text:
    Favrot v. Delle Piane.
    Wh ere one who has obtained an attachment against a debtor, subsequently applies for a second attachmemt on the ground of the insufficiency of the property originally attached, he must show, under oath, the continued existence of the debt and the necessity for the further process asked for, or the application must he rejected.
    One who has acquired a domicil in the State cannot escape a constructive personal citation, and the personal jurisdiction of the court of that domicil, but by the acquisition of a domicil in some other parish of the State, or by an actual removal from the State.
    Where a court, from which an attachment had been issued, had acquired a personal jurisdiction of the defendant, it may, upon an affidavit showingthe insufficiency of the property attached and the continued existence of the debt, issue a second attachment directed to the sheriff of another parish in which the defendant has property. Per Cur: Viewing the attachment as a conservatory measure incident to the main action, there seems no reason why the jurisdiction of the court, for the purposes of attachment, where the debtor is personally cited, should be confined within its territorial limits any more than in the case of a Ji. fa. upon a judgment in personam, which may issue to any parish in the State. Aliter, Where the jurisdiction of the court, being exercised only in rem, vests solely upon the property attached, in which case the power of the court is confined to its territorial limits. In such a case it acts upon the thing, and not upon the person of its owner. Its jurisdiction is derived from the seizure of the property, and its judgment has no vitality except against the thing thus subjected to its control.
    for a Mandamus to Burle, Judge of the District Court of West Baton

      Elam and Morgan, for the applicant.
   The judgment of the court was pronounced by

Slidell, J.

The main question presented in this case is, whether the District Court in and for the parish of West Baton Rouge has jurisdiction to issue process of attachment, to attach the property of Bernard Delle Piane, in the parish of East Feliciana. It appeal’s from the allegations of the petition and affidavit in the cause, and the petition of the applicant to this court, that Delle Piane was, at the date of the institution of the suit, domiciled in the parish of West Baton Rouge. It is however stated that he had abandoned the plantation which he had cultivated in that parish, and had removed from that parish; and that the plaintiff had just reason to fear that he would remove permanently out of the State. The affidavit annexed to the original petition declared that the allegations of the petition were true, and that the defendant was about to remove permanently from the State, and will so remove with his property unless detained by an order of attachment. Upon this showing the District Judge, sitting in the parish of West Baton Rouge, ordered, on the 5th October, 1849, that an attachment issue as prayed for, on giving bond, &c. In November following, the plaintiff presented a supplemental petition, in which, after refering to his previous petition and the process of attachment which he had obtained, he alleges that the property found in the parish was encumbered by previous liens and insufficient to satisfy his claim; that the defendant possessed other property in the parish of East Feliciana. It was therefore prayed that an order be granted for a writ of attachment, addressed to the sheriff of that parish. This petition was not accompanied by an affidavit.

The judge declined to grant the order, being of opinion that he was without jurisdiction. Therefore a petition, under oath, was presented to this court, applying for a mandamus to the district judge. In this petition the applicant declares that he has good reason to believe, and does believe, that Delle Piane is about leaving the State permanently, that the property already attached is insufficient to meet his claim; that his debtor has removed property to the parish of East Feliciana, where he owns and possesses it at this time; and that the district judge has refused to order the issuing of a Writ of attachment to that parish.

We are of opinion that, aside from the question of jurisdiction, the district judge might have properly refused the order applied for; because there was no showing under oath of the continued existence of the debt, and the necessity of the further process demanded. This is a sufficient reason for refusing the mandamus. But as the district judge based his refusal upon the ground of a want of jurisdiction, and as a formal application would be refused upon the same ground, we have thought propel’, in order to avoid a delay which might prejudice the plaintiff’s interest and a renewal of the application to this court, to express our views in some degree upon the question of jurisdiction in cases of attachment, as applicable to what we understand to be the merits of the plaintiff’s application. In doing so, we shall assume that West Baton Rouge was the legal domicil of the defendant at the institution of the suit. That it was until very recently his domicil is clear; and as no new domicil within the State had keen acquired, under the plaintiff’s allegations, as the permanent departure from the State was a matter resting in intention and consummated by an actual departure at the date of the institution of the suit, and as, under the well settled principles of jurisprudence and the textual provisions of our Code of Practice, a man’s old domicil can only be changed by the adoption of a new one, animo et facto, we therefore may properly hold that the parish of West Baton Rouge was his domicil at the time of the institution of the suit, and consequently that the district court of that parish could acquire jurisdiction of the cause ratione persones. The mere personal departure of the defendant from the parish did not prevent the service of a citation, for art. 253 of the Code of Practice de- . lares that the sheriff must serve the citation, 1st, on the person of the defendant, or at his domicil, if he has one in the place, or if he be about to leave the State; 2, at the place where the defendant has resided last, if he had a domicil in the place and conceal himself to avoid being cited. It seems to be the clear intention of the law, so far as suits by attachment are concerned, that a man once domiciled in the State shall not escape a constructive personal citation and the personal jurisdiction of the court of that domicil, except by the acquisition of a domicil in some other parish of the state, or, by an actual removal from the State.

If then the District Court of the parish of West Baton Rouge has acquired a personal jurisdiction over the defendant, either by a personal service (if citation upon him, or by a service of citation at his late residence, he, although absent from the parish, not having left the State nor acquired a domicil in any other . parish of the State, then, in our opinion, the district court would have the right to issue process of attachment to the sheriff of East Feliciana upon affidavit showing the insufficiency of the property attached, the continued existence of the debt, &c. For such process, when the defendant is personally cited, is not, as observed by Martin, J. in Williams v. Kimball, 8 N. S. 354, a mode of bringing suit, but a conservatory act, a remedy or incident, which may precede or accompany the action. See also C. P. 208, 209.

Viewed in this light, as a conservatory measure incident to the main action, there seems no reason why the jurisdiction of the court for the purposes of attachment, where the debtor is personally cited, should be confined within its territorial limits, any more than in the case of a fieri facias upon a judgment in personam, which undoubtedly may issue to any parish within the State.

There is a manifest distinction between the case supposed, of a court which has acquired personal jurisdiction, and that of a court whose jurisdiction being exercised only in rem, rests solely upon the property attached. In the latter case the power of-a court seems to us to be limited to its territorial limits. It acts upon the thing, not upon the person of its owner. Its jurisdiction is described from the seizure of the property, and its judgment has no vitality except against the thing thus subjected to its control. If there be no property within its territorial limits and no personal citation, no jurisdiction vests, and its process and decree would be merely null. See Jobson v. McRae, 3 An. 301. Brougham v. Ring, 2 An. 571.

In expressing the opinion that a court which has jurisdiction ratione persones, and has exercised it by citation, can extend the incidental remedy of attachment by issuing its process to the sheriff of another parish, we do not undertake to say in what mode the attachment thus levied may afterwards be enforced. Difficulties may arise which it is not necessary now to solve, as in case of a garnishee declining to answer out of the parish of his domicil, &c. These difficulties, however, pertain rather to the exercise of the right _than to the right itself. It is also obvious that where a corporal thing in the possession of the debtor is seized in another palish, there could be no greater inconvenience arising in case of an attachment than in that of a fi. fa. emanating from a court sitting in another territorial jurisdiction. We may add that the subject of garnishment, when the garnishee under fi.fa. lives in a different parish from that in which the court sits from which the process emanated, was noticed in the case of Featherston v. Compton, 3 An. 380.

It not appearing that the district judge erred in rejecting the application, as made to him, for an order of attachment, it is therefore ordered that the petition for mandamus be dismissed at the costs of the applicant.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 10,092.
    The State ex rel. James Sweeney vs. Albert Voorhies, Judge, Etc., et als.
    A District Court has no jurisdiction over a cause, the object of which is to have it determined that claims, to enforce which suits are apprehended to be brought before a city court in unappealable amounts, have been paid or setttled.
    As a corollary, such court has no right to issue an injunction to prevent the creditor from instituting such suits.
    It will be time enough to urge the plea ot payment when the claims are put in suit. It is not to be presumed that if the same is established, the city judge will not maintain it or will violate the law and his official oath- 39 App. 619 affirmed.

      While under Article 90 of the Constitution this court would be impotent to upturn an illegal judgment overruling the defense of payment, it could, under proper charges and proof, afford adequate relief under Article 200 of the same Constitution.
    ^^PPLICATION for Certiorari and Prohibition.

      T. M. Gill, for the Relator.

      W. 8. Benedict, contra.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a Prohibition.

The relator complains that, in a case over which he has no jurisdiction, the district judge has issued an injunction, forbidding him from bringing suits before a city court against certain parties named.

The relator states substantially that the ground upon which the injunction was allowed is, that the plaintiffs fear that the defendant (who is the relator here) will sue them before said court on items of alleged indebtedness, reduced to unappealable amounts, while the aggregate of the same exceeds the lower limit of the jurisdiction of this Court; that the amounts which he apprehends may thus be put in suit have been paid or settled, and that the object of the defendant (relator) in said future or eventual suits is to recover twice his claims and to vex and harass them.

The defendant in the injuction proceeding filed an exception to the jurisdiction of the district court, over the subject matter; but the same was overruled.

The defendant now appears before this Court and invokes its supervisory powers to declare that said district court has no jurisdiction in the premises.

In his return the district judge answers that he has jurisdiction of the main demand and that he has authority to maintain it.

At first sight it is apparent that the district court has no power to decide that which another court of undoubted jurisdiction would have the exclusive right of determining on a proper issue.

Were it otherwise, a clash of jurisdiction might arise to which no remedy could be applied. Such discordance and conflict in the j udicial department must by all legal means be avoided.

If it be true that the plaintiffs in the injunction case have already paid or settled for the items of indebtedness which they say they fear the defendant in the suit proposes to sue them for before the city court, and if the defendant in the suit actually brings the apprehended suits, it will be time enough for the defendants in the same to plead and show payment. It is not to be presumed that, if such be the case, the city judge will violate the law and his official oath and overrule the plea of payment and condemn the parties to pay again.

Were he to do so, this Court would have no jurisdiction to reverse his judgments under any remedial writs justified by Article 90 of the Constitution ; but it surely would have jurisdiction on proper averments and proof, to prevent the further abuse of power by any inferior judge, under the provisions of Article 200 of the Constitution.

This application, although somewhat differently garbed, presents the same question as was submitted and determined in the germane ease of State ex rel. Sweeney vs. Rightor, Judge, 39 Ann. 619, in which it was held that the Constitution guarantees to every person the right to seek redress through the couits for any injury to his person or property, and to enforce any legal demand therein; and so, that a court is without power to prevent by an injunction a person from bringing a suit before another court of competent jurisdiction to enforce a right claimed, or redress an alleged grievance.

This controversy presents no feature which removes it beyond the compass of that ruling.

It is therefore ordered that a peremptory Prohibition issue herein as . prayed for and according to law.


author: Poché, J.

text:
    No. 10,099.
    The State ex rel., George B. Rice vs. Charles A. Butler, Criminal Sheriff.
    A person indicted for a capital offense is not entitled to bail on the ground that his case has been continued at the instance of the State, if it appears that the only effect of such continuance is to postpone the trial to the next month after the date for which the trial had been fixed.
    An indietment for a capital offense affords sufficient presumption of the guilt of the accused, to remove him from the right to bail under the provisions of Article 9 of the Constitution.
    ^PPLICATION for Habeas Corpus.

      John J. Mnney for the Relator.
   The opinion of the Court was delivered by

Poché, J.

This is an application by means of the writ of habeas corpus, to be admitted to bail by the relator wlio is held in custody under an indictment for arson, and who complains that he has been denied Ms constitutional right to a speedy trial through the fault of the State.

The record shows that the indictment against him was returned into court on the 22d of November, 1887, and that the trial of his case was fixed for the 20th of December following.

On that day relator, the accused, was in court ready for trial, but the State was not ready, and on motion a continuance was ordered.

The motion for a continuance was grounded on the absence of the district attorney from the city, and on other dilatory reasons, which were considered as satisfactory by the trial judge. Relator then applied to the district judge to be admitted to bail for the same reasons substantially which ground his present application to this court, and his motion was overruled.

His point is that a continuance of his trial at the instance of the State entitles him to bail, although the crime for which he stands indicted is not a bailable offense, under the Constitution.

Under the provisions of section 841 of the Revised Statutes, the crime of arson as charged against relator is punished by death, hence it is a capital offense.

Now Article 9 of the State Constitution, which secures the benefit of bail in criminal prosecutions provides that: “All persons shall be bailable by sufficient sureties, unless foi'capital offenses where the proof is evident or the presumption great.”

Criminal jurisprudence has long since settled the rule that an indictment furnishes absolute evidence that the proof is evident and the presumption great as regards the right to bail. Territory vs. Benoit, 1 Martin, 142; State vs. Merrick, judge, 10 Ann., 424; State ex rel., Hunter vs. Sheriff, 35 Ann., 605. Church on Habeas Corpus §403, and authorities cited in note. Hence it follows that under the general iule relator is not entitled to bail.

But his contention is that, under the circumstances of his case, he comes under an exception to the general rule, and he rests his application on the following dictum in McFarlane’s case, 1 Martin 416 : “In case of a mistrial or of a continuance, at the instance of the territory, as the confinement may be extended to a considerable length, there would be no impropriety in listening to a motion to bail.”

But relator’s application does not present the exceptional circumstances contemplated in that decision, and nothing here suggests the probability, under the effect of the continuance, of a confinement to a considerable length.

In his petition relator himself avers that the only effect of the continuance will be to bold him in custody, “denied the privilege of a trial until sometime in the coming month,” which begins to-morrow; and we are informed by the district attorney that the case will be fixed for trial for Friday next, the sixth day of that month.

The terms of the criminal district court of the parish of Orleans succeed each other every 'month, and everything points to a rapidly approaching trial of relator under the charge which is pending against him.

Hence his case under the present application presents no reasons to warrant the interference of this court'at the present stage of the proceedings. Nothing in this application suggests any features to distinguish this case from that of Hunter in the 35th Ann., 605, in which a similar application was denied, after a thorough review of our own, and general, criminal jurisprudence.

It is therefore ordered that the writ is discharged at the relator’s costs.


author: Todd, J.

text:
    No. 10,084.
    The State of Louisiana vs. Christoval Joseph.
    An appeal in a criminal case will not be dismissed where the transcript is filed within three days after the retarn day.
    To admit proof of a cause or causes suspending prescription pleaded in bar of the prosecution, such cause or causes must be averred in the indictment.
    Where a party is prosecuted under an indictment for murder and convicted of manslaughter and the judgment is arrested because on the face of the indictment a prosecution for manslaughter is barred by prescription, the case cannot be remanded to enable the prosecuting officer to amend the indictment by averring facts showing a suspension of prescription.
    And where it appears that the accused is protected by prescription from prosecution under a new indictment for manslaughter, the prosecution must terminate and the accused be discharged.
    When a party has been indicted for murder and convicted of manslaughter, he stands acquitted of murder and can never he tried again for that offense.
    A PPEAL from the Thirteenth District Court, Parish of St. Landry, i\ Bstilette} J.

      M. J. Gunningham, Attorney General, and John M. Ogden, District Attorney, for the State, Appellant.
    1. An appeal in a criminal case filed within three judicial days after the expiration of the ten days allowed by law, will not be dismissed. State vs. Francis, 38 Ann. 464.
    2. When a conviction of manslaughter is had upon an indictment for murder and judgment ia arrested on the ground that on the face of the indictment the offense is prescribed, the case should be remanded without prejudice to the rights of the State to a legal prosecution, if it ia shown that an erroneous allegation had been made in the indictment which affected the question of prescription. 36 Aun. 978.

      E. P. Veazie and E. E. Eerrodm, for Defendant and Appellee.
   Motion to Dismiss.

The opinion of the Court was delivered by

Todd, J.

This appeal is taken by the State from a judgment sustaining a motion in arrest of judgment in a prosecution of the defendant for murder, resulting in his conviction of manslaughter.

There is a motion to dismiss the appeal on the ground that the transcript of appeal was not filed in ten days after the order of appeal was granted.

The appeal was granted on the 17th of November, 1887. The transcript was filed on the 30th, same month. The ten days expired on the 27th of November and the filing of the transcript was within three days thereafter, which was in time. State vs. Corcoran, 38 Ann. 950. State vs. Butler, 38 Ann. 392. State vs. Hampton, 33 Ann. 1252.

The motion to dismiss is therefore refused.

On the Merits.

As stated above, the accused was tried on an indictment for murder and convicted of manslaughter. After the verdict of the jury was rendered, he filed a motion in arrest of judgment upon the ground substantially :

That his prosecution for and conviction of manslaughter was barred by the prescription of one year — -more than one year having elapsed from the date of the commission of the offense as charged in the bill and the filing of the indictment.

The district attorney thereupon offered to traverse the motion in arrest and show that the death did not occur at the date charged in the indictment but subsequently thereto and at a date less than one year prior to the finding of the indictment — and, also :

That there had been no legal session of a grand jury between the death of the person charged to have been murdered and the finding of the indictment.

The trial judge rejected this traverse and sustained the motion in arrest and discharged the accused; from which the State has appealed.

The ruling of the judge was undoubtedly correct.

Apart from the effect — which the traverse involved — to contradict an important averment in the indictment as to the time when the offense was committed — the causes relied on or asserted by the State to suspend the prescription pleaded were not alleged in the indictment, and to authorize such proof at any stage of the prosecution, it was essential that the proper averments with reference thereto should have been made in the bill.

In a similar case to the one before us, where a party had been tried for murder and convicted of manslaughter and the judgment had been arrested or, a plea of prescription — the case of the State vs. Victor, 38 Ann. 978—this Court used the following language:

“To admit proof on the trial touching the existence of the facts necessary to a suspension of prescription it is essential that these facts should be averred in the indictment. (Citing State vs. Bilbo, 19 Ann. 76; State vs. Pierce, Ib. 90; State vs. Bryam, Ib. 435.) And this is necessary where the indictment charges murder only and the jury convict of manslaughter, (Citing State vs. Poster, 7 Ann. 255; State vs. Freeman, 17 Ann. 69; State vs. Morrison, 31 Ann. 211.) It is clear that such testimony was not admissible at that stage of the proceedings, or in fact at any stage of the proceedings, in the absence of the required averments in the indictment; but it was particularly objectionable on the trial of a motion in arrest, for the reason that such motion rests and must be determined on the face of the record, and also for the more vital reason that the motion presented questions of fact, which could be passed on alone by the jury.”

In the case from which we quote, while sustaining the motion in arrest of judgment, the Court did not, by the terms of the decree, put an end to the prosecution, but the judgment was an ested without prejudice to the State to further presecute for the crime of manslaughter; and it is urged that in the instant case a like reservation should be made in the event we sustained the decree arresting the judgment, as we have done.

We cannot do this. It is to be noted that in the case of State vs. Victor referred to, and in the cases cited in our opinion sustaining our ruling therein upon the point under consideration, the cause of the-suspension of prescription was not that urged in the instant case, but was the absconding or fleeing of the accused from justice, which prevented the running of prescription up to the very time of the filing of the indictment, so that another prosecution for manslaughter in that case would have been seasonable and uneffected by the question of prescription.

In the instant case, however, it is virtually admitted by the counsel for the State that a prosecution of the accused under another indictment for manslaughter would be futile, for he asserts that a new indictment for manslaughter would be prescribed on its very face, and could only legally have been filed before the 2d of November, 1887.

In view of the futility of a further prosecution for manslaughter under another indictment, the counsel urges that the case be remanded in order that he may amend the present indictment and try the accused under it as amended.

This cannot be done. The law contemplates and requires that amendments to an indictment must be made during the progress of the trial and before the case is submitted to the jury. This is especially manifest where the amendment consists, as in the instant case, of the averment of facts to be necessarily passed upon by the jury in making-up their verdict.

After a judgment has been arrested, and arrested for an omision in the indictment of averments essential to the conviction of the accused' and where the prosecuting officer has failed even to ask leave to amend though the necessity for such amendment was. disclosed to him during the trial, there is no authority for remanding the case that these omissions might be supplied and the party again tried under an indictment thus perfected, for the omission of which, in essential particulars, the judgment had been arrested and the conviction quashed.

Such a proceeding or disposition of the case would contravene the fundamental principals of the criminal law.

Judgment affirmed.


author: Fenner, J.

text:
    No. 10,016.
    The State of Louisiana vs. The American Cotton Oil Trust, et al.
    The only question on this appeal is as to whether a cause of action is set forth against G-lenny & Yiolett.
    . Considering the allegation of the petition that the principal defendant has sold or exchanged $34,000,000 of stock certificates for $10,000,000 or less of property; and considering that the sole allegation connecting Gr. & Y. with the matter is the simple one that they are engaged in selling and dealing in these certificates, without any suggestion that they act as agents of the Trust, or enjoy any exclusive privilege not open to every other person. Held: .First, that no reason is set forth for enjoining Gr. & Y. from selling, while leaving the rest of the world at liberty to do so; second, that whatever be the validity of the certificates as shares of stock, and whether or not they confer on the holders the privileges of corporate shareholders, they certainly represent an interest in the property for which they were taken, and have a value, and cannot be placed hors do tommorce by an injunction.

      PPEAL from the Civil District Court for the Parish of Orleans: Houston, J.

      M. J. Cunningham, Attorney General, and E. Howard McCaleh, for the State, Appellant.

      Bcuyne, Denegre <& Bayne and Bemmes <& Legendre for Defendant and Appellee.

      J. O. Nixon, Jr., for Glenny & Violett, Defendants and Appellees.
   The opinion of the Court was delivered by

Fenner, J.

The State is appellant from two judgments, with which the main defendant in the case has no concern, and which are exclusively in favor of a subordinate defendant, the firm of Glenny & Violett. The first judgment is one dissolving the preliminary injunction, in so far as it concerned Glenny & Violett, and the second is one maintaining their exception of no cause of action and dismissing the suit as to them. A similar exception interposed by the American Cotton Oil Trust was overruled and the case, as to it, must pass to • trial on the merits in the court below. The Oil Trust is not a party to this appeal and it is important that we should not trench upon the merits of its important controversy with the State further than the necessities of the case before us absolutely require.

The suit, as against the Oil Trust, has a two-fold object; first to restrain it from carrying on business, violating as is alleged, the Constitution of the State; secondly, to have it adjudged guilty of unlawfully usurping the franchises and privileges of a corporation without being duly incorporated.

Amongst other things, the petition alleges that the Oil Trust “has issued some $34,000,000 of stock certificates and has sold or exchanged the same for property less than $10,000,000 in. value.”

The solitary allegation connecting Glenny & Violett with the matter is the following: “That Glenny & Violett, a commercial firm domiciled and doing business in the city of blew Orleans, are engaged in selling and dealing in so-called shares of stock issued by the said American Cotton Oil Trust.”

This allegation does not import that, in their dealing, Glenny & Violett act, in any manner, as the agents of the Oil Trust, or that they enjoy any exclusive privilege of selling and dealing in these certificates, or that they are doing anything which any number of other persons may not also be engaged in doing.

We are at once confronted with the inquiry as to how the purposes of the State in this suit are to be advanced by enjoining G-lenny & Violett from dealing in these certificates, while leaving all the rest of the world at liberty to do so.

But a still more pertinent suggestion presents itself, which is this : If, as alleged, these certificates have been taken as the price or in exchange for $10,000,000 of property transferred to the Trust, then, whatever be tlieir validity and effect as shares of stock, whether or not they confer on the holders the privileges of corporate stockholdets, and whether or not they confer any right to participate in the carrying on of any illegal business — yet, they undoubtedly do represent an interest in tbe property referred to and, as such, have a legal and real value, and we cannot understand bow such property rights can be placed hors de commerce by an inj unction.

Judgment affirmed.


text:
    No. 9961.
    Kate McCaffrey vs. John H. Benson.
    A married woman, whose hasbaud has left her, and has disappeared, and after several years is reported dead, and who believes that her said husband is dead, will beheld to have been in good faith, in contracting a second marriage, although such marriage was subsequently declared judicially to have been null, ror reason of her want of legal capacity to contract matrimony.
    When both parties to a marriage declared null are shown to have been in good faith, such marriage will have its civil effects as relates to the parties, and among such effects will he included the legal community partnership of acquests and gains which results according to law from a legal marriage.
    The community will be dissolved by the judgment which declares the nulity of the marriage ; and its liquidation must be effected as would be tbe case with a community dissolved by the death of one of the spouses.
    In such a case the property purchased by the husband from tbe time of the putative marriage, and remaining in his ownership at the date of the declared nullity of the marriage will be treated as belonging to the community.
    But being tbe head and master of the community, the husband owes no account of the proceeds of any community property which he may have sold or otherwise disposed of, or for rents'and revenues realized by him from property belonging to the community, during the existence thereof.
    An action by a woman for her share in a community alleged to result from a lawful marriage will not sustain the plea of res adjudicata, to an action by the same person against the same defendant, for the settlement of a community alleged to have resulted from a marriage declared null, between the parties. The cause of action is not the same in the two suits.

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

      J. O. Nixon, Jr,, for Plaintiff and'Appelle*-.

      Louis JF. Bouchereau and J. Luvigneaud for Defendant and Appellant :
    1. The exception that the petition disclosed no right of action, because plaintiff was guilty of bigamy, and the judgment maintaining such exception and dismissing plaintiff’s suit, is res adjudicata between the paitiesasto all matters contained in the petition. C. C. 2*286, 2287, 1 Ann. 47; 19 La. 328; 3 Ann. 446; 12Aun.l97; 23 Ann. 619; 14 La. 59.
    2. It matters not under what form, whether by petition, exception, rule or intervention, the question be presented, whenever the same question recurs between the same parties, even under a different form of procedure, the exception of res adjudicata estops. 35 Ann. 553; 17La.92; 4Ann. 231; 36 Aim. 398; Poth oblig.p. 518 §899.
    3. The silence of the judgment on any demand which was an issue iu the case undes the pleadings must be considered as an absolute rejection of the demand. 3M. 142; 7L\ S: 437; 32 Ann. 581 and 36 Ann. 398.
    4. After issue joined, amendments which, alter the substance of the demand by making it different from the one originally brought will not be permitted.
    5. One will not be permitted to prove that which he has not alleged. 22 Ann. 479.
    6. Where marriage is null and void no community can over exist between the parties to it. 15 Ann. 519.
    7. Judgment for a debt on account of theft will, between the parties, be evidence to prove not only rem ipsam but the theft. 4 La. 58. So also, judgment on an exception of no right of action on account of bigamy, opposed to a demand for a separation from bed and board and liquidation and settlement of the community, will be evidence to prove, between the parties, not only rem ipsam but the bigamy.
    8. Plaintiff must make her case legally certain; to make it probable is not enough. 15 Ann. 268; 18 Ann. 29,116; 19 Ann. 121 and 22 Ann. 378.
    9. The court being in possession of all the facts and testimony necessary to enable it to pronounce definitively upon all the issues raised by the pleadings, can render such a judgmentas should have been rendered by the district court. G. P. 905.
   The opinion of the Court was delivered by

Poché, J.

By the judgment of this court, in the case entitled McCaffrey vs. Benson, reported in the 38th Ann. p. 198, a marriage previously contracted between the parties to this litigation, was declared a nullity on the ground that plaintiff was incapacitated from contracting a lawful marriage at the time that she attempted to marry the defendant Benson.

Her object in the present suit is to judicially enforce the civil effects alleged to have resulted from said marriage, under the provisions of Articles 117 and 118 of the Civil Code, which are in the following words:

117. “The marriage, which lias been declared null, produces never theless its civil effects as it relates to the parties and their children, if it has been contracted in good faith.”

118. “If only one of the parties acted in good faith, the marriage produces its civil effects only in his or her favor, and in favor of the. children born of the marriage.”

Plaintiff alleges that the marriage between the defendant and herself was contracted in good faith by both parties, and that one of the civii effects which it produced was a community of aquets and gains, in legal consequence of which she is joint owner with the defendant, in equal portions, of all the property acquired by him during the term of their cohabitation together; which extended from the year 1859, to the month of March, 1886, at which time their said marriage was declared null by the judgment of this court.

She therefore prayed to be recognized as the owner of one half of three pieces of immovable property and of some movable property, such as furniture, and forty shares of insurance stock; she also prayed for a moneyed judgment for her share of the rents and revenues of the immovable property from the year 1884, when she was cast out by the defendant, until she acquires possession of her share of said immovable property, and for one-half of the contents of a grocery store which the defendaut sold out in 1884, and “for whatever sum may be found to be due upon the final liquidation of the said community or partnership.”

Defendant appeals from a judgment in favor of plaintiff, recognizing her as owner of one-half of the immovable property described in her petition and of the forty shares of insurance stock, condemning defendant in a moneyed judgment, for one-half of the rents of the grocery store and of the furniture, in the sum of $1289, and condemning him further to pay to plaintiff $36 per month from December 31, 1886, as long as he remains in possession of her share of the immovable property.

The first contention urged by defendant was the plea of res judicata, predicated on the judgment of this court in the case of the 38th Annual herein above referred to.

As in that case plaintiff’s demand was for separation from bed and board, and for one-half of the property belonging to the community existing between her alleged husband and herself; and as her entire demand was rejected by our judgment, defendaut argues that said judgment is a complete bar to plaintiff’s present action which sets up the same demand, for the same cause of action, between the same parties in the same capacity. Two of the essential requisits to the .plea are to be fouud in the case; but the third is wanting, hence the exception is not good.

In the previous suit the claim for the community was grounded on an alleged lawful marriage, and in the present action the community rights sought to be enforced spring, as alleged civil effects, from a marriage which has been declared null, but which had been contracted in good faith. It is therefore clear that the cause of action is not identical in the two suits; and that the district judge did not err in overruling the plea.

In the case of Cochran vs. Violet, 38 Ann. 525, this court held that: “A final judgmént rejecting, on the ground of prescription of four years, an action by a minor against his tutor for acts of the tutorship, cannot sustain the plea of res judicata to a subsequent action between the same parties for an account of the usufruct by the surviving parent of the property of his child, after the termination of the usufruct.”

As here, the actions there, were between the same parties, for the same funds or amounts of money, but the causes of action are not the same.

Defendant’s counsel next call our attention to an alleged erroneous ruling of the district judge, in allowing a supplemental petition, which they contend, altered the nature of the original demand. In her original petition, plaintiff, in enumerating the immovable property which belonged to the community, described a certain house and lot, which, she subsequently discovered, did not stand in the name of the defendant Benson, but in the name of “John H. Pierson.”

The object of the supplemental petition was to allege that the placing of that piece of property in the name of “John H. Pierson” was a simulation, the property was truly and really owned by the defendant Benson. Such an allegation did not change the issue as originally tendered in her first petition ; the gist of which was that the property formed part of the alleged community heretofore existing between the parties. The supplemental petition merely contained allegations which amplified the tendered issue, which could be covered by the one and the same judgment, as it was actually done in the judgment now on appeal. A simulation has no material existence, and need not be formally or judicially declared.

An adjudication, holding the reverse of a simulated appearance, disposes of the simulation, without any reference thereto in terms. We find no error in the judge’s ruling.

The pivotal point in the case, on the merits, is the alleged good faith with which the putative marriage between these parties was contracted. And in considering that issue, courts must be guided by the rule that good faith must be presumed, tliat the presumption yields only to positive proof of the contrary. Hence, in this case, the burden of evidence is on the defendant to rebut that presumption, in so far as plaintiff is concerned. Marcado, vol. 1, p. 524, § 695; succession of Taylor, 39 Ann. 823.

The record shows that plaintiff was legally married in 1848, to one Christopher Anthony, who left her in 1851, and who disappeared in 1856.

In 1859, plaintiff, having been informed and believing that Anthony was dead, contracted marriage with Benson, who did not then know of the conditions of the previous marriage.

In 1861, Anthont re-appeared in New Orleans, and was seen by plaintiff’s brother and by other persons ; but it is in proof that plaintiff was not informed of Anthony’s re-appearance, of which she remained in utter ignorance until the year 1865, at which time she heard it through the defendant Benson himself, who, at the same time, informed her that Anthony had since died. It then appears that the latter’s reappearance had caused serious doubts in the minds of the parties and of their friends .touching the legality of their marriage. Hence, on ecclesiastical advice, they went before a priest who administered the sacrament of matrimony to them some time in the year 1865..

It appears almost incredible that information of such importance, as the reappearance of the first husband, Anthony, could have been withheld from the most interested party, for such a length of time.

But the statement is made by plaintiff and by her brother in their testimony, and no attempt has been made to contradict them, not even by the testimony of the defendant Benson, who was present throughout the whole trial, and who was never put on the stand. His silence, under the circumstances, is strongly corroborative of that testimony, and warrants its acceptance as the truth. Such testimony had not as it could not have, been given on the first trial (38 Ann. 198), although, if similar proof had been then made, the conclusion of the court, as announced in that case, could not have been altered or modified in the least; because there, the issue was the validity of the marriage, and not the question of good faith of one, or both of the parties to a marriage since declared null.

But on the question of good faith, the present record is conclusive, and it leaves no doubt on our minds of the good faith of both parties on both of the occasions on which tin y went through a marriage ceremony.

Haying reached that conclusion, we must now determine whether the civil effects produced by that marriage, included or superinduced a partnership or community of acquets between the parties, as contemplated by the law-maker in Article 3399 of the Civil Code.

.Our reports are about barren of adjudications precisely in point, and the discussion must therefore be met as a comparatively new question in our jurisprudence.

But as Article 117 of our Code has been taken literally from Article 201 of the Code Napoleon, we have directed our investigation to the construction of the Article which has prevailed under that system.

Our researches have led us to the conclusion that, where both the parties to a marriage, subsequently declared null, were in good faith, one of the civil effects was the legal community or partnership of acquets and gains which results from a lawful marriage ; and that the relative rights of the parties must be tested under the same laws which govern the community rights inter sese of lawfully married spouses.

Toullier says: ‘‘Si les deux époux ét.aient obliges de se séparer de bonne foi, leurs droits seraient, a tous égards, les mémes que si le manage avait été légitime. Les droits de communauté s’exerceraient au moment de la separation.” Droit civil franqais; vol. 1, p. 378, § 661.

Treating of the same article, Demolombe wrote as follows: “Lorsque les deux époux sont tous deux de bonne foi, le manage produit également, en ce qui les concerne, tous les effets civils, soit dans leurs rapports avec leurs enfants ,soit dans leurs rapports reciproques. * * * La commumauté, par exemple, se liquide et se partage comme si le jugement, au lieu d’annuler le manage, l’avait seulement dissout, et tous les droits. respectifs des partís doivent étre determines comme si, en effet, la communauté elle-méme s’était dissoute á partir de ce jugement.” Cours du Code Napoléon ; 3, vol. 1, p. 555, § 367.

Mareadé, in his commentaries on the same article, in which he notes the views of previous standard authors, uses the fallowing clear, instructive and conclusive language:

“Quand il y a bonne foi de part et d’autre, le mariage produisant alors les effets légaux pour les deux époux, le partage de la communauté se fera comme il se serait fait entre les deux époux divorces, ou comme il serait fait entre un époux et les héritiers de l’autre, lors de la mort de celui-ci; c’est-íi-dire que ce partage s’effectuera d’aprés les regles du code, s’il y a communauté légale, et conformément aux clauses du eoutrat, s’il y a communauté conventionnelle.” Explication du Code Napoléou ; vol 1, p. 527, §699; p. 531, §703 ; No. s.

The same views are expressed by Duran ton (Droit Francais, Vol. 2, p. 344, §368) and by Laurent (Doit. Civil, vol. 2, p. 646, §510.) In keeping with these views, which commend themselves by their clear logic and humane justice, and which we adopt as part of our jurisprudence on this question, we hold, in this case, that there was a community of acquets and gains between plaintiff and defendant, audthat the said community was dissolved by the. judgment of this court and in the case reported in the 38th of Annuals, p. 198.

Hence it follows that plaintiff must be recognized as the owner of one-half of all the property owned by, and standing in the name of the defendant Benson in the month of March, 1886, and which had been acquired by him between that date and the year 1859, when he contracted marriage with Plaintiff Kate McCaffrey.

The record shows to our satisfaction that the lot and improvements thereon, situated at the corner of Cutomhouse and Derbigny streets, the titles to which are inscribed in the name of “John H. Pierson,” was in truth and in fact acquired by purchase by John H. Benson, defendant herein, and was his lawful property at the date of the dissolution of the community; hence we hold that it forms part of said community. We agree with the district judge in treating the two other pieces of immovable property as likewise belonging to said community or partnership.

But as the community which we have found to exist between these parties, must in all respects, be assimilated to the legal conjugal community of our Code, and subjected to all its rules, it follows that while said community lasted, Benson, as the head and master of it, had the legal right to administer its property as his own, including the power to sell or otherwise dispose of any and all of its property, without the obligation of accounting for the proceeds of sales or for the rents and revenues of the same during his said administration or before the dissolution of the said community. *

Hence it follows that the community rights of plaintiff must be determined by the condition of affairs as they stood at the date of the dissolution of .the community, in the month of March, 1886.

There is, therefore, error in the judgment which condemns Benson to account for the rents and revenues of the community property, realized by him previous to the dissolution of the partnership; for the proceeds of the grocery store, and for a stated amount of monthly rents, until plaintiff acquires possession of her share of the immovables. The j udgmenfc is also erroneous in charging him with the estimated value of one-half of the furniture; there is no proof that any such furniture was owned by him or in his possession at the date of the dissolution of the community. Defendant is accountable for rents and revenues of the community property, only from the date of dissolution thereof, subject to credits in his favor for taxes, insurance, repairs and other reasonable expenses incurred by him in the preservation of said property.

But the record is not in a condition to justify an attempt on our part to liquidate the community in the judgment which naturally flows from the principles which are announced in this opinion, and the cause must be remanded for that purpose.

In order to better condense our decree we shall recast the judgment appealed from in full, including that portion of which we affirm, as above indicated.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided aud reversed, except in so far as it recognizes a community or partnership between the parties herein, as a result of the putative marriage which they had contracted in good faith ; and proceeding to reifder such a. judgment as should have been rendered below, it is now ordered, adjudged and decreed that a community of acquets be recognized to have existed between Kate McCaffrey and John H. Benson, and that said community consisted of all the property moveable and immovable, acquired by said Benson from and after the year 1859, and owned and held by him, at the date of the dissolution of said community by the judgment of this Court in March,. 1886, including the three pieces of immovable property described in plaintiff’s petition in this ease; and, it is further ordered that this cause be remanded to the lower court for the purpose of settling and liquidating said community according to law and according to the views herein expressed ; the costs of this appeal to he taxed to plaintiff and appellee, the costs of the liquidation herein ordqred to abide the final determination of the case.


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    No. 9963.
    Mutual National Bank of New Orleans vs. James Regan, et al.
    It appearing that defendant is the owner of the mortgage notes herein concerned and that he has actually paid the maker the face value thereof less a discount of nine per cent, he is entitled to recover the whole amount thereof, notwithstanding the inclusion of such usurious interest therein, under Art, 2924 Bev. C. C,

      In an action to cancel and annul a mortgage on allegations of fraudulent simulation, where the holder of the mortgage notes has actually reduced them by indorsement thereon, before suit to the amount actually due and correctly admits such reduction in his answer to the suit, and where the reality and good faith of his mortgage to the full extent claimed by him are clearly established, the mere failure to have erased the record in the mortgage office to thw extent of the reduction, caunot support a judgment against him throwing on him the costs of a suit, every issue in which has been decided in his favor. The proceeding was not one to erase or reduce an inscription, but to declare the simulation and nullity of the mortgage itself.
    APPEAL from the Civil District Court, for the Parish Orleans. Houston, J.

      8in<jleton, Browne <& Ohoate for Plaintiff and Appellant.

      W. 8. Benedict and Harry H. Hall for Defendants and Appellees.
   The opinion of the Court was delivered by

Fenner, J.

On the 16th of July, 1884, James Regan executed a mortgage on immovable property in this city in favor of Charles P. McCan, for $86,000, represented by two series of notes drawn by Regan to his own order and by him endorsed, viz: 1st. Three notes for $5500 each, payable one year after date*. 2d. Three other notes for $6500 each, payable two years after date, all bearing interest only after maturity. The act contained a stipulation giving a preference and priority of mortgage in favor of the first over the second series of notes.

McCan became the owner of the first series of notes by paying to Regan the face value thereof less a discount of nine per cent. The other series of notes, though left in the hands of McCan, were held by him subject to the order of Regan and were designed to be negotiated by the latter to raise further means for use in his business. Regan, having failed to effect this negotiation, subsequently applied to McCan for a further loan on the second series of notes, and McCau agreed to take them to the extent of eight thousand dollars, provided that the notes should be reduced to that amount and cancelled as to the excess. Accordingly, he paid to Regan $8000 less a discount of nineper cent, took one of the notes for $6500 and another reduced to $1500, which reduction was duly endorsed on the note itself, and the third note was cancelled. The cancelled note was exhibited at the mortgage office, and record was made of the redaction of the mortgage by its amount; and though no similar exhibit or record was made as to the second note, yet the reduction inscribed on the note itself absolutely confined McCan’s claim under the mortgage to the reduced amount and made it impossible for him to claim more,

The plaintiff bank, which, as the record indicates, only became a creditor of Regan after the date of all of the above transactions, having obtained a judgment against him and having seized the mortgaged property, filed a petition in said case against both Regan and McCan, charging that McCan’s mortgage was a fraudulent simulation without any consideration or debt to support it, entered into for the purpose of covering up Regan’s property and screening it from his creditors, and praying that said pretended mortgage be cancelled and annulled, and that petitioner be paid by preference out of the proceeds arising from the sale of the property.

To this petition McCan answered, setting forth the reality of his mortgage, but admitting that it had been reduced to the amount of $24,500.

Judgment was rendered in favor of plaintiff and against McCan, reducing his mortgage to $24,500 and otherwise maintaining it.

Plaintiff appeals and complains in Court that McCan’s mortgage, should be further reduced by the amount of the usurious interest charged by McCan in the transaction.

We do not see how this relief could be granted unless we should strike out Article 2924 of the Civil Code, which is in the following terms:

“ The owner of any promissory note — to order or bearer — shall have the right to collect the whole amount of such promissory note — notwithstanding such promissory note may include a greater rate of interest or discount than eight per cent, per annum; provided, such obligation shall not bear more than eight per cent, per annum after maturity until paid.”

McCan is undoubtedly the owner of these mortgage notes for $24,500, which bear no more than eight per cent, interest after maturity, and whatever rate of interest or discount was included in the consideration paid for them, he is nevertheless, under the mandate of the law, entitled to recover' the whole amount of the notes.

McCan’s representative has filed an answer to the appeal, in which he prays for an amendment of the judgment so as to cast the costs in the lower court upon plaintiff.

We think he is justly entitled to this relief. The judgment is not responsive to the pleadings nor to any issue involved in the case. This was not a proceeding to erase the inscription of an extinguished mortgage. It is an action to cancel and annul the mortgage itself as a fraudulent simulation. McCann has not claimed a mortgage beyond $24,500; on the contrary, in his answer to the petition, he distinctly limits his claim to that amount. There was no issue between plaintiff and McCan as to any right of mortgage in excess of $24,500. The sole issue tendered and tried was as to whether McCann had any mortgage at'all, or, if any, whether it was for as large an amount as the $24,500 claimed by him. The judgment decided and rightly decided that McCan was entitled to all that he claimed and plaintiff’s assault upon the reality aud bona fules of his mortgage was utterly unfounded. The judgment should have been one in favor of the defendant and rejecting plaintiff’s demand. The mortgage had been actually reduced to $24,-500 before the suit was brought and this reduction was admitted in the answer. Therefore, the judgment in favor of plaintiff, reducing the amount of the mortgage to $24,500 was dehors the issue and only served to mulct the defendant in the costs of a suit, every issue in which was decided in his favor. • There was no controversy about the erasure of the excessive inscription; no judgment was asked to that effect, and no such relief is even awarded by the judgment which only decrees the reduction of a mortgage which had already been effectually reduced before suit.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that there be judgment in favor of defendent, Mrs. C. P. McCan, tutrix, and rejecting the demand of plaintiff at plaintiff’s cost in both courts.


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    No. 10091.
    The State ex rel. Thomas Henderson vs. John McCrea, Justice of the Peace for the Seventh Ward, Parish of St. Bernard.
    The objection that the supervisory powers of this Court cannot be exercised in appealable oases, is obsolete and has become a legal nuisance.
    It is only where a judgment has been rendered by a justice of the peace in the presence of the parties that notification of it can he dispensed with.
    It is only when thus rendered, or after notice thereof has been given, that the delay to make* the judgment final begins to run.
    Act 24 of 1876, which amends article C. I1. 575 so as to dispense with notice of judgment, where answer was filed or citation was served personally, applies to district courts and not to justices.
    A defendant is always in time to apply for anew trial where the judgment was not rendered in his presence and where he was not notified of its rendition.
    A justice of the peace, like all other magistrates,'has the right to grant a new trial, either on motion of the aggreived party, orproprio moiu, where he considers his previous finding erroneous.
    A justice of the peace has the right to assign a case for trial on giving the parties notice and sufficient timo to summon their witnesses,

      A justice of the peace has no authority, where the plaintiff does not appear on the day of trial, to hear evidence hy the defendant, in the absence of a reconventional demand, or the like, to pass upon the merits of the cause and render a judgment for the defendant and a gainst the plaintiff, condemning the latter to pay a specified amount as costs.
    The only judgment which he could have rendered was one of non suit. In acting otherwise he has exceeded the bounds of his jurisdiction.
    Under the showing, the judgment rendered and complained of is irregular and the execution issued under it, is unwarranted.
    Relator is entitled to relief.
    PPLICATION for Certiorari ancl Prohibition.

      Sami. Henderson, Jr., for the Relator.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a certiorari and for a prohibition.

The complaint is that the justice of the peace has illegally set aside two final judgments in favor of the relator, on which executions had issued and seizure effected; that, in the absence of the plaintiff, he has, on a new trial granted, rendered a judgment on evidence heard in favor of defendant and by default against plaintiff, for the costs, liquidated at $20 thereby, and that on this last j udgment execution has issued; under which, property of plaintiff has been levied upon and advertised for sale.

The charge is, therefore, that the proceedings are irregular and that the justice has exceeded the bounds of his jurisdiction.

Tn the return, it is urged, that the remedy sought cannot be allowed in an appealable case and that the justice had a right to grant a new trial, which was asked seasonably.

The first objection is obsolete and utterly groundless. Under Article 90 of the Constitution, this Court can exercise its supervisory powers over all inferior courts, in all cases, whether appealable or not.

This has been so frequently decided, that pleas of that character have become legal nuisances.

The transcript of the proceedings before the justice of the peace show that the judgments, to which the relator refers, were «oí rendered in the presence of the parties and were not notified to the defendant, as is required by article C. P. 1139 on the subject of justices of the peace.

It is only where the judgment is rendered in the presence of the parties, that notification may be dispensed with -, and it is only where the judgment is thus rendered, or notified, that the delay to make it final begins to run.

Reliance on Act No. 24 of 1876, amending article 575 C. P. and dispensing with notice where answer has been filed and citation personally served, can afford relator no relief, as it relates to district courts and not to justices of the peace. State ex rel. R. R. Co. vs. Hufft, 39 Ann. p.

Hence it follows that the executions issued prematurely and that the defendant, being in time, could apply for a new trial.

Independently of any prayer for such relief it was discretionary with the justice, as it is with all judges, to have set aside his previous findings if he thought them erroneous and to have reheard the cases.

The transcript does not show at whose instance the cases were re-fixed for trial; but this is immaterial, as the Code, Art. 1084, provides that a justice may fix such a day and hour as he thinks proper, allowing sufficient time to the parties to summon their witnesses, if it be necessary.

It does not appear that the plaintiff was present at the second trial and offered any evidence, while it is shown that defendant was in attendance and tendered proof which the justice considered.

In the absence of the plaintiff and of any evidence in his behalf and of any demand in reconvention, or such like, from defendant, the justice was without authority to pass upon the merits of the cases, to render judgment for defendant, thus exonerating him from liability to plaintiff and against plaintiff, condemning him explicitly to pay $20 costs.

All the justice could have done legally was to have non suited the plaintiff, C. P., 536, but without specifying any amount. 3 Ann. 660; 4 Ann. 176; 15 Ann. 299.

The judgment complained of and the proceedings conducive thereto are on the face of the papers absolutely irregular and must be annulled. Being such, the execution issued against the plaintiff is unwarranted and the seizure of his property illegal. In acting as he has done, the justice has exceeded the bounds of his jurisdiction.

The relator is entitled to relief. C. P. 845.

It is therefore ordered and decreed that the judgment rendered on the 16th of December, 1887, and the execution issued thereunder be avoided and annulled and that the justice of the peace, respondent herein, be directed to try the cause anew in conformity with the provisions of the law. C. P. 864. And, it is further ordered that the restraining order herein issued be made peremptory and that relator recover his costs. C. P. 866.


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    No. 10,001.
    Catharine M. Aiken et al. vs. Thomas P. Leathers et al.
    In an action in a court of Louisiana, on a bond of injunction or for a restraining order, issued in and by the order of a Federal Court in a chancery suit, conditioned to secure the defendant in such a suit against all damages which he may suffer from the injunction or restraining order in case the same may be decided to have wrongfully issued, counsel fees incurred for the dissolution of such an injunction, may be claimed and recovered as an element of the damages contemplated by the parties to the bond.
    But the allowance'cannot include the entire amount of fees paid by the obligee to his attorneys in the entire litigation, including the issue on the merits of the cause.
    APPEAL from the Civil District Court, for the Parish of Orleans. Houston, J.

      Thomas L. Bayne for Plaintiffs and Appellants :
    A bond given for an injunction is a contract upon which plaintiifs obtain on the writ-, and using it become responsible for the damages which its use occasions. 13 Ann. Hep. 21. This is true whether the bond was given in the Federal Court or State Court, 120 V. S. 206; 35 Ann. 22O-U90; 37 Ann. 482; 105 TJ, S., 446.
    The dissolution of the injunction establishes prima facie that the writ was wrongfully obJ tained, and subjects the plaintiff in injunction to the payment of damages caused by the use of the writ. 32 Ann. 1181; 33 Ann. 9; 35 Ann. 220-360-1199; 12 Ann. 181; 2 Ann. 873; 101 "U. S. 301.
    And as part of these damages, defendants in injunction are entitled to recover attorney's fees paid by them for sotting aside the injunction. 37 Ann. 482; 12017. S. 206: 105 TT. S. 446 ; High on Injunction, Sec. 1685-1686, 35 Ann. 220-360, and cases above cited. Drake on attachments 5th ed., §175,13 Ann. 214-440 ; 20 Ann. 66 ; 27 Ann. 192.
    In Flietas vs. Halsey, Opinion Book 56, p, 1210, counsel fees expressly allowed, and on rehearing, Opinion Book 57, p. 600, adhered to and damages increased.
    This was on bond for attachment.

      Ohas. 8. Hice and Howe & Brentiss for Defendants and Appellants.
   The opinion of the Court was delivered by

Poché, J.

This is a suit for damages on a bond furnished by the defendants as the condition of a restraining order in a suit in chancery instituted by Thomas P. Leathers in the United States Circuit Court for the Eastern District of Louisiana, against Joseph A. Aiken.

The object of tbe suit was to have cancelled and annulled a wharf lease previously entered into between the city of New Orleans and Joseph A. Aiken. In addition to the principal demand, the complainant had prayed for an injunction pendente lite, and for a restraining order to prevent the wharf lessee from collecting dues from him, until the hearing of his prayer for injunction. The restraining order was issued on the 4th of August, and the rule for injunction pendente lite, was fixed for hearing on the 7th of November of the same year, 1881, and the amount of the bond for tbe restraining order was $5000,

On hearing, at the end of December following, the injunction prayed for was denied, and the restraining order was dissolved; the suit terminated shortly thereafter.

The claim in the pr’esent suit is for counsel fees in the sum of $5000 and for other costs alleged to be incidental to the proceedings for the dissolution of the restraining order, amounting to $410. The judgment of the district court allowed plaintiffs $500 for attorneys’ fees incurred by reason of the restricting order ; $168 as the cost of photographic views of the wharves and $46 40 for affidavits taken for use in connection with the restraining order, making a total of $714 40, and both parties have appealed.

The principal contention of the defendants is that no counsel fees can be recovered in an action on an injunction bond furnished under the order and jurisdiction of a Federal Court, in an equity proceeding. This point had been previously presented by way of a peremptory exception off no cause of action pleaded in limine in thiB case, and it was considered by this court in the opinion reported in the 37th Ann. p. 482.

In that opinion it was held in emphatic and unmistakable language that the exception was not good, and that the action for counsel fees could be maintained on the bond now in suit.

At the urgent instance of defendants’ able counsel we have carefully reviewed our previous opinion, and have gone over the whole ground of discussion submitted by counsel, including a serious consideration of the opinion of the Supreme Court of the United States in the case of Oelricks vs. Spain, 15 Wallace p. 211.

In that case it appears that the injunction was the primary, exclusive and ultimate object of the entire litigation Its object was to restrain the custodian or trustee of a large fund from paying over and distributing the same to the parties for whom he held the trust, and to enjoin the parties aforesaid “from asking for or receiving said fund.”

In keeping with the order of the court, the bond was conditioned that the plaintiff in injunction “shall prosecute the writ of injunction to effect and pay as well the costs, damages and charges that shall occur in said circuit court * . * * as all costs, damages and charges that shall be occasioned by said writ of injunction,” etc., etc.

After the dissolution of the injunction, a bill was brought in chancery by the obligees of the bond to recover damages in the shape of interests and counsel fees.

In disposing of the contention involving the allowance of counsel fees, the court, considering that the entire litigation consisted of the injunction, assimilated tlie demand to one made to recover counsel fees from the party cast in an ordinary action, and not on a bond.

The court said: “It is the settled rule that counsel fees cannot be included in the damages to be recovered from the infringement of a patent. They cannot be allowed to the gaining side in admiralty as incident to the judgment.beyond the costs and fees allowed by the statute.”

In concluding, the court added: “In debt, covenant and assumpsit damages are recovered, but counsel fees are never included. So in equity cases, where there is no injunction bond, only taxable costs are allowed to the complainants. The same rule is applied to the defendant, however unjust the litigation on the other side. * * * The parties in this respect are upon a footing of equality. There is no fixed standard by which the honorarium can be measured. Some counsel demand much more than others; some clients are willing to pay more than others; more counsel may be employed than are necessary. When both client and counsel know that the fees are to be paid by the other party there is danger of abuse. A reference to a master or an issue to a jury, might be necessary to ascertain the proper amount, and this grafted litigation might possibly be more animated and protracted thán in the original cause.”

As all the considerations which led that exalted tribunal to a denial of counsel fees as an element of damages, refer to a demand assimilated to a claim for damages in an injunction suit proper, and to such a demand in chancery, we feel justified to conclude that the court did not intend to exclude such a demand in a suit at law, much less in an action filed in one of our State courts, in which there is no chancery, as contradistinguished from, a jurisdiction of common law, or in a case in which a preliminary restraining order had been granted merely as ancillary to a principal demand for the cancellation of an important and valuable contract. These views are substantially confirmed by the reasoning used, and by the conclusions reached by the Supreme Court in the cases of Meyers vs. Block, Meyers vs. Levy, reported in 120 U. S. Rep. p. 206, which went up from this court on writs of error.

In the decision of those cases the Supreme Court established a clear distinction between the issues involved therein and the questions'presented in the case of Bein vs. Heath, 12 Howard 168. In view of the great reliance placed by defendants’ counsel herein, on the latter decision, as sustaining the same views alleged to have been announced in the case of Spain vs. Oelrichs, we attach great importance to the decision in the Block case.

In that case the obligors on the injunction bond, who were therein sued on the bond, had made the point which defendants substantially make here; that an action on a bond of injunction given in equity in and by order of a Federal Court, could not be entertained against the obligors on the bond in the court, and subjected to the law and jurisprudence of the State of Louisiana. And they had rested their argument on the authority of the case of Bein vs. Heath above referred to. After reviewing that case, and sustaining the views therein announced, the court proceeded to demonstrate the difference between it and the Block case, saying: “But, according to our view, the bond sued on in the cases before us do not demand any such construction. It is plain that they could not be intended as security for any debt or demcmid in litigation, (italics are ours) but as security only for the damages that might be sustained by the issuing of the injunctions. The condition is to pay “all such damages as he (Isaacs, in the one case, and Block in the other) may recover against us in case it should be decided that said writ of injunction was wrongfully issued.”

Recover how Í By the law of Louisiana, damages may be recovered for suing out an injunction without just cause, independently of a bond. 3 La. 291. But this cannot be done in the United States Courts. Without a bond, no damages can be recovered at all. Without a bond for the payment of damages or other obligation of like effect, a party against whom an injunction wrongfully issues can recover nothing but costs, unless he can make out a case of malicious prosecution. It is only by reason of the bond, and upon the bond, that he can recover anything. When, therefore, the condition of the bond in these cases declares that the obligors will pay such damages as the obligee may recover against them, it must mean that they will pay such damages as he may recover by asuit on the bond itself. Otherwise it is senseless and vain. Construed in this way, it is in strict conformity with the order which required it. It is in this way that the bonds in question were finally construed by the Supreme Court of Louisiana, and we think its construction was right. Block vs. Meyer, 35 Ann. 220.

The condition of the bond in suit in the instant case was that the obligors would “well and truly pay to Aiken all such damages as he may recover against us in case it should be decided that the injunction or restraining order was wrongfully obtained;” which is almost in terms precisely similar to the conditions in the bonds construed in the Block-Levi cases by the Supreme Court of the United States.

Now a reference to the records of those cases shows that counsel fees were an element of damages, in the demand as well as in the proof. Hence we feel authorized to conclude that the decisions which we have considered and consulted are not to be construed as excluding counsel fees as an element of damages in an action at law in a Federal Court, and a fortiori in a Louisiana court for the recovery of •damages on a bond of injunction given in and by the order of a Federal Court in an equity proceeding.

Hence we hold that defendants’ contention on that point is not supported by the authorities relied upon, and that it cannot be sanctioned in our jurisprudence. We feel relieved from judicial responsibility for any error of judgment which we may commit in reaching this conclusion, by the thought that it lies within the power of defendants to obtain a correction of such error at the hands of the exalted tribunal whose decision on the point would be our guide for the future. ■

With these views, we reach the discussion of the right of plaintiffs, under the evidence, to recover counsel fees as damages incurred as a result of the restraining order.

On that branch of the case defendants contend that plaintiffs are not entitled to recover damages for counsel fees, on the ground that the dissolution of the restraining order did not result from any proceedings or hearing instituted or had for such dissolution, but that it flowed from the hearing and the refusal of complainant’s application for an injunction pendente lite, to which were directed all the professional labors and services of counsel of the respondent in the equity proceedings.

To a great extent that contention is supported by the record, from which it appears that the fees paid to such counsel by the defendant embraced all the services rendered by counsel in the suit of Leathers vs. Aiken. The receipts given by the two law firms employed by him in the litigation, each for $2600, show further that the sums thus received were in full of all legal services to January 1st, 1882, including suit of Leathers vs. Aiken, U. S. Circuit Court.” Hence the inference is irresistible that the entire amount of fees thus settled for, could not have been understood by the parties themselves, attorneys and clients, as having been earned in proceedings which resulted in the dissolution of the restraining order alone, or even in the entire litigation.

It also appears from the record that as the judge was, during his summer vacations, absent from his circuit, and as counsel for complainant had declined to appear and argue a motion for dissolution of the restraining order, at any point or place outside of the circuit, there was no formal hearing of such a motion, before the hearing which took place in December following, on the question of complainant’s right to an injunction pendente lite.

But it is in proof that counsel for the defendant in the equity suit, did perform some special labors and render some professional services required and demanded exclusively by the necessities of the case for the dissolution of the restraining order. The district judge has estimated the value of such services at five hundred dollars, and we find no grounds to justify us in disturbing his conclusions on that point.

We therefore deny the increase asked for by plaintiffs. And, with the district judge, we find that defendants must likewise be held for the two additional amounts allowed by the judge a quo. Prom our reading of the record we are satisfied that the photographs taken of the wharves and the affidavits prepared and the aggregate cost of which make up the sum allowed, were necessitated by the effect of the restraining order.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed at the joint costs of plaintiff and defendants in equal proportions.


text:
    No. 9962.
    Mrs. C. E. Champon vs. C. E. Champon, Her Husband.
    Where a marriage is solemnized in France, and the husband subsequently abandons his wife and comes to Louisiana, lie cannot prosecute a suit against his abandoned wife for a divorce in a court in this State by causing a curator ad hoc to be appointed to represent her, through whom she is cited, and the wife is not notified of the proceedings and the ■judgment of divorce rendered in the suit will be regarded as rendered without citation and such judgment will be an absolute nullity.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Bayne, Denegre & Bayne for Plaintiff' and Appellee.

      Semmes & Legendre and li. T. Beauregard for Defendant and Appellant.
    ON EXCEPTIONS.
    1. Ho appeal can be taken after the expiration of a year from the rendition of the judgment, C. P. 593; (and two years when the defendantis absent from the State.) lb,

    2. An action ofnullity for vices of form should be brought within one year from the rendi. tion of the judgment, and can only he allowed in the cases enumerated in Art. 606. In case of charge of fraud or ill. practice the action should be brought within one year of the discovery of the fraud or ill-practice, and the plaintiff must show that he was guilty of no neglect or laches ; that he has been injured; and has not neglected his means of defence, 23 Ann. 146 and authorities there cited; C. P. 613 ; 18 Ann. 280,507; 3 Ann. 646 ; 6 Ann. 799; 29 Ann. 105; 31 Ann. 467; 32 Ann. 13. 409.
    3. Tices of form not mentioned in Art. 606 C. P.. and omissions of procedure, or insufficient evidence, can only be urged on appeal and not by action of nullity. 23 Ann. 147 and authorities there cited and those above.
    4. The admission of the wife's testimony (or husband’s) in a suit against the husband, without objection, is not an absolute nullity. If she be allowed to testify, her testimony should go to the jury (or to the judge). 28 Ann. 604, 605, State vs. Williams.
    5. A curator ad hoc can validly acknowledge in writing service of petition and citation addressed to him as such, and such acknowledgment brings the defendant into court, and interrupts prescription. 31 Ann. 540.
    6. The motion made by a judgment debtor to annul the judgment for want of jurisdiction because he resided in another parish, made actual citation unnecessary, and cured the defect if there had been no citation. 10 R. 140; 11 Ann.197; 31 Ann. 540.
    JURISDICTION.
    5. Act No. 76 of 1870, p. 108, and Act. 141, Rev. C. O. 1870, and sectiou J995 Revised Statutes of 1870, gave, by the former, as absolute causes of immediate divorce, the causes of separation in the former Code. The new Code authorizes the appointment of an attorney to represent either defendant when absent, contradictorily with whom the suit “ shall be prosecuted;” the word him in the article means her when the hnsbandis plain, tiff, (see C?C. 3556, par. 1); the R. S. clothed the Thir.d District Court of Orleans with jurisdiction in divorce cases.
    6. The conjugal domicile is that of the husband, C. C. 39, 120 : and a husband married in a foreign country can emigrate to this country, become a bona fide permanent citizen and resident of this State; in tbat case the conjugal domicile is legally transferred to the country and State of his adoption and allegiance, and the proper State Court vested with jurisdiction as to his status and suits for separaton or divorce in accordance with the laws of said adopted domicile. (See quotations in the brief from Bishop, Story, etc.)
    7. A fact testified to by competent witnesses will be accepted as proved if there is no evidence tending to impeach their credibility. 32 Ann. 251; 35 Ann. 1096.
    8. Qui tacet consentiré videtur, isa safe maxim of estoppel. Hennen N. D., verbo Evidence (f) par. 6, U, and actions and omimems ot‘ duty on the same principie speak louder than words.

   The opinion of the Court was delivered hy

Todd, J.

This is a suit to annul a judgment of divorce obtained by the present defendant against the plaintiff, his wife.

The judgment attacked was rendered by a district court of the parish of Orleans, in this State, on the 16th of March, 1874.

Among the grounds of nullity urged against the judgment assailed, is the want of citation, i. e. that the judgment in question was rendered without citation to the wife, the defendant therein.'

The facts are these: The parties were married in France in 1852. In 1855 Champon, the husband, abandoned bis wife and came to this country and joined his concubine here, who together subsequently came to New Orleans, where they continued to reside.

Some time prior to 1874 the deserted wife came to the United States aud lived in New York City, to the knowledge of her husband.

In February, 1874, Champon instituted a suit foi divorce against Ms wife, on the ground of excesses, ill-treatment and abandonment. In his petition he alleged that his wife was absent from the State and resided in some part of the United States unknown to Mm, and he prayed and obtained the appointment of a curator ad hoc to represent her.

This appointment was made on the 3d of March, 1874, and upon the same day citation was issued and served (quoting) “upon Mrs. E. Champon, wife of C. E. Champon, through A. Brieugne, Esq., appointed attorney ad. hoc.”

Upon the 5th of March the curator filed an answer, substantially a general denial.

The case was submitted on the 11th of March; on the 16th, same mouth, judgment granting the divorce was rendered, and was signed on the 20th.

There were no proceedings had in the case such as summonses and orders to return and notifications directed to the wife, to establish abandonment as prescribed by the Code. In point of fact, she was entirely ignorant of the proceedings and remained in ignorance of them until a copy of the judgment was forwarded to her in New York.

We have no hesitation in concluding, under this state of facts, that the judgment was an absolute nullity.

The only provision in our law for the appointment of a curator ad hoc to defend an absentee is in Arts. 56 of the C. C. and 116 C. P. and R. S. 1198.

These articles were for a long time the subject of conflicting decisions, but finally it was settled that the articles in question presuppose something upon which the jurisdiction of the court can properly rest. Such, for instance, as the party sued having property in the State, or being a necessary party to some judicial proceeding, or contract, or convention sought to be annulled. 2 Ann. 562; 3 Ann. 101.

Marriage under our law is a civil contract. A decree of divorce, dissolving the marriage rests on the same principle on which all contracts may be dissolved, i. e. by reason of an active or passive violation of the obligation of the contract by either party thereto. But with regard to the contract of marriage particular rules are prescribed and mode of proceeding established, by or through which the parties to such contracts aggrieved may enforce their rights, either by a separation from bed and b oard or an absolute divorce.

These rules are defined in the articles of the Code on the subject of divorce and separation from bed and board.

it was held in the case of Prindle vs. Williams, 9 Ann. 34, that there were only two cases in which a curator could be appointed to absent wives in suits instituted by their husbands for divorce or separation from bed and board; one where the defendant is charged with the commission of an infamous crime and being a fugitive from justice, or a separation is claimed on the ground of abandonment. Muller vs. Helton, 13 Ann. 1.

This divorce proceeding that we are reviewing does not fall within • either of the conditions named where such an appointment could be made.

It is true that among the charges enumerated in the petition for divorce, is that of abandonment; but it is manifest from an examination of the record in that case that the judgment was in no way founded on that cause,-or that abandonment formed any factor whatever in the entire proceeding. Abandonment in the first place is no legal cause or ground of divorce. In the next place, to make it effective, even as a cause of separation from bed and board, it must be established by the mode prescribed by the Code ; that is, by the summonses and interlocutory orders directed by the Code; Art. 1451; Perkins vs. Potts, 8 Ann. 14; Bienvenu vs. Buisson, 14 Ann. 387; Merrill vs. Flint, 28 Ann. 195.

In the entire proceedings in this case we find nothing of the kind, so that the divorce was undoubtedly granted on account of the cruelty and excesses charged.

Besides, the pretense of abandonment by the wife was predicated upon a dictum of the law that had not the slightest bearing on the facts of the case. That dictum is that the domicile of the husband is or becomes the domicile of the wife. The only matrimonial domicile the parties ever had was in France, where they lived together for a time after their marriage. This domicile the husband abandoned, and is next found in this country dwelling with his concubine, and hiding from his lawful spouse, who is in utter ignorance of his whereabouts.

It would do violence to the plainest principle of common sense and common justice to call this residence of the guilty husband, where the wife is forbidden to come, or- of which she knows nothing, the domicile of the wife. ■ •

The true meaning of.-this aphorism, touching the domicile of the wife being that of her husband, is that the domicile of the wife is the domicile that the husband has at his marriage, or provides after marriage for himself and his wife, and which, though he may change at pleasure, it must be one to which the wife is taken or invited, or at least of which she knows, and to which she may go and stay at her will.

The divorce suit in question was in fact a fraud on the very law invoked to justify its institution and to support the judgment which follows it.

Concluding, therefore, that the wife was never cited and that the judgment was, in law, rendered without citation, of course, it was an absolute nullity and the marriage with legal effects remained intact, unimpaired and unaffected by the vain proceeding directed against it. The judgment dissolving it being thus void on the very face of the proceeding, could not, of course, be protected by prescription, which is pleaded against the action to annul it.

Judgment affirmed.

Poché, J., concurs in the decree.