text:
    No. 12,609.
    The Southern Wood Manufacturing and Creosoting Company vs. Wilson Davenport.
    Plaintiff, claiming eviction in part, sues on the obligation of warranty in act of sale.

      Held: he is entitled,under thefaets disclosed, to be reimbursed only the value of the part evicted from, estimated proportionately to the price paid for the whole.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      W. S'. Parkerson for Plaintiff, Appellant.

      A. D. Henriques for Defendant, Appellee.
    Argued and submitted March 24, 1898.
    Opinion handed down April 4, 1898.
   The opinion of the court was delivered by

Blanchard, J.

The plaintiff acquired by purchase from Mrs. Susan A. Sampson five lots of ground in the city of New Orleans, in the square bounded by Front, Lyon and Bordeaux streets and the Mississippi river.

The lots were designated in the act of sale as Nos. 6, 7, 8, 9 and 10.; on a plat or plan made in the year 1848 by C. A. Hedin, surveyor..

They adjoined each other and all fronted on Front street on the. north, and on the Mississippi river on the south.

The three first lots are described as having a width of thirty feet by a depth of one hundred and fifty feet, more or less, to the river, and the two last as having the same width by a depth of one hundred and sixty feet, more or less, to the river.

It was the same property previously acquired by Mrs. Sampson from Wilson Davenport, defendant herein, by identically the same description, for the price and sum of five thousand dollars.

When Mrs. Sampson purchased from Davenport the lots were vacant. Following her purchase there were erected on the property certain improvements, constituting, a wood manufacturing and creosoting plant, with boilers, engines, cylinders, cisterns, tanks, tools, wharves, etc. These improvements, plant, etc., were included in the sale to plaintiff company, the consideration of which was five hundred shares of the capital stock of the company at the par value of one hundred dollars each.

Just prior to the purchase from Mrs. Sampson, the company had been incorporated, the capital stock being fixed at one hundred thousand dollars, divided into one thousand shares of one hundred ■dollars each.

It was recited in the act of incorporation that five hundred shares (full paid stock) was to be delivered “ to Thomas EL Sampson, ■owner, for his plant situated on the Mississippi river between Bordeaux and Lyon streets,” including the real estate and the right to the use of the processes, secured to said Sampson by letters patent from the Federal Government, for preserving and treating lumber, etc.

The “ Thomas H. Sampson” referred to was the husband of Mrs. Susan A. Sampson, in whom the title to the lots, on which the plant was located, was vested by the sale from Davenport.

It was she who made the sale of the lots to the company, and this act of sale recited that it was made “with all lawful warranties and with full subrogation and substitution to all her rights and actions in warranty.”

In the sale of the same property previously by Davenport to Mrs. Sampson express warranty is also stipulated.

When the plaintiff company was organized preceding the purchase from Mrs. Sampson, Thomas EL Sampson became president thereof and L. W. Brown, vice president — the latter accepting the sale from Mrs. Sampson on behalf of the company, while Sampson signed it in authorization of his wife.

Something over two years after the purchase from Mrs. Sampson, the company brought the present action, not against Mrs. Sampson, its immediate vendor, but against her vendor, Wilson Davenport, standing on the subrogation and substitution which she had made to it of her rights and actions in warranty against him.

The object of the suit is to recover three thousand dollars from Davenport, on the complaint that in December, 1891, plaintiff company was evicted from a part of the ground which Davenport had sold to Mrs. Sampson and she to them, being a strip about fifty feet in depth by a width clear across the lots of one hundred and fifty feet.

That which constituted eviction is averred to be this: A considerable tract of alluvion or batture had formed along that'portion of ’the city front. Over this batture parallel with Front street on the north and the river on the south, what is known as Water street was laid out and established in the year 1867 by authority of the then city of Jefferspn (now absorbed into the city of New Orleans) . This new street crossed the property in question about one hundred and ten feet from Front street.

While laid out on the map and thus designated and established, the street itself was not actually opened and put in use (so far at least as it affected the property we are dealing with) until August 27, 1889, when an ordinance was passed by the council of the city of New Orleans, approved by the Mayor on September 3, 1889, directing the Oity Surveyor to remove existing obstructions from Water street and to open same, and authorizing a railway track to be laid on the street from Louisiana avenue to General Taylor street.

Prior to this, to-wit: in 1880, and 1881, the council had passed certain ordinances granting rights and privileges in and along the streets on the river front to the Texas & Pacific Railway Company.

Acting under these several ordinances, adopted in 1880, 1881 and 1889, the Texas & Pacific Company laid its tracks in and along Water street, and thus that street became opened for use and traffic as a public street and highway of the city. Louisiana Ice Manufacturing Company vs. City of New Orleans et al., 43 La. An. 217.

This opening of Water street and the laying of the tracks of the railroad company thereon had the effect of dividing the lots which the plaintiff had purchased from Mrs. Sampson, and some evidence was adduced on behalf of plaintiff to show that it impaired the water privileges of the property, which, it was claimed, constituted its chief element of value for the purposes for which the company desired it.

The petition alleges, in substance, that Davenport claimed and had possession of all the property from Front street to the river; "that he sold and delivered all of it to Mrs. Sampson; that he warranted title and possession of it all; that there was no indication .of any street through it at the time of Mrs. Sampson’s purchase; that neither she nor her vendee (plaintiff company) had any knowledge of the laying off and dedication of a street through it at the time of their respective purchases; and that because of said laying off and dedication Davenport could not sell and convey title and-possession to that portion of the lots covered by the street, and •having assumed to do so and his vendee having been evicted, he must make restitution.

The demand was met by an exception of no cause of action, which was ordered to stand as part of the answer to the merits. The defence on the merits is that Davenport had no knowledge of the location of a street through the property.at the time of his own purchase thereof, nor when he sold it; that if the right to lay out the street existed prior to or at the date of his sale to Mrs. Sampson, she was, in law, charged with knowledge of the same and bought at her peril and risk; that if the cause of eviction arose after her purchase, he is in no sense responsible for the same; and that the opening of Water street, and the authorization to lay railway tracks thereon were public, governmental acts of the city of New Orleans, for which defendant can not be held responsible.

On the issues presented there was judgment below for defendant, and plaintiff appeals.

The affairs of plaintiff company appear not to have gone on well. In the beginning of 1895 it found itself involved in debt, with no funds to meet its obligations. It went into liquidation, with Sampson and Brown as liquidating commissioners. In March, 1895, they applied to the court for an order to sell all the property of the insolvent corporation, movable and immovable, to pay its mortgage and other debts.

This order was granted and the entire property was sold at one offering for two thousand four hundred and ten dollars, John T. Whittaker, agent, becoming the purchaser. Who his principal was is not disclosed.

In the application for the sale of the real estate the commissioners set forth that since the company acquired it the city of New Orleans had laid out Water street through it; that the property had thus become divided into two parts; and that these parts should be sold separately. They annexed a plan and asked that the sale be made in accordance therewith — that is to say, that the part between Front and Water streets be sold as lots six, seven, eight, nine and ten in square eighty, .with a front on the two streets of one hundred and fifty feet, by a depth between the streets of about one hundred and eleven feet; and the part between Water street and the river be sold as a certain portion of ground measuring one hundred and fifty feet on Water street by a depth between parallel lines of about eight hundred and seven feet to the river, together with all rights of batture and future accretions. The projet of the sale recited that upon this part of the property, viz.: between Water street and the river, is situated the plant of the Southern Wood Manufacturing and Creosoting Company, Limited.

The order of court directed the property to be sold in the two parts as set forth in the plan of the commissigpers, and, accordingly, it was so advertised and sold.

These pleadings and proceedings show that the plant of plaintiff company was located on the river side of Water street. This being so, it would appear that the water privileges of the factory were not cut off or seriously impaired by the opening of Water street and the laying of the railway tracks thereon. It also appears that whereas plaintiff company bought the lots as having a depth of about one hundred and fifty to one hundred and sixty feet, more or less, from Front street to the river, in point of fact the liquidating commissioners sold the property as having a depth from Front street to Water street of one hundred and eleven feet, and from Water street to the river of eight hundred and seven feet, or a total-depth of nine hundred and eighteen feet, exclusive of the fifty feet constituting Water street.

With the fifty feet of Water street added, the property has a depthj from Front street to the river, of nine hundred and sixty-eight feet. It thus appears that Water street, in passing through the lots, has occupied only about one nineteenth part of their entire depth, and only to this extent has plaintiff company suffered actual eviction.

Conceding that over the batture formed by the recession of the river and attaching as riparian rights to the original lots fronting on the river, the city authorities could lay off and establish Water street, this could not divest the riparian proprietor of the fee of the land occupied by the street. 11 An. 161; C. C. 658, 665. It can hardly be claimed that the city’s action established anything more than a servitude, or easement, for street purposes over that part of the property occupied by Water street, with the resulting right to the riparian proprietor to retake possession of, and subject the ground to his purposes, should it ever cease to be used as a street.

It follows that plaintiff company has not been evicted from the fee of the ground occupied by the street, but only from its use and possession.

Indeed, the petition itself does not claim more than that the petitioner ,has been evicted from the possession of a portion of the ground sold by the defendant.

But taking the view most favorable to plaintiff company — that Water street will remain as a street for all time to come — and that plaintiff has been evicted, for all practical purposes, of both the fee and the possession of the ground it occupies, what, if anything, is it entitled to recover of this defendant?

That recovery is, under the circumstances of this case, authorized by the law appears clear. C. C. 2475, 2491, 2492, 2500, 2506, 2514.

Though Davenport did not know, when he sold to Mrs. Sampson, that Water street had been laid out across the lots can make no difference. He sold the ground now occupied by the street and delivered possession of it. His vendee has been evicted. By the express terms of C. O. 2514 “the value of the part from which he is evicted is to be reimbursed to the buyer according to its estimation, proportionably to the total price of the sale.”

Plaintiff claims that the value of the part evicted from is three thousand dollars, and there is testimony to this effect by the witness Sampson.

But we can not accept this estimation. Sampson bases it upon the idea of the factory’s deprivation of water privileges. We have already seen that, by his own pleadings as liquidating commissioner of plaintiff company, he is cut off from this contention. Besides, the petition contains no averment of this character. Nor does it charge that the part evicted from was, relatively to the whole, worth three thousand dollars. Nor that the purchase would not have been made but for the inclusion of this part.

From the circumstances and surroundings it is hard to resist the impression that no injury whatever has been suffered by the buyer o this property by reason of the opening of Water street through it. Ife gives the property two additional fronts, and the laying of the track of the Texas & Pacific Railway on Water street gives it railway privileges, while it still retains'its water privileges.

We think substantial justice will be done by awarding plaintiff a judgment for the value of the part evicted from, estimated proportionately to the price paid for the whole.

We have already seen that the part lost is, in area, about oner nineteenth of the whole, and one-nineteenth of the price paid (five thousand dollars) is two hundred and sixty-three dollars and fifteen cents.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered and decreed that plaintiff do have and recover of the defendant the sum of two hundred and sixty-three dollars and fifteen cents, with legal interest thereon from judicial demand, to-wit: April 3, 1893, until paid, together with costs of both courts.


source: Caselaw Access Project

author: Blanchard, J.

license: Public Domain

text:
    No. 12,817.
    Schminke & Newman vs. Their Creditors.
    It is proper practice to test by rule to show cause whether or not the preliminary orders in proceedings for respite were providently issued, and if found not to be so, for the judge to seasonably revoke the same.
    An agreement under which one party advances all the capital needed by another to conduct a certain business, and which stipulates that in the event he disapproves of the management of the business, he may take possession of the same, assuming all liabilities, is not a nudum pactum.

    Agreements and covenants which parties make between themselves must control in all things not contrary to law and goodmorals.
    APPEAL from the Oivil District Court for the Parish of Orleans. Ellis, J.

      James B. Rosser, Jr., for Geo. F. Sehminke, Appellant.

      Harold W. Newman and Dart & Kernan for Edgar Newman, Appellee.
    Argued and submitted May 21, 1898.
    Opinion handed down May 30, 1898.
   The opinion of the court was delivered by

Blanchard, J.

In January, 1895, George F. Sehminke and Edgar Newman, by written articles of copartnership, formed and established the commercial firm of Schminke & Newman for the purpose of conducting an electrical construction and supply business in the city of New Orleans. The duration of the partnership was fixed at two years, with the right to dissolve at any time by mutual consent.

Neither partner possessed any capital with which to inaugurate and carry oh the business. A small sum was advanced for this purpose by Isidore Newman, Sr., and in consideration thereof it was covenanted by the partners that if at any time they disagreed as to the business, or the management of its affairs failed to meet the approval of the elder Newman, he was to be given a confession of judgment for the amount of his advances and have full power to terminate and liquidate the copartnership.

It was stipulated that Schminke should draw seventy-five dollars and Edgar Newman fifty dollars per month from the business and no more.

The firm was successful from the start. Its business developed rapidly and prospered. By July, 1895, it required more capital to meet its expansion and the elder Newman was applied to for it. On the 9th of that month the partners entered into another agreement in writing in which in was stipulated that for and in consideration of Isidore Newman, Sr., having agreed to inci’ease the amount of five hundred dollars which he originally advanced to the business of Schminke & Newman to five thousand dollars, or more, it is hereby agreed by said Schminke & Newman that said Isidore Newman, Sr., shall be entitled to one-third of the profits of said partnership, * * * the other two-thirds being divided equally between George F. Schminke and Edgar Newman.” A second clause of this agreement recited that in the event of disagreement between Schminke and the younger Newman in the management of the affairs of the partnership, the surrender of the business with all its stock, accounts, bills receivable, fixtures, etc., should be made to the elder Newman, when called upon by him, and he should assume all the liabilities and pay to Schminke seventy-five dollars and to Edgar Newman fifty dollars, respectively, which it was stated should be in full of all their interest and claim in the business.

Following the execution of this new agreement, which admitted him as a partner in the concern, the elder Newman made advances of capital until the sums so furnished aggregated eighteen thousand dollars. Beyond a little interest paid in the first year on the capital he had originally advanced, he has received nothing whatever from the business of the firm whose entire capital he had supplied. But the two other partners appear to have extended a liberal hand to themselves.

Notwithstanding the stipulation that the one was to draw from the business only seventy-five dollars per month, and the other fifty dollars, the evidence discloses that in the three years it was conducted preceding the present litigation, Sehminke drew out for his own account ten thousand dollars and Edgar Newman seven thousand dollars. These sums thus absorbed not only exceeded the profits of the business, but made it impossible for the elder Newman to ■obtain his share of the profits, which was one-third.

Not only that, but by their overdrafts the other two partners were, in the absorption of his share of the profits, running up a large indebtedness to him on their personal account, and Sehminke, running ahead of the younger Newman on his overdrafts, was becoming, in that way, largely indebted to the latter on personal account.

The elder Newman could not permit this condition of affairs to go on. He sent repeatedly for the younger men, cautioned them about their extravagance and admonished them that unless their overdrafts ceased and they confined themselves to something like the allowances stipulated in the articles of agreement he .would be compelled to exercise his right and take possession of the business. The evidence shows his course to have been one of leniency and forbearance. His son, the younger Newman, seems at last to have heeded his father’s advice and ceased to overdraw. But not so with Sehminke. He continued to overdraw until finally the elder Newman determined to put a stop to the business as then conducted.

He informed Sehminke of this purpose and suggested and proposed to him to transfer his interest in the firm to J. K. Newman (another son), who would assume his liabilities to the creditors as well as to the other partners, and pay him one hundred dollars besides. This was what the articles of copartnership and the supplemental agreement of July 9, 1895, authorized Isidore Newman to do in his own behalf. The only substantial difference between what was thus authorized and what he proposed was the substitution of his son, J. K. Newman, for himself.

Sehminke asked time to consider and it was given him. He returned with a suggestion that Mr. Newman make him another proposition looking to the purchase by him (Schminke) of his (Newman’s) interest in the concern. The latter readily consented to this and proposed that Schminke should buy him out and keep possession of the business himself, and to this end he agreed to take a sum equa^ to what the business was due him, and to make it easy for Schminke to effect the arrangement, he offered to take one-quarter of the amount in cash and the remainder in one, two and three years with six per cent, interest. Schminke expressed himself as entirely satisfied with this and told Mr. Newman he would accept either the one or the other of his offers that day, and mentioned the hour at which he would do so.

Instead of returning at the hour indicated, he repaired with his-counsel to the court house and there filed the present suit against the creditors of his firm (naming Isidore Newman as one of the creditors) for a respite.

In taking so important a step in the firm’s affairs he consulted neither of his copartners and they were in ignorance of the same until his return from the court. His evident motive was to forestall the action which it was the elder Newman’s right to take under the agreements upon which the copartnership was based.

Discovering what had been done and strongly objecting to it, the younger Newman, the same day, took a rule in the proceedings to show cause why the preliminary order for respite should not be revoked and set aside. He averred that his partner Schminke had acted without authority, that the firm was solvent, did not need a respite, and that he (Newman) was then and there ready and willing to pay on its behalf all of its indebtedness.

He averred that the action of Schminke was unjustifiable, not taken in good faith, and was injurious to the interest of the firm and of himself (Newman).

Schminke, through counsel, excepted to this rule as premature, and on the ground that the preliminary order for respite could not be set aside in the summary manner attempted — the remedy of mover in rule being by opposition to the homologation of the deliberations and recommendations (when had) of the meeting of creditors.

There was no force in this exception. It was proper practice to test by rule to show cause whether or not the order was rightfully and providently issued, and if found not. to be so the judge could seasonably revoke the same.

In his answer to the rule Schminke attempted to justify himself in not consulting his partner in reference to the proceedings for respite by charging him with being a party to a conspiracy to crowd him out of the firm.

The evidence taken on trial of the rule negatives absolutely this allegation.

There was judgment making the rule absolute and revoking and annulling the order and proceedings taken for respite, and from that judgment this appeal is prosecuted.

We find no warrant, either in the facts of this case or in the law, for reversing this judgment.

The contention urged on behalf of Schminke that the agreement of July 9, 1895, is a nudum pactum and without legal effect is not tenable. Since Isidore Newman, Sr. was furnishing all the capital required by the copartnership to do business, the stipulation therein made as to his authority over the business and its management can not be held to be unreasonable and improper; and, certainly, the funds he agreed to supply constituted ample consideration for the stipulation that he was to receive one-third of the profits of the business venture. Nor did the force of this agreement cease with the expiration of the limit of the copartnership as fixed in the articles of agreement previously executed by Schminke and the younger Newman between themselves. There was no term fixed in the agreement of July 9, and while the preceding articles of copartnership between the original members of the firm were given, in that instrument, the duration of two years, it is a fact that the firm was not dissolved at the expiration of the two years, but continued right along without any new agreement, and, presumably, under the old stipulations and conditions.

The agreements and covenants which these parties made between themselves must control in all things not contrary to law or good morals, and this is so whether we view Isidore Newman, Sr. as partner or creditor of the firm of Schminke & Newman.

Judgment affirmed.


text:
    No. 12,817.
    Edgar Newman vs. Geo. F. Schminke.
    Wliere a copartnership agreement provides that in event of disagreement between the copartners, a third person, (named), who furnishes the capital upon which the business is conducted, should take possession of the affairs of the firm, one of the parties sued by the other for liquidation is without cause of complaint that the court should, on rule to show cause taken in the pending suit, appoint such third person liquidator.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      Harold W. Newman and Dart & Neman for Plaintiff, Appellee.

      James B. Rosser, Jr., for Defendant, Appellant.
    Argued and submitted May 21, 1898.
    Opinion handed down May 30, 1898.
   The opinion of the court was delivered by

Blanchard, J.

This case is the sequel of the preceding one of Schminke & Newman vs. Their Creditors.

It was filed in the lower court on the day succeeding that on which the first was filed. The two 'were consolidated and tried together.

The present suit is instituted for the liquidation of the affairs of the firm of Schminke & Newman. The acts and doings of the partners and the troubles and disagreements between them, which, in the view of the partner suing, make dissolution and liquidation necessary, are set forth in the opinion handed down in the Schminke & Newman case. It is not necessary to restate them here.

Plaintiff alleges he does not wish to continue the copartnership with Geo. F. Schminke and avers his right to dissolve the same.

He represents that the firm is solvent, but that defendant is indebted to the copartnership in an amount in excess of his capital and share in its assets.

He shows that by the terms of the original articles of copartnership and the supplemental agreement of July 9, 1895 (both referred to at length in Schminke & Newman vs. Their Creditors), Isidore Newman, Sr., who advanced the capital to conduct the firm’s business, is entitled to be appointed liquidator of the firm.

He prayed accordingly, and for the general and final liquidation of the affairs of the partnership.

The court below issued an order requiring defendant to show cause on a day fixed why the liquidation should not be ordered and why Isidore Newman, Sr., should not be appointed liquidator, and directed, meanwhile, that defendant refrain from the performance of any and all acts to the injury of the firm and its affairs.

Defendant appeared and excepted that the proceeding is in law an ordinary action and can be tried only after the expiration of the legal delays allowed for ordinary actions. He objected to its being made, in any part thereof, summary, as was attempted by the rule to show cause why Isidore Newman, Sr., should not be appointed liquidator before the expiration of the delays as in ease of ordinary actions. Reserving his exception he answered, denying the right of Isidore Newman, Sr., to be appointed liquidator, denying any indebtedness to the firm, and praying dismissal of the action; but if liquidation of the firm’s affairs be decreed, he asked the appointment of some disinterested person to act in that capacity.

Besides the rule to show cause why Newman should not be named as liquidator served upon defendant, there was ordinary citation on the general demand for liquidation and settlement of the partnership affairs.

The exception was not sustained and there was judgment on the rule ordering the liquidation and appointing Newman liquidator. Defendant appeals therefrom.

"We do not find this judgment erroneous. The written agreements relating to this partnership contemplated and provided that'Newman, Sr., should take possession of the affairs and business of the firm upon a disagreement arising between the partners over its management. The stipulation was that in the event of such disagreement between the partners they would, when called upon by Newman, Sr., surrender to him the business with all stock, accounts, bills receivable, etc.

The disagreement here contemplated did arise, and in consequence thereof one of the partners sued for dissolution and liquidation. As part and parcel of this proceeding he asks that Newman, Sr., be appointed liquidator. It would seem, from the agreement made by the partners, which is binding upon them, Newman, Sr., was empowered to take possession of the firm’s affairs without waiting for formal appointment by the court as liquidator thereof. If this be so, and it can not be doubted, defendant is without matter •of grievance, without cause of complaint, that the court should name him as liquidator on rule to show cause in the suit which the one partner brings against the other to have liquidation judicially declared.

The extraordinary right given by the partners to Newman, Sr., to •take possession of the business and affairs of the firm upon disagreement arising between them was, as was pointed out in the opinion in Schminke & Newman vs. Their Creditors, because of the fact that Newman had furnished all the capital upon which the business was being conducted. We held in the former ease that this was a lawful consideration for the delegation of such authority, and that such delegation must have its legal effect.

If, then, Mr. Newman could summarily take possession of the ■business of the partnership without proceedings in court to- that end, defendant is without interest to object that the court has, on rule to show cause, appointed him liquidator of its affairs with bond .and security, which appointment he has accepted.

Judgment affirmed.


author: Breaux, J. Blanchard, J.

text:
    No. 12,669.
    Christian Kline vs. Succession of Thomas B. Murphey, John D. Murphey, Administrator.
    The amount realized from a sale of the property under foreclosure proceedings had been paid out to creditors ■with the consent of all concerned. There remained in the hands of the sheriff for distribution an amount less than the lower limit of the court’s jurisdiction» and the claim of the opponent was also less than that limit. The court had no jurisdiction.
    APPEAL from the Twentieth Judicial District Court for the Parish of Ascension. Guión, J.

      Edward N. Pugh for Plaintiff, Appellee.

      Edmund Maurin for A. Wilbert’s Sons Lumber and Shingle Company, Third Opponent, Appellant.
    Argued and submitted December 29, 1897.
    Opinion handed down January 10, 1898.
    Rehearing refused April 18, 1898.
   On Motion to Dismiss the Appeal.

The opinion of the court was delivered by

Breaux, J.

The parties to this litigation claimed a preference over the funds in the hands of the sheriff to be distributed.

The plaintiff, Christian Kline, proceeded via executiva in forceclosing his mortgage. The property seized was sold for three thousand five hundred dollars.

We are informed by the sheriff’s return on the writ of seizure and sale that the costs of the foreclosure amounted to one hundred and fifty-five dollars; that the claim secured by privilege amounted to one hundred and sixty-six dollars and seventy-eight cents; that he retained in his hands six hundred dollars under an order of court to meet any indebtedness to A. Wilbert’s Sons Lumber and Shingle Company, and the remainder of the purchase price was paid to the attorney for Christian Kline, the plaintiff.

The order issued in accordance with the petition of Wilbert’s Sons Lumber and Shingle Company, third opponents, directed the sheriff to retain in his hands until further order of the court sufficient of the proceeds of the sale to pay its claim.

The sheriff complied strictly with the order, retained the fund stated and paid the remainder of the funds to those who were entitled to receive them. There was not the least opposition raised to this payment.

The only question remaining for decision is whether the intervenors, Wilbert’s Sons & Co. are entitled to the fund and privilege they claim.

The amount of their ciaim is less than the lower limit of this court’s jurisdiction and the proceeds of the sale they claim is also less than that jurisdiction.

The appeal must therefore be dismissed. We have no discretion in the matter.

It is ordered and adjudged that the appeal is dismissed.

On Application for Rehearing.

Blanchard, J.

Third opponents, A. Wilbert’s Sons Lumber and Shingle Company, claimed three hundred dollars with eight per cent, interest from July 23, 1895, and two hundred dollars with like rate of interest from September 1, 1894.

They asserted a superior privilege upon certain buildings and improvements, consisting of stables, sheds, etc., and upon the lot of ground not exceeding one acre upon which the stables and sheds were erected.

This was part of the mortgaged property.

They asked separate appraisement of this property. It was separately appraised.

They asked an order to the sheriff to hold in his hand, not the entire proceeds of this property, but “sufficient of the proceeds” to satisfy opponent’s claim by preference over other creditors.

The order of court, accordingly, was that the sheriff retain in his hands sufficient of the proceeds to satisfy the demand of this third opponent.

This order the sheriff complied with. He estimated that six hundred dollars would cover the claim, retained that sum and paid over the remainder to the parties in interest.

The only fund tied up by this order was what the sheriff estimated was sufficient to meet the claim. The' order of court, indirectly at least, required him to make this estimate, since it directed him to retain only an amount sufficient to meet third opponent’s claim. In making this estimate the sheriff did so at his peril — that is to say, if he had retained an insufficient sum the complainants could have held him responsible for the deficit.

But the crucial fact in determining the question of jurisdiction here raised is, the order of court did not require to be held back, and the sheriff did not hold back, a sum sufficient to vest this court with jurisdiction. The fund in dispute, so far as these complainants are concerned, made so by their own pleadings and by the action of the court invoked by them, is not the entire sum of the proceeds of the sale of the mortgaged property, but that part of it only which the sheriff was directed to reserve in his hands pending the litigation.

There was no appeal by any of the other parties having an interest in the fund.

The complainants herein come before the court with a claim of only five hundred dollars, principal, and with a fund reserved in the sheriff’s hands, as the result of their own act, of only six hundred dollars. How can it be claimed that this court is vested with jurisdiction ratione materias ?

In its facts herein stated this case is to be distinguished from Murray vs. Sweeney, 48 An. 760, relied on by counsel for opponents as establishing a different rule. But even there the court stated that the amount of the fund in the sheriff’s hands is the test of the right of appeal.

Here the amount left in the hands of the sheriff was less than the lower jurisdictional limit of this court.

Rehearing refused.


author: Breaux, J,

text:
    No. 12,640.
    Paul Lecourt vs. Dexter S. Gaster.
    The civil courts have the power to decide questions of damages though if involves the interpretation of a criminal statute.
    To make an officer liable, acting within the scope of his authority as an officer, if must be shown that he greatly abused his authority; that such a mistake was made as a person of ordinary care and intelligence might make,will not amount to such an abuse.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J. ,

      E. A. O’Sullivan for Plaintiff, Appellant.

      Samuel L. Gilmore, City Attorney, and W. B. Sommerville, Assistant City Attorney, for Defendant, Appellee.
    Argued and submitted March 9, 1898.
    Opinion handed down March 21, 1898.
    Rehearing refused April 18, 1898.
   The opinion of the court was delivered by

Breaux, J,

This was an action for damages against the Superintendent of Police of the city of New Orleans. Plaintiff claimed that the defendant misinterpreted the law known as the Sunday law. He alleged that the defendant ordered him to close his saloon at West End every Saturday night at 12 o’clock, and that he, to avoid arrest, closed his saloon.

He insists that the Sunday law does not apply to his saloon; that it is exempt from the prohibition contained in the act.

He asserts that defendant for some time recognized his right to open his saloon on Sunday, but that in September, 1896, he took upon himself to order plaintiff to close his saloon.

Defendant’s exceptions of want of jurisdiction rations materias and of no cause of action were sustained. Plaintiff appealed from the judgment dismissing his suit.

There is no complaint here of any particular act of unfairness or discrimination in the execution of the law. We take it that it was made to apply to all alike in the locality in which the defendant has a saloon. Its proper to take it for granted that no partiality was shown. The maxim omnia rite applies.

The gravamen of the charge is, that the statute does not apply to the establishments located and maintained where petitioner has his place of business.

After an examination of the question presented, and after having considered the authorities, we found no difficulty in arriving at the conclusion that as relates to trespass and the invasion of private rights the civil courts have jurisdiction to hear and determine .suit for damages.

Damages may arise from an offence (R. S. 985) recoverable only iü a civil court. The civil courts, in these cases, may interpret the criminal statutes and render judgment for actionable damages. Having recognized the right of one injured to sue and sustain an action in the civil courts for trespass and wrong upon his personal right it remained for us to determine, whether plaintiff’s allegations set forth a cause of action.

The officer owes a responsibility to the public. He is presumed in the discharge of his functions to have acted in accordance with law, ¡until the contrary is made evident. To sustain an action in damages against an officer, it must be shown that he grossly abused his authority.

It has been decided, as to him, a mistake such as a person of ordinary care and intelligence might make, will not amount to an actionable abuse. Under his obligation it was defendant’s duty to look to the enforcement of the law. The right of action against an officer is limited. It must be shown that the officer did negligently that which it was his duty to do, or that he wilfully and maliciously perpetrated an injustice.

If the error charged, as to plaintiff’s business, consisted in a misinterpretation of Sec. 2 of Act 18 of 1886, which reads, “ provisions of this act shall not apply to” places of public resort, of recreation, of .health and watering places, and in a misapplication of Sec. 3 of the act which reads, “no alcoholic, vinous or malt liquors shall be given, traded or bartered, or sold or delivered in any public place on • said day;” we do not believe for a moment that the error (in seeing to the execution of the statute as difficult to construe as this is), gives rise to a cause for damages, particularly if it be not shown that the officer was wanting in good faith in his /endeavors to obtain its execution.

In any case it must, in our view, clearly appear that he was not acting within the scope of his authority, owing to a determination /on his part to impose upon private rights. Nothing here denotes that the officer contemplated anything of that sort.

We have given this ease our attentive consideration, and have .arrived at the conclusion that the court a qua had jurisdiction; but that a cause of action was wanting from every point of view.

The civil courts have jurisdiction because no one can inflict actionable damages without the risk of being held for reparation.

The cause of action was wanting in addition to reasons already given because the plaintiff made no objection to closing; but closed as we take it, without the 'least protest. His act has the appearance of acquiescence.

In fine, beyond all this, we infer that the main purpose of the .action was to get an interpretation of the statute.

That interpretation to this time does not agree with plaintiff’s position, but even if it did, plaintiff, for reasons before stated by us, ■would have no right of action.

It is therefore ordered, adjudged and decreed that the judgment ¿appealed from be and the same is affirmed.


author: Miller, J.

text:
    No. 12,742.
    Succession of Mrs. Elizabeth C. Earhart.
    The provisions of our Code and decisions fixing the domicile of the deceased for the opening of his succession clothe the court of the domicile with the jurisdiction to probate his will, qualify the executors and of other incidents to the opening of the succession, do not confer on that court jurisdiction to determine the validity of an alleged will disposing of immovable property in another State. Civil Code, Arts. 984 et seq.; Code of Practice, Arts. 928 et seq.; Story Conflict of Laws, Secs. 431,474; 14 An. 85.
    The effect .of such a will is for the determination of the courts of the sister State where the immovable property is situated. Story Ibid,; 14 An. 85.
    Where in a controversy between heirs in our courts, it appears that the deceased made an alleged will disposing of lands in another State, and that the alleged will has been transmitted to that State for the requisite judicial proceedings, it is proper for the court here to refuse the decree that the deceased died intestate wholly ineffective to determine the validity of the alleged will affecting lands in the sister State. Story Ibid.
    APPEAL from the Oivil District Court for the Parish of Orleans^ Ellis, J.

      Benjamin Bice Forman for Mrs. Virginia B. Ferguson, Plaintiff, Appellant.

      Dart & Fernán for Mrs. Readman Ross and Mrs. McGuire, Defendants, Appellees.

      Bernard McCloskey for F. B. Earhart, Defendant and Appellee.
    Argued and submitted March 25, 1898.
    Opinion handed down April 4, 1898.
   The opinion of the court was delivered by

Miller, J.

This appeal is by one of the legal heirs of the deceased, Mrs. Elizabeth C. Earhart, from the judgment of the lower court on the petition of the heir asserting rights, as such, against the other legal heirs.

The record shows the deceased left movable property, but no immovable property in this parish or State; there is testimony tending to show the deceased died possessed of landed property in the District of Columbia; the legal heirs of the deceased are her children, one the plaintiff and three others made defendants; it is in proof that prior to her death the deceased stated in effect that her will was made disposing of her property in the District of Columbia, and had requested that when she died her will should be transmitted to an attorney in Washington; it further appears that after her death a paper endorsed as her last will was found in her bank box and was sent to the Washington lawyer as she had requested in life. The paper was not offered for probate here, nor was any claim based on it. The testimony is in the record of one of the defendants charged in the petition with taking possession of the property of the deceased, and with suppressing her will, to the effect that the deceased left only a watch an amount of money in part intended for her grandchild, and that the residue was used for the expenses of the sickness and burial of the deceased, and that all her papers were in the box except that sent to Washington.

The petition of the plaintiff filed some weeks after the death of the deceased sets forth that she left children, plaintiff being one of them ; that plaintiff is advised that defendants claim deceased left a will, but it had not been produced; that two of the children defendants in this suit had taken possession of property of the deceased; that plaintiff as one of the forced heirs was entitled to her portion of the properly of which deceased died possessed, and to have made an inventory of such property. The prayer was for citations of the legal heirs; that two of them charged with taking possession of the property and papers of the deceased produce any will or paper purporting to be a will, and if a valid will that it be probated; that if no will was made, the deceased be decreed to have died intestate; that if the will was found to dispose of more than the law permitted, it be reduced; that plaintiff be put in possession of two-thirds of the property of the deceased, ujrless the other heirs accept, and in that event that petitioner be decreed entitled to her proportionate share of the property. The answer of two of the heirs is to the effect their mother left no property in Louisiana, except movables, found in her bank box, denies that respondents have taken possession of any property, avers that deceased left a will made according to the law of Maryland, of which they annex a copy; that it has been filed in the Orphan’s Court, District of Columbia, and that respondents are advised the will, not in the form required by the laws of Louisiana, can not be probated here, and respondents make no claim except for such judgment as the facts warrant. The other defendant admits the death of his deceased mother; that the plaintiff, respondent and two of the defendants are her heirs, and reserves his right to contest any will to his prejudice.

The lower court in admitting the will in evidence over plaintiff’s objection stated as the ground for the ruling that plaintiff had called for the production of the paper, and that the objection would be treated as directed to the effect of the paper. The judgment recognized the plaintiff, and the three defendants as the legal heirs of the deceased; decreed that as such they be placed in possession of the property of the succession, and as to the alleged will the judgment reserved the rights of all parties in interest to assert or resist any rights founded on the paper if it should ever be presented for probate. The plaintiff on this appeal complains of the judgment because there is no decree that the deceased died intestate.

The paper produced in the lower court not in the form required by law for last wills, was not sought to be probated. If any demand had been made founded upon it, the objection to its introduction should have prevailed. No will can avail as a muniment of title unless probated, nor can it be probated unless in the form prescribed by the Code, Article 1637. Aubert vs. Aubert, 6 An. 104; 1 Hennen’s Digest, p. 467, No. 4. But the petition in this case charged that defendants had wrongfully possessed themselves of the papers of the deceased, tafeen the property she left from her banfe boxes and called on them to produce all papers and any paper purporting to be the will of the deceased. To meet these allegations the testimony of defendants was-offered to show what they did in reference to the subject for investigation ; that deceased had stated her will was in the box; her desire-it should be sent to her counsel in Washington, and that the paper copy of which was produced had been transmitted to the counsel in accordance with the request of the deceased. This testimony along with the paper had direct relation to the charges in the petition, and besides the paper was called for by the plaintiff. In this form of controversy, we thinfe, the objection to the offer of the will was properly overruled, and the paper received not to give it effect as a will, but because called for and pertinent to the issues as to defendants’ action made in plaintiff’s petition.

The plaintiff contends that the deceased domiciled here when she died, the lower court had the jurisdiction to determine the issue tendered in the petition that she died intestate. The court had the jurisdiction to recognize and put the heirs of the deceased in possession of the property left by the deceased in this jurisdiction, and that jurisdiction it exercised. The plaintiff is clothed by the judgment with all the rights of the heir of the deceased capable of exercise in this State. C. P. 1003 et seq. No decree of the court here could give or take away any right in respect to landed property in another State possessed by the deceased at the time of her death, the title to which depended on any will shq left. The validity of such will, and its effect as conferring title to lands in another State were questions for the courts of that State, and beyond the jurisdictional power of our courts. Story’s Conflict of Laws, Secs. 474, 431; Hughes vs. Hughes, 14 An. 85. The decree the argument claims should have been rendered, that the deceased died intestate, was entirely beyond the jurisdiction of the court as applied to any will of the deceased designed to affect lands in the District of Columbia. Nor do we appreciate that the decision of this court in Succession of Williamson, 3 An. 261; Miltenberger vs. Knox, 21 An. 399; Clemens vs. Comfort, 26 An 269; in the Succession of Gaines, 45 An. 1246, nor the articles of the Codes cited in plaintiff’s argument; tend to affirm the right to the decree contended for in the argument. Succession of Gaines, 45 An. 1241; Civil Code, Art. 935; C. P. 929.. The articles and decision fix the domicile of the deceased as the place of opening of the succession, and the Gaines decision in effect decides that a will whether or not in the form required by our law, admitted to probate in another State, is entitled to recognition here, when presented to our courts accompanied with the probate decree of the court of the sister State. The circumstance that the deceased in the Gaines case was domiciled in the State where the will was probated, afterward recognized here, does not affect the question here, of the jurisdiction of a Louisiana court, because the court of the domicile of the deceased, to render the decree that the deceased died intestate. Wherever the domicile of the deceased such a decree would be in excess of the jurisdiction of the Louisiana court, as respects any will of the deceased disposing of lands in another State. In view of the fact that the lower court was apprised by the testimony and the paper itself that the deceased had left an alleged will disposing of lands in another State, and that the paper had been forwarded for presentation to the proper court there, it seems to us the court properly confined its decree to the recognition of plaintiff and defendants as children and forced heirs of the deceased. To have gone further and decreed that she died intestate would have trenched on the jurisdiction of the proper court in the District of Columbia, to determine the validity of a will affecting lands there. Such a decree could serve no purpose here or there, and in our opinion was properly refused.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed with costs.


author: Nicholls, 0. J.

text:
    No. 12,656.
    Peoples State Bank vs. St. Landry State Bank.
    When an action is met by an exception of no cause of action leveled at the suit in its entirety, it will not be sustained if the plaintiff have a right of action on any branch of its case.
    A bank to whom its own certificate of deposit has been presented for payment by another bank to whom it had been forwarded for collection by a third holder thereof, can not, when it has refused payment and declined to return the certificate to the agency bank, from whom it had obtained possession through presentation for payment, have dismissed an action brought by the latter to obtain either payment of the certificate, or its return to the agent on an exception that the plaintiff has no right of action.
    A PPEAL from the Eleventh Judicial District Court for the Parish of St. Landry. Dupré, J.

      Kenneth Baillio and E. D. Saunders for Plaintiff, Appellant.

      E. D. Estillette, Thomas FI. Lewis and E. B. D'ubuisson for Defendant, Appellee.
    Submitted on briefs February 7, 1898.
    Opinion handed down February 21, 1898.
    Plaintiff alleged that on or about the 8th of March, 1897, it received from the Metropolitan Bank of New Orleans a certificate of deposit issued by the St. Landry State Bank, in word's and figures following, to-wit:

      “ St. Landry State Bank, No. 31. “ Opelousas, La., March 12, 1896.
    “ Certificate of Deposit.

    “ Julius Meyers has deposited in this bank five thousand dollars, payable subject to conditions (see agreement) in current funds on the return of this certificate properly endorsed.
    “ (Signed) Fritz Dietlein.
    “ Cashier.”

    That said certificate has the following endorsements, to-wit:
    “ Julius Meyers,
    “ Henry Roos.
    "Pay to the order of Peoples State Bank,
    "Metropolitan Bank of New Orleans.
    "Endorsement guaranteed. A. 0. WUERPEL,
    ``Cashier"
    "Pay to yourselves or order.
    "The Peonies State Bank of Ooelousas. La.
    "J. J. PERRODIN,
    `` Cashier."
    That said certificate was sent to petitioner to present to the said St. Landry State Bank in order to collect the amount called for thereby and said certificate under the agreement annexed thereto was due and exigible on the 11th of March, 1897. That petitioner sent said certificate through its runner together with other items which it had that day before collected to the office of the said St. Landry State Bank in Opelousas, Louisiana, and handed the same to the cashier of said bank for collection. That the said cashier, instead of paying the said certificate, illegally and wrongfully kept and detained the same and refused to give it up, but addressed to petitioner a letter, a copy of which is annexed to its petition. That thereupon the cashier of the plaintiff bank addressed to the defendant bank a letter and received an answer thereto, which letter, with its reply thereto, it also annexed to its petition.
    That the action of the St. Landry State Bank was illegal, wrongful and in violation of the custom prevailing between banks in the town of Opelousas and elsewhere; that it had no right to retain said certificate, but was bound either to pay or to return it to petitioner. That plaintiff was bound to obtain the return of the same in order to remit it to the Metropolitan Bank, or else to collect the money therefor. That the said bank having illegally and wrongfully taken possession of said certificate, was bound for the value thereof.
    The premises considered, plaintiff prays for judgment in its favor, condemning the defendant bank either to return the certificate and agreement thereto annexed, or else to pay it the amount of said certificate, to-wit: the sum of five thousand dollars, with legal interest from 11th March, 1895, until paid.
    In the letter of the plaintiff to the defendant bank (the letter was referred to in its pleadings), its cashier mentioned a certain telegram as having been received by it from the Metropolitan Bank, and which he stated accompanied his letter, and declared that the defendant bank would from it see the necessity under which plaintiff was to return the certificate of deposit which had been sent it for collection, and which had been handed to defendant in plaintiff’s regular clearings, but which it forcibly withheld. He made a formal demand on defendant for the immediate return of the certificate, or the payment of the amount thereof, announcing and warning it that his own bank would hold it responsible for the consequences of not doing so. Defendant replied that it was perfectly responsible for both the certificate and the deposit which it represented. That it claimed the ownership of both and would hold the same against the world until legally dispossessed. Defendant refused to return the certificate on the ground that it had become its property by virtue of an agreement bearing date Opelousas, July 31, 1896. Defendant excepted that plaintiff had no right of action, reserving its right to answer should the exception be overruled. The court ordered that the trial of the exception be postponed until the day of the trial o^ the case upon its merits, at which time it was to be taken up and disposed of before trial on the merits. That defendant should answer in the meanwhile without prejudice. Defendant answered, pleading, first, a general denial. Further answering, defendant averred, that it was the owner of the certificate declared upon and of the sum of money mentioned therein; that it became the owner thereof several months after said deposit was made, to-wit: July 31,1896, and by transfer and assignment made by Isaac Roos, Henry Roos, Sr., Isidore Silverberg, Nathan F. Roos and Henry Roos, Jr., all residents of St. Landry, except Henry Roos, Jr., who was a resident of the parish of Orleans, said transfer and assignment being evidenced by a written contract executed and signed by defendant and by Issac Roos, who acted as agent for his said associates therein; that by the same the said Isaac Roos and his associates purchased from the defendant bank its claim of fifty-four thousand three hundred and thirty-seven dollars against the late firm of J. Meyers & Co.; the said Roos and his associates agreeing and promising, as part of the consideration of the transfer, that the defendant should not be held to account for the sum of money deposited in the defendant bank by Julius Meyers, and for which the said certificate was issued, and the said Roos . and his associates had authority from Julius Meyers to transfer said assets to defendant. That the possession of said certificate by the Metropolitan Bank was, in reality, possession of the said Roos and his associates and Julius Meyers, and the deposit of the said certificate with! said Metropolitan Bank was made by the said parties, directly or indirectly, and that they did so to protect themselves against the fulfilment of their contract with defendant, and with the intent thereby to deprive respondent, if possible, of its rights under the said contract.
    That it had the right as against the plaintiff to all the defences which it could make as against the aforesaid parties, because the certificate sued on was not negotiable paper and the plaintiff was not a third innocent holder thereof; all of the aforesaid parties being in collusion to defeat respondent’s said contractual rights-. That should the plaintiff bank be given possession of said certificate by-judgment of court, then, in that event, it had the right to have a judgment rendered in the present suit against the said Isaac Roos and his associates for the sum of five thousand dollars, and defendant had the right also to call them in warranty to defend this suit. Defendant prayed that plaintiff’s demand be disallowed and rejected and its suit dismissed, but in the event the court should hold that plaintiff was entitled to the possession of the certificate, it prayed for judgment jointly and severally against Isaac Roos, Henry Roos, Sr., Isidore Silverberg, Nathan F. Roos, Henry Roos, Jr., and Julius Meyers for the sum of five thousand dollars, and that they be cited in warranty to defend this suit. Plaintiff moved the court to strike out of the defendant’s answer all of the defences thereon set up and pleaded, saving and excepting the general issue, for the following reasons:

      1. Because they are legally irrelevant and inadmissible, and are-not legally pleadable against the demands of the plaintiff.
    2. If not irrelevant and inadmissible and not pleadable, same were inconsistent with the general issue.
    3. If same were relevant, admissible, pleadable and consistent-with the general issue and be so held, then plaintiff specially declares that there was then pending in the same court another suit between defendants and the parties sought to be made warrantors in the-present suit for the same object as that set forth in the answer filed, and growing out of the same cause of action, to-wit, the suit of the St. Landry State Bank vs. Julius Meyers et al., and the plea of lis pendens was specially pleaded as to said issues and for the purposes, of this motion.
    4. That the issues setup in defendant’s answer, saving the general-issue, were issues which could not be litigated in this suit, as the necessary parties to such issues were not before the court, viz.: the Metropolitan State Bank and Isaac Roos and his associates named in the answer and Julius Meyers, nor could said issues or parties be brought into this suit as was sought to be done.
    5. That as to the demand to call in warranty it should not be granted, as there was no privity alleged to exist between said parties and the plaintiff.
    The District Court sustained the exception of no right of action- and dismissed the suit and plaintiff appealed.
   The opinion of the Court was delivered by

Nicholls, 0. J.

The certificate declared on shows a deposit in the St. Landry State Bank by Julius Meyers of five thousand dollars, payable subject to conditions, on surrender of the certificate properly endorsed; it shows the endorsement in blank of Julius Meyers, the depositor, and also subsequent endorsements placing its possession in the plaintiff in this suit. The petition discloses the circumstances under which plaintiff received it for collection, and those under which it went into the hands of the defendant. If plaintiff having the certificate in its hands had simply sued to obtain a judgment upon it and defendant had filed an exception of no cause or no right of action, we would have been called on to determine under circumstances different from those actually presented by the case -whether plaintiff’s pleadings showed the absence of a right to sue. The court has entirely overlooked that feature of the case which calls for the return of the certificate by defendant to the plaintiff. If the facts alleged in the petition be true, as we are bound to assume they are, plaintiff was clearly entitled to sue to regain possession of the certificate. We are not concerned here, with what the result of the suit on its merits would be on that branch of the case. Plaintiff having received the certificate for collection had ■come under obligation to account to his principal either for the certificate itself or the money which it called for. If defendant had the legal right to retain possession of the certificate under, the circumstances in which it was received, it will have amply opportunity to establish that fact upon a trial on the merits. It can not cut off an inquiry into this question of its right of retention by the exception it has filed.

To reverse the judgment it suffices that plaintiff have a right of action upon any branch of its case. The exception was leveled at the case in its entirety, and, in our opinion, it was incorrectly sustained. We are not concerned with what the effect of our decision may be upon the case of St. Landry State Bank vs. Meyers now before us. We decide issues in each case as they are therein presented by the parties thereto.

It is hereby ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed; and it is now ordered, adjudged and decreed that the exception filed by the defendant be and the same is overruled; that the cause be reinstated on the docket of the District Court, and that the cause be remanded to that court for further proceedings according to law, costs of appeal to be borne by appellee.


author: Breaux, J.

text:
    No. 12,750.
    State of Louisiana vs. William Bailey.

      Where a juror on cross-examination on bis voir dire shows a slight inclination to bias against the accused, but on final examination by the court says emphatically that the impression derived from the merest hearsay statements will not influence him; he is competent; besides the accused did not exhaust his challenges and his case in consequence was not prejudiced by the ruling.
    This court will not review the refusal to grant a new trial upon the alleged want of sufficient evidence to convict.

      The jury returned a verdict under the direction of the court a qua. Nothing of record brings to light that the jury, as asserted, disregarded the charge of the judge and brought a verdiet contrary to the charge. The question of resistance which the alleged victim should have offered, as well as question of corroboration of the prosecuting witness and asserted victim, were .questions of fact .for the jury finally to determine and are not revisable on appeal.
    Merely cumulative evidence, or evidence to impeach a witness alleged to have been recently discovered, is not ground for a new trial.
    A PPEAL from the Criminal District Court for the Parish of Orleans. Baker, J.

      M. J. Cunningham, Attorney General, and R. H. Marr, District Attorney (P. A. Simmon?, Jr., of Counsel), for Plaintiff, Appellee.

      Paul L. Fourchy for Defendant, Appellant.
    Submitted on briefs April 23, 1898.
    Opinion handed down May 16, 1898.
   The opinion of the court was delivered by

Breaux, J.

An indictment was found against the defendant on the thirteenth day of October, 1897, charging him with having committed the crime of rape on the first day of September, 1897.

He was put on his trial on the fourteenth day of January, 1898.

On the same day he was found guilty without capital punishment.

On the first of February he was sentenced to suffer imprisonment in the State penitentiary for life.

From the verdict and sentence he prosecutes this appeal.

He reserved two bills of exceptions. The first bill of exceptions was taken to the court’s refusal to sustain defendant’s objection to a juror.

The facts are that on cross-examination by defendant’s counsel, this juror evinced a slight inclination to some degree of bias against the accused, but he stated immediately after in answer to counsel that he was not prejudiced. He also stated to the trial judge on final examination that he could try the case as if he had never heard of it before. It is not shown by the record that the defendant exhausted his peremptory challenges.

The second bill of exception was taken to the court’s refusal- to grant defendant’s motion for a new trial.

The grounds of the motion substantially were:

1. That the State had not established that the crime charged had been committed.

2. That while the court’s instruction was correct with reference to the acts constituting rape, the jury’s verdict did not conform with the instruction given.

3. That the complaining witness had not offered the resistance expected of a healthy young woman assailed as charged.

4. That she was not corroborated in any manner.

5.- That the accused testified in his own behalf and denied the crime charged, to which fact the jury had not given consideration.

6. That he has since the trial discovered new evidence.

There was no oral argument made on the part of the defendant, and no brief filed. .

Taking up the first proposition for our determination, as set forth in the first bill of exceptions taken: that the accused was forced to challenge peremptorily a juror tendered who was incompetent and prejudiced, we, on examination of the testimony on this point, made part of the bill of exceptions, found there was nothing fixed and determined in the opinion of the juror with reference to the guilt or innocence of the accused. The juror testified and made evident by his testimony that his impression was not an impression which would prevent him from rendering an impartial verdict.

Moreover, the defendant had not exhausted his challenge when the panel was filed. It does not, in consequence, appear that the ruling was prejudicial to the defendant, as the juror was peremptorily challenged by the accused and he had not exhausted his peremptory challenges.

Taking up in the second place the first proposition as set forth in the second bill of exceptions, that there was no proof of carnal knowledge against the (alleged victim’s) woman’s will. This presented a question of fact for the jury.

Their finding, under repeated adjudications, was conclusive.

In the second place the bill of exceptions sets forth that the jury chose to disregard the charge of the judge.

This also presented an issue of fact.

The judge instructed the jury properly, the defendant avers. The jury, we must presume, properly weighed the facts. Their conclusions, in this respect, are not reviewable.

Manifestly, if the judge had entertained the idea that his charge was disregarded, he would have granted a new trial. We have no reason to find that the jury did not apply the law as explained by the court.

The third ground of the motion for a new trial covered by the bill of exceptions is equally as indefensible on appeal: the failure of proof of sufficient resistance on the part of the alleged victim.

The jury, to find the verdict, must have believed that there was .sufficient resistance.

They had been properly instructed in this particular.

It was within the jury’s function to finally determine this question. There was no error of law; it was a matter of fact only.

We pass to the next question, whether the asserted victim was corroborated.

Prom Rice on Evidence, Vol. Ill, p. 828, we quote: “It is said that the evidence of the complaint 1 is confirmed if she presently discovered, the offence and made pursuit for the offender.’ ” We take it that in the-opinion of the jury, and of the court, the evidence ■of complainant here was confirmed. Her evidence was admissible to prove the crime charged. A number of other witnesses appeared. The evidence disclosed that they testified relative to facts of a corroborative character. The jury were the judges of the weight to be given to this testimony. The question whether or not the crime had been proven was a question of fact for the jury. Por reasons before stated, we will not stop to discuss the proposition, that the testimony of the plaintiff had been rebutted by the testimony of the defendant, but take up the last ground contained in the bill of exceptions, i. e., newly discovered evidence since the trial.

The grounds upon which this bill of exceptions was taken, if the ■defendant had grounds, are not stated. The affidavit annexed to the bill of exceptions of a witness sets forth evidence that would be in some respects cumulative, and in other respects its effect would be to impeach a witness.

Newly discovered evidence merely cumulative is not ground for a new trial. State vs. Hanks, 39 An. 234; State vs. Lamothe, 37 An. 43.

Newly discovered evidence the effect of which is to impeach the ■credit of a witness is not ground for a new trial. State vs. Williams, ■38 An. 361.

Motions for new trials are in a large measure left to the discretion -of the trial court. The refusal will not be reversed in the absence of ■showing that the court abused its discretion.

It is ordered, adjudged and decreed that the sentence and judgment appealed from be and the same are hereby affirmed.


text:
    No. 12,737.
    State of Louisiana vs. Usebe Fontenot.
    ‘The testimony of the dangerous character of the deceased when admissible in. support of self-defence urged by the accused must be restricted to the general reputation of the deceased for peace and quietness; hence, testimony of particular acts of violence of the deceased are properly excluded. 3 Rice on Evidence, Secs. 482, 476.
    Nor can the State be deemed to have opened the door for the admission of testimony of such particular acts of violence, merely because on re-examination the witness who has testified to such acts on cross-examination is asked by the prosecuting officer 1“ if he had ever heard the decased had hurt anybody.” 1 Greenleaf, Sec. 468.
    Instructions requested which by implication assume that the accused had established his defence are properly refused.
    The opinion of a witness whether the cuts in the clothing of the deceased indicated he had been stabbed while erect confronting the accused, or when ¿e had fallen in the ;arms of the testifying witness, can not be deemed expert testimony.
    'When the charge is full as to the law of self-defence ‘instructing as to the danger to life or limb that will justify killing; the obligation of the party assailed tore-treat; when retreat is not required and as to the other phases of the law deemed pertinent, the verdict of the jury will not be set aside because of the refusal of special charges covered by the general charge. 10 An. 264; 37 An. 77; 35 An. 970; 38 An 206.

      A PPEAL from the Eleventh Judicial District Court for the Parish of Acadia. Dwpvé, J.

      M. J. Cunningham, Attorney General, and B. Lee Garland, District Attorney, for Plaintiff, Appellee.

      W. C. Perrault, E. P. Veazie and P. S. Pugh for Defendant, Appellant.

      Submitted on briefs April 9, 1898.
    Opinion handed down May 16, 1898.
   The opinion of the court was delivered by

Miller, J.

The accused, sentenced for life imprisonment for murder, takes this appeal.

A number of bills of exception reserved on behalf of the accused are to the exclusion of questions seeking testimony of the character of the deceased for peace and quietness. It seems to be conceded that under the circumstances detailed in the bills testimony was admissible on behalf of the accused that the deceased was of violent character, but the discussion in this court is as to form of the questions propounded on this subject. We think it clear that when in support of self-defence by the accused indicted for murder, the law permits testimony impugning the character of the deceased for peace and quietness, the testimony must be confined to his general reputation in that respect. 3 Rice on Evidence, Secs. 482, 476. An examination of the questions under discussion show the purpose to elicit testimony of previous difficulties of the deceased; of violence displayed by him in saloons, and relating to other acts of the accused claimed to be pertinent on the issue of his character for peace and quietness. But on that issue it is not competent to give in evidence particular acts of the deceased. 3 Rice Ibid. It is insisted the State had opened the way for such proof. The State had not sought to put any questions touching the character of the deceased, least of all referring to the particular acts the subjects of the questions propounded on behalf of accused. The questions as to particular acts were put to .the witnesses for the State on their cross-examination. On their re-examination on the point thus introduced by the'defence on cross-examination, the District Attorney asked the witnesses who had testified to the dangerous character of the deceased, whether they had “ever heard that deceased harmed any one.” We do not understand that this question to, which the District Attorney confined himself, on the issue of the character of the deceased assailed by the defence, transcended the limit allowed him in re-examining witnesses on a point brought out on cross-examination, or entitled the defence to prove particular acts of violence on the part of the deceased. Nor 'can we perceive that the testimony of such acts were admissible, because of the proof of the exclamation of the deceased to accused “ you have stabbed me.” Therefore, in our view, the lower court did not err in excluding the testimony proposed to be given of such acts, and in confining the defence to proof of the general character of .the deceased for peace and quietness.

Another bill reserved by the accused is to the exclusion of questions put to a witness who had examined the clothes worn by the deceased when he was killed, the opinion of the witness being sought whether from that examination the cuts exhibited by the clothing were received while the deceased was erect or reclining. The testimony of the State tended to show that the deceased giving the first blow was shoved by the accused, fell back in the arms of one of the testifying witnesses, and, while the deceased was in that position, was stabbed by the accused. It is claimed in the argument for the accused that the cuts in the clothes would have been higher if received when the accused had fallen back, than the cuts would have been if the cuts had been received while the deceased was erect confronting the accused. It was proper for the witness to have described thq, cuts in the clothing from which the jury could have drawn any inters ence, the cuts might be deemed to indicate. But the subject, in our-view, was not one in reference to which expert testimony was-: admissible, and hence there was no error in excluding the opinion of; the witness. There is another bill reserved to the statement of ©ntó of the witnesses substantially, that the accused and deceased were angry, elicited by the question whether they were angry or cool and collected. We think the question referred to the fact, i. e., condition of the combatants, and net to the opinion of the witness, and question and answer were unobjectionable.

There are bills io the record to the refusal of certain requested charges. One instruction required the definition of the overt act of hostility by the deceased to be considered in connection with self-defence urged by .the accused. The instruction asked was, that the overt act was a hostile demonstration of a character to create belief of the accused he was about to lose his life or suffer great bodily harm at the hands of deceased, and this belief could have been entertained honestly by accused, though deceased did not strike or come within striking distance of the accused. The Court had charged fully on the law of self-defence and in the course of which had stated, in effect, “to justify killing the accused must have been in real or apparent danger existing at the time of the killing, the killing must have been absolutely or apparently necessary to protect the life or limbs of the deceased, and further the court instructed that by imminent danger was meant such overt actual demonstration as makes killing necessary to self-preservation; that it was not necessary danger should, in fact, exist, but such actual danger as it might appear to defendant’s comprehension as a reasonable man, and the apprehension of danger by the accused must be on grounds sufficient to satisfy a reasonable man his life or limbs were in peril or great bodily harm was about to be inflicted on him, or in other words, the trial judge put it, that the killing was the bona fide attempt to protect the accused from impending danger.” Between thiec harge asked substantially, that the overt act of hostility to justify killing must be of a character to impress accused he was about to lose his life or suffer great bodily harm, and that given by the court, we think there is a difference only of language, not of substance, and in another part of the charge the instruction given was that to constitute sell*defence the actual striking of the blow is not requisite, nor that the assailant should be in striking distance.

We are informed by the bills that the deceased and the accused became iuvolved in a quarrel over a game of cards in a saloon; the deceased giving the first blow the accused was shoved back against the wall; that in turn accused shoved deceased, who fell backward In the arms of one of the testifying witnesses, and the testimony, it is claimed, tends to show that in that position the deceased was Stabbed by the accused, the deceased exclaiming at the moment, calling the accused by name: “You have stabbed me.” The bills show there was testimony that deceased was of superior strength and size, that he was of dangerous character; that the saloon, the scene of the difficulty, had but one door, that opening into the front room, and the testimony, it is claimed, tended to show the way to the door was obstructed.

In this condition of the proof the charge of the Court presented the law of self-defence, and dealt with particularly on the phase of the excuse for the mortal stab, when from the nature of the attack the life or limbs of the party assaulted is endangered, and when retreat is impracticable, or would add to that danger. On behalf of the accused the special charge was asked substantially, that proof of the disparity of size and strength of the deceased and the accused, and of the dangerous character of The deceased, can only be offered when the prima facie case of self-defence is made, and after it has been shown the deceased was the attacking party. And that “proof of the size and strength of the two men tended to show the dangerous character of the deceased had been offered.” The instruction requested, in our view, carried the implication the accused had made a case of self defence, and we think was properly refused. On behalf of the accused the charges were also requested in substance, that a person free from fault, assaulted by another, who manifests his purpose by violence to take the life of the party assaulted, or to do him great bodily harm, and no retreat on his part is practicable, then the assaulted party is not obliged to retreat, but may pursue his adversary until secured from danger, and if he kill the adversary in so doing, the killing is self defence. Again, the charge was requested that “knowledge by the accused that deceased was violent, dangerous and vindictive and of superior strength was sufficient to form the well-grounded belief of the accused of imminent danger of his life or of great bodily harm, and will excuse killing when, superadded to such knowledge, he is assailed and when the deceased shows an intent to take the life of the accused or subject him to great bodily harm;” and again, there was asked on behalf of the accused, the charge in substance, that even if the deceased did not intend to take the life of the accused, but only to heat him, yet if the beating was of a character to imperil life or limb, accused was justified in killing the deceased. Some portions of these requested charges, we think, manifestly deal with the effect of the proof stated to have been administered, and of that effect the jury and not the Court was to determine. A careful examination of the charge of the court brings us to the conclusion the law of self-defence was fully given. Thus the Court had instructed “ that a person suddenly assaulted and in imminent danger of life or great bodily harm, and where such imminent danger would be the apparent, consequence of waiting for the assistance of the law and with no practicable means of escape, kills the assailant, the killing would be self-defence, and therefore, if the slayer was closely pressed by the deceased, retreated as far as he could conveniently or safely in good faith with the honest intent to avoid the violent assault, and believing himself in imminent danger of his life or great bodily harm, kills assailant, the killing is excusable homicide.” The Court further instructed that a person need not avoid danger by flight, if not the “ provoker ” or aggressor, if in fault he is bound to retreat as far as practicable consistently with his own safety, unless prevented by the fierceness of the assault, when if to save his life he kills his adversary the killing is excusable homicide; that in case of personal conflict to justify homicide it must appear the party killing had retreated as far as he could, or as far as the fierceness of the attack permitted, but that retreat was not required, where one stands on his own right nor where retreat would add to his danger,” and the court continued on the same line its instruction as to self-defence. The charge as given was not excepted to, and in our view it substantially gives the law on the subject. 1 Archbold, 225; State vs. Chandler, 5 An. 489. The requested charges present the law in different language, but the Court is not required to instruct in the frame prepared by the counselt for the accused, nor repeat charges already in effect given. State vs. Roberts, 10 An. 264; State vs. Melton, 37 An. 77; State vs. Garic, 35 An. 970; State vs. Boasso, 38 An. 206. We can find no error in the refusal to instruct as requested on behalf of the accused.

The bill to the refusal to charge that whether a man is threatened with imminent danger he alone must determine the necessity of self-defence, we think too broad. The law is there must have been reasonable ground to believe the life of the person assailed is in danger or great bodily harm threatened, with other qualifications unnecessary to be stated, to justify the killing of the assailant. 1 Archbold, 225; State vs. Chandler, 5 An. 489.

Our- attention has not been directed to that part of the charge respecting malice deemed objectionable. The special charge asked on that point, we think fully covered by the general charge, and no insufficiency in it is pointed out to render special instructions requisite, nor does our examination discover any such necessarily.

It is therefore ordered, adjudged and decreed that the sentence of the lower court be affirmed.


text:
    No. 12,675.
    Ovide Landry vs. The Adeline Sugar Factory Company, Limited.
    Where the record is not in condition toclose the controversy, unless there is manifest reason for a different course, the court in the interest of all parties will remand the cause.

      APPEAL from the Twenty-fourth Judicial District Court for the Parish of St. Mary. Allen, J.

      D. Caffery & Son and J. Sully Martel for Plaintiff, Appellant.

      Philip H. Mentz and Carroll & Carroll for Defendant, Appellee.
    Argued and submitted January 25, 1898.
    Opinion handed down May 16, 1898.
   The opinion of the court was delivered by

Miller, J.

It is insisted this case depends upon and is supported by the same proof that is applicable to the demand of the plaintiff, Rene F. Delahoussaye, against the same defendant presented on the appeal just decided. The suits of Delahoussaye and the plaintiff, Landry, were brought at the same time; were tried together, and brought up as consolidated in one record. The judgment in favor of Delahoussaye is based upon the testimony, in our view, exhibiting the modification of his contract with defendant. Our examination of the record has not enabled us to reach the same conclusion as to the contract of Landry made after the communications between Delahoussaye and the defendants, which, we think, with other facts, show that the original contract between Delahoussaye and the defendant was changed. We reserve our opinion on the point whether there is the same basis of fact to hold that the plaintiff’s contract was modified. It strikes us the litigation may have been conducted on the theory that this court would consider the testimony of Delahoussaye, as establishing the modification of the contract asserted by him, as equally applicable to show the modification of Landry’s contract. On that point we are not clear. We have concluded it is best calculated to secure the rights of the parties to remand this case that it may come before us again on all the issues it presents, with such additional testimony as the parties may deem proper to offer.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and annulled, and that this suit be remanded to the lower court for another trial, the costs to be paid by appellees.