source: Caselaw Access Project

author: Breaux, J".

license: Public Domain

text:
    No. 13,484.
    Albert Delisle vs. Widow Henry P. Bourriague.
    Syllabus.
    1. An amendment of pleadings is more readily allowéd than refused. There is no substitution of a new plaintiff when the original plaintiff amends his petition in order to make it clearly appear that his children, in whose name he sued, were the parties actually in interest. The supplement and amendment were duly served.
    2. Minors have a cause of action for the personal injury which resulted in the death of their mother. The right of action of the.mother is made to survive in the name of her children.
    3. Weight is given to the findings of facts by the district judge, affirmed by the Court of Appeal. Except in case of manifest error, they will be treated and considered as true.
    Defendant’s dogs were large and had the appearance of being vicious, and It 4. is inferred that defendant was placed on her guard as to their propensity to do harm.
    5. Although an owner is not responsible when the damage is caused by an unforeseen accident or an accident he could not guard against, as when it arises from a vis major, he is responsible when he is chargeable with the least fault.
    6. The defendant requested the deceased to come into her yard, and, after she (deceased) had complied with the request, defendant did not protect her from the attack of her savage dogs; she is, therefore, responsible for the injury which the dogs inflicted.
    IN RE Widow Henry P. Bourriague, applying for Gertiorari, or Writ of Review, to the Court of Appeal, Parish of Orleans, State of Louisiana.

      Sambola & Ducros, Albert Voorhies and Joseph B. Derbes for Applicant.

      Dinhelspiel & Hart, Percy 8. Benedict and E. A. O’Sullivan for Plaintiff, Respondent.
   The opinion of the court was delivered by

Breaux, J".

Defendant asks for a review of the judgment and for its reversal.

The suit was brought by the plaintiff in the district court in his own name and on behalf of his minor children for damages arising from the death of his wife and the mother of his children, who died from the effects of injury inflicted by defendant’s dogs. Plaintiff averred in his petition in the district court that his wife was requested by the defendant, who was their next-door, neighbor, to come into her back yard and cut some wood; that the petitioner’s wife being indebted to defendant and wishing to be obliging, after receiving defendant’s assurance that she would be protected against the dogs, entered the yard and while chopping defendant’s wood in the presence of defendant she was attacked by her dogs, was maimed and torn almost to pieces, causing wounds of which she died a short time after the attack.

- Defendant filed an exception setting forth that plaintiff’s petition disclosed no right or cause of action; that the children of plaintiff are not named therein; and that it contains no prayer for relief in so far as the minors are concerned.

This exception was heard in the district court and maintained, but the court reserved to plaintiff the right to amend his petition. Some time afterward, plaintiff filed a supplement and amendment in the district court, in accordance with the right reserved to him when defendant’s exception was sustained. To the supplement and amendment plaintiff filed another exception reiterating that plaintiff had no right or cause of action and that thereby plaintiff was substituting another plaintiff entirely, and raising issues not raised in the original petition and which were not consistent with the first demand. This exception was referred to the merits and just prior to deciding on the merits it was overruled. The defendant filed the plea of general denial in answer to plaintiff’s demand.

The judge of the district court pronounced judgment for plaintiff in 'the sum of two thousand dollars. On appeal before the Court of Appeal, the judgment of the district court was affirmed. Here the defendant reiterates that the plaintiff has no right or cause of action and sets up that the original petition filed was the individual petition of Albert Helisle, stating that the death of his wife, the result of the bite of dogs, was caused by the defendant’s fault; that he lost the companionship and assistance of his wife; that he has to pay large medical bills and funeral expenses, and that he has lost considerable time m attending to his injured wife’s wounds prior to her death. In our view, plaintiff did not, by the amendment, substitute another plaintiff. His children were originally parties to the suit, as their father alleged that it was brought in behalf of his minor children. He was not their tutor at the time, none the less he sought to make them parties by alleging as before stated. After he had qualified as tutor he not improperly was permitted to avail himself of the right which had been reserved to him as tutor to become the party plaintiff. Whatever right these minors had, they were entitled to them at the time suit was brought. As they were not properly before the court, allegations setting forth their claim were admissible by way of amendment and supplement. They were not parties' strangers to the suit, but parties in whose behalf plaintiff had sought to set up a claim and failed to some extent because of his omission to set forth the names of these minors. He was also permitted by way of amendment to aver more fully his cause of action whether individually or for his minor children, and more specifically the items’ of damages sustained, and in the case of his failure thus to allege, his suit was ordered to be dismissed.

These exceptions did not tend to defeat the action. They only retarded its progress. In cases on appeal, this court will consider that granting permission to amend is less likely to do an injustice than its refusal. This court has also held' that amendment should be allowed when it prevents a multiplicity of suits.

The amendment was granted contradictorily with the defendant. The court ordered the defendant to be cited, and we judge that the suit was placed at issue after legal service had been made. The deficiency in the allegations of the cause of action not sufficiently set forth may be supplied when the amendment and supplement is permitted contradictorily with all parties concerned.

As relates to the two: an absolute dismissal or permitting one to amend contradictorily with those he sues, the difference is inconsiderable and can well be considered on an application to review proceedings as coming within the rule de minimis non curat lex.

This brings us to defendant’s ground of defense, that the minors have no cause of action. Originally the article of the Civil Code relating to damages growing out of offences or gmsi-offences was quite restricted in its scope in so far as related to the heirs of the one injured. Interpreting this article (2313 as originally written) the court held that the right of action was not heritable. In course of time, this article was amended in order to prevent the right from perishing in case of the death of the one originally injured. By the first amendment, the right was inherited, in case of death, by the minor children and widow of the deceased, and if there were no minor children or widow, then by the surviving mother and father. This amendment was interpreted by a decision of this court as not embracing within its terms the husband, but instead the father and mother. Walton vs. Booth, 34 Ann. 914. This decision had been handed down a comparatively short time when Statute 71 of 1884 was enacted, by which the right was made to survive by the use of the following language. The survivors above mentioned may also recover the damages “sustained by them by the death of the parent or child or husband or wife as the case may be.”

In Chivers vs. Rogers, 50 Ann. 57, this court decided that the right of action for the recovery of damages to an injured person who dies subsequent to receiving the injuries survives only in favor of the beneficiaries designated in the statute of 1884. Here, the minors who sue are expressly designated (they are the children of a mother deceased who suffered personal injuries), and it is not for us to determine that they shall not recover in the face of the plain provision of the statute designating them.

Defendant’s insistence is that where the injuries are suffered by a married woman, inasmuch as the right of action in her lifetime is the asset of the community, not the personal property of the injured spouse, this community right of action is extinguished by the death of the injured wife. We do not take it that this is the inference to be drawn from the language of the statute, which expressly, provides that this right shall pass to the heirs. The language of the statute is imperative; the damage, in case of the death of the parent injured, shall pass to her minor children, and if she left no minor children, then in favor of her surviving father and mother.

We understand that, in order to avoid the extinguishment of the right, a right of action is given to the heir as just stated. Although without legislation, the wife has no personal claim, separate from the community, by legislation the right of action for her personal injury may be made to survive in the name of the forced heirs. But defendant further urges that the personal right of action of the children under the second clause of the law of 1884. exists only in case they are entitled to the inheritable right of action provided for by the first clause of the law, that a oneness or solidarity exists between the two rights of action granted by the statute by reason that under the second clause, the survivors named in the first clause may also recover damages sustained by them by the death of the parent; that the copulative conjunction “also” manifestly shows this solidarity, that is, unless a minor child has a right of action under the first clause he can have none under the second clause and vice versa. The word “also” connecting the first with the second clause, in our view, does not have the restrictive effect for which defendant contends. On the contrary, it has the effect of extending or broadening the rights so as by implication, at least, to include the parent, whether it be father or mother.

We pass to a consideration of the defendant’s responsibility for the injury inflicted by her dogs. The district judge, in a carefully prepared opinion, describes these hounds as being large with long bodies and flapping ears, long tails and of a brownish or reddish tan color. He concluded, from their description, that they were English bloodhounds, in all probability crossed with stag hounds, corresponding in description with the hounds kept in the prisons of this and other States and trained for the pursuit of escaped convicts. He states further, that the dogs were vicious may be inferred by their size, breed, and actual conduct. These are the views of the judge! upon whom, in the first instance, devolves the task of sifting and weighing conflicting testimony. This opinion does not come up before us directly for review. Another constitutional authority is entrusted with the duty of giving it consideration and of appreciating the facts as set forth by the witnesses and of passing upon the first judgment based upon these facts. The Court of Appeal, in deciding the case, found that “there is conflict of evidence as to the character of the dogs and defendant’s knowledge thereof, but we should accept the conclusion of fact of the judge who heard and saw the witnesses, but were this otherwise, we do not think that the doctrine of scienter as a prerequisite to the liability of the owner finds lodgment in our law and jurisprudence. Not only does any act whatever of man that causes damages to another oblige him by whose fault it happened to repair it, but he is responsible for damages resulting from his negligence or imprudence caused by the act of the.thing which he has in his custody. R. C. C. 2315, 2316, 2318 are positive and unequivocal. “The owner of the animal is answerable for the damage he has caused.” There is no qualification, no restriction, no condition affixed to the legal responsibility, citing Mareade and Demolombe in support of the views before expressed.

• The Court of Appeal, in its opinion, also says: “In a case in which a father was sued for damages caused by his minor child, it was said 'the law itself imputes the fault to the father.’ It presumes that it resulted from lack of sufficient care, watchfulness, and discipline on his part in the exercise of the parental authority. This is the very reason and foundation of the rule. For like reasons, the law imposes responsibility upon the owner for damages occasioned by his animals, who have certainly no greater powers of discernment than the infant of tender years,” citing 37 Ann. 92.

We are not inclined to question the correctness of the conclusion of facts at which the judge of the district court arrived, affirmed as they are by the Court of Appeal. Taking this conclusion of facts as found, for a basis, it irresistibly follows that the defendant was ct fault: that these dogs were not the mild and amiable creatures she says they were. But the defendant in meeting plaintiff’s charges that these dogs were, to their knowledge, savage and fierce, insists that it was then imprudent on the part of the mother to venture to go in defendant’s yard to cut wood for her. This insistence presents matter for consideration in fixing the amount of the damages to which we will return in a moment.

This brings us to a consideration of the doctrine of scienter as an element in fixing the owner’s liability. We are not inclined to go to the extent that it is of no consequence in determining the liability of the owner whether or not he had knowledge of the vicious propensities of his animals. True, the owner of the animal is responsible for the damage it has caused. We do not think, however, that there is no limitation to his liability and that in all cases of bad conduct of the animal causing the injury, he is to be held in damages. The article itself relating to the owner’s responsibility contains restrictions and qualifications. The owner is not responsible if the animal had been lost, or had strayed more than a day, and he may discharge himself from responsibility by abandoning' it, save where the master has turned loose a dangerous animal, for then he must pay for all the harm done. There is no question before us of abandonment. We quote above from the article relating to injury caused by animals to sustain the proposition that there are limitations to the responsibility, belsides that the damages caused by animals are not viewed, as relates to liability, as being similar to the damages caused by a minor for which a tutor is responsible, or the damage for which employers are responsible growing out of the acts of their employes, teachers for their scholars, and artisans for their apprentices. The control and relation between one another are not the same. The sentiments of consideration and respect and control between man and animals is not the same as that which exists between man and man, and, in consequence, the liability for damages is fixed by different rules. As to the animal, as it is in some cases with a mere thing, it may be abandoned in case it has caused damage.

In our view of the authorities upon the subject, we have not found that under the civil law, from which the articles of our Civil Code are derived, it is always held that the character of the animal and knowledge of its propensities to do harm is of no consequence in passing upon the responsibility of the owner. We take it that the rule is the other way in so far as the damage is caused by an accident not to be foreseen or guarded against, as when it arises from a vis major. Article 2321 of the Civil Code (Article 1385 C. M.) is founded upon the presumption that the fault is chargeable to the owner of the animal that caused the damage, or to the person in whose use or under whose care it was at the time of the accident, and that presumption can be made to give way only in the presence of proof either of an unforeseen event, or by the imprudence of the one injured. Fuzier-Herman, Vol. 3, p. 905, No. 37.

The French commentators have approvingly referred to this view. From Laurent, Vol. 20, p. 675, we quote: That is to say there is no responsibility when there is no fault, the one to whom the damage is imputable should be permitted to prove that he was not at all at fault. But it is only needful to prove the lightest fault (culpa levis) to hold the owner responsible.

In all the eases in our jurisprudence to which we have been referred, there was some fault for which the owner was responsible, notably the case of Montgomery vs. Koester, 35 Ann. 1094, and McGuire vs. Ringrose, 41 Ann. 1029.

The amount of the damages is the only question remaining for our determination.

A moment ago we referred to the fact that the children of the deceased testified that the dogs in question acted with some degree of fierceness and sought to annoy them from the neighboring yard. It none the less remains that defendant'requested the mother (the deceased) to come into her yard to cut wood for her and that after she had complied with the request, the defendant, Mrs. Bóurriague, could' not (did not even attempt) to protect her from their attack.

For reasons assigned, the order nisi is recalled and set aside and defendant’s application is rejected.

Behearing refused.


author: Blanchard, J.

text:
    No. 13,826.
    State ex rel. Joseph Caillouet, Jr., vs Emile J. Laiche, Clerk.
    Syllabus.
    Where a bill passes one house of the General Assembly, is transmitted to the other where it is amended, and it appears that the amendment was never reported to nor concurred in by the house wherein the bill originated, and there is an omission of the amendment from the act as approved and promulgated, it must be held the act was not constitutionally enacted and haá not the force and effect of law.
    APPEAL from the Twenty-Seventh Judicial District, Parish of St James — Leche, J.

      Kernan & Lambremont for Relator, Appellee.

      O. A.Oondran for Respondent, Appellant.
   The opinion of the court was delivered by

Blanchard, J.

The question which this cause presents is whether or not Act No. 120 of the Legislative Acts of the year 1900 was constitutionally enacted into law; whether the act as promulgated passed both Houses of the General Assembly; and whether, therefore, the act is entitled to the force and effect of law.

The act in question bears the title:—

“An act to amend and re-enact Article 95 of the Revised Civil Code of Louisiana of 1870.”

Article 95, prior to attempted re-enactment, read:—

“Among collateral relations marriage is prohibited between brother and sister, whether of the whole or of the half blood, whether legitimate or illegitimate, and also between the uncle and the niece, and the aunt and the nephew.”

The attempted re-enactment presents it in this form:—

“Among collateral relations marriage is prohibited between brother and sister, whether of the whole or of the half blood, whether legitimate or illegitimate, between the uncle and the niece, the aunt and the nephew, and also between first cousins.”

That which is new in the article as thus re-enacted is the prohibition of the marriage of first cousins.

In November 1900 the relator demanded of respondent clerk of the court the issuance to him of a license to marry a certain young lady of the Parish of St. James. He stated the young lady was his first cousin and that he was, with the consent of her parents, engaged to marry her.

The clerk declined to issue the license on the ground that the marriage of first cousins is prohibited by the law of Louisiana and pointed to Act 120 of 1900 as embodying such prohibition.

Whereupon the relator applied to the District Court for its writ of mandamus to compel the clerk to issue the license.

After due proceedings had a decree was entered making peremptory the writ and directing the clerk to issue the license.

This appeal followed.

The contention of the relator, which was sustained by the court a qua, is that the act in question did not pass the two Houses of the General Assembly in such way as to meet the requirements of the Constitution, and, therefore, it is not a valid statute and has not the force of law.

More specifically stated, his contention is the bill, as it passed the House, contained the declaration that the act should take effect “from and after its promulgation;” that in the Senate the words “its promulgation” were stricken out and there were inserted in lieu thereof the words “the first of January 1902,” so as to make the act take effect from and after the first of January 1902; that this amendment was never acted on by the House, was not incorporated in the hill as it finally passed the House, nor as it was signed by the Speaker of the House and the President of the Senate, nor as it was approved by the Governor, nor as it was promulgated; that, on the contrary, the words which made the act read it should take effect from and after its promulgation were retained through error in the bill when reported back from the Senate to the House with other Senate amendments not in question, and remained in the act throughout the subsequent proceedings had in reference to it up to and including promulgation; and that since the Senate passed the bill to take effect from and after the first of January 1902 and the House passed it to take effect from and after its promulgation, there was a failure of concurrence of the two Houses on the measure and the same was not, therefore, constitutionally enacted into a statute.

The bill was introduced into the House on the Yth of June 1900, and became House Bill No. 184. It passed the House finally on June 18th; was transmitted to and received by the Senate June 19th; was referred to the Senate Committee on the Judiciary June 20th; was reported back from that committee favorably with one amendment on July 3rd; and on the same day the amendmnet was adopted.

This amendment was:—

“Strike out the words ‘its passage’ in line 23 and insert in lieu thereof the words ‘first of January 1902.’”

In the Journal of the Senate it is made to read “first of January 1900,” but this is shown by the evidence to be a clerical error; that it was “1902” and not “1900.”

After this amendment, making the act take effect from and after January 1st, 1902, was adopted by the Senate, the bill as thus amended was passed to its third reading.

The next day (July 4th) the bill was read in full and then, on motion, was returned to the calendar.

The following day (July 5th) it was again read in full and, on motion, was re-committed to the Committee on the Judiciary. It appears to have been considered the same day by the Committee, for its chairman, later in that day’s session, reported it back to the Senate favorably with amendments, three in number.

Then on July 6th the bill was read by title, the amendments considered and adopted and the bill was again passed to its third reading.

These later amendments have naught to do with the present controversy save as to the last of the three which reads:—

“Amend amendment adopted July the 2nd (should be July 3rd) by striking- out the word ‘passage’ and inserting in lieu thereof the word ‘promulgation.’ ”

This meant that a mistake had been made in using the word “passage’’ instead of the word “promulgation” in the amendment which, as above stated, was adopted in the Senate on July 3rd.

The bill as it passed the House read to the effect that the act should take effect from its promulgation — not its passage. The Senate intended to amend this and did amend it so as to make it take effect from the 1st of January 1902; but whoever drew the amendment wrote “strike out the words ‘its passage’ and insert in lieu thereof the words ‘first of January 1902,’” and in this form the amendment was adopted.

Later, it was found it was an error to use “passage” for that word was not in the bill at all, and that “promulgation” was the word intended. So, it became necessary to amend the amendment (or more properly speaking the text, for the adoption of the amendment had made it part of the text) by substituting the word “promulgation” for “passage.” Accordingly, the Committee on the Judiciary, after the bill’s recommittal, reported this as one of the amendments it recommended and the same was adopted.

The action of the Senate taken on July 6th left the bill, as to the time when it should go into effect, reading: — “first of January, 1902,” instead of “after its promulgation.”

The bill was next before the Senate on July 9th when it was read by title and put upon its final passage by aye and no vote and passed.

The next day it was reported to the House with Senate amendments. Two only are mentioned in the House Journal and neither relates 10 the time when the bill was to go into effect. The House concurred in the amendments and passed the bill by aye and no vote. The day following it was enrolled, signed by the presiding officers of the two Houses, and approved by the Governor.

As thus passed and approved there was omitted from the act the Senate amendment making it go into effect January 1st, 1902, and there was retained in it the original House declaration that it should go into effect from and after its promulgation.

If the act as approved by the Governor and as subsequently promulgated had contained the Senate amendment as to the time when it should go into effect, it would matter not that the House Journal makes no specific mention of that amendment nor of its having been adopted by the House. It would have sufficed that the Journal showed generally the Senate amendments had been adopted, thus bringing the case within the rule of Hollingsworth vs. Tax Collector, 45 La. Ann, 222, viz: — that in such ease the court will supply apparent omissions from legislative journals by presumptions of regularity of the proceedings of the General Assembly.

But here it indubitably appears that the Senate adopted an important amendment to the bill which was not reconsidered and taken out, which the House does not appear to have concurred in, and which was not incorporated in the bill as promulgated.

Non constat that the Senate would ever have given its assent to the measure in the shape in which it came from the House, and it conclusively appears that it did not pass it in that form.

There was no concurrence, therefore, of the two Houses in the act as promulgated, and it must be held the same was not enacted pursuant to the requirements of Arts. 39 and 40 of the Constitution. Hence, it is not a law of the State. Black’s Const. Law, §§ 144, 145; Amoskeag Bank vs. Ottawa, 105 U. S. 661.

Judgment affirmed.

Provosty, J., takes no part, this case having been submitted prior to his taking his seat on the bench.


author: Nioholls, C. J. Nioholls, O. J. Breaux, J.

text:
    No. 13,207.
    Jackson Fire and Marine Insurance Company, Limited, vs. Bernard J. Walle.
    Syllabus.
    1. ' A person who, while a director of a corporation, authorizes and consents to the entering in the books of the corporation of a subscription by him of stock to the amount of five thousand dollars, and who, thereafter, when a member of the financial committee of the company, apprpves by the letters “O. K.” a statement of the condition of the company intended for publication and put in circulation, in which the amount of stock subscribed for is stated to be a given sum, in order to make up which sum his subscription of five thousand dollars has to be included, is estopped from claiming that he is not a stock holder, for the reason that he did not affix his signature to an instrument in which it was declared that he subscribed to five thousand dollars of 'stock. Proof of his consent to subscribe to stock is not limited to such an instrument.
    2. Where a person consents to becoming and becomes a stockholder in a corporation the legal results flowing from that relation cannot be waived by secret understandings between himself and the board of directors that he would not be called on to pay or make good his subscription.
    3. The suit of the liquidating commissioners of an insolvent corporation against shareholders for the amounts due on their stock is in the interest of creditors, and the recovery is to be limited by the debts and the costs and expenses of liquidation. (Belknap vs. Adams, 49 Ann. 353.)
    On Reheabing.
    1. Filing copies on appeal. The filing of copies on appeal in accordance with an • agreement of counsel, to supply documents not copied in the transcript, made it necessary to change our decree in unimportant particulars.
    2. Subscription to be turned over to corporation representatives. The legal representatives of a corporation in insolvent condition and not, in consequence, ' a going concern, whose creditors seek payment of their claims, are authorized to recover from delinquent subscribers the amount of their subscription, being needed to pay the debts and to equalize rights and liabilities of the stockholders. The authority to collect gives rise to the duty to return, without delay, any amount thus collected over and above the amount needful to pay debts and equalize rights of the stockholders.
    3. Interest. Interest is only due on shares from the day the subscriber was placed in default.
    A PPEAL from the Civil District Court, Parish o£ Orleans — St. Paul, J.

      Frank McGloin for Plaintiff, Appellee.

      Theodore Gotonio and Dinhelspiel <& Hart for Defendant, Appellant.
   The opinion of the court was delivered by

Nioholls, C. J.

On the rehearing by Breaux, J.

Statement op the Case.

Nioholls, O. J.

This action was brought by F. W. Young, Maurice Generelly and Lueien J. Doize, declaring themselves the liquidating commissioners 'of the plaintiff, a corporation of the State of Louisiana, in liquidation.

They averred that on December 31st, the defendant, then a director of the plaintiff company, subscribed to five hundred shares of the capital stock of said corporation, at ten dollars per share; that said subscription had not been paid, notwithstanding amicable demand; that he owes the total amount thereof, to-wit: five thousand dollars; that by the terms of said subscription, the amount thereof was payable in instalments of ten per cent, monthly until paid, and consequently he owed legal interest on each of said instalments from date; that same was exigible until paid.

They prayed for judgment against defendant for five thousand dollars, with legal interest on five hundred dollars from January 31st, 1896; like interest on like instalments from February 29th, March 31st, April 30th, May 31st, June 30th, July 31st, August 31st, September 30th and October 31st, 1896.

Defendant excepted for the reasons.

1. That the petition should disclose how the plaintiffs, styling themselves “liquidating commissioners,” were appointed, or how they acquired such capacity; whether they were so elected by a vote of the stockholders or directors of the Jackson Fire and Marine Insurance Company; whether they were appointed such by the order or decree of any court, and, if so, what court and by what proceedings of the State; or how, or in what manner, they acquired the character in which they sue; if they were elected by the stockholders of the said company, whether the latter was previously dissolved, and, if so, by what proceedings, or steps, the said dissolution was accomplished; or, if appointed by the directors of said company, by what authority the said appointment was made.

2. That the petition should disclose whether or not the contract to subscribe the capital stock of said company, which is declared upon, was made orally or in writing, and, if orally, when, where and under what circumstances the same was made; ■ or, if in writing, the date of’ the same, and in the event the said subscription was in writing defendant desires to have oyer of the same.

3. That the petition herein disclosed no cause of action.

Wherefore, defendant prayed that the first and second exceptions set forth be maintained, and in accordance therewith that defendant be dispensed from answering until the information sought by said exceptions be furnished by the filing of a supplemental petition, and on the failure to file such petition ■ within five days after the maintaining of such exceptions that the suit be dismissed as in case of non-suit, and in the event that the exception thirdly, above set forth, namely, that of no cause of action, whether alone or in addition to the other exceptions filed, be maintained, that plaintiff’s demand be rejected, and their suit dismissed with costs, and for general relief.

The court sustained defendant’s exception of no cause of action and dismissed the suit, but on a new trial the judgment of dismissal was set aside and plaintiff permitted to amend.

An amended petition was accordingly filed, in which petitioners alleged that they were acting and representing the creditors and stockholders of the Jackson Fire and Marine Insurance Company, Limited, by virtue of the order of this court (Civil District Court, Division “C”), rendered November 4, 1896, in the matter entitled “Jackson Fire and Marine Insurance Company, Limited, in Liquidation,” No. 51,323 on the docket, and the further order of the court in said proceeding of date August 6, 1897, accepting defendant’s resignation, and August 31, 1897, appointing Lucien J. Doize liquidating commissioner, vice defendant herein, resigned, and by virtue of the letters issued in accordance with said orders by the court to petitioners.

That they were also acting by virtue of the preceding vote and election of the stockholders of said Jackson Fire and1 Marine Insurance Company, Limited, fully set forth in the first petition and exhibits, approving the action of the stockholders’ meeting, placing said company in liquidation and affirming the election of petitioners, with defendant,'Bernard J. Walle, as liquidating commissioners.

That all of said proceedings, both of the stockholders and of the court. as above set forth, were with the full knowledge, approval and participation of the defendant, who was one of the original liquidating commissioners, and who was estopped from in any wise questioning or disputing same.

That the Jackson Fire and Marine Insurance Company, Limited, was insolvent, and was so insolvent at the time of the appointment of liquidators;'' and it was necessary, in order to pay creditors, and also equalize the losses among all the holders, many of whom had paid in full and others partially their subscription, to collect all obligations owing to it, including all unpaid stock subscriptions.

That the subscription stock, originally sued for, was not in writing, but was made by defendant verbally, while a director of the company, and that defendant, while such director, instructed the entry of said stock, as by him subscribed, upon the books of said company, and caused said stock, then subscribed by him, to be included among and published as an asset of said company, giving it thereby an additional credit; that credit having been given to said statements defendant was estopped to deny their accuracy; that defendant being a director and manager of said corporation, hence a fiduciary, was estopped to set up any defense against said stock subscription, or to deny or question same in any way.

They prayed, for citation on defendant and for judgment as originally asked.

Defendant answered.

After pleading the general issue, he specially denied that he ever made any subscription to, or for, the capital stock of the Jackson Fire and Marine Insurance Company, Limited, or in any manner agreed and bound himself to become a stockholder in the same, as it was claimed by the petition; that he, at any time, instructed the entry upon the books of the company of the said stock as subscribed for by him; that he caused said stock to be included as an asset in any statement published by the company; that he ever had any part in or did any act consenting to or approving of the use of the subscription upon which he was sued as a means of procuring additional credit for the said company. He denied any and all acts which would create against him an estoppel to deny that he was liable. upon the pretended subscription sued on, or that he ever made or agreed to the same.

He denied that he had ever by act or acts or'conduct of any character whatever consented to the subscription sued on; that he ever made the same or ever in any manner bound himself to take and pay for the shares of the capital stock of said company described in the original petition.

The District Court rendered judgment against defendant, and he appealed.

Opinion.

The evidence shows that the Jackson Eire and Marine Insurance Company is an insolvent corporation and, that as such, it was placed in liquidation and liquidators appointed thereto.

The liquidators, who prosecute this suit, allege that they are acting in' behalf of and representing the stockholders and creditors of the corporation.

That it was necessary in order to pay creditors and equalize losses among all the stockholders, some of whom had paid in full and others only partially their subscriptions, to collect all obligations owing to it, including all unpaid stock subscriptions.

It is alleged that the defendant is a stockholder of the corporation to an amount of five thousand dollars, which is wholly unpaid, and judgment is asked against him for that amount.

We think that plaintiffs have proved the averments of their petition; that, although defendant’s status as a stockholder was not evidenced by his signature to a stock subscription made out in the usual form, he had none the less consented verbally to subscribe for five thousand dollars of stock while a director of the company, and while occupying that position he authorized the entry of his said subscription in the books of the corporation and consented to and authorized the including of the amount so subscribed by him in the statements of the amount of stock subscribed for by the corporation giving it thereby additional credit.

Defendant was a stockholder in the company independently of the five thousand dollars subscription, and he was also one of its directors and a member of its finance committee, and the books of the corporation with the stock entries therein made while he occupied these positions were properly introduced in evidence as was also parole evidence to show direct knowledge by him of the same and his direct consent.

We think these entries quoad him are sufficient “written evidence” of his consent to bind him, and particularly so when a statement of the condition of the corporation having been prepared for publication and circulated in which figured, for the purpose of showing the amount subscribed for, the five thousand dollars subscription which defendant had authorized and consented to have entered in the books, he approved the same by writing the letters “O. K.” upon it.

It appears that three other directors of the company, Young, Johnson and Frank, subscribed verbally for -five hundred shares of stock in the same manner and at the time that defendant subscribed.

It appears that a person in New York had proposed to enter into a contract with the company to become its collector there and also to sell its unsubscribed for stock, and came to New Orleans to confer upon that subject, and the circumstances under which and the purpose for which the four directors made their subscriptions originally is stated by E. W. Ilart, who was at that time the book-keeper of the corporation and made the entries referred to.

In answer to a question as to what the object of the subscription was, he said: “My recollection is a little uncertain about that, but I think it was due to the fact that the company was about to malee a contract with a gentleman in New York City who proposed placing agencies around, making a contract with the company for controlling those agencies, 'and who made the company such representations that they believed, or it appeared on the face of that, to be a very good contract, and all his propositions were based on the fact that the company's statement would show a certain amount of stock. It lacked that necessary amount, and those subscriptions were proposed in order to make a statement that would induce him to take hold of the company as an incident to his agency.

“He was also to place stock; to sell stock.

“Thq conversation was about in this line; that if those gentlemen would take those five hundred shares of stock each, and then would make this contract, that those gentlemen in New York would have no trouble whatever in disposing of those five hundred shares. They simply took them in their name, as I understand it, in order to make a good statement for the company’s being responsible, but they intended to sell that stock, and the first two thousand1 shares that were sold would be those two thousand shares subscribed for by these gentlemen.”

lie says that the proposed contract was made and the person who came to New Orleans (also by the name of Hart) entered into the duty of manager of the company; he had absolute control of the underwriting in his contract, but he took personal charge of it in the North; quite a lot of insurance was taken in the North under the contract. The contract did not result as favorably as we had supposed it would, or his company supposed it would. It was not the success that it gave promise of being; when he first took hold of it, things were humming— apparently. There were lots of insurance written, and lots of stock placed, and the first payments on the stock that he placed were' paid for. The stock was all sold on payments -of ten per cent, cash and ten per cent, a month, but after the first few months the people to whom he sold the stock didn’t pay any more and we found that people who had written insurance, the agents he placed, were very slow in remitting. Finances got hard up and that was the result (cause) of the company’s liquidating; that was the cause of it — of the insolvency of the company.”

We do not think that, under the state of facts declared by this record, defendant is iñ a position to say that he was not a stockholder, because it was not expressly declared in an instrument directly over his signature that he subscribed to a certain number of shares of stock, nor because it was never his intention to subscribe for or pay for the stock. In Belknap, Eeceiver, vs. Adams & Eiee, 49 Ann. 1353, we said that liability for the stock, whether created by actual subscription or receiving certificates from the corporation, or by any other mode of dealing with the corporation of equal significance, can not be discharged except by payment.

Defendant claims that it was understood, afb initio by the corporation, that it was not his intention to subscribe for or pay for stock; that the corporation would have no right to hold him estopped; the liquidators have no greater rights; that it had been heldi in Nicolopulo vs. His Creditors (39 Ann. 472), that a syndic had only the rights of the ceding debtor; that it is a general principle of law that parties acting in a representative capacity, or claiming rights from others, have only the rights of their principals or those from whom they derive their rights, and in this connection he cites: Succession of Nash, 48 Ann. 1573; State National Bank vs. Bryant & Mathers, 49 Ann. 467, and Fenn vs. Insurance Company, 48 Ann. 541.

He contends that there is no evidence before the court that any of the present creditors of the corporation were injured in any way by his act, ''and, if so, who they are and what is the amount of their claims.

The subscription by the defendant to the stock of the corporation was not' a contract between him. and the corporation itself, which the liquidators are seeking to enforce. Defendant is, by subscription, the owner of five hundred shares of the stock of the plaintiff company; he is the original owner of the stock and substantially one of the creators of the corporation, and the amount of his subscription was as much a direct contribution'from himself to the corporation as if he had been one of the original incorporators.

Defendant says there is a difference between an original subscription to stock for the purpose of organizing a corporation and a subscription after the company is organized, but we do not think that a subscription of the latter kind is any more a matter of “contract” between the “corporation” and the subscriber than an original subscription. In the former there is no second person in existence (other than the State) to receive and accept a proposition to subscribe. It is the joinder of subscribers and the contribution of capital which, in themselves, give rise to this second person, which, when formed, takes hold of the contributions and operates them for the benefit of stockholders. The amounts contributed constitute the basis on the faith of which creditors make their contracts with the corporation and which, from the very nature of things, should be called in and collected for their benefit, when necessary. Their right of recourse upon this fund is direct and original and not derivative, though made effectual ordinarily through corporate instrumentalities.

As said by this court in Belknap vs. Receiver, 49 Ann. 1353: “In the language of the authorities the liabilities of stodkholders to the corporation, for their stock, is treated as a trust fund for creditors, and the courts will enforce the trust through the receiver or other appropriate methods (Cook, Stock and Stockholders, 91 U. S. 47, 48). •x- * *• The shareholder’s liability for unpaid stock, received for the corporation, is to future as well as subsequent creditors.”

In the case at bar it is not alleged, or shown, what the actual situation of the plaintiff corporation is as to stockholders other than defendant who have not paid their stock, nor as to the amount of money needed to pay creditors, costs and expenses, etc.

In the case last cited we said: “The receiver’s suit against shareholders for the amounts due on their stock is in the interest of creditors and the recovery is limited by the debts of the corporation to be satisfied.”

The judgment rendered by the District Court against the defendant herein, is an absolute judgment presently enforceable for its full amount against the defendant, without reference to the condition and situation of the corporation as to other stockholders and as to creditors.

We think the judgment appealed from is correct, and we affirm it so far as it adjudges and decrees defendant to have become a stockholder in the plaintiff corporation for an amount of five thousand dollars on the subscription declared upon in plaintiff’s petition, and in so far as it decrees that defendant is legally liable upon the same. Payment of the judgment, recognizing said liability, should, however, be enforced only to the extent necessary to pay the corporation debts, the costs and expenses of the liquidation of the corporation, the same to be hereafter shown and proved in the District Court, and the judgment against him should be decreed to be satisfied upon payment of said amount.

It is therefore, ordered, adjudged and decreed that the judgment appealed from be affirmed to the extent herein stated, but amended in the particulars just herein stated, and the cause is remanded to the District Court for further proceedings and judgment in accordance with this opinion and decree.

Defendant to pay costs in the District Court, and plaintiff those of appeal.

Monroe, J., recused.

Application for rehearing by defendant refused.

Application for rehearing by plaintiff granted.

On Eei-iearing.

Breaux, J.

The defendant was sued for the amount of his stock as a stockholder in the plaintiff company. The cause was heard here and a decision was rendered.

We will not restate the facts as they are set out in our original opinion. On the application for a rehearing, both the appellant and the appellee find reasons to urge against our decree.

The defendant and appellant restates the grounds heretofore pressed upon the court’s attention, against the entire judgment, and seeks to he relieved entirely from all liability. We may as well state here that, upon re-examination, except in minor particulars, we have not found good ground for changing the views we have heretofore expressed.

Plaintiff and appellee asks for an amendment of our decree so that it will not be limited to a sum sufficient to pay the debts of the corpora-t'ion, bnt so that it will include as well all amounts needful for equalizing. the losses among the stockholders.

Counsel entered into the following agreement: “Each party should have the right to bring up such papers or original or copy as might be deemed necessary.” Counsel, we are compelled to say, were a little tardy in supplying the papers not originally included in the transcript. The result was that issues of fact were not completely presented and that it was only after additional papers had, been brought up and filed, under the agreement in question, that theyj became evident. It now appears that the company has ceased its operation; that it is in an insolvent condition.

The liquidation and settlement of the affairs of the corporation is about all that remains to be done.

As the debts must be paid, and an equalization of the losses among the stockholders arrived at, we think, under the circumstances, that the stockholders who have not paid their subscriptions to the stock should pay. If there should remain a balance after the payment of the debts and the equalizing of the losses among the stockholders, it can be returned to the one entitled to it. Erom all appearances, there will not be any thus left to return, and for that reason we conclude, without further delay, payement should be made of stock the subscriptions to which has not been paid.

We pass to the interest allowed by the judgment of the District Court and afterwards affirmed in our original decree. Further consideration of the subject has induced us to make a slight change in this respect. Heretofore, we allowed interest from the date that plaintiff claimed the 'interest was due. It does not appear that any call was regularly made for payment of subscriptions. Moreover, the charter is not before us to enable us to determine from what date the subscription On shares became due.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed except as relates to the interest, and in that respect the decreé is amended so that the stopk subscription due shall bear interest from judieiál demand and not from the date as set forth in the judgment appealed from. Our former judgment remains unchanged, or is reinstated, except in so far as it does not conform with this decree as just expressed. (The case is, therefore, finally disposed of and not remanded).

..Monroe, ,J., takes no part, having decided the case in .the court a qua.


author: Breaux, J.

text:
    No. 13,813.
    E. B. Williams & Co. vs. Louisiana Lumber Co.
    Syllabus.
    On Motion to Dissolve the Attachment.
    Although one sues out a writ of attachment for a larger amount than he is entitled to, he may yet sustain the attachment for the amount to which the testimony on trial shows he is entitled.
    On the Mekits.
    The special plea of defendant was not so warded as to limit the defense to the one ground raised: that lumber, which was the consideration of the violated contract, had declined in value.
    The defendant’s agent had at first made representation regarding the percentage of the first and second clears; afterwards, this agent declined to guarantee the amount of the percentage. Plaintiff, in view of the circumstances, has no ground upon which to base an argument of false representation and warranty of percentage of measurement of the upper grades of the lumber.
    The percentage of clears is increased from fifteen to twenty-five per cent, of the lot of lumber .sold by defendant to plaintiff. Pour dollars a thousand was the extent of the profits shown which plaintiff would have made at the place of destination.
    APPEAL from the First Judicial District, Parish of Caddo— Land, J.

      ■Sutherlin & Sail and Scarborough & Carver for Plaintiffs, Appellants.

      Alexander & Wilkinson and George Whitfield Jack for Defendants, Appellees. • ■
   The opinion of the court was delivered by

Breaux, J.

Plaintiffs action is for damages. It is a wholesale lumber dealer, manufacturer, and exporter in New Orleans. The amount of the claim is fifteen thousand three hundred dollars for the violation, of'a contract.. A writ "of attachment was issued for part of this claim, eight thousand seven hundred and three dollars, for items which plaintiff avers were certain as to amount due.- But items for asserted injury to credit, loss of time; and others similar were omitted. Plaintiff alleged that defendant is a non-resident corporation, a fact not disputed. Plaintiff, under garnishment process, seized the judgment which defendant had obtained in Barr and Hetterman vs. Henderson in the District Court and which is now pending on appeal in the Supreme Court.

It is admitted by defendant that he bound himself to deliver to plaintiff two million feet of cotton-wood lumber on yard opposite the City of Shreveport on Red river in Bossier Parish, grades clear, common, and culls (mill culls and mis-sawed excluded). The clear grades were to be delivered in New Orleans for export at sixteen dollars and fifty cents per thousand and the common and culls were to be delivered at St. Louis for fifteen 75-100 dollars. This was also alleged, in substance, by plaintiff. Plaintiff avers that defendant failed to deliver the number of feet of lumber promised of the upper grades on which he expected a larger profit than he thought of realizing on the lower grades.

He also avers that defendant failed to comply with the promise he had made to re-saw the mis-sawed lumber and that, in consequence of this failure and the failure to deliver the lumber timely, he was greatly damaged.

Defendant contradicts plaintiff’s contentions for damages and denies that he was damaged at all, or, if damaged, that the damage was due in any manner to his default. Taking the case as a whole, defendant admits that he did not deliver the lumber sold, and shows that he, defendant, also met with disappointment in not obtaining the delivery of the lumber which he had previously bought from Henderson.

Motion to Dissolve the Attachment.

Defendant, in its brief on appeal, limits its ground to dissolve to the following, and, as we take it, has abandoned its other ground. The ground urged is that it was impossible for plaintiff to swear accurately to the amount due. In support of this ground, defendant urges that thd amount of the judgment of the District Court was so much less than the amount of plaintiff’s' claim, that if this court affirms the judgment, the attachment should be dissolved, as it would be evident that plaintiff was greatly mistaken in its affidavit.

If one, in good faith, sues for the violation of a contract and claims a larger amount than is afterward decreed by the court to be due, the accompanying attachment should be held good for the amount so decreed as due. The mere fact that plaintiff claimed too much, if claimed in good faith, is not to be taken as ground sufficient to dissolve the attachment and perhaps prevent him from recovering the claim due. It was not possible for plaintiff to swear accurately enough from his point of view. The evidence sustains his claim to part, and to that extent, the attachment is sustained.

On the Merits.

Plaintiff, in the first place, contends that defendant should not have been permitted by the District Court to abandon its special defense “that lumber had declined in value,” and to take up the inconsistent defense that the percentage of clear grades was less than claimed. Arguing in support of thisl position, plaintiff points, to the fact that objection was made before any evidence was received, on the ground that defendant did not allege that the lumber was of a grade lower than commercial, and that by the evidence introduced, defendant raised issues not alleged.

In our view, the defendant, as relates to the issue now in hand for decision, did not go beyond the limits of the pleading, nor is the evidence in conflict with defendant’s special plea. Plaintiff, in substance, claimed that his profits would have been larger on the upper than on the lower grades of lumber, if defendant had1 complied with the contract. The interpretation of the contract rendered it necessary to admit testimony regarding the grades of lumber. The special plea invoked by plaintiff on this point was not of such a nature as to preclude all possibility of admitting the testimony. Defendant specially denies all responsibility, and, in thus denying, puts at issue plaintiff’s action on the contract, setting forth the different grades of lumber. It follows that defendant’s demand in this respect was, by the effect of the allegations, sufficiently made known to plaintiff..

The other objections, viz: that the contract called for lumber, which means average lumber, will be taken up later on.

This brings us to plaintiff’s next ground, that defendant is bound in warranty as to quality as well as to title, and that, in consequence, defendant, in selling the lumber for a sound price, bound itself to sell and deliver a sound article. We have seen that plaintiff’s contention is that they would have made a profit of twenty-five cents per thousand on the common and culls and five dollars per thousand on the firsts and seconds; and warranty of the contract is invoked in support of the position that a certain number of feet of the first and seconds should have been delivered, and that, altogether, a better grade of lumber was sold than defendant admits.

The warranty as to the number of feet sold and the quality sold as claimed by plaintiff, and the asserted representations of the defendant, give rise to an issue of facts. Defendant, in answer to an inquiry for lumber made by plaintiff in February, 1900, stated that it had for sale “some two million feet of cotton-wood, all log run and sawed, four by four full,” and to this, plaintiff’s answer was that they had not been buying cotton-wood and were not familiar with the transportation facilities, but that they were willing to depart from their usual line of purchase and to buy one million feet of cotton-wood lumber, log run, mill culls out, to be cut in sizes of one and a quarter by one and a half inches and defendant to guarantee sixty per cent, firsts and seconds.

In another letter, dated February 24th, 1900, the plaintiff states that, not knowing the quality of defendant’s output of lumber, nor of the logs sawed by it, it assumed that the first and second grades would average at least forty per cent. Further on, in the same letter, plaintiff wrote: “It is utterly impossible for us to pay $12.50 per M. feet B. M. for your lumber, unless you can guarantee us a large percentage of firsts and seconds.” About this time, in their dispatches, plaintiff insisted upon a guarantee by defendant of a certain percentage. Early in March, 1900, defendant, replying to plaintiff, expressed it as its opinion, that the lumber was of the grades that plaintiff desired, but expressly stated that it was unwilling to guarantee the grades. The next day, without the least reference to a guarantee regarding grades, which we understand defendant declined to give, plaintiff, in a letter from New Orleans, .its place of business, to the defendant, at Shreveport, requested an option of five days within which to accept defendant’s offer. The option was secured and defendant was informed by letter that plaintiff was exerting itself to close a deal with one of its customers for this lumber within the option limit; that it had no market for common and culls, but that it would exert itself to sell these grades, and then it would accept the offer. It stated, further, that it would not handle mill culls. This was on the tenth of the month; on the twelfth, one of the partners of the plaintiff firm, who had gone to Shreveport, sent a telegram to his firm wanting to know if it would complete the purchase of seven hundred thousand clears, common and culls, but that he had excluded from the defendant’s proposal the mill culls and the mis-sawed lumber. The firm accepted the offer. One of the members of the plaintiff firm made an inspection of the lumber on defendant’s yard, or, as he had expressed it, had taken a view of the lumber, but he testifies that an authorized agent of the defendant represented to him that about forty per cent, of the lumber was first and second grades, and this agent’s estimate of the lumber on the yard was in excess of two million feet, and that upon these representations he consented to buy the first and second grades and the common and shipping culls, subject to the approval of his firm. He says that, together, they estimated that the first and second grades would amount to about 800,000 feet; that he wrote out a telegram of the proposition, which he read to the agent and to which this agent assented. The mis-sawed lumber and the mill culls on the yard were expressly left out of the deal. He mentioned in this telegram that the clears (i. e., the firsts and seconds) would measure *700,000, making it less than the defendant’s agent estimated, which was 800,000 feet, but he desired to be conservative.

This plaintiff also testifies that defendant’s agent bound the defendant to re-saw the lumber that had been mis-sawed and that from this mis-sawed lumber he expected to increase the percentage of the upper grades. With reference to re-sawing, plaintiff wrote: “We are of the opinion that it will be greatly to your advantage to exercise great care in the re-sawing of this lumber as it will add very materially to the result of the first and second grades.” To this defendant answered, agreeing with the plaintiff. After this, plaintiff sent an inspector to inspect the lumber defendant was to deliver and his report was unfavorable. While on the ground, he telegraphed to plaintiff not to accept the offer, but plaintiff did not choose to follow out the suggestion and accepted the lumber.

This witness admits that the defendant offered to sell him “log run,” without reference to grade. He insists that he did not accept the offer. This witness virtually acknowledges that defendant, in its letters to his firm, positively refused to guarantee any percentage of first and second grades, but says that this correspondence occurred considerably prior to the date of the deal, and adds, while being cross-examined, that defendant made no guarantee in regard to firsts and seconds. This witness testified: “I said that we asked no guarantee, and I do not presume that he would volunteer a guarantee.”

Defendant’s agent flatly denies that he had ever made any estimate of the first and second grades, and also denied that he had ever offered any guarantee to plaintiff of percentage of grades. The direct contradiction between these two witnesses rendered it necessary to look elsewhere in the record for proof. Weighing other evidence upon the subject, we have arrived at the conclusion that the plaintiff, had the lumber been delivered, would have had to accept the different grades and to pay for the number of feet of each delivered. The defendant had refused to guarantee any particular percentage of any grade and, after the refusal, plaintiff bought the lumber. The refusal to guarantee the percentage was ample notice that defendant did not intend to sell by lot, but only after measurement of the lumber.

We take the following as proof that plaintiff was to pay for the grades it got: “Terms of sale were cash for lumber as delivered, inspection at mill, shipment to consignee no later than April 20th, 1900.”

Having found that the plaintiff bought the lumber without warranty or representation enabling him to recover percentage claimed of the upper grades, we pass to the question of the amount of clears or first and seconds there was in the two million feet bought. The amount of lumber in these grades is important, for we understand that plaintiff looked on these for a considerable profit.

The judge of the District Court arrived at the conclusion that such grades amounted to fifteen per cent., or 300,000 feet. We are informed by the testimony that in the sawing of cotton-wood logs into lumber, fair percentage, a good average, would be forty per cent, of the log run. Log run is considered the full product of the log and denotes all the different grades manufactured in the sawing of the logs. Commons and culls, taken together, should run from forty to sixty per cent, of the log run. We may as well state that the grades are box boards, firsts, seconds, commons, and culls. The remainder is considered as being worthless for lumber, being mill culls and refuse or waste. Quality and the dimensions of the lumber are to be considered in grading. It appears that it is very exceptional to re-saw commons and culls so as to make first and second' clears. The dog board, that is the last board cut from the log, is usually of uneven thickness and is usually worthless unless re-sawed by the re-sawing machine.

The manufacture at the defendant’s mill, for different causes, was not, it appears, up to the standard. The inspector who was sent by plaintiff testified that the lumber on the yard, bought by them, was the most worthless he had ever seen; that it would have cost more to re-saw the mis-sawed lumber on this yard than it was worth. This and other testimony sustain only a low estimate of percentage of clears. The lumber was mostly of inferior grades, it is true, yet there surely was some of it of the upper grades. Although defendant declined to guarantee, the percentage was not slow in giving risd at least to the hope, on the part of the defendant, that much of the lumber on the yard was of the better grades.

The difference between estimates is usually extreme and it is particularly so in this case. It varies from two to sixty per cent. Some of the witnesses have testified that the percentage of the better grades was as low as two per cent, and others as high as sixty per cent. Tt does not appear that any account of stock was ever taken of the lumber on the yard or careful inspection made. After weighing the testimony and seeking to ascertain the average of this lumber at the time, as made to appear by the preponderance of evidence, we think it can safely be put at twenty-five per cent of the lot sold, i. e., 500,000 feet. We include in this the increase of value which the promised re-sawing would have given.

The next point raised relates to the market value of the lumber at the point of destination and the consequent damages for non-delivery in order to enable plaintiff to carry out its own contract with its customers. We have seen that the firsts and seconds were sold at $16.50 per thousand, to be delivered at the port of New Orleans, and the common and shipping cull at St. Louis for $15.'T5 per thousand, f. o. b. at these respective places. We take it that the profit on the latter grades was quite limited, if anything. Our brother of the District Court stated, in a carefully written opinion, that he did not think that the plaintiff was entitled to anything on the commons and culls, for the reason that, in his view, it was inade evident that if the lumber had been delivered, as defendant had bound himself to do, the plaintiff would not have made any profit thereon. The average price abroad for the first and second grades, plaintiff informs, us, was about thirty dollars per thousand B. M. The ocean freight averaged eight dollars and fifty cents per thousand B. M., leaving the value of the lumber f. o. b. New Orleans, La., twenty-one dollars and fifty cents per thousand feet B. M.

We left the evidence on this point not convinced that, for the material which plaintiff bought, he would have obtained that much per thousand from his foreign customers. There is testimony that cottonwood lumber was worth twenty dollars and fifty cents at ship side in New Orleans at the time. This was accepted as a fair price by the District Court, and we agree with the view, that is, that the lumber in question was worth four dollars profit in New Orleans.

We have given consideration to the other items of damage and have not found good reason for allowing them any further than they may enter into and be considered as rendering it absolutely certain that plaintiff is entitled to the damages here allowed.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be increased from twelve hundred dollars to two thousand dollars, with legal interest thereon from May 31st, 1900, until paid, and costs, and that after amendment by thus increasing the amount, the judgment is affirmed.

It is further ordered, adjudged, and decreed that the writ of attachment is maintained for the total of the judgment allowed, and that plaintiff’s privilege as attaching creditor be recognized and enforced according to law. It is further ordered, adjudged and decreed that plaintiff' have judgment against Henderson, garnishee, for the sum of two thousand dollars with interest and costs.

The costs of appeal to be taxed on the defendant and appellee.

Rehearing refused.


text:
    No. 13,702.
    Succession of Antoine Marinovich. Opposition of Matthew Jones, Under-Tutor.
    Syllabus.
    1. A tutrix vacates her trust by the fact of remarriage without complying with the requirements of Article 254 of the Civil Code.
    2. But this vacation of the office of tutrix does not have the effect of also vaeat- - ing the office of under-tutor.
    3. It is not only the right but the duty of the under-tutor, if he think the interests of the minors so require, to oppose the reappointment of the newly-married widow as tutrix.
    4. A family meeting should be composed of relations of the minors; in default of relations, of friends.
    5. The law requires the presence of the under-tutor at family meetings, and one held without notice to‘ him and without his presence will be set aside.

      6. It having come to the knowledge of the trial judge that circumstances exist which made the appointment of a tutor to the minors necessary, his action in ordering steps to be taken to that end was proper, and this without regard to whether or not this relief was specially asked for on their behalf.
    APPEAL from the Eleventh Judicial District, Parish of Natchitoches — Porter, J.

      Pierson <& Walmsley for Plaintiff, Appellee.

      Jack & Fleming for Defendants, Appellants.
   The opinion of the court was delivered by

Blanchard, J.

The question presented by this appeal is the legal sufficiency of family) meeting proceedings taken in the matter of the appointment of a dative tutor to minors.

Antoine Marinovich died in 1896, leaving a widow and eleven descendants. Pour of the latter were, at the time, majors; the remainder minors.

The widow and mother was, in due course, confirmed as natural tutrix of the minors, and her son-in-law, Matthew Jones, who had married one of the daughters of age, was appointed under-tutor and qualified as such.

In September 1899 the widow contracted a second marriage. This marriage deprived her ipso facto of the tutorship, because of her failure to comply, previous to its celebration, with the mandatory requirements of C. C. 254.

In May 1900, following this second marriage, the former widow, who had meanwhile become Mrs. Dominique Eutolo, presented a petition to the District Court, aided therein by her husband, in which she averred the fact of her marriage with Dominique Eutolo, and her failure, prior to the marriage, to convoke a family meeting to have herself retained as tutrix of the minors of her first marriage.

She represented the necessity of her continued tutorship, and prayed for the calling of a family meeting to advise as to her appointment as dative tutrix, and as to dispensing with the giving of bond and security as such.

Assuming in her petition that the office of undertutor had also become vacant, she prayed that Antoine Marinovich, the major brother of the minors, be appointed to that office.

She named in her petition five persons who were to compose the family meeting. None of these were relatives of the minors; they were represented to be friends.

The clerk of court issued an order in accordance with the prayer of the petition; the family meeting was called; the five friends were appointed to compose it.

The meeting was held and it was recommended that Mrs. Marie S. Rutolo, the mother, be appointed tutrix, and Antoine Marinovich, the brother, be appointed under-tutor.

It was further recommended “should the same be necessary in law,” that Dominique Rutolo, the step-father, be appointed co-tutor.

’ The family meeting also advised that the tutrix be dispensed from giving bond and security.

This was followed by an order or judgment, signed by the clerk of court, homologating the proceedings of the family meeting ana appointing Mrs. Rutolo, tutrix, her husband, Dominique Rutolo, co-tutor, and Antoine Marinovich, under-tutor.

But before these parties qualified in these several capacities, Matthew Jones, the undertutor by first appointment, filed an opposition in the form of a petition addressed to the district judge.

He represented himself to be the under-tutor of the minors, and a3 such opposed the appointment of tutrix and undertutor to them as sought to be effected under the proceedings of the family meeting above referred to.

One of the grounds of his opposition was that the alleged family meeting was composed entirely of friends, whereas there were at the time residing in the parish two brothers of age of the minors, and others near of kin, none of whom were notified of the meeting, or called to take part in the same as members thereof.

Another ground was, the family meeting was held, its proceedings conducted and deliberations concluded without notice to him (opponent) as under-tutor, and without the presence, sanction or approval of an under-tutor.

The prayer of the opposition was that the proceedings of the family-meeting be vacated; that the order of the clerk of court homologating same and appointing the parties named, respectively, as tutrix, co-tutor and under-tutor be set aside; that he (opponent) be recognized as the lawful under-tutor of the minors; and that the court take such further proceedings as their interest might require in the premises. Later, an amended opposition was filed setting up other grounds for the exclusion of the parties recommended by the family meeting for appointment as tutrix, co-tutor and under-tutor, but the view we take of the case renders it unnecessary to notice the same.

By exception and answer filed, defendants in opposition contested the right of the opponent to stand in judgment “under the form and proceeding which he has here instituted,” and denied his capacity as under-tutor “either in law or fact.”

It was also set up that the petitions in opposition disclosed no cause of action and asked for no relief the court could grant.

Admitting the second marriage and confessing that its celebration without taking steps for the widow’s retention in the tutorship vacated the latter, she yet claimed the right in exclusion to all others of the dative tutorship.

There was general denial of the averments of the opposition, and matters of defense otherwise were set up, mainly in reply to the amended petition in opposition, which, as before stated, it is not deemed necessary to consider.

There was judgment below1 sustaining the opposition, to the extent of decreeing that the family meeting held in May 1900 was illegal, its actions and recommendations void and vacating the same, as well as revoking and setting aside the clerk’s, order conditionally homologating the proceedings thereof.

It was further ordered that a family meeting be convoked and held before the clerk of court on a day fixed, to be composed of relations of the minors residing in the parish, and named as members thereof the three major brothers of the minors, Louis Wilson, their brother-in-law, and J. A. Sampiti a friend of the family — the latter in default of other relatives or kindred of the minors residing within thirty miles. It was directed that this family meeting be charged with the duty of selecting and recommending to the court the name of a discreet and responsible person to be appointed tutor to the minors and to advise the court as to whether or not such tutor should be dispensed from giving bond. From this judgment defendants in opposition prosecute this appeal.

Ruling — The opponent, Matthew Jones, had been legally appointed under-tutor and he had qualified in that capacity.

The tutrix of this tutorship vacated her trust by the fact of remarriage without complying with the requirement of Article 254 of the Civil Code with regard to her retention of the tutorship.

Grant vs. Maier, 32 La. Ann. 51; 34 La. Ann. 129.

But this vacation of the office of tutrix did not have the effect of also •vacating the office of under-tutor. On the contrary,, the office of under-tutor must be held to have continued to exist in order that the duties enjoined by C. C. 279 might be fulfilled.

That article is to the effect that the tutorship does not devolve on the under-tutor when it is vacated; but when it becomes necessary to appoint another tutor, it is the duty of the under-tutor, under his responsibility, to cause such appointment to be made.

The point was directly decided in the Tutorship of Bales, 2 La. Ann. 942, where it was held that vacation of the office of tutrix by the remarriage of the widow without the previous holding of a family meeting and. its recommendation of retention of herself in that capacity, does not cause the appointment of the under-tutor to cease and determine.

See also Gassen vs. Palfrey, 9 La. Ann. 560.

The under-tutor, in this instance, should have.taken steps, following the remarriage of the widow, to cause a tutor to be appointed, and was remiss in his duty by failing to initiate proceedings to this end.

When, however, some eight months following the marriage, the former widow and her husband took proceedings for the reappointment of herself as tutrix, it was not only the right but the duty of the under-tutor, if he thought the interests of the minor so required, to oppose her appointment and that of the new husband as co-tutor. C. C. 276, 277.

The exception, therefore, to his capacity to stand in judgment herein is without force.

As to the form of the proceeding adopted, the exception is equally untenable. The steps taken are regarded in the nature'of an opposition to the family meeting as constituted, to the homologation of its action, to any effect being given to its recommendation, and to the qualification of the tutrix, co-tutor and under-tutor named by the meeting.

This under-tutor had not been apprised of the intention to hold this family meeting and had received no notice to attend. He was not present at the meeting and did not know of its having been held until some-time,subsequent to the fact.

When he did, he took immediate steps in opposition to its action, and before the parties qualified under its recommendations.

The law requires the under-tutor to be present at family meetings. He must be present for the purpose of advising, is its imperative mandate (C. C. 276), and this family meeting held without notice to the under-tutor and without his presence is a nullity.

It is null on the other ground, too, viz: — that it was composed entirely of friends of the minors, when the fact was and is that several brothers of age of the minors resided in'the parish.' These were not named as. members in the order, were not asked to become members, were not notified to attend the meeting, and were not present at the meeting.

They should have been summoned as members. Friends may become members .of a family meeting when there is a default of relations. This is the plain direction of the law. C. C. 281, 282, 286, 287.

The foregoing suffices to sustain the judgment of the District Court declaring this family meeting illegal and ife action void.

We decline, in this proceeding, to go into the consideration of other matters not made issues by any pleading filed, but advanced in argument submitted on behalf of defendants in opposition.

Besides, having judicially alleged the fact of her second marriage, the mother can not be heard by pleas, evidence or argument to either deny it, or impeach its validity, or dispute its legal effects. Neither can she be heard to gainsay her judicial admission, made in a former suit, 'of the legitimacy of those hereinbefore referred to as brothers ;of age of the minors who should have been called as members of the family meeting.

It having come to the knowledge of the trial judge that circumstances exist which made .the appointment of a tutor to the minors necessary, his action in ordering the convocation of a family meeting of the relations of the.minors to recommend a tutor was eminently proper, and this without regard to whether or not this relief was specially asked on their behalf.

C. C. 307, 312.

We find, however, that it was asked in the petition of' opposition filed' in'these words: — “that the court take such further proceedings’as the' interest of said minors may seem to require.”

With' regard to the appointment of tutor or tutrix — on whom iF should be bestowed — the question does not properly arise herein.

Judgment affirmed.


author: Monroe, J.

text:
    No. 13,727.
    John A. Bursha, Husband, vs. Mrs. Sarah C. Lane, Wife.
    Syllabus.
    1. Where, in an action for separation from bed and board on the ground of abandonment, “the three reiterated summonses” required by Article 145 of the Civil Code are issued and served, and, after answer filed by the defendant, there is a trial in which testimony is offered, arguments presented, and the case is submitted, the judge may dismiss the suit, or he may render the judgment mentioned in the article, sentencing the defendant “to comply with such request,” or he may, perhaps, make some other tentative or interlocutory order, but he cannot, at that stage of the case, render a definitive judgment of separation.
    2. If he renders the judgment mentioned in the article, and there is a subsequent compliance with said article with regard to the notification of said judgment, there is no cause of complaint because the plaintiff, after such notification, enters a default and proves up the same after setting the easd down for confirmation of the default.
    3. Although, under C. C. 157, where there is a judgment of separation from bed and board, the judge, with the advice of a family meeting, may award the custody of the minor child to the party cast, such disposition, if made only because of the tender age of the child, should be regarded as temporary in character, and should be so qualified.
    APPEAL from the Twenty-third Judicial District, Parish of St. Mary — Allen, J.

      Henry Mayer for Plaintiff, Appellant.

      Mentz & Borah for Defendant,, Appellee.
   Statement of the Case.

The opinion of the court was delivered by

Monroe, J.

Plaintiff sues his wife for separation from bed and board and for the custody of their minor child.' He charges abandonment and alleges that his wife, with the minor, is living with her parents in the Parish of St. Mary, and that he, for the past nine or ten years, has been at Calumet Plantation, about four miles distant. He prays that his wife be summoned to return to the matrimonial domicile, and that after due proceedings there be judgment declaring a separation, etc., and awarding him the permanent custody of the child. The petition was filed March 10th, 1899, and the judge ordered that the defendant be authorized to defend, and that the summonses issue as prayed for. Upon March 11th, 1899, citation was served in the usual form and the defendant was also summoned to return to her matrimonial domicile, in the Parish of St. Mary, as prayed for in plaintiff’s petition. Similar summonses were served upon April 12th and May 10th, 1899, respectively. A judgment by default appears to have been entered upon June 22nd, and on June 23d, 1899, the defendant answered, admitting the marriage and the birth of the child, but otherwise denying the allegations of the petition. This was followed by a supplemental answer, filed October 10th, 1899, in which the defendant denied that she had ever been summoned to return to any matrimonial domicile to which the plaintiff could either invite, or summon her, and alleged that whilst the “three papers which the clerk of the court issued were so issued,” the plaintiff resided in the town of Eranklin, in a boarding house which was not a fit place for her to live in or for him to invite her to, as it was not a reputable house and was not visited by reputable people. And she prayed that her failure to go to said house be held to be justified and that plaintiff’s suit be dismissed.

It appears that, upon the day upon which this supplemental answer was filed, or the following day, October 11th, 1899, evidence in the case was adduced and closed; upon October 18th, the case was argued and submitted; upon November 22nd, there was judgment, as appears from the minute entries, “requiring the wife to comply with the order of the court, and said judgment to be served upon defendant three consecutive times from month to month.” A motion for new trial was filed on behalf of defendant November 23rd, 1899, and overruled January 29th, 1900; and, on February 2nd, 1900, the judgment appears to have been signed, ordering the defendant “to return to the matrimonial domicile in accordance with Article 145 of the Civil Code, etc., and in accordance with previous summonses, served upon her,” and directing that notification of said judgment be given and served upon her from month to month, “for three times consecutively.” Notices of said judgment were accordingly served upon the defendant upon February 8th, March Ith and April 4th, 1900, respectively. Thereafter, upon May 23rd, 1900, judgment by default was entered, and the minute entry of May 30th, 1900, reads, “Above case, fixed for to-day for confirmation of default, taken up, evidence adduced, and case submitted.” This was followed by a judgment, rendered June 14th, 1900, in favor of the plaintiff, upon the demand for separation from bed and board, but awarding the custody of the child to the mother, pending the convocation of a family meeting to advise upon the subject.

Upon October 16th, 1900, the plaintiff’s counsel asked that this judgment be signed, but defendant’s counsel objected, and the matter went over and said judgment was read and signed Oetobef 23rd, 1900. In the meanwhile, agreeably to an order of the court made October 10th, 1900, a family meeting had been called which, upon October 20th, recommended that defendant “have the guardianship and possession of the child,” and the proceedings and recommendation were approved and homologated by judgment of date October 22nd, 1900. Thereafter, the plaintiff appealed from said judgments last mentioned, i. e., the judgment on the merits and the judgment of homologation. And the defendant has filed an answer to the appeal, asking that the judgment on the merits be reversed and that plaintiff’s suit be dismissed, or, if said judgment be affirmed as to the separation, that it also be affirmed as to the custody of the child. Upon the trial, which took place October 11th, 1899, several witnesses were examined on behalf of the plaintiff and two witnesses were examined on behalf of the defendant.

The substance of this testimony is about as follows, to-wit:

That the plaintiff is an honest, sober, and industrious man, a good carpenter and mechanic, who can support his wife and child with ease, and who owns a place two miles, more or less, from the residence of the parents of the defendant, with a comfortable dwelling and other houses upon it. That, during the year. 1899, from January until the date of the trial, in October, he spent most of his time oft. his place, but visited Franklin from time to time, and more frequently after the filing of this suit, in March of that year, and that during his visits he put up at a cheap boarding house where a sister of his first wife was employed, where a little boy whom he had brought up was staying, and where it seems that his first wife, herself, had stayed. It further appears that this boarding house was kept by a poor woman, who had a worthless husband and several children, and among the latter a girl who had been betrayed and was enceinte during the early part of the year 1899 and gave birth to a child in April, or May. Beyond the fact that this girl was in her mother’s house during the time that the plaintiff was frequenting the house as a boarder there is nothing to connect him with her in any way. And there is both positive and circumstantial evidence to the effect- that there were no relations between them.

Opinion.

The plaintiff complains of so much of the judgment as awards the custody of the child to the defendant, whilst the defendant, answering the appeal, prays that the judgment of separation from bed and board be reversed, and the suit dismissed; or, in the alternative, that the whole judgment be affirmed. We will, under the circumstances, first consider the claims of the defendant.

The defendant’s counsel say; “It is perfectly plain that the evidence of abandonment introduced by the plaintiff upon the trial of the ease on October 11th, 1899, did not meet the requirements of the Civil Code, Article 145, which requires, first, three notifications from the court, as well as a judgment sentencing the defendant to comply, with three monthly, successive, notifications of the judgment. See Perkins vs. Potter, 8 Ann. 14; Bienvenue vs. Buisson, 14 Ann. 387; Merrill vs. Flint, 28 Ann. 194; Champon vs. Champon, 40 Ann. 31. But the court rendered an interlocutory judgment sentencing the defendant to return, instead of deciding the ease itself. The parties had respectively filed petition and answer, had fixed their case for trial, had adduced their testimony, and had argued and submitted their case, and were mutually demanding a definitive judgment. Upon this point, we respectfully submit that it is not within the province of the trial judge, when a ease is submitted for final judgment, to render a mere interlocutory judgment, least of all, in a suit which seeks to dissolve the family relation, should the judge in any maimer assist this dissolution by granting an order which the plaintiff has never cared to ask for; he should have passed on the case as it was presented to him by the litigants, or he should have dismissed the action.”

Prior to the trial to which the counsel refer, there had been three reiterated summonses served upon the defendant directing her to return to the matrimonial domicile, followed by the entry of a judgment by default, which, in turn, was set aside by the filing of an answer and supplemental answer. And in that condition of the ease, the parties went- to trial, and testimony was taken (of which the substance has been stated) with a view, so far as the defendant was concerned, of showing that there was no matrimonial domicile to which she could properly return. The judge a quo was evidently of 'the opinion that this testimony failed of its purpose and he rendered judgment sentencing the defendant to comply with the direction to return, etc.

We quite agree with our learned brother as to the conclusions reached and the action taken by him. The plaintiff had a domicile which was open to the defendant and to which she was invited, and the introduction of the boarding house and its inmates into the case, proved to be irrelevant and unnecessary. The plaintiff was merely a transient boarder, and the theory that he was inviting his wife there, as to the matrimonial domicile, when he had a comfortable residence in which he was then living, is without support. As to the character of the boarding house, beyond the fact that the poor woman who kept it seems to have been having a hard time in her effort to support a worthless husband and a number of children, and that her daughter had been betrayed, under promise of marriage, by a man who had disappeared, there is nothing in the record against it. The plaintiff had, apparently, known the people before and we can discover no sufficient reason for his not boarding there during his visits to Franklin, or for criticising him for having done so. Article 145 of the Civil Code, in so far as it is pertinent to this point, reads: “The abandonment * * * must be made to appear by three successive summonses, made, * * * from month to month, directing him or her to return to the place of matrimonial domicile, and followed by a judgment which has sentenced him or her to comply with such request, together with a notification of the said judgment, given' him or her from month to month, for three times successively.” Upon the 11th of October, 1899, the “three reiterated summonses” having been served, and the judge, having heard whatever testimony the parties thought fit to offer at that stage of the case, the only thing that he could do was either to dismiss the suit, if he found from- the evidence that the defendant had not abandoned the plaintiff, or that the plaintiff had provided no matrimonial domicile to which the defendant could return; or else, to render the judgment, which he, ini fact, rendered, sentencing the defendant to comply with the summonses which had been served upon her. And, considering the evidence presented to him, the only proper course for him to pursue was to render the judgment which is now before us for review. There is nothing to 'the contrary in the cases cited in the brief of counsel, or elsewhere in our jurisprudence, so far as we are informed.

The suggestion that the judge ought not to have rendered the judgment sentencing the defendant to return, etc., because it was not •specifically prayed for, is without force. The prayer of the petition is “* * * that she be summoned to return to the matrimonial domicile, according to law; that after hearing, citation, and proper summonses, as required by law, petitioner do have judgment * * * decreeing a separation from bed and board, looking finally to a divorce; that he be decreed the permanent custody and keeping of his minor child, John Bursha, for costs and for general relief.” Considering that the judgment in question was but a form of summons provided by law, as an additional step in the proceedings required to reach the final judgment prayed for, we think it was abundantly justified by ¿he prayer as made. Moreover, no such objection was made in the lower court, although it ought to have been known to the defendant that the definitive judgment which the counsel say they were demanding could by no possibility have been rendered unless the judgment in question had previously been rendered and the defendant had been notified thereof from month to month for three months.

It is said that the course subsequently pursued by the plaintiff, and by the judge a quo, was irregular and unauthorized, and that, the case having been put at issue, fixed and tried, there was no authority for, thereafter, entering judgment by default and setting said case down for confirmation of default; and the counsel refer us to various articles in the Code of Practice regulating the trial of, and the taking and proving up of judgments by default in ordinary eases. But this case, as the authorities cited in the excerpt from the counsel’s brief show, was not to be tried as an ordinary case, but was to be tried in the particular method prescribed by Article 145 of the Code of Practice. Hence it was necessary that there should be -two judgments rendered (though one is ordinarily sufficient), the first directing the defendant to return to the matrimonial domicile; and, three months later, upon its being then made to appear that, although notified three times of said judgment, she still failed to return, without giving sufficient reason for such failure, the second judgment, decreeing the separation as prayed for.

The remaining question is whether it was competent for the trial judge, whilst rendering judgment in favor of the plaintiff upon the demand for separation from bed and board, to award the custody of the child to the defendant. The judge appears to have relied upon the authority of Article 157 of the Civil Code which provides: “that in all cases of separation, the children shall be placed under the care of the party who shall have obtained the separation, unless the judge shall, for the greater advantage of the children, and with the advice of the family meeting, order that some, or, all of them, shall be entrusted to the care of the other party. In all cases of divorce the minor children shall be placed under the tutorship of the party who shall have obtained the divorce.” The minor in the case at bar appears to be a little boy who was about five years of age when the proceedings» of the family meeting which recommended that he be left with his mother were homologated. There is nothing in the record against the mother except her persistent abandonment of the husband whom she had solemnly'obligated herself to cleave unto, forsaking all others, and we do not feel authorized on that account, at this time, to interfere with the disposition which has been made of their child, who, it was hoped, when the ease was here three years ago, would' draw his parents together. We think it proper to observe, however, that this disposition should be regarded as merely temporary; as having been made mainly out of consideration for the tender age of the child, and as liable to be changed hereafter upon the application of the plaintiff to thd District Court, since, aside from the question of age, there is no reason disclosed in the record why the child should not be committed to the care of his father; and the judgment appealed from will be so modified as to leave no doubt of the future control of the District Court over the subject.

It is therefore, ordered, adjudged and decreed that the judgment-appealed from be amended to the extent that the custody of the minólas awarded to the defendant shall be held by said defendant subject to such further action as the District Court may see proper to take upon the application of the plaintiff, and subject to such final judgment of divorce as may hereafter be rendered between the parties, if any such there shall be. It is further ordered, adjudged and decreed that, as thus amended, the said judgment be affirmed, the appellee to pay the costs of the appeal.