author: Breaux, J. Watkins, J.

text:
    No. 12,299.
    Fenner, Henderson & Fenner and Farrar, Jonas & Kruttschnitt vs. Succession of D. C. McCan et al.
    This suit was to recover on a quantum meruit for professional services.
    The guardian who was sued for the value of the services had authority to sue; it follows that whilst present, in point of view of the law, she could be made a party defendant.
    The provisions of the will could be defended and the professional services for the defence charged against the estates of those by whom they had been made.
    The heirs,'even after they have been placed in possession (under a decree not shown final) may be impleaded for a succession debt. They received the property cum onere.

    The executor was not condemned personally to pay costs and therefore the judgment pleaded as res judicata did not have the effect of the thing adjudged.
    The commission that an executor may receive is not such a pecuniary interest as will, on the ground of interest, render him personally responsible for the fee of counsel employed to defend the will under which he received his letters of administration.
    The value of the professional services considered and the amount taxed to the succession.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Percy Roberts for Plaintiffs, Appellees.

      E. Howard McOaleb for Mrs. Mary G. T. Stempel, Guardian, Defendant, Appellant:
    I.
    This suit is brought by plaintiffs to recover for professional services rendered in the succession of D. C. and H. C. McCan. 48 An. 145.
    II.
    The court a qua had no jurisdiction over a New York guardian to makes the estates of her wards responsible for the attorney’s fees claimed after she was authorized to remove the property out of this State. The authority of a foreign guardian over the estates of her wards is strictly territorial and does not extend beyond the Scate of her appointment. Am. and Eng. Ency. of Law, Vol. 9, p. 123; Bradf. (N. Y.) 334; 3 Redf. (N. Y.) 249.

      A judgment against minors is not valid when the judge has no jurisdiction. C. P. 93. A curator ad hoc should have been appointed. O. P. 116.
    III.
    Professional services rendered in attempting to sustain wills containing substitutions and ftdei oommissa in violation of a prohibitory law can not be charged against the estates of minors. R, C. C., Arts. 1520, 11, 12.
    IV.
    After heirs have been sent into possession, by final decrees of a competent court, the successions are terminated and can not be impleaded. 30 An. 128; 25 An. 56, 220; 28 An. 446; 29 An, 838; 33 An. 830; 43 An. 1133.
    V.
    The judgment condemning Harry H. Hall, the trustee under the wills, to pay costs, has the authority of the thing adjudged against plaintiff’s demand. 5 La. 107; 6 An. 129; Redfield on Wills, Vol. 1, 495; 1 MeOarter, 135; 45 An. 89.
    VI.
    Attorneys can not recover remuneration for services from those who did not employ them. 5 An. 481; 27 An. 411.
    VII.
    Legatees, testamentary executors, administrators or trustees having a direct pecuniary interest in the maintenance of a will, must pay their own counsel fees, and can not shoulder the charge on the estate or the heirs. 8 An. 51; 13 An. 364; 28 An. 183; 11 Martin, 327.
    VIII.
    Harry H. Hall, the trustee, under the wills of the deceased, being pecuniarily interested in maintaining the trusts, and having charged commissions as trustee, is personally liable to the plaintiffs and not the minor heirs, represented by their guardian. 13 An. 590; 7 Ohio St. Rep. 143; 2 Watts (Pa.) 232; 7 Watts (Pa.) 170; 3 Watts & Serg. 441; 13 Pa. St. 569.

      IX.
    The only question propounded for determination in the succession of McCan was whether the decision in the succession of Strauss violated the express provision of the Civil Code prohibiting substitutions and Jidei commissa, and the established jurisprudence of the State construing this prohibition.
    X.
    Services rendered by counsel in succession matters under the eye of the court must be taxed by the court itself, regardless of the opinions of attorneys. 3 An. 518; 4 An. 578; 8 An. 66.
    Argued and submitted March 5, 1897.
    Opinion handed down March 15, 1897.
    Rehearing refused April 12, 1897.
   The opinion of the court was delivered by

Breaux, J.

Plaintiffs brought this suit upon a quantum meruit, ifor their fees for services rendered in defending the wills of the late David C. McCan and his wife, Mrs. Hester C. McCan.

The two wills left by them were duplicate of each other. In making these wills, the testators copied the wills in the Strauss case (Succession of Strauss, 38 An. 55).

These wills were probated and ordered executed. Harry H. Hall was appointed as sole testamentary executor, with seizin of the property. He administered the estate about two years.

Mrs. Stempel, mother of the grandchildren of Mr. and Mrs. McCan, a resident of the State of New York, was appointed guardian of her children.

Proceedings were instituted by her in matter of the succession of ‘Charles P. McCan, her first husband, to have herself recognized by the Louisiana courts as the guardian of her minor children under the Saw of her domicile, New York.

She was recognized and procured an order sending her into possession of their property.

Her application was granted under the provisions of Articles 363 and 364 of the Revised Civil Code.

Subsequently, she instituted suit to set aside, annul and rescind the testament of Hester C. McCan, widow of David C. McCan, and to cancel the probate of the testament on the ground that it contained dispositions reprobated by law, prohibited substitutions, fidei commissa and impossible conditions.

The executor considering it a matter of duty to defend the will against the attack of the guardian, employed counsel to represent him. Their services were rendered in this court and in the District Court for the parish of Orleans.

This court (while recognizing that it is preferable always for courts to yield to precedent, and to maintain, as far as possible, uniformity in jurisprudence), entertaining a decidedly different view of principle from that announced in the cited case, ubi supra, overruled the prior decision, and decreed that the provision keeping the estate from the legal heirs, must yield to the law; that under our Code the administration of the executor must end, whenever legally required by the heirs.

The executor, in compliance with the decree of the court, turned over the entire estate, amounting to about one million and a half dollars, toj the guardian. Plaintiffs immediately after brought ■the present action for their services.

Counsel for defendant, before entering upon the argument of the issues raised by the exception and answer, controverted the authority of the lower court to render a judgment condemning a foreign guardian to pay to the plaintiff the sum claimed out of the estate of her wards.

The other questions, raised by the exceptions and answer, were, that plaintiffs’ petition' discloses no cause o( action, because the services sued for were rendered in the ineffectual attempt to sustain wills made in violation of a prohibitory law; because the heirs having been sent into possession by a final decree of a competent court, •the succession was terminated and could not be impleaded, because the right of an attorney to remuneration depends on a contract or appointment, and he can not recover from one who did not employ him, and, lastly, because the amount claimed by plaintiffs is unreasonable, excessive, and entirely disproportionate to the services rendered.

From a judgment condemning the defendant to pay the amount -claimed she applied for and obtained an appeal to this court.

We take up the first issue before us for our determination, the authority, vel non, of the defendant to defend a suit brought against her wards to make them liable for a moneyed judgment.

Of course, the authority to sue is not questioned by the defendant, but her authority to be sued is denied by her.

It must be taken as true that, primarily, the rights and authority of guardians are circumscribed by the laws of the territory of their appointment. In conformity, however, with a settled principle of comity among the States of the Union, guardians are recognized and allowed to sue. Due recognition was given to her in this case, by an order of the District Court authorizing her to sue for and recover any property without the necessity of qualifying here as tutrix of the minors. Before this order was issued, proof had been made to the satisfaction of the court that the defendant here was a lawfully constituted guardian, appointed by the proper court, and had given bond at the court of her domicile in the amount required.

The guardian, in procuring her recognition, subjected herself to the form, manner, regulations and responsibilities provided by law in the matter of a tutorship. The rights of the tutor to sue necessarily implies the corresponding liability to be sued; an exception does not arise in case of a guardian, quoad his claim placed on the same footing as a tutor appointed here.

Otherwise, it would be giving a decided advantage to a guardian or tutor appointed under other laws than our own. “No nation, ’ ’ says Mr. Story, in his work on Conflict of Laws, p. 39, “ will suffer the laws of another to interfere with her own to the injury of her citizens.”

In our judgment, the demand of plaintiffs was not an independent, demand, but one connected with and incidental to the claim presented by'the defendant, which claim was subordinate to the right of creditors. “Succession is the transmission of the rights and obligations of the deceased to the heirs.” C. C. 871. No reason suggests itself why the “obligations” provided by the Code should be, as relates to remedy, less binding upon foreign heirs than those within the limits of the State. One seeking a right as an heir must be held bound without regard to domicile, for the burden it imposes. He must take the benefit cum ónere. In its broad sense, the maxim: Qui sentit commodum sentire debet onus, applies.

Under Our law a home tutor sued, as in this case, would be held bound to defend the suit. It follows that the liability of a foreign guardian is not less.

The defendant urged upon this court that a curator' <xd hoe should have been appointed and made a party to defend the suit. In our view such an appointment was not indispensable. Defendant, we think, by her pleadings came within the rule that all persons who are found within the limits of a government, whether their residence is permanent or temporary, are to be deemed subjects thereof. Story Conflict of Laws, p. 40. She was within the limit of the judicial authority of the State.

We will conclude upon this point by the statement that the suit was properly brought against the executor and the heir who had accepted the succession and who were in possession of the property of the succession.

Our attention is next directed to the issue; that the services sued for were rendered in the ineffectual attempt to sustain wills made in violation of a prohibitory law and the public policy of the State.

Even conceding for the moment that the will was as averred by the defendant and that the one by whom it was signed as testatrix sought to contravene the public policy of the State, it does not follow that the counsel who defended the will were parties to an act violating the law and contrary to public policy.

Counsel would be entitled to a fee, who, in good faith sought to maintain the provisions of a will annulled (despite the defence made) as in violation of law and the policy of the State.

But we can not overlook the fact that Mrs. McCan did not knowingly and intentionally violate any statute, and that, on the contrary, she had every reason to believe that she was, in making this will, acting entirely within the sanction of law.

Taking one thing with another, we think we are justified in the inference that an extreme position was advanced upon this point, in order to give greater force to the more reasonable proposition advanced, that an attorney can not recover from one who did not employ him.

Before taking up the issue; the authority vel non of the executor in matter of the employment of counsel, we deem proper to state that there was no objection raised, on the ground that two firms were employed. Our predecessors laid down a rule (Succession of Gayle, 37 An. 554), adverse to the employment of more than one counsel, entirely correct, as we think, in most cases.

But it appears, in this case, that the trial was expedited; that all the parties concerned were anxious to facilitate an early adjudication of all questions involving the validity of the wills of Mr. and Mrs. McCan. In consequence it is claimed that the services were, much more laborious and much more troublesome than they otherwise would have been.

Be this as it may, we propose to discuss the issue raised, of the absolute want of power in the executor to employ counsel to defend the wills, the validity of which was involved.

The executor is the mandatory of the deceased, his power is founded upon special confidence, he is bound to use every reasonable endeavor to comply with his wishes.

The duty, under the will, extends so far as to allow him discretion in the matter of employing counsel be carry out the trust confided to him as executor. The executor is the singled out friend who enjoys the confidence of the testator in the closing hours of his life. II est chargé d’assurer l’éxécution des derniéres volontés du défunt.” Laurent, Sec. 361, Vol. XIV. Dés que l’intérét des legataires est en cause Péxecuteur a qualité pour agir.” Ib.

The grandparents sought to secure during the minority of their grandchildren an administration of their own selection. The loss of their only son, the father of these children, and the second marriage of their daughter-in-law gave rise to great concern, even alarm, it is asserted on the part of the grandparents, for the future welfare of their grandchildren.

Having accepted the trust the executor could not consistently with his duty do otherwise than employ counsel and present the strongest possible defence against the attack of the mother and guardian of the children; against the validity of wills which had been duly probated. It became his imperative duty to do everything necessary to sustain the validity of the decree under which he held letters of executorship. It was not possible, without disregarding a plain duty, to deliver the large estates with which he had been entrusted by the owners for the purposes we have seen, without the least defence. It follows, the defence required, authorized the employment of counsel.

We pass to the next proposition argued, that the foreign guardian having been put in possession of the property of the successions, the courts here have no jurisdiction of a suit against her to recover a debt of the successions.

Suit was brought against the executor and against the heirs. We understand from the record that the guardian was authorized to enter into possession of and remove from this State all the movable property. We do not understand that these estates have been fully administered and liquidated in such a way as to preclude creditors from recovering amounts due them. There was no final account filed, nor have we found of record evidence that the executor was discharged. Leonard vs. Smith, 28 An. 810.

Heirs in possession of succession property may be sued. Soye vs. Price, 30 An. 93. While it may be that practically the executor was discharged under the authority of the decisions just cited, in our view they, the executor and the guardian, were proper parties defendants.

This brings us to defendant’s plea of res judicata, This plea is based upon the ground alleged that the executor personally, and not as executor, was condemned to pay costs in the case in which the services of the plaintiff were rendered and that the executor having complied with the judgment it had the effect of putting an end to the plaintiff’s claim.

The executor was not personally condemned to pay the costs. The execution of the judgment, by putting the heirs in possession, does not operate as res judicata. The plaintiffs are the creditors of the succession and are not bound by the action of the executor.

The defendant, in the next place, insists that the professional services rendered at the instance of the executor in defending the will is not a legitimate charge against the estate. The executor would have, if this be the correct view, personally to pay counsel for services in defending the provisions of a will. Although the will of the testator should be obeyed, the executor, who is the personal mandatory of the deceased, would be, save at his own expense* without the power to employ counsel.

Our examination and study of the issues have not brought us to that conclusion. The defendant, in support of her contention upon this point, cites three decisions wherein it was held that an attorney can not recover from one who did not employ him, however valuable may be the result of his services to such person.

In the first case cited, Roselius vs. Delachaise (5 An. 481), the plaintiff who claimed for services rendered had not been employed by the defendant from whom he sought to collect a fee.

In the second cited case, Wailes & Matthews vs. Succession of Brown, 27 An. 411, it was decided that an heir is without authority to bind the succession; that he alone should bear the expense of counsel employed by him, and not the succession of which he is one the heirs.

In the third case cited, Cooley and Lacoste vs. Cecile, 8 An. 51, the legatees were in possession of the property; suit was brought against them personally and not against the succession from which they inherited. These legatee were not charged with the execution of the testament assailed. Counsel sought to hold legatees responsible for their fee, by whom they had not been employed, on the ground that their services had enured to the benefit of all the legatees, and that the succession was responsible. The court did not sustain the claim. It was a matter personal to the legatees by whom counsel had been employed. Were it otherwise, every legatee might claim the right to defend title to property inherited, and at the expense of the succession, long after the succession had been closed.

Here the executor stood in the position of an agent vested with some discretion in carrying out the will. He derived his power from the appointment. It had been confirmed by a judgment of the court probating the will. It happened that the guardian of the only heirs sought to have it annulled, and that the executor alone was in a position to defend the provisions of a testament solemnly made, containing the last wishes of the decedent. The employment of counsel was proper, and established the relation between counsel and the succession of client and attorney.

The next propositions urged by the defendant are, in substance : That the executor had a personal interest, and, secondly, that the estate derived no benefit from the services of plaintiffs.

In support of her first contention, relating to alleged personal interest, the defendant cites several decisions of this State and of other States. The former (under the laws of this State), have uniformly held, as we appreciate them, that an administrator or executor, who has a personal interest to defend, or who has committed acts of mal-administration, can not have his interest protected or his illegal acts defended at the expense of the succession he represents.

No such issue is presented in this case. The commissions allowed are in compensation for services as administrator or executor, and are not treated in any of the decisions that we have read upon the subject as a “personal interest” of the officer of the court through whose agency a succession is settled.

The complaint of the defendant, that the estate was not benefited by the services, was not a controlling issue. The services may not have resulted to the benefit of the estate in a material point of view, and yet, owing to the will of the grandparents, may be due by their successions. It was their last declaration in will form, which rendered necessary the employment of counsel. It binds their heirs.

That the amount claimed by plaintiffs is unreasonable, excessive and disproportionate to the services rendered, is the last defence urged by the appellant in opposition to plaintiffs’ demand.

The plaintiffs were employed in two suits brought by the guardian to annul the wills; one of these suits was brought against the sue - cession of David C. MeOan and the other against the succession of Hester MeOan. The case in the two successions involved large amounts. The questions involved were intricate. The counsel employed offered every guarantee which is required of the profession; independence, devotion to duty, industry and a thorough knowledge of the law.

They were opposed by a number of lawyers equally as able and indefatigable in the interest of their clients. The case was thoroughly argued orally and in briefs. <

In other words the fee claimed possesses every element of value. First, position and eminence of counsel at the bar; second, importance of the question involved; third, responsibility assumed by counsel; fourth, extent and character of labor performed; except one which we have purposely omitted from this foregoing enumeration, i. e., the pecuniary interest involved. It was not as large as we infer it was thought by the worthy counsel who testified as expert before the District Court. The question was: Who should administer the estate, whether the foreign guardian or the executor as trustee? It was of importance, it is true, to carry out the wills of the grandparents; that of itself invested the issues with some magnitude and gave value to the services, not as great, however, as if the title to the property had been involved.

There was no question of personal interest in the sense of title to property.

Considering the question from this point of view, we think the judgment should be amended and the amount of the fee reduced to ten thousand ($10,000) dollars, for all services claimed for defending the will of D. C. McCan and the will of Mrs. Hester C. McCan.

It is therefore ordered, adjudged and decreed that the amount of the judgment appealed from be and the same is reduced from twenty-five thousand dollars to ten thousand dollars; as amended the judgment is affirmed, at appellee’s costs.

Dissenting Opinion.

Watkins, J.

The plaintiffs, Fenner, Henderson & Fenner, and Farrar, Jonas & Kruttschnitt, two firms of attorneys at law, of the city of New Orleans, instituted this suit for the recovery of the sum of twenty-five thousand dollars, as the amount due them on a quantum meruit, for professional services rendered for the succession of the defendant, in a certain litigation involving the validity of the will of the decedent, under which the grandchildren were testamentary heirs, being at the same time the legal and forced heirs of the testatrix, and minors represented by a guardian appointed under the laws of New York.

The testament left by the deceased was in the olographic form, and her large and valuable properties and assets, of the aggregate value of one and a half millions of dollars, were bequeathed thereby to the aforesaid grandchildren, equally and in indivisión. It made no special bequests of any kind. Of that testament, Harry H. Hall was appointed co-executor with David C. McCan, the husband of the testatrix; and the former became the sole executor, by reason of the fact that the latter died before the testatrix, and the rights of the testamentary heirs thereby became absolute, as, by the death of D. C. McCan, his right as universal legatee lapsed.

The will contained the provision that, during the minority of the testatrix’s grandchildren, the money, the property and values given them conditionally be administered by his friend, Harry H. Hall; and he was directed to invest said moneys, in good securities or properties, and to apply to their education and support such a part thereof as may be necessary.

The will contained the following provision, viz.:

“ I give all I may die possessed of to my grandchildren * * * In case either of them die before attaining the age of majority, then the part or portion given as above conditioned to accrue to the survivors, likewise conditioned on such survivors attaining the age of majority; the true intent being to make my grandchildren my universal legatees, upon condition that they reach majority.

The will was duly probated, the executor qualified, and the administration of the estate began.

Some years afterward Mary Tobin Stempel, the mother and guardian of the minors, being advised that the quoted provisions of the will were obnoxious to our law as a prohibited substitution, and fidei commissum which rendered same absolutely null, instituted suit against the executor and prayed for a decree annulling the same, and decreeing the plaintiff entitled to immediate possession of the property of the deceased ancestrix, as the direct representative of the legal and forced heirs — terminating the trust of Harry H. Hall, and his administration as executor.

For full particulars and details of the pleadings and judgment in that case, I refer to our reports. Succession of McCan, 48 An. 145.

The executor retained the services of the plaintiffs, who undertook the defence of that suit; and also of one other of same import, relating to the succession of D. O. McCan, but which cuts no figure in this case, as it was a companion of the one first adverted to, and never came to trial. In my view, and I think that it can not be questioned — that litigation involved but a single question of law, and that was the fidei commissary character of the provision I have quoted. Vide supra.

Roundly and fairly stated, the question was whether the adminis - tration of the property of the testatrix, hy a person designated in the will, during the minority of the grandchildren, was not the creation of a trust which is reprobated in our law; and that contention being sustained, that the administration should terminate, and the possession of the heirs be resumed. '

This being conceded, it is apparent that the sole purpose of the suit w^s to rid the estate of this trust, and put the legal heirs in possession — that, and that alone.

Consequently, the value involved was nothing but the cost of Hall’s administration, and not the properties of the estate. For it difi not owe a dollar to any one, and there was no claimant adverse t'b the heirs, except H. H. Hall as administrator of the revenues of the 'estate.

The suit finally terminated in a judgment of this court annulling the will and decreeing the grandchildren entitled to immediate possession of the property and estate of their grandmother as her legal and forced heirs — the theory of the opinion of the court being that the will contained afidei eommissum.

It is for services the plaintiff rendered to the executor — in his capacity above explained — adversely to the contention and demand of the legal heirs, that they make claim in'this suit for twenty-five thousand dollars as compensation. That demand is not predicated upon a contract, but upon a quantum meruit; and it is from that standpoint that this court is called upon to appraise and value those services, coming as they did within its cognizance and under its immediate observation.

There is no question in my mind as to it having been the legal right as well as the manifest duty of the executor, circumstanced as he was, to defend the suit and uphold the validity of the will, and for that purpose to employ counsel to assist him therin, notwithstanding he was and is a capable lawyer and a leading member of the legal profession.

He had before him as exemplars the case of Succession of Macias, 31 An. 127, and the case of Succession of Straus, 38 An. 55.

But this court having found and^decided that those cases were not a proper foundation for the will of the testatrix and decreed it to be a nullity, the question arises as to what extant the succession and legal heirs were actually benefited by plaintiff’s professional services. From the standpoint of the executor there is no doubt that the succession and testamentary heirs were to have been prospectively benefited by the maintenance of the will through the instrumentality of his attorney’s assistance; but, having lost the suit and the'blatas of the testamentary heirs having been defeated by the annulment of the will, the question is as to the obligation which was imposeckupon the succession thereby, which the legal heirs were necessitated to--pay, as a condition precedent to their taking possession thereof. •

There is not any question — indeed, there could not be — oí the ability, energy, integrity and assiduity of the plaintiffs as lawyers, or with regard to the value of their services, taken as an abstract proposition relating to the executor in his relations to the estate, but, in my opinion, their value taken in respect to the resulting benefit to the legal heirs is quite another thing. If I am correct ii) the assumption that there was nothing involved in the original litigation except the administration of the succession and the investment of its revenues during the minority of the testamentary heirs, the possible benefits thereof to the executor and to Mr. Hall per - sonally could not have amounted to more than fifty thousand dollars in round figures, the proof disclosing that he has already received from the succession over thirty thousand dollars.

Taking that amount as the basis of my calculation, in my opinion ten per cent, on that sum — that is, five thousaad dollars — would have been a reasonable compensation for the services of counsel if they had successfully resisted the suit of the legal heirs to annul the will, but having been unsuccessful, the judgment of this court awards them just twice that sum.

In Succession of Heffner, ante, page 407, we had under consideration a question quite similar to the one under investigation in this case, with the important exception that in the Heffner will there were several special legatees named, and among the number the executor was mentioned as a legatee for about one-third of the estate, which aggregated about fifteen thousand dollars or twenty thousand dollars. In the suit for the annulment of the will the various legatees were made parties, and they united with the executor in resisting the suit of the legal heirs to annul the will and likewise the special legacies. The executor and the legatees united in the employment of Messrs. Wise & Herndon, attorneys at law, of the city of Shreveport, to represent their mutual interests in the suit, and they did so represent same in the District Court and in this court, and unsuccessfully, the will having been annulled.

Upon the final account when filed the fee of the attorneys was placed at the sum of five hundred dollars, that is about two and one-half per cent, upon the total value of the estate, or ten per cent, upon the total interest of the executor. The District Judge rejected this item on the account entirely, but upon appeal to this court the same was restored to the extent of allowing to the attorneys the sum of three hundred dollars only — a little more than one-half of the amount originally claimed.

There can be no question of the ability, integrity or assiduity of the attorneys employed. None of the exact applicability of that case to the instant one; except as to the fact of the special legatees having been joined with the executor, thus making it a stronger case for the allowance of fees.

And, pursuing the theory announced in that case, it seems to me-that twenty-five hundred dollars for the services of the plaintiffs is the full quantum meruit value of them; and that only for that amount did the succession incur any legal obligation. And in view of that opinion the legal heirs ought not to be called upon to reimburse the executor any further sum.

For these reasons, I respectfully dissent from the opinion of the majority of the court.


source: Caselaw Access Project

author: Miller, J.

license: Public Domain

text:
    No. 12,446.
    State of Louisiana vs. Armille Veillon.
    The court again affirms that the statement of the judge in signing the bill must prevail when there is a conflict between the statement and. the recitals of counsel.
    When no subpoena for a witness not 'served, and no attachment for the absent witness who has been served, are asked by the accused when his case is called for trial, a continuance is properly refused, when at a later period, (in this ease the day following that when the case was first called) the continuance is sought on account of the absence of the witnesses.
    A PPEAL from the Eleventh Judicial District Court for the Parish of St. Landry. Dupré, J.

      M. J. Cunningham, Attorney General, B. Lee Garland, District Attorney (C. W. DuBoy of Oounsel), for Plaintiff, Appellee.

      John N. Ogden and E. P. Veazie for Defendant, Appellant.
    Submitted on briefs April 3, 1897.
    Opinion handed down April 12, 1897.
    Rehearing refused April 26, 1897.
   The opinion of the court was delivered by

Miller, J.

The accused, sentenced for larceny, appeals, relying on bills of exception in which he claims he was forced to trial on admissions by the District Attorney under the Act No. 84 of 1894, and denied the benefit of witnesses giving their testimony before the jury.

Of course, we must be governed by the statements of the trial judge when they conflict with the recitals in the bill. The judge states explicitly in signing the fifth bill of exceptions that while the District Attorney did make an admission with reference to the testimony of absent witnesses, the admissions had no influence on his ruling, and thejudge assigns other grounds for his ruling.

The first bill was to the refusal of an attachment to secure the presence of an absent witness, the father of the accused. The bill recites the accused was forced to trial on the admission of the State that the witness would give the testimony stated in the affidavit of the accused. The judge assigned other grounds. The second bill is to the refusal of the judge to order a new subpcena fur a witness not found on the first summons. The third bill is to the refusal of a continuance on the ground of the absence of three witnesses, and the fourth bill in the order not of time of presentation to the judge, but last in the order of discussion here, is to the refusal to suspend further proceedings in the trial to obtain the presence of the absent witnesses.

The statements by the judge in signing these bills is substantially: the case was fixed and called for trial on the 9th of February, the State then ready, but there was a continuance to the following day to obtain the attendance of defendant’s witnesses, it being disclosed that one had been served, but was not present, and the other not served, because of the inability of the sheriff to find him. It appears that on the 9th of February neither a subpcena for the one or an attachment for the other was asked, and in this condition the case was continued to the 10th. On the evening of that day, an attachment for the witness served was asked and allowed, without prejudice to the State, and the trial proceeded; s the application for a new subpcena was refused at that stage for a witness known on the day before to have not been served. It seems, too, by the bill that the accused had the benefit of another witness, who testified to the same effect attributed to the absent witness by the affidavit of the accused. It is shown that the trial begun on the 10th, was not concluded until the 11th, at 8:80 p. M., ample time, the bill states, to have obtained the attendance of the witness, asked to be attached if the accused had availed of the permission accorded by the court. Subsequently, there was an application for a continuance on account of the absence of the witnesses, and still later, another application on the second day of the trial, to suspend further proceedings until the attendance of the absent witnesses could be secured. Both applications were refused and bills reserved.

The argument in this court has been largely directed to the act of 1894, authorizing the State to force the trial of criminal cases on admitting that the absent witness relied on by the accused would testify as claimed by the accused. But this contention must be laid out of view under the statements of the trial judge. The right to continuance must be tested by the other grounds assigned on the bill.

In criminal cases, it is not an unreasonable requirement that the accused, desirous of securing attendance of absent witnesses, should make a timely application for the requisite process. The brief for the accused alludes to the informal fixing of the case for the 9th. As we read the bills, the case was fixed for that day and continued. Then on the 10th, when the case came up, we have before us an attachment granted, with a qualification that still would, in all probability, have secured the attendance of the witness in time. But the accused did not avail of the privilege given him. We have later in - the trial, on the following day, the application for a continuance, and then still later, for a suspension of proceedings. Dealing only with the questions submitted by the bills restricted by the statements of the judge, we are constrained to hold there was not sufficient diligence exhibited for the continuance asked by the accused. Our view on this, the controlling question, disposes of others discussed in the briefs, or rather renders unnecessary any expression of our views beyond the issue, we think, determinative.

It is therefore ordered, adjudged and decreed that the sentence of the lower court be affirmed.


text:
    No. 12,456.
    E. A. O'Sullivan vs. The City of New Orleans.
    The city charter restricts the compensation o£ the city attorney to his salary and excludes the charge by him for services in a suit brought against the city to revoke a legacy for the benefit of the poor. Charter, Act No. 20 of 1882, Sec. 27.
    A PPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Farrar, Jonas & Kruttschnitt for Plaintiff, Appellant.

      Samuel L. Gilmore Oity Attorney, W. B. Sommerville, Assistant Oity Attorney, for Defendant, Appellee.
    Argued and submitted April 2, 1897.
    Opinion handed down April 12, 1897.
   The opinion of the court was delivered by

Miller, J.

The plaintiff appeals from the judgment dismissing his suit for a fee for professional services as attorney for the city, in a litigation in the United States Circuit Court, in which the legacy to the city for the benefit of the poor, made by the will of D. V. Sickles, was sought to be revoked by his heirs. The answer is that the plaintiff was the attorney for the city elected under the charter, and that the claim for compensation for professional services beyond his salary is excluded by the charter.

The section of the charter bearing on the controversy is as follows:

Sec. 27. The City Attorney shall be the legal adviser of the corporation on all matters in which his advice may be necessary, and represent said corporation within the State in all judicial proceedings, suits, acts and contestations in which it may have an interest as hereinafter provided. No extra compensation or fee shall be allowed him, and no attorney shall in any case be appointed to assist him, unless by a vote of two-thirds of the members present of the council; he shall receive a salary of three thousand five hundred dollars per year. He shall have the appointment of all assistants or assistant counsel that the council may allow him. He shall be appointed by the council for the term of four years.”

The plaintiff’s services were to preserve the legacy by D. V. Sickles made to the city years ago for the benefit of the poor. The fund, increased by investments and accumulation, forms no portion of the resources of the city for the support of the municipal government. The fund has always been kept apart and distinct and the power of the city is, we think, one of administration. From this it is argued that the services for which plaintiff claims compensation, .are to be deemed not within the charter provision as to his fees, because rendered in the interest of this separate fund. We are of the opinion, however, we are not at liberty to construe the charter in accordance with the argument urged on plaintiff’s behalf. The city, as the custodian and administrator of the fund, was sued. It was part of the functions of the city to defend the suit, and under the charter the city was restricted for the defence to the City Attorney, made by the charter the legal adviser of the corporation, with the duty of representing it in all suits and proceedings in the State. The language embraces, in our view, all suits in the State directed against the city. Though this suit to revoke the Sickles fund was one not affecting the fisc of the city, yet it was directed against the city as the custodian of a fnnd for the poor. With every desire to construe the charter so as to afford compensation for useful professional services, we are led to the conclusion the charter excludes the plaintiff’s demand.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed with costs.


text:
    No. 12,409.
    The State of Louisiana vs. Nicholas B. Namias.
    The market ordinance oí the city oí New Orleans, prohibiting the sale oí vegetables or iruits by peddlers or others within six squares of a public market, is valid. Dillon on Municipal Corporations, Sec. 380.
    APPEAL from the First Recorder’s Court of New Orleans. Finnegan, J.

      James J. MeLoughlin, Assistant City Attorney, and Samuel L. Gilmore, City Attorney, for City of New Orleans, Plaintiff, Appellee.

      Sholars & Schreiber for Defendant, Appellant.
    Argued and submitted March 17, 1897.
    Opinion handed down April 12, 1897.
   The opinion of the court was delivered by

Miller, J.

The defendant, prosecuted and fined for selling fruits and vegetables within six squares of a public market prohibited by an ordinance of the city council, takes this appeal, and claims the reversal of the sentence on the ground of the unconstitutionality of the ordinance.

The ordinance prohibits all sales in the public markets, after 12 o’clock M., except fruits and meats in limited quantities, and prohibits the sale of fruits, vegetables and other articles of food within six squares of the public markets by peddlers. The defendant is a peddler of fruits and vegetables, and assails that portion of the ordinance which excludes him from selling within the area of six squares of the public markets.

The defendant’s contention is, that the sale of fruits and- vegetables-within the prohibited area can not be deemed injurious to the public health, or cleanliness of the city, and hence the ordinance in this, respect is not the exercise of the police power; he further contends-the ordinance prohibiting the peddler, but allowing sales of vegetables and fruits within the six squares by grocers, is unequal, oppressive and unjust, and in all aspects the prohibition placed by the ordinance is assailed as unconstitutional.

It is pressed on us with great earnestness of argument that the courts have the full power to scrutinize ordinances of the council professing to exert the police power, and to protect the citizens from the abuse of the power. Hence, it is argued, that the ordinance, prohibitive of sales of fruit and vegetables, not decayed, but sound and fresh, having no relation to public health, should be held by us as not sanctioned by the police power. We have given full attention to the line of authority cited in this connection. It may be conceded, as it is put in one of the eases cited by defendant, it is for the legislative department to determine when the occasion arises for the exercise of the police power, but the subjects on which the power is exerted is for judicial decision. The police power has its limitations and whether exerted within those limitations, is necessarily a judicial question. Cooley’s Constitutional Limitations, p. 588; Horr & Bemiss on Municipal Police Ordinances, par. 217; Toledo Railway Co. vs. Jacksonville, 67 Ill., p. 37. If therefore this, ordinance transcended the police power, our duty to declare it could; not be questioned.

The market ordinances in their general scope have been frequently-called in question before our courts. Morano vs. The Mayor, 2 La. 217; First Municipality vs. Cutting, 4 An. 335; City of New Orleans vs. Stafford, 27 An. 417. It is true in the previous decisions the precise phase of this controversy was not presented. But the power of the council to fix the time, place and mode of selling food was discussed. The conclusion was such legislation was essential to the good government of the city, and that the power to prohibit sales of food for the daily consumption of the city was implied by the power to fix the location of the public markets. The locations of the public markets and the prohibition to sell elsewhere are linked. Public markets of absolute necessity, cannot be maintained without judicious restrictions to prevent sales in other places of food commodities. That restriction under this ordinance, and the law, is the ¡restraint of such sales within six squares of the public market. Act No. 100 of 1878, p. 152. As Judge Dillon puts it: Under the delegation of the police power the municipal corporation may establish markets and prohibit sales and purchases of marketable articles, except at designated market places. 1 Dillon Municipal Ordinances, Secs. 313, 1380, . last edition. It is mot then sufficient, in support of the objection to the ordinance, to say that the sale of fresh vegetables or fruit within six squares of a public market has no tendency to menace the public health. Public markets cannot be fixed at designated places if marketable commodities can be sold anywhere by peddlers. Hence the ordinance, in our opinion, is to be supported, because part of the usual municipal function to establish markets.

It is urged on us that the ordinance is oppressive inasmuch as grocers are permitted, or at least left under no prohibition as to sales of fruits aDd vegetables. We do not think this would authorize us to hold the ordinance void. The distinction, whatever its effect, is the mere incident of a valid ordinance. Nor do we appreciate that the non - enforcement of this ordinance in the markets can •support an objection to the ordinance itself.

It is therefore ordered, adjudged and decreed that the judgment of ■¡the lower court be affirmed with costs.


author: Blanchard, J.

text:
    No. 12,420.
    R. A. Vancleave, Jr., vs. Nelson et als.
    A vendee, seeking practically the annulment of a contract of sale, cannot ask restoration of the price without proposing restitution of, or accounting for, the property bought.
    An agreement entered into, with a third person, by members of a firm, on its. dissolution, whereby each binds himself individually to the obligations set forth, and one of the members subsequently violates the agreement, the others, formerly his copartners, are not liable.
    A PPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      W. S. Parkerson for Plaintiff, Appellant.

      B. B. Howard for P. H. Davies, Defendant, and Henry O. Hollander for A. J. Nelson, Defendant, Appellees.
    Argued and submitted March 17, 1897.
    Opinion handed down March 29, 1897.
   The opinion of the court was delivered by

Blanchard, J.

The plaintiff is the proprietor of the Crescent City Cornice Works and the defendants were proprietors of the Nelson Cornice Works.

Both firms did business in the city of New Orleans, and there was. business rivalry between them.

On May 24, 1895, plaintiff bought out the business, stock of material on hand, fixtures, working tools, etc., of defendants, including the good will of the establishment and all contracts and open and outstanding accounts.

The consideration of the sale as expressed in the notarial act was five thousand dollars, in cash and notes. The real consideration was only four thousand seven hundred dollars, one of the notes given, for the sum of three hundred dollars, having, pursuant to previous understanding and agreement, been canceled and returned to the vendee. Excluding the note so returned, all the notes given have been paid, except one for seven hundred dollars, which was made payable one year from date of sale, and two for fifteen hundred dollars each, both payable two years from date of sale. These notes bear eight per cent, interest per annum from their date, were payable to the order of their maker and were by him endorsed and .delivered to the defendant Percy H. Davies.

When the business of the Nelson Cornice Works was organized, Davies furnished all the capital, his partner, Nelson, putting in as against this only his knowledge of, and experience in, such business. The business was conducted less than two months from its inception before it was bought out by plaintiff. In the negotiations leading up to the purchase, it was understood by and between the partners Nelson and Davies, with the knowledge of plaintiff, that Nelson, who had no capital in the concern, was to have but one thousand dollars of the proceeds of the sale, and Davies the remainder, three thousand seven hundred dollars. Also that Nelson was to be paid first, taking the cash paid on account of the purchase price (four hundred dollars) and the first three notes to fall due, each for two hundred dollars, due respectively at sixty, ninety, and one hundred and twenty days from date of the sale. The cash paymeat and the three notes, at two hundred dollars each, were delivered to him.

The firm known as the Nelson Cornice Works, composed of Albert J. Nelson and Percy H. Davies, defendants herein, was immediately dissolved on the consummation of the sale referred to.

Six months after the date of the sale plaintiff brings this action, recites the terms of the sale, alleges he has paid thirteen hundred dollars of the purchase price, and still owes the three notes described above; that the defendants, in violation of their contract, were engaged in the same business, in opposition to himself; that the money paid and notes given defendants were far in excess of the actual value of the materials transferred by the sale; that the chief value of the contract was the good will of defendants’ business and the obligation not to engage in business in opposition to him; that owing to the violation of the eontract the consideration of the notes had failed; that he is entitled to have them restored to him and canceled, and to recover from defendants, in solido, the thirteen hundred dollars already paid.

He prays judgment accordingly, as well as for sequestration of the notes during the pendency of the suit.

In the thirteen hundred dollar money judgment which plaintiff claims, it will be noted he includes the amount of the three hundred dollar note which was canceled and returned him by the vendors.

The allegations and prayer of the petition virtually make this a suit to set aside and annul the contract of sale, though the petition does not express this in so many words. And while asking the restoration of the price represented by cash and notes, the vendee proposes, on his part, no restitution of, or accounting for, the property bought.

Defendants filed separate answers through different counsel. Both deny violation of the stipulations of the contract of sale, and aver that the stock of materials and other property conveyed to plaintiff were fully worth the price agreed on.

Defendant Nelson alleges in his answer that “ the Nelson Cornice W orks ’ ’ which he and Davies had carried on, did not constitute a commercial partnership, but was the joint ownership of a factory, and that the business connection was long since dissolved to the knowledge of plaintiff. He also urges that at the time the sale was effected it was agreed that he (Nelson) should take for his share of the purchase price the first notes falling due, and that it is within the knowledge of plaintiff that these notes have been settled and that thus he (Nelson) has been paid in full.

Defendant Davies pleaded in his answer that the contract with plaintiff only bound him individually not to re-engage in business in opposition to plaintiff, and that he had not violated the obligation in any manner.

There was judgment in the court below rejecting the demand of the plaintiff and dismissing the suit, reserving to the plaintiff whatever rights he may have against the defendant Albert J. Nelson.

Plaintiff appeals, and in the brief filed on his behalf he asks this court to adjust the differences between the parties.

We quote from his brief as follows:

“ He now asks that the court declare that he is liable only for the amount which the tools, machinery and materials were actually worth, regardless of any question of good will or competition.” He furnishes a statement of account, striking a balance of one thousand one hundred and eighty-six and ninety-seven one hundredths dollars, which, he says, he “should be decreed to pay to the defendants.’

We are at a loss to reconcile these statements and requests of his brief with the prayer of his petition, which is as follows:

“ That there be judgment in favor of petitioner and against the defendants * * * in solido in the sum of thirteen hundred dollars * * * and canceling and restoring to petitioner three certain promissory notes, * * * one for the sum of seven hundred dollars, payable one year after date, and two each for the sum of fifteen hundred dollars, payable two years after date,” etc.

The prayer of the petition determines the character of an action, and while it is true that sometimes evidence unobjected to supplies pleadings, we are not prepared, from the testimony found in this record, to apply the doetrine to the instant case.

Nor does it help the plaintiff that his petition concludes with the prayer “ for all such general and special relief as. the nature of the case requires and law and equity grant.”

Defendants were invited into court to meet certain specific alie - gations upon which was based a specific demand for relief. Their answers were framed to meet the case thus presented, their evidence to respond to the issues thus raised.

To this case and these issues the parties were confined in the court below, and so they must be here.

Whether the clause of the contract under consideration, whereby defendants bound themselves “ not to engage or be employed, at any time hereafter” in the same business in which plaintiff is engaged and in opposition to him, without his written consent, is or is not in restraint of trade, against public policy and forbidden by law, as insisted on by defendants, we do not find necessary to decide.

Nor is it necessary to determine whether or not the Nelson Cornice Works was a commercial partnership, nor whether the partners therein were or not bound in solido for the transactions of the partnership business.

The case, in our view, turns upon the construction to be placed upon the following clause of the contract between the parties:

“The above named vendors do by these presents bind themselves individually not to engage or be employed, at any time hereafter, in any business of cornice, ornamental and light sheet metal works in opposition to the present cornice works and business of R. A. Vancleave, without the written consent of the said Vancleave.” (Italics ours.)

Whether the vendors in that act of sale were commercial partners and as such bound in solido, or not, it is clear that in the clause quoted, and for the obligations therein assumed, they did not intend to bind themselves, and did not bind themselves in solido; but each spoke for himself individually, each bound himself, and only himself, not to do the things therein stipulated against. They did not act in that clause as partners in a business firm or concern; by the plain, unambiguous language used, they excluded all such idea.

The sale to plaintiff dissolved the copartnership existing under the name of the Nelson Cornice Works.

An agreement entered into, with a third person, by members of a -firm, on its dissolution, whereby each binds himself individually to the obligations set forth, and one of the members subsequently •violates the agreement, the others, formerly his copartners, are-not liable.

After the dissolution of a copartnership, no act of one member of the firm can bind or affect the other member of the dissolved partnership. Dodd, Brown & Co. vs. Bishop & Co., 30 An. 1180; Meyer, Weiss & Co. vs. Atkins, 29 An. 588.

The testimony establishes conclusively that the defendant Davies did not in any way violate the obligation of the contract with 'plaintiff.

The three notes aggregating thirty-seven hundred dollars, which were sequestered in this suit, are his property, and as he did not himself violate the contract, and did not obligate himself to restrain Nelson from so doing, it is difficult to see on what grounds either he or his property can be held amenable to plaintiff’s demand.

Whether the defendant Nelson has violated the agreement, we do not here decide. We do not deem the present action the proper -one in which to determine that question.

The judgment appealed from reserves whatever rights plaintiff may have a-jainst this defendant, Nelson, and this judgment, in .all respects, is affirmed.


text:
    No. 12,274.
    Succession of Georges Andre Petit.
    The principle resting on national comity that gives to the law of the domicile of the owner extra-territorial effect with respect to his movable property, does not exact that our courts should give effect to the foreign law creating a title to movables suhjeat.to .the administration of a succession in our courts, when that title is repugnant to the text and spirit of our law of inheritance, placing as the foreign law does the natural child as au heir on the same footing as the brothers and sisters of the deceased, and when the court is called on to enforce such foreign law to the prejudice of the Louisiana heirs. Story’s Conflict of Laws, Sees. 18, 23,25, 550, 388, 362; 2An. 599, 603; 11 An. 239; 10 An. 772; 5N.S.596;. 2 N. S. 93.
    A PPEAL from the Civil District Court for the Parish of Orleans, Ellis, J.

      Henry Chiapella for Administratrix, Appellee.

      Denègre, Blair & Denègre for Tutrix of Minor, Appellee.
    Argued and submitted February 2, 1897.
    Opinion handed down March 1, 1897.
    Rehearing refused April 12, 1897.
   The opinion of the court was delivered by

Miller, J.

This is an appeal from the judgment dismissing the opposition to the account of the administratix of the succession, asserting the right of the minor, Jean L. O. Petit, as the duly acknowledged natural child of the deceased to one-half of the proceeds of the succession property.

The deceased, George A. Petit, died in France, his domicile for years. By his last will he constituted the mother of the minor Jean L. O. Petit his universal legatee, but the will was annulled by the competent court in France. His legal heirs are his sisters and a brother, two residing here, one in Mississippi and one in France. The minor on whose behalf the opposition is filed was duly acknowledged by the deceased in France as his natural child. The administratrix, in due course of administration, has sold and realized the proceeds of part of the succession property, has exhibited in her account the fund for distribution to the heirs, excluding from any participation in the distribution the natural child of the deceased.

Under the Code, if the deceased, dying intestate, leaves no descendants or ascendants, his legal heirs are his brothers and his sisters, or their descendants. The natural child duly acknowledged is called to the succession of his father only, when he leaves no descendants, ascendants, collaterals, or surviving wife. Civil Code, Arts. 911 et seq. 917, 918. The account proposes that distribution the Code prescribes, when the deceased, as in this case, making no will, that made in France having been annulled, leaves brothers and sisters and no ascendants or descendants.

It is claimed on behaif of the minor that his right to one-half of the property of the succession is fixed by the judgment of the court in France, and it is insisted that judgment is res judicata. We find no occasion to deal with the effect of a judgment rendered by the competent tribunal of one country contradictorily with the parties by or against whom the judgment is pleaded in the courts of another country. The suit in France was brought by the heirs at law to set aside the will, on the ground that the universal legatee, the mother of the minor, was interposed for his benefit, to evade the provisions of the Napoleon Oode, forbidding testamentary dispositions in favor of natural children, when such dispositions trenched on the portions reserved by that Oode for brothers and sisters of the deceased. The under-tutor of the minor joined in that suit, asserting his right and making his mother a party. We understand the French judgment as annulling the will and as withholding any decision in reference to the distribution of the Louisiana property. The material part of the decree is: Declare nul le legs fait á la dame Bayly, en ce sens que le mineur Petit n’a droit qu’a a la moitié de l’actif de la Succession; déboulé la dame Bayly de sa demande en délivrance du dit legs ” * * And the court adds: “Attendu que de la succession comprend des biens sis en France et des biens sis a a Louisiane; que les legislations qui régissent les dits biens peuvent étre différentes; que le Notaire commis pour le partage prendra tous renseignements et en cas de difficultés donnera son avis avee l’estimation des immeubles et fera soumettre au Tribunal les questions douteuses et litigieuses” * * * Wholly independent of this decree the status of the minor child had been fixed by the acknowledgment in due form by the father. That status was not in controversy, but conceded when the heirs at law brought the suit to annul the will. In our appreciation the decree is not the basis of the demand of the minor asserted here, and hence the decree is not res judicata in support of his demand in our courts to take one-half of the property of the deceased. He stands before us simply as the natural child of the deceased claiming a distribution accorded to him in France, but which our Code denies to natural children.

The general principle, not of statutory recognition, but enforced by the comity of nations, is that the law of the domicile of the owner ¡should govern his contracts as to personal property and the distribution of that property when he dies. Hence, it is argued that as the law of France, the domicile of the testator, gives the natural child one-half the property of his father who leaves collateral heirs, that law and not our Code must control the distribution of the movables of the succession in Louisiana, the argument conceding that our law governs the right of inheritance to all immovable property here. The principle that gives the foreign law operation in any other country, based entirely on international comity, is subject to exceptions. The personal capacities and disabilities fixed by the law of the domicile of the party, as a general rule, will operate on him in other countries, yet even these personal laws are not enforced .by the courts of other countries when that enforcement would prejudice the rights or interests of their citizens. Again, the foreign law will not be enforced by tbe courts of another country in aid of a contract made abroad, when the rights of the citizens of the country in which the enforcement is sought would suffer, although the property within that country, the subject of the contract, is movable. Story, Conflict of Laws, Secs. 23, 25, 550, 386, 362; Olivier vs. Townes, 2 N. S. 93; Saul vs. His Creditors, 5 N. S. 597; Lee vs. Creditors, 2 An. 603.

If these exceptions exist to the operation of the foreign law, on property in another country, it is not easy to appreciate why the foreign law, utterly opposed to the spirit an i policy of our legislation, should be admitted by our courts to control the distribution to the heirs of the deceased of movable property here, merely because the deceased was domiciled in the country, the laws of which it is proposed to substitute for our own. In the argument for the natural child, it is urged that our Code recognizes his heirship, and hence the inference is sought to be supported of no difference in the policy of. France and Louisiana on that subject. The difference, in our view, is radical. Under the Napoleon Code the natural child is placed on a footing of equality as respects the right of inheritance with the brothers and sisters of the deceased. Our Code, on the contrary, excludes the natural child from any inheritable right to the succession of the father, unless, his succession would otherwise go to the State, and the Code thus viewing the natural child, places him under the rubric of the Code of irregular heirs. Arts. 757, 912 et seq. If in this case, then, we are to give-effect to the French law, we disregard the spirit and text of the Code-as well as the public policy, the basis of our law-on this subject; in thus deviating from our policy and legislation we deny the right of inheritance our Code confers on two of our citizens included among: the collateral heirs of the deceased: we enforce to their prejudice a title utterly repugnant to our system and derived solely from the-foreign law and the force given to it, as is claimed by the comity due from one to another State. We are not aware of any case in' which international comity has been thus applied.

The types of decisions of the class cited in the briefs in support of the claim of the natural child are numerous. The courts of one country charged with the administration of an estate, the principal administration being conducted in the courts of another country, the-domicile of the deceased, will in a spirit of comity direct the transmission of the succession funds to the foreign country for administration there, but not until the claims of our own citizens are satisfied.Debts for many purposes will be deemed to follow the owner and -be-controlled by the law of his domicile. Succession of Alice Packwood, 9 Rob. 443. In a contest between heirs all foreign our courts will ascertain their rights in respect to movable property here by the standard of the law of their foreign domicile, as was well illustrated in the leading case of the heirs of Kosciusko. Ennis vs. Smith, 14 Howard, 400. The right of a foreign administrator to control personal property will be recognized when no prejudice to our citizens-is operated. In these classes of cases and others in which there is-no right asserted affecting our own citizens or repugnant to our law and public policy, our courts will give effect to the foreign law in subjecting to its operation movable property here. To all the cases-cited on behalf of the natural child we have given attention and we have endeavored to indicate the difference in principle between that applied in those cases and that involved in this case.

We are not at liberty to enforce in this case the foreign law, because, in our view, the comity of States does not exact the recognition by the courts of one country of the title of an heir based on the foreign law opposed to our own law and detrimental to our own citizens, if enforced. We think that in the discussion of the subject-by the jurists the limit of comity we have indicated, finds recognition. In our own jurisprudence with no direct adjudication on the particular phase presented in this case, we have expressions carrying great significance against admitting the foreign law to interfere with the distribution to heirs our Code establishes, although the property is movable and the owner had his domicile in the foreign country. Thus the husband, who under the common law becom es entitled to the personal property of his wife, or to a part of it, in one case to be found in our reports, endeavored to assert against the heirs under our law his right here, based on the foreign law to movable property of the deceased wife, under administration here. The claim was denied, but the authority of the case is weakened by the view expressed that the title of the husband was not complete under the foreign law. Marcenado vs. Bertoli, 2 An. 980. Marcenado vs. Mordella, 10 An. 772. The tendency of the decision is, however, against the title claimed under the foreign law opposed in that case to the order of heirship our law establishes, but not exhibiting that different and more impressive phase of repugnance to our Code manifest by the foreign law we are called on in this case to enforce. There is the greater reason to deny the operation here of the foreign law.

There is another view. Our Code gives effect to wills made out of the State on movable property within the State. There is no will in this case; that made in Prance having been annulled. When our courts carry into effect the testament made abroad we execute the will of the deceased, not the foreign law. When there is no will, subject to such modifications as international comity demand, our courts enforce our law in distributing property within our jurisdiction to the heirs of the deceased owner. It is the law, therefore, of Louisiana that must be applied in this case, and that application is made by the judgment before us on f his appeal. Civil Code, Article 10,491.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed with costs.


author: Breaux, J.

text:
    No. 12,269.
    Anheuser-Busch Brewing Association vs. James McGowan.
    The defendant had waived citation, but not the legal delays. The default was ' prematurely entered.

      There was nothing irregular about the waiver of the citation and nothing to give rise to a presumption that the defendant confessed judgment, or admitted the correctness of the demand.
    The court had jurisdiction. A judgment can not be impeached in any collateral proceedings on account of errors or irregularities not jurisdictional.
    A premature judgment by default was not an absolute nullity.
    In this suit by the wife against the husband for separation of property, there was nothing to show that the judgment was procured with fraudulent intent. The inactivity and silence of the husband, in the matter of irregularities in the case, has no greater effect than such conduct of any other debtor sued would have. There was nothing done in contravention of a prohibitory law (whose chief object is public utility), from which individuals can not derogate.
    The irregularity did not go to the jurisdiction; the judgment was, therefore, not assailable collaterally, although procured by the wife against her husband. Objection to “ defect of form,” not jurisdictional, could not be urged in the intervention proceedings.
    APPEAL from the Civil District Court for the Parish of Orleans. Théard, J.

      Bernard Titehe, D. B. H. Ghaffe and John Dymond, Jr., for Plaintiff, Appellee.

      Farrar, Leake & Lemle and Thomas J. Semmes for Mrs. Mary McGowan, Third Opponent, Appellant.
    Argued and submitted February 1, 1897.
    Opinion handed down February 15, 1897.
    Rehearing refused April 12, 1897.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff, in execution of its judgment against the defendant, caused the seizure of real estate to which his wife held title of record.

The defendant’s wife intervened, setting forth that she was separate in property by judgment rendered in the suit styled Mary McGowan vs. James McGowan, husband, and claimed the property acquired in her name, with separate and paraphernal funds since the separation.

The plaintiff denied that she obtained a valid judgment against her husband decreeing her separate in property, because it was rendered on the confirmation of a default premáturely taken.

It appears that the plaintiff was a creditor of the defendant’s husband before the date suit was instituted by the wife for a separation-of property. This is not disputed by any one.

The facts are: In the suit for a separation of property, the defendant was not cited. He accepted service, waived citation, but did'not waive the legal delays. The suit was filed on January 20, 1894;. the plaintiff was authorized by the court to institute, the proceedings-for separation of property on January 22, 1894. A default was entered on the 25th of that month, and-the judgment was rendered on-the 7th of February following, on a motion to confirm the default.

The real estate under seizure was acquired by her since the separation. She bought it, she averred, with her own paraphernal funds..

The final paragraph of an agreement in the case rea’ds:

“ If the judgment of separation be held invalid the judgment on the whole case is to go against her (opponent) and the property seized is to be sold for account of the seizing creditors. If on the other hand it be in her favor, on that issue then the case shall be reinstated and be in the same position as if this agreement had never been entered into except as to the issue of separation.”

The grounds of attack of the judgment are:

First, that it was a consent judgment.

Second, that it was an absolute nullity, because it was rendered on-a default prematurely taken.

The wife, Mrs. McGowan, sought to meet the attack by urging that the nullity is not absolute, but relative, and that it can not be invoked collaterally by a plaintiff, a third person.

The court a qua decided that the judgment rendered in favor of the wife against her husband was an absolute nullity and the intervenor has appealed.

The plea urged by the plaintiff, that the husband consented to the-judgment rendered in favor of his wife, is the first before us for our-determination.

With reference to the acceptance of service and waiver of citation,, it was not a waiver of delays for pleading; it did not authorize a judgment of default before the expiration of the ordinary ten days-from the service of citation.

Under the clear terms of the law, as we interpret, it is as if- suit had commenced by actual service of citation. Ordinarily there-should not be given any greater effect to the acceptance of service, particularly when the delays are not waived, than if the suit had been, commenced by citation and service of copy of the petition. It follows, then, that it is as if an actual service had been made instead of a waiver. Powlis vs. Cook and Goldstein, 28 An. 547.

We translate from Baudry-Lacantinerie, Vol. 3, p. 116: “A demand for a separation of property must be addressed to the court alone authorized to grant it. It can not result from any agreement between the spouses. This was the natural consequence arising from the immutability of conventions at time of marriage.”

The wife’s petition was, in the case before us, addressed to competent judicial authority. The decree was not based upou any agreement.

Passing to the default which was prematurely entered, the plaintiff insists that a judgment of confirmation of such a default was void, and that if it is not void, but voidable, it can not be the basis of any right against one who was a creditor at the date that it was obtained. The absolute nullity of the judgment vel non is the important question.

Where no notice, either actual or constructive, is given to a defendant, the decision rendered against him is void; if the decision was. rendered before the delays have elapsed within which he was citedl to answer, in our judgment the same result would follow. The court would not have been seized with jurisdiction.

It is different as to a default. The court had jurisdiction, although it was not taken and minute entry made as required. A judgment can not be impeached in any collateral proceeding on account of errors or irregularities, not jurisdictional. In our judgment the premature entry of a default is not an illegality going to the jurisdiction.

Jurisdiction had attached by the fact that there was of record a. waiver equal in effect to the service of a citation and that the legal delays had elapsed when the judgment was rendered. Although the delays given in the citation had not elapsed, the Supreme Court of the United States in White vs. Crow, 110 U. S. 188, held that, in its opinion, the court, “having jurisdiction to render the judgment,, and having rendered it, the law, when the judgment is collaterally attacked, will make all presumptions necessary to sustain it.” Citing, Grignon vs. Astor, 2 How. 319. “The defendant being in court was bound to take notice of its proceedings, and might have corrected the error at any time during the term.” Adhering to our own jurisprudence, our views are not as far reaching. We think that citation and delays expressed in the citation are needful to the court’s jurisdiction.

We quote from the decision only because the reasoning applies here with special force.

In a case in Iowa (Dorroh vs. Wilson, 26 Iowa, 116) the court held upon the same principle as the case cited ubi supra that, the fact that the defendant was not served the number of days required by law did not render the judgment void.

The defendant in the case before us was informed of the remedy sought and the time and place where he was required to appear.

With reference to prematurity, in Mitchell vs. Allen, 14 P. 497, 498, it was held: “A judgment thus rendered is irregular only. It might have been set aside by motion or upon proceedings in error, but the judgment is not vulnerable to a collateral attack.”

In this court Judge Martin, for the court, held that a defect in the proceedings occasioned by the want of a judgment by default was not an absolute nullity. Seymour vs. Cooley, 9 La. 72-79.

In the discussion of the issues this brings us to the question of fraud.

It is settled that a creditor may, in a collateral proceeding show that a judgment was procured through the fraudulent contrivance pf the debtor or complicity of both parties with a design to defraud him. A dishonest and collusive judgment is open to attack when it comes in conflict with creditors. Fraud at no time can stand, even robed in a judgment.

But we are not informed by the evidence in the case before us that a judgment was confessed by the husband in favor of the wife, ,or that it was procured with fraudulent intent. In either case the judgment would be void against third persons to the extent of the confession or the fraud.

. Lastly, the seizing creditor, conceding that the passive assistance of the debtor would not be fatal in ordinary proceedings, urges that the inactivity of the husband is fatal in cases of suits of separation by wife against her husband, because of the express provision of the Code, and that the law imposes upon the, wife the burden of proving the validity of her judgment, and for that reason a relative nullity is as fatal as an absolute one. '

It is well settled that the wife, to recover a judgment, must establish the facts upon which her demand is founded, by proof independent of any avowal of the husband. After she has recovered judgment against her husband his creditors may, in loco debitoris, if the judgment is prejudicial to their interest, assail the judgment collaterally. They are not concluded by the evidence upon which it was rendered. Powlis vs. Cook, 28 An. 546.

If there is one opinion extending that principle to the irregularities of a judgment it has escaped our researches.

We mean by irregularity, at this point, mistake in the rendition or entry of a judgment, as when, for instance, no default had been previously entered.

Although the law, quite properly, seeks to shield the rights of creditors in matter of the separation of property between the husband and wife, it has never differenced the effect of the inactivity of the husband, when sued, from that of any other debtor when sued. Why should the wife’s right in this respect, in the absence of a positive law, be less than the right of auy other creditor? His inaction is not in se an error, in so far as relates to jurisdiction, or a wrong in so far as he is personally concerned.

There was nothing done or omitted in contravention of. a prohibitory law in which the pain of nullity is provided for its infraction.

There was nothing done or omitted in contravention of a prohibitory law, silent as to possible resulting nullity.

There was nothing done or omitted in antagonism of law in a matter of public interest, or in a matter involving a question of good conscience.

In France the following principle is controlling: “Aucun exploit ou acte de procedure ne pourra étre declaré nul si la nullite n’en est pas formellement prononeé par la loi.” Bouvier, Oode de Procedure, p. 61.

It is true that framers of our Code have not adopted the method of the Napoleon Code on this subject, but chose in lieu the principles of the fathers of the civil law as set forth in their maxims; under which it has been held that acts in contravention of law, when in a matter of public interest, are null. In a matter of private interest, antagonism between the law and the act is not in itself an absolute nullity. It is necessary in public interest that the court should have had jurisdiction of the person and the subject matter. . Defects of form, where there is no fraud or ill practice, is not cause sufficient to pronounce a judgment absolutely void, procured before a court of competent jurisdiction.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be and the same is hereby annulled, avoided and reversed.

It is decreed that this case be and it is reinstated; that it be remanded to the lower court, to be proceeded with as the law provides, the plaintiff and appellee to pay costs of appeal.


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    No. 12,414.
    Malvina Konrad vs. Union Casualty and Surety Co., of St. Louis, Mo.
    The action was brought upon a policy of accident insurance.

      Notice of Death. — Plaintiff, under the circumstances of the case, gave notice of death sufficiently in time.

      Proof of Cause of Death. — The policy did not require as a condition precedent to recovery by the beneficiary, proof positive and direct of the cause of death, as is required in some casualty and surety companies. Rroof not conclusive that death was result of natural causes or design.
    There was enough to prove: death was the result of accident rather than natural causes or design.
    APPEAL from the Oivil District Court for the Parish of Orleans. King, J.

      Rogers & Dodds for Plaintiff, Appellee:
    Cited: Kentzlervs. American Mutual Accident Association, 60N. W. 1002; Anoka Lumber Co. vs. Fidelity and Casualty Co., 65 N. W. 354; Leman vs. Manhattan Life Ins. Co., 46 An. 1189; May on Insurance, Vol. 1, par. 325; Malory vs. Travellers Ins. Co., 47 N. Y. 410; 7 An. Rep. 410; 133 111. 556.

      Rowe, Spencer & Cocke for Defendant, Appellant:
    Cited: Sherwood vs. Ins. Co., 10 Hun. (N. Y.) 593; Railway Ass. Oo. vs. Burwell, 44 Ind. 464; 127 U. S. 661; Merritt vs. Preferred Accident Ins. Co., 98 Mich. 338; Tennant vs. Travellers Ins. Co., 31-Fed. Rep., p. 322. .

      Argued and submitted March. 18, 1897.
    Opinion handed down March 29, 1897.
    Rehearing refused April 12, 1897.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff, beneficiary of a policy of accident insurance, brought this action to recover the amount of the policy.

The grounds of defence are three:

First — No notice of death was served within the time contemplated by the policy.

Second — A special and general denial that the death of the assured was caused by any accident covered by the policy.

Third — That the assured committed suicide.

The policy was issued in October, 1895. It covered bodily injuries sustained through external violent and accidental means, and stipulated that if death resulted within ninety days from such injuries, independently of all other causes, the company would pay the amount of the policy to' plaintiff, who was his sister. The insured and insurer agreed that immediate,written notice would be given to the general agency issuing the policy or to the company at St. Louis, Missouri, on blanks provided for the purpose, of any accident and injury for which a claim is to be made, with full particulars ; that affirmative proof of death or loss of limbs, or of sight, or of duration of disability would be furnished to the company within two months from time of death, or of loss of limb, or of sight, or of termination of disability.

The insured, Edward B. Konrad, left West End on the morning of the 24th of February, 1896, in a skiff. A sailor from the shore of the basin pleasantly remarked to the young man, who was leisurely and awkwardly pulling the boat to the lake, “ that he was not much of a hand” at rowing a boat. To this he made some answer, and began to pull as one accustomed to rowing. He said something about the weather, and asked where the best fishing banks were, and went out of the basin and turned westward into the lake.

About half past 9 of the day before mentioned, another witness saw a young man in his shirt sleeves, his hat off, rowing toward West End. “ He was pulling a good ordinary stroke,” said the witness. He was about two miles from the main shore. It had been quite foggy during the early morning. It was clearing off when witness passed him. Subsequently, during the forenoon of the day, a trapper, on his return from his usual daily work, saw a skiff on the lake, about a mile from West End. The young man’s coat and hat were in the skiff, and a small can of bait. When the skiff was found no one believed among the fishermen at the lake that the young man was drowned; it was thought that he had gotten out of his boat and had gone ashore; no search was made for him on that day. About fifteen days afterward his body was found floating in the lake, about four miles from West End.

The evidence does pot indicate that prior to the date of his death the assured had suicidal intent.

The certificate of the coroner stated that drowning was the cause of death. The plaintiff forwarded her affidavit to the defendant company, stating that she was not aware until April 20, 1896, that the deceased held a policy in the defendant company.

In answer to plaintiff’s demand of payment, the agent wrote to the plaintiff informing her that on account of delay in giving notice of death the company disclaimed liability; in other words, that the delay was in violation of the policy contract.

The District Oourt gave judgment in favor of the plaintiff.

The defendant took a suspensive appeal.

The first ground of defence is that immediate notice of death was a condition precedent to recovery and that it was no excuse in this respect that the beneficiary was not aware of the policy.

The verity of plaintiff’s affidavit, in which she declared that she did not know of the policy in her favor, and that she only found it the day prior to the date of notice, is not questioned.

The principles governing fire insurance companies in the matter of the nullity of the contract of insurance, the forfeiture of the policy and conditions precedent to a recovery upon a policy apply as well to a contract of insurance against accident; except if there is some modification or change in the stipulations.

The time of notice is specified in fire insurance policies. The language of the condition usually reads, as in the case of life or accident policies “ immediate notice to be given.” The weight of the decisions, as we have read them, does not, under all circumstances, require immediate notice as a precedent condition. The words “immediate” and “forthwith,” “as soon as possible” used in policies are not always taken literally. It will meet the requirement, says May, in his work on Insurance, Sec. 462, “ if given with due diligence under the circumstances of the case and without unnecessary and unreasonable delay.” “To give the word a literal interpretation would in most cases strip the insured of all hope of indemnity and policies of insurance would become engines of fraud.”

We are informed by this text writer that notice within eight days after the fire, and within five days after it come to the knowledge of the insured has been held reasonable. In another case that notice was reasonable where the fire happened on the tenth and notice of loss, dated the eleventh, reached the insurance office on the fifteenth..

But that a delay of four months in one case; of eleven days in another, there being no sufficient excuse therefor, has been held to be unreasonable. To decide that one was not fully diligent and that she lost'her right as a beneficiary, because she did not give notice of a policy of which she knew nothing, would be more strict and exigent than, in our opinion, the language of the policy required. There was timely notice given after the fact of insurance came to the knowledge of the plaintiff. The delay in finding the policy was not strange and unexplainable. On the contrary, it appears to have been entirely consistent with good faith.

The case of the Provident Life Insurance Company vs. Baum, 29 Indiana Rep., pp. 236-241, was an action on an accident insurance policy. The court said in answer to the complaint that notice was not given in time, that the law, as stated in Angell on Fire and Life Insurance, is that “ there must be no unnecessary delay, nothing which the law calls laches.”

Applying the interpretation to the contract in case of notice to the underwriters of a loss by fire, the court held that the terms “ forthwith ” and “as soon as possible” in the policy of insurance, after the accident, are not to be taken in a severe literal sense, but mean with due diligence or without unnecessary procrastination or delay.

We pass to the next objection urged by the defendant that the plaintiff can not recover except upon some affirmative proof that the death of Edward B. Konrad was caused by an accident insured-' against and covered by the policy — that is, by external, violent and accidental means, of which, the defendant contends, the record contains no proof.

This ground of defence rendered it necessary to carefully consider the conditions of the agreements endorsed on the reverse of the policy. It devolved upon the insured, in case of accident not resulting in death, to furnish affirmative proof of loss of limb or of sight. In •case of death it was incumbentupou the beneficiary to furnish affirmative proof of death, but direct and positive proof that death or personal injury was caused by external violence and accidental means was not one of the conditions. This question was left to a decision under the rules of evidence. The necessity of giving notice of death does not inelude notice of the cause of death, nor does the necessity of proving death affirmatively cover affirmative proof of the causes of death. The insurance, it is true, was against bodily injuries sustained through external, violent and accidental means. These may be considered established, although a plaintiff may not have furnished direct and positive proof of the facts as required by some of the policies issued by some casualty and surety companies. If it be manifest that death was neither occasioned by natural causes nor by the deceased himself, it at once becomes evident that the “ violent and accidental ” must be considered as cause.

We are brought to the defence that the assured committed suicide and that death by suicide was expected from the risk covered by the policy.

Death by accident is defined an unexpected event not according to the usual course of things; applying this definition it has been held that where a person is drowned while bathing it is accidental death, although no proof is offered of the circumstances.

Trew vs. Railway Passenger Association, 6 Hurlstone & Norman, 889. Also where the insured fell in a fit in shallow water and was drowned it was held to be a death by external and material causes.

In the case in hand there is no direct proof of the cause of death. The indications are that the insured was drowned.

Without more proof it would,be difficult to conclude that he deliberately destroyed himself. The natural presumption arising from the love of life of itself negatives all idea of suicide. The one destroying himself is guilty of a moral crime with which his memory should not be made to suffer, unless proof is evident.

We conclude that the evidence does not sustain the defence that he committed suicide.

In the second place that he did not die a natural death.

The good health of the assured and the circumstances preceding the death do not tend to establish the theory that death resulted irom natural causes.

It may be logically inferred, indeed it must be inferred, as it was not a natural death, or a suicide, that the death was caused by external violence and accidental means. There was enough to prove that death was the result of accident rather than design or natural causes.

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


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    No. 12,395.
    Citizens and Taxpayers of Natchitoches Parish vs. The Board of Supervisors of the Parish of Natchitoches.

      A Question of Law. — The construction of Sec. 1211 of the Revised Statutes, as amended by Art. 76 of 1884, was involved.

      JSlection. — Docal option is not limited to parish action. The election held in cities and towns under police jury ordinances has the same effect as relates to the cities and towns as if it had been held by authority of the cities and towns. As in the latter case, the cities or towns would have the right to order another election to decide as to local option at the end of the year; they,thecities and towns, have the same authority if the election has been held within their respective imits by the police jury.
    A PPEAL from the Tenth Judicial District Court for the Parish of Natchitoches. Cullom, Jr., J.

      Pierson & Porter and Scarborough & Carver for Plaintiffs, Appellants.

      Phanor Breazeale, District Attorney, and Thos. P. Chaplin, City Attorney, for Defendants, Appellees.
    Argued and submitted February 16, 1896.
    Opinion handed down March 1, 1897.
    Rehearing refused April 12, 1897.
   The opinion of the court was delivered by

Breaux, J.

The facts of this case are, that an election was held in the parish of Natchitoches, which resulted agaitist the issue of licenses for the sale of intoxicating liquors, and the police jury passed ordinances prohibiting the sale of liquors. The election thus carried was-ordered in 1895.

The police jury subsequently passed an ordinance calling a special, election in the city of Natchitoches and in Ward 4 of the parish, to decide whether intoxicating liquors should be sold within the limits of the city and ward after January 1, 1897. The plaintiffs assailed the right of the police jury to enact ordinances calling a special election, in the city of Natchitoches and in Ward 4 of the parish.

The question is one of law, and involved the construction of Sec.. 1211 of the Revised Statutes as amended by Act 76 of 1884.

The plaintiffs contend that it is not within the power of a ward ox-city to repeal a law prohibiting the sale of intoxicating liquors in the-parish, which was adopted by the voters of the entire parish.

We have found it impossible, after having given our best attention-to the subject, to come to the conclusion thát parish action decides the matter so that the question can not be submitted to the other, political subdivisions mentioned in the statute in so far as f-hey are concerned.

The local option, or ordinance against the sale of liquors, of the parish, in our judgment, may be repealed within t he limits of such subdivisions in the manner provided by statute.

By the act of 1884, No. 76, an election against the sale of intoxicating liquors is binding on the towns and wards.

If an election had been ordered in the ward and city, no other election could have been held during one year.

An election was held in the whole parish, by order of the police jury. The town and ward were bound during the year, but not-thereafter. The proviso of the statute which reads: “ Parish action shall govern the action of any ward, incorporated town and city* within the limits of said ward or parish, as the case may be, as fully* and completely as if said election had been held by authority of said town or city,” must control.

For reasons assigned in the case of Police Jury of De Soto Parish vs. Town of Mansfield, No. 12,894, the judgment appealed from in this case is affirmed.