text:
    No. 6426.

    Pauline Beauregard vs. Theodore Leveau.
    The general mortgage on the property of a tutrix, in favor of her minor child, may, on the advice of a legally constituted family meeting duly homologated, be legally postponed in favor of a special mortgage on the property, executed by the tutrix in order to obtain means to make repairs, and pay taxes on the property, and provide for the proper maintenance, and education of the minor. And where the minor has enjoyed the benefit of the money borrowed by the tutrix on such special mortgage, the minor will be thereafter estopped from interfering with any rights of property aeauired under said special mortgage, or derived from its foreclosure.
    ^PPEAL from the Fifth District Court, parish of Orleans. Cullom,

      Julien A. Seghers and F. D. Seghers for plaintiff and appellant.

      Charles Louque for defendant and appellee.
   The opinion of the court was delivered by

Manning, C. J.

In February 1873 Madame Marie Beauregard, the widow of Paul Beauregard and mother of plaintiff, presented her petition to the Second Court of this City, alleging that she was under the necessity of borrowing about two thousand dollars to pay the taxes upon her property, to defray the cost of urgent repairs of it, and to pay the expenses of educating and maintaining her only child, but that she could not obtain any loan of money because the only security she had to offer was a mortgage upon her property, and it already stood affected by the general mortgage in favor of her child (the plaintiff) resulting from her tutrixship. She prayed the convocation of a family meeting to advise upon the propriety of granting a priority of mortgage over the child’s general mortgage to any one who would lend her the required sum. The meeting was held — the result of the deliberations was that she was authorized to postpone the general mortgage of her child to the special one in contemplation' — the'advice of the family meeting was approved by the judge and a decree entered accordingly — and the defendant loaned her the money and she executed the mortgage.

When the child became fifteen years old, she was partially emancipated. Her mother then filed an account of the succession of her deceased husband, shewing an inventory of $9342.00 of which $4300 was the estimated value of the slaves, and the residue notes of different. parties and an inconsiderable quantity of furniture. There were some charges on the other side of the account, and a balance struck, admitting an indebtedness to the plaintiff, the only heir, which was increased on her opposition to the account to $3806.50, for which she had judgment. This was in August 1874.

Leveau had already, on the maturity of the note, obtained an order of seizure and sale, and the mortgagor had appealed, but on motion of the plaintiff in the order, her appeal was set aside; The under tutor of the minor then injoined the execution of the order, and his injunction was dissolved. The sale took place and Leveau bought. In Oct. 1874 this suit was instituted. Trial was delayed until the plaintiff became fully emancipated, when she became a party, adopting all the allegations made for her in the original petition.

She alleges that she is a creditor of her mother for the sum and in the manner already set forth, and has a general mortgage upon all of her mother’s property to secure the payment of her debt — that the defendant is the possessor of the property upon which her mortgage rests, under his purchase in foreclosure of his own mortgage, and she demands that he pay the judgment against her mother, or surrender the property.

The answer Of the defendant is a geheral denial, and a special plea of all the matters recited already which postponed the mortgage of plaintiff to that of defendant — a denial that these proceedings were otherwise than regular, and if irregular, that they can be treated as absolute nullities, but must be attacked directly — and an allegation that the plaintiff’s mortgage was never properly recorded. There was also pleaded res adjudieata in the injunction suit of the under tutor, and a charge that the judgment of plaintiff against her mother was collusive and fraudulent.

The case is stronger for defendant than Hickman v. Thompson, 24 Annual, 264 and 26 Annual, 260, cited by his counsel with the wrong volumes and the wrong pages, for in that, there were no proceedings to postpone the minors’ mortgage, nor was the money borrowed for their maintenance, or to keep the property in repair, or to prevent its sale for non-payment of taxes.

In Fontenette v. Veazey, 1 Annual, 236 where the mother and natural tutrix convoked a family meeting for the same purpose as in this case viz to postpone the minors’ mortgage, to enable her to borrow money to repair her dwelling which was falling into decay and ruin, it was objected that the legal mortgage of the minors could only be removed in the mode pointed out by the Act of 1830, the Court say;— The act of 1830 presents no obstacle to the release of the tacit mortgage in favor of minors in cases like the present, nor has it reference to such cases. Among the duties which devolve upon tutors are those of providing for the maintenance, health, and personal safety of their wards, in the execution of which the property of the minor himself may be sold, and if necessary, the capital may be used. In the present instance property subject to the minors’ mortgage has been sold for purposes for which their own might have been validly alienated.

The property of the paintiff’s mother and tutrix in the present case, like that of Eontenette, was in need of repair, and in addition to that need unpaid taxes were hanging over it. The money borrowed was in part wanted for the conservation of the property. Without it, a sale for taxes might have accomplished its alienation, or the further progress of decay would have rendered it uninhabitable, and destroyed or decreased its value by the dilapidation of the houses. Another part of the money borrowed was needed for the education and maintenance of the child whom the mother naturally and laudably desired to fit for the active duties of life. She has received the benefit of the defendant’s money, and does not propose either to-return it to him, or to pay back or allow to her mother that part of it which was expended exclusively for her benefit. In the account filed by the mother there was no mention of these charges, and it was opposed by the daughter, not because it failed to charge her with her education and maintenance, but because the mother had not charged herself with one half of the price received for a slave sold after the father’s death.

The formalities of law were complied with in the proceedings of the family meeting. The relatives and friends of the plaintiff advised the borrowing of the money for needful purposes. There is no pretence that it was applied wrongfully, and it is against law, and yet more against equity and good conscience, that the plaintiff should enjoy the benefits derived from the defendant’s loan, and' wrest from him the security specially hypothecated to secure its return, without making that return herself.

It is said by plaintiff’s counsel that Eontenette’s case has been overruled by Fleetwood v. Bordis, 19 Annual, 55. If so it is itself overruled.

Judgment affirmed.


source: Caselaw Access Project

author: Marr, J.

license: Public Domain

text:
    No. 6892.
    The State vs. Jim Johnson.
    A verdict of conviction in a criminal case will not be set aside, and a .new trial granted, on the ground that one of the witnesses for the State has made unsworn statements since the trial, which contradict his testimony on the trial; especially when it appears that in the opinion of the judge below the testimony given by other witnesses on the trial fully warranted the conviction.
    When an indictment for the larceny of an animal charges the crime of larceny with all the fullness, and precision required by law, the addition of the words “ and kill,” will be treated as mere surplusage. - They will not change the character, or lower the grade of the crime charged.
    APPEAL from the Eighth Judicial District Court, parish of St. Landry. Hudspeth, J. Trial by jury.

      H. N. Ogden, Attorney General, for the State.

      Kenneth Baillio and John H. Ogden for defendant.
   The opinion of the court was delivered by

Marr, J.

The accused, Jim Johnson, was tried and convicted under an indictment which charges that he “ feloniously did take, steal, and carry away and kill, one beef ox, etc., of the value of thirty dollars, of the goods and chattels,” etc.

He moved for a new trial on the ground that since the trial he had discovered new and material evidence: “ That, since the trial, one Yalery Guidry, the principal State witness, told George Reeder and Martin Parks, competent and credible witnesses residing in St. Landry parish, that he knew of his own knowledge that your petitioner did not kill the ox he was charged with killing in the indictment filed against him in this suit, but that he (Yalery Guidry) himself had killed the ox which your petitioner was charged with killing as aforesaid; and further that said Guidry told them that he had testified against your petitioner for the purpose of clearing himself.”

The bill of exceptions informs us that the motion was overruled on the grounds—

“ First — -Because the affidavits of the newly-discovered witnesses, alleged in the application to be residents of the parish of St. Landry, were not produced or their absence accounted for.
“ Second — Because the newly-discovered evidence went to impeach the character and credit of the witness, Yalery Guidry.
“ Third — Because, even granting that the witnesses had testified as set forth in the application, and thereby impeached the witness Guidry, the State could still have rested its case on the testimony of other witnesses testifying in the case, and whose names appear upon the reverse of the indictment.”

The accused was sentenced to the Penitentiary for two years, and he has appealed.

As a general rule, we think new trials should not be granted on the unsupported affidavit of the party convicted that he could prove statements made by one of the witnesses, after the conviction^ which would tend to show a state of facts different from that to which he had testified as a witness on the trial. Much more importance is due to the testimony of a witness given in open court, under the solemnity and. sanction of an oath, on the trial of a cause, than to any statements which he may have made on some other occasion, either before or after the trial.

The newly-discovered evidence would simply have shown that Guidry had made, not under oath, statements contradicting those which he made as a witness, on the trial; but this would not prove that he had testified falsely on the trial.

The names of five witnesses are on the reverse of the indictment, one of whom is the person stated in the indictment to have been the owner of the ox; and, while we áre not informed as to what facts they .proved or testified to, we may fairly infer, and we must presume from the statements of the judge, as set forth in the bill of exceptions, that the proof by the other witnesses, without the testimony of Guidry, sufficed to warrant the verdict. It would be quite improper for a judge to grant a new trial on the ground of newly-discovered' evidence which, at best, would show that one of the witnesses was unworthy of belief, when there were four other witnesses, whose testimony is not impeached, and who, in the opinion of the judge who heard them, sufficiently proved the guilt of the accused.

The offense charged in the indictment is petty larceny, the punishment of which is imprisonment in the parish prison, or in the Penitentiary, at the discretion of the court, for not more than two years. Acts of 1874, p. 223, sec. 8.

There is an offense of a lower grade, that is, the wanton or malicious killing of certain domestic animals, punishable by fine not exceeding $200, or imprisonment not exceeding six months, and the payment to the owner of the value of the animal killed. But that is not the offense charged in the indictment, which is petty larceny, set oiit in the most precise legal terms, “feloniously did take, steal, and carry away,” etc. The addition of the words “ and kill ” does not change the character of the offense. These two words might be stricken out, for they are mere surplusage. No matter what became of the ox, the offense was complete by the felonious taking, stealing, and carrying away. It may be that Guidry testified falsely; and that he alone, of all the witnesses, swore to the killing of the ox. The accused does not state in his' affidavit that he expects to prove by any witness that he did not feloniously take, steal, and carry “ away ” the ox ; and if it were true, and had been proven on the trial, that he did not kill the ox, but that Guidry did, it might still be true, and it might have been proven by the other witnesses, that the accused did “ feloniously take, steal, and carry away ” the ox, which Guidry killed. The killing of the animal stolen is not an ingredient in the crime of larceny; and the punishment imposed upon the accused by the sentence of the court is that prescribed by the statute for the offense charged in the indictment, petty larceny.

The district court did not err .in refusing the new trial; and the judgment is therefore affirmed with costs.


author: Manning, C. J.

text:
    No. 6865.
    State ex rel. Julia A. Ventriss vs. the Parish Judge of Iberville Parish.
    A mandamus will issue to compel the judge of a lower court to grant an appeal from any interlocutory decreo of the.bourt which works an irreparable injury to the party praying for the appeal. ■
    PPLICATION for a mandamus.

      Barrow & Pope for the relator.
    Respondent for himself.
   The opinion of the court was delivered by

Manning, C. J.

A partition had been ordered in a suit in the parish court of Iberville, wherein the relatoris plaintiff and the heirs of J. N. Brown are defendants, and the parties were referred to a notary to proceed therewith. After forming the active and passive masses of the succession, and stating the manner of partition by shewing the sums due to and from each, Isaac D. Brown, one of the parties, presented written objections and asked that they be referred to the court for decision, which the notary refused to do, considering them not material. Thereupon the objector obtained from the judge an order directing the notary to suspend further proceedings in the partition until his objections could be heard and determined by the court, and the relator then demanded that the notary should proceed with the partition, but the notary refused to proceed further, and returned his proces verbal in obedience to the mandate of the judge.

The plaintiff in the partition suit- (relator here) then moved the court to homologate the partition as set forth in the proces verbal of the notary. The judge refused to permit her to file the motion, and ordered that the filing'which had been made of the proces verbal be stricken therefrom, and the proces verbal be returned to the notary. The relator then prayed an appeal from the orders then made, ■one of which was a refusal of the prayer for citation to the heirs defend■ants to shew cause why the partition should not be homologated. It was refused. The relator then applied for a mandamus, which being granted, the judge filed his answer, and it is now before us.

The cause is in this anomalous condition. The notary can not pro■ceed to the completion of the partition, because the judge has ordered him to stop until he can hear and pass on certain objections made thereto. The judge can not hear and pass upon these objections, because he has ordered the proces verbal and the objections to be taken out of his court and returned to the notary.

Obviously there is a dead lock in the partition suit, and if the proceedings remain in statu quo, there never can be any thing more done towards effecting the purpose for which the suit was brought. Herein lies the irreparable injury to the relator.

The judge grounded his order to send back the proces verbal on the assumption that the notary had acted in contempt of his order not to proceed further in the partition until the objections could be heard. He acted on a misconception which would have been corrected by reading the proces verbal of the notary. That officer desisted when he was ordered to desist, but it appears the plaintiff thought he had gone far enough in the partition, before the order to desist was made, to make it sufficiently complete for homologation, since she did move for such homologation.

■The only way to disentangle the suit is to grant the appeal. Therefore

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


author: Spencer, J.

text:
    No. 6767.
    State ex rel. J. B. Martin et al. vs. the N. O. & Carrollton R. R. Co.

      A legal by-law of a corporation wilieh provides that no shares of its stock shall be transferred on its books, until the certificate thereof has been surrendered to its president, or shown to be lost, is binding on all its stockholders, and then-heirs. Before the heirs of a deceased stockholder can compel the corporation to transfer shares, or pay accrued dividends to them, they must comply with the requirements of the by-laws.
    APPEAL from the Sixth District Court, parish of Orleans. Bightor, J.

      Louque & Fernandez for relators and appellants.

      Sam. P. Blanc and'A. E. Simonds for defendants and appellees.
   The opinion of the court was delivered by

Spencer, J.

Relators allege themselves to be the pure and simple heirs of Dr. E. Martin, duly recognized as such by the Second District Court of Orleans, which ordered them, as such, to be put in possession of all the effects of said deceased. They further allege that E. Martin was at his death the owner of six shares of the capital stock of the New Orleans and Carrollton Railroad Company, and that there were accrued and unpaid dividends due upon said stock to the amount of $460. They allege that they have demanded of said company the payment of said dividends, and the transfer of said shares on the books of the company from the name of E. Martin to that of relators; that said company, in violation of its charter and relators’ rights, refuses to pay said dividends, transfer said stock, or issue them certificate therefor. Wherefore they pray for a mandamus to compel compliance with their demands.

Respondent excepted to relators’ right to proceed by mandamus, and filed a sworn answer, setting forth the facts that there did stand on the books six shares of stock in the name of E. Martin, with $462 accrued dividends thereon, but averring that said E. Martin had pledged his certificate therefor to one Victor Ronmage, of which pledge the respondents had been notified. That by the thirteenth section of respondent’s by-laws it is expressly provided that “no transfer of stock can be made, except on the books of the company, by the surrender of the certificate thereof to the president, who shall see that the same be canceled by writing ‘ canceled ’ prominently across the face thereof and the erasure of the president’s signature therefrom before issuing a new one,” etc. If this by-law is not in conflict with the charter or otherwise illegal, it is binding on all the stockholders and their heirs. In other words, it is for them the law. There is no pretense that the by-law i& contrary to the charter or otherwise illegal. There is no pretense that the certificate issued to E. Martin is lost; so that it would fall under the provision made for such case. What attitude then do plaintiffs occupy? They claim as heirs of E. Martin, a stockholder, and seek by mandamus not only to recover a sum of money, but to compel the officers of the company to violate the Jaw prescribing their duties. ' The law which governs them says no transfer of stock shall be made, no new certificate shall be issued (except in qase of loss) until the original certificate is surrendered and canceled. The Code of Practice, article 835, says a writ of mandamus may be directed to corporations “ to compel them * * * to perform the * *■ * duties required by their charters.” It would be a strange abuse of the writ to use it to compel them “ to violate the duties required by their charters.” It is manifest relators have mistaken their remedy.

The judgment below rejected their application, and it is affirmed, with costs of both'courts to be paid by relators.


text:
    No. 6917.
    R. R. Barrow vs. Jules Lapene John B. Pitman, Intervenor.
    A defendant who pleads certain exceptions to the suit against hini, is, so far as the exceptions are concerned, a plaintiff, and hence must prove the exceptions.
    Thus, when the purchaser of property at a tax-sale, who is sued by the former owner for the recovery of the property, excepts, that the plaintiff must re-imburse him what he has paid for the property, and which inured to the benefit of the plaintiff, before the latter can demand the recovery of the property, such a purchaser must in order to maintain his exception show the precise amount that he is entitled to be re-imbursed.
    APPEAL from the Fifteenth Judicial District Court, parish of Terrebonne. Beattie, J.

      Goode & Winder and Illsley & Son for plaintiff and appellant.

      L. J?. Suthron for defendant.

      J. S. Whitaker for intervenor.
   The opinion of the court was delivered by .

Spencer, J.

Plaintiff sues to annul a tax sale to defendant of two sugar plantations in Terrebonne, alleged to be worth $150,000. The nullities and illegalities alleged are numerous and formidable. Among them, it is charged, that there were no taxes due on said property at the^ time of its sale for taxes — the same having been paid by plaintiff, who held the collector’s receipt therefor. Pitman, a mortgaged creditor of Barrow, intervened and claims right to redeem.

The defendant filed numerous exceptions to plaintiff’s action, only two of which are insisted upon, to wit:

First — That plaintiff could not institute this suit until he had made a tender to respondent of the full amount of taxes paid by him.

Second — That plaintiff’s petition discloses no cause of action.

We are utterly unable to appreciate the argument of defendant in support of this second ground of exception. If a tithe of the illegalities and nullities charged by plaintiff exists (and-for the purposes of this exception his allegations must be taken as true), defendant’s title is hopelessly bad. There are abundant causes of action alleged.

On the trial of these exceptions, no proof was offered or administered by either party. It was the duty of the defendant excepting to tender proof of the grounds of his exception, if they were not apparent from the record. Defendant was plaintiff in exception. He did not even allege, much less prove, what (if any) amount of taxes due by plaintiff, and privileged, on said property had been paid by him. Plaintiff charged that there were none.

We think it to be well settled that a party to a judicial or tax sale, seeking to annul it, must first tender to the purchaser re-imbursement of the sums paid by him in discharge of his bid, and which inured to the benefit of the attacking party. To allow the seized debtor to take back his property without this re-imbursement would be to violate elementary principles of law and equity. And if this want' of tender is pleaded in limine, and the amount is apparent or made to appear, plaintiff should not be allowed to sue until it’ is tendered. See Brown vs. Bouny et al., lately decided. Also 24 An. 324. But before such an exception can be sustained it must surely be made to appear to the court that there is re-imbursement due. There is no proof in this record from which it can be properly inferred. The exception should have been overruled — leaving the defendant to set up in his answers a claim for re-imbursement of the taxes paid (if any), and to be maintained in possession until re-imbursed. It is manifest that at this stage no judgment can be rendered on intervenor’s demand.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be avoided and reversed, and it is now ordered that defendant’s exceptions be overruled, without prejudice to his rights to demand re-imbursement, in ease of ¿viction, of such sums as he may have lawfully paid as the price of the adjudication to him, and that this cause be remanded, as to all parties, to be proceeded with according to law, defendant and appellee paying costs of appeal.


text:
    No. 6911.
    The State vs. Alfred Ford.
    It is so absolutely necessary to the validity of criminal proceedings and the verdict found thereon that a plea on his behalf should be filed to the indictment found against the accused, that the failure to file such a plea will vitiate the proceedings, and justify the setting aside of the verdict.
    The presence of the accused, at the time the verdict against him for a felonious offense is received, is essential to the validity of the verdict.
    Under an indictment for one offense a legal conviction can only be had for another offense of less magnitude, when the latter offense is of the same nature, or kind, as the one charged. Thus, under an indictment for burglary, a verdict convicting the accused of petit larceny is invalid.
    APPEAL from the Fifteenth Judicial- District Court, parish of Terrebonne. Beattie, J.

      H. N. Ogden, Attorney General, for the State.

      Thos. L. Winder for defendant.
   The opinion of the court was delivered by

Manning, C. J.

The defendant was indicted for burglary — for burglary and grand larceny as he alleges — was convicted of petty larceny — and was sentenced to two years’ confinement in the Penitentiary, and appeals from that judgment.

The assignment of errors in this court states two grounds for setting aside the verdict. The first is, that no plea was ever entered by the accused, and the second, that he was not in court from the time of his arraignment until he was sentenced, and therefore was not present during the trial.

The record informs us that the accused appeared at the bar, and was arraigned, and through counsel asked permission of the court to withhold plea, which was granted. The trial was on Oct. 6, if the transcript of appeal be correct, when the jury was empanelled, the case tried, and the verdict rendered. On the 18th., “ the accused per counsel appeared in court, and after leave, filed a motion for a new trial.” We do not find among the grounds then set forth, that the accused was not present at the trial, nor is there any explanation of the cause of this extraordinary departure from the well-settled rules governing criminal procedure. The counsel for the prisoner does not appear to have demanded his presence, and to have been refused by the judge, nor does the judge appear to have ordered that he be produced in court.

It is so essential that a plea should be made to the indictment that its absence, of itself, vitiates the trial. It can not be dispensed with by request of the prisoner. It can not be omitted even if he refuses to make it. Our law provides that if he stands mute, and will not answer to the indictment, the plea of not guilty shall be entered for him. Rev. Stats. 1870 sec. 996.

The absence of the prisoner during the whole of the trial, and particularly his absence at the rendition of the verdict is more than an irregularity. It is fatal to the legality of the trial. It is of universal requirement that a person who is tried for a felony must be present when the verdict is received. People v. Perkins, 1. Wend. 91.

The mode of conducting the formal parts of a judicial public prosecution for crime has been greatly changed, more because of an unwise contempt of ancient forms than through alterations of the law. Where these changes have been ordained of law, observance of them is of necessity. But a loose practice has latterly prevailed of omitting all those formalities which, until very modern times, were thought becoming in a court to observe when about to proceed in an inquisition, the effect of which may be the deprivation of the life or liberty of the party accused. The solemnity of an arraignment after the ancient mode has its uses. The propriety of requiring the accused to deliver his plea ore temos, with uplifted hand, is demonstrated by its omission in this case. Evidently it was forgotten that he had not pleaded, and it would not have been forgotten, had the time honoured ceremony been duly gone through with in all its parts. Curiously enough, the only part of the ancient ritual, which in actual practice is retained, is the question, ‘ how will you be tried,’ which, since the abolition of all the common law methods of trial but that of jury, haa lost its significance.

The prisoner moved in arrest of judgment, that it could-not be rendered against him on a conviction of petty larceny under this indictment, because he had not been prosecuted for that offence, and the verdict is not responsive to the charge as-laid in the indictment.

The indictment contains but one count, and it is well settled that only one substantive charge can be laid in each count. Thus it has been held, where an indictment, containing 'one count, charges the defendant with rude behavior in a meeting-house, and with disturbing public worship, these two distinct offences, joined in the same.count, was fatal to the indictment. Commonwealth v. Symond, 2 Mass. 163. Two distinct offences, requiring different punishments, can not be charged in the same count. Such an indictment is defective for duplicity, and a conviction upon it will be reversed for error. Reed v. the People 1. Parker’s Crim. Rep. 481. Burglary and grand larceny therefore can not be included in the same count, but this indictment charges but one offence. Of course it is no objection to an indictment that two or more offences, upon which the same or a similar judgment may be given, are contained in different counts.

Where one has been indicted for an offence, he may be convicted of one of less magnitude, provided the offences be of the same nature or class; for example, upon an indictment for murder, the prisoner may be convicted of manslaughter — upon an indictment for an assault with a dangerous weapon, or with intent -to kill, there may be a conviction for an assault. The reason is, that these offences belong to the same class —the same kind of evidence is applicable to the one as to the other. They differ in degree, and not in kind. If the evidence is insufficient to warrant a conviction for the offence of greater magnitude, it may support a conviction for that of lesser magnitude, and judgment upon such a verdict has long been allowed under the modern criminal law.

The offence of burglary is quite distinct from that of larceny. They belong to different families of crime, and it would be an enlargement of the rule, not warranted by authority or precedent, to hold good a conviction for one of them upon an indictment for the other. The test is that the two offences — the one charged in the indictment, and the other contained in the verdict — must be of the same generic class, where the indictment for the greater contains all the necessary substantive allegations necessary to let in, proof of the lesser, sp that if the proof fails to establish all the allegations of the indictment sufficiently to warrant a conviction for the offence therein described, but at the same time shews that the accused is guilty of a substantial offence, necessarily contained in the terms of the indictment, the jury may convict of the minor offence.

The judge who tried the cause was of opinion that the conviction for petty larceny under this indictment for burglary was not good, but as the State had no appeal, conceived it to be his duty to reject the motion in arrest of judgment, and grant the appeal to the prisoner.

There has been no lawful trial of the accused. Therefore

It is ordered, adjudged, and decreed that the verdict of the jury'be set aside, and the judgment rendered thereon be annulled and reversed, and that this cause be remanded to the lower court for a new trial of the prisoner, who is ordered to be held in custody to await the same.


author: DeBlanc, J.

text:
    No. 6867.
    State ex rel. W. C. Williamson vs. the Judge of the Fourteenth Judicial District.
    Where the defendant in an executory proceeding enjoins the seizure and sale, ou the ground that the mortgage debt is prescribed, he is dispensed from the necessity of giving a bond.
    In a suspensive appeal from a judgment dissolving an injunction without damages, the amount of the appeal bond need only exceed by one half the costs, which the appellant was condemned by the judgment to pay.
    jl^PPLICATION for a mandamus.

      Cobb & Gunby for relator.

      R. W. & R. Richardson for respondent.
   The opinion of the court was delivered by

DeBlanc, J.

The executors of J. P. Crosby applied for and obtained an order of seizure and sale of property mortgaged to secure a note of $4013 subscribed by R. C. Williamson and J. C. Hutson.

The execution of that order was enjoined by said Williamson, on the ground that the action for the recovery of the debt evidenced by said note is barred by prescription.

The injunction having been granted for one of the causes specified in art. 739 of the C. P. no security was required from the defendant in the proceeding for a seizure and .sale.

The injunction so taken was dissolved without damages, and — on motion of Williamson’s counsel — a suspensive or devolutive appeal was allowed him in the alternative — the bond to carry up the latter to be for one hundred dollars, and the former of a sum one half over and above the amount of the note hereinbefore mentioned.

He refused to give either of said bonds, and — for the suspensive appeal — tendered' one of five hundred dollars. The bond so tendered was refused',' and relator seeks, by mandamus, to compel the judge to reduce to five hundred dollars the amount of the bond to be furnished by him for a suspensive appeal.

In answer to the mandamus, the judge said:

1st. That, in, his opinion, when an injunction has been obtained, under article 739, C. P., restraining the execution of a writ of seizure and sale, and has been dissolved without damages, no discretionary power is vested in the judge to fix the amount of a suspensive appeal bond, but that it is to be governed by article 575 C. P.

2d. That such a judgment is in the nature of a nonsuit, and in effect decides that the order of seizure was properly granted, and that the sheriff should proceed to collect the debt by a sale of the mortgaged property. The injunction is merely an accessory remedy. There is no other judgment to be executed except that ordering the sale of the property enjoined, and it is to prevent this that a suspensive appeal is asked for.

Two distinct decrees now stand against Williamson — an order of seizure and sale, and that dissolving the injunction arresting the execution of said order: both of said decrees are appealable — the last alone has been appealed from and that one is only for costs — which, considering the amount of the bond fixed for a devolutive appeal, could not have exceeded the sum of one hundred dollars. The bond tendered by relator is for five times that amount.

The Code of Practice leaves — it seems — -no doubt on this subject: it provides that “the appeal taken within ten days after the judgment &c. shall stay execution, if the appellant gives his obligation for a sum exceeding by one half the amount of the judgment. In this case, Williamson has appealed from a decree condemning him to pay the costs of the suit, and the bond required to suspend the execution of that decree can neither be measured nor fixed by the amount of the mortgage note, or by reference to the order of seizure and sale from which no appeal has been taken.

As to the parties’ right to an appeal, and as to the form, the conditions, the effects of an appeal, the constitution and the law make no distinction between those taken from judgments maintaining or dissolving injunctions granted with or without bond, and we can make none. The reasons relied upon by a majority of the court, for discriminating between such appeals in “ State ex rel. Mrs. Sarah Richardson vs. the Judge of the 14th District,” do notremove our conviction that the decision of said court; in “ State ex rol. W.' & H. Stackhouse vs. the Judge of the 5th District,” contains a correct interpretation of the law on this subject.

21 A. 152. 25 A. 653. 19 L. R. 171. 29 A. 793.

The law is so clear, so free from doubt, that its letter can not be disregarded, under the pretext of pursuing its spirit. It may be that it ought to be amended or changed, that — as it is — it leaves the door too wide opened to groundless defences, to the litigation often resorted to to gain delay; but — until changed or amended, it must be enforced as enacted.

It is, therefore, ordered that the mandamus issued in this case be and is hereby made peremptory at defendant’s costs.


author: Marr, J. Egan, J. Manning, C. J.

text:
    No. 5453.
    Miguel Avendano vs. I. W. Arthur & Co.
    Where the evidence shows that the parties intended, originally, that the contract of lease should be reduced to writing, neither will be bound until it is signed by both.
    REPEAL from the Fifth District Court, parish of Orleans. Cullom,

      George L. Bright for plaintiff and appellee.

      Singleton & Browne for defendants and appellants.
   The opinion of the court was delivered by

Marr, J.

This suit was brought on the sixteenth May, 1873, with the usual provisional seizure, to recover the balance of rent alleged to be due, and to become due, on a three-years’ lease, beginning first October, 1871, ending thirtieth September, 1874, at $266.66 2-3 per month, payable on the first of each and every month.

The defendants denied that they had made a lease for three years as alleged. They also answered that:

“ These defendants specially deny that they ever took a lease of the premises for the time alleged in the petition. Such a lease was spoken of between the parties in interest, and these defendants would have made such a lease had the conditions agreed on been complied with.' These defendants stated that they would make a lease for the time specified in the petition provided the premises were put in good, genteel, and tenantable condition. That the plaintiff neglected and refused to put the premises in such condition, and these defendants refused to sign the lease and monthly notes for the rent thereof presented by the plaintiff to the defendants to be signed by these defendants for the purpose of consummating and completing said contemplated lease. That these defendants specially deny that said contemplated lease (as alleged in the petition) was ever in fact entered into, but these defendants have continued to occupy said leased premises by operation of law; viz., by the month only.”

The judgment of the district court was in favor of plaintiff, with landlord’s lien and privilege on the property provisionally seized for arrearages, and for rent to become due for eighteen months; that is, for one month, due first of October, 1872: for seven months, due on the first day of each month from June to December, 1873, inclusive; and for ten months, due on the first day of each month from January to October, 1874, inclusive, subject to a credit for rent for one month paid after the institution of the suit. From this judgment defendants appealed.

The term commenced on the first of October, 1871; but the premises were vacant, and defendants, with the permission of plaintiff, went Into possession in September. Defendants did not sign either a lease, or notes for the monthly rent. Up to May, 1873, when the rent would have amounted to $5066 66§, payments had been made amounting to $4800, leaving $266 66§, or the rent for one month, unpaid at the time suit was brought. A receipt was introduced showing that a payment on the sixteenth November, 1872, was imputed to the rent due first of October, 1872; so that the defendants at the time the suit was brought owed for the month of April, due first of May, 1873.

On the thirty-first of August, 1872, defendants wrote to plaintiff that they did not want the property at the rate they had been paying; and that an entire new ground floor and a new covering to the shed were necessary to their continued occupancy on any terms. Plaintiff answered that defendants had rented for three years from first of October, 1871; and that they would be required to comply with their contract; that he would make any repairs the law required .him to make; and that he was then having a new slate roof put on, “ although you never made any request to repair it, and we have never refused to make any necessary repairs.”

Arthur says the slate roof had been put on previous to my writing this letter. I had called Mr. Avendano’s attention to the shed roof repeatedly, but I never wrote to him and made a special statement until that time.”

The day after the suit was brought, which interfered with the compromise which Arthur & Co. were making with their creditors, defendants, through their attorneys, offered to pay the rent due, and to secure that to become due, up to first of October, 1873: and they added that defendants would not recognize the lease beyond’ that date, and would go into bankruptcy first. We find in the record no answer to this.

On the tenth of July, 1873, defendants gave plaintiff formal notice In writing that they would vacate the store on the last day of that month; and that they would be ready to deliver possession on the first day of August. Plaintiff answered that when defendants tendered the leased property he would rent it for their account, and credit them with the proceeds, if any; and that he would go on with the suit.

On the thirty-first July defendants wrote to plaintiff, surrendering the property and tendering the keys; and plaintiff answered that he would, if possible, rent the store, and credit defendants with the proceeds, without prejudice to the pending suit.

The theory of plaintiff is, that defendants owe the rent for seventeen months, up to first October, 1874 On the theory of defendants they would owe for three months only, due first of June, first of July, first of August, 1873, respectively.

Theodore Avendano, who was the agent of Miguel Avendano in all this business, was a witness in behalf of plaintiff. Being asked: “State to the court all you know relative to making the lease to I. W. Arthur & Co,” he answered:

“It was in the month of July, 1871. Mr. Arthur wanted to rent the store corner of Common and Front streets. I went to his office and asked him a price for the same. He offered me $3200 per annum for three years. I agreed to that, and then wrote the lease and notes, and sent them to his office to be signed. He promised to sign them. I notified him afterward the lease had not been signed, nor the notes. I sent for them several times by my clerk. He always answered he had no time, but would sign the lease. After he occupied the store, and after many repeated calls for the lease and notes, he came to my office and said he did not want to sign the notes for the whole term of the lease, only wanted to sign them by the year. I told him he could do so for one year, and then the other notes at the end of every year. That is the principal thing about the lease.”

Being asked if he had made any written memorandum of the fact, he answered that he had written, the next day, to his brother, Miguel Avendano, who was in Europe. A press copy of this letter, dated July 17, 1871, was produced. It states the renting of this and another store, and the rates, and that the terms would begin the first of October. After speaking of the good credit of the parties, the writer adds: “ The leases will be signed hereafter.”

On cross-examination this witness says Mr. Arthur went into the store about one month or two before the beginning of the lease.

Question : “ The lease was to be reduced to writing ? ” “ Tes.”

Arthur states why he refused to sign the lease and notes. “ The lease and notes were brought into the office, I think, in the month of October, early. I was not present when they were brought in. When the young man called I told him I should have to see Mr. Avendano; I had complaints to make. I soon discovered the leakiness of the. roofs. I had not at first, and I found after I moved in that Mr. Avendano would do nothing toward fixing the house that was not most specially required. He agreed to put the house in first-rate condition for a store. I felt that he had not done his duty as a landlord. On the fourth day of November I had then resolved that I was'not properly dealt with, and I never would sign the lease, and I took them to Mr. Avendano, and so told him that he did not do his duty as a landlord, and I should not and would not sign them, and I laid them down before him on his own desk at his own office; when I laid them on his own desk at his office this (one of the unsigned rent notes) was among the other notes with the lease. * * * * * * * I told Mr. Avendano I was in the house and had spent nearly a thousand dollars in fitting it up, and saw no means of vacating it then, and would probably have to remain for the season, the first year. He would agree to no specific time, and I would sign no lease, and gave no notes; and I left the lease and notes on his desk in his office, and have not seen them since.”

And again, he says: “I don’t remember ever telling him about agreeing to sign notes at all other than I was to give a written lease of three years: and after I went in and found the manner in which he had acted, I resolved not to sign the lease at all, or give any notes. I told him I should probably have to stay for one year, as I spent about a thousand dollars in fitting it up, but that I would agree to no specific time or give no notes.”

Xiques, clerk of Avendano, who seems to have collected all the rent paid before the suit was brought, except that for the first month, says he wrote the lease and thirty-six notes for the monthly rent, and he .took them to Mr. Arthur to be signed. “The first time I saw his bookkeeper, or clerk, and left the lease and notes there, and I came back after, and the clerk told me that Mr. Arthur wanted to see Mr. Avendano, and would only sign notes for one year at a time. I came down and saw Mr. Arthur, who told me the same thing.”

He says he went again to collect and get the lease and rent notes, “ and he answered me that he had seen Mr. Avendano. That’s the last time I asked him about the lease or the notes.”

Again he says that he asked Mr. Arthur for the lease and the notes, “ and sometimes he told me he would sign it, before he told me he had seen Mr. Avendano. The last time I asked him he told me he had seen Mr. Avendano, and I never asked him any more.”

Avendano never went to collect the rent. The first payment was on the fourth November, 1871, by check of that date. The 'receipt for this is in the handwriting of Avendano; and he says he wrote it at his office, and handed it tó Mr. Arthur. It is written on the back of that one of the thirty-six notes which would have represented the rent for the month of October, and would have been payable first of November if it had been signed. t The notes, therefore, must have been in the ■ possession of Avendano at his office, at that date, when the rent for the first month was exigible and was paid.

The testimony of Arthur conflicts with that of Avendano as to the leaving of the lease and notes with Avendano. This may well be, and it should be attributed to the degree of importance which they respectively attached to what actually occurred: to the difference in the impression made upon the mind of the one and of the other at the time, and to natural' disparity in the power of recollection. The testimony of Arthur and of Xiques satisfies us that on the fourth of November, 1871, Arthur had finally determined that he would not sign the lease or the notes: that he so informed Avendano: that he left the lease and the notes at the office of Avendano at that time: and that he was not afterward asked to sign either lease or notes, except, perhaps, once by Xiques when Arthur told him he had seen Mr. Avendano.

The proof shows that the store and shed were not in good condition. The shed leaked so that whenever it rained goods that had been sold and put out marked for shipment had to be put back into the store. The roof of the store leaked so that it was necessary to put buckets to catch the water; and one leak was over the office. The ground floor was patched in several places, and in rolling out goods it broke in other places. The office had been taken down, and Arthur had part of it put up himself. Avendano had the roof of the store patched, but it leaked the first hard rain afterward. The testimony of Avendano shows that the store and shed were covered with a composition roofing, and that they leaked. He was asked: “'Was it not a leaky, worthless shed?” and he answered: “ I can only say of that kind, they are always leaky.”

Arthur says: “In the summer of 1871 Mr. Avendano and myself had several conversations in relation to the store, and I think it was the last of July or August that we talked over the terms, when the understanding was that I was to take the store for three years, which I was to give a written lease at the rate of $3200 per annum.”

On cross-examination being asked, “You did rent it (the store) for three years?” he answered, “That was our agreement. It was to be rented and a regular lease signed.”

Whatever discrepancies there may be in the testimony in other respects, there is none as to this: that both parties understood, at the time they were negotiating, and intended originally, that a lease in writing should be executed. Arthur and Avendano concur in this; and it is manifest from Avendano’s contemporaneous letter to his brother Miguel, and -his repeated efforts, up to the fourth of November, 1871, to have the lease and notes signed by Arthur. The business was of such importance to both, that one would naturally suppose that two business men, merchants, would not have been willing to leave it to the uncertainties of a mere verbal agreement; and that they would both understand, without any express stipulation to that effect, that a lease for three years, at a rental aggregating §9600, should be reduced to writing.

Arthur says when he went into the store in September, before the commencement of the term, Avendano was having repairs made. Of course he could not know then what repairs would actually be made. It may be that Avendano had all the repairs made that he considered necessary, and yet Arthur may have expected that more would be done. He expended a considerable sura in fitting- up an office, and put a large stock of groceries in the store, so that he could not have moved out without serious inconvenience and loss. The condition of the ground floor, and of the roof of the main building and of the shed, was not such as the business for which Arthur rented the premises required, and it is not strange that he withheld his final consent to the contract so long as they remained in that condition.

However this may have been, the fact remains that the lease and the notes were not signed; and this fact brings the case within the rule, coeval with our jurisprudence, and recognized by us in Fredericks vs. Fasnacht, decided on the seventeenth of December, 1877, that, “Where it has been agreed that the contract shall be reduced to writing, until it is actually written and signed by all parties either may retract.” Villeré vs. Brognier, 3 Mart. 349; Des Boulets vs. Gravier, 1 N. S. 422; Wells vs. Dill, 1 N. S. 592; Blocker vs. Tillman, 4 La. 80.

The true distinction is plainly laid down in Carlin vs. Harding, 10 La,. 225. Where, there is a complete verbal contract, and the parties after- - ward agree that it shall be reduced to writing, the verbal contract is. valid and. obligatory, although the subsequent, independent agreement, to have it reduced to writing should not be carried into effect.

In Des Boulets vs. Gravier the principal question was, as stated by-Judge -Porter, “whether the vendee of a movable, where the contract is to be ’reduced to writing, can retract before the act is signed, and that althongh he should be in possession of the thing purchased.” The court said: <

The authorities are express that if the parties agree that the contract is to be reduced to writing, it is not complete until the writing is madle and signed. * * * The fact of possession is one of the [circumstances which, coupled with others, would have made the sale! complete, if there had been no agreement to put it in writing. Wh^n that agreement exists, the necessity of complying with it arises froijn the parties having added that condition to the other things, required to make a legal contract.”

In Blocker vs. Tillman Judge Martin stated the case thus: “The defendant, having taken a warehouse, proposed to the plaintiff to take ■charge of it for which it was agreed he should have one third of the net profits. The offer being accepted, the contract was reduced to writing by a third person, subscribed by the plaintiff, and delivered to the defendant, who agreed thereto and promised to sign and deliver it to a third person to keep. Depending on this the plaintiff entered into his duties, and faithfully attended to the affairs of the concern till he was dismissed by tho defendant, who placed the warehouse in charge of another.”

Delivering the opinion of the court, Judge Martin said:

“ The parties contemplated a written contract, to be deposited with a third person, for their common security. Nothing shows in either of them an intention to be bound by a parol contract. The plaintiff him- ‘ self subscribed tho agreement, and gave time to the defendant to do the like. Till the writing was perfected by the signature of all the parties, it was but an inchoate one, and either had the right of recanting. The defendant, in doing so, availed himself of a legal right.”

Plaintiff and defendant understood, contemplated, and intended, originally, that there should be a contract of lease in writing. Their final consent was in suspense until that writing was signed. As it never was signed there never was a complete contract of lease for three years between them, nor was there any agreement fixing a lease for a specific term. Arthur & Co. were lessees for an uncertain term; apd either party had the right to put an end to it at any time, by giving tho other notice in writing, fifteen days before the expiration of the current month. R. C. C. 2686. By the notice of tho tenth of J uly Arthur & Co. did effectually put an end to it on tho thirty-first of July,'1873. Tho evidence shows that they had the legal right to do this; and their liability for the rent can not bo extended beyond that date. The numerous payments at the rate of $266 66§ per month sufficiently fixed that as the monthly rent; and by tho dealing of the parties that rate Became obligatory on both, so long as the lease continued.

It is therefore ordered, adjudged, and decreed that the judgment of the district court be so amended as to reject tho demand of the plaintiff for all the rent anterior to that due and payable on the first day of J'une, 1873, and for all subsequent to that due and payable on the first Angjust, 1873. That in lieu of tho several sums by said judgment awarded to plaintiff, there be substituted and allowed to him tho rent for tlpee months only. That is to say, that plaintiff, appellee, have and receiver of defendants, appellants, two hundred and sixty-six dollars sixty-six and two thirds cents ($266 66§), with interest at the rate of five per cent per annum from the first day of June, 1873, until final payment; if.o like sum, with like interest, from the first day o£ July, 1873; and the like sum, with like interest, from the first day of August, 1878. That thus amended the judgment appealed from be affirmed, and that plaintiff, appellee, pay the costs of this appeal.

Concurring Opinion.

Egan, J.

I concur in the decree in this case, but prefer to put my concurrence -upon the ground that the property leased was not in a condition, nor put in a condition within a reasonable time, to servo the uses for which it was leased; that the lessor was in fault in this respect, and the lessees had, therefore, and under, the law, the right to withdraw from the contract and to refuse to sign the written lease and notes for the lease price, and did so refuse, and returned the lease and notes to the plaintiff unsigned within a very short time, so soon as they discovered the defects in the roof and other parts of the building; and at the same time informed the lessor that they would not take the leased premises under the terms and for the time of the original contract; but, being in the building with their stock of goods, and the business season being upon them, they would be compelled to keep the property for the remainder of the season; and the plaintiff thereupon acquiesced in their refusal to sign the lease and notes for three years and received monthly rent from them without requiring them to sign the lease or notes, or to agree to a lease for any other or longer time than that for which they said they would take it, thus in effect and law abrogating the old and substituting a new contract.

Concurring Opinion.

Manning, C. J.


text:
    No. 6927.
    Hypolite Gally vs. Michael Dowling, Curator.
    A mortgage creditor has the legal right to proceed by executory process, in a court oí ordinary jurisdietion, against any property oí a succession to which his mortgage attaches, and subject the proceeds of the property to the satisfaction of his debt.
    APPEAL from the Fifteenth Judicial District Court, parish of Lafourche. Beattie, J.

      E. W. Blake and T. A. Flanagan for defendant and appellant.

      F. S. Goode for plaintiff and appellee.
   The opinion of the court was delivered by

Marr, J.

Hypolite Gaily sold a certain property on the Bayou Lafourche to Yilliers and Ewing; and for the credit part of the price they gave him their joint and several promissory notes, payable to their own order and by them indorsed in blank, secured by vendor’s mortgage.

Ewing died; and at succession sale Gaily purchased and became the owner of his undivided half of the property. Subsequently Yilliers died, and Michael Dowling was appointed curator of his succession. A large portion of the price remaining unpaid, Gaily, on the sixteenth of December, 1876, obtained an order of seizure and sale, and the proper notices were served on Dowling, the curator.

The sheriff advertised the property for sale on the seventeenth of February, and on the sixteenth of February Jules A. Blanc, claiming to be a mortgage creditor, filed a petition of intervention and third opposition, in which he alleged that there was not more than five hundred dollars due Gaily on his mortgage; and he- procured an order directing the sheriff to retain in his hands, subject to the further order of the court, the proceeds of the sale about to be made, except the costs, taxes, and five hundred dollars, with ten per cent attorney’s fees, to be paid to Gaily.

Michael Dowling, by his attorney, protested against the sale on several grounds, which it is not necessary to notice, and the sheriff proceeded with the sale; and the property was adjudicated to Edward Thorn for #10,500 cash, which he paid to the sheriff. After paying costs, taxes, and charges, and five hundred dollars to Gaily, there remained in the hands of the sheriff #9558 32, which he retained under the order of the court at the instance of Blanc.

On the fourth of June Gaily excepted to the intervention and third opposition of Blanc, on the grounds :

First — That all the creditors of Yilliers by mortgage and privilege were not parties to the proceeding.

Second — That opponent has no cause of action, because if Gally’s debt were paid in full the balance of the proceeds would not be paid to opponent, but would be given to the curator of the succession of Yilliers, to be distributed according to law.

Third — That the court is without jurisdiction to distribute funds belonging to a succession. Such distribution could be made only by the probate court.

These exceptions were maintained, “ the law and the evidence being in favor of Gaily,” and specially for want of jurisdiction in the district court to distribute funds belonging to a succession; and the sheriff wras ordered to pay to Gaily, the seizing creditor, the entire proceeds of sale of the mortgaged property. This judgment was rendered and signed on the fifth of June; and it has been in no manner attacked, by appeal -or otherwise.

On the eighth of June, Michael Dowling took a rule on Gaily, Blanc, and the sheriff, to show cause why the funds arising from the sale should not be paid to him, as the legal representative of the succession of Villiers, to be accounted for in due course of administration, on the ground that he had qualified and given bond as curator, and was accountable for, and therefore legally entitled to, the possession of the property and assets of the succession.

Blanc answered that lie had no objection to the rule, which he considered a very proper proceeding; the sheriff answered that he was a mere stockholder, without interest; and Gaily excepted on the grounds;

First — That this is not a proceeding in which a rule to show cause is allowable.

Second — That no cause of’ action is shown, because neither the validity of the debt nor the legality of the proceeding under which the property was sold is attacked or called in question; and by law the proceeds of the sale are given to the seizing creditor.

Third — That no intervention is allowable in a matter which has already been finally adjudicated, there being no pending litigation.

Fourth — That the rights of the mover have already been passed upon by the court in the suit No. 1510 of the docket, in which the issue was identically the same, and that his only remedy is by appeal.

The exceptions were maintained, and the rule was dismissed; and, after an ineffectual motion for a new trial, which was dismissed on the eighteenth of June, the curator appealed.

It is too well settled now to admit of doubt or question, that the mortgagee has the right to proceed via executiva notwithstanding the death of the mortgagor, and that his succession is in course of administration. In Boguille vs. Faille, 1 An. 201, the mortgagee, after the death of the mortgagor, obtained an order of seizure and sale, and was about to sell the mortgaged property, when he was enjoined by the administrator, on the ground that the succession of the mortgagor being under administration, the property composing it could be disposed of only under the authority of the probate court. This court decided that the mortgagee had the right to proceed via executiva; and this decision was recognized and followed in Dupuy vs. Bemiss, 2 An. 513; McCalop vs. Fluker, 12 An. 551; and Succession of Wilson, 12 An. 591.

It is not alleged in the rule that there are any debts or claims against the succession which prime.the vendor’s mortgage under which the property was sold. There is no allegation that the debt as claimed by the mortgagee was not really due and owing; and the amount claimed by him exceeds the proceeds of the sale. The curator claims the proceeds in the hands of the sheriff simply because of his legal relation to the succession, as its representative head, which, as he alleges, entitles him to tho custody and administration of all the property and effects of the succession. This is not true of the proceeds of mortgaged property sold via executiva, at the instance of the mortgage creditor. If the sale was valid, the mortgagee, the seizing creditor, would be entitled to the proceeds; if the sale was void, the price would be returned to the adju-' dicatee. In neither case would the money belong to the succession: the curator would not be responsible for it; nor would it fall under his control or administration.

It is not necessary to consider the other questions raised by the exceptions. There is no allegation in the rule which entitles the curator to any part of the proceeds of sale in this case; and the settled jurisprudence of this court demonstrates that his claim is without legal warrant or foundation.

The district judge did not err in dismissing the rulo; and tho judg-, ment appealed from is therefore affirmed -with costs.


author: Egan, J.

text:
    No. 6891.
    The State vs. Andrew Bradley et al.
    Tlie absence of a witness is not ground for continuance in a criminal case, uuless the defendant, in his application for a continuance, makes oath that he can not prove by any other witness, the facts he seeks to prove by the absent witness.
    Where throe persons have been jointly indicted for the same crime, tho condemnation and sentence of two of them will not bo disturbed, because the verdict against the two was rendered in the absence of the third.
    Where tho defendant in a criminal proceeding, ponding the argument on his motion for a new trial, moves to amend his motion, on now and different grounds that alter its substance, it is within the reasonable discretion of the court to allow, or rofuse the amended motion.
    Except in cases of conviction for felonies, it is not necessary to ask the accused if he has anything to say why the sentence of the law should not be pronounced on him, when it appears that no prejudice to the accused resulted from not putting the Question.
    ÍPPEAL from the Eighth Judicial District Court, parish of St. Landry. Hudspeth, J.

      H. N. Ogden, Attorney General, for the State.,

      Lewis & Brother and Henry L. Garland for defendants.
   The opinion of the court was delivered by

Egan, J.

The defendants were indicted, tried, and found guilty of petty larceny. Ben Brown, one of the defendants, failed to appear after verdict to receive sentence; his co-defendants were sentenced: Andrew Bradley to twelve months imprisonment in the Penitentiary and Jack Bradley to nine months. They have appealed. Three errors are assigned r

First — That the court improperly overruled an application for continuance on account of the absence of a material witness, for the reason that the defendants did not swear that they could not prove the same facts by any other witness or witnesses known to affiants.

This point was .expressly ruled in the same way in the State vs. Mollie Robinson, 29 An. 364. See, also, 6 An. 556. The court did not err.

Second — That the indictment and-trial being joint, the court erred in allowing a verdict to be rendered against two of the defendants in' the absence of the other without ordering a severance. When a joint offense is laid and can be proved, it is considered in law as a several indictment against each. And if only one of two defendants, so indicted as principals, be in custody at the time of the assizes or sessions when the indictment ought to be tried, he may be tried alone upon it; and whether he be convicted or acquitted the other when apprehended may afterward be tried upon it and convicted. Archbold’s Crim. Prac. and Pleadings, 7th ed., p. 318. Such, also, is the express provision of our own law. If the trial may be separate we have been referred to no authority, and we see no reason why if these defendants were present at the rendering of the joint verdict they were deprived of any right or advantage which they might otherwise have exercised. The absence of their co-defendant could not prevent -their moving for or obtaining a new trial or in arrest of judgment; nor could or did it increase or aggravate the sentence to be pronounced upon them.

Third — The court is charged to have erred in overruling defendant’s amendment to his motion for a new trial upon the ground of newly discovered evidence. The bill of exceptions discloses that the defendants had not only filed one motion for new trial, but that its consideration was taken up by the .court and argument heard upon it, when motion hour having ended for that day further argument on the motion was adjourned till the following day, when just as the argument was about to be resumed defendant’s counsel offered the amended motion for filing, which was objected to by the District Attorney and the objection sustained by the court. It seems that this was not the indictment nor even the appearance term; that the defendants had already applied for a continuance, which was overruled as we have seen, and that four or five days had elapsed between the filing of the original motion for now trial and the proposition to amend, which-was upon entirely different grounds and altered the substance of the application. All this appears from the opinion of the court in the record, who cites 2d H. D., p. 1184, e. No. 2, and authorities cited. He further states that reasonable time to apply for and obtain a new trial had already been allowed, and “ that to establish the principle that a defendant could file an application for a new trial, and then offer amendments thereto from day to day would be to interpose an insuperable barrier to the rendition of judgment and j>assing of sentence in a criminal case.” He quotes the language of this court, 29 An. 365, that courts are established to try causes, and of necessity must have some discretion and control in the manner of conducting them. We are not prepared to say that with a knowledge of the parties, the facts, and standing of the case this discretion was improperly exercised in the present case, notwithstanding that wo can conceive of cases in which a court might consider favorably such an application.

The defendant’s counsel assigns as error in this court that the record as evidenced by the minutes fails to show that defendants wore asked “if they had any thing to say why the sentence of the law should not be pronounced on them.” Were this a capital case, the objection would be good, and while we deem it well to observe this ancient form in all felonies at least, the absence of its observance where no injury or privation of opportunity to the accused to take any steps or interpose any objections is not fatal, especially where as in this case the defendants appeared personally in court to receive their sentence without any objection of record. See 1st Archbold’s Criminal Practice and Pleadings, 7th ed. p. 676, citing 1st Chitty’s Crim. Law, 700, and other authorities.

It is therefore ordered, adjudged, and decreed that the verdict and sentence appealed from be and they are affirmed with costs.


text:
    No. 6928.
    Michael Dowling, Curator, vs. Hypolite Gally.
    One who sues lor the nullity of a judicial sale, can not ask lor the proceeds o£ the sale. The two demands are inconsistent, and mutually exclusive. In such a case the suit to annul will he dismissed.
    The purchaser ol property at a judicial sale, is a necessary party to a suit brought to annul the sale.
    The only legal methods ol arresting a sale under executory process, or the pro-coeds of such a sale, are by appeal, by injunction and bond, and, (in certain eases enumerated in articles 733-73!) Code ol Practice) by opposition and injunction without bond.
    APPEAL from, the Fifteenth Judicial District Court, parish ol Lafourche. Beattie, J.

      T. A. Flanagan and E. W Blake for plaintiff and appellant.

      F. S. Goode for defendant and appellee.
   The opinion of the court was delivered by

Marr, J.

Hypolite Gally having caused to bo sold, under executory process, certain mortgaged property belonging to the succession of Villiers, Michael Dowling, curator of that succession, brought this suit to have the order of seizure and sale rescinded and annulled.

He alleges in his petition that a part of the mortgage debt had been extinguished by prescription; that Gaily and Yilliers were agricultural partners; that Galiy was a factor and commission merchant, and as such is' accountable to the succession for one half of the proceeds of sugar and molasses sold in 1874, 1875, 1876, aggregating $54,647 76, subject to deductions for advances and commissions; and that this accountability entitled the curator to set up a reconventional demand; that he was not able to arrest the sale by injunction; but he solemnly protested against it; that as curator he is entitled to the price of the adjudication, $10,500, to bo accounted for in due course of administration; that Gaily is not entitled, or if entitled not by privilege and preference over other creditors ; and that the proceeds of sale are in the hands of the sheriff, retained by order of court on the intervention and third opposition of Blanc, in the suit of Gaily, by executory process, the proceedings in which he makes part of his petition. He prays that similar order be repeated in this case; and that “he recover judgment to the effect that the order, flat, decree, and judgment in the executory suit No. 1504 be annulled, avoided, and rescinded.”

This petition seems to have been filed on the twenty-eighth of February, 1877; at any rate, the judge’s order to the sheriff to retain the funds in his hands subject to the further order of the court, was granted on that day.

On the fourth of June, Gaily excepted on the grounds:

First — That Thorn, the adjudicatee at the sheriff’s sale, is a necessary party to a proceeding to annul the sale.

Second — That plaintiff has no cause of action; that he can not attack the proceedings which eventuated in the sale, and at the same time claim the proceeds of that sale.

The district judge maintained the exception, and by judgment of sixth June dismissed the suit. Plaintiff moved for a new trial, which was refused on the fifteenth June, and he took this appeal.

We do not find in the petition any special prayer for the proceeds of the sale; but the curator distinctly sets out and claims the right to receive and administer the fund; and his prayer for general relief would cover that claim. If he did not intend to claim the money, and to have it paid to him, he had no interest in it, and no right to interfere with the disposal of it. In no event was there any occasion for his prayer for an order requiring the sheriff to retain a fund which he did not claim; and the sheriff was actually retaining the money at that time, under the order of the court, at the instance of Blanc, who did claim it.

When the exception was taken, or at latest when it came up for trial, the curator should have declared that he did not claim the proceeds in that suit, and that he limited his demand to the annulling and rescinding of the order of seizure and sale. On the seventh of June, the day after the judgment' of the court dismissing his suit on the exceptions, he moved for a new trial; but ho wholly failed to set up as a ground that the c'ourt had erred in construing his petition as a suit to-annul the sale and at the same time to recover the proceeds. He simply-alleged that “ the judgment of this honorable court is contrary to law and evidence,” without specification.

On the eighth of Juno, the day after this motion for a new trial was made, the curator took the rule in the suit by executory process, which we have just disposed of, in which he claimed the proceeds' of sale in the hands of the sheriff. As he had not before taken any steps to connect himself in any way with that proceeding, we think this subsequent proceeding was a necessary abandonment of the demand for the annulling of the order of seizure and sale. The judge had dismissed the suit in nullity; and it pended simply on the motion for a new trial. The demand for the proceeds of the sale was wholly inconsistent with the demand in nullity; and as this inconsistent demand was set up two days after the judgment dismissing the suit in nullity, the only reasonable interpretation that can bo put upon it is, that it expresses the final choice and election of the curator to claim the proceeds under his asserted legal right as curator and representative of the succession.

It seems too clear for question, that the adjudicates at the sheriff’s sale was a necessary party to the proceeding to annul the sale; and it is equally clear that the demand of nullity, and the claiming of the proceeds are wholly inconsistent, and can not be maintained, as we liad occasion to decide in Boubede vs. Aymes, 29 An. 274, as our predecessors decided in 3 An. 454; 22 An. 135; 23 An. 245. If the petition in this case was really limited to the demand in nullity, that demand was completely antagonized, in the same court, in a judicial proceeding, in reference to the same subject matter, by the rule of eighth June; and the court would have done a vain thing in granting a new trial in the suit in nullity, which would necessarily have been dismissed on exception setting out the subsequent inconsistent demand for the proceeds.

Where the creditor proceeds via executiva, if the debtor have no other defense or objection than the want of sufficient authentic evidence the remedy is by appeal. If other causes exist, constituting grounds of defense which an appeal from the order of seizure and sale would not reach, the debtor must resort either to an ordinary injunction, and give bond and security; or to opposition- and injunction without security, in the cases provided in the Code of Practice, articles 738, 739. One of the causes for which injunction without security may be granted is the extinction of the mortgage debt by novation, or in some other legal manner; another is that the debtor has a liquidated account to plead in compensation; and another is that the debt is barred by prescription.

No defect in the evidence on which the order wras granted has been suggested; and the curator had no other remedy than either by ordinary injunction for causes not specified in article 739 of the Code of Practice, or by opposition and injunction as provided in articles 738, 739-, for any of the causes specified in article 739. If he had any serious defense, either because the debt or any part of it was prescribed, or because the whole or any part of it was extinguished by compensation, or in some other legal manner, as by payment for example, it was his duty to have set up these defenses, and to have arrested the sale by injunction, which would have been granted without security, and -would have been tried summarily. If he had other good causes of objection and defense, which would authorize an injunction against a judgment or the execution of a judgment rendered via ordinaria, it was equally his duty to have set them up, and to have arrested the sale by injunction, which would have been granted on proper bond. Surely there was ample time between the granting of the order of seizure and sale, on the sixteenth <of December, and the actual sale, seventeenth February, for the curator to have ascertained whether there existed any just causes of defense, and to have set them up in the appropriate form. The protest of the curator at the sale was more than useless, since it could have had no other effect than to deter bidders, and thus prevent competition, to the prejudice of the succession.

A casual glance at the notes and mortgage shows that interest had been paid, and the payments extended, so that, apparently, not one of them was presented, at the time the proceeding via executiva commenced. This is wholly immaterial; but it is agreeable to us to feel assured that no wrong will be done to the curator or to the succession, by the decree which we are about to render.

A judgment is not null, nor can it be avoided or annulled, simply because the debtor may have had good defenses, which he had ample opportunity to urge, and which he has failed to set up. The most careful perusal of the petition in this case has failed to disclose any cause of action, or right in the curator to demand the annulling and rescinding of the order of seizure and sale; and if all the allegations of the petition were true, they would simply constitute defenses, which ought to have been set up, which there was ample time and opportunity for the curator to have set up, either by opposition and injunction under articles 738, 739 of the Code of Practice, or by ordinary injunction, as the nature of the defense might have required.

■ Under the pleadings in this ease the dismissing of the suit was inevitable, without regard to the truth and reality of the alleged causes of complaint; and the curator has no one to blame but himself if he has failed to make good defenses which might have been available.

The judgme&t appealed from is therefore affirmed with costs.


text:
    No. 6518.
    Amelia Smith vs. T. J. Kinney.
    A power o£ attorney authorizing fin agent to soli real estate need not bo by authentic aet. It is only noaessary that it be in writing, and properly attested.
    If the purchaser oí property at a succession sale wrongfully refuses to comply with the terms of the sale, the administrator of the succession may, after putting the purchaser' in default by the tender of an act of sale, causo a second sale at the expense of tho purchaser; and the purchaser will bo liable for tho costs of this second sale, and any loss to the. succession caused by the property’s selling for a smaller price at the second sale.
    APPEAL from the Second District Court, parish of Orleans. Tissot, J".

      Braughn, Buck & Dinkelspiel for plaintiff and appellee.

      McQloin & Nixon for defendant and appellant.
   The opinion of the court was delivered by

Manning, C. J.

A,t a succession sale of Bridget Gannon’s property an improved lot in this City was adjudicated to the plaintiff on her bid of $2225. The terms of sale were one third cash, and the residue on a credit of one and two years, and the adjudicatee made the cash payment to Hodgson, the auctioneer, on the spot. She afterwards refused to comply further with the terms, and the defendant Kinney, who is the executor of the deceased, provoked a sale a la folic enchere, at which eighteen hundred dollars only was bid, at which price the property was adjudicated to the second purchaser.

The plaintiff then instituted this suit, alleging that she purchased in good faith, and with the intention to comply fully with the terms of sale, but she discovered and was advised that the title of tho deceased to the property was defective, and the proceedings in her succession under which the sale took place were invalid, and insufficient to convey a title to the whole property. She alleges that she gave notice to the defendant of the specific defects complained of, and demanded tho return of the sum she had paid, and notified the auctioneer not to pay it over to the defendant, and she judicially sequestrated it in his hands. She avers that the defendant, by his own act in provoking the second sale, has put out of his power to make her a valid title, and she prays that the adjudication to her be annulled and rescinded, and the auctioneer be ordered to return the sum deposited with him, but if the court should determine that the adjudication to her conveyed a valid title, she prays that the executor be ordered to complete it within a reasonable time, or in default, that she be released from all obligation, and tho cash payment bo returned to her.

The defendant denies that either the title of the deceased to the property, or that tendered by her executor to the plaintiff, is detective or invalid — admits the sale a la folie enchbre — and avers that if the plaintiff can recover any sum in this action, it is only the excess of her cash payment over the loss sustained by the succession in the second sale.

The alleged defects are — 1. that the property belonged to the community of acquets between the deceased and her husband, and the undivided interest of the latter, or of his heirs, if he be dead, could not be divested by a sale under the mortuary proceedings of his wile’s succession, 2. that the deed to Mrs. Gannon was executed by an agent or mandatory of Legros, her vendor, and that the power of attorney, under which the mandatory acted, was an act under private signature, and the adjudicatee can not be compelled to accept title to real estate unless the vendor’s title is evidenced by an authentic act. The third ground of non-qualification by the executor has been abandoned.

The answer, responding to the first allegation of defect, avers that “ the property was sold under a valid order of court to pay debts and liquidate the succession, and to pay the debts of and liquidate the community between the deceased and her husband, if any existed,” and in the concluding sentences the “ respondent further denies that said Gannon, husband of deceased, has or can have any claim to or upon said property, having long abandoned her, absented himself, and permitted her to acquire said property in her name, and to control and administer the same.”

The insertion of these sentences in the answer occasions the only difficulty in the case, which otherwise is very clearly with the defendant.

Bridget Gannon, the testatrix, acquired the property in question from one Legros, who lived in Texas, under a power of attorney from him to his agent hero, giving full authority to sell and convey title. The power was made with reference to this identical property, which is described in it, and it was attested by witnesses, acknowledged before the proper officer, and had passed through the various certificates of the clerk and judge of the court which were deemed necessary to verify it. The sale is by notarial act, and the procuration of the vendor is annexed to it, and is fully set forth in the body of the act besides. The vendee is described in the act as “ Mrs. Bridget Cooney widow of the late Thomas Gannon.” The date of the act is Dec. 2,1873. She died in 1875. On March 8th. of that year, her will was presented for probate, and in the petition then filed, she is described as “ Bridget Cooney, formerly wife of Thomas Gannon.”

No evidence whatever was offered by either party to prove the important fact, whether the deceased was wife or widow at the time the property was acquired, and in the absence of such evidence, we must take the recital in the deed as conclusive of her status. The only doubt tliat can arise upon that matter is occasioned by the two paragraphs, quoted from the answer of the executor, the first of which, in stating that the sale was had to pay her debts and those of the community, is qualified by the words, ‘ if any existed,’ and the second, in alleging as a reason why the husband- can have no claim upon the property, that he had abandoned his wife and absented himself, must be construed in harmony with the recital of the deed, so that while there was an abandonment, his death occurred during the abandonment and before hers.

So far then as the public records shewed any thing on the subject, the deceased was a widow when she bought the property, and there is no evidence aliunde to the contrary. The purchase price had not been wholly paid when she died. In her will she mentioned her debts, of which the principal was «the unpaid note, secured by mortgage upon the property. She had no other property that was available for the payment of debts. Her movables were appraised at twenty-seven dollars. She bequeathed three hundred dollars to her priest, and the residue to her nephew. The will having been probated, and the executor qualified, application was made to sell the property for the payment of debts and legacies, and costs of administration, and it was ordered. It was at this sale that the plaintiff bought. The debts of‘ the deceased, and of her succession, were about two thirds of the inventoried assets. The sale was validly made, and the title acquired by the purchaser was good.

The second objection to the title was that the power of attorney was not an authentic act. Neither a power of attorney to sell real estate, nor the sale itself, need be by authentic act. A transfer of immovable property must be in writing, but if it is under private signature, acknowledged or legally hold to be acknowledged, and duly recorded, it is as perfect a conveyance as if by authentic act. The proof of one is different from that of the other, and convenience is promoted by an act that proves itself. And as that is true of the sale, a fortiori is it true of the authority to sell. Civil Code, arts 2239, 2255, new nos. 2242, 2275. The power of attorney of Legros, the vendor of the deceased, was acknowledged with formality and the attesting certificates were appended to it. There could be no reasonable objection to its form.

The plaintiff should have complied with the terms of sale. The defendant put her in default by tendering her the proces verbal or act of sale, and upon her continued refusal to accept it,'had protest made of her refusal. The expenses of the second sale ($51.80) and the cost of the notary ($10) and the loss at second sale ($425) must be borne by her. From the cash payment of $741.05, now in the hands of tire judicial ■sequestrator, must be deducted the aggregate of these sums, and the residue be returned to her. The judgment of the lower court dismissed her suit against the defendant, but ordered that the auctioneer should return to her the full sum paid on the day of sale. ■ It is erroneous. Therefore

It is ordered, adjudged, and decreed that the judgment of the lower court is reversed, and that the plaintiff’s demands be rejected, except that the sum of two hundred and fifty-four dollars and eighty-five cents be returned to her by W. I. Hodgson, in whose hands the fund has been judicially sequestered, and the residue thereof be paid to the defendant by him, and that the defendant have and recover of the plaintiff the costs of appeal.


text:
    No. 6842.
    The State vs. Alonzo Brooks and John Brooks, Sr.
    One who lias not resided, within the parish in which a certain case is tried, ior one year next preceding the trial, is not aualiilod to serve as a juror in that case. 1
    Whore two persons arc jointly charged with the commission oí a crime, the State is entitled, on a proper showing, to a continuance as to both, even though one of the accused is ready lor, and demands a trial.
    A PPEAL from the Fifth Judicial District Court, parish of East FeliOL ciana. Me Vea, J.

      H. N. Ogden, Attorney General, for the State.

      W F. Kernan and T. B. Lyons for defendant.
   The opinion of the court was delivered by

Manning, C. J.

The defendants were indicted for murder. John was acquitted. Alonzo was convicted of manslaughter, and sentenced to confinement in the Penitentiary for ten years. He appeals, and assigns for error,

I. That a juror, having been tendered, disclosed in his testimony, on the voir dire that he had not resided in this State twelve months, and was ordered by the court for that reason to stand aside.

The qualifications of a juror are that he shall be a citizen, and a bona fide male resident of the parish in and for which the court is to be holden for one year next preceding such service, not under interdiction, or charged with any infamous crime, or offense,punishable by hard labor, provided etc. Acts 1877, p. 55.

The juror had not the qualification of a residence in the parish for one year next preceding the trial, and was properly rejected from the panel by the court.

2. At the May term, tho defendants’ counsel moved a severance of trial, which was refused. The State at the same term applied for and obtained a continuance as to both defendants because of the absence of a material -witness. When this application was made by the State, John Brooks announced himself ready for trial, but the court continued as to both. The error assigned is in refusing the severance.

No trial was had at that term, or could be had of either defendant, since the State had asked a continuance, made a proper shewing, and obtained it. The defendant who was not permitted to go to trial then, notwithstanding his announcement of his readiness, was acquitted, and of course is not complaining. The trial was had at the ensuing term in Oct. 1877.

The convicted party relies upon the law which provides that when two or more persons shall be charged jointly with the commission of any crime in the same indictment, and the cause is continued as to one or more of the parties, the others so indicted shall be admitted to trial, unless the State can shew good cause for a continuance; no one so indicted shall be deprived of a trial in consequence of a continuance of the ease as to any of the other parties thus indicted. Rev. Stats. 1870 sec. 999.

The cause was continued as to both. There was not here a continuance as to one, and a deprivation of trial by the other in consequence of the continuance of the case as to that one. The State shewed good cause for the continuance of the trial of both, and the law invoked is not applicable to such case. It is not included in its terms.

We see no error in the ruling of the court, and the judgment is therefore affirmed.