text:
    No. 7692.
    François Lamarque vs. City of New Orleans.
    A suit enjoining tlie execution of an acfc of the Legislature, and claiming over $500 damages, ■was appealable under constitution of 1868, and will, under that of 1879, be transferred to the Circuit Court, and not dismissed.
    APPEAL from the Sixth District Court, parish of Orleans. Rightor, J.
    No appearance for plaintiff.

      E. H. McCaleb, city attorney, and E. H. Farrar for defendants and appellees.
   On MotioN to Dismiss.

The opinion of the court was delivered by

Spencer, J.

Plaintiff sues out an injunction to restrain the city and police authorities from executing Act No. 100 of the session of the General Assembly of 1878, relative to private markets, on the ground of its unconstitutionality. He alleges that he will be damaged to an amount exceeding $500. The motion to dismiss is on the ground that there is no such allegation, and that as the act attacked is one of the Legislature, we have no jurisdiction. We cannot dismiss the appeal; but under the Constitution of 1879,

It is ordered that this cause be transferred to the Court of Appeals of the parish of Orleans.


source: Caselaw Access Project

author: White, J.

license: Public Domain

text:
    No. 7820.
    Andrew H. Gay, Tutor, vs. N. O. Pacific Railway Co.
    "Where a corporation illegally entered upon land and constructed works thereon without previous expropriation, the owner on the perpetuation of an injunction prohibiting the entry before expropriation, is entitled to a money judgment for the value of the property illegally taken.
    APPEAL from the Fifth Judicial District MoVea, J. Court, parish of Ibervilte
    Barrow & Pope forplaintiff and appellant:
    The railway company having taken possession of plaintiff’s land without any legal steps to first expropriate him, and against his express prohibition, are and must be viewed in the light of common trespassers. The injunction against the tortious acts of defendant being sustained, plaintiff is entitled, not only to the value of the property to be taken away from him, but also to exemplary damages.
    Kennard, Howe & Prentiss, Samuel Mathews, A. & E. B. Talbot for defendant and appellee.
    There having been no intention of wrong on the part of defendant, and the judgment of the court below allowing plaintiff full compensation for his property, the claim for exemplary damages should clearly be rejected. Reporter, vol. 9, No. 8, p. 241, Minnesota.
   The opinion of the court was delivered by

White, J.

The plaintiff alleging that the defendant corporation had, without consent or expropriation, entered upon his land and were erecting works thereon, which had damaged his crop to the extent of $550, prayed judgment for the amount of damage and an injunction, which issued, and was dissolved on bond. Subsequently, and before the case was put at issue, the defendant instituted proceedings for expropriation, which culminated in a judgment of expropriation decreeing the company to be the owner of the land claimed by them on their paying the price fixed by the jury of freeholders, and damages to the extent of four hundred and forty-nine dollars, assessed by the jury as resulting from the works of the company which had been done before the finality of the proceedings for expropriation. This suit was then tried, and the court a qua reinstated the injunction and made it perpetual until the company should pay and satisfy the judgment of expropriation; but as the damages resulting from the works were assessed in the decree of expropriation, the claim for their allowance was dismissed. The plaintiff thereupon appealed, and complains of the dismissal of his claim for damages. We think the judgment below in this regard was clearly erroneous. The effect of the judgment of expropriation was to make the corporation the owners of the land claimed upon their paying the amount fixed, but the making of the payment from which the result was to flow was purely facultative, thus leaving it entirely optional with the corporation to compensate the plaintiff for the damage by it inflicted in consequence of its having illegally constructed its works before the conclusion of the proceedings for expropriation. The claim in the brief of counsel that vindictive damages should be allowed need not be discussed, as they were not prayed for.

It is therefore ordered that in so far as it reinstated the injunction and made it perpetual, the j udgment below be affirmed ; and in so far as it dismissed the claim of the plaintiff for damages, it be reversed ; and, proceeding to render such judgment as should have been pronounced below, it is ordered that the plaintiff recover of the defendant the sum of four hundred and forty-nine dollars, with legal interest from judicial demand ; the payment of said amount to be a pro tanto satisfaction of the judgment rendered in the suit of the New-Orleans Pacific Railway Company vs. Andrew H. Gay, tutor, No. 1745 of the docket of the district court of the Fifth Judicial District, parish of Iberville. The costs of both courts to be borne by the defendant.


author: DeBlanc, J,

text:
    No. 7696.
    State of Louisiana, vs. G. W. Barton.
    The fact that an accused has been released on bond -will not prevent the presumption that he has absconded from justice if it appears that at the time of his trial he "was hundreds of miles distant from the place of trial, and still moving in an opposite direction.
    An absconder from justice cannot successfully invoke the prescription of twelve months.
    APPEAL from the Eleventh Judicial District Court-, parish of Lincoln. Graham, J.
    J. C. Egan, Attorney-General, for the State :
    Whether the prisoner was a fugitive from justice or not, was a question of fact, and the giving of a bond by the prisoner for his appearance and trial at court had nothing to do with the question of fugitive from justice or not. The State having proven that the prisoner had fled from the State, prescription was interrupted, If the prisoner desired to have the benefit of prescription, it was his duty to ■show when he returned and ceased to be a fugitive. It was the duty of the prisoner to show the facts on which he relied for prescription. 'The charge of the judge was, therefore, legal, and fair to the pris•oner.
    No brief in behalf of defendant.
   The opinion of the court was delivered by

DeBlanc, J,

On the 14th of November, 1879, an information was '•filed, by the district attorney, charging that defendant had — on the 10th of April 1878 — made an assault on one Josephine Ratten, with intent to •commit rape, and had — thereafter—absconded and fled from justice.

He was arrested on the day the information was filed, and, on the •next day, tried with his consent, and found guilty as charged. He applied for a new trial, but on.grounds which present nQ question of law. He was sentenced to'hard labor for one year, and he appealed from the verdict and sentence.

In the lower court, his defense was conducted by eminent attorneys, who requested the court to charge the jury as follows :

1. That — to justify the prisoner’s conviction — it was incumbent •upon the State to establish, beyond all reasonable doubt, that he had absconded and fled on account of this prosecution, and that — during •seven months and four days — he was a fugitive from justice.

2. That — while under a.bond fixed by, and given under an order of •court, an accused party — though absent from the State — is constructively in the custody of the court, and cannot be considered as a fugitive from justice. That, as long as the bond is in force, prescription runs in favor of the accused, as if he were present and in the actual custpdy of the officers of the court.

The judge refused to charge as requested, but — in substance — • •charged “ that the fact that an accused has given bond does not prevent •him from absconding, and tha&wkey;whether he has or has not given bond— If he does abscond and flee from justice, he cannot successfully invoke •the prescription of twelve months; but that it was incumbent upon the State to establish, beyond reasonable doubt, the fact that the accused did ■abscond.”

The prisoner’s counsel excepted to that charge, but have not attempted to sustain their exception by either an oral or printed argument.

The fact that a bond was furnished by an accused would certainly justify his subsequent absence from the parish or State, if — when called •according to law — he had never failed to appear ; but if, on the day of the trial, he were at hundreds of miles from the constitutional vicinage and the impartial jury, and still moving in an opposite direction, the Action of “ his constructive presence would in vain be invoked to avert the forfeiture of his bond, and the unfavorable presumption which would flow from the cause of that forfeiture.

The charge asked by the prisoner’s counsel was too broad, that given fair and legal.

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


author: Manning, C. J.

text:
    No. 7790.
    Roth, DeBlieux & Co. vs. Joseph Hotard. J. Mathews, Executor, Garnishee.
    Where a judgment creditor propounds interrogatories in garnishment to the executor of a succession in which the judgment debtor is a forced heir, and where the executor answers* that he holds the property of the succession as executor to pay the legacies, debts, and charges, and that the debtor would be entitled to a certain proportion of the residue after all these have been paid, a judgment for a specific sum cannot be rendered, against him upon such answers.
    A PPEAL from the Fifth Mg Vea, J. Judicial District Court, parish of Iberville.
    Alexander Hebert for plaintiffs and appellants:
    First — Intervenors cannot question the legality or validity of the proceedings on which the intervention is engrafted.
    Second — The tenure by which an executor holds the property of a succession is for the benefit of all concerned therein.
    Third — Hereditary rights in the possession of the executor are liable ta the process of garnishment.
    No brief filed for appellee.
   The opinion of the court was delivered by

Manning, C. J.

The plaintiffs are judgment creditors of the defendant. The judgment was obtained in 1866 and has been revived. In 1878 Alexander Hotard, the father of the defendant, died, having appointed Samuel Mathews executor of his will, and after directing certain legacies therein made to be paid, as well as his debts and charges of his. succession, divided his property equally between his ten children.

The inventory of his property was taken on April 4, 1878, immediately after his death. The executor qualified on the 11th of same month, and on the 16th, the plaintiffs issued a fi.fa. on their judgment, and did not seize the right, share, and interest oí their debtor in the-succession, but propounded interrogatories to the executor in garnishment.

He answered, as might have been expected, that he held the property of the succession as executor to pay the legacies, debts, and charges, and that Joseph Hotard would be entitled to one tenth of the residuum after all these had been paid. The plaintiffs demanded a. judgment against him upon these answers which the lower court correctly-refused.

Substantially his answer is that he holds the property to pay the-legatees and creditors primarily, and therefore not for the present benefit • of the judgment debtor who is an heir of the succession, and this had been held not to be an admission that he holds funds which belong of right to the defendant debtor so as to entitle the plaintiffs to a judgment against him for the money. Larche v. Kent, 10 Annual, 146.

A judgment for a specific sum could not be rendered against him upon such answers, and their truth, correctness, and completeness is ■ not disputed.

An intervention was filed by one McWilliams, the purpose of which seems to have been more to dispute the validity of the garnishment than to obtain any substantial benefit. He was also a judgment creditor of the same debtor. The court dismissed the garnishment, and sustained the intervention only so far as is implied by such dismissal.

Judgment affirmed.

Mr. Justice White is recused in this case.


author: DeBlanc, J.

text:
    No. 7662.
    Mrs. Célestine Escande vs. C. V. Thibaut, Sheriff, et al.
    Unless the parties to a suit be awarded a change of venue the cause can not be legally tried’ aud determined except within the parish wherein it is pending.
    APPEAL from the Second Judicial District Court, parish of Plaque-mines. Pardee, J.
    A. & M. E. Livaudais for plaintiff and appellant:
    Eirst — A judge has no authority to try causes out of the parish of the-defendant’s residence or domicile. 21 An. 560.
    Second — Eor the purpose of the determination of the rule, all the facts alleged in the petition must be considered as proven.
    Defendant does not deny any of the allegations of the petition, files-with his motion no counter affidavit.

      .Are the facts set forth in plaintiff’s petition sufficient- to warrant the issuance of the injunction ? "We call your Honors’ attention to the following authorities: Husband’s authorization necessary. C. C. 121; 13 La. 219 ; 6 B. 17. The husband refusing, the court authorizes. C. 0.124.
    The wife being authorized by the judge to prosecute her suit, the presumption is that the husband failed or refused to authorize her. 24 An. 172. Judge cannot authorize, unless husband is absent or refuses. 24 An. 141; 11 An. 69.
    A confession of judgment by a woman Without consent of husband is null and void. 29 An. 597.
    'The wife’s incapacity is the same whether she comes before the court as plaintiff or as defendant.
    E. H. McCaleb for defendants and appellees.
    'The only point therefore in this aspect of the case is the want of authority of plaintiff in the first injunction suit. The record shows that the judge authorized her to borrow the money and execute the mortgage sought to be enforced, and that the judge authorized, on her application, the injunction to issue. There seems to be no reason for further authorization, 23 An. 84, and I know of no authority requiring such further authorization. It would certainly be a most vain and useless requirement.
    'Giving the petition under consideration the widest interpretation, taking as alleged every thing suggested, the injunction sued out should be dissolved. The case is res acljudiccita. It has been-tried and finally decided. 14 La. 58 ; 2 An. 494 ; 11 An. 287 ; 9 An. 208 ; 12 An. 197.
    'The other questions in this case that were argued refer to the power of the judge to try a rule like the one under consideration, or to dissolve an injunction on the face of the papers, in chambers during vacation, or out of term. In this connection, I am satisfied that, under section 1936, Bevised Statutes, the judge may grant all orders relating to injunctions not amounting to a judgment.
   The opinion of the court was delivered by

DeBlanc, J.

Mrs. Escande is a resident of the parish of Plaque-mines. There — on the 10th of April, 1879, she enjoined the execution of a judgment rendered against her. The order of injunction was granted by the judge of the parish court of that locality, acting — as stated by him — in the absence of the district judge.

On the 23d of June, the creditor took a rule on Mrs. Escande and 'her husband, ordering them to show cause in chambers, on the 28th of .-said month, at the office of the district judge, in the Seventh District of New Orleans, why the injunction sued out on the 10th of April, should not be dissolved, and they punished for contempt, etc.

The rule was tried at the judge’s office, the injunction vacated and annulled, and plaintiff has appealed.

In his brief, her counsel says: That she does not complain that the judgment was rendered at chambers and out of term, but she complains that it was rendered outside of the parish of her domicile.”

Unless the parties be awarded a change of venue, a cause can legally be tried and determined but in the parish wherein it is pending. Otherwise, the trial is irregular and the judgment invalid. O. P. 89.

We admit, as remarked by the district judge, that — of late — the •equitable writ of injunction has been often abused, and resorted to for the sole purpose of retarding the execution of final judgments, the validity of which cannot be seriously contested ; but this is due to our legislation, which — in this respect — is manifestly incomplete.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from is avoided and reversed, the dissolved injunction reinstated, and this cause remanded to the lower court to be proceeded with according to law; the costs of the appeal to be paid by defendants.


author: Marr, J.

text:
    No. 7711.
    Widow Scionneaux vs. Jos. Waguespack et al. Citizens’ Bank, Intervenor.
    Where a plantation ancl the slaves attached to it were sold in block, without separate estimation, for a round piice, and the purchaser assumed as part of the price the debt due by his vendor, secured by mortgage and privilege on one of the several parcels of land constituting the plantation, the assumption created a privilege on the entire plantation, which was preserved by the recording, in the mortgage-office, of the act of sale containing this assumption, although the inscription of the mortgage so assumed subsequently ceased to have effect for want of re-inscription.
    Where the same plantation was afterward sold, under execution, in block, for a round price, and the purchaser assumed, as part of the price of the adjudication, the same debt which had been assumed by the defendant in execution, the privilege created by this assumption attached to the entire plantation, which was preserved by tbe recording in the mortgage-office of the sheriff’s deed containing the assumption.
    Hotes indorsed in blank by the payee are payable to bearer ¡ and where defendant denies that plaintiff, the holder, is the owner, without suggesting that he has any defenses which could beset up against any other person whomsoever which would not he available against the plaintiff, it is not material to inquire whether the plaintiff is the absolute owner or not.
    'The assumption by the purchaser of property, of the notes given for the price of sale, does not make him a party to the notes. His assumption is a personal obligation to pay the price of sale, and is subject only to the prescription of ten years.
    PPEAL from the Fourth Judicial District Court, parish of St. James. Duffel, J.

      B. G. Dugué for plaintiff and appellant:
    First — Where the act of sale of an immovable is duly recorded the vend- or retains thereafter his 'privilege, even though his special mortg age be lost by renunciation or by failure to re-inscribe. O. 0. 3249, 3271; 19 An. 125 ; 17 L. 66 ; 8 An. 267 ; 17 An. 257 ; 4 An. 313 ; 3 An. 600 ; 12 R. 279 ; 3 L. 112 ; 3 R. 216.
    Second — When Ferry assumed the notes he became personally bound for their payment (17 An. 256,19 An, 125, 8 An. 267, 24 An. 292) and gave his vendors a new right of mortgage in addition to their privilege. 17 L. 66.
    Third — But Ferry’s assumption did not avail his vendors alone. It inured to the benefit of the holder of the notes, and gave him, to secure their payment, the same rights upon the property as the vendors had (0. 0.1890, 1902), with power to sue to enforce the assumption. O. P. 35; 5 An. 225 ; 6 R. 407'; 17 L. 66; 12 R. 279. Consequently, any holder of the notes could have seized and sold the entire property at any time before the sheriffs sale of February 14, 1868, to Mrs. Ferry ; and on the day of the sale the notes were undoubtedly secured by a mortgage and by a vendor’s privilege upon the plantation, dating from March 15,1858.
    Fourth — The same argument applies to Mrs. Ferry’s assumptions. She became personally bound to pay the notes when she assumed them in the sheriffs -deed (Twichell vs. Andry, 6 R. 407, and authorities there cited), and the whole unpaid portion of the price which she retained in her hands remained secured by a vendor’s privilege, which was safely preserved by recording the deed of sale. 23 An. . 757 ; Kohn vs. McHatton, 20 An. 223, last page of decision ; 12 R. 399.
    Fifth — Her assumption, likewise, inured to the benefit of the holder of the notes, who, by subsequently receiving interest from her and by instituting this suit, consented to avail herself of the stipulations in her favor. 6 R. 607 ; New Orleans vs. Bailey, 5 M. 322 ; 12 R. 152 ; Mitchell vs. Oooley, 5 R. 240 ; 5 An. 228.
    F. P. Poché, for defendants and appellees :
    First — The Court will certainly hold with us that, “ as a man binds himself so must he be bound,” and will refuse to bind Ferry and his vendors any further than lie intended to bind himself in his assumption of plaintiffs claim.
    Mortgages are stricti juris; they cannot be extended by implication to secure any other obligation than that expressly mentioned. 11 An. 175 ; 20 An. 154.
    Second — Since the adoption of the constitution of 1868 and the legislation thereunder, and under the various amendments to the Civil Code on the subject of registry, as reviewed in 29 An. 315, by this court, the principle contended for by plaintiff and partially recognized in 17 L. 60, 19 An. 125, and 20 An. 385, has been completely abandoned, and the jurisprudence is now firmly settled, as follows : “ Nothing, can cure the omission of re-inscribing the original mortgage, any and all assumptions by the purchaser to the contrary notwithstanding ; and the re-inscription must be made in the same manner in which the first inscription is made.”
    In the case at bar no re-inscription whatever has even been attempted, and the omission is fatal to plaintiff’s cause. Such was the ruling of the court in a case strikingly similar to ours, and reported in 28 An. 775, Yillavaso vs. Walker. That decision absolutely disposes of plaintiff’s pretensions. The same doctrine is consecrated in 29 An. 315, in 30 An. 1, and 31 An. 48. See, also, 20 An. 485, 25 An. 144.
   The opinion of the court was delivered by

Marr, J.

In January, 1852, Marcelin Scionneaux sold to Mrs. Priestly a tract of land, in the parish of St. James, having one arpent front on the river, by a depth of eighty arpents. The price was represented by two notes of the purchaser, each for two thousand dollars, payable, respectively, in the month of March, 1853 and 1854, the purchaser having the right to prolong the payment for ten years from maturity, on paying interest annually at eight per cent. This debt was secured by the vendor’s mortgage and privilege, reserved in the notarial act of sale.

The annual interest was paid up to the 31st March, 1857; and on the 6th of March, 1858, the heirs of Mrs. Priestly sold this land, with other parcels, the whole constituting a sugar plantation, having ten and one third arpents front, and thirty-five slaves, in block, without separate estimation, to Alexis Perry, for the round price of $95,000 ; in part payment of which Perry assumed the debt and mortgage to Scionneaux. The notarial act of sale to Perry was recorded, in extenso, in the mortgage-book, in the parish recorder’s office, on the 15th Ma-rch, 1858 ; and it was re-inscribed, in extenso, on the 6th July, 1876.

Perry paid the interest regularly from March, 1858, to March, 1862. He was not able to pay regularly after this ; but he made small payments, on account, in 1864, 1865, 1866,1867, and 1868.

On the 4th February, 1868, Perry mortgaged this plantation to the •Citizens’ Bank; and, on the 12th February, 1868, it was sold, by the sheriff, under fieri facias, and was adjudicated to Mrs. Alexis Perry, for $44,850, in part satisfaction of her judgment against her husband for .$114,000. In part payment of the price Mrs. Perry assumed the debt to Scionneaux, amounting, in capital and interest, to $5100, and the mortgage by which it was secured. The sheriff’s deed to Mrs. Ferry was-recorded in the proper mortgage-book on the 14th February, 1868; and it was re-inscribed on the 6th July, 1876. In this deed the land is-described as having eleven and one third arpents front.

In 1870, Mrs. Ferry mortgaged this property to-Philip Buchanan i and in 1871 she mortgaged it to Edward T. Gay & Co. Writs of seizure- and sale issued on these two mortgages ; and the property was adjudicated to Edward J. Gay, on the 1st April, 1876 : and in March, 1877, Gay sold it to Joseph Waguespack.

In May, 1877, after thirty days previous demand of payment of Mr. and Mrs. Ferry, this suit was brought by the widow of Marcelin Scion-neaux, as holder and owner of the two notes given by Mrs. Priestly for the price of one arpent front, against Mr. and Mrs. Ferry, and against Waguespack, to subject the entire property to the payment of the debt and interest from March, 1868, together with the interest, $1100, which had accrued up to that date, less $945 35 paid since on account of the; interest.

Mr. and Mrs. Ferry separately accepted.service, and confessed judgment as prayed for. Waguespack set up title under Gay, whom he-called in warranty. Gay denied that Widow Scionneaux was the owner-of the notes. He set up the title which he acquired under the mortgages to Buchanan and to Gay & Co. and the sheriff’s adjudication to him. He alleged that the mortgage in favor of Scionneaux had not, been re-inscribed ; and that, on his demand in writing, the recorder had canceled and erased the inscription, on the 31st March, 1876. He admitted, as the petition- charged, that Mr. and Mrs. Ferry were separate in property, and that they were insolvent, and had no property which could be reached for the payment of their debts. He plead the prescription of five years, in bar of the notes sued on ; and he alleged that the acts of Ferry aDd wife, in attempting' to renounce the prescription, and in confessing judgment, were null and void, and were done with the intention of defrauding him and other third parties in interest; and that the judgment on their confession was a nullity, of no effect in law..

The Citizens’ Bank intervened, asserting priority, as mortgagee, to the rights set up by Gay and Waguespack, in virtue of the mortgage of Ferry in February, 1868.

On the confession of Ferry and wife judgment was rendered against them in solido, in December, 1877, with recognition of the vendor’s mortgage, and privilege in accordance with the prayer of the petition.

As between the other parties final judgment was rendered against the plaintiff in October, 1879, in favor of defendant, Waguespack, his-warrantor, Gay, and the Citizens’ Bank, intervenor, rejecting her demand, and maintaining the priority of the mortgage granted by Ferry to the Citizens’ Bank over the mortgages under which Gay and Wagues-pack claimed. This is the judgment which the appeal taken by plaintiff brings up for review.

Counsel for plaintiff admits that the mortgage granted by Mrs.. Priestly to Seionneaux cannot be enforced, for want of re-inscription but he maintains that the assumptions by Mr. and Mrs. Ferry preserved the vendor’s privilege upon the whole property ; and that is the right, which plaintiff seeks to enforce in this suit. •

The assumption by Alexis Ferry, in 1858, was part of the price of" his purchase, not of the one arpent front, but of the whole tract sold to him by the heirs of Mrs. Priestly. He assumed, in their stead, the debt due-to Seionneaux, and the mortgage in his favor which rested on that one-arpent alone. He did not grant a new mortgage in favor of Seionneaux but by assuming, as part of the price of the whole property, the debt due by the heirs of Mrs. Priestly, to Seionneaux, he bound the whole property, in favor of Seionneaux for this debt. The vendor’s lien existed, primarily, in favor of the vendors of Ferry, the heirs of Mrs. Priestly; but the assumption of the debt due Seionneaux was a stipulation pour autrui, which was accepted by Seionneaux, by receiving, as he did, from Ferry, the annual interest up to 1862, and payments on account up to his death, which occurred in 1866. This stipulation was also accepted by plaintiff, the holder of the notes, by receiving from Ferry such payments as he subsequently made, on account of the interest; and this stipulation inured to the benefit of Seionneaux, and of his wife, after his death, as fully as if they had been the immediate vendors of Ferry. The vend- or’s privilege is the creature of the law. The act of sale shows the existence and assumption of the debt due to Seionneaux, as original vendor; and the law created the privilege. This privilege must be recorded, to be preserved; and the recording of the act from Priestly’s heirs to Ferry, in the mortgage book, in March, 1858, and the re-inscription in July, 1876, gave notice to all persons, whomsoever, that of the. whole price of the entire property sold by the heirs of Mrs. Priestly to-Ferry, the amount due to Seionneaux was not paid; and that it had been assumed by Ferry. Civil Code of 1825, arts. 3238 to 3241, inclusive.

And so, in 1868, Mrs. Ferry bound herself to pay, as part of the price of the adjudication to her of the whole property, the debt due to Seionneaux, amounting to $5100, in capital and interest, for which her husband had bound himself personally, in 1858. This assumption on her part, created the vendor’s lien, not on the one arpent front, but on the whole property, in favor of Seionneaux, or rather of his widow, who was then the holder of the notes ; and Mrs. Seionneaux accepted this stipulation in her favor by receiving from Mrs. Ferry the several payments made by Mrs. Ferry on account of the interest. The recording of the sheriff’s deed to Mrs. Ferry in 1868, and the re-inscription of it in 1876, preserved the lien, andgave full notice to all persons whomsoever that of the entire price of tne adjudication, the amount due to ■Scionneaux was not paid ; and that.it had been assumed by Mrs. Ferry.

The original mortgage in favor of Scionneaux bound the one arpent front, only ; but superadded to this was the personal obligation of Mrs. Priestly. This mortgage is no longer in force ; but the personal obligations assumed by Mr. and Mrs. Ferry have kept the debt in force, as against them ; and the vendor’s lien which plaintiff seeks to enforce in this suit, is that which affected the entire property in the hands of Alexis Ferry; and which also affected it in the hands of Mrs. Ferry, by reason of their respective assumptions of that debt, and their retention of so much of the price of the whole property for the payment of that debt. The whole property having been sold by the heirs of Priestly, in block, for a round price, the whole property was affected with the vendor’s lien ■for any part of that price assumed by the purchaser and not paid; and the same is true with respect to the purchase by Mrs. Ferry, which was also in block, and for a round price.

As to the ownership of the notes, they are indorsed in blank by the payee, and the legal title is in the holder. Widow Scionneaux produced the notes, and filed'them with her petition ; and it is not suggested that any defenses could be made ■ against these notes in the hands of any person, whomsoever, which could not have been made against them in the hands of Widow Scionneaux. The legal title being in her, it was not material to inquire whether she was the absolute owner or not.

The plea of prescription set up by Gay is no bar to this action. The ■assumption by Ferry did not make him a party to the notes. The payments of interest annually, by Mrs. Priestly and her heirs, up .to 31st March, 1857, had prevented the running of prescription ; and the notes and the mortgage and privilege were in full force at the time Ferry ■assumed them, in March, 1868. By repeated payments of interest by Ferry, the last on his own account being on the 24th January, 1868, the running of prescription had been interrupted. His assumption was a personal obligation, subject only to the prescription of ten years ; and this suit was brought and service was accepted, with confession of judgment, on the 5th of May, 1877.

So, with respect to Mrs. Ferry. In every year, from 1868 to December, 1873, inclusive, numerous payments were made to Widow Scion-neaux, by Ferry, as agent for and in behalf of his wife, the whole aggregating $945 35.

There is not the slightest foundation for the charge that Ferry and wife intended to defraud any person whomsoever, by accepting service and confessing judgment. They could have set up no plausible defense to the demand, proven by public and recorded acts; and their confession bound themselves alone.

So far as the intervention of the Citizens’ Bank is concerned, the plaintiff is in no manner interested in the question as to whether the mortgage in favor of the bank granted by Eerry, in February, 1868, primes those under which Waguespack and Gay claimed. The assumption by Ferry, in 1858, antedates the mortgage to the bank by ten years; and in the certificate of the recorder of mortgages, embodied in the act of mortgage by Ferry to the bank, the mortgage in favor of Scion-neaux, and the assumption of that mortgage and of the debt by Ferry are recited as .the first incumbrance recorded against the property.

The mortgage to the bank was granted eight days before the sale by the sheriff to Mrs. Ferry, and her assumption of the Scionneaux' debt and mortgage ; but this mortgage to the bank was passed before the recorder of the parish of St. James ; and it was not recorded until the 23d April, 1868, more than seventy days after its date; and more than two months after Mrs. Ferry’s assumption had been recorded in the mortgage office. The mortgage to the bank, therefore, was without effect, so far as the rights of the plaintiff are concerned, whether in virtue of the assumption by Ferry, or of that by his wife. Both these assumptions were in force, and both affected the entire property, at the time the mortgage to the bank was recorded ; at the time this suit was brought; and at the time the judgment was rendered ; and the lien and privilege resulting from them prime any subsequently acquired or subsequently recorded mortgage. . .

It may also be mentioned, in this connection, that Edward J. Gay had special notice of the Scionneaux mortgage, and of the assumption by Mr. and Mrs. Ferry, because the recorder’s certificate, embodied in the act of mortgage by Mrs. Ferry to Gay & Go., recites the Scionneaux mortgage and the assumptions by Ferry and his wife, as the first incum-brance on the property ; and in his written demand to have the Scion-neaux mortgage canceled and erased, he specially mentions these assumptions, and the dates at which they were recorded.

The judgment appealed from, in so far as it relates to or afreets the rights of plaintiff, is annulled, avoided, and reversed ; and it is now ordered, adjudged, and decreed, that the vendor’s lien and privilege, resulting in favor of plaintiff, Widow Scionneaux, from the act of sale by the heirs of Mrs. Priestly to Alexis Ferry, of date 6th March, 1858, and from the sheriffs deed to Mrs. Josephine Aime, wife of Alexis Ferry, of date February 12,1868, be recognized and declared to be executory upon and against the property, to wit, the sugar plantation in the parish of St. James, as described in the said act of sale by the heirs of Mrs. Priestly to Alexis Perry, and as described in the said sheriff’s deed to Mrs. Josephine Aime, wife of Alexis Perry, now in the possession of Joseph Waguespack ; and accordingly it is further ordered, adjudged, and decreed, that, unless the said Joseph Waguespack do pay and satisfy the judgment in this case rendered, signed on the fourth day of December, 1877, in favor of plaintiff, Josephine Oubre, Widow Marcelin Scion-neaux, against Mrs. Josephine Aime, wife of Alexis Perry, and against Alexis Perry, her husband, in solido, the said property be seized and sold, according to law, to pay and satisfy the said judgment, with privilege and preference ; that Joseph Waguespack pay the costs in the district court and in this court; and that the same judgment which is now rendered against the said Joseph Waguespack be also rendered in his favor, against Edward J. Gay, his warrantor.

Rehearing refused.


author: Spencer, J.

text:
    No. 6121.
    The Southern Bank vs. Louisiana National Bank and the City of New Orleans.
    It does not follow, because a party lias a right -which would support a demand to compel a corporation to apply the proceeds of certain taxes to his and similar claims, that he has -technically a privilege on such funds.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.
    E. Bermudez for plaintiff and appellant:
    First — The fund was a “ trust fund,” which could not be diverted, and should have been applied to the extinction of the coupons which it was intended to satisfy. Act No. 73 of 1872, p. 128, sec. 17.
    Second — It may well be that the bondholders were not the owners of the fund, but they certainly had a claim to it and could require its application to them, without any diversion. 2 Woods, 108.
    Third — rln connection with the matter under consideration, see, also, the following authorities : Act 1852, No. 71, sec. 37, page 53; act 1869, No. 48, sec. 5, page 45 ; act 1855, No. 178, sec. 2, page 232; act 1855, No. 291, page 352 ; R. 0. 0.1935, 1938 ; R. 0. 0. 2800 ; act 1870, No. 7, sec. 17, page 38 ; act 1870, sec. 34, page 44 ; act 1872, No. 78, sec. 17, page 138 ; Board Liquidators vs. Mun’y No. 1, 6 An. 21; Mun’y No. 1 vs. Str. Anna, 7 An. 149 ; 1 Dilíon on Municipal Corporations, ■sec. 41; Woodruff vs. Fratnall, 10 Howard, 190 ; Curran vs. Arkansas, 15 How. 304; Yan Hoffman vs. City of Quincy, 4 Wall. 535 ; Furman vs. Niehol, 8 Wall. 44 ; People vs. Bond, 7 and 10 Cal. 563, 579; Brooklyn Park Co. vs. Armstrong, 45 N. T. 234.
    Henry C. Miller for La. National Bank, defendant:
    'This suit was instituted upon the theory that the Louisiana’ National Bank was Fiscal Agent of the city of New Orleans, and as Fiscal •Agent was bound to pay the coupons sued upon, whether or not the bank had on deposit funds of the city. But the Louisiana National Bank proved conclusively that it was not the Fiscal Agent of the city. The judgment is manifestly correct.
   The opinion of the court was delivered by

Spencer, J.

This case was before this court in January, 1876, and ■ ■will be found reported in 28 An. 97.

Subsequently to the proceedings therein described, plaintiff filed two supplemental petitions. In the first the claim of ownership and for sequestration was restricted in amount, in the second an alternative demand was made for judgment for amount of the coupons, with recognition of privilege, on the funds. This court, as will be seen by the reported case, affirmed the judgment dissolving the sequestration.

On trial of the merits below there was final judgment against the plaintiff, and in favor of defendant on all demands. Plaintiff appeals.

We have not been favored with an oral argument or a brief by the city. Plaintiff abandons its pretensions to judgment against the defendant bank or its directors, as also its claim of ownership of the funds •sequestered.

It claims, however, a judgment against the city for the amount of •the coupons, and with privilege on the funds aforesaid.

We are unable to see upon what ground plaintiff was denied a judgment against the city for the coupons sued upon. There is no pretense that they are not just debts of the city, now long since due.

There is no doubt that the law required these funds to be applied primarily to the payment of the interest coupons of the consolidated ■bonds of the city, and secondarily to the bonds issued under act 49 of 1869, coupons of which two classes of bonds constitute those sued upon by plaintiff. We are not prepared to say, however, that plaintiff has a privilege ” on said funds over other holders of similar coupons; nor, indeed, that it has any “privilege” at all. It doubtless had'such •right as would have supported a proceeding to compel the city authori•■ties to apply the funds to the purposes specified by law, i. e. to the payment of the coupons in question. But that is not the nature of this proceeding. It is a simple demand for a money judgment, with recognition of a privilege upon the fund. We shall give plaintiff a judgment. for the amounts due, reserving to it the right to proceed hereafter to* compel the proper officers to apply the funds as provided by law.

It is therefore ordered, adjudged, and decreed that the judgment, appealed from is affirmed in so far as relates to the defendants, the-Louisiana National Bank and its directors. Also,, in. so'far as it rejects-plaintiff’s claim of ownership of the funds in question. That in other respects said judgment is avoided and reversed ; and it is now ordered! and decreed that plaintiff have and recover of the defendant, the city of New Orleans, the following sums with interest as follows, to wit: For the sum of twenty-three thousand seven hundred and thirty dollars,, with legal interest from July 1,1875, until paid ; also for the sum of' fifteen thousand four hundred and twenty dollars, with like interest from first January, 1876 ; also for the sum of four thousand three hundred and seventy-five dollars, with like interest from, first March, 1875 ;. also for the sum of two thousand eight hundred and seventy-eight dollars, with like interest from first November, 1875* and costs of suit. It is further ordered that plaintiff’s right, by proper proceeding,.to-corn-pel the application of the funds in question to the payment of the sums-aforesaid in whole or part, and as provided by law; is- specially reserved.


text:
    No. 7798.
    Succession of D. J. Fluker.
    "Where the immovable property of a succession has been sold under an order of court, to pay the debts of the succession, the heirs who are the grandchildren of the decedent, and1 who do not allege that the property was sold for less than its valúe, and do not show that-they have been injured by the sale, can not have the sale annulled and the property returned to their grandfather’s succession on the ground that it was sold during their-minority without the advice of a family meeting.
    Heirs who judicially claim that certain property belongs to and must be returned to a succession are estopped from setting up that the succession is closed.
    A. PPEAL from the Parish Court of East Feliciana. Brame, J.
    Wedge & Moore for plaintiffs and appellants :
    First — The succession of D. J. Eluker having been closed by the final1 account of the administratrix, 28 An. 446, Mrs. I. A. Eluker oould not, as tutrix, cause a sale of property in which minors were interested to be made without the advice of a family meeting. 3 P. 119 ; 17 L. 500 ; 10 L. 319 ; 4 An. 523 ; 16 An. 420 ; 21 An. 712; 11‘ L. 149 ; 13 L. 433 ; 10 P. 396 ; 11 R. 67, 75 ; 2 An. 727; 11 A. 109 ; 1. N. S. 339 ; 2 L. 328 ; Toullier, vol. 8, p. 508 ; 3 An. 428 ; 16 An. 420.

      T. B. Lyons and W. B. Kernan ior defendant and appellee:
    First — Even a minor whose property has been alienated without the forms of law, or in violation of law, even, cannot recover it back without restoring the advantages he may have received. Brown vs. Bouny, 30 An. 175; 21 An. 385 ; 9 L. 305 ; 13 An. 213 ; 6 N. S. 684 ; 8 N. S. 162 ; 8 L. 321; R. C. C. 2229.
    ■Second — There can be no inheritance of a succession accepted with benefit of inventory while there are creditors. 20 An. 125; 9 An. 107 ; 11 R. 508 ; 10 R. 457 ; 17 L. 500.
    'Third — That beneficiary heirs cannot be put into possession without complying with article 1012 of the Civil Code. C. C. 1192, 1193.
    .Fourth — Where there is a formal order of the court of probates recognizing the necessity of selling the property of minors for the payment of debts of the succession the purchaser is not bound to look 'beyond the order. 10 R. 398 ; 11 R. 67; 2 An. 466 ; 20 An. 124 ; 19 .An. 353 ; H. D. 1494, 5 ; 8 L. 322.
   The opinion of the court was delivered by

DeBlanc, J.

D. J. Eluker died in 1854. His widow administered <upon his estate, and — in 1859 — rendered an account of her administration. On the 19th of July of that year — this is alleged by petitioners themselves — her account “was duly homologated.” In and by the ■decree of homologation she was expressly recognized as a creditor of the estate, for one hundred and sixty-two thousand seven hundred and •forty-three dollars and forty cents, and discharged as administratrix.

The succession of D. J. Eluker and the community which existed 'between him and his wife owned lands, slaves and personal effects, which — at his death — were worth, according to the inventories then made, over two hundred thousand dollars: but, considering the number ■and value of the slaves, and the amount of the unpaid debts acknowledged by the administratrix, there can be no doubt that at the close of ■the war — if not before — said succession and community were absolutely ¡insolvent.

Erom 1859, when she rendered her account and was discharged as ¡administratrix, she — -petitioners allege — continued, as tutrix, to administer her husband’s succession for the benefit of their minor children, •and — as such — obtained from the probate court, on the 23d of December 1868, an order commanding the sale of lands to pay the debts of ¡the succession, the most considerable of which — that of the widow— had been seized, sold and purchased by John McKouen.

The lands referred to in said order were advertised for sale, and— after the usual delay — sold at auction and adjudicated to E. T. Noone for $12,549 70. After deducting from that price the costs due to the clerk, the sheriff and the printer, the balance was distributed among-the creditors, in accordance with a tableau presented by the tutrix and* homologated by a decree rendered in open court, on the 20th of June-1869.

In 1879, Jennie E. and Benjamin K. Eluker, the grandchildren of the deceased, brought this suit to rescind and annuj the order of the-23d of December 1868, the adjudications to Noone under that order,, and to compel him to return, to their ancestor’s estate, the property which he thus acquired, “ to the end that it be administered for the-benefit of the heirs.”

Plaintiffs do not deny the existence, validity or amount of their mother’s claim, the insolvency of their grandfather’s succession. They do not charge — in their pleadings — nor did they attempt to prove that-the lands sold to pay that claim, were sold for less than their value.. They merely complain that the order under which Noone purchased was granted during their minority, without the “ advice and consent of' a family council.”

Noone excepted to plaintiffs’ action, on the ground that — though the price paid for said lands was applied to the partial satisfaction of their ancestor’s debt and inured to their benefit — they did not tender-back that price.

In his answer, he contends that Eluker’s estate is insolvent, has no other property but that which was sold, that the sale was made and its-proceeds used to pay the deceased’s debt, and that his title is protected by the order of the court under which he bought.

What are we asked to do? To condemn a creditor, against whom no fraud is urged, and the principal of whose undisputed claim exceeds* one hundred and sixty-two thousand dollars, to return to an insolvent debtor lands valued at less than thirteen thousand dollars, and which the creditor acquired at a public sale and for a price equal to their ap-praisement. That demand is neither just, nor reasonable.

Is it — as contended — sustained by our laws and jurisprudence?

We have been referred, by plaintiffs’ counsel, to decisions in which-it was held that, when heirs are put in possession of a succession, that, fact terminates the succession, and that — thereafter—the creditor’s action-must be brought against them, as the owners of their ancestor’s-property. This is clear ; but those authorities do not sustain the position* taken by plaintiffs, either in their pleadings or printed argument. They do not claim for themselves — but for their grandfather’s succession — the-lands bought by defendant, and specially ask that said lands be returned to that succession, and administered as much for his — defendant’s — own benefit — if he is a creditor — as for that of others.

When plaintiffs speak of their ancestor’s succession as one which still-owns property, and to which property must be returned, do they not acknowledge its existence, and can we — disregarding that acknowledgment — hold that said succession was closed and has ceased to exist since 1869 ? The title oí their suit, which was filed, tried and determined in the parish court, is “Succession of D. J. Eluker vs. T. E. Noone” — that of the judgment simply “Succession of D. J. Fluker.” These indications leave no doubt that their pleadings were prepared with a view of avoiding the necessity to restitute the price, and for the purpose of protecting their action against the very exception which was opposed to it; but they, nevertheless, constitute the judicial assertion that,-when the lands were adjudicated to Noone, the Eluker’s succession was not closed.

Under these circumstances, were the advice and consent of a family council indispensable to the validity of a sale made to pay the acknowledged debt of the succession ; and — if so — did- plaintiffs prove that they have been injured by said sale, or that they might derive the least advantage from its cancellation ?

In “ Eoultney’s Heirs vs. Cecil, Executor,” this court said : " That the rules which apply to the sale of minors’ property as such, when the title is fully vested in them, are not strictly applicable to a case where the rights of the minors are contingent and residuary, subject to the undoubted claims of creditors, and who — in this instance — appear only as beneficiary heirs, suing for property already alienated for the payment of debts,” which was, and — here—would not cease to be a pledge in favor of the creditors.

8 L. R. 425 ; 10 R. 459.

In “ Davidson vs. Davidson,” it was held that, “ as the property had been sold by order of court to pay debts, after the homologation of the tableau, it was not necessary to provoke the appointment of a family meeting and obtain their action, in order to make a valid sale of the succession property.”

28 A. 270 ; 10 R. 398 ; 11 L. 149 ; 13 L. 431.

Be all this as it may: plaintiffs have not even alleged, much less established that they have been, in any way, injured by the sale which they attack, nor have they attempted to show that if it were canceled and the property resold, it would bring a higher price than before. Were their demand allowed, what would be the inevitable result? The property itself, or every cent of its proceeds, would go to the creditor and leave him a creditor of at least the succession, for a considerable balance. “ Why, then, as said by this court, should bona fide purchasers, who have advanced their money upon the faith of the proceedings of a court of justice, who have expended large amounts in improvements, be turned out of possession on account of mere informalities, at the instance of a party who shows no injury, and exhibits no equitable ground for relie! ? Such a course would be inconsistent with repeated decisions which, of late years, we have felt it to be our duty to make.”

3 A. 668 ; 5 A. 260 ; 6 A. 61, 685.

“ ¥e are aware that those decisions are not in harmony with the jurisprudence which, for a time, prevailed in. the State; but they are the result of careful reflection. We believe them to be a return to sound and equitable principles, which we think had been lost sight of in a too rigorous regard for form. We found a sanction for them, not merely in natural equity, but in the jurisprudence of other enlightened countries, and we-saw that the titles of many honest citizens had been rendered insecure, public confidence shaken, and the public prosperity affected by the temporary adoption of a contrary doctrine,” '

29 A. 129 ; 8 A. 504 ; 30 A. 176.

To review the entire- list of authorities to which we have been referred by the parties’ counsel, we would have to write a volume. We have attentively read and considered every one of them, and they have not removed our conviction that plaintiffs’ demand is not sustained by either law or equity.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from is affirmed with costs.


text:
    No. 7840.
    State ex rel. John Marks vs. Judge of the Third District Court.
    Courts cannot refuse to decide exceptions and issues interposed by a defendant to plaintiff’s right to sue ; and a mandamus -will issue to compel a decision to the end that this court may exercise its appellate jurisdiction.
    PPLICATION for a writ of mandamus.
    T. J. Semmes and Ernest T. Elorance for relator:
    Eirst — The Judge of the Third* District Court rendered a decree staying proceedings in his court until the Second District Court had determined the question of interdiction.
    We respectfully urge that we are entitled to a decision upon the issues presented to the Third District Court without awaiting the issue of the very proceedings which we insist-are absolutely null; proceedings over which we, not being parties, have no control.
    If our allegations are true that relator is domiciled and resident in Germany, and has never been cited, can we be stopped by the pro-eeediugs in the Second District Court ? We submit that they would be absolute nullities,
    1st. Because the nullity would result from the want of jurisdiction to decree the interdiction.
    The Civil Code (art. 392) provides that: “ Every interdiction shall be pronounced by the competent judge of the domicile or residence of the person to be interdicted.”
    And such interdiction can be pronounced only after personal citation of the party sought to be interdicted. 1 N. S. 551; 16 La. 63 ; 23 An. 27.
    'Consequently the person who is sought to be interdicted must be within the territorial limits of the jurisdiction of the court, because the citation would be worthless beyond those limits. 9 Bobinson, 348 ; 8 New Series, 250 ; 5 New Series, 45 ; 14 La. 129 ; 35 Vermont, 419 ; Harrington (Michigan), 254; 5 Howard N. T. Pr. Bep. 341; 21 Howard (S. C. U. S.) 506 ; 5 Otto, 714 ; Story Conflict of Laws, g 539 ; C. C. 392, 393, 396, 398, 417, 423, 424, 425.
    'Second — We may conclude, therefore, that proceedings, such as those carried on in the Second District Court, are absolutely null.
    Is their nullity pleadable collaterally ? As to the nullity resulting from want of jurisdiction, see 24 An. 515 ; 23 An. 557 ; 21 An. 258; 3 Howard (S. O. U. S.), 750 ; 8 Howard, 495 ; 1 Peters, at p. 340.
    'The Supreme Court of the United States, in 18 Wallace, p. 457, (Whitman vs. Thompson) after an exhaustive review of all the authorities, held that the jurisdiction of a court whose judgment is introduced in another court may be questioned collaterally, even where the record of such judgment shoios jurisdiction.

    That the nullity resulting from want of citation is absolute, is “ elementary.” 21 An. 27.
    ■“ The neglect of that formality annuls radically all proceedings had,” etc. C. P. 206. .
    •“ Therefore, a judgment rendered against a person without citing him in the usual manner, without his appearing, or any thing deemed by law equivalent to a citation or appearance, is utterly void, and imports such absolute nullity that,” etc. 1 N. S. p. 8 ; 8 N. S. 145 ; 6 La. 577 ; 16 La. 570 ; 17 La. 42 ; 2 An. 403 ; 13 An. 150 ; 1 M. 220 ; 7 An. 531 ; 11 An. 761.
    Nothing will cure absence of citation (except, of course, waiver). 5 N. S. 429 ; 7 N. S. 161; 1 Bob. 30.
    Even actual knowledge is insufficient to cure want of proper citation. 2 L. 172; 13 L. 11; 6 B. 9 ; 3 An. 9 ; 14 A. 614-; 21 A. 27 ; 26 A. 386 ; 6 L. 577 ; 7 A. 551 ; 24 A. 515 ; 21 A. 421; 11 A. 761.
    Third — -This, then, is a proper case for a mandamus. 14 La. p. 483 ; 4 Rob. 227 ; 27 An. 702 ; and see State ex rel. Mrs. Ada Peirce Dene-gre vs. the Judge of the Second District Court, lately decided by this court.
    Cotton & Levy, contra :
    First — The Honorable the Judge of the Third District Court has rendered a decree staying proceedings in the case of John Marks vs. L. B. Cain, for reasons satisfactory to his Honor, and the relator appeals to this Honorable Court to assume original jurisdiction via mandamus, and review decree and compel the judge a quo to render a different decision. If the judgment works irreparable injury,, relator must appeal, and cannot substitute mandamus for appeal. If judgment complained of, on the other hand, is interlocutory and works no irreparable injury, relator is entitled neither to an appeal nor a mandamus.

    The Supreme Court cannot pass upon the propriety of a decree ordering a stay of proceedings by mandamus, because it may become an object of inquiry hereafter. 1 N. S. 597.
    Supreme Court has no general controlling power over other courts. State vs. Judge Esnault, 12 M. 489 ; 3 N. S. 26.
    An appeal alio nomine cannot be allowed by mandamus. State vs. ' Judge of the Parish Court, 15 L. 527.
    Rule to dissolve an injunction is not an answer to merits. No judgment on merits should be rendered, because rule has been dismissed. State vs. E. Booth, 28 A. 726.
    Judge a quo has not refused to render a decision. Mandamus cannot, therefore, lie. 13 A. 483 ; 17 A. 328.
    Second — The constitution of the State does no't permit this Honorable Court thus to shape for relator the action of the judge a quo, and the application of relator should be refused. 8 Peters [U. S.] 588 ; 9 Peters [U. S.] 573 ; 11 Peters [U. S.] 173 ; 13 Peters [U. S.] 4Q4.
   The opinion of the court was delivered by

Spencer, J.

John Marks, the relator, brought suit in the Third District Court of Orleans to compel L. B. Cain, his agent, to render an account, and to compel him to surrender relator’s property held as agent, and to enjoin him from longer acting as agent, his power of attorney having been revoked.

Marks alleges that he is a citizen and resident of Frankfort on the Main, in the Empire of Germany. Cain filed a rule to dissolve an exception to this suit of Marks, setting forth in substance that prior to the filing thereof he, Cain, and two cousins of Marks, had taken proceedings in the Second District Court of Orleans, for the interdiction of said Marks, on account of imbecility and insanity; and tiiat said court had appointed Cain provisional administrator pending said interdiction proceedings, and that he had given bond and qualified as such. It is, therefore, alleged that Marks is without capacity to bring the said suit against Cain, who is himself the only legal representative of Marks; wherefore it is prayed that said suit be dismissed. The facts appear to be as stated. Cain had been the agent of Marks for many years, during which time, it seems, Marks has been in Germany. Cain applied to the Second District Court of Orleans for Marks’ interdiction, alleging that he was temporarily residing in Germany, and asked that he be served with citation through the American Consul at Frankfort, and that a commission issue to have Marks there subjected to medical examination, etc. This petition, for interdiction, was filed on the 13th October, 1879, and on the next day, without any hearing of Marks, or of any one in his interest, an order was rendered turning over his entire estate to Cain, as provisional administrator.

It was argued by Marks’ counsel in the Third District Court, that this proceeding was absolutely void for want of jurisdiction in the Second District Court, Marks not being within the State, and beyond the jurisdiction of its courts.

The Judge of the Third District Court rendered an order, under this state of facts, staying all proceedings in the suit of Marks vs. Cain until a final decision had been had in the Second District Court upon the demand for interdiction, thereby declining to proceed with the case, or to pass upon the exceptions interposed by Cain. Marks complains that this is a denial of justice ; that it is the manifest duty of the judge to pass upon the issues raised, and he applies to this court for mandamus to compel him to do so. It is manifest that the district judge has rendered no judgment on the case ; he simply declines to do so, and stays proceedings. It was clearly his duty to decide the issue made, to sustain or overrule the exceptions, to maintain or dismiss the suit. Until this is done, Marks is remediless. He is entitled to have a decision, to the end that he may appeal and have the action of the court reviewed by this court.

This court, under the constitution of 1868, and all prior constitutions, had the power to issue the writ of mandamus in aid of its. appellate jurisdiction, and therefore to compel an inferior court to try a cause, to the end that its appellate jurisdiction might be exercised. By article 90 of the constitution of 1879, its powers are still more extensive, and it is given control and supervision over all the courts of the State.

We entertain no doubt of the power of this court to grant the writ in this case. See O. P. 829, 830, 837, 838, and 839.

Of course, it is not for us to say what judgment the court below ¡shall render. Our duty, at present, is terminated, when we order him ■to decide and render judgment on the issues presented. Whether the .judgment he will render will b$ right or wrong, is no present concern of this court. That question must be presented by appeal from the .judgment.

It is therefore ordered and decreed that the mandamus heretofore ■granted be made peremptory, at respondent’s costs.


text:
    No. 7841.
    State ex rel. H. O. Ames, Executor, vs. Judge Second District Court, etc.
    'The decree of the probate court overruling an exception filed by an executor to the opposition to his tableau made by the forced heirs, whose legitimes as alleged, were not impaired by the legacies and charges on the tableau, is an interlocutory decree which worts no irreparable injury to the executor, and from which, therefore, he is not entitled to a separate appeal.
    A PPLICATION for a mandamus.
    D. C. & L. L. Labatt for relators:
    First — Relators contend that the judgment causes them irreparable injury, because it opens the judgment previously homologated, so as to let in the opposition of other parties concluded by the judgment, who at no time were before the court opposing, and that the decision disturbs the res adjudicate/, character of that judgment, and is tantamount to rescinding and annulling the same in an anomalous and irregular way. If such a practice is sanctioned, there is no virtue whatever in the theory that a judgment of homologation establishes any thing or ends litigation.
    'Second — The prayer for general relief cannot be interpreted to let in other interests, or the same persons claiming rights at' law under different titles, so as to open an homologated account. 11 A. 69 ; 16 A. 426 ; 7 La. 61,162 ; 21 A. 303.
    'Third — There can be no doubt that as forced heirs these plaintiffs were without interest to attack the administration of the disposable portion. The mother could have thrown it in the river had she chosen. R. C. C. 1493,1673 ; 8th A. 121; Adams 12 A. 769 ; Sue. Macius, 31 A. 130 ; 13 A. 424, Clarkson ; Art. 1634 (1627) C. C.
    One who claims under a will must concede it as an entire instrument; he cannot claim under one portion and repudiate or impeach another portion.” State vs. Joyce, 48 Ind. 310.

      Under this authority no opposition could be entertained by the plaintiffs as “ transferees of the residuary legatees,” to dispute the will under which they claim the legacy to Mr. Ames.
    There is another error in the reason, viz.: “Opponents being heirs-besides transferees of the universal legatees, are only prima facie-bound by the items of the accounts.”
    No brief on behalf of respondent was sent to the Reporter.
   The opinion of the court was delivered by

DeBlanc, J.

In this case, what are the facts ? The executor of' the will of Mrs. Ames filed his third provisional account, and several off the children of the deceased, have — as her forced heirs — opposed the-homologation of exclusively the account thus filed, on the ground that, it is partly incorrect.

The executor excepted to their opposition, and — in his exception— alleges, in substance, that there is — in their mother’s succession — ample-property to satisfy their légitime, and that — as forced heirs — -their only right can be exercised but in a direct action, when the legacies and; charges exceed the disposable portion.

The Children’s opposition was filed on the 14th July 1879, and — so-far as it was not opposed — the executor’s account was homologated on-the 22d of that month. In the ensuing November, said opposition was excepted to, and — in February 1880 — the exception was overruled. Considering that the decision overruling his exception worlds cause him an irreparable injury, the executor attempted to appeal therefrom, but the judge being of the opinion that — from such a decision — no-separate appeal could be taken, refused to grant it;' and — on due application — was directed, by this court, to show cause why he should not be ordered to comply with the executor’s request, and grant him an-appeal.

In his answer, the judge contends that the interlocutory decision which he has rendered, cannot work irreparable injury, inasmuch as it remains subject to review in this court, by 'appeal from such final judgment as may hereafter be rendered in the cause, which is still pending before him.

Hi's Honor admits that the forced heirs cannot — as such — -dispute-the correctness of the executor’s tableau, but he urges that — though they have opposed said tableau in no other capacity than that of forced heirs — they can, under their prayer for general relief, show that they are the transferees of the universal legatees, and — by virtue of the-transfer which they hold from the latter — contest'each and every item off the executor’s account, whether those items be or not specifically opposed by them.

How — we are asked — can the prayer for general relief be used to let in a (jase other parties than those therein named, or the same parties, in capacities not disclosed by the pleadings, and more particularly in this instance, when — as to opponents, whether they be considered as forced heirs or the legatees’ transferees, the decree of homologation is res adjudicata ?

Was the judge’s refusal to grant an appeal from the decision overruling the executor’s exception, a refusal — on his part — to perform a plain and unqualified duty, one as to which he is vested with no ■discretion ?

The exception was that, as forced' heirs, those who oppose the tableau have no interest beyond this legitime, and that — inasmuch as their légitime is in no way affected by said tableau, they have no right to contest it. The decision complained of holds that, as transferees of the universal legatees and under their prayer for general relief, those heirs can oppose each- and every item of the executor’s account; and — whether right or wrong — that decision did involve the exercise of that official discretion, which cannot be controlled by mandamus.

Definitive or final judgments are those which decide all the points in controversy between the parties, and — as to them — have the force of ■res adjudicata. The decision complained of is not of that class, and— ■evidently — is but an interlocutory decision.

C. P. 539.

Can it cause, to those against whom it is rendered, an irreparable injury?

The issue presented by the forced heirs, is — we are told — forever settled by the reasons of the court, and there can never be a judgment in their favor, as the authorities cited by the court show; but if a decision be rendered in favor of new parties, on a different title, upon the same petition, we can never get the error corrected, because we acquiesced in the decision, which improperly inserted them into the petition of the forced heirs as joint plaintiffs, and it will be too late to ■say our exception extended to them, as transferees, when it only applied to them as forced heirs.”

In this regard, the counsel’s apprehension is not founded — for, their overruled exception still stands as a protest against the interlocutory decision of the court, and — besides—they can, by proper and timely objection to any evidence which may not be legally admissible under the pleadings, repel any presumption of acquiescence in the decision referred to.

This court has often held that an appeal lies but from final judgments, or from those which — though interlocutory — may cause an irreparable injury, and that an appeal does not lie from judgments •refusing to sustain exceptions of Ks pendens and the jurisdiction, or to the right of one to sue a partner without suing all the partners, and the like. Otherwise, every case might ascend, by fractions, from the original to •the appellate jurisdiction, and — in the latter — many a fractional decision might precede that by which the last branch of a decree would be finally affirmed, amended or reversed.

4 N. S. 366 ; 7 N. S. 102, 204 ; 2 A. 964 ; 3 A. 218 ; 14 A. 388 ; 15 A. 160 ; 25 A. 381 ; 26 A. 121; 30 A. 382.

In “Ex parte Oity Council of Montgomery,” the court said: “If every order of continuance, every refusal to grant new trials, and the numerous interlocutory orders which are made in causes, both at law and in equity, from their inception to that final termination, could each •be made distinct subject matter for an appeal to this tribunal, * * it would become an intolerable grievance, and there would be no end to the litigation to which a cause requiring a great number of such orders might be.subjected.”

24 Ala. 98.

“I place my opinion” — said Mr. Justice Bronson — -“upon the broad ground that the writ of mandamus cannot be awarded for the correction ■of judicial errors. This court, in the exercise of its supervisory power over inferior tribunals, can require them, by mandamus, to proceed to ■judgment, but-they cannot dictate what particular judgment they shall render; much less can we require them to retrace their steps, and reverse a decision already made.”

20 Wend. 658.

In “Bank of Columbia vs. Sweeny,” Chief-Justice Marshall said, as •the organ of the oourt: “ This case might still be brought before,us by •a writ of error, notwithstanding any opinion expressed upon the mandamus, and the same question again be discussed upon the final judgment. The effect, therefore, of this mode of interposition, would be to retard decisions upon questions which were not final in the court below, eo that the same cause might come before this court many times, before there would be a final judgment.”

1 Pet. 567.

If — hereafter—the relators have reasons to complain of the final decree which — as yet — has not been rendered, their appropriate remedy ■shall be by an appeal from that decree, and — then—the forced heirs might themselves contend that — as the disposable quantum and the légitime are measured, not to the entire estate, without regard to the debts and charges which may exist against it, but to a balance fixed by the Code, after deducting the sums due by the estate, they have the right to oppose — as forced heirs — an account which, in their opinion, tends to reduce said balance and their legitime.

Be this as it may, the relator’s application for a mandamus is not sustained by either the facts, the law, or the 90th article of the constitution of 1879.

It is, therefore, ordered, adjudged and decreed that the provisional writ issued in this case, on the 15th March, 1880, is discharged at relator’s costs.


text:
    No. 7728.
    Widow and Heirs of Beaird vs. Sempronius Russ.
    It is the province of the judge to fix the amount of the bond to he givon for a devolutive appeal ; and whoro the bond given by appellant is for an amount less than that fixed by the' judge, the appeal ■will be dismissed.
    PPEAL from the Seventeenth Judicial District Court, parish of Red River. Pierson, J.
   On Motion to Dismiss.

The opinion of the court was delivered by

Marr, J.

Defendant, appellee, moves to dismiss, on the ground' that the appeal-bond is for a smaller-amount than that fixed by the-district court in granting the appeal.

Where the judgment is for a sum of money, the law fixes the-amount of the bond to be given for a suspensive appeal by the party condemned. C. P. article 575. In all other cases, whether the appeal be suspensive or devolutive, it is the province of the judge to fix the amount. C. P. 574, 57C, 578.

In this case plaintiff moved for a devolutive appeal, and, in the order granting it, the judge fixed the amount of the bond at $200. The-bond given and filed is for $150. The giving .oí- a bond for the amount fixed is a condition precedent to the perfection of the appeal; and as-that condition has not been complied with, the order of appeal has not become absolute. Glaze vs. Russell, 5 N. S. 238 ; Smith vs. Vanhilie, 10 La. 253 ; Duperron vs. Van Wickle, 1 Rob. 324.

The motion must prevail; and the appeal is accordingly dismissed.


text:
    No. 7817.
    Marcelite Martinez, Widow Louis Berlier, et al. vs. Succession of Adolphe Vives.
    'The death, of an absentee ■who is less than one hundred years old is never presumed. It must he clearly shown.
    The testimony as to the death of an absentee, of a witness whose only information on the subject is derived from letters which were not produced, and the absence of which was not accounted for, and from the fact that the family of the absentee had acted on the belief of his death, when the acts implying the belief are not mentioned, is not admissible in evidence.
    The testimony of one witness, introduced without objection, that the person suing as the widow of a certain decedent was married to him is sufficient to prove the marriage.
    'The contract of an attorney with his client to receive a contingent fee of ten per cent on the amount recovered is a valid contract.
    JA.n attorney who is entitled to a certain commission on the amount recovered by him, which amount is evidenced by and embraced in a judgment, has a sufficient interest in the judgment to sue for its full revival.
    ’The suit to revive a judgment is properly brought in the court which is the forced heir and legal successor of the court which rendered the judgment.
    APPEAL from the Fifth. Judicial District McVea, J. Court, parish of Iberville.
    E. B. Talbot for plaintiffs and appellees :
    .'First — A lawyer may legally stipulate for his fee a certain per centage of the sum he may recover.
    :-Second — It is contended that the court that rendered the judgment of revival is not the same court that rendered the original judgment. The Fifth District Court of Iberville is at present the same as the Fifth District Court that existed prior to the constitution of 1868, divested only of some of its jurisdiction. In La Chambre vs. Cole, 30 An. p. 961, we think your Honors have settled this question. Chapman, Ex., vs. Nelson, et al. is relied upon to sustain the point raised.
    Barrow & Pope for defendant and appellant:
    Tirst — The death of Berlier is not shown sufficiently. If Berlier be. dead, it was easy to prove it.
    'The evidence of Bils and Talbot on this subject was improperly admitted ; the bill of exceptions should be sustained. B. p. 9. It will be seen the fact of Berlier’s death is attempted to be proved by hearsay, all of which was objected to. Also, by general belief.. Certainly, general reputation makes no proof; common reputation is only evidence to prove: 1, character ; 2, pedigree ; 3, prescriptive rights, and matters of public notoriety. Starke, 31.
    ^Neither the marriage of Marcelite with Berlier, or Berlier’s death, being established, it follows that no interest on her part to have the judgment revived is shown.
    Second — A lawyer cannot validly contract for a certain proportion of' the object sued for by heirs. 2 M. 281; 7 L. 207 ; 8 L. 254.
    Third — A lawyer’s interest in a judgment being merely to collect it in-order to earn his fees, is not such an interest as entitles him to sue-to revive the judgment. O. 0. 3547.
    Fourth — Only the court that delivered the judgment has jurisdiction of a suit to revive it. 31 A. 346.
   The opinion of the court was delivered by

DeBlanc, J.

On the 11th of May, 1866, a judgment was rendered' by the Fifth District Court of the State, at a session held in the parish of Iberville, in favor of Louis Berber, and against Adolphe Vives, for fifteen-hundred and fifty dollars, in principal. That judgment was obtained by-Messrs. Talbot & Petit, attorneys-at-law, whose services .were engaged! on condition that they would receive no other fee but ten per cent upon any amount which they might collect from Vives.

The present suit was filed on the 9th of May, 1876. It was brought by Marcelite Martinez, styling herself the widow of Louis Berber, and by Messrs. Talbot & Petit, who claim that they have an interest in the judgment already referred to, and ask, with the widow — that it be revived, in accordance with the 3547th article of the Code.

In answer, defendant denies each and every allegation contained in-their petition, and — specially—that they are the owners of the judgment, sought to be revived. We have, then, to ascertain :

1. Whether it was shown, by legal and sufficient evidence, that. Berber is dead.

2. If dead, whether he was married to Marcelite Martinez.

3. Whether Talbot & Petit have — in the judgment — an interest-which would justify its revival on their application, and

4. Whether this action was brought in the court by which said j udgment was rendered.

I.

Is the fact of Berber’s death legally established? Two witnesses-testified, in substance, that it was generally understood, by his friends,, relations and those who knew him in Iberville, that he is dead. One of’ the witnesses derived his information from Berber’s brothers and sisters, and from, letters shown to him; the other swore that the members of the family have acted on that belief.

To these declarations, defendant’s counsel objected, on the ground that they are, not only mere hearsay evidence, but — besides—based on, the hearsay' of other persons, and — consequently—not the best evidence which, from the nature of the case, must be supposed to exist and to be within the control of those who rely on those declarations.

That objection was overruled, and defendant’s counsel excepted.

What became of the letters shown to one of the witnesses ? Have they been lost or destroyed, and if not, has an effort been ma'de to find and procure them ? What were their dates and contents ? To and by' whom were they written? Did those who wrote know, or had they heard that Berlier was dead? The family, it is said, acted on that belief, but how ? Did they go into mourning, or otherwise evince their belief in the imparted information ? The letters referred to should have been produced or accounted for, and it should have been shown — by more than the expression of an opinion — in what way the family acted upon-that information.

The declarations objected to show themselves that there was, within' the parties’ control, evidence — which, whether admissible or not, would— legally — have been, under the circumstances, of a Higher degree and more substantial character than that which was adduced.

Berlier was a resident of, married in, left, the parish-of Iberville, went to France and there — it is believed — died—but when ? Not a single date is given.

In “ Hayes vs. Berwick,” this court said : “ By a maxim consecrated by the best authorities, every absentee, whose death is not clearly and precisely established, is presumed to live until the age of one hundred years ; that is to say, the most remote period of the ordinary life of a man.”

2 M. 140 ; Denisard, 13, verbo “ Absents.”

In “ Owens vs. Mitchell,” speaking of collaterals, the court said: that they “ must always prove the death of ascendants by evidence, or show that one hundred years elapsed since their birth ; in which case death is presumed, not before.” That maxim was then and is now embodied in our legislation.

O. 0. 70 (71); 5 N. S. 668.

In the last of the decisions which we have cited, that doctrine is— we think — too broadly stated. There are occurrences — as a wreck, a battle, or the like — which would authorize a court in presuming the> death of one, known to have been exposed to the perils of either; but such a presumption “ must be weighty, precise and consistent.” The ascertained facts on which it is rested, must draw with them, as a necessary consequence, the unascertained facts sought to be established, "and exclude every other rational conclusion.”

Here — howsoever credible are the witnesses who testified on the trial — they repeated but the unsworn statements read in letters' which ■might have been produced, or heard from others, some of whom could 'have been regularly summoned and regularly examined — and we cannot, relying on those indefinite statements, presume a fact which — if it .happened — they could have so easily verified.

The objection raised by defendant’s counsel should have been sustained. Unless the plea involve a negative, those who affirm and claim, must prove.

H. D. p.

II.

"Was Louis Berber married to Marcelito Martinez ? Marriage may ■he proved by cohabitation, general reputation, and — indeed—by any species of evidence not prohibited by law, and which does not presuppose another and higher species ; and Mr. Talbot, whose testimony was not objected to, did swear that Berber had married a Miss Martinez, and — we entertain no doubt — had reference to Marcelite, who — as his widow — instituted these proceedings — and whose quality as such was not specially denied.

3 L. 33 ; 5 A. 430.

III.

Can the judgment be revived on the application of Messrs. Talbot ■& Petit? The agreement entered into between them and their client Is not — as contended — prohibited by law : it is that, as a compensation for their services in collecting the note placed in their hands, and on which the judgment was obtained, they were to receive a commission of ten per cent upon any amount which they might collect, and — in case of failure — to get no fee. In “ Flower et al. vs. O’Connor,” this court expressly recognized the validity of a similar agreement.

7 L. 207.

Under that stipulation, can Messrs. Talbot & Petit be considered— in the sense of article 3547 of the Code — as parties interested in the judgment sought to be revived ? Their fee — it is manifest — depends ■upon the collection of the claim evidenced by the judgment, and that ■collection — it is as manifest — depends upon the revival of the judgment; ■■and — though their fee is not yet exigible — they could have taken, as they did, those steps which were indispensable to prevent the prescription of’the judgment and the destruction of their right.

The agreement referred to does not — it is true — constitute a transfer of any part of the judgment itself, nor is the promised commission to foe measured to the uncollected amount of the judgment. That commission can, however, be realized but by the enforcement of, and from the judgment, and the suing attorneys are actually interested in keeping It .alive.

To what extent, it may be asked, can they keep it alive ? Is it to exclusively the extent of their commission, or'in its entirety? Their' right is not attached to any definite fraction of the judgment, but is linked to, and inseparable from it as an entirety, and even if a judgment-can'be partially revived, their interest and their right — in this instance— is to revive as a whole that from every collected fraction of which their commission is to accrue.

IV.

Was the action to revive brought in the proper jurisdiction? The-law provides that such an action must be brought in the court which rendered the judgment. Here, what are the facts ? That judgment was rendered by the Fifth District Court of the State, and the proceeding to revive it filed in a court which — to a certain extent — is a mere continuation of the first, or at least its forced heir and immediate successor, as-regards said judgment, its revival and execution.

As well before, as after the adoption of the constitution of 1868; this case — either during its pendency or since its final determination— has ever been in but one and the identical jurisdiction, one which — as to other matters — was different from what it now is, but which, as to this, controversy, the amount therein involved, the character of the demand and the parties, has never been changed.

In “ Chapman, Executrix, vs. Nelson et al.” we held that plaintiff’s demand could not be entertained by the Fourth District Court of New Orleans, for the reason that the suit brought to obtain the judgment sought to be revived, had not been originally brought in the Seventh District Court, and that — though the act of 1872 provides for the transfer— from that court to the Fourth District Court — of all suits and proceedings, whether determined or not, its provisions are expressly limited to suits and proceedings heretofore brought in the Seventh District Court.

In this case, the record of Berlier’s suit and his judgment — which; are now where they have ever been — were, by operation of law, constructively transferred from and to a jurisdiction which existed before-the constitution of 1868, and which was either continued or revived by that constitution, and plaintiffs’ action was properly brought in that jurisdiction.

It is, therefore, ordered, adjudged and decreed that — in so far as concerns Marcelite Martinez — her demand is rejected at her costs in both courts, as in case of nonsuit; and — as thus amended — the judgment appealed from is affirmed — the costs in both courts, except those-incurred by Marcelite Martinez, to be paid by defendant.