author: Breaux, J.

text:
    No. 13,342.
    Atkins Brothers vs. D. C. Scarborough.
    Syllabus.
    1. Waiver of jurisdiction by filing answer. A debtor may file an answer in a suit in which he is defendant in another jurisdiction than that in which he has his domicile, provided the waiver forms no part of a contract entered into looking to a waiver of jurisdiction for its enforcement.
    2. No exception m case of a suit by a married woman. In the absence of fraud or any intended wrong, the husband may file an answer to his wife’s suit for a separation of property in another court than that of the parish in which he resides. The judgment, if voidable, is not void, and the debtor, of a date subsequent, can not, many years after the judgment, has been rendered, treat it as an absolute nullity. To this extent the judgment appealed from is annulled, the judgment of separation of property is not decreed void. The writ of injunction is sustained.
    3. Though voidable, not void. As relates to the other issues presented, for the reason that revocatory action is the remedy under our law for creditors seeking relief against alleged fraudulent disposition of the debtor’s property and not a direct seizure, the suit is dismissed as in case of non-suit.
    APPEAL from the Tenth Judicial District, Parish of Natchito-ches. Lafargue, J.

      Wilkinson & Stephens for Plaintiffs, Appellees.

      Scarborough & Carver (Benjamin Bice Forman, of Counsel), for Defendant, Appellant.
   The-opinion of the court was delivered by

Breaux, J.

Plaintiffs sued out an injunction aginst the defendant, to prevent him from selling, under a writ of fieri facias, a plantation situated in the Parish of Natchitoches, of which they are the owners.

They aver, in their petition, that they bought this plantation in good faith for a valid consideration, on the 21st day of December, 1898, the deed of purchase being duly recorded from A. M. Voiers, who was separate in property from her husband, and that the plantation was her paraphernal property; that their vendor has no right or interest in the property, and that it is not subject to seizure.

For answer, the defendant filed a general denial to all of plaintiff’s averments, save those specially admitted. He admits the seizure, but denies that Airs. Voiers, plaintiff's vendor, ever had a title to the property.

He specially alleges that she' was not separate in property from her husband; that there was no dissolution of the community, and that the plantation was bought and paid for out of community funds; that the pretended judgment of separation of property was a consent judgment rendered by a court without jurisdiction on an agreement of waiver of jurisdiction entered into by the husband and wife to confer jurisdiction.

Defendant also attacks the sale by Mrs. Voiers to plaintiffs, on the ground that Voiers, the husband, was not a party to the conveyance, for the purpose of conveyance, but only for the purpose of authorizing his wife.

He further alleges, if the sale conferred the title, it should be annulled, for the reason -that J. R. Voiers, the husband, was utterly insolvent at the time of the sale to the plaintiffs, to their knowledge, and that they thereby gained an unfair advantage over the other creditors.

He asks that the judgment be decreed a nullity, and, also, the title to plaintiffs, and, in the alternative, if the court holds that the title was translative of property, then that the sale be annulled, on the ground of the insolvenc of J. R. Voiers, and the giving of an unfair preference over other creditors; that the injunction be dissolved and the property sold.

The record discloses the-following- facts, viz: That the place in controversy was sold by J. A. Prudhomme to Airs. A. M. Voiers, and that, as alleged, she afterward sold it to plaintiffs.

The vendor to plaintiffs testified that the three hundred dollars ($300) cash paid for the property, as declared in the deed of Prud-homme to her (for eleven hundred dollars, altogether), dated November, 1887, was given to her by her father, and that she executed notes, as purchaser, for the credit portion, payable in January, 1890 and 1891, which were afterward paid by her from the revenues of the property of which she avers she had the control and management.

The parties to the suit signed an agreement setting forth, substantially, that the purpose of the suit was, primarily, to test the validity of the judgment of separation of property obtained by Mrs. A. M. Voires against her husband, and to that end they requested that its validity vel non be first decided by the court before passing on the other issues raised.

It is admitted that J. R. Voiers and his wife were married in the Parish of Natchitoches, and subsequently established their residence in the Parish of Red River, where they were residing at the date of the institution of the wife’s suit'for the separation of property; that after the suit had been filed, in the District Court for the Parish of Natchitoches, at the instance of J. R. Voires, J. E. Breda, the attorney for Mrs. A. M. Voires, prepared for him an answer which Voires signed in propria persona and had filed. The suit was taken up instanter, and, on evidence, then and there reduced to writing.

It is also admitted that the defendant, on the 24th day of December, 1898, obtained his judgment and had it recorded, and that J. R. Voires appeared in the deed to Atkins Brothers only for the purpose of authorizing his wife, as stated in the deed. Either party reserved the right to introduce other evidence.

The petition of plaintiff in the suit, for the separation of property, was filed in evidence, to which an answer was filed by the defendant. This answer was dated October 22nd, 1881, and expressly waived the want of jurisdiction of the court ratione personae. On November 1st, 188Y, defendant appeared by other counsel and filed a general denial as answer. Evidence was heard, judgment was rendered, and, on the 30th day of November-, it was signed.

The judgment rendered by the district judge is in favor of Atkins Brothers, plaintiffs, and against the defendant, D. 0. Scarborough, perpetuating the writ of injunction, and recognizing plaintiffs as the owners of the property.

From this judgment, defendant prosecutes this appeal, and plaintiffs, in answer to the appeal, ask for an amendment of the judgment maintaining the wife’s judgment of the separation of property, and recognizing the paraphernal nature of the ownership when it was owned by Mrs. A. M. Voiers.

We are impressed by the fact that more than ten years had elapsed between the date Mrs. A. M. Voiers acquired the property in controversy, and "the date that she obtained a judgment against her husband; and more than ten years had elapsed between the date of her purchase of the property and the date of Scarborough’s judgment. The question is whether tliis judgment can be held void at the instance of a creditor whose claim is of a date long subsequent to the date of the judgment.

This judgment, in so far as third persons are concerned, has every appearance of validity. It was rendered by a court of competent jurisdiction rations materiae and the waiver of jurisdiction rations personae does not give rise to an illegality of which any creditor of the husband, of a date long subsequent, can avail himself to sustain direct seizure. The title of the wife to the property and her judgment obtained against her husband, had remained of record without the least question concerning the validity of her ownership, or the legal effect of her judgment, when plaintiffs became the owners. This judgment, in so far as it confirms plaintiffs’ right to buy, is binding on all the creditors of a date subsequent to the extent that they are without right to treat it as void.

Counsel for defendant contends that suits between a husband and wife for separation of property affect a public interest, and their consent can not confer jurisdiction, as it can not in divorce suits and suits for separation from bed and board. But the objection has not the same force when urged against a judgment of separation of property obtained before a tribunal by consent, as relates to jurisdiction, as it is not a question of status. It relates, exclusively, to a right of property and does not affect the marriage relations of husband and wife. The wife has the same rights and privileges as other creditors, and can sue for and obtain a judgment of separation of property and of the dissolution of the community. She is not restricted in that right any more than any other creditor, save that she must comply with the requirements in such cases. There is a general rule in civil matters, that one must be sued before his own judge, but the courts have not given the rule a close interpretation. It has been held in a number of decisions, that one may waive personal jurisdiction by appearing and pleading to the merits.

Defendant contends that this case is different from those cases in which it was held that one may bind himself by accepting service and waiving jurisdiction at the time suit is brought, and that it is to be governed by Article 162, O. P., from which we extract the following: “ It is a general rule in civil matters that one must be sued before his “ own judge.”

In Phipps vs. Snodgrass, 31 Ann., 88, this court, speaking through Justice Spencer, said, that “it was to prevent hard pressed debtors from entering-into contracts whereby they waived their domicils, and elected in lieu thereof the counting rooms of their merchants. But one may be sued elsewhere, and,-if he pleads to the merits, he is held bound by the judgment in a case in which the question of jurisdiction is not raised. No exception to this rule arises, save when'the defendant is a minor.” C. P., 93.

The Supreme Court referred to this case approvingly in Stevenson vs. Whitney, Tax Collector, 33 Ann., 655, and said that the contrary jurisprudence established for a time by the court over which Chief Justice Ludeling presided, was not well founded, and that it had been reversed.

In Stackhouse vs. Zuntz, 36 Ann., 531, the court said: “Whatever may have been the tenor of the earlier decisions to wjiich we are referred as to the effect of a waiver of the jurisdiction as to persons, it suffices to say that they have been expressly overruled; and it is now the settled jurisprudence that parties may, by consent, waive personal jurisdiction and-submit their controversy to the determination of another tribunal than that of their domicil, having jurisdiction over the subject matter, and that the latter thereby becomes vested with complete jurisdiction over the case.’.’ Marqueze vs. LeBlanc, 29 Ann., 194; Phipps vs. Snodgrass, 31 Ann., 88; Ranlett vs. White Lead Co., 30 Ann., 56; Stevenson vs. Whitney, Tax Collector, 33 Ann., 655.

This, was substantially laid down as the view of the court in Kelly vs. Lyons, 40 Ann., 498. We have not found anywhere anything-which would justify the interpretation that the wife’s suit in this respect is different from that of other creditors. The rule restraining actions affecting “the rights of others and the public good”, at the time suit is brought, has not, in our view, scope enough to embrace this case and reduce the judgment of the wife, obtained on a waiver of jurisdiction ratione personae, to an absolute state of non-existence. The matter is one of private and not public interest, and those injured are left to their remedy under the law.

We do not hold that a wife may be favored with jurisdiction in her suits at law wherever and whenever she ple&ses, regardless of the rights of others, but we hold that in these proceedings, the purchaser had the right to presume that the judgment was valid and binding.

Of this, we are quite certain, the nullity, if it be a nullity, is not absolute. It is not one of which a creditor can avail himself, in order to maintain his seizure, and therefore we sustain the judgment of separation of property as between plaintiffs and defendant, in so far as it sustains plaintiffs’ contention that their property was not subject to a direct seizure.

As relates to the attack upon the judgment, on the ground that it is a judgment based upon consent alone, we think that the following' is a complete answer to the petition of defendant: “A direct action must be brought to annul a consent decree.” Bell vs. Francke and Dannell, 23 Ann., 599; Equitable Securities Co. vs. Block, 51 Ann., 478.

It is, therefore, ordered, adjudged and decreed that the judgment of separation of property and of the dissolution of the community remain undisturbed as .valid between the .parties to this suit and not subject to be considered as non-existing and void.

It is ordered, adjudged and decreed that plaintiffs, Atkins Brothers, do have and recover judgment against D. 0. Scarborough, sustaining and perpetuating the writ of injunction herein sued out by them on the grounds heretofore stated; and it is further decreed that plaintiffs’ title was sufficient in law to convey ownership, and we annul and set aside every part of the decree appealed from which may be in the way of the revocatorj' action, and dismiss the case' as in case of non-suit as relates to the revocatory action, reserving to defendant all rights, if any, he has in this respect. Costs of appeal to be paid by the appellees.

Blanchard, ,L, dissents, holding that in suits between husband and wife, domiciliary jurisdiction can not be waived and the judgment of the separation of property is an absolute nullity.

Monroe, J., concurs in the above.

ON Application fob Rehearing.

Our attention is called to the fact that the deed of purchase from J. Ailhand Prudhomme and others is dated November 21st, 1887. In our opinion we referred to this deed as of a date long anterior. The fact is that the judgment is dated November 3rd, 1887, and the deed of sale November 21st, 1887. We make the correction and insert here the correct date, only for the sake of being accurate. The fact has not the least -bearing on the issues of the case, and, therefore, our decree1 remains unchanged.

Rehearing refused.


source: Caselaw Access Project

author: Morros, J.

license: Public Domain

text:
    No. 13,205.
    Mrs. Julia Knoker vs. Canal and Claiborne Railroad Company.
    Syllabus.
    Where a pedestrian is standing near a car track, at night, upon a frequented MiorougMare, giving no indication of an intention to cross, and attempts to-cross only when a rapidly moving car is so near him as to render it practically impossible for the motorneer to prevent striking him, there can be no recovery of damages for the injuries sustained.
    APPEAL from the Civil District Court, Parish of Orleans. Theard, J.

      Bernard Bruenn for Plaintiff, Appellant.

      Clegg & Quintero for Defendant, Appellee.
   The opinion of the court wa's delivered by

Morros, J.

Plaintiff, as the surviving, and dependent, mother of August Iinoker, sues to recover damages resulting from her son’s death, through the alleged fault of the defendant. The answer denies liability, and alleges that the decedent came to his death through his own fault. The ease was tried in the court a qua without a Jury, and, from a judgment rejecting her demand, the plaintiff has appealed.

After a careful consideration of the evidence, we find the following facts therefrom, to-wit:

August Knokei\ plaintiff’s son, a young man about thirty-two years of age, by occupation a longshoreman, on Saturday evening, September 3, 1898, after nine o’clock, left his home where he lived with his mother, and iras not again seen by her until after his death. The evidence does not show where he went in the meanwhile, but, shortly before midnight, he rode in a Tchoupitoulas street car to Canal street. As he left the car at its station on Canal street, about opposite the end oí Dorsiere street, between Decatur and Chartres streets, he remarked to the conductor and morotrneer that he was going to the lake.

Assuming for convenience of statement, and in order to be intelligible, that Canal street runs due east and west; he walked in a northwesterly direction, from the track on which the Tchoupitoulas street car was standing (being the third track from the north side of the neutral ground), across the second track, and stopped between it and the track of the defendant, which is .the first track immediately adjacent to the narrow-flagged sidewalk, which forms the northern border of the neutral ground. At that moment, car No. 41 of the defendant’s line was moving westwardly, at the rate of about six or seven miles per hour, and when Knoker concluded to move across the defendant’s track, it was within about 15 feet, or half its length, distant. Knoker, nevertheless, started straight across the track. The mo-torneer did all that a man so situated could do to avert the threatened misfortune; but, although he stopped the car within its own length, it had, in the meanwhile, struck Knoker, and when it was brought to a standstill, the unfortunate man was lying upon the sidewalk, alongside of it, his face to the sky, his feet pointing westward, with a cut about two inches in length, across the lower part of the back of his head, and slight abrasions upon the points of his eloows, as the only external marks of his injury, but with his skull so badly fractured that he died within a very few minutes.

There were only three persons who witnessed the tragedy, and their testimony, in so far as we find it material to the legal questions which we are called upon to determine, is substantially as follows:

George Taylor, a disinterested witness, sworn for plaintiff, was walking along the north side of Canal street, in the direction of Chartres, that is to say, in a westwardly direction. When he reached a point about opposite the scene of the accident he had an attack of .coughing, and walked to the gutter in order to expectorate, and, at the same time, he looked out toward the neutral ground, somewhat obliquely to the rear (considered with reference to the direction in which he had been walking), to see whether a ear, which he expected to take, was coming. At that instant, he saw “a man hit by a car.” The man fell on the sidewalk “with his face down,” the witness ran over to the spot, but just then his car came along, and he boarded it and went on home. He says: “About signals, or anything like that, I don’t think I can remember hearing any at all. * * * I did not look at the car long enough to tell how quick it was going; just as I had turned to see if my car was coming, the man was struck. Now, how fast the man was going with his car, I can’t say.”

“ * when the man was struck, he was struck, like on the side of the car — the side the guard is on.

“Q. — He was then on the pavement?

“A. — Whether he was right on the pavement, or whether he was on the track,' the rail part, I can’t'say. * * * He was going towards Chartres street; whether he was going that way I don’t know, but his face was toward that way.”

Cross-examined by counsel for the defendant, he is asked:

“Q. — I don’t understand you to say that no signals were given, but that you do not recall having heard them ?

“A. — As far as my memory serves me at present, I don’t recall hearing any gong or signal of any kind. The car- was stopped within about ten feet or so after it struck him.”

Re-examined:

“Q. — It may have been twenty or thiry feet ?

“A. — Probably so; may be so; I don’t say exactly. I might judge ien feet, and other people might judge fifteen or twenty feet.

-x- 1 * -x- * -x- * *

“Q. — I)o you remember distinely to have seen the car after it had struck the man ?

“A. — I seen the ear shoot past him; yes, sir.

“Q. — Shoot past him?

“A. — Past the body; yes, sir.”

Win. M. Youngblood, a disinterested witness, sworn in behalf of the defendant, had left the corner of Canal and Chartres streets, crossed to the neutral ground, and had walked about five yards on the flagging, on the lower side, in the direction of the scene of the accident, when he 'saw a “figure” on defendant’s track, and, to use his own language, “The next thing I saw — there was a car coming along at the time — and the next thing I saw of the figure, he was lying on the right hand side of the car, right in the middle. I rushed up to him. I was the first man near him, after he was knocked down.

“Q. — Did you see the car strike the man?

“A. — Well, I saw him on the track, and the next thing, I saw him on the side; I saw the car dragging him along the side.

“Q. — How far from where the car struck him did the car stop ?

“A. — Well, you understand, the car stopped almost immediately; it went along a little distance, but stopped pretty short. The car was going at a pretty good rate of speed — I think.

“Q. — Where was the ear, with reference to the man’s body, when you got there?

“A. — It was on the pavement.

“Q. — How far was the car past, if it was past it?

“A. — It wasn’t past it yet; his head, I think, was lying in the direction of the river, and his legs in the direction of the lake; he was just between the two wheels, you know, on the side.

(By the court) :

“Q. — About how far ahead of you did you see that figure?

“A. — Well, I was about five yards from Chartres street, on the neutral ground, and I saw the figure about in front of Godehaux’s, and the car-”

(By Mr. Bruenn) :

“Q. — Where was the car?

“A. — I don’t know exactly what distance, it must have .been about three or four yards from the figure when I noticed it on the track.

“Q. — Was the car as close to the figure as that, when you first noticed it, or was it further off ?

“A. — The car was about that distance.

“Q. — Coming along at a rapid speed?

“A. — Coming along at a pretty good speed. -

“Q. — Did you hear the gong ring ?

“A. — E heard no gong.

“Q. — Ilo you know what part of the car struck the man ?

“A. — I do nqt.

“Q. — You didn’t see the car strike him?

“A. — No, sir.

“Q. — But you saw the figure at one time walking in front of the ear?

“A. — Yes, sir.

“Q. — The next time you saw the figure it was alongside of the car, being dragged by the car, before it stopped ?

“A. — Yes, sir; it was just like the car struck him, you know, and pushed him aside. If it hadn’t been for that, I presume, it would have rolled over the body and mashed him.

“Q. — Can you state, positively, exactly where the figure was when you saw it; whether it was on the flag walk, approaching you, or whether it was on the track ?

“A. — When I saw the figure it was on the track, coming in the direction of Godchaux.

(By the court) :

“Q.- — Walking which way?

“A. — Just as though he were crossing the track.”

Alfred Lapouyade, motorneer of Oar 41, sworn for defendant:

“Q. — Tell the judge what happened, and what you did?

“A. — .11:52 when I left Oanal and the river, Station “A;” as I left Decatur, corner of Decatur, I made a stop here, as I got in the middle of the block I saw a man standing between the two tracks, Claiborne track and Traction track; as I came near him, he attempted to go right across; of course the man was right in front of me before I could stop the car, but I made a short stop, put the reverse on the ear, but I struck the man before I could manage not to hit him.

“Q. — Where was the man when you saw him?

“A. — Between the two tracks, oh the neutral ground.

“Q. — -What did you do when you saw the man’ attempt to cross?

“A. — Well, I rung my gong as hard as I could, and tried to stop the car, as I did, but I struck the man before I stopped the car.

“Q. — How far did you pass the man before you stopped the car?

“A. — Well, the man lying down, I stopped the car — he was lying down in the centre of the car, on the outside.”

Cross-examined:

“Q. — When did you first see Mr. Knoker, as you came up this track from the river?

“A. — Well, I saw the man after I left Decatur street, that way; I saw him over there, but he was pretty much on the side of the Traction track, though it must have been about — I couldn’t say exactly, but about fifteen steps, when the man made an attempt to cross,.you see; of course, I was going at a moderate speed, fivé knots is our gait, we are supposed to go; I am very certain the man passed right in front of me; made an attempt to cross; he looked to me to be under the influence of liquor.

“Q. — Do you know that he was drunk?

“A. — No; but he looked, staggering around when I rang the gong. Certainly I took notice of it.

“Q. — You thought the man was drunk?

“A. — I couldn’t tell whether he was drunk cr not, but it looked like he staggered over there.

“Q. — You made no effort to stop the ear?

“A. — Certainly I did make an effort.

“Q. — For you stopped your car so that the man lay in the middle of the ear, as you have testified? -

“A. — Yes, sir.

“Q. — Why could you not stop your car before you struck the man?

“A. — Well, because I couldn’t stop.

“Q. — You were going at a moderate speed?

“A. — Yes, sir.

“Q. — You say you saw this man standing on the up-town side of your track?

“A. — On the left hand side.

<lQ. — That is the up-town side of your track; you saw him and you swear he made the attempt to cross ?

“A. — No; he didn’t make any attempt; but I saw the man as I came near him; that was the time he went over. \

* * . * * * •» *

“Q. — Where did you find him when your car stopped?

“A. — When I stopped my car, the man was lying right in the centre on the outside.

(By the court) :

“Q. — Let me understand. When you first saw this man, as you say, he was standing between the two tracks ?

“A. — Y es; sir.

“Q. — Was there anything to indicate that he was going to cross your track?

“A. — No, sir; because there is lots of people standing there all day.

X* w * *X* * *X* * *

“Q. — You say that, without you knowing he was going to cross, he attempted to cross, and then yqu tried to stop your car, and rang your bell?

“A. — Yes, sir; when he made that; he must have been about fifteen steps when he made the attempt to cross.

(By Mr. Bruenn) :

“Q. — I-Iow far was he away from the car when he made the attempt; how far was your car away from him when he started to go across ? .

“A. — He must have been about as far as from here to that store.

“Q. — That is twenty feet ?

“A. — Yes, sir.

“Q. — And yet you stoioped your car in half a length after you struck him?

“A. — Yes, sir.”

This is the substance of the testimony as to the immediate facts leading up to the death of the plaintiff’s son. Other witnesses were examined, as to what occurred afterwards; as to the comparative width of defendant’s cars and tracks; as to the comparative noiselessness of said cars; as .to whether it would be advisable to have a bell attached to the axle which would ring continuously, etc., but we are unable to discover that their testimony has any appreciable bearing upon the vital question: considering the testimony of the witnesses who saw the occurrence, was the defendant at fault for having run down August.Knoker? And that question, we think, must be answered in the negative.

The theory of the plaintiff’s counsel, that the deceased was struck by the car whilst he was walking on the sidewalk, with his back to the ear, is not sustained by the proof. On the contrary, we think it affirmatively established that he was on the track when he was struck, and that, without having previously given any indication of an intention so to do, he got on the track within so short a distance in front of the moving- car that it was impossible to stop it before striking him. Wo are of opinion that the learned counsel for plaintiff is in error in assuming, from Youngblood’s testimony, that the decedent was “dragged” by the car after he was. struck, and hence tha.t the motor-rieer was negligent with regard to stopping the ear. It is true that Youngblood makes use of the word “dragged,” but being asked by the counsel:.

“Q. — The next time you saw the figure it was alongside of the car, being dragged by the car before it stopped,” he answers: “A. — Yes, sir; it was just like the car struck him, you know, and pushed him aside. If it had not been for that, I presume, it would have rolled over the body and mashed him.” From which it is evident that the word “dragged” did not express the idea that he intended to convey. And this is made still plainer by the fact that when the ear was stopped, within half of its length, the body was alongside of it — not attached to it, and bore no indications of having been dragged.. - We think that “being dragged” and being “pushed aside” are too very different things, and that the latter is what the witness testified to as having happened. We are of opinion that the learned counsel is also in error in assuming' that the motorneer saw the decedent staggering around, whilst still at a distance, and in arguing therefrom that he should nave been particularly on his guard, upon the assumption that the decedent was intoxicated. The only staggering to which the motorneer testifies took place, if at all, at the moment when the decedent attempted to cross defendant’s track, in front. of the approaching car, and, at that moment, we are satisfied -that he did all that could have been done to avert the accident. He and the conductor testify that he rang his gong, and stopped the car, and we are inclined to believe that he did both. But that he stopped the car with extraordinary promptness is absolutely certain; and we think, in view of his situation at the moment, that, even if he had devoted all his faculties to that act, and had not rung the gong at all, he would not have been to blame. It is a mere matter of conjecture as to how it happened that the decedent received a horizontal cut through the scalp, upon the back of the head, and why, with such a cut, one or more of the fractures in the skull should have been vertical. We might theorize upon the subject, but to no useful purpose. lie was struck by the car and was killed. His misfortune, and that of his poor mother, must appeal to the sympathy of every heart capable of feeling. It was pitiable, almost beyond expression. But, to fasten upon the motor-neer of the car the responsibility for his taking off would be cruel and unjust. The ease is clearly within the rule laid down in Snider vs. Railroad Co., 48th Ann., 12; Hoelzel vs. Railroad Co., 49th Ann., 1302; Webster vs. Railroad Co., 51st Ann., 291; Farrar vs. Railroad Company, 52 Ann., 417; Ponzano vs. Railroad Co., 52 Ann., 245. And the judgment appealed from is affirmed.


author: BLANCHARD, J.

text:
    No. 13,202.
    Thornwell Gachet vs. City of New Orleans.
    Syllabus.
    .!• Before the State taxes for a given year became due and demandable, the lot of ground upon which the same had been assessed passel out of the hands of private ownership into tne hands of public ownership — Held : The moment public ownership attached developing liability to taxation was arrested.

      Ü. The tax law of a State applies to persons only, and not to political bodies like municipal corporations, which exercise in different degrees the sovereignty of the State.
    Hence it is, that when property upon which State taxes are assessed is subsequently acquired by a political subdivision of the State, like the city of New Orleans, to which certain powers of sovereignty and government have been delegated by the State, which property is acquired for purposes of public utility coming within the scope of the powers so delegated, and is immediately applied to such purposes of public utilty, the taxes so assessed in favor of the State upon the same cease to be exigible.

      4. It pertains' to the public policy of the State not to exact taxation on property so held and used.
    5. within the scope of the powers delegated ’to it, the city of New Orleans stands for the State, and property acquired by it in the due execution of its mandate from the State, stands in consimiK casu with property owned by the State itself, and taxes antecedently assessed in favor of the State upon such property must be held abated. It is a commingling of the qualities of debtor and creditor in such way that there arises a confusion of right extinguishing the obligation.
    APPEAL from the Civil District Court, Parish of Orleans' — ■ Theard, J.

      William, S. Benedict for Plaintiff, Appellant.

      James J. McLoúghlin, Assistant City Attorney, and Samuel L. Gilmore, City Attorney, for Defendant, Appellee.
   The opinion of the court was delivered by

BLANCHARD, J.

Defendant purchased lot No. 8 in square 158 fronting on Magazine street, New Orleans, from one Hoxie on the 6th of July, 1885.

Its purchase was authorized by municipal ordinance duly adopted.

The consideration paid was $2000 cash.

The object of the purchase by the city was to obtain a site on which to erect an engine house for one of its fire companies, and the engine house was immediately erected and the property has been from that day to this, and still is, in use by the city as an engine house and as pertaining to its fire department.

It is recited in the act of sale to the city that all taxes due and exigible on the property had been paid, except the State and city taxes for the year 1885, payment of which the city assumed.

The lot prior to 1885 had been owned by the estate of George P. McConnell, and Hoxie, the city’s vendor, had acquired it from the estate of McConnell some ten or twelve days only before he sold to the city.

On the assessment rolls of 1885 the lot was assessed to McConnell. Iloxie did not own it long- enough for any taxes to be assessed against it in his name. So, when he sold to the city, the State and city taxes, which the vendee assumed payment of, were then assessed in the name of McConnell.

Having' acquired the lot for a public purpose within .its powers, and having immediately utilized it for such public purpose, the city oflb cials seem to have looked upon, the city’s assumption of payment of the State taxes for 1885 as purely nominal, and that once the title had vested in the city, no claim for State taxes was enforceable against the property.

Accordingly, no steps were taken to pay the State taxes, and, of course, the taxes due the city, which had also been assumed, were extinguished by confusion.

But the State Tax Collector does not seem to have shared the view that the city’s purchase and use of the lot for a public purpose relieved it from the pursuit of the State in enforcement of its demand for taxes, or else the city’s acquisition was lost sight of, and the taxes for 1885 appearing as unpaid upon the rolls, the lot in question was proceeded against, and offered for sale for taxes claimed to be due thereon, and in default of bidders was, by the Tax Collector, adjudicated to the State. This was in July, 1886. In October following, based upon this adjudication, the Tax Collector executed a formal notarial act of sale of the property to the State.

When this porperty .was thus adjudicated and title transferred to the State, for State taxes of 1885, the assessment rolls in the State Tax Collector’s office for 1886 showed the lot in question to be owned by the city, for it appeared on said rolls as assessed to the city for 1886 and opposite the assessment it was marked “Free”.

The title thus acquired by the State was held by it for three years, and then, in June, 1889, it was adjudicated and sold to Henry II. Sawyer for $26.17, being the amount claimed to be due the State on the lot on account of the taxes for 1885.

During' the three years the State held the title as aforesaid the property appeared each year upon the assessment- rolls as owned by and assessed to the city, and opposite such assessment always appeared the word “Free”, indicating its exemption from taxation.

From the time Sawyer became the adjudicatee as aforesaid, down to the present time, the lot has continued to be assessed in the name of the city and to be marked “Free” on the assessment rolls; and it does not appear that it was ever assessed to Sawyer, or that he has ever paid a tax on it. •

lawyer never took possession and never sued for possession, nor to be decreed to be the owner. He contented himself with serving annually upon the city in writing a notice of his claim of ownership and demand for rents.

This continued from the date of his purchase from the State, July, 1886, down to January, 1898, when, by notarial act, he sold and transferred to Tbornwell Gachet’ plaintiff herein, for the consideration of $125, all his right, title, interest and claim of ownership in and to the property.

It is noteworthy that a clause in this act of conveyance recites:— “According to the State and city tax-researches hereto annexed the said property is clear of all taxes up to and including the year 1897”.

That was true, the property was clear of all taxes, but it was so because the same had been assessed to the city and was for that reason held “free” of taxes. It was not because Sawyer, or any one else, had paid the taxes.

In July following his purchase, Gachet brought this action, petitory in character, lo be decreed the owner of the property and for judgment for the rental value thereof from August, 1889, at the rate of .$100 per month.

The defense is that the city acquired a valid title to the property which still remains in her. Further, that the property is public property and used for public purposes, and the prescriptions of one, two, three and five years are pleaded.

The judgment below -was favorable to defendant and plaintiff prosecutes this appeal.

From the foregoing statement of the case the legal conclusions determinative of the controversy are easily deducible.

When the city of New Orleans purchased the lot, one-half only of the year 1885 had elapsed, and it cannot be said the State taxes for 1885 had yet become due and exigible. The taxes for 1885 did not become due until the tax roll of that year had been deposited in the office of the mortgage records, and by Section 32 of Act 96 of 1882, this deposit of the tax roll was not required to be made before the last day of August of the year, and by Section 7 of Act 107 of 1884 the tax roll for the city of New Orleans was not required to be furnished by the Board of Assessors to the Tax Collector before the 1st of October of the year, which assessment roll, the statute declared, should serve as the basis for the State and city taxes for the year in which the same was made.

By Section 8 of Act 107 of 1884 the Board of Assessors for the parish of Orleans was given until July 31st of each year in which to complete the assessment of property for taxes', and after such completion the rolls were, by direction of Section 9 of the statute aforesaid, to be submitted to the Assessment Committee appointed by the City Council for its inspection and review, and this Committee on Assessments was not required to meet for this purpose until the second Monday in August of each year.

The effect of these provisions of the law is to show that when the city acquired title to the lot of ground in controversy, the assessment of the same for State taxes for the year 1885 was not even in a completed state — much less were any taxes for 1885 then due on the property. Nor did such taxes for 1885 become delinquent until after December 31st, 1885.

Section 40, Act 96 of 1882.

No State taxes, therefore, on the lot for the year 1885 had yet matured and become demandable when the city purchased, and all State taxes prior to 1885 had been paid.

Before the State taxes for 1885 became due and demandable the property had passed out of the hands of private ownership into the hands of public ownership.

Private ownership implies liability for taxes; public ownership immunity from taxation.

Property belonging to the city of New Orleans and used for public purposes is public property and owes no taxes.

Constitution 1898, Art. 230.

The moment public ownership of the lot attached — the moment it passed from the hands of IToxie to the city — developing liability to taxation was arrested, and in point of fact and law the State taxes for 1885 on the lot, under the assessment made in the name of the Estate of McConnell, IToxie’s vendor, never reached the point of maturity. The tax never became due, nor delinquent, and the lot could not be sold for taxes until delinquency had ensued.

It follows that the Tax Collector was without authority to proceed as he did in the attempt to enforce payment of taxes claimed to he due the State for 1885, and that his action in the premises was void.

Neither the adjudication made of it by him to the State, nor his later transfer of the State’s title to Sawyer, can be adjudged to have had any effect. Sawyer acquired no title and could convey none to the plaintiff herein.

“The tax law of a State”, says Desty in his work on Taxation, Yol. 1, p. 48, “applies to persons, only, and not at all to political bodies like municipal corporations, which exercise in different degrees the sovereignty of the State”.

Hence it is, that when property upon which State taxes are assessed is-acquired by a political subdivision of the State, like the city of New Orleans, to which certain powers of sovereignty and government have been delegated by the State, which property is acquired for purposes of public utility coming within the scope of the powers so delegated, and is immediately dedicated or applied to such purposes of public utility, the taxes so assessed in favor of the State upon the same cease to be exigible.

It pertains to the public policy of the State not to exact taxation on property so held and used.

Within the scope of the powers delegated to it the city stands for the State, and property acquired by the city in the due execution of its mandate from the State stands in consimili casu with property owned by the State itself, and taxes assessed in favor of the State upon such property must be held abated. It is a commingling of the qualities of debtor and creditor in such way that there arises a confusion of right extinguishing the obligation. O. C. 2217.

The assumption of the city, in the act of purchase from Hoxie, of the payment of the State taxes for 1885, can be viewed as having no other effect than as a guaranty to IToxie and his vendor, the Estate of McConnell, that they would be held harmless as against any attempt on the part of the 'State to collect the tax from them, or either of them. In this respect, the city was to stand between them and the State.

Such assumption can, by no means, be held as having the effect of authorizing the State to sell the lot for the taxes of 1885, if the city failed to pay the same, when the lot, by virtue of its acquisition by the city, assumed the character of “public property”, entitled to immunity from pursuit for taxes assessed against it.

If, without the city’s assumption of the taxes in the act of purchase, the lot would be free from the pursuit of the tax-gatherer, its assumption of the taxes did not lift the barricade and give the tax-gatherer a free hand.

The law alone must be looked to for his authority, and in the ease of property becoming “public property’’, like the lot in question, his authority over it in the matter of the enforcement of taxes ceased.

Judgment affirmed.


author: Monroe, J.

text:
    No. 13,391.
    State ex rel. James Bayhi et al. vs. James D. St. Alexandre, Clerk Twenty-Second Judicial District, Parish of St. Bernard.
    Syllabus.
    under Act No. 3 of 1894, it is the duty of the clerk to embody in the transcript of appeal the original, transcribed, stenographic report of the testimony, whether the duplicate required by said act is on file or not; the failure to file the duplicate being another question.

      ^ PPLLCATION for a Writ of Mandamus.

      A. E. & 0. 8. Livaudais for Relators.

      John TJymond, Jr., and N. K. Nunez for Respondent.
   The opinion of the court was delivered by

Monroe, J.

This is an application for a mandamus, to compel the Clerk of the Twenty-Second Judicial District Court, for the Parish of St, Bernard, to embody in the transcript of appeal, and without charge, the stenographer’s report of the testimony taken in the matter of Nemours H. Nunez vs. James Bayhi et al., No. 510, of the docket of said court.

From the respondent’s return, it appears that only the original report of the testimony was filed, and, when the relators (being appellants in the case in which the testimony was taken) demanded that such original should be embodied in the transcript, without charge, the respondent refused to comply with said demand on the ground, that, as no copy thereof had been filed, it was necessary for him to retain the original in order to preserve the integrity of the records of the court of which he is clerk. Thereafter, he proceeded to make a copy of the report of the testimony, and, when this had been partially completed, the counsel for the appellants informed respondent that he had a copy of said report, hut made no tender thereof, and respondent would not have received it, at that time, if it had been tendered, being of opinion that appellants’ counsel was at fault in not having filed said copy with the original report, and being of the opinion that the work dqne by him in copying said original, in order that he might retain the same as part of the archives of his office, should be compensated by the appellants.

Wo are not informed by the record whether the copy of the stenographer’s report which appellants’ counsel had in their possession was the duplicate which the law (Act No. 3 of 1894) requires the stenographer to prepare, to remain in the record, or whether it was a copy which the counsel had ordered for their own use. If it was the duplicate, prepared by the stenographer, in conformity to the statute, the counsel are to blame for not having delivered it to the clerk. But that does not affect the question before us! The law requires the clerk to embody the original in the transcript, and although it also provides that the duplicate shall remain in the record, that is another question, for which a solution is pointed out in the opinion in State ex rel. Legendre vs. Clerk, 47 Ann., 361.

It is therefore ordered that the alternative writ of mandamus herein issued be now made peremptory, and that the respondent be directed to embody, without charge, in the transcript of appeal, in the ease of Nemours H. Nunez vs. James H. Bayhi et al., the original transcribed stenographic report of the testimony taken in said ease, and now on file in his office.

It is further ordered that the respondent pay the cost of these proceedings.


author: WatKINS, J.

text:
    No. 13,234.
    Sigmund Mendelsohn vs. Peter Blaise.
    Syllabus.
    In a rule taken by tbe sheriff upon the parties to an executory proceeding for the sale of mortgaged property, to show cause why a title should not be executed to the purchaser, no guestion relating to the respective rights of mortgage creditors on the proceeds of sale can be determined.
    APPEAL from the Civil District Court, Parish of Orleans. King, J.

      William 8. Benedict for Plaintiff, Appellee.

      Buck, Walshe & Buck for Defendant, Appellant.

      Dinkelspiel £ Hart for Civil Sheriff, Plaintiff in Rule, Appellee.

      George W. Flynn for John Fitzpatrick, Intervenor in Suit and Sub-rogee, Defendant in Rule, Appellee.

      Felix J. Dreyfous for R. G. Martinez, Defendant in Rule, Appellee.
   The opinion of the court was delivered by

WatKINS, J.

The proceeding- in this case is identical with that in suit of same title, No. 13,171, this day disposed of, and for the reasons therein assigned, a similar judgment is entered in this case.

-Tudgment affirmed.


text:
    No. 13,201.
    Mrs. J. J. Bland et als. vs. Mrs. M. E. Edwards.
    'Syllabus.
    1. while the right of appeal is given to third parties not parties to the suit, they, as a condition to sustain their appeal, must allege and show wherein they are aggrieved by the judgment.
    2. In matter personal to the defendant, wherever it does not appear that appellant can have a grievance of any kind to complain of, in so far as he is personally concerned, he cannot be heard to set aside the proceedings.
    APPEAL from the. Civil District Court, Parish of Orleans. RigMor, J.

      Parherson & Tobin for Plaintiffs, Appellees.

      Ivy G. Killridge for Defendant, Apellee.

      W. 8. Benedict for Daniel Edwards, Intervenor, Appellant.
   The opinion of the court was delivered by

Breaux, J.

Plaintiffs, daughters of defendant, each duly authorized by her husband, brought this suit against the defendant, praying for a judgment of interdiction. The principal • charge set out in plaintiffs’ petition is, that in defendant’s mental condition, she is unable to manage her property; that she is entirely under the influence of one of her children who contrives to make her sign any deed he may choose to have signed, and that if this be not in some way stopped she will be left without a house and without means to support the five minor children who have their home with her. The defendant, mother, through counsel, substantially admits the truth of the aver-ments made.

The husband of the defendant died in 1887, leaving a large estate and ten children, the issue of their marriage. Some time ago, but a short time before the filing of plaintiffs’ petition, she executed an act of mortgage for the sum of thirty-five thousand dollars. Upon the trial, when questioned, defendant stated, with reference to this mortgage, that she did not know that she was signing an act of mortgage, or what she was doing, at the time that she signed; that she only complied with her son’s request in signing this and other papers. We infer from her testimony that her son’s wishes, with reference to her property, are absoultely controlling. The judge of the District Court rendered judgment in May, 1899, decreeing her interdiction. From this judgment, the son, of whose influence over his mother, plaintiffs, his sisters, complain, appealed.

He, the son, as third person in appeal, sets out as ground to set aside the judgment that the petition of interdiction does not aver a proper cause for interdiction; that the judgment was rendered without proper proof, and that none of the forms of the law were observed in matter of the interdiction, and that all this can be made manifest, if this court should issue an order authorizing further evidence than was heard in the District Court to be heard on appeal.

The allegation of appellant is that the matters and things involved in the issues before the court exceed the sum of $50,000, in which his interest exceeds two thousand dollars; that he is his mother’s agent, and that he is indebted to her.

Defendant has not appealed, and has not filed the .least complaint, since the interdiction has been pronounced. It must _ be borne in mind that there are rights that are merely personal; that give no right to interference because of a possible moneyed interest of a third person if it be not apparent that the rights of this third person will be prejudiced. The son alone appeals as relates to his asserted personal interest. It is true that a person not a party to the record may appeal by alleging a grievance of a personal nature and making a showing that there is ground for his compplaint.' There is nothing of record showing that the son’s interest, as relates to the defendant, will be in the least affected. There is no question raised of personal injury inflicted on the defendant by the proceedings. All questions relating to the defendant are entirely eliminated and not in the least to be considered under the issues as now presented. Now, as this son does not appear, as he well might, in proper proceedings, if the grounds justify it, to have the interdiction proceedings in his mother’s behalf removed or recalled, but sues only as relates to his personal interest, we do not think that he shows that he has an appealable interest. There is no question of property involved. Whether the proceedings were regular or irregular, his rights must remain the same.

Pecuniarily, be can have no interest, considered from the point of view made manifest by the record. To say the least, this third person, the son, appearing as an appellant, would have to introduce in’oof to sustain his appeal. Evidence would be required to show that the judgment appealed from is erroneous in that it affects a moneyed interest to which he has a right. To entitle one, who is not a party to the cause, to the right of appeal, he must have a pecuniary interest and he'must be aggrieved by the decision rendered. The only issue here is one regarding the son’s interest and grievance in that matter.. We do not think that it appears sufficiently to afford him the right of appeal. There are rights of the debtor which the creditor can not exercise. He can not, as a creditor exclusively, have removed or reversed a judgment of interdiction, even though the person is sound mentally. Without reference to the amount, the judge had jurisdiction. Constitution, Article 85. Appellant alleges that he has a pecuniary interest, and that he is his mother’s agent, proof of neither of which exists in the record; nor does he ask that the case be remanded to enable him to make proof. The Supreme Court can only exercise its jurisdiction in so far as it shall have knowledge of the matters argued 'or contested at law. De non apparentibuSj et non. existentibus, eadem est ratio.

We might remand the case in order to enable the appellant to prove how his interest will be affected, but he has made no demand to enable him to introduce proof and show his interest. He, it is true, alleges that by proper evidence by leave of this court, under Article 396 C. C., it can be shown that the judgment can be reversed. The article just cited can not be enforced by permitting further evidence to be heard before this court. The Constitution has determined the mode to be followed in bringing up appeals from inferior courts. The law provides that the appeal be heard on the pleadings and documents transmitted from the inferior courts. Evidence, therefore, coming up in any other manner, is not to be heard. The articles of the Code of Practice are plain upon the subject.

This court referred to Article 396 of the Civil Code in one of its decisions (chiefly as indicating the law’s solicitude in matter of interdiction), holding that it should be provoked only with the greatest care and after thorough investigation. Upon a careful examination into this question, we feel certain that Article 396 is a dead letter. It was one of the articles of the Code of 1808, and may have been given effect when courts of appeal had original jurisdiction to a far greater extent than they now have. It was copied in the Code adopted since, although certainly at variance with laws regulating appeals. C. P., 894.

The appeal is, therefore, dismissed ex proprio motu.

Blanchard, J., concurs in the decree.


author: Buanchard, J. IVIoNROE, J.

text:
    No. 12,973.
    In the Matter of E. & J. Kock vs. Charles L. Triche, Sheriff, Ex-Officio Tax Collector.
    Syllabus.
    Ox Motion to Dismiss Appeal.
    j. where the real issue raised is the legality or constitutionality of a tax, this court has jurisdiction.

      •J. And this jurisdiction is not to be defeated by skilfully obscuring the issue by. means of technical pleadings, or the want of them.
    3. whether or not, directly or indirectly, immediately or remotely, the legality of a tax in any form or manner is at issue, is the province of this court, and it alone to determine.

      i. It is as much an issue to be passed upon here as is that of the legality of the tax itself.
    On the Mebits.

      1 Where plaintiff avers payment of taxes assessed against him for a certain year as ground for injunction to stay the sale of his property, producing the tax receipts relied on, under the general issue pleaded by defendant evidence may be introduced to show that all of plaintiff’s taxes for the year had not been paid, and that the tax receipts did not include the particular taxes for non-payment of which the property was proceeded against.
    On Reheabing.
    This court will not exercise appellate jurisdiction upon the ground that the question of the constitutionality or legality of a tax is in contestation, unless such question is disclosed by the pleadings upon which the case was tried in the lower court.
    APPEAL from the Twentieth Judicial District Court, Parish of Assumption. — Guión, J.

      Edward N. Pugh for Plaintiff, Appellee.

      M. J. Cunningham, Attorney General, and G. Adolph Gondran, District Attorned, (Charles M. Cunningham, of Counsel,) for Defendant, Appellant.
   The opinion of the court was delivered by Blanchard, J.

On rehearing, by Monroe, J.

Buanchard, J.

On November 6, 1897, the Sheriff and Tax Collector of Assumption Parish began the advertisement of property for sale, upon which taxes, State and Parish, were delinquent.

The publication announced that, beginning with December 11, 1897, he would sell all the immovable property on which taxes remained unpaid for the year 1895.

The names of delinquent taxpayers, the amount of taxes due by each, and the description of the property upon which the taxes were due, were given.

Among others appeared the following:

“E. & J. Kock — 2876 93-100 acres — Belle Alliance Plantation, bounded by Mrs. A. D. Hernandez and Mrs. Truxillo, assessed at $122,870.00. Balance taxes due $378.75.”

On November 22, 1897, E. & J. Kock filed suit in the District Court of Assumption Parish, alleging that the Sheriff and Tax Collector had, without warrant of law, advertised their “Belle Alliance” plantation for sale, claiming that a balance of taxes was due thereon for 1895.

They averred payment of their State and Parish taxes for 1895 on all of their property, and especially on the Belle Alliance plantation, and annexed as part of their petition two receipts for taxes for 1895.

They ask the court’s writ of injunction to restrain the tax collector in the premises.

The preliminary writ issued, which, on trial of the cause, was perpetuated.

From this judgment the Tax Collector appeals.

The defense is a general denial.

On the trial the tax receipts referred to were offered in evidence by plaintiffs. Defendant objected on the ground that there is nothing in the receipts to show for what taxes, and on what property, payment had been made, no description of property and no i,mount of assessment being specified.

This objection was overruled and a bill reserved.

One of the plaintiffs, as a witness, testified that the taxes set forth in 'the receipts were paid on all the property of E. & J. Kock in the Parish of Assumption assessed for the year 1895.

On cross-examination he was asked whether, when the receipts were given by the sheriff, he (the sheriff) did not claim a further and additional amount of taxes from him than what was specified in the receipts, and, if yea, to' state why it was the additional sum claimed by the sheriff was not paid.

This was objected to by plaintiffs on the ground of inadmissibility under the pleadings. It was claimed there was nothing in the answer attacking the receipts, and the same could not be assailed under the general issue which alone had been pleaded.

This objection being sustained, a bill was reserved.

Evidence for the plaintiff closing with this, defendant offered the assessment roll of the year 1895, and the assessment thereon of plaintiffs’ property, with all entries relating thereto, for the purpose of showing, as explained, that the whole of the taxes due by plaintiffs for 1895 had not been paid, but only a certain percentage thereof.

He next offered an indemnity bond which plaintiffs had executed in favor of the sheriff-tax collector, dated the same day the tax receipts were, to protect the sheriff as against the difference between the amount of taxes plaintiffs were willing to pay and did pay that day, and the true amount called for by the assessment against them for 1895.

Plaintiffs objected to both of these offerings, and urged the exclusion of the evidence on the same ground previously urged and sustained.

The court ruled as it had done on the previous objection and defendant excepted.

The tax receipts offered by plaintiffs were properly admitted, being evidence of what they showed on their face, but nothing more.

They each showed certain items of State, Parish and Levee District taxes and an item of special taxes, aggregating, in the one receipt, $2572.00, and, in the other receipt, $481.35.

One receipt expressed that the tax collector had “received of E. & J, Rock two thousand, five hundred and seventy-two dollars, amount of taxes as itemized for the year 1895the other .that he had received of them “four hundred and eighty-one dollars and thirty-five cents, amount of taxes as itemized for the year 1895.”

They do not show that plaintiffs have paid all, or in full, the taxes levied on their property for 1895.

They exhibit only that he has paid such taxes for 1895 as appear itemized in the receipts.

A receipt for the payment of money is, anyhow, but prima facie evidence of what it recites.

Even if the tax collector had receipted plaintiffs in full against the taxes of 1895, when, in point of fact, they had not paid all, such action of the collector would not, of course, prejudice the State and Parish. When plaintiffs paid less than the whole amount which the books showed they owed for taxes, the sheriff should have received only on account what was paid, and the receipt given should have so read, describing, or itemizing, if the tax payer desired it, the particular items which were acknowledged and paid. There appears to have been error in the receipts given in not stating that the amounts received were “on account” of taxes assessed against plaintiffs for 1895.

The only witness placed upon the stand by plaintiffs does not eke out the receipts by testifying plaintiffs had paid all the taxes asserted against them for 1895, or that the receirits embraced the full amount of taxes claimed from them for 1895, or that the particular $378.75 of taxes, to satisfy which their property was. advertised for sale, is included in the amounts for which the receipts were given.

The ruling of the judge a quo, excluding the testimony sought to be elicited by the question propounded to the witness on cross-examination, was erroneous. So, 'too, were his later rulings excluding the evidence offered by defendant heretofore referred to.

' If the witness, Rock, had been permitted to answer the cross-interrogatory, we are justified in assuming he would have replied that the sheriff did claim payment of other taxes than what the receipts embraced, at the time he issued the receipts, and his further reply would have elicited the ground upon which plaintiffs resisted payment of the additional taxes claimed.

All this was directly responsive to the issue raised in the injunction suit, which was payment of taxes due for 1895, vel non, and it did not require, though it would have been better, for the answer to elaborate this issue in order for defendant to show that at the time receipts were given other taxes were claimed for that year and denied by plaintiffs. These other taxes may well have been those for which the property was being advertised for sale, and if not included in the receipts plaintiffs’ plea of payment would fall.

So the testimony sought by the question put to the witness Kock, tending as it did to show that the taxes now claimed are not embraced in the tax receipts which plaintiffs hold, was admissible under the pleadings. It was contradictory of the allegation of payment made in the petition and which was put at issue by the general denial of defendant’s answer.

The assessment roll of 1895, and the assessment thereon of plaintiffs’ property, should have been received in evidence, xt was offered to show that plaintiffs had not paid the .whole of their taxes for 1895. If it showed this, it was directly contradictory of the allegations of plaintiffs upon which the writ of injunction had issued, and was admissible in evidence under defendant’s plea of the general issue.

The bond of indemnity given by plaintiffs to the sheriff, when he issued to them the tax receipts, was clearly admissible as testimony showing plaintiffs’ admission at the time that more taxes were asked of them for 1895 than what was embraced in the receipts.

The tax collector evidently yielded to their demand that he should receive a less sum for taxes than his books showed they owed, and in order to hold him harmless on this account, they gave the bond of indemnity.

These other taxes, against which the indemnity was given, may well have been the $378.15 for which the plantation was offered for sale; and, if so, it was contradictory of plaintiffs allegation of payment of the taxes of 1895. The testimony was, therefore, admissible under pleadings which affirmed and denied payment.

Plea to the JURISDICTION.

A motion to dismiss the appeal is filed on the ground of want of jurisdiction ratione maleriae, thó amount of taxes claimed being less than two thousand dollars.

The contention of plaintiffs is that the only question which tifié suit presents is one of payment of their taxes for 1895. This denies that there is raised in the ease any issue of the legality of the taxes against which the writ of injunction is levelled. If, of "course, the real issue of the case is the legality or constitutionality of any tax, or part of taxes, asserted on one side and denied on the other, this court has jurisdiction without regard to the amount involved.

We have purposely left the consideration of this question to the last because the statement and argument of the case on its merits in the opinion greatly assists in its elucidation.

The appeal was properly brought here.

Whether or not, directly or indirectly, immediately or remotely, the legality of a tax in any form or manner is at issue, is the province of this court to determine. ■ *

That is as much an issue to be "passed upon here as is-that of the legality or constitutionality of the tax itself.

The language of the Constitution is intentionally broad and comprehensive in investing this court with jurisdiction in all matters relating to taxes and charges, their legality or constitutionality, levied upon the citizen or his property.

In State ex rel. Hill vs. Judges, 46 La. Ann. 1293, it was declared that:

“As cases arise under differing circumstances and under differing pleading's, we will determine whether the particular case falls within our exclusive appellate jurisdiction for decision or not.”

We affirm anew that declaration.

"The real issue, we think, in dispute in this cause is whether or not plaintiffs have paid all the taxes they legally owed for 1895. From under the cover of technical pleadings, this sufficiently appears. They do not pretend to have paid all taxes assessed against them. But judging for themselves what they owed, they paid it. That which they judged they did not owe, they declined to pay, though there was an assessment for it. In other words, what they concluded was legally assessed against them they paid; what illegally assessed they did not pay-

The evidence which defendant offered, and which we have held was erroneously excluded, would have shown that plaintiffs declined to pay part of the taxes levied against them for 1895. There could have been no sufficient reason for declining- to pay the part excluded, except that it was not a legal tax, or was illegally assessed against them. If both, or either, we have jurisdiction.

If the testimony of the defense had been admitted, we must, for the purpose of the trial of the motion to dismiss the appeal, hold it would have further shown that the tax receipts plaintiffs have do not include that part of the taxes for 1895 they declined to pay, and that the part they so declined to pay was-the very $378.75 referred to hefein, and against the collection of which they sued out this injunction.

If they have not paid it, they owe it unless it be, as to them, an illegal tax. They have not set up that they have paid this particular tax of $318.15 — only that they have paid their State and Parish taxes for 1895 as shown by the receipts they make part of their petition.

It sufficiently appears, we think, that down at the bottom of this controversy is the question of the legality of this particular tax of $378.75 — of this part of the taxes of .1895 assessed against plaintiffs-— and this court is not to be deprived of its jurisdiction by the — it may be — skilfully obscure way in which this, as an issue, is presented in plaintiffs’ petition.

The motion to dismiss is denied, and it is ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed and the case remanded to the court a qua to be proceeded with according to the views herein set forth, and the law, costs of both courts in this behalf to he borne by plaintiffs and appellees.

ON Rehearing.

IVIoNROE, J.

It appears that defendant had advertised for sale plaintiffs’ “Belle Alliance” plantation, for a balance, claimed to be due, of the tax of 1895, amounting to $378.75; that plaintiffs injoined the sale, alleging that they had paid the “State and Parish taxes for 1895, upon all their property situated in the Parish of Assumption, and especially on the ‘Belle Alliance’ plantationand that the answer to the petition for injunction was a general denial. There was judgment for plaintiffs, and defendant has appealed.

It is not pretended that any other amount is involved than the $378.75 mentioned, and it follows, and is undisputed, that the authority for the exercise of jurisdiction by this court must be found in so much of Article 85 of the Constitution as confers jurisdiction in “all cases,” in which the constitutionality, or legality of any tax * * * shall be in contestation; otherwise, that such authority does not exist.

Upon the trial of the case, in the lower court, plaintiffs assumed the burden of proving the payment set up in the petition, and offered certain tax receipts, and oral testimony; whereupon, the defendant offered evidence, which was objected to and excluded, upon the ground that the receipts offered by plaintiffs could not be impugned under a general denial. From the character of the offers made by the defendant, this court concluded, upon the former hearing, that a question as to the legality of the tax claimed would be found at the bottom of the controversy, and therefore exercised jurisdiction, and ordered the case remanded. Further consideration, however, has led to a different conclusion, the reasons for which will be briefly stated.

If the plea of payment, set up in plaintiffs’ petition, be regarded as applying to the $378.75 for which the property was advertised, it is too clear for argument that the only issue presented is, payment vel non, and that this court is without jurisdiction of the appeal.

If, upon the other hand, the plea of payment, which embodies the only allegation upon' which the injunction could issue, or upon the basis of which it could be sustained, is inapplicable to the only claim upon which the defendant was proceeding when injoined, it necessarily follows, that the petition discloses no cause of action. There is no averment that the tax, the collection of which is injoined, is unconstitutional, or illegal, and that question can .be imported into the case only hypothetically, by means of inferences and deductions, which may, or may not, be well founded; and upon the assumption that the courts will hear and pass upon such a question, without its being raised in the pleadings. Thus, we must infer, that the evidence offered on behalf of the defendant, and excluded by the judge a quo, would, if admitted, show that the assessment roll called, not only for the'taxes actually paid by the plaintiff but, for the $378.75, which are said not to have been paid; and we must deduce therefrom that the plaintiffs’ reason for not paying said balance of the tax, as called for by the roll, was, that they considered it unconstitutional, or illegal, or both. And, upon this basis of inference and deduction, we must proceed as though.this reason had been set forth, in the petition for injunction; as an is.sue to be tried in the lower court.

But, if the question upon which our jurisdiction depends is not in the ease, now, and can get into it only in the event that, upon its being remanded, the evidence to be introduced by the defendant will establish all that is claimed for it; and that the plaintiffs will then claim that their reasons for not paying the disputed tax were because they considered it unconstitutional or illegal, or both; and that it is considered that such a question can properly be raised in that way; it is clear that, whatever might be the outcome of these contingencies, the needed jurisdictional question has yet to be brought into the case, and that we are, at present, without jurisdiction to review any part of it, or remand it, or make any order with reference to it, except to dismiss the appeal, because no authority to entertain such an appeal is conferred upon this court.

The jurisprudence, upon this subject is settled to the effect, that “ whether on exception, or on the trial of the merits, a contestation “must be made, by pleading in the lower court, touching the consti- “ tutionaiity or legality of the law and the ordinance, in order that “ this court may exercise jurisdiction.” Town of Thibodeaux vs. Constantin & Bragard, 48 Ann., 338; State vs. Clesi, 44 Ann., 86; City vs. Reems, 49 Ann., 792; State vs. Hennessey, 44 Ann., 805; State vs. Tsni Ho et als., 37 Ann., 50.

It is equally Veil settled that questions involving the legality of assessments, and of over, and under, assessments, and of the mode of levying and collecting the tax, do not affect the legality or constitutionality of the tax itself; and hence that this court is not vested with jurisdiction by reason of the fact that such questions are involved.

Gillis & Kennett vs. Clayton, Assessor, 38 Ann., 285; Favrot vs. City of Baton Rouge, 38 Ann., 231; Minor vs. Budd, Sheriff, 38 Ann., 99; State ex rel. David vs. Judges, 37 Ann., 898.

In Bush & Levert vs. Police Jury, 39 Ann., 899, it appeared that the assessor had assessed the property of the plaintiffs at certain valuations, in which, though dissatisfied, they acquiesced. Subsequently, the Police Jury, acting as a board of reviewers, increased the assessments, and the plaintiffs then sued for a reduction. In their petition, they not only attacked the assessments as excessive, but th-cy set up the unconstitutionality of the entire system of assessments, as provided by the statutes. This court said: “'We must look, however, to the prayer of the petition in order to determine the true object,, and nature of the action;” and after quoting, in full, the petition, from which it appeared that the plaintiffs prayed that the increase of assessment be decreed null, and that the assessor be ordered to assess the property at its cash value “and for such orders as law, justice, and “ equity demands,” the court proceeded as follows: “It is obvious that “ nothing in the demand involves the ‘constitutionality or legality of “ any tax, toll, or impost, whatever, or of any fine, forfeiture, or “ penalty imposed by a municipal corporation.’ So far as' the relief “sought is concerned, it touches nothing but the assessment of the property, and asks only a reduction thereof to a proper valuation. “ In such cases, we have determined, by repeated decisions, that our “ jurisdiction is measured by the pecuniary amount in dispute, and “ that this amount is the differenece between the taxes payable on the “ assessment complained of and those which would be due on the “ reduction claimed.”

In the case now before us, it was stated, in the course of the argument, that the Police Jury, acting as a Board of Reviewers, had reduced the assessment of the plaintiffs’ property, but that the assessor persisted in the assessment as made by him; that the plaintiffs paid upon the basis of the assessment as made by the Police Jury, and that the $378.15 represented the difference between the tax, as based upon that assessment, and the tax, as based upon the assessment made by the assessor.

The statement thus made, whilst not considered part of the case, serves to illustrate .the proposition that plaintiffs’ -failure to pay the tax claimed might well have been entirely apart from any question of its constitutionality or legality; and, hence, that such a question not only is not in the case, but that it is more than probable that no attempt would have been made to bring it in.

Being of opinion, then, that we are without jurisdiction, ratione materias, it is ordered, adjudged and decreed that the appeal herein be dismissed at the cost of the appellant.

BLANCHARD, J., dissents,, adhering to the original opinion.