. Recorder, 30 Ann. 450, Manning, C. J., said that C.P.857 “was framed expressly for those cases where there was no appeal, and where the inferior court was of last resort,” by means of which, proceedings absolutely void might be set aside.

In State ex rel. DeBuys vs. Judges, 32 Ann. 1256, an application was made “ for a certiorari, to ascertain the validity of certain proceedings by which the relator was sentenced for a contempt of court, to an imprisonment of ten days and to pay a fine of fifty dollars.” The relator complained that he had been arrested, under an order of court, and without a hearing condemned, and sentenced without notice, and that same was illegal.

The Court, quoting from High of Extraordinary Legal Remedies, the following — “the right to a hearing is absolute, and cannot be denied in a court of any grade,” — said: Where the forms of law in such respect have not been observed, the proper remedy is by certiorari.’’’

The paramount law of the land provides that “no person shall be deprived of life, liberty or property without due process of law.” U. S. Const. Amend., 5.

In the present case no proceeding had ever been taken against the relator to ascertain and tax the costs in dispute, as is plainly required by R. S. 750. Those claimed of him fall within its provisions. This was a condition precedent to their recovery of plaintiff in the suit of Gooch vs. Henry, wherein same were engendered.

In State ex rel. Houston vs. City, 30 Ann. 82, it was held that “u'here disputed, the sheriff’s account is but a claim, and until acknowledged by a final decree of a competent court, that claim cannot be enforced by mandamus.”

In Beauz vs. Price, 14 Ann. 187, it was held: “ Where the plaintiff has recovered judgment, the proceeding to render his property liable in execution for cost is statutory, and the form of the statute must be strictly pursued, under pain of nullity."

When the respondent issued a writ of execution under the judgment in the third opposition suit against relator, who, as plaintiff in another suit, had obtained judgment for cost against Henry — without notice to him and without any judgment authorizing it — he was guilty, in my opinion, of an abuse of legal proceedings, and thereby enabled the constable to seize relator’s property without due process of law.

His subsequent judgment dissolving the relator’s injunction no more rendered the execution legal, than did the sentence of the judge for contempt, or the decree of the recorder punishing a violation of the lottery statute.

I am of the opinion that this Court has ample authority, in the exercise of its supervisory power, to declare the respondent’s proceedings absolutely void, and to direct him “to try the case anew, in conformity with the provisions of the law.”

Eor these reasons, I dissent from the opinion of the Court.


text:
    No. 9643.
    James H. Cosgrove vs. His Creditors.
    In proceedings in insolvency by a husband, where property is withheld from his schedule because his wife claims to have bought it with money given or paid her by him, the wife should he made a party, and the cause will be remanded in order that she intervene or be called in by the creditors.


text:
    No. 9567.
    The State of Louisiana vs. Andrew Harrison.
    This case involves the same principle as No. 9566, The State vs. Samuel Cohn, page 42.


text:
    No. 9433.
    A. F. Grundy vs. Crescent News and Hotel Company.
    Iu an action for a malicious prosecution, where the evideuee shows that the defendant, in causing the plaintiff to be arrested and prosecuted, acted from motives of private interest and without probable cause, his action, even under the advice of counsel, will not exempt him from liability.


text:
    No. 9584.
    The State of Louisiana vs. F. Lamarque.
    Tho issues in this case are the same as in No. 9582, The State vs. Joseph Natal.


text:
    No. 9583.
    The State of Louisiana vs. D. Rotzé.
    The issues in this case are the same as in No. 9582, The State vs. Joseph Natal.


text:
    No. 9770.
    The State of Louisiana vs. Edgar J. Andry.
    The record in this case suggests no en or and presents nothing for review.


text:
    No. 9693.
    E. Conery, Jr., et al. vs. New Orleans Waterworks Company et als.

    The only question involved in this case is the manner in which it should, be fixed for trial in the Supreme Court.


text:
    No. 9745.
    The State ex rel. Matthews vs. Sheriff and Tax Collector.
    A retail merchant who combines the sale of liquors in less quantities than a pint, uuder an ordinary license of §5, can be required to pay only §50 and not §55, under Section 6 of State license law of 1881, E. S.


author: Bermudez, C. J.

text:
    No. 9795.
    The World’s Industrial and Cotton Centennial Exposition vs. The North, Central and South American Exposition. On Intervention and Third Opposition of Sam’l M. Todd et al.
    Persons engaged to do the current manual or menial work to keep the grounds and the buildings on the same in proper order, have no privilege for the payment of wages which may be due them, which outranks that of the vendor for the discharge of the price of sale due him.
    The appropriation of a sum of money, the proceeds of the judicial sale of effects, on which such persons have no privilege, is unauthorized, and is error in the judgment passing on the third oppositions of such claimants.
    An appellee who prays for the reversal of the judgment appealed from, on its merits, waives thereby the right of asking a review by the appellate court of a decree in favor of appellants, overruling a plea of misjoinder filed by the plaintiff to their third opposition.

      APPEAL from the Civil District Court for the Parish of Orleans. Bightor, J.

      Qus. A. Breaux for Plaintiff and Appellee.

      B. B. Formam, for Intervenors and Third Opponents, Appellants.

      F. M. Hudson for the Receivers.
   The opinion of the Court was delivered by

Bermudez, C. J.

This controversy involves questions of conflicting privileges claimed by a vendor and by laborers, etc.

The suit is brought by the plaintiff to recover of the defendant a balance due, as the price of certain buildings, machinery and other effects put on the Exposition grounds in this city by plaintiff, as lessee or occupant.

Pendente lite an order was obtained for the sale of those effects, which had been sequestered.

A number of parties claiming to have kept the buildings and machinery in repair and preserved them from destruction, intervened, asking to be paid in preference to plaintiff as vendor.

Exceptions of misjoinder and other defenses were filed to the third oppositions. The exceptions were overruled.

On the merits the court rendered judgment in plaintiff’s favor for $86.439 27, with vendor’s privilege, in favor of O’Rourke, Ferguson, Bradburn, Richardson and Nelson together for $342, and of a number of opponents for $2634 50, to be paid pro rata out of $514 45 realized by effects, not found to have been sold by plaintiff, and the court dismissed the interventions of the other opponents not named in tho judgment. The sale made by the sheriff, under the order of court, realized $79,211 10.

O’Rourke, Ferguson, Bradburn, Richardson and Nelson have neither appealed nor asked an amendment of the judgment; but Sam’l M. Todd and others named in the motion have appealed.

The plaintiff and appellee has answered the appeal, asking the reversal of the judgment on the merits for reasons specified. It is questionable whether the appeal taken by the opponents has brought up, for review, the decree overruling the exceptions, which was in their favor, anterior to and distinct from the judgment on the merits; but if it did, appellee had not'asked for its reversal, and probably cannot question its correctness. The omission amounts to a waiver.

We are therefore relieved from passing upon it, and are required to test that of the judgment on the merits as far only as it affects the appellants,

Those portions of it which were rendered in favor of O’Rourke, Ferguson and the other three, and from which no appeal was taken, cannot therefore be revised.

Neither are we concerned with the quantum which the judgment allows to the opponents named in it and which does not seem to be disputed.

The only question submitted for adjudication is, whether the opponents llave a privilege entitling them to be paid anterior to the vendor.

The district judge declined to recognize such privilege, but ordered them to be paid out of $514 45, the proceeds of effects, which he found had not been sold by the plaintiff.

In order to determine the question before us, it is necessary that the character of the parties appellant, who pretend to outrank the vendor, be first ascertained.

They represent themselves to be laborers arid mechanics, engaged in keeping the buildings and machinery in repair, preserving from destruction by their labor the things out of which alone the plaintiff could be paid. They occupy the attitude of salvors.

The plaintiff, on the other hand, claims that the appellants are part of quite a large number of employees engaged to do the current simple manual or menial work at the Exposition, such as cleaning the grounds, sweeping and washing the floors, oiling the machinery, lighting the lamps, stopping leaks on the roofs, and similar matters, such as might be required by the ordinary course of things or some emergency.

The district judge so found, and an examination of the record does not enable us to differ in that conclusion.

The appellants refer to several articles of the Civil Code and to a number of decisions expounding and applying them; but, as they are neither servants nor domestics, nor artisans for laboT on movables in their possession, nor livery stable keepers, nor feeders of slaves, nor warehousekeepers, nor workmen employed in constructing, rebuilding or repairing buildings; nor furnishers of supplies, — we are at a loss to perceive on what they predicate their claim for any privilege, particularly one outranking the vendor, who is allowed by law the first of all privileges, unless in carefully specified exceptional cases. Among these is not to be found that of the appellants, who must be viewed as ordiuary. employees engaged to keep a place in running order’. •

The only article in the Code under which the appellants could have claimed shelter, but to which they have not even referred, is Article 3267 (3234), which provides how the vendor, the workmen, and furnishers of materials, who have constructed or repaired, or provided supplies, on a movable object unpaid for, shall be paid. That article places them apparently on an equal footing, with preference over the other privileged creditors of the debtor, even those for the funeral expenses; but not those incurred to procure the sale of the thing.

But, as this article applies only to the workmen and furnishers whom it mentions, it does not shield the appellants who are neither in the sense of the law.

The appellants, however, confidently point to Article 175 of the Constitution, which ordains the passage of laws to protect laborers on buildings, roads, railroads and other similar works against the failure of contractors and sub-contractors to pay their current wages when due and to make the corporations, company or individual for whose benefit the work is done, responsible for their ultimate payment.

They, besides, point to Act 134 of 1880, p. 183, passed in furtherance of that article and which enacts that laborers, workingmen, on buildings, streets, railroads, canals and ditches, and other similar works, when their services are engaged by the proprietor, or by his agent, upon any of the said works, shall have a first privilege upon the buildings, or other works upon which their labor has been bestowed.

Both the constitutional provision and the legislation in execution of it, have for their object to protect laborers against the failure of contractors to pay them, by making the obligee responsible and burdening the building or other work on which the labor was bestowed.

It cannot be pretended in this case that the opponents have constructed, rebuilt or repaired any of the buildings and other objects sold, and it is apparent that neither the convention nor the legislature ever intended to bring employees of the class to which appellants belong, within the purview of those provisions.

The district judge rendered judgment in favor of appellants, decreeing that the sum of $514.15, realized from the sale of effects in the architect’s room and the property of defendants, be divided pro rata among the intervenors named in the judgment.

Of this, the plaintiff and appellee complains, in asking for the reversal of the entire judgment.

Even if the appellants are entitled to a privilege, it is surely not that of lessors and it cannot be perceived how they can be allowed'to satisfy their claims out of the proceeds of effects, on which they .are recognized to have no privilege and which are declared to belong t'o the defendant and not subject to the vendor’s lien. It was error to consecrate those proceeds by the judgment, to the payment pro rata of the claims of the opponents.

It is, therefore, ordered and adjudged, that the judgment appealed from be amended by striking therefrom that portion of it which appropriates the sum of $514.15 to the payment of appellants, and that thus amended the judgment remain undisturbed and be affirmed with costs.


author: Todd, J. PochíS, J.

text:
    No. 9762.
    Francis J. Pasteur et al. vs. R. N. Lewis and Wm. Lynd.
    Where in a motion for an appeal the return day is left in blank and thejudge on his own mo tion fills up the blank with an illegal return day, the irregularity will not he imputed to the fault of the appellant.
    State courts have the right to examine collaterally into the alleged defects of judgment rendered by United States courts of original and limited jurisdiction, when such judgments are made the basis of litigants’ titles But the inquiry must he restricted to an examination to ascertain whether the court which rendered the judgment had jurisdiction and whether it exercised that jurisdiction according to the forms of proceeding established by law.
    The inquiry into the facts must he restricted to test the verity of allegations as to domicile or citizenship, necessary to give jurisdiction. "Want of jurisdiction may he shown either as to the subject-matter or the person, or in proceedings m rem as to the thing. 18 "Wallace, 457, Thompson vs. Whitman.
    2To inquiry can he made as to the correctness of the judgment upon the merits.
    In dealing with such questions, arising out of proceedings instituted under the Act of Congress, providing for the confiscation of property used for insurrectionary purposes, State courts muse be guided by the rules of Common law as expounded by the Supreme Court of the United States, and not by local laws, unless the latter harmonize with Federal jurisprudence.
    In a Common law proceeding in rem for the condemnation of property seized under the statute, the monition published is a citation on all interested persons, who are thus made parties to the action — and after a default there is no necessity for a jury trial. 11 Wallace, 303; 20 Wallace, 110. Alien enemies have the right to appear and defend their rights in a court of justice when cited therein'. 93 U. S., 283.
    A PPEAL from the Civil District Court for the Parish of Orleans. • j.1. Houston, J.

      J. P. Childress, Merrick & Merrick and Albert Voorhies for Plaintiffs and Appellants.

      .Bayne & Denigre for Defendants and Appellees.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Todd, J.

The ground of this motion is that the appeal was made returnable to this Cdirt on the first Monday in June, 1886, a day when the Court was not in session in this city. Tt is charged that the return day was suggested by the appellants’ counsel, and therefore that the illegal return day was imputable to the fault of appellants.

The order for the appeal was rendered on the petition of appellants; and from the copy of the petition in the transcript it would appear that the suggestion of the return day was made by the appellants’ counsel, since that day is mentioned and written in the body of the petition.

It is, however, denied by the counsel of appellants that such was the fact. They state that the petition for the appeal was prepared and signed by them, but that blanks were left therein for the return day and the amount of the appeal bond, and the return day was fixed by the judge a quo on his own motion, — and this is sworn to. They have further caused the original petition and order of appeal to be brought up to this Court, which fully verify their statement and affidavit. They admit that after the order for the appeal was signed they filled up the blanks in their petition to correspond with the order of the court.

Under these circumstances we do not think that the irregularity charged can be imputed to the fault of the appellants. It was the act of the judge.

The motion to dismiss is therefore denied.

On the Merits.

PochíS, J.

This is a petitory action by which plaintiffs claim the ownership of a portion of a piece of valuable property, known as the “ Tyler ” or “ Virginia cotton press,” situated in this city.

In their original petition they claim as heirs of their father, R. M. Pasteur, who is alleged to have been at his death, in 1874, the lawful owner of one undivided half of the property which is now held by defendants, as purchasers through mesne conveyances, under a title derived through a condemnation and a sale of the property in execution of a judgment rendered by the Circuit Court of the United States for the Eastern District of Louisiana, under the provisions of the Act of Congress of the 6th of August, 1861, entitled “an act to confiscate property used for insurrectionary purposes.”

In that petition, the judgment of condemnation and the sale made thereunder, are alleged to be absolutely null and void, for the main reason that the court which rendered the judgment was without jurisdiction, and for oilier alleged fatal defects in the proceedings.

In a supplemental petition, plaintiffs press their claim as heirs of their mother, who had died in January, 1868, and on the averment that her share in the community to which the property belonged, could not have been affected by the judgment of condemnation, they reiterate their allegations of nullity of the proceedings as contained in their original petition.

They prosecute this appeal from an adverse judgment.

A statement of the salient pertinent facts disclosed by the record, will be useful to a proper appreciation of the defense and of the issues which must be determined in this opinion.

R. M. Pasteur, who died in March, 1874, had been twice married. Francis I. Pastern1, Alice Pasteur and Georgiana Pasteur, wife of W. E. Kirk, all of age, are' the issue of his first marriage, and are the plaintiffs in this suit.

His second marriage was with Mary E. Kirk, from whom he had three children, yet minors, namely Effie May, Mary Kirk and Sallie Katie Pasteur.

The present suit was instituted on the 16th of February, 1881.

Now, on the 24th of May, 1881, a suit was brought in the Circuit Court of the United States for Louisiana, on behalf of the minor children, issue of the second marriage of R. M. Pasteur, by their tutrix, to recover their father’s share of the property, on the main ground that as a life estate only had been disposed of by the condemnation proceedings, the title to the fee liad reverted to Pasteur’s heirs at law at His death.

The Circuit Court held that under the act of August, 1861, the fee itself had been conveyed to the purchaser at the confiscation sale, and those views were sustained by the Supreme Court of the United States, which affirmed the judgment rendered below in favor of the defendants.

Among other grounds of resistance urged by the defendants in the present suit, by way of exception and answer, it is contended that the validity of the judgment of condemnation and forfeiture rendered by the Circuit Court of the United States cannot be inquired into collaterally, and that the principal issues presented here have been disposed of and are covered by the decision of the Supreme Court of the United States, in the suit brought against these defendants by the tutrix of the minor heirs of R. M. Pasteur, to be found in the 106th volume of United States Reports, p. 315.

There is, and there can be, no serious dispute as to the right of all courts to examine collaterally into the alleged defects of judgments which are made the basis of litigants’ titles, and as to the extent of such an examination.

The rule seems to be .yeb established, both in our jurisprudence and in that of the Supreme Court of the United States, that such an inquiry must be restricted to the right of ascertaining- whether the court which rendered the judgment had jurisdiction, and whether it exercised that jurisdiction according to the forms of proceedings established by law.

The same rule applies to all inquiries of this nature, whether between courts of the same State, or between State courts and Courts of the United States.

In the case of Lowry vs. Erwin, 6 Rob. 203, this Court, in dealing with an exception which denied the right of a State court to question, under any circumstances, the validity of a judgment of a Court of the United States, used the following language: “We admit that neither this tribunal nor the inferior courts can revise a judgment of the United States Court, upon the merits. We cannot say whether it was rendered upon proper evidence or is correct in itself; but we do say and have so decided recently that when the proceedings of the Federal Courts are set up as the basis of title between persons litigating in our courts, that then we will look into their proceedings, for the purpose of seeing- whether they have jurisdiction or authority to render such judgment or decree.” Garrard vs. Reed, 5 Rob. 506.

Under that principle the court considered evidence to prove the real domicile of a party, contrary to the allegations on which the Federal Court had rested its jurisdiction.

But on a writ of error in the Supreme Court of the United States, the right of making that inquiry was denied to the State court, and the following principle was announced: “If the record contains proper averments of citizenship to give a Circuit Court of the United States jurisdiction, a title made by the marshall under the judgment cannot be attacked collaterally by proof that the averments of citizenship were not true, and so that the court had not jurisdiction.” Erwin vs. Lowery, 7 Howard 178.

Subsequently, however, this rule received a very material modification at the hands of that exalted tribunal, in the case of Thompson vs. Whitman, 18 Wallace 457. The rule as modified stands thus: “The record of a judgment rendered in another State may be contradicted as to the facts necessary to give the court jurisdiction ; and if it be shown that such facts did not exist, the record will be a nullity, notwithstanding it may recite that they did exist.

“ Want of jurisdiction may be shown either as to the subject-matter or the person, or in proceedings in rem as to the thing.”

The status of the person, when it involves the question of jm-isdiction, can therefore be inquired into collaterally, even when the pleadings contain the averments necessary to vest jurisdiction.

Guided by these principles, which go to as great an extent as plaintiffs could possibly contend for, we propose now to discuss the three grounds of nullity which they plead to the judgment of condemnation and forfeiture which is held up by defendants as the basis of their title.

Their attack may be summarized thus :

1. Want of jurisdiction, because the court tried the questions of fact without a jury —the seizure having been made on land, and not falling within admiralty practice.

2. That the owners, who weie minors residing within an insurrectionary district, were debarred all hearing in the premises.

3. Defective description of the property seized.

I.

On the question of jurisdiction, we premise by stating that we do not understand plaintiffs to question the competency of the Circuit Court in the premises, or its jurisdiction of the thing seized in a proceeding admitted .to have been in rem.

The record shows that the seizure was made in all respects in compliance with the provisions of the Act of Congress of the 6th of August, 1861, and with the forms of proceeding required by Federal jurisprudence in such cases.

Section 2 of the Act reads: Such prizes shall be condemned in the District or Circuit Court of the United States having jurisdiction of the amount, or in admiralty in any district in which the same may be seized, or into which they may be taken and proceedings first instituted.”

This section has been uniformly construed by the Supreme Court of the United States, to mean that in cases where property is captured at sea or on water, such as navigable streams, the course of admiralty may be strictly observed; but as to seizures on land, the proceeding must be at common law and in rem. 6 Wallace, 764, Union Insurance case; same, 769, Armstrong’s foundry; 8 Wallace, 511, Morris Cotton; 11 Wallace, 303, Miller vs. United States; 20 Wallace, 109, Confiscation cases.

But plaintiffs’ contention, as we understand it, rests on that very distinction, and is to this effect, that the whole proceeding was made to conform to admiralty rules, when it should have been at common law, and that the court was incompetent to try the questions of fact without a jury.

The two questions of fact involved were : 1st. The allegations that the property had been used for insurrectionary purposes since the publication of the President’s proclamation required by the Act of Congress of the 6th of August, 1861. 2d. The consent of the owners to such use of their property.

The process of substituted citation was by monition, posted and publised in a newspaper, calling on the owners or other parties interested to show cause why the condemnation should not be made final. Nearly two years after such notice, no appearance having been made, a default was entered against the owners, and the libel adjudged and taken pro confesso.

Just such a proceeding has several times been recognized by the Supreme Court of the United States as a proceeding in rem at common law, and the default as thus entered as dispensing with a trial by jury.

In Miller’s case, 11 Wallace 303, the Court said : “The third assignment is that as the proceedings related to seizure on land the case was one of common law jurisdiction, and there should have been a trial by jury; and we are referred to Union Insurance Co. vs. United States, Armstrong’s Foundry, and other kindred cases. But in this case there was a default. After default there was no fact to be ascertained. The province of a jury in suits at common law'is to decide issues of fact, when there are no such issues there can be nothing for a jury to try. The assignment is therefore without merit. None of the cases cited go further than to hold that issues of fact on the demand of either party must be tried by jury.”

The fact that the proceeding began by a libel, and that citation was substituted by a monition, did not divest it of its character of a common law proceeding, or remove the case from the common law, to the admiralty, jurisdiction of the court.

In a precisely similar case the Supreme Court of the United States held: “No doubt in cases of seizure upon land, resort should be had to the common law side of the court, and such in substance was, we think, the case here. Everything necessary to a common law proceeding in rem is found in the record. An information was filed, (called a libel of information, it is true, but still an information), * * * a monition was issued, a default was taken, and, after consideration of the evidence, condemnation was adjudged. What was lacking in this to a common law proceeding in rem 9 The principal lack alleged is that there was no jury trial. But in courts of common law no jury is called when there is no issue of fact to be tried.” 20 Wall. 110. Confiscation eases.

The principles of those two decisions afford a complete refutation to the double argument that the proceeding was in the admiralty jurisdiction of the court, and that the failure of ordering a jury trial was a fatal defect.

The question of jurisdiction is thus settled in favor of the validity of the judgment assailed here by plaintiffs.

TT.

The argument on their second proposition is in substance that, as they were then residing out of the State of Louisiana, and in an insurrectionary district, they could not be reached by a monition, and that even if thus notified, they were forbidden by the President’s proclamation of non-intercourse, from appearing and pleading in the court which had seized their property.

The first part of this argument finds its answer in the very nature of a. published monition in a common law proceeding in rem, which is a citatiou on, and which makes parties to the suit, all persons who could have asserted a right to or in the property libelled. 4 La. 85, Bandue’s Syndicate vs. Nicholson; McVeigh vs. United States, 11 Wall. 266; Window vs. McVeigh, 93 U. S. 283.

The second part of the argument is answered by the two last decisions quoted, in which an alien enemy was recognized the right of pleading in a court in which he had been cited by process of monition. The Court said: “ It is alleged that he was in the position of an alien enemy and hence could have no locus standi in that forum. If assailed there he could defend there.” 11 Wall. 267.

So with the plaintiffs in this case, who could not have been denied a hearing if they had appeared in court at any time before the judgment of condemnation was pronounced. That judgment was not rendered before the 30th of November, 1865, and we take judicial cognizance of the historical fact that for several months previous, free communication had been opened between the city of New Orleans and the States of Mississippi and Georgia, where plaintiffs were severally sojourning at the time that the monition was published.

III.

The alleged deficiency of the description of the property libelled is surely not a point of attack which can be considered collaterally. The plainest text of the rule which we have considered as established excludes that complaint from our consideration. This leaves but the point made on the community rights of plaintiffs’ mother.

A very plain answer is suggested to that contention. If, at the time that the proceedings were instituted, plaintiffs had acquired any rights to the property which they could have successfully set up before the Circuit Court, they were included in the monition as published.

It contained no names, but called on all parties who had any interest in and to the property libelled to appear and defend their rights. Hence it would have included these plaintiffs or their mother. Therefore, the default when rendered concluded them under their alleged rights which even therefore and for that reason were included in the condemnation.

Tf such rights were not included in the proceedings, it is simply and only because they did not exist; and in that case plaintiffs have no complaints to urge or maintain in this proceeding.

Wo have read with interest the learned disquisition on the rights of married women to an interest in the community existing between the spouses under the laws of Louisiana presented by plaintiffs’ counsel, but we find no warrant for an attempt on our part to inject any of the principles of civil law in a discussion involving exclusively a legislation emanating from the war power of the Government of the United States. To properly construe such a law, and to legally apply its intended effects, reference must be made exclusively to that system of laws and jurisprudence to which the law-maker looked, as the only channel of its execution.

Hence we have deemed it our bounden duty in the determination of the issues which we considered to be within our judicial grasp, in this controversy, to seek for our land-marks among the decisions of the Supreme Court of the United States.

Under their guidance, we learn that proceedings, under the legislation which we are considering, were in the strictest sense of the. term, common law proceedings in rem, in which the property captured or seized was the principal factor, and in which the person or personal rights of the owner were entitled to no further attention or consideration than was required to prove the owner’s consent to the use of his property for insurrectionary purposes.

In the case of Kirk vs. Lynd, 106, U. S. Reports, p. 316, the case to which we referred in the beginning of this opinion, and in which the court dealt with the very judgment now under discussion, we find the following language: “All private property used, or intended to be used, in aid of an insurrection, with the knowledge or consent of the owner, is made the lawful subject of capture and judicial condemnation, and this, not to punish the owner for any crime, but to weaken the insurrection. The offense for which the condemnation may be decreed is one that inheres in the property itself, and grows out of the fact that the property has become, or is intended to become, with the approval of its owner an instrument for the promotion of the ends of the insurrection. * * '* The property is the offending thing, and condemnation is decreed because its owner has voluntarily allowed it to become involved in the offense. * * * Property captured m war is not taken to punish its owner any more than the life of a soldier slain in battle is taken to punish him. The property as well as the life is taken only as a means of lessening the warlike strength of the enemy.”

In rendering the judgment of condemnation, the court must have, been satisfied from the proof adduced, that the libelled property had been used for insurrectionary purposes with the knowledge or consent of its owner.

In dealing with a collateral attack on the judgment thus rendered, we have no warraut to ascertain whether it rested on sufficient evidence, or whether the court took into consideration the alleged community rights of Mrs. Pasteur, or those of her children after her death. Our inquiry is limited; it cannot be extended to an examination of the judgment as to its correctness under the evidence.

We, therefore, conclude that the proceedings assailed have withstood plaintiffs’ attack, and that in this suit at least, the defendant cannot be disturbed either in their ownership or in their possession.

After reaching that conclusion, and as we glance over the field of discussion, we find no little relief in the thought that our researches must have followed the same channel which had been traced by the Supreme Court of the United States, in their decision to which we have just leferred.

As the parties were not the same, and the issues presented were not all the same, the judgment in that case was not a legal bar to the discussion of the issues which were presented to us. As stated, the salient issue in the case of Kirk vs. Lynd, was the nature of the title which the forfeiture had conveyed, unaccompanied, as in this case, by an attack on the validty of the proceedings. But it is, nevertheless, certain that the Supreme Court of the United States could not have been induced to decide that the purchaser had acquired a title to the fee under the condemnation, if the record, (the same which has been filed here), had disclosed fatal defects patent upon its face. Of necessity and in justice, the Court, before judicially determining the effect of the judgment of forfeiture, must have ascertained that there was a judgment valid in law, rendered by a competent court, having and exercising vested and legal jurisdiction in the premises. This is precisely what was done, as shown by the following summary of the case which we extract from the opinion of the Court. After stating that the condemnation must be pronounced by tbe appropriate judicial tribunal, and that thence flows a complete title, the Court said:

“The title acquired by the purchaser iu this case was of that kind. Tbe property bought bad been seized under the authority of the statute as property used in aid of an insurrection against the United States with the consent of its owner. The fact of hostile nse with the owner’s consent was established, and the requisite, sentence of judicial condemnation was entered. In this way the title of the United States by capture was perfected. That title as against the owner and his heirs was the fee. The defendants below, who are the defendants in error here, have succeeded to that title.”

It is true that the law is a harsh one, but it was a war measure, and the mission of courts is to expound the law, and not to avert its rigorous effects.

In this case, however, there is no feature of unjust hardship to the expropriated owners.

The property sold for $53,500, of which $48,978.47 were paid over to the mortgagee with a vendor’s lien, whose claim amounted then to $101,013.80.

The fact was apparent to, and acknowledged by, R. M. Pasteur who intervened iu one of the sales made under the title thus acquired, and ratified the same with full knowledge of all the facts.

The judgment appealed from is therefore affirmed with costs.

Rehearing refused.


text:
    No. 9777.
    E. A. Deslonde vs. Wm. O’Hern.

      A. judgment for possession of premises leased can be extinguished by agieement. Tbe agreement is a new obligation. Tbe obligation to deliver tbe premises resulting from tbe judgment is extinguished by tbe substitution of an obligation to pay the rent due and remain in tbe premises to tbe end of the lease.
    When a lessor sues for possession of premises, and a dissolution of tbe lease, and a judg.mentis rendered in bis favor, tbe covenant of tbe lessee to- pay rent ceases to exist. Dent is tbe compensation for i be occupancy of tbe property. Tbe lessor is not entitled to bis property and tbe rent for tbe same.
    When a lessor, after b© has obtained a judgment cancelling tbe lease, voluntarily receives from tbe tenant all tbe rent due according to tbe terms of tbe leas© and waives bis right to issue a writ of ejectment, bis act in receiving tbe rent recognizes tlie lease as still in force, and in lieu of possession accepts a specific performance of the contract of lease. One may have a legal right, yet waive it by becoming reconciled to bis debtor.
    When a judgment cancelling the lease is rendered, the parties thereto are placed in the same position they occupied before the lease was signed. By voluntarily accepting all the rent due, and rent in advance, the old lease was either reinstated, or there was a new lease from month to month.
    When a writ of ejectment illegally issues without probable cause, malice will be inferred.
    When a lessor, in illegally issuing a writ of ejectment was actuated by malice, he is liable to a lessee for damages, as a recomperse for an oufet age upon his rights and feelings as a citizen and a man.
    A PPEAL from the Civil District Court for the Parish of Orleans. ZA Lamms, J.

      Fred. T>. King and W. W. Handlin, for Plaintiff and Appellee :
    A judgment for possession of premises leased can he extinguished by agreement. The' agreement is a new obligation The obligation to deliver the premises resulting from the judgment is extinguished by the substitution of an obligation to pay the rent due, and remain in the premises to the end of the lease. C. C. 2181, 2190, 2180.
    When a lessor sues for possession of premises, and a dissolution of the loase, anda judgment is rendered in his favor, the covenant of the lessee to pay rent ceases to exist. Bent is the compensation for tbe occupancy of the property. The lessor is not entitled to his property and the lent for the same. Sigur vs. Loyd, 1 A. B., p. 422 ; 6 A. B., p. 2 ; C. C. 2729, 2700, 2045, 2040, 2046, 2041.
    When a lessor, after he has obtained a judgment cancelling the lease, voluntarily received from the tenant all the rent due according to the terms of the lease, waives his right to issue a writ of ejectment, and execute the judgment for possession, his act in receiving the rent recognizes the lease as still in force, and in lieu of possession accepts a specific performance of the contract of lease. Oue may have a legal right, yet waive it by becoming reconciled to his debtor. Olievallier vs. Borie, 3 L. B., p. 300.
    When a judgment cancelling the lease is rendered the parties thereto are placed iu the same position they occupied before the lease was signed. By voluntarily accepting all the rent due, and rent in advance, the old lease was either reinstated, or there was a new lease from month to month. In either event, the lessee could not he ejected until there was a new broach of the contract, notice to vacate and another suit. 1 A. B., p. 422.
    Where a writ of ejectment illegally issues without probable cause, malice will be inferred. 37 A. B.. 881; 33 A. B., 292.
    When a lessor, in illegally issuing a writ of ejectment, was actuated by malice, he is liable to a lessee for exemplary damages, as a recompense for a gross outrage upon his rights and feelings as a citizen and a man, as an example to deter others from similar conduct in the future, and-for the purpose of punishing the lessor for his bad motives and intentions. 37 A. B., 874; 34 A- B,, 1158; 7 A. B.. 448; 12 B B., 680; 13 L. B., 274.
    A verdict of a jury on a question of fact..should have great weight with the court, unless the evidence clearly shows they were manifestly in error. 22’A . B., p. 31; 20 A.' B., 455; 6 L. B., 455. * ’’ *

      F. Miehinavd, for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

This is a suit for damages growing out of the acts of the defendant described in the petition, and which will be set forth hereafter. The amount claimed is $2500. There was judgment in favor of the plaintiff for $100; the defendant has appealed and the plaintiff prays to amend the judgment by increasing the same to the amount demanded — $2500.

The facts relating to the controversy and which we think are borne out by the evidence, are briefly these:

On the 1st of October, 1884, the defendant leased to the plaintiff a dwelling-house situated in this city, for twelve months, at a rental of forty dollars per month, aggregating for the entire year $480. Of this sum he paid .$320 in advance, before the contract of lease was signed, and for the balance he executed his eight promissory notes for twenty dollars each, the first payable on the 1st of December, 1884, and the remaining ones respectively on the first of each month following.

There were clauses in the contract to the effect, that if these rent notes were not promptly paid at maturity, the lease was to be null and the money paid on account of it to be forfeited, and that on failure to pay one of the notes, the whole of them were to be demandable.

Deslonde paid the note falling due in December, but' failed to meet those maturing in the three months following.

On the 15th of March, 1885, O’Hern, the lessor, brought suit to have the lease dissolved and to evict Deslonde, the lessee, from the premises, and obtained judgment to that effect on the 23d of April following.

During the pendency of this suit, 9th of April, he brought suit on two of the notes due January and February, accompanied by a writ, of provisional seizure, under which the furniture of Deslonde was seized and a keeper placed in charge of the premises.

Soon after the judgment of eviction was rendered, Deslonde, through his attorney, proposed to O’Hern — the latter’s attorney also being present — that he would pay all the costs and all of the notes if he were permitted to remain on the leased premises till the expiration of the lease. This was agreed to by O’Hern, and Deslonde then paid him the two notes sued on, agreed to pay the costs to the sheriff, and appointed the next day to settle the rest of the notes outstanding. The parties met according to appointment and Deslonde paid the March, April- and May notes, and at the same time offered to pay the remaining twJo notes for June and July, but O’Hern stated (quoting his own language) “that he could not get them at present, and that anyhow they were not due.” After this payment was made O’Hern demanded that Deslonde pay also his attorney’s fee. The latter replied he “'would do so provided it was part of the compromise.” He consulted his attorney immediately with respect to this last demand, and was informed by him that the attorney’s fee was no part of the costs, and that he was in no way liable for it under the agreement or compromise.

For some days after this conversation between plaintiff and defendant, the plaintiff, it appears, was confined to his house by an attack of rheumatic gout, and on the 8th of May, the first day he was able to get out, he called at the sheriff’s office for the purpose of paying the costs that he had consented to pay under his agreemunt with O’Hern referred to. He found that the sheriff had in his hands a writ of fi. fa. for these costs, and also a writ of ejectment issued under the judgment, evicting him from the leased premises. The costs which he had agreed to pay, amounting at the time to $12.50, had been augmented by the costs of issuing the writs of fi. fa. and ejectment to $19 — but, he nevertlie paid the bill. His remonstrances, and those of his counsel against the execution of the -writ of ejectment proving ineffectual, Deslonde was compelled to resort to an injunction to restrain its execution. This injunction accompanied the action for damages before referred to, and is the case now before us on appeal.

It was tried in the lower court before a jury, who returned a verdict in favor of the plaintiff Deslonde for $850. A new trial was granted and it was again tried, this time before the judge, and judgment rendered for $100 damages against the defendant. It has been stated above that when Deslonde paid the rent notes of March, April and May, on the 2d of May, he at the same time ottered to pay likewise the June and July notes, (which included all the notes), but was told by O’Hern that he did not have them with him, and they were not then due.

On the 5th of June Deslonde wrote to O’Hern, offering to pay the note for that month at any time and place he (O’Hern) would designate, but received no answer, and the note was not presented.

In the next month (July) he deposited with a notary the amount of the two notes (June and July), and requested him to make a tender of the same to O’Hern.

The notary went to the residence of O’Hern, but finding him absent, tendered the money to his son or grandson, whom he found in the house, and who told the officer, in answer- to an inquiry, that he represented O’Hern in his absence, but he declined to receive the money.

These are all the facts bearing on this controversy. There is a conflict of testimony in regard to some of them, but the above statement represents our conclusions in relation to them, after a thorough examination of the evidence.

To summarize : It is shown that O’Hern leased to Deslonde a dwelling-house for one year for $480, or $40 per month. That he was paid in advance $320 — equivalent to eight months’ rent; that in the month of December following date of contract (October 1), he was paid $20 more; that notwithstanding these payments he was sued for installments of the rent, and had the furniture of the lessee seized under a writ of provisional seizure; that he also sued to have the tenant evicted, and obtained judgment against 1dm ordering his eviction; that he agreed not to execute this judgment and to permit the lessee to remain on the premises if he (Deslonde) would pay costs and the entire rent; that the lessee did pay all costs and also the entire rent except $40 thereof, and offered to pay this, and would have done so but that the lessor declined to produce the rent notes and refused to accept subsequent offers of payment; that in violation of his agreement, and in spite of the willingness manifested by the lessee to comply with that agreement to the very letter, and in utter disregard of Deslonde’s rights, O’Hern persisted in the execution of his writ of ejectment, and in his determination to evict the lessee from his premises, until Deslonde compelled him to desist therefrom by a writ of injunction.

In all these proceedings the conduct of O’Hern was harsh and without the slightest justification. It can only be explained on the hypothesis that he was determined to wrest the property leased from the lessee (Deslonde) and at the same time force him to pay the rent.

If O’Hern stood upon his judgment of eviction, then that judgment dissolved the lease, and debarred him from claiming rents falling due after that time; but whilst O’Hern was thus engaged in harassing Deslonde with his writs — which was in May, and the lease did not expire till October — the entire rental of the year had been paid except for a single month.

There was such an entire lack of justifiable cause for O’Hern’s acts and proceedings against Deslonde that the law would impute them to being prompted by malice. 33 Ann. 292; 37 Ann. 881.

It seems that the jury in the court below and the judge likewise reached the conclusion we have announced touching the conduct and acts of the defendant and as being of a character to render him liable for damages, but the judge, by his decree, evidently limited the damages to the actual pecuniary loss or expense sustained by the plaintiff from the acts and proceedings complained of. He made no allowance for the trouble, mortification, mental anxiety and distress caused thereby to the plaintiff, which this Court in the ease of Byrne & Co. vs. Gardner, 33 Ann. 6, held to be actual damages, although of that nature that could not be precisely measured or determined by money or a money value, and that they were of that kind of damage, the estimate of which is left largely to the discretion of the judge or jury, under art. 1934 of the Civil Code.

We think the judge erred in thus restricting the liability of the defendant. To a man of average sensibility, under the circumstances attending this case, the expense or pecuniary outlay to which he was subjected by the acts complained of, would doubtless seem of little significance when weighed with the inconvenience, mental suffering and humiliation experienced by the plaintiff from the causes stated, aggravated as they must have been, by the serious domestic trouble which, according to the evidence, was weighing upon him at the time.

These considerations induce us to grant the prayer for the amendment of the judgment, and to increase the same by the additional sum of $250 to that awarded by said judgment, making the entire amount $350.

It is therefore ordered, adjudged and decreed that the judgment of the lower court he amended by increasing the sum therein adjudged by the further sum of $250, making the total of this, decree $350; and as thus amended, the same be affirmed at tbe cost of appellant in both courts.


author: Fenner, J. Toni), J.

text:
    No. 9804.
    The State of Louisiana vs. Ellick Walker.
    A new trial will not be granted for matters which, the accused, not having availed himself thereof at the proper time, is presumed to have waived.
    Counsel for accused having withdrawn from his case on tbe day of trial and the case having been subsequently called for trial and proceeded with without request for counsel or application for continuance or any objection of any kind by accused, he cannot, afte.i conviction, require a new trial on the ground that he was taken by surprise and was ignorant of his rights. The judge committed no error in allowing the trial to proceed, and defendant’s application for new trial, having no basis of legal error, is addiessed simply to tbe discretion of the judge.
    The latter being better qualified than this Court to determine whether the interests of justice required a new trial, the exercise of his discretion will not be interfered with.
    A PPEAL from the Twenty-second District; Court, Parish of St, XX James. Duffel, J.

      M. J. Owmiingham, Attorney General, aud J. L. Qcmdet, District Attorney, for tbe State, Appellee :
    In the absence of record that the defendant requested the court to assign counsel, or applied for a continuance on the ground of the absence of counsel of record, the mere fact that the trial proceeded without the aid of counsel to defendant, does not constitute error. 36 Ann. 91.
    An accused is not entitled to a new trial on account of the absence of witnesses at the trial, though duly summoned where it appears that no postponement was asked, because of their absence and where he consented to go to trial without them. 36 Ann. 923.
    Newly discovered evidence tending to impeach or discredit witnesses, who have testified in the case, affords no legal ground for setting aside the verdict and granting a new tiial. 34 Ann. 346; 35 Ann 46; State vs- Grauthreaux/38 Ann.
    A motion for a new trial on the ground of newly discovered evidence must be supported by other testimony in addition to the affidavit of the accused. His alone will not suffice. 36 Ann. 980.

      Sims d¿ Poché for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The only error assigned is in the overruling of a motion for a new trial. The grounds of the motion are substantially the following:.

Defendant, under prosecution for inflicting a wound less than mayhem, states in his motion and affidavit that he was released upon an appearance bond signed by Mr. Damaré, his employer, who had promised to secure the services of Messrs Sims & Poché as his attorneys ; that he had consulted these attorneys and had told them that Mr. Damaré would call on them and become responsible for the fee ; that Mr. Damaré, through inadvertance, failed to see them; that, on the day when his cause was assigned for trial, Messrs Sims & Poché appeared in court and announced that, no arrangement having been made as promised, they withdrew from the ease; that, immediately there after the case was called for-trial; that defendant was taken completely by surprise by the withdrawal of his said counsel, but, being an ignorant laborer, not knowing his legal rights in the premises, supposed that he was remediless, and hence submitted to the progress of the trial; that he was thus unexpectedly deprived of the benefit of counsel without fault on his part and was tried without such assistance and in the absence of important witnesses whom he had directed to be summoned and whose absence he was not aware of until the State liad closed its evidence.

The judge overruled the motion for the reason assigned by him, ¿‘that defendant had had a fair trial, and that the verdict was supported by the evidence, and that defendant went to trial without objection.”

Upon the foregoing statement of facts which is not disputed by the judge and is sustained by evidence made part of the bill, it is clear that if defendant had applied for a continuance to enable him to employ counsel and to secure the attendance of his witnesses, or had requested an assignment of counsel, and such requests had been refused, such refusal would have been error and defendant’s title to relief would be clear, under the principles announced in the recent case of State vs. Simpson, 38 Ann. 83.

But the Constitution, article 8, only guarantees to accused persons “the right to have the assistance of counsel;” and the statute, R. S., sec. 992, only provides that “every person shall be alloioed to make his full defense by counsel, and the court shall, immediately upon his request, assign to him such counsel as he shall desire.”

This Court has repeatedly held that when accused has no counsel, or when his counsel is absent, and when he makes no application for assignment of counsel or for continuance on any ground, but goes to trial without objection, the judge commits no error in permitting the trial to proceed, and, after couviction, defendant cannot assign such defects as legal ground for new trial. State vs. Kelly, 25 Ann. 381; State vs. Doyle, 36 Ann. 91; State vs. Viana, 37 Ann. 606; State vs. Simien, 36 Ann. 923.

It follows therefore that, there appearing no legal error in the proceedings, the application for new trial on such grounds is not founded on any basis of legal right, but is addressed solely to the sound and legal discretion of the judge.

We confess that under the facts herein, which we have stated in their fullest strength, the appeal for a favorable exercise of such discretion was a strong one; but we have no reason to doubt that the esteemed judge a quo so considered it and gave it all the weight to which it was entitled. He had a minute acquaintance with all the facts and circumstancec of the case which the record necessarily fails to convey to us, and was therefore far better qualified than ourselves to determine whether the interests of justice required, or would be advanced by, the granting of a new trial. It would be nothing less than rashness for us to substitute our discretion for his and to reverse his ruling.

We have given very serious thought to the subject and have concluded that such a course would furnish a precedent unsound in principle and liable to abuse, under which the accused in any case might go to trial without counsel and, after taking his chances for acquittal, might, on conviction demand a new trial on the ground that he desired counsel and was ignorant of his right to have one assigned to him. There is no warrant of law and no precedent in jurisprudence imposing upon the judge the duty of informing an unrepresented accused of his right to have counsel and of asking him whether he desires it, before proceeding with the trial. On the contrary, the several cases heretofore quoted negative the existence of such duty, and every person is presumed to know the law.

The principiéis well settled that a new trial will not be granted for matters which the accused, not having availed himself thereof at the proper time, is presumed to have waived. State vs. Hernandez, 4 Ann. 379; State vs. Price, 6 Ann. 691; State vs. Benjamin, 7 Ann. 47; State vs. Holmes, 7 Ann. 567; State vs. Kentuck, 8 Ann. 308; State vs. Maxent, 10 Ann. 743; State vs. Fuller, 14 Ann. 667.

It is equally well settled that this Court will not interfere with rulings of inferior judges on applications for new trial, not based on grounds of legal error, but addressed to the discretion of the judge.

The motion for new trial also embraces a ground of newly discovered evidence but the affidavit as to its character is too vague to support relief and is not sustained by the affidavits of the newly discovered witnesses. The ground is without merit and is not even argued in this Court.

Judgment affirmed.

Dissenting Opinion.

Toni), J.

The Constitution guarantees every accused a fair trial.

In this case, the accused, an ignorant laborer, had spoken to coun.sel to defend him, and the counsel did appear for him in some proceeding in the case. When the case was called for trial the counsel announced, for reasons assigned by him, that he withdrew from the case. The trial, however, was proceeded with instantaneously, and the accused, without counsel and without witnesses, was convicted. Of course, under these disadvantages, any other result could scarcely be expected.

In his affidavit for a new trial these facts are stated, and the further statement made that he was completely taken by surprise by the withdrawal of his counsel, and believed he was without remedy.

There is no reason to doubt that the accused fully believed that the counsel to whom he had spoken, and supposed he had employed, had made the necessary preparations for his trial, and that through him his witnesses had been summoned, and we can well imagine how an accused of average intelligence, in such a crisis, finding himself, unexpectedly without counsel and about being hurried into a trial without his witnesses, would be overwhelmed with surprise and consternation, and rendered comparatively helpless. In such a state of mind, even if he knew he had a right to ask for a postponement of the trial and for the appointment to him of counsel, of which this defendant was doubtless wholly ignorant, as he swears — so great would be his confusion as to render him incapable of demanding anything of the court under such circumstances. I think that the trial judge, in the cause of justice, should either have postponed the trial to enable the accused to lind that he was entitled to be represented by counsel or to have so informed him on the spot.

1 do not think it. always compatible with justice to sustain a conviction resting mainly, if not solely, upon no other foundation than that one is presumed to know the law — a violent presumption when applied to a certain class of our people.

For these reasons I do not consider that the trial of the accused was a fair one, and I therefore dissent.