author: McEnjeky, J.

text:
    No. 12,074.
    The State of Louisiana vs. S. L. Southern et als.
    It is not the opinion of the witness solicited, when he is ashed to state a fact,, which is a conclusion, from other facts which had come under his observation and were within his knowledge.
    Where a witness is recalled and examined, the cross-examination is limited to the matter on which he has been re-examined.
    In the discipline of his court the trial judge is vested with a sound discretion to-stop the prolonged and unnecessary examination of a witness, and when there has been no injustice done the defendant, this court will not interfere with, this discretion.

      In an indictment for larceny from unknown owners it is competent for the prosecution to prove that the property found in possession of the defendant did not belong to him.
    On the trial for stealing hogs from unknown owners it is proper to show that the ear marks on the ears found in defendant’s possession was not defendant’s mark.
    It is competent to ask the defendant, who is a witness in his own behalf, if he is charged with other offences, and whether there are other bills pending against him. The inquiry into a witness’ credibility is always permitted. State vs, Murphy, 45 An. 958.
    PPEAL from the Fourth Judicial District Court for the Parish of Winn. Wear, J.

      M. J. Cunningham, Attorney General R. E. Milling, District Attorney (and Henry Bernstein, of Counsel), for Plaintiff, Appellee.

      S. A. Crawford, J. A. Wallace and Ben. P. Edwards for Defendants, Appellants.
    Submitted on briefs February 29, 1896.
    Opinion handed down March 23, 1896.
   The opinion of the court was delivered by

McEnjeky, J.

The defendants were convicted of larceny, sentenced to hard labor, and have appealed.

They rely upon five bills of exception.

The first bill recites: “That the State, after having had witness J.. R. Chapman state the appearance of the place where the hogs were killed, and the appearance of the meat, ears and blood signs, and other appearances, asked the witness how long the hogs had been killed.” The objection to the question was that it solicited the opinion of the witness. It was overruled.

The ruling was correct.

The witness was asked to state a fact, a conclusion from other facts, which had come under his observation and were within his knowledge.

The second bill states that a witness had been re-examined by the State, and a new point raised, and the defence was confined on cross-examination to this new point, and was not permitted to examine the witness on other parts of his testimony previously given.

In the statement appended to the bill th.e trial judge says there-was-no new matter drawn out in the re-examination of a witness.

The defence proposed to examine the witness on matters upon, which they have been previously examined. The State objected and the objection was sustained. The defence was confined in the cross-examination to the matters inquired of on the re-examination. In-thus restricting the cross-examination we do not think the trial judge erred. In the discipline of his court he must be vested with the discretion to put an end to the unnecessary and prolonged examination óf a witness, and where there has been no injustice done to the defendant we will not interfere with his ruling in such case. If thus it appears that the -examination of the witness was in the way of explaining- his testimony. On this matter the defence was not denied the right of cross-examination, but was not permitted to go over the entire testimony on which counsel had cross-examined the-witness.

The defendants were indicted for stealing hogs from unknown owners. The third bill recites that pieces of' hogs’ ears having the appearance of having been m.arked. in a certain mark were presented to the witnesses for the prosecution and they were asked to describe the marks. The objection to the question was that it solicited the-opinion of the witness. The hog ears had been found with meat in one of defendants’ smoke-houses. The evidence was to show that the hogs were not the property of defendants. Having shown defendants’ marks it was certainly competent for the prosecution under-the averments in the indictment to show that the marks in the ears were not those of defendant, Southern, in order to prove that he was not the owner of the hogs. It was a fact and not an opinion, asked of the witness.

The jury having been informed of the defendant’s mark, and the. mark on the ears having been described to them, it was within their province to say whether or not the mark wás that of defendant.

The fourth bill was taken to the allowing of the following question to be propounded to Elijah Thompson, one of the defendants,, who was a witness in his own behalf.

“Are you charged with another offence at this time, and are there any other bills pending against you? ”

The question was a proper inquiry to affect the credibility of the witness.

In the case of State vs. Murphy, 45 An. 958, the question asked the defendant, who was a witness in his own behalf, was if he had been'arrested for larceny. The ruling of the trial judge in permitting the question to be answered was sustained.

The fifth bill can be disposed of by the judge’s statement accompanying it, that the question mainly complained of was withdrawn, and the question as stated in the bill was not asked. The defendant Thornton was on the stand in his own and the other defendants’ behalf. The trial judge says he was questioned on matters inquired of on direct examination, and this statement effectually ends the controversy on this point.

Judgment affirmed.


source: Caselaw Access Project

author: Nicholls, C. J.

license: Public Domain

text:
    No. 11,877.
    Southern Chemical and Fertilizing Company, Limited, vs. B. J. Wolf & Sons et al.
    ¡Tile rule that, upon the trial of an exception of no cause of action the allegations of the petition are to he taken for true does not extend to conclusions of law, nor to matters of evidence pleaded in the petition.
    An individual citizen complained to certain public officials of the non-performance of duty by a corporation which, under a conventional 'contract, was acting as a public agency. He had reason to believe the officers addressed had supervisory control over the corporation’s acts. The contract affected separately, both by way of right and obligation, individual citizens. The corporation brought an action for libel,'against the complaining citizen, for language used in the complaint. Hsld: As the language contained in a complaint so made could hardly occasion injury against a corporation so engaged under a contract conferring upon them vested rights, the allegation of plaintiff’s peti- . tion should show the extstenee of facts from which injury could arise.
    APPEAL from the Civil District Court for the Parish of Orleans. Théard, J.

      Branch K. Miller and Farrar, Jonas & Kruttsehnitt for Plaintiff, Appellant.

      Lazarus, Moore & Luee for Defendants, Appellees.
    Argued and submitted February 27, 1896.
    Opinion handed down March 9, 1896.

      “ It is alleged that on the seventh day of February, 1895, the •defendants did compose and publish a certain false, malicious, ■defamatory and libelous matter concerning the plaintiff and its business, the said publication being in the form of a letter directed to Dr, Samuel R. Olliphant, President of the Board of Health, and being in the words and figures, to wit :
    •“ ‘B. J. Wolf & Sons, 26, 28, 80, 32 and 34 Bienville Street.
    “ ‘New Obleans, February 7, 1895.
    •“ ‘ Dr. Samuel R. Olliphant, President of the Board of Health, City:

    “ ‘Dear Sir — We are confronted with a great difficulty, in which we are compelled to trouble you for advice. We have a number of employees working in our factory, who are in the habit of bringing ■their lunch in paper bags, and after eating they throw these bags, which have become saturated with grease, together with the scraps .remaining from their noonday meal, into a box provided for that purpose. This box is daily placed on the sidewalk to be removed by the Garbage Company, which has heretofore done the work, although at irregular intervals. Now, however, the drunken driver ■of the garbage cart refuses to remove the refuse, unless he is paid for his trouble. His reason for doing so is not that the garbage„is of -a different quality from that which he is required to dump into his garbage cart, but because there is too much of it. We referred the matter to Mr. Farrell, the Commissioner of Public Works, who in turn referred it to Mr. O’Sullivan, City Attorney, and the latter, without hearing the facts from us, rendered an opinion to the effect that the Garbage Company is not required to remove the refuse from an establishment like ours, basing his view apparently on the supposition'that we expected the company to take away the clippings of cloth cast aside in the process of cutting garments. In this he is mistaken) because these cuttings are of too much value to be given away, as they are collected and sold by us each week, •bringing in annually a respectable sum. As we understand the matter no one else except the Garbage Company is allowed to carry away garbage, and as this company will not do it we are forced to the alternative of leaving this garbage to putrefy in our yard, thereby endangering the health and possibly the lives of our employees. As the chief health officer of the city we come to you for advice, and trust that you will give the matter your immediate attention, and let, us know what we are to doin a case important not to us but to the whole city.

      “ ‘ Very respectfully,
    “[B. J. Wolf & Son.’ ”
    Ordinance No. 7860 annexed to plaintiff’s petition is entitled: ■“An ordinance to provide for the collection and disposal of garbage, etc., by the adoption of a system therefor, and the entering into a ■contract therefor for twenty years, and providing penalties for the violation of this ordinance.”
    So much of it as is applicable to the issues involved in this litigation is as follows:

      “ Whereas, the method of removing and disposing of garbage heretofore used in this city has proved entirely inefficient and •objectionable to the public as well as to private citizens, and
    “Whereas, the fast increasing growth of the city and increase of ■population demand the adoption of some modern and efficient method of garbage removal such as is in use in other cities of the United States; and

      “ Whereas, the Board of Health has recommended that the city of .New Orleans take steps to provide some such system.
    “ Section 1. Be it ordained by the Common Council of the city of .New Orleans, that the Comptroller be and he is hereby directed to advertise * * * for sealed proposals for the collecting, removing and disposing of all garbage from private residences, business places, streets and alleys, and all public places within the limits of the city of New Orleans * * * for twenty years by some improved system similar to those now in use in other cities of the United States. ,
    “Sec. 4. Be it further ordained, etc., that the word garbage as used in this ordinance shall be construed to mean house and kitchen offal, and all refuse matter not excremental, whether solid or liquid, and composed of animal and vegetable substances, including dead animals coming from public or private premises of the city, and not destined for consumption as food. No ashes, dirt or other substance foreign to garbage shall be covered by this contract, except as hereinafter provided, and it shall be unlawful for any ■ occupant or occjipants of any premises in the city of New Orleans to .mix any such ashes, dirt or other substance foreign to garbage, with the garbage to be removed from said premises, as herein provided, under a penalty of not less than five nor more than twenty-five dollars fine for each offence, or imprisonment for not more than thirty days.
    “ Sec. 5. That the contractor shall, by proper notice in writing issued to occupants of premises in the several garbage districts, inform the occupants of such premises of the hours when garbage will be removed from such premises, and it will be the duty of such occupants to have all garbage ready for removal therefrom at. the hours so specified by the contractor for such premises, under a penalty of not less than ten dollars fine, or imprisonment for not more than ten days for each offence.
    “Sec. 6. That it shall be the duty of the contractor to collect and remove from all private residences, business places, streets and alleys, and all public places within the limits of the garbage districts, all slops, offal, garbage, dead animals, in suitable vehicles or carts, and other animal and vegetable matter in enclosed water-tight metallic vehicles or carts, - so that no drippings or refuse can be dropped on the streets, alleys or public places in the city, to a certain point or points to be approved by the Oity Council, where the said contractor shall have erected on land, owned or leased by him, a first-class plant, including the necessary buildings and machinery for the destruction by fire or the reduction and conversion of said material so removed into merchantable products * * *
    “Sec. 7. That it shall be the duty of the contractor to remove from within the garbage districts all street pilings collected by the public works department from gutters, ashes, house and ordinary street, sweepings; but he shall not be required to remove debris from buildings in course of demolition, repair or construction, or any other refuse except that enumerated in this ordinance.
    “Sec. 8. That the contractor shall, by proper notice in writing issued to the oocupants of premises in the several garbage districts, inform the occupants of such premises of the hours when said ashes and house sweepings will be collected and removed, and it shall be the duty of such occupants to have such house sweepings and ashes placed in a box or barrel at some convenient point for the contractor and ready for removal at the hour designated by him under a penalty for each omission of not more than ten dollars fine or imprisonment for not more than ten days.

      “Sec. 10. That the said works and plant shall, at all times, be subject to the inspection and supervision of the Board of Health, and said board shall have supervision of the means and men employed in the collection, removal and disposition of said garbage, and if at any time the said collection and removal shall be improperly done, or not conducted in a sanitary manner through fault of said employees, said employee or employees shall, on demand of •said Board of Health, be discharged by said contractor and reliable and competent men put in their places.
    “ Sec. 11. That said contractor shall collect all dead animals daily and all slops, garbage, offal and animal and vegetable matter in the city of New Orleans daily from all private premises, etc.
    “ Sec. 13. Should any complaint of non-collection or removal of garbage be made 'to the Commissioner of Public Works which, upon investigation, shows that garbage, etc., has not been removed within the proper time the said contractor shall, upon notice by said 'commissioner, immediately send a special wagon to remove and collect the same, arid on the contractor’s failure to collect and remove the said garbage within the twelve hours after notice the contractor shall forfeit the sum of ten dollars for each and every twelve hours that he fails to remove said garbage, and said penalties shall be held and deducted monthly from the amount earned under this contract by certificates issued to the Comptroller by the Commissioner of Public Works. In case said contractor is aggrieved by the said deductions, of said commissioner he may appeal to the Council for relief, but the decision by the Council in said matter shall be conclusive and binding upon the contractor.
    “ Sec. 14. That when the contractor is ready to begin operations * * * he shall notify the Mayor, and the Mayor shall thereupon issue his proclamation * * * and it shall thereupon become the immediate duty of the occupants of every dwelling house or other building in the city of New Orleans to provide a suitable metallic water-tight covered box or other covered metallic vessel, in. which said occupants shall cause to bejplaced daily all offal, garbage, slops and refuse, animal and vegetable matter from the premises, and shall place such metallic covered vessel in such place as will be most convenient for said contractor to remove same, and any failure to comply with the provisions of said proclamation shall subject said occupants to fine of not more than ten days, or imprisonment for not less than ten days for each and every day they shall fail to provide such box or vessel or comply with the provisions of this section.

      “ Sec. 16. That after the proclamation of the Mayor it shall be unlawful for any other person than the said contractor to collect, remove or dispose of from any public or private place any garbage, dead animals or other matter provided for in this ordinance; any-person violating this clause of this ordinance shall be fined not less than five nor more than twenty-five dollars for each offence, or shall be imprisoned for not more than thirty days.
    “ Sec. 18. That the price which the city of New Orleans is to pay the said contractor for the services to be performed under said contract shall be divided into sixty equal parts for the first five years, and the same ratio shall be the basis of all payments to said contractor for each succeeding five years during the existence of this contract, so that payments shall be made monthly on the one-twelfth principle. Payments shall be made to the contractor by warrant of the Comptroller on the Treasurer of the city of New Orleans, and the city of New Orleans binds and obligates itself to appropriate every year during the existence of this contract in the annual budget of receipts and expenditures the sum agreed to be paid said contractor each year.”
    Defendants contend, first: That under the terms of the ordinance, which defines the duties and rights of the plaintiff corporation, the public, who are the patrons of the corporation, are compelled to patronize it, and therefore no damage or injury could result to the business of the plaintiff by the alleged libelous communication.
    Second: That the communications made the basis of plaintiff’s demand are privileged. In respect to their first position they maintain that the plaintiffs are a quasi public functionarv, vested by the City Council with the duty of removing, collecting and taking off the garbage of the city; that they are charged with public duties the fulfilment of which is of vital importance to New Orleans and its inhabitants, and being organized in the interest of the public and for public purposes, they are more properly a subject of criticism than would be a body created for private pursuits. That, therefore, authorities cited with reference to criticism of and animadversion upon private corporations have no application to this case. That plaintiffs do not claim to have been injured in their business in so far as they may be engaged in the manufacturing of products out of the garbage materials which they are authorized to collect. They call attention to an extract from Townsend on Slander and Libel, Sec. 263 (3d edition), in which the author, while insisting that an action may be maintained upon language concerning manufacturing, trading or banking corporation, or engaged in any other occupation in which credit may be material to its success, calculated to injuriously affect their credit, without proof of any specific damage as such language must necessarily occasion them pecuniary injury, declares that “ language concerning a corporation not engaged in business can hardly occasion, and certainly does not necessarily occasion it any pecuniary injury; therefore, in regard to language concerning such a corporation no action can be maintained except upon proof of special damage.”
    From a judgment sustaining the exceptions of defendants plaintiff appeals.
   The opinon of the court was delivered by

Nicholls, C. J.

Plaintiffs contend that for the purposes of a decision upon the exceptions all the allegations of their petition are to be taken for true.

Plaintiffs in their petition have pleaded part of the evidence upon which they would rely in the event of a trial on the merits, and announced in some places conclusions of law. These particular portions of the petition we do not consider as falling under the rule invoked, that on the trial of an exception of no cause of action, the allegations of the petition are to be taken for true.

We need not enter into a discussion of the question whether corporations of any kind are authorized or not to maintain an action for libel, nor what may be the rules of law in relation to the subject generally. Our inquiry is limited to an examination of the right of the plaintiff corporation to institute the present action.

They are admittedly acting as a public agency of the city of New Orleans in respect to a duty with which the city itself stands charged. Their agency is secured to them by an express conventional contract covering a period of twenty years. They receive from the eity for the services they are called on to perform under the contract the amount fixed by the acceptance of their bid and the advantage of receiving and converting into merchantable products so much of the materials removed by them as are susceptible of being utilized for that purpose. For and in consideration of the advantages to accrue to them under the contract plaintiffs undertook to faithfully perform the duties enumerated therein. The contract reaches, touches and affects every householder in the whole city.

They are not only called upon under penalties to do certain acts, but they are also called upon under penalties to abstain from doing certain other acts. Not only is the right of individual liberty of action of citizens materially restrained by the ordinance upon which plaintiffs base their rights, but danger of fine and imprisonment confront them in case of transgression .of its provisions. Unlike many contracts entered into by the Common Council in respect to which the individual citizen has only an extremely remote relation and connection, this parfieular contract comes home daily and specially to every family in the limits of-the Corporation, and brings the heads of each as near to being actual parties to it as it is possible for them to be brought under a contract passed by public authority. The individual citizens can scarcely be looked upon as utter strangers to this contract. They have separate rights and separate obligations based upon it, which authorize them to deal with it and the contractors in a very different manner from that which they would be entitled to deal had they no direct connection with either. We are of the opinion that whenever a difference arises between the contractors and the occupants of particular premises as to either a construction of the rights and obligations of the former under the contract, or as to their performance or nonperformance of duty, the latter have the right, under Sec. 13 of the ordinance, to submit the matters in dispute to the Commissioner of Public Works for investigation and for action, should action be justified. We do not thiuk plaintiffs call in question the correctness of that proposition, on the contrary they refer to the action of the defendants in calling the attention of the commissioner to the complaints urged by them as action “ which had exhausted their remedy.” They insist, however, that they could go no further — that they could go no further than the commissioner; that the Board.of Health had no jurisdiction over the matter and that the communication made to it was unauthorized and unjustifiable.

Let us see, if we can, what, the situation was when defendants wrote the communication in question to the Board of Health. There evidently had been a difference of opinion between the plaintiffs and the defendants in respect to the duty of removal by the former of the contents of a certain box which the latter were in the habit of placing upon their sidewalk. The matter having been referred to the Oommissioner of Public Works, and by him to the City Attorney, had resulted in the conclusion reached by those city officials that it was not part of the duty of the contractor to remove them. The effect of that conclusion would be to cause the contents of the boxes, such as they were, to be thereafter- left on defendants’ premises without any designated method for their removal. In that situation of affairs defendants, obviously thinking that it was not their own duty to remove them, wrote to the President of the Board of Health asking for his advice in the premises, stating that the opinion reached by the Oity Attorney had been based upon an erroneous idea as to what the contents of the box were, stating affirmatively what those contents had been, and what they would continue to be, and stating that such articles left on private premises in the city were calculated to injure the public health.

We see nothing in this communication of a denunciatory or vituperative character other than the declaration made in regard to the driver of the particular wagon of the plaintiffs which removed the garbage from that neighborhood. There is nothing intemperate that we see in this communication, nothing more than a statement from their standpoint of what they conceived the situation to have been, and what they conceived it would be, and asking for advice as to obtaining relief from that situtation. We see nothing in that letter to that official calculated to bring the plaintiff company into public contempt, or disrepute, or to damage them. The letter called for advice at furthest inquiry, and this from a source from which advice would naturally be sought and inquiry expected. It is the very general impression throughout the community that the Board of Health has cognizance of all matters affecting the cleanliness and sanitary condition of the city, and were this mere general impression insufficient to have warranted defendant in having re-' ferred this matter to tlie president of the board, we are by no means prepared to give to the tenth section of the ordinance the narrow construction which plaintiffs place upon it as to the scope of the duties of the Board of Health in respect to garbage or offensive or injurious articles left in the public streets or on private premises. This case does not call for any discussion of the right or duties of the board — it is enough for present purposes to say that in our opinion defendants have sufficient warrant under the terms of the ordinance itself to write the communication they did. We do not give to a conclusion reached by the Commissioner of Public Works adverse to a contention raised by a citizen as to the duties of the contractors, the conclusive character which the plaintiffs contend for as closing the door to further remonstrance, criticism or complaint.

The conclusions we have reached in the case relieve us from a minute analysis of the allegations of plaintiffs’ petition, for, granting that the box never contained articles of the precise kind which defendants declared it to have contained, and that any statement to that effect, either to the Commissioner of Public Works or to the president of the Board of Health, was untrue, and that, therefore, plaintiffs had never in point of fact refused to remove from defendants’ premises articles which suffered to remain thereon “would putrefy in their yard, thereby endangering the health and possibly the lives of their employees,” have the plaintiffs disclosed herein a cause of action.

There was unquestionably a difference between the defendants and the driver of one of the plaintiffs’ wagons, as to the duty of the company to remove the contents of a certain box which the former were in the habit of leaving upon their sidewalk. The real matter in dispute was the removal of those- contents; their character being merely incidentally brought into the controversy as arguments for or against the duty. It is not denied that the contents of the box, such as they were, remained on the premises unremoved. It is not asserted that the company were not, under the obligations imposed upon them by Sec. 8 of the ordinance and contract, called upon to remove them entirely, independently of the question whether or not they fell under the term “garbage,” as used in one portion of the contract. If the contents of this box were permitted to remain on the sidewalk, defendants (claiming that it was plaintiffs’ duty to take them away, under their contract) had a right to insist that they should do so, and the fact that in doing so, they maintained (while the plaintiffs denied) that the contents constituted “ garbage,” and that defendants maintained that, if left where they were, they would be injurious to defendants’ employees, while plaintiffs maintained, and still maintain, they were inoffensive, furnishes a very narrow foundation to build an action of libel.

Plaintiffs’ occupation and business rest, as we have said, upon a conventional contract, which fixes its continuance for twenty years. They have vested rights in this matter, of which they can not be divested by either the whim, the caprice or the dissatisfaction of the Council. A rescission of their contract could only be brought about through proceedings in which would be subjected to judicial scrutiny and determination, by judicial tests, the respective rights acd obligations of the parties.

It is true that the thirteenth section of the ordinance, No. 7860, confers upon the Commissioner of P-ublic Works the right to declare a forfeiture of ten dollars upon the amount otherwise due the plaintiffs, for every neglect by them in removing particular garbage; but this power is to be exercised only after refusing to remove after notice from the Commissioner, and even in this matter his action is subject to appeal to the Council. The section contemplates investigation by the Commissioner prior to the infliction of the forfeiture. It is not alleged by the plaintiffs that any litigation has resulted from the alleged libel; that either the Commissioner or the city has fined or threatened to fine the plaintiffs; that the Common Council has attempted to investigate their conduct, or to intimate any intention to resort to proceedings looking to the rescission of the contract. There is nothing going to show that in point of fact the plaintiffs have lost the confidence of the City Council. On the other hand, nothing which the defendants said in their communication could have had any legal effect upon the dealings of citizens with the company or the company with them. The rights and obligations of each householder are fixed by the ordinance and the contract. Each householder is entirely separate and distinct from the others, each has to be judged by his own conduct under the terms of the ordinance. Plaintiffs declare, in general terms, in their petition that the communication “ has damaged” and “will seriously damage and injure them” in their business, and that “said damages” amount to the full sum of twenty-five thousand dollars, but they state no fact or facts from which a court can discover any damage or injury in this case. They say that the effect of the communication will be to subject them, perhaps, to unnecessary and annoying surveillance, and create a disposition on the part of the city to captiously impose upon them penalties foi-violations of their contract, but parties who enter into public contracts with public bodies affecting individual rights are bound to, know that in entering into such contracts they open the door to the, legal scrutiny and criticism of their acts by every citizen whose-interests are involved in the proper discharge of their duties. Surveillance may be annoying, and may, sometimes, to the contractors,, seem unnecessary, but it is far better that annoying and unnecessary surveillance should exist than that the right of petition or complaint-of citizens to the supervising officials should be stifled through fear of actions ior libel. Supervising officers themselves are public officials, and they have to be frequently stimulated into action by having the propriety of their own course called into question. We do not see that the defendants in this case did anything more than they had the right to do, nor wherein they overstepped the legal limits of the right of criticism and complaint.

We think the judgment appealed from is correct, and it is hereby affirmed.


author: Nicholas, O. J.

text:
    No. 11,947.
    Thomas C. Anderson vs. His Wife.
    A plaintiff whose demand for a separation from bed and board from his wife fails for want of evidence is not authorized to pass into the discontinued reconven - tional demand of the wife herself for a. separation and make an allegation therein that she would never return to or be reconciled to her husband, the basis for a judgment in his favor.
    PPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      A. B. Philips for Plaintiff, Appellant.

      James J. MeQann for Defendant, Appellee.
    Argued and submitted February 25, 1896.
    Opinion handed down March 9, 1896.
   The opinion of the court was delivered by

Nicholas, O. J.

The District Judge in his reasons for judgment said that “ the evidence showed that plaintiff and defendant did not at times live happily together. That it was not necessary for him to recite the facts proven. They were not sufficient to authorize him to decree a separation.’1

Plaintiff presses upon us the declaration made by the wife in her answer that she would never live with him again and would never consent to be reconciled to him and he asks why should parties en • tertaining such feelings toward each other be forcedly held together by legal ties. In the first place, declarations of the character stated have not in point of fact the force and significance which counsel attributes to them. Made during the heat of acrimonious litigation, they are frequently withdrawn; and differences supposed at the time to be of so radical a character as to admit of no possibility of adjustment have, by effect of time, of kindly interposition of friends, or the withdrawal of existing sources or causes of irritation, finally taken on a very different appearance from that which they originally had. This has been the experience of almost every member of the bar who has had anything to do with suits of this kind. But separations of this character are not authorized to be made upon the pleadings of parties. They have to be based upon proof made of the existence of certain specially enumerated grounds of complaint.

We have read the evidence in this case carefully and we agree with the District Judge that there is nothing contained in it which would justify a separation. The opinion expressed by several of plaintiff’s witnesses as to what the situation calls for is not evidence in his favor. Those persons should have stated facts and left to the court to draw conclusions. Several quarrels between the parties were spoken of, but how they originated, who was really to blame in starting them or what actually was said by either or both spouses was not specified.

Judgment affirmed.


text:
    No. 12,066.
    State ex rel. Irondale Chert Paving and Improvement Company vs. City of New Orleans et al.
    Act No. 142 of 1894 does not expressly or by implication repeal Sec. 21 of Act No. 20 of 1882 (Charter of the City of New Orleans), in regard to contracts for public works.

      The city of New Orleans lias not only the power to recede from their announced intention of having the streets paved, but after the reception of bids it has the unquestionable right to reject any and all bids.
    APPEAL from the Oivil District Court for the Parish of Orleans. Bightor, J.

      W. S. Parherson for Plaintiff, Appellant.

      W. L. Hughes for Intervenor, Appellee.

      E. A. O’Sullivan, City Attorney, for Defendants, Appellees.
    Argued and submitted February 29, 1896.
    Opinion handed down March 23, 1896.
    Relator alleges that it was engaged in the business of paving streets — that it was a duly qualified bidder and had complied with all laws and ordinances relative to its said business. On the 28th day of March, 1895, the Common Council of the city of New Orleans, by Ordinance No. 10,499, Council Series, gave notice of intention to pave Valmont street, between St. Charles and Magazine streets, in this city, under Act 119 of 1896, as amended by the act of the General Assembly of the State of Louisiana, No. 142 of 1894. Within the delay provided by law a majority of the property owners on said street petitioned for and designated Irondale Chert, from the Irondale Chert and Paving Company, as the material with which to pave said street; after due formalities, bids were received by the said Comptroller of the city, in pursuance of advertisement: they were duly opened by the finance committee, and the bid of the Irondale Chert Paving and Improvement Company was favorably reported by said committee to the Common Council for adoption. The Common Council rejected the bid, and altered and amended the said ordinance and inserted therein the words “ or its equal the same as laid on Frenchman street,” and instructed the City Comptroller to advertise for bids under the ordinance as thus amended. This was done; in due course the finance committee of the City Council, after due hearing, again favorably reported the bid of the Irondale Chert Paving and Improvement Company, and recommended it to the Council for adoption; the Council, at its next meeting on the night of Deeemcer 9, 1895, struck out the name of the Irondale Chert Paving and Improvement Company from the said ordinance, then on final passage, and inserted therein the name of one J. A. Andrews & Son. The ordinance as thus adopted was sent to the Mayor of the city for his signature.
    The relator brought this action, and prayed that a writ of injunction issue enjoining and restraining the Mayor from signing or attempting to sign the ordinance adjudicating the said contract to J. A. Andrews & Son, or from entering into a notarial contract thereunder with the said J. A. Andrews & Son, and for a writ of mandamus directing and commanding the said Common Council and each and every member thereof to vote for the ordinance assigning said contract for the paving of Yalmont street from St. Charles to Magazine street to relator, commanding the Mayor to sign said ordinance so passed, and to enter into a notarial contract with relator for the said paving upon relator’s complying with the law in such case made and provided; and that the City Council and each and every member thereof be enjoined and restrained from taking any further step toward assigning said contract to J. A. Andrews & Son.
    The District Judge issued an order that the defendants show cause why writs of injunction and mandamus should not issue as prayed for, and that a temporary restraining order issue in the meanwhile.
    An intervention for the purpose of assisting relator in its suit against the defendants was filed by Gus. Beck, a resident of the city of New Orleans and a taxpayer thereof, owning a large amount of real estate therein, among the property so owned being a large amount of real estate fronting on Yalmont street, between St. Charlés and Magazine, he alleging that he was one' among the majority (in number and in measurement) of the property owners on said Valmont street who signed a petition to the City Council, and designated Irondale Chert, from the Irondale Chert and Improve-meut Company, as the kind of chert or stone pavement which they desired to be laid upon said street; and that Irondale Chert was the kind of chert selected, chosen and designated by the said property holders.

      He adopted as his own the allegations of relator’s petition, and intervened for the purpose of enforcing the rights of the taxpayers and property owners under Act No. 142 of 1894, praying that the writs of injunction and mandamus be made peremptory and perpetual. After hearing the parties, the District Court ordered that the application of the relator be denied and that the interven-, tion of Beck be dismissed.
    Relator appealed.
    On behalf of the defendants it is claimed that the positions taken by them, in answer to the rule against them in the District Court to show cause, were—
    1. That Act No. 119 of 1886, amended by Act No. 142 of 1894, does not grant the power which relator seeks.
    2. That the Council is never under any circumstances regarded as a ministerial body.
    3. That no mandamus can be issued to the Council to perform an act such as the relator is attempting to have performed in this cause.
    4. That under the law the Council may accept any and all bids or reject any or all bids.
    6. The plaintiff shows no cause of action.
    Defendants further say that’ the Council assigned among other reasons why the bid of the relator was not accepted and why that of J. A. Andrews & Son was, that the Arm of J. A. Andrews & Son were bidders for the contract and the bid of J. A. Andrews & Son was much lower than that of the relator. The brief contains an itemized statement of the bids of the two parlies and a column showing, if correct, that relator’s bid was the higher of the two. Relator does not controvert that fact. No reference is made in relator’s petition to J. A. Andrews & Son having been a bidder for the work, nor is there an averment that its own bid was the only one or the lowest of those made.
    Relator says that its contention succinctly stated is “that when the City Council declared by ordinance its intention to pave Yalmont street and the property holders within the ninety days specified in the act (Act 142 of 1894) designated the kind of material with which they wished the street paved, it then became the ministerial duty of the Council to pass an ordinance in due course for the pavement of the street with' the material so designated. That the discretionary power of the Council .was exhausted when, by ordinance, it declared its intention to pave the street. Its ministerial ■duty commenced when the property holders had exercised their rights under the act.”
    Relator also contends that the property holders in the exercise of the right given them by the statute had the right to desigate by name the company from which the chert (the material with which the street, was to be paved) should be obtained, or the patentee of any proprietary article if they chose to do so.
    Referring to Act No. 114 of 1894 relator urges that “prior to its passage the Council had the right to select and designate the kind of material with which the street should be paved. Property holders, it is true, had a right to petition for particular kinds of pavement, but the granting of the request was a matter entirely within the discretion of the Council. * * * The act of 1894 does two things; it gives the property holders a right which had, theretofore, vested with the Council and it takes away from the Council the discretion which up to that time it had possessed.”
   The opinion of the court was delivered by

Nicholls, C. J.

We do not understand relator to advance any claim based upon the fact that it was the only bidder under the first offer for the work which called for bids for paving Valmont street with concrete chert from the Irondale Chert Paving and Improvement Company.

The company acquiesced in the action rejecting its bid and re-offering the contract. Relator became a bidder at the second offering, which called for paving of Valmont street with concrete chert from the Irondale Chert Paving and Improvement Company “ or its equal the same as laid on Frenchman street.” It asserts its right in this proceeding to have the contract for the paving adjudicated to it under the bid which it. then made. It was stated from the bar that the work pn Frenchman street had been executed by the plaintiff company. An examination of the City Charter (Act No. 20 of 1882) shows that by the twenty-first section of that act—

All contracts for public works or for materials or supplies ordered by the Council shall be offered by the Comptroller at public auction and given to the lowest bidder who can furnish security satisfactory to the Council, or the same shall at the discretion of the Council, be advertised for proposals, to be delivered to the Comptroller in writing, sealed, and to be opened by said Comptroller in presence of the finance committee of said Council, and given to the person making the lowest proposal therefor who can furnish security satisfactory to the Council; provided, that the Council shall in either case have the right to reject any or all bids or proposals.”

The thirty-seventh section of the charter authorized the Council at its discretion to provide for the paving or banquetting of any street or portion thereof, and directed the method of making payment for the work. The section was amended by Act No. 119 of 1886, so as to read as follows: “The Council may in its discretion provide for the paving or banquetting of any street or portion thereof, at the expense of the whole city, and may thereupon force, impose and collect, on paving, of the front proprietors of lots fronting on said street, a special assessment in proportion to frontage, of three-quarters of the cost of said improvement, and such local assessment shall have a first privilege superior to vendor’s privilege and all other privileges and mortgages. The other one-fourth, in.addition to intersections to be paid by the city: on banquetting the whole cost to be collected from front proprietors. A two-third vote of the members of the Council is required to order said banquetting or paving, and whenever the Council shall deem it necessary to take such action, notice of such intention shall be published in the official journal once a week for four weeks, and such improvements shall be subject to the conditions already prescribed for improvement or. repairs to be made on compliance with the petition of property holders and payment thereof shall be assumed and collected in like manner.” Act No. 119 of 1886 was itself amended by Act No. 142 of 1894, the portion of the act affecting the question now before the court being found in the proviso of the third section of the new act. The third section reads as follows:

“ A two-third vote of the City Council shall be necessary to pass any paving or banquetting ordinance, and whenever the Council shall deem it necessary to take such action, notice of said intention shall be published in the official journal once a week for four weeks, no further notice being required.

“Provided, a majority of the property holders in number and measurement on the street or sidewalk sought to be paved or banquetted shall have the right to designate the kind of gravel, stone, bricks, or Schillinger to be used, by petitioning the Council within ninety days after such publication by the Council, giving notice in the official journal to pave or banquette said street or sidewalk.”

We know of no law repealing the 21st section of Act No. 20 of 1882, requiring that contracts for public works should be offered at public auction, and that the contracts should be awarded to the lowest responsible bidder, but conferring upon the City Council the right to reject any or all bids or proposals. There is nothing in Act No. 142 of 1894 which, either expressly or by implication, repeals that section. Relator’s claim is totally untenable that the moment the Council, by ordinance, exercised the discretion vested in it in determining that Valmont street should be paved, and the moment the property holders exercised the privilege accorded them under Act No. 142 of 1894 of selecting the particular material with which the street was to be paved, matters became so fixed that the Council was utterly without authority to recede from its determination to have the street paved, and stood charged thenceforward “ with the ministerial duty of passing an ordinance, in due course, for the pavement of the street with the material so designated ” thxt “ its discretionary power was exhausted when, by ordinance, it declared its intention to pave the street; that its ministerial duty commenced when the property holders had exercised their rights under the act.”

The city, as well as the property holders, has an interest in this matter, for upon it, in case of the execution of the. work, would be thrown a large proportion of the cost. It has not only the power to recede from having the street paved, but after the reception of bids it has the unquestionable right to reject any or all bids offered.

Relator became a bidder at the second offering of the contract, and under the terms of the advertisement then made. It insists upon having rights claimed to have been derived' through and by that bid recognized and enforced. We do not think the terms of the advertisement play any part in the issues presented to. the court, for whatever may have been those terms or the character-of the bids, we think the Oouucil had unquestionably, as we have said, the power and right to rejeet'them, if in its opinion the public interests would not be subserved by accepting them. We do not think that the right of the City Oouncil of declaring in favor of paving a street with a patented article, offering a contract for the paving of a street with material of a particular kind held for sale by a particular person and accepting a bid made by the owner of the patented article or the special holder of designated material, is involved in this suit. Had such a condition of affairs existed the suit would have been either one to resist payment of assessments made under a contract entered into under these circumstances, or one brought by a party in interest to have such a contract annulled. The real contention here is that when a bid is made at a public offering for paving a street by a person offering to do the work with the material selected by the property holders, the Council is absolutely bound to accept the bid and enter into a contract with the bidder, regardless of the amount of the bid or the advisability in the judgment of the public authorities of executing the work upon the terms offered.

We have examined the cases of the Barber Asphalt Company, 100 Missouri, p. 25; In re Dugro, 50 N. Y. 513; Baird vs. Mayor, 96 N. Y. 567; Hobart vs. Detroit, 17 Mich. 246; Dean vs. Charlton, 23 Wis. 590; Mills vs. Charlton, 29 Wis. 400, and Dean vs. Bouchsenius, 30 Wis. 236, all bearing upon the right of a Common Council to offer to receive bids for paving streets with a patented article, to accept such bids and to enter into contracts based on them; but these decisions (presenting different views of the same question), are not pertinent to the particular questions submitted to us in this litigation.

In one of those cases (Hobart vs. City of Detroit), Chief Justice Cooley, in upholding the authority of a Common Council to enter into such contracts, replied to one of the arguments urged against the recognition of sucha power as follows: “The security of the city against combinations and extravagant contracts in such eases must rest in the power which the Common Council possess, to reject any bid which they might regard as unreasonable — a power which the Legislature have evidently considered of some value, as otherwise they would have made the fact of lowest bid conclusive and the execution of a- contract in accordance with it compulsory.” We think the power of the city of New Orleans to reject any and all bids has been left by the Legislature untrammeled.

In holding that the Council was not forced to accept plaintiff’s bid, we dispose. of the whole case. Relator’s pleadings are not ■framed with reference to raising issues between J. A. Andrews & Son and itself as to their respective rights as bidders. No attack is made upon the rights of that firm except, consequentially, as the forced legal result of a recognition of relator’s having pre-existing vested rights.

The record does not inform us of the character of their bid. Defendants inform us that it was lower than that of the plaintiffs. Be that as it may, J. A. Andrews & Son have not been made parties to this litigation and we can not pass upon their rights in their absence.

Judgment affirmed.


author: Nicholls, O. J.

text:
    No. 12.070.
    State of Louisiana vs. William Perry, alias William Lewis, alias William Williams.
    The court is not bound to assign counsel to an accused unless upon his own request, and if he fails to make the request or to apply for a continuance on the ground of absence of counsel of record, but is ready for trial, the mere fact that the trial proceeded without the aid of counsel does not constitute error nor a ground upon which to base a demand for a new trial. 25 An. 381; 33 An 979; 37 An. 606; 39 An. 19.
    Declarations made by a defendant’s counsel iu a motion for a new. trial that accused had a good defence is a mere conclusion. Facts should be set out by which the court could determine the correctness of the conclusion that the accused could have been relieved from the disadvantages referred to by the assistance of counsel,
    APPEAL from the Criminal District Court for the Parish of Orleans. Moise, J.

      M. J. Cunningham, Attorney General; Charles A. Butler, District Attorney, and John J. Finney, Assistant District Attorney, for Plaintiff, Apellee.

      Conrad G. Collins for Defendant, Appellant.
    Submitted on briefs March 14, 1896.
    Opinion handed down March 23, 1896.
   The opinion of the court was delivered by

Nicholls, O. J.

An extract from the minutes of the Criminal Court of January 14, 1896, shows that “the Assistant District Attorney being present and the defendant, William Perry, etc., being placed at the bar of the court in custody of the sheriff, the State and the defendant being ready for trial, the jury was accepted, empaneled and sworn — certain witnesses were examined on the part of the State and cross-examined by the defendant — the defendant testified on his own behalf and was cross-examined by the State, and after hearing the evidence and instructions of the court the jury returned a verdict against the defendant, finding him guilty as charged.”

On the 16th an attorney representing defendant filed an application on his behalf for a new trial upon the following ground:

1. Because the accused had an attorney at law duly retained for his defence and he was tried without an opportunity of communicating with his said attorney or of having said attorney to represent him.

2. Because his said attorney sought to communicate with defendant while confined in the parish prison, but that another prisoner who answered to the named of Willie Lewis, by which name defend-was known and by which name said attorney asked to see defendant, was brought from a cell by the deputy criminal sheriff to his counsel, who was thereby mislead and believed, as he had the right to believe, that he was speaking to Willie Lewis the defendant, and that counsel was informed by said other Willie Lewis that he did not need his said attorney’s services; that he had employed Mr. Lionel Adams as his counsel. Whereupon said defendant’s counsel left the prison, believing that defendant had counsel, and defendant was produced in court by the criminal sheriff, and had to stand his trial without the assistance of counsel, and was deprived of the right granted him by law of being defended by his attorney so retained by him.

3. Because of said action of said deputy criminal sheriff defendant has been deprived of a constitutional right, and surprised into a trial when he had counsel to defend him who could have advised defendant and secured to him a proper representation of his defence before the court.

4. Because defendant had a good defence in his behalf, and was deprived of the right to urge the same by said surprise and actions of the said officers of the court.

Attached to this motion were the affidavits of B. A, Michel and Conrad G. Collins, the latter being the attorney who filed the motion for a new trial, and who was referred to in the affidavit of Michel.

Michel deposed that he had retained Mr. Collins, as attorney for Willie Lewis, Saturday, January 11, 1896. That he handed to the attorney a card on which was written the words “ Willie Lewis, cutting and wounding, parish prison.” That card was the address given by him to Mr. Collins, to direct him to the defendant in the above entitled cause, who is the Willie Lewis known also as Perry and William.

Mr. Collins’ deposition was first to the truthfulness of all the facts and allegations in the motion for a new trial. Deponent said he had read the affidavit of Michel; that the facts therein were true; that he visited the parish prison to confer with his client Monday, January 13, 1896, and asked for Willie Lewis, charged with cutting and wounding; that a prisoner also named Willie Lewis was brought to him, who declared that he had retained Lionel Adams as his attorney. Wherefore affiant left the parish prison, believing he had seen Willie Lewis, alias Perry, alias William, and that he had counsel.

But the court overruled the motion, stating that “the accused had announced in open court that he was ready for trial and made no mention to the court of the fact that his counsel was absent, or that he had engaged counsel, or that he desired counsel,” and declaring that his failure to secure counsel was no ground for a new trial. Defendant’s counsel excepted to this action and reserved a bill of exceptions, annexing thereto the application for a new trial.

In this bill the District Judge stated, as additional reasons for his ruling, that the defendant was an intelligent man and had no right to mislead the court into the trial of his case by announcing his readiness to go to trial and then move for a new trial because some one had employed counsel to defend him, who, by some accident, failed to do so; that the attorney was at fault, since the prisoner was not prosecuted as William Lewis, or Lewis, but as William Perry, alias Lewis, alias Williams; that under that name he was committed to the parish prison, and was there so registered on the prison list; that proper inquiry at the prison would have brought out the proper person.

In State vs. Doyle, 36 An. 91, the only ground suggested in the Supreme Court for relief was that the trial of defendant was had in the absence of counsel. The court said the defendant was duly rep - represented by counsel. The ease had been repeatedly fixed for trial and three continuances granted on the sole ground of the absence of counsel; that on the last trial counsel being again absent the case was proceeded with; that it did not appear that the defendant had applied to the court for an assignment, and therefore the record failed to show any violation of Sec. 992 of the Revised Statutes. The judgment appealed from was affirmed.

Counsel claim that the defendant was deprived of his constitutional right of having counsel.

Article 8 of the Constitution declares that “in all criminal prosecutions the accused shall enjoy the right to have the assistance of counsel.” Sec. 992 of the Revised Statutes declares every person shall be allowed to make his full defence by counsel learned in the law, and the court before whom he is tried, or some judge thereof) shall immediately upon his request assign to him such counsel as he shall desire.”

The decisions of this court are to the effect that the court is not bound to assign-counsel to an accused unless upon his own request, and if he fails to make the request or to apply for a continuance on the ground of absence of counsel of record, but is ready for trial, the mere fact that the trial proceeded .without the aid of counsel to assist him does not constitute error or a ground on which to base a demand for a new trial. State vs. Kelly, 25 An. 381; State vs. De Serrant, 33 An. 979; State vs. Vianna, 37 An. 606; State vs. Walker, 39 An. 19.

The District Judge who presided at the trial who heard the witnesses on both sides, and the account given by the defendant himself' of the circumstances of the case, was evidently not much impressed with the statement made in the motion for a new trial; that defendant had a meritorious defence, or that he had been aggrieved or injured by not having the assistance of counsel. This-court, of course, knows nothing of the facts of the case, or of what took place on the trial. The declaration made by the defendant’s counsel in the motion for a new trial, that accused had a good’ defence, is a mere conclusion. No facts are set out by which this-court could determine whether that conclusion had any basis upon which to rest. There ate no irregularities mentioned, no disadvantages referred to as being those from which accused could have been relieved by the assistance of counsel. Defendant’s case would have been much stronger had he shown that evidence which should no* have been received had been permitted to be introduced, because accused was ignorant of his rights, or that evidence which could have been procured had not been procured, or if procured had been improperly rejected, because no one learned in the law was at hand to give the accused the benefit of his counsel. This case comes to us absolutely without any showing of injury, and under an adverse ruling of the District Judge upon a subject peculiarly his province to determine. The conversation which took place at the parish prison between counsel and the Willie Lewis with whom he had an interview is not given. It could scarcely have been limited to the precise remarks mentioned in the affidavits and motion. The inquiry made by counsel should have been pushed further than it seems to have been made, and he should have made some report to Michel, who (and not defendant) had in fact employed him, of what had occurred, and asked of him some explanation as to why he should have been superseded by another, as appeared to be the case. Michel himself should have told the accused of his having employed counsel for him if he was acting in his behalf independently of any instructions from him. We do not feel justified in granting defendant relief in the premises.

The judgment is affirmed.


author: Breaux, J.

text:
    No. 11,872.
    Succession of Peter Birba.
    The claim of the opponent for the amount deposited is supported by the acknowledgment of the debtor. The opponent was industrious and economical, and during many years entrusted the depositary with her earnings.
    He received the amount claimed as an agent; it is not subject to a prescription of less than ten years.
    The bill of exception does not contain evidence suflicient to support the inference that counsel improperly prompted the witness by reference to a memorandum.
    The record does not disclose that there was a failure to comply with the court’s order in matter of oyer of checks.
    The facts all point to the forgery charged; the court can not assume because of the timid character of the alleged forger that he must have been coerced into acknowledgments of guilt; there being no evidence of record of any attempt to intimidate him. -

      A PPEAL from the Civil District Court for the Parish of Orleans. Bightor; J.

      Frank McQloin for Miss A. Barti, Opponent, Appellee.

      J. B. Rosser, Jr., for Estate of Birba, Appellants.
    Argued and submitted February 12, 1896.
    Opinion handed down March 9, 1896.
   The opinion of the court was delivered by

Breaux, J.

The succession of Peter Birba was opened and James Birba, his only heir, qualified as administrator.

After the property of the succession had been sold the administrator filed an account. The account is opposed by a number of creditors.

The opponent, Angelina Barti, avers that the fee of the attorney for the administrator should be reduced to three hundred dollars and claims three thousand and ten dollars as an ordinary creditor 'and thirteen dollars and eighty-five cents as privileged creditor.

E. Carreras and others also oppose the account, claiming as creditors-and opposing certain items of indebtedness carried on the account.

After trial the plea of prescription entered against Miss Barti was overruled and she was placed on the account as a creditor in the sum of three thousand and ten dollars.

The opposition of F. Orfilla and others was sustained in so far as to place them on the account as creditors in the sum of seven hundred and eight dollars, and the opposition of E. Carreras was sustained in so far as to place him upon the account as a creditor in the full sum of seven hudred and ninety two dollars.

The fee of the attorney was reduced to the sum of three hundred and fifty dollars.

The account was homologated as amended.

The administrator appeals from the judgment.

The opponent, Miss Birba, was a wage earner during many years, and in addition to her wages, she, part of the time, collected rent on property she owned.

The evidence shows that she worked at different places for good wages; that she was always strictly economical.

The following is a copy of her account:

Debits 1. During the year 1888. $300

2. February 10, 1890. 406

3. February 10, 1891... 434

4. April 2,1891. 1000

5. February 2, 1892... 160

6. January 1 or 5,1893 . 940

7. January 31, 1893... 200

Total . $3440

Credits, January 9, 1890-1893, paid by Mr. LeBreton. $400

Balance due. $3040

A witness, entirely reputable, testifies that in 1898 Peter Birba said to him that opponent entrusted all her money to him, and that he felt bound to look after and protect her interest; he then had thirty-two hundred dollars to her credit, subject to a credit of four hundred dollars.

This credit appears on the account. The witnesses and the facts and circumstances, taken as a whole, sustain the correctness of this account. The contradictory statements of witnesses touching points, not material, in regard to this account, are not of such a character as to defeat the claim. Something was said, for instance, about her signing notes and other documents. While as a witness she testified that she could not read and write. No question was raised in this regard and no explanation sought. It was a matter of no importance, in the case, and was only an incidental statement of the witness which probably could have been explained. The other statements charged by the administrator with being contradictory and improbable are not any more damaging to the claim, and do not have any bearing upon the question at issue; while the claim itself is amply sustained by evidence worthy of weight.

While this witness was testifying that an amount claimed,was due in answer to a question, counsel for administrator objected.

Counsel for administrator objects to counsel reading from a memorandum not made by the witness.”

The court overruled the objection, and the administrator had a note made in the note of evidence in lieu of a bill.

The objections are general in character. The bill is not sufficiently full and certain; the supposed error is not pointed out in the manner required to disclose the objectionable ruling.

We are not informed that the counsel by reading intended to prompt the witness in answering, or that the memorandum related to any fact in regard.to which the witness was testifying.

In Warner vs. Clark & Co., 45 An. 863, 870, this court directed attention to the importance of clearly and specifically pointing out the asserted error. Under the rule supported by that case we do not think we would be justified in remanding this ease for another trial. There is less reason' for excluding the answer of a witness entirely negative in character. If excluded it would not affect the issues of the case in any particular. It is entirely negative.

The debtor was an agent, and he received these different amounts as deposits in his hands for account of his principal. It was not an account, as generally understood between creditor and debtor, and subject to the prescription of three years; it was a personal claim founded upon the obligation under which the agent was placed of returning the amount received, to his principal. The personal action is subject only to the prescription of ten years. It is not subject to the prescription of three years pleaded.

The fee of the attorney for the succession was reduced by the District Judge.

We do not understand that further reduction is claimed.

The fee was reduced to an amount which we think is entirely reasonable and proper. There were a number of oppositions filed, and the estate was in such a condition as to render the services of importance and of value equal to the amount charged.

This brings us to the oppositions filed by a number of opponents, in which it is charged that the late Peter Birba forged the name of E. Carreras to various checks, and collected them from the People’s Bank.

They pray for judgment against the succession of Birba for sums collected by Birba on these forged checks.

The administrator urges that the court erred in setting aside an order dismissing these oppositions, and reinstating these oppositions.

The administrator, through counsel, prayed oyer of the checks alleged to have been forged; the order of the court to produce checks not having been obeyed, the oppositions were dismissed, and subsequently these oppositions were reinstated as just stated.

Whatever merit there may have been in the objection, it can not avail the administrator, for the reason that no exception was taken to the court’s action, and no attempt of any sort to obtain from the court an order rescinding the reinstatement of these oppositions.

The point was not contested below and the trial was proceeded with without objection. A ground of exception waived in the District Oourt can not be revived here.

Granted for a moment that the foregoing are not reasons sufficient, it remains that the litigant who desires to have a point of law reviewed on appeal must see that the facts upon which the point is based are made evident by the record; thus, if oyer is granted by the court’s order, of alleged forged checks, and it does not appear that the time had elapsed within which they were ordered to be produced, the court will not hold that the evidence of the alleged forgery, in so far as relates to the checks, must be excluded and enter up a judgment for the amount of checks alleged forged.

Moreover, in the matter of settling a succession and homologating an account the court of the first instance is vested with a degree of discretion in permitting the filing of oppositions prior to the trial into which an appellate court should not lightly interfere.

The complaint was that Birba drew money from the bank by forging the checks of his employer.

It is urged by the administrator and one of the creditors (the latter interested in raising the question, because the succession is not solvent) that if there be any one to present a demand for the forgery charged and the collections made thereon, it is the bank and not the depositors.

It is a well established rule from which there should be no departure upon slight grounds that the banker who makes a payment upon the strength of a forged cheek must bear the loss as between himself and the depositor. But here the depositor has not chosen to exert any right against the bank.

The alleged forger and the bank are indebted insólido, if the bank’s responsibility is within the rule just stated.

He who with another does an unlawful act is answerable in solido. C. C. 2324.

The depositor has a remedy against both.

It remains for us to determine whether there is any foundation for the claims of these opponents. The evidence in support of the invalidity of the checks in question is uncontradicted. The confidential relations which existed between the employer and his clerk; the services incumbent upon the clerk and the duties performed ■, his utterances after it was discovered that checks had been forged and his expressed willingness to pay the amount of the checks support the opposition upon this point. The theory of the administra - tor that it was timidity that influenced the acknowledgment and drove the clerk charged with forgery to his own destruction is not convincing. There is no proof of record that he was threatened or that it was sought to frighten him in any manner. .We would not be justified in assuming that he was goaded to desperation and suicide by persecutions.

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


text:
    No. 12,088.
    State ex rel. Alexandre Marchand vs. The Judge of the Fourteenth Judicial District Court for the Parish of Iberville.
    The debtor who has failed to comply with the conditions of a contracted voluntary respite (to which the consent of all the creditors was not obtained) can not be driven to a forced surrender.
    QN APPLICATION for a Writ of Mandamus.

      Edward N. Pugh for Relators.
    Submitted on briefs March 9, 1896.
    Opinion handed down March 28, 1896.
   On Application por Writ op Mandamus.

The opinion of the court was delivered by

Breaux, J.

There was a meeting held of creditors of R. T. Hart in 1896.

Subsequently Hart contracted a voluntary respite with a majority of his creditors in number and amount.

In accordance with the agreement covered by the contract entered into with these creditors, the first instalment of fifteen per cent, was paid.

Prior to the maturity of the second instalment a number of creditors who were parties to the contract of respite sued out an attachment under which the debtor’s property was seized.

Goodbar & Oo. and other creditors intervened in this suit and averred that the agents of one of the attaching corporations misled and influenced them into consenting to the contract of respite; that they accepted as true their statement in regard to the financisl condition of Hart; they pray that all the creditors of Hart be declared parties to the respite, and that the respite proceedings be vacated and annulled and Hart ordered to make a cession of his property to his creditors.

The judge of the District Court refused to grant the order.

The relator in the petition for mandamus avers, in substance, that Hart violated the respite and conspired with persons alleging themselves creditors. The purpose in suing out the .writ was to compel the judge of the District Court to sign the order constraining Hart to make a surrender of his property. In his answer to the rule nisi the judge states that his authority for ordering a forced surrender, upon the demand of one of the creditors, is contained in Sec. 4781 of the Revised Statutes. That statute directs the process, which consists chiefly in a petition of the creditor, supported by an oath, setting forth the judgment he has obtained, the issuance of execution and areturn. The relator is not a judgment "^editor, and these requirements could not be complied with.

The judge and the relator agree in the statement that there were suits pending in the court presided over by the former, and that creditors occupying relator’s position intervened. The judge, in addition,' returns that the facts alleged were substantially the same in all the petitions of intervention, and that he considered that the proceedings by intervention would afford due protection upon proof of the rights of the relator and other creditors, and that the purpose and scope of the interventions as interpreted by him, and under his ruling, would afford ample remedy.

The judge further returns that at the time that the relator presented his petition for a mandamus, two of the suits against Hart had been tried and decided upon the intervention of each, and resulted in proving that the plaintiffs were not parties to the voluntary respite, or engaged in fraud and collusion with Hart as alleged by relator, and that he was not authorized in law in disturbing the status and rights of those plaintiffs.

Lastly, that at the time the petition for the order in question was presented to him an appeal had been demanded and allowed to these intervenors, and that he, in consequence, was no longer vested with authority to grant the order applied for to relator, involving, as it does, a stay of all proceedings, including a stay of the order of appeal.

The respondent annexed to his answer a copy of the petition of intervention, to which he refers in his return, a copy of the order of appeal and of the document signed by the creditor. The document evidences the consent of creditors to an extension of time as agreed upon among a majority of the creditors in number and amount, as we are informed by the judge’s statement in his returns.

No attempt was made by the relator to traverse the judge’s statement of the fact and to show error in this respect.

The proceedings are of such a character that we gave careful examination to the application of the relator.

Solving questions suggesting the bad faith of parties to an agreement are nearly always attended with much that is difficult and embarrassing. The attempt to consult the common law upon the subject has only served to remind us that respite is not authorized under the provisions of that system. Beauregard vs. New Orleans et al., 18 Howard U. S. 501-503.

It was derived in Louisiana from the civil law. Consulting the pages of French commentators upon the subject, we find that in order that the contract of voluntary respite may bind all the creditors, formalities prescribed must be followed, and the proceedings homologated.

Vide Merlin de Atermoiement; Laurent and Toullier.

Under our Civil Code also effect to the contract of voluntary respite should be given only under strict observance of law.

Here there was no attempt to observe the forms of a judicial respite and no judgment decreeing a respite was obtained; no application of any kind was made to the .courts.

It follows that the rights of creditors, not parties, are not affected.

It was not a voluntary respite, for it is only voluntary when all the creditors consent to the proposal which the debtor makes to pay in a limited time the whole or a part of his indebtedness. 0. 0. 8086.

It was not a judicial respite for reasons already stated.

In order that a surrender of property may be ordered, it must be preceded by the one or the other.

The conditions precedent to a forced surrender are lacking.

It is obvious in this view of the subject we would not be justified in granting the order. We do not pass upon the terms of the contract and the effect they may have upon the rights of the creditors who Signed and consented to the delay.

The following may serve to illustrate: Let us suppose a majority of the creditors in number and amount agreed with the debtor upon terms of a voluntary respite; that after the payment of the first in-stalment of the debt agreed upon, a number of the creditors colluded with the debtor and sued out an attachment, can the non-colluding creditors force a cession of property? There are important considerations lacking; the consent of all the expeditors; a judgment granting the respite.

The bad faith of creditors may affect their right to an attachment. It does not give a right to a forced surrender of their debtor.

We confine our decision to a refusal to grant the writ of mandamus compelling the debtor to make a surrender of his property.

The relator’s application is therefore refused.


author: McEnbry, J.

text:
    No. 12,083.
    State of Louisiana vs. C. M. Matlock.
    In an indictment for perjury the use of the word “feloniously” is not necessary to describe the offence. If the indictment charges the offence in the statutory description, it is sufficient. Corrupt, wilful and false swearing to an affidavit for a continuance is embraced within Sec. 857, R. S.
    The word “feloniously” is essential in indictments only when it is used in the statute describing the offence, or where the statute refers to the common law offence only by name, and its use was essential in an indictment. But where a common law offence is referred to, and it is preceded by a statutory description, an indictment following the statutory description is sufficient.
    APPEAL from the Second Judicial District Court for the Parish of Bossier. Watkins, J.

      M. J. Cunningham, Attorney General, and A. J. Murff, District Attorney, for Plaintiff, Appellant.

      R. D. Webb and Joannes Smith for Defendant, Appellee.
    Submitted on briefs March 14, 1896.
    Opinion banded down March 23, 1896.
   The opinion of the court was delivered by

McEnbry, J.

The defendant was indicted for perjury. The word “feloniously ” was omitted from the indictment. Por this reason the defendant moved to quash the indictment. The motion was sustained, and the State appealed. The offence was a misdemeanor at common law, but the statute has made it a graver offence, and it is now felony by implication. But this is no reason for the description of the offence as felonious.

In the case of State vs. Charlot, 8 Robinson, 529, it was said that the word was unknown to the jurisprudence of this State. This doctrine, however, was overruled by subsequent decisions. State vs. Rohfrischt et al., 12 An. 382.

Its employment in indictments has been misunderstood and misapplied, and its use has occasioned no little confusion.

Section 976, Revised Statutes, provides that crimes, offences and misdemeanors shall be taken, intended and construed according to and in conformity with the common law of England. Perjury was a misdemeanor at common law. In this State there is no law defining felony, and no requirement to what offences the word shall be applied.

It is required and is essential in indictments only when it issued in the statute to describe a crime, or when the statute refers to the common law offence only by name, and its use was essential to a-proper designation and description of the offence at common law. When the statute refers to a crime which was a felony at common law and describes the same, the language of the statute, or words of equal import, must be followed.

Perjury at common law was the “ taking of a wilful, false oath by one who, being lawfully sworn by a competent court to depose the truth in any judicial proceeding, swears absolutely and falsely in a matter material to the point in issue whether he believed it or not.” The Legislature in this State has extended the crime to wilful false swearing to any deposition or affidavit taken or made pursuant to the laws of the State. The indictment charges the offence in the language of the statute and this is sufficient, as it embodies the definition of the offence as known to the common law. It is also urged that it is averred in the indictment that the alleged perjury was on a material point in the controversy, and that the materiality does not appear in the indictment, and that admitting the subject matter was falsely sworn to, it was not material to the investigation of the case.

The indictment charges that the perjury was the false swearing to an affidavit for a continuance. The affidavit was made in a judicial proceeding, was material in the controversy pending, as it had direct reference to the disposition of the ease. But the false swearing to such an affidavit is directly within the meaning of Sec. 857, Revised Statutes.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered that the case be remanded to be proceeded with according to law.


author: Wyley, J. McEnery, J.

text:
    No. 5467.
    Joseph Vigo vs. A. E. Carlon, Administrator.
    When a plaintiff has been, successful in a possessory action and the defendant appeals therefrom, the appeal will not be dismissed because the defendant since his appeal has resorted to the petitory (action — the bringing of such a suit does not amount to a voluntary execution of the judgment appealed from, nor abandonment thereof.
    The judgment in a petitory action carries with it both the instant right to the possession of the property and the title to the same.
    If the plaintiff in such action permits a party, a stranger to the litigation who purchased the property during the pendency of the suit, to remain inpossession for more than a a year, peaceably and uninterruptedly his possession must be protected.
    APPEAL from the Superior District Court for the Parish of Orleans. Hawkins, J.

      J. Ad. Rosier, Felix P. Poehé, Joseph F. Poohé and Charles J. Théard for Plaintiff, Appellee.

      A. & W. Voorhies for Defendant, Appellant.
    Submitted on motion to dismiss November 30, 1874.
    Opinion handed down December 14, 1874.
    Rehearing on motion to dismiss refused February 10, 1875.
    Argued and submitted on merits February 26, 1896.
    Opinion handed down March 23, 1896.
   ON Motion to Dismiss.

The opinion of the court was delivered by

Wyley, J.

The plaintiff having cast the defendant in this posses-sory action complains that since the defendant took the appeal herein he has brought a petitory action against, the plaintiff in the Fourth District Court for the same property, and inasmuch as pos-sessory and petitory actions can not be cumulated without consent (C. P. 55) the plaintiff contends that the suit thus brought by the defendant pending this appeal amounts to a voluntary execution of the judgment appealed from, or an abandonment thereof. He accordingly moves to dismiss the appeal for the reason stated. The position is not maintainable. Art. 55, C. P., declares that: “ Petitory and possessory actions shall not be cumulated or joined together, except by consent of parties. Therefore he who is sued in a pos-sessory action can not bring a petitory action until after judgment shall have been rendered in the possessory action, and until, if he has been condemned, he shall have satisfied the judgment given against him.”

It may be that pending the controversy in this possessory action against him, the defendant had no right to bring the petitory action complained of, but the remedy was an exception to the suit, and the action of the court below on the exception to the petitory action could be revised on appeal by this court. A second suit having the same cause of action might well be barred in the court where it was brought by the plea of lis pendens.

But having set up in a new suit the same cause of action would be no ground to dismiss the first suit pending an appeal.

The bringing of a new suit pending this appeal, in contravention of Art. 55 C. P., can not be seriously regarded as a voluntary execution of the judgment or an abandonment thereof.

The motion is denied.

On the Merits.

The opinion of the court was delivered by

McEnery, J.

The plaintiff, as possessor of certain immovable property, enjoined the defendants from disturbing his possession. There is no dispute as to the disturbance, but defendants claim that by a° decree of this court they were declared the owners of the property, and that the plaintiff purchased the property during the pendency of this litigation, establishing the title of defendants to the same, and as consequence of said purchase he is not in the peaceable and quiet possession of the property. The petitory action was instituted many years ago, and the plaintiff has been in possession of the property for sixteen years.

Under the judgment the defendants were entitled to go into possession of the property instanter, under the order of the court, and they were not bound to resort to a petitory action against the defendant in possession. But the defendants took no immediate steps to be put in possession, under the decree of the court, and permitted the plaintiff to remain in the peaceful and uninterrupted possession of the property for more than a year after the rendition of the judgment. His possession must be protected.

Judgment affirmed.


author: McEnbby, J.

text:
    No. 12,093.
    State ex rel. Mrs. Lydia E. Presbry et als. vs. The Judge of the Civil District Court.
    This coart has power to inquire into the proper execution of its decrees, and if the court to which the decree has been sent for execution improperly interprets it, and causes an execution to issue not in accordance with the recitals of the decree, the appellate court can, on proper proceedings being invoked, restrain the improper execution of the decree. When property in the hands of third persons is seized as the property of defendant in execution he can not interpose the adverse possession as a means of defeating the seizure.
    QN APPLICATION for a Writ of Mandamus.

      Fergus Kernan and W. IF. Wall for Relators.
    Submitted on briefs March 17, 1896.
    Opinion handed down March 23, 1896.
   On Application fob a Wbit of Mandamus.

The opinion of the court was delivered by

McEnbby, J.

In the case of Hodges et als. vs. Benjamin Ory, 48 An. 54, this court rendered a judgment as follows:

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed in so far as it allows the defendant the sum of one thousand five hundred and four dollars and five cents, and in lieu thereof it is now ordered, adjudged and decreed that defendant recover from plaintiff five hundred and four dollars and five cents, and in other respects it be affirmed with costs.”

The part of the judgment affirmed decreed that the sum awarded plaintiff should be “alien and privilege on the property herein above described, to the proceeds of which the execution of the present judgment is limited.”

The judgment of the court’ on becoming final was sent below for execution. The defendant, Ory, on the judgment in his behalf on his reconventional demand, issued execution and seized the property upon which his judgment was a lien and privilege. The relators sued out a rule on the defendant, Ory, plaintiff in reconvention, to show cause why an injunction should not issue, restraining the execution of the fi. fa. The relief prayed for was denied, and the relators now apply to this court for a mandamus to compel the respondent judge to issue the injunction as prayed for.

The reasons alleged by the respondent judge, to show that no mandamus proceeding can be had against him, do not apply here This proceeding is in relation to our own judgment, which, it is alleged, the respondent judge has improperly interpreted. This court having rendered the decree, has jurisdiction over its execution. Therefore, we were vested with power to issue all necessary writs to inquire into the proceedings below, and the writ of mandamus to compel the execution of our decree according to its terms. We find no departure from the decree in the issuance of the execution. The fact that the property is in the hands of third parties, holding adversely to plaintiffs to whom the property was adjudged, can not toe interposed as a defence to the issuance of the execution. It was seized as the property of plaintiffs. Those who hold adverse possession to plaintiffs may have cause to complain, but not the ¡plaintiffs, as relators.

The relief prayed for is denied at relator’s costs.


text:
    No. 11,891.
    Pierre Mengelle & Co. vs. Widow Phillippe Abadie et al.
    A lessor who obtains an illegal judgment against his tenant, and has it executed pending a devolutive appeal, is responsible for the actual damages occasioned to the tenant.
    The plaintiffs were illegally ejected.
    The judgment under which the tenant was ejected was reversed on the devolutive appeal.
    PPEAL from the Oivil District Court for the Parish of Orleans. King, J.

      A. A. Ker & A. J. Murphy for Plaintiffs, Appellants.

      John Bassieh, Jr., and P. L. Fourchy for Defendants, Appellees.
    Argued and submitted March 10, 1896.
    Opinion handed down March 23, 1896.
   The opinion of the court was delivered by

Breaux, J.

The plaintiffs sue the defendant for the recovery of damages in the sum of ten thousand dollars, for having been ejected from premises leased to them by the defendant.

They charge that the constable, in removing their stock of liquors and other property from the premises leased, caused to them the loss of not less than five hundred dollars, by wantonly destroying and damaging the stock; that he, in addition compelled them to pay him the sum of ninety-seven dollars, to which he was not entitled; the remainder is claimed for punitive and exemplary damages.

The defendants deny that the plaintiffs had any right of possession as tenants, or that they held under a lease.

Mrs. Abadie avers that under a judgment in her favor against the plaintiffs, rendered by the judge of the Second Oity Court of this city, she, as lessor, was placed in possession of the property leased.

The plaintiffs took a devolutive appeal from this judgment, after the defendant had been placed in possession and obtained a reversal of the judgment on appeal.

The defendant urges that plaintiffs had neglected their defence; that their only appearance in the court of first, instance was by way of exception, presenting such a plea as one would file only for delay.

That the execution of her judgment under the circumstance does not offer grounds sufficient for damages, and she, in her answer, claims damages in reconvention.

The constable who executed the writ of possession, made a party defendant, in a separate answer pleads a general denial, and claims to have acted in odedience to the judgment of the court.

• The judgment of the District Court rejected plaintiff’s demand and dismissed defendant’s reconventional demand.

From the judgment plaintiffs appeal.

It was decided that the judgment obtained by the defendant in 1892 against the plaintiffs, her lessees at the time, was illegal; it was reversed, and the judgment reversing the judgment under which Mrs. Abadie caused the eviction of the plaintiffs is res judicata. The issues involved in that suit are now settled. The judgment is final and it must be taken as true that the plaintiffs were illegally evicted from defendant’s premises. ■ •

The judgment can not be reopened and the issues reconsidered in order to determine whether or not the plaintiffs did not seasonably present those defences which were sustained, finally, and enabled them to obtain a reversal of the judgment.

The only question here is a question of damages; that is, whether plaintiffs, under the circumstances, are entitled to damages?

We have no desire to set aside the interpretation of our predecessors holding that the title of one who purchases the property, sold under execution, issued under a judgment, reversed on a devolutive appeal, is legal and not affected by the reversal of .the judgment.

The controlling idea (in those cases), we have reasons to think, was that there was ground for the sale, but that, owing to some informality in the proceedings, it was found that the judgments were erroneous and it was, in consequence, reversed.

Property sold to a stranger, particularly, passes by the sale and the title remains, despite the invalidity of the judgment under which the execution for its sale was issued.

There was a right in third persons to hold property bought at sheriff’s sale, and in others of these cases there was a right in creditors to have the property sold in regular proceedings.

Here there was no such right in the lessor. The judgment now final reversed the .judgment under which the writ of ejectment was issued. The ground of the reversal was that the lessor had no right to eject her tenants; the term of the lease had not elapsed.

The lessor who evicts his tenant before the end of the lease has not the shadow of a claim.

We do not think that this lessor was actuated by malice, and that there is ground for allowing exemplary or punitive damages; we are, however, firmly convinced that she is responsible for all actual damages occasioned under the illegal proceeding taken at her instance.

This being our conclusion, it only remains for us to fix the amount of the damages.

The stock of the plaintiffs and their other property on the prem - ises were of little value. It was estimated by different witnesses at amounts varying from three hundred and fifty dollars to one thousand dollars. •

The damages shown to this property were small. In addition, plaintiffs paid costs in amount thirty-six dollars, under protest.

Considering the whole of the testimony upon this point, conflicting as it is, we think that one hundred dollars is a fair compensation for all losses, and for the costs paid as just mentioned.

As regards the constable, a co-defendant, we agree with the judge of the District Court that he was reasonably careful, and the plaintiff suffered no damages from the manner in which he executed the mandate of the court. Crow et al. vs. Sheriff et al., 45 An. 1221, 1225.

It is therefore ordered, adjudged and decreed that the judgment appealed from is annulled, avoided and reversed, in so far as it rejects plaintiff’s demand against the defendant, Widow Phillipe Abadie.

It is further ordered, adjudged and decreed that plaintiffs have judgment against and recover of the defendant, Mrs. Phillipe Abadie, the sum of ($100) one hundred dollars, with five per cent, per annum interest from the date of this decree, together with costs of both courts.

It is further ordered, adjudged and decreed that in so far as the judgment appealed from , rejects plaintiff’s claim as against P. Adelard Fortier, constable, it is hereby affirmed.