author: WEBB, J.

text:
    No. 2521
    Second Circuit
    SWIFT AND COMPANY v. J. B. ABRAMS, JR.
    (February 8, 1926, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Pleading—Par. 66, 71.
    Proof offered in court on the trial of an exception to »the jurisdiction showing that defendant had been adjudicated a bankrupt and that composition had been made with the creditors and con. firmed by the court is insufficient to maintain the exception.
    2. Louisiana Digest—Bankruptcy-;—Par. 49.
    A bankrupt may validly acknowledge an indebtedness from which he was released by a discharge and promise to pay it, but the proof of the promise must be expressed unequivocal and clear.
    3. Louisiana Digest—Bankruptcy—Par. 37.
    Where there was a composition in bankruptcy made with the creditors' to which a creditor who is the plaintiff in this suit was not a party, the plaintiff is entitled to recover, provided he can prove his case.
    4. Louisiana Digest—Appeal—Par. 521.
    Where the oral testimony shows that the defendant did have some discussion as to an indebtedness due plaintiff but does not show the amount of such indebtedness a judgment of non-suit will be entered by the court.
    Appeal from the Fifth Judicial District Court of Louisiana, Parish of “Winn, Hon. F. E. Jones, Judge.
    This is a ‘suit for the value of merchandise sold and delivered. There was an exception to the jurisdiction ration® materia filed which was overruled. There was judgment on the merits in favor of plaintiff and defendant appealed. Plaintiff answered the appeal asking for an increase.
    Judgment reversed and plaintiff’s suit dismissed as of non-suit.
    Moss and Peters, of Winnfield, attorneys for plaintiff, appellee.
    Eugene Beck, of Winnfield, attorney for defendant, appellant.
   WEBB, J.

On April 10, 1924, the plaintiff, Swift & Go., brought suit against the defendant, J. B. Abrams, Jr., in which it alleged that defendant was indebted unto it nine hundred and seventy-two and 07-100 dollars with five per cent per annum interest thereon from January 1, 1924; the consideration of the indebtedness being alleged as follows:

“That between the dates of January 20, 1923, and May 14, 1923, your petitioner sold and delivered to the said J. B. Abrams, Jr., goods, wares and merchandise to the amount of and for the price and sum of $2172.00, that the said J. B. Abrams, Jr., was credited with the following amounts, by compensation and discount $243.18, May 5, 1923, check $478.37, June 1, 1923, $478.57, July 5, 1923, $478.38, leaving a balance due your petitioner of $493.50; that check dated June 1st for the sum of $478.57 was never paid your petitioner, and which leaves a total balance due of nine hundred seventy-two and 07-100 dollars ($972.07) with, five per cent per annum interest thereon from January 1, 1924, until paid, all of which will more fully appear by reference to sworn itemized statement of the account, unpaid check and contract attached to this petition and, made a part of same for reference and greater certainty.”

Attached to the petition, and marked “Piled Apr. 10, 1924”, “C. McGinty, Clerk Eighth District Clerk”, are several accounts which are not, however, sworn to, a check drawn by J. B. Abrams, Jr., at Sikes, La., June 1, 1923, in favor of Swift & Co., for four hundred and seventy-eight and 57-100 dollars, which bears the endorsement of Swift & Co., the Marine Bank & Trust Co., and an inscription in lead pencil “No reasons given” and also a contract between Swift & Co. and J. B. Abrams, Jr., of date 12-12 1919, under which Swift & Co., designate Abrams as its agent for sale on commission and for its account, fertilizers, etc.

The defendant excepted to the jurisdiction of the court rationae materia and asked that the exception be sustained and plaintiff’s suit dismissed, 'specifically alleging as the basis of the exception:

“That several weeks prior to the filing of this suit, your exceptor was adjudged a bankrupt by the United States District Court for the Western District of Louisiana, has regularly filed the requisite schedules in said court, and has not been discharged from said bankrupt proceedings, and that the said bankrupt proceedings are now' pending in said court; that this Honorable Court is without jurisdiction rationae materiae to try and determine this case, as will be fully shown upon the trial of this exception.”

The minutes of the court show that the exception was tried November 18, 1924, and we find in the transcript a copy of a list of unsecured creditors “In the matter of J. B. Abrams, & Co., Bankrupt, No. 2316, In Bankruptcy, In the United States District Court for the Western District of Louisiana”, upon which Swift & Co. of New Orleans are placed as unsecured creditors on open account for $968.50, to which there is appended the following certificate :

“I hereby certify that the above and foregoing is a true, and literal copy of a page of Schedule A-3 of the schedule filed in this court by the above bankrupt. Thus done and signed at Opelousas, La., this 5th day of May, 1924. (Signed) L. L. Perrault, Referee in Bankruptcy.”

And we also find a typewritten memorandum reading as follows:

“In the U. S. District Court for the Western District of Louisiana,
“In the matter of
“J. B. Abrams & Co.
“J. B. Abrams, Jr., E. C. Willis, and W. S. Emmons, Bankrupts.
“Notice is hereby given that the composition of 25% on all unsecured debts not entitled to priority offered by the bankrupts herein, was approved and confirmed by the court by order dated May 22, 1924, and that all creditors may procure warrant for said dividend on the filing of their proofs of claims with the undersigned
“(Signed) L. L. Perrault,
“Referee in Bankruptcy.” •
“Opelousas, La.
May 29th, 1924.
which instruments appear to have been filed in evidence on June 23, 1924.

The exception was overruled on June 3, 1925.

The defendant filed an answer on September 8, 1925, in which he denied the allegations of plaintiff’s petition.

The cause was fixed for trial on September 8, 1925, and we find in the transcript the following documents:

1. A statement, not sworn to, of the account of Swift & Co. against J. B. Abrams, Jr., showing a balance due of $972.07.

2. Letters and memoranda of Swift & Go. to its attorneys

These instuments appear to have been filed in evidence on the trial, although the notes of evidence do not mention the filing.

The oral testimony on the trial of the case seems to relate to some agreement that J. B. Abrams, Jr., made with the attorney of Swift & Co. as to the payment of a part of the claim, or a certain per cent equal to that which may have been distributed to the unsecured creditors of J. B. Abrams & Co., et al., Bankrupts, who proved their claims in that proceeding; and the only testimony relative to the account of Swift & Co. is that given by Abrams when being interrogated as to the promise to pay a portion of the account; his evidence as to the account being as follows:

“Q. Will you please examine this account and see if that account is correct?
“A. It is not exactly the way we filed it; it was not exactly this amount.”

The judgment of the District Court was in favor of plaintiff for the sum of two hundred and forty-three and 02-100 dollars with legal interest from September 8, 1925.

The defendant appealed and plaintiff answered the appeal praying that the judgment be amended by increasing the amount therein allowed to plaintiff to nine hundred and seventy-two and 07-100 dollars, and, as amended, affirmed.

OPINION

We gather from the manner in which this cause was presented, that there may have been some agreement or stipulation between counsel as to consideration to be given to documents appearing in the transcript that is not shown by the record; but we have to consider the case as presented by the transcript.

EXCEPTION TO JURISDICTION

While we do not find that any evidence whatever was offered in support of the exception on the date of trial, yet we have considered the documents filed on June 23, 1924, in connection with the exception to the jurisdiction, and accepted them as proving that defendant had been adjudicated a bankrupt, and that a composition had been made with the creditors and confirmed by the court; but we do not think that this shows that the court was without jurisdiction, and that the exception to the jurisdiction was properly overruled.

MERITS

We gather from the argument of counsel and documents in the transcript that Abrams had been adjudicated a bankrupt and that such proceedings were pending, or possibly had been closed by a composition which had been confirmed by the court very soon after the suit was filed by plaintiff; that in some manner, however, the plaintiff had not proven its claim in bankruptcy or that possibly the amount which the bankrupt had deposited to comply with the composition had been distributed to creditors who had proven up their claims and that plaintiff, having failed to prove its claim, did not benefit from the distribution; and from the argument of counsel and the oral testimony it appears that the plaintiff in this action takes the position:

1st. That it is entitled under the evidence to recover judgment for the amount claimed in its petition; and

2nd. That if it is not entitled to recover the full amount claimed, that it is entitled to recover 25% of the amount under an agreement made by defendant subsequent to the proceedings in bankruptcy.

Considering these positions in an inverse order, we find that plaintiff’s main demand is based strictly upon the original indebtedness; that it does not in any manner refer to any proceedings in bankruptcy, much less allege either as a part of its main demand or in the alternative, that defendant had made an agreement, subsequent to the adjudication in bankruptcy, under which he agreed to pay the claim or any part thereof.

While there is evidence offered tending to show a subsequent agreement, we do not think that it could possibly be contended that the defendant is shown under the evidence to have agreed to pay the entire claim of plaintiff, neither do we find that the evidence establishes that he agreed to pay any part of the claim other than through the court having jurisdiction of the proceedings in bankruptcy.

Unquestionably a bankrupt may acknowledge an indebtedness from which he was released by a discharge, and a promise to pay it would be valid, but the proof of the promise to pay must be express, unequivocal, and clear, and we find that the evidence as to the promise of the defendant was not only not express and unequivocal, but that the discussion was with relation to composition proceedings in bankruptcy through which defendant had been obligated to pay 25% of the amount due unsecured creditors.

We find also that whatever agreement of understanding there was, that plaintiff never accepted, and this is clearly shown by the petition in which the plaintiff claims, not an amount agreed to be paid under an agreement subsequent to adjudition in bankruptcy, but the original amount of the indebtedness.

Remington on Bankruptcy, 3rd Ed. No. 3508, 3509.

On the second position, we are of the opinion that plaintiff would be entitled to recover the full amount of the indebtedness claimed, provided the evidence establishes that it was due.

We do not find where defendant has pleaded a discharge in bankruptcy, as against the demands of plaintiff; there is in the record, as stated, a memorandum indicating that a composition was had and confirmed by the court in some proceedings in bankruptcy to which the defendant was a party, but it does not appear to have been offered in evidence on the trial on the merits.

The accounts which appear to have been filed on the date of the trial, were not sw'orn to; defendant, when interrogated, stated that the account handed him was not for the same amount as was filed, and there is no evidence in the record showing that any amount was due the plaintiff, unless it be that the copy of the schedule filed in the bankruptcy proceedings against J. B. Abrams & Co., J. B. Abrams, Jr., and others, which shows an amount due plaintiff, should be considered as an admission.

This copy of the schedule was not filed in evidence on the trial on the merits, and while the oral testimony shows that defendant did have some discussion as to an indebtedness due plaintiff the testimony does not show the amount of such indebtedness.

It is therefore ordered, adjudged and decreed that the judgment appealed from be avoided and reversed and that plaintiff’s demands be rejected as of non-suit.


source: Caselaw Access Project

author: LECHE, J.

license: Public Domain

text:
    No. -
    First Circuit
    MARINE BANK & TRUST COMPANY v. MARTEL, ET AL.
    (January 28, 1926, Opinion and Decree)

      (Syllabus of the Editor.)

    1. Louisiana Digest—Appeal—Par. 312.
    Act 67 of 1876 requires the surety on an appeal bond to be domiciled within the jurisdiction of the court, otherwise the appeal must be dismissed.
    2. Louisiana Digest—Appeal—Par. 325.
    Act 112 of 1916 does not relieve an appellant who, although he personally signed an appeal bond, failed to furnish the surety required.
    Appeal from the Parish of Iberia. Hon. James Simon, Judge.
    Action by Mariné Bank & Trust Company vs. Mrs. Josephine Leleu Martel, et al.
    There was judgment for plaintiff and defendant appealed.
    Judgment dismissed.
    Burke & Smith, of New Iberia, attorneys for plaintiff, appellee.
    Broussard & Sampson, of New Iberia, attorneys for defendant, appellant.
   LECHE, J.

The defendants in this ease have appealed from an order of executory process and plaintiff moves to dismiss the appeal on the ground that the surety on the appeal bond does not reside in the parish of Iberia, where the suit is pending, but in the parish of Vermilion, outside the jurisdiction of the court.

Act 67 of 1876, p. 109, requires the surety on an appeal bond to be domiciled within the jurisdiction of the court, otherwise the appeal must be dismissed. State ex rel. Veith vs. Capdevielle, 140 La. 812, 74 South. 110. For that reason the appeal in this case must therefore be dismissed unless protected by the provisions of Section 9 of Act 112, p. 241, of 1916.

The cited provision is in substance to the effect that no appeal shall be dismissed on account of any error in the amount of the bond or for any inaccuracy or omission in the bond or for the insufficiency of any surety or sureties on said bond until the party furnishing such bond shall have failed to correct the error, inaccuracy or omission or to have furnished supplemental or additional bond, etc. There is here no question of any error, inaccuracy or omission, or insufficiency of surety, but no surety at all under the terms of the Act of 1876.

We do not believe that the Aqt 112 of 1916 was intended to relieve an appellant who, although he personally signed an appeal bond, fails to furnish any surety whatever.

It is therefore ordered that the appeal be dismissed.


author: MOUTON, J.

text:
    No. -
    First Circuit
    HUGHES & CO., INC., v. BUILLARD
    (January 28, 1926, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Evidence—Par. 197.
    Correspondence between the parties to a contract is properly admissible in evidence to show that allowance for loss due to bad condition of vinegar delivered was made to the buyer by the seller.
    2. Louisiana Digest—Obligations—Par. 162.
    After one has received vinegar and made several payments to the seller without complaining of the bad condition of the barrels, he cannot claim damages from the seller on account of- this bad condition.

      Appeal from Parsih of St. Martin. Hon. James Simon, Judge.
    Action by R. M. Hughes & Co., Inc., vs. Edmond Buillard, Proprietor Evangeline Pepper Products.
    There was judgment for plaintiff and defendant appealed.
    Plaintiff asked for an increase.
    Judgment affirmed.
    Yoorhies & Labbe, of Lafayette, attorneys for plaintiff, appellee.
    Robert Martin, of St. Martinville, and J. L. Kennedy, of Lafayette, attorneys for defendant, appellant.
   MOUTON, J.

Plaintiff sold seventy barrels of vinegar to defendant for $934.50, upon which several payments were made, leaving a balance of $375.00, for which plaintiff - prays for judgment with legal interest. The lower court rendered judgment for plaintiff for $175.00.

Defendant appeals.

Plaintiff, in this court, prays for an increase in the judgment to the amount originally claimed.

Counsel for plaintiff in their brief raise several questions in reference to the admissibility of parol proof to affect written evidence as to an unaccepted offer for a compromise, questions of redhibition for the reduction of the price of sale, and as to a demand in damages by the buyer, unless the seller ■ knew of the vice of the thing sold, and has omitted to declare it. The record shows that the vinegar reached St. Martinville, the point of destination, about June 1, 1923. Jn a letter of June 5, 1923, addressed to plaintiff, defendant complained that many of the barrels in which the vinegar was. stored had their staves broken, and were in a leaky condition. In another letter of August 3, 1923, he reiterated his complaint about the broken staves on the barrels, and in which he said he would, as soon as possible return them because they could not be used for peppers. In answer to this second letter, plaintiff company on August 6, 1923, requested defendant not to ship the barrels back until it had made inquiries from the mill, which we presume had constructed the barrels. This letter from plaintiff company shows clearly that it had taken notice of defendant’s complaint in reference to the condition of the barrels. October 2, 1923, plaintiff wrote defendant as follows:

“In line with our request of September 17, would you not let us have a check to clean up the balance, and in the final adjustment take credit for $200.00, leaving only a balance of $275.00?”

This letter is not written in a spirit of compromise but carries with it an admission that plaintiff would allow defendant ,a credit on his claim of $200.00, thus leaving the balance therein.stated. Later, on December 11, 1923, plaintj^f company wrote another letter to defendant, in which it says:

“We were unavoidably delayed in acknowledging receipt of your letter of the 1st inst, enclosing check for $100.00.
“We are sorry we cannot pass to your credit the item of $175.00 on your statement. The shipment was made in good order and you accepted it from the transportation company without exception, and our allowance of $200.00 for loss after you had the goods in your possession from May to August without complaint is as liberal as we can make.
“We must therefore ask that you let us have a cheek promptly to cover this balance of $175.00 now long overdue.”

In the letter of October 2 plaintiff, after stating that credit of $200.00 would be applied on final settlement, fixed the balance of the debt at $275.00. In the later letter of December 11, plaintiff acknowledges a receipt by check from defendant of $100.00 which naturally had reduced the amount from $275.00 to $175.00, to which it therein refers, as being long, overdue. In the letter of December 11, plaintiff distinctly states that it had recognized an allowance to defendant of $200.00 for loss, after he had the goods from May to August. Such a letter as this, and the preceding one of October 2, cannot possibly be construed as an offer for a compromise. Viewed in the light of the correspondence between plaintiff and defendant, these letters unquestionably show that the reduction the plaintiff was making on his claim was based on the complaint entered by defendant in reference to the condition of the barrels. The liability of the defendant was thereby fixed at $175.00, and makes it unnecessary for us to pass on the various questions of law discussed in the brief of counsel for plaintiff hereinabove referred to.

Defendant in his answer claims damages in the sum of $375.00 on account of the bad condition of the barrels of which he complains. The proof shows that after receiving the vinegar he made several payments to plaintiff company. He evidently knew of the condition of the barrels prior to the date of these payments. His belated complaint does not support the claim he makes. The reduction made by plaintiff was amply sufficient. The judgment is in accordance with this reduction, and is correct.


text:
    No. -
    First Circuit
    SUTHON v. TERREBONNE TRAPPERS’ ASSOCIATION, ET AL.
    (January 28, 1926, Opinion and Decree)
    (March 2, 1926, Rehearing Refused)

      {Syllabus by the Editor.)

    1. Louisiana Digest—Attorneys—Par. 22, 23.
    Attorney’s fees cannot be 'allowed where the attorney was employed by another attorney who did not have this authority of his clients.
    Appeal from Terrebonne Parish. Hon. Robert B. Butler, Judge.
    Action by Walter J. Suthon against Terrebonne Trappers’ Association, et al., to collect an attorney’s fee.
    There was judgment for defendants and plaintiff appealed.
    Judgment affirmed.
    W. J. Suthon, of New Orleans, attorney for plaintiff, appellant.
    N. P. Montet, of Thibodaux, and Harris Gagne, of Houma, attorneys for defendant, appellee.
   MOUTON, J.

Plaintiff sues defendant for attorney’s fees, alleging it to be a voluntary association, amounting in law to a commercial partnership. His claim is for $1250.00 and, in the alternative, for $750.00, with legal interest.

He appeals from a judgment rejecting his demand.

The proof shows that a number of trappers banded themselves to employ a lawyer to know if they had a right to trap fur-bearing animals on the wild lands in Terrebonne parish, whether leased by them or not. They agreed to employ Mr. Gagne, a practitioner at the Houma bar, as their attorney. Each trapper, under the agreement, was taxed at the rate of $6.00 per year to pay Mr. Gagne, their lawyer. These trappers had no secretary, treasurer, manager or other officer. The sole purpose for which these trappers had associated themselves was to raise funds to pay Mr. Gagne for his professional services. The means adopted to raise the money to pay his fee was by taxing the trappers individually, as before stated. It is true that these trappers had opened an account with the People’s Bank and Trust Company in the name of the Terrebonne Trappers’ Association, but in speaking of the money deposited in the bank one of the members of the association said:

“What money was banked as collected, as Mr. Gagne called for the money I would give it to him.”

The record shows that neither these trappers, nor the so-called association, ever leased any lands for the purpose of buying and selling or shipping any furs. They were not in any sense engaged in the fur business as brokers or merchants, individually, or in the name of any organization or association. Such an organization was certainly not a commercial or ordinary partnership. C. C. 2825, 2826. As explained by two of the members of the association, “it was to hire a lawyer” and “to see if we had a right to trap without a lease or not”. Plaintiff testified that Mr. Gagne gave him a check for $250.00 when he engaged his services for the Terrebonne Trappers’ Association and drew a check on Mr. Wilfred King, whom Mr. Gagne represented as being in charge of the association’s funds. He says he deposited this check with his bank as another check, and that it never was charged back to his account. No doubt, this check was paid, but there is no evidence that King paid it, or that King ever knew anything about its payment, or that it was drawn on him. There is also no evidence that these trappers were ever organized as an association as hereinabove stated, or that any of the trappers individually or collectively ever had any knowledge that such a check was drawn by Mr. Gagne, that it was ever paid, or that plaintiff was ever employed by Mr. Gagne to assist him as an attorney. The proof shows that these trappers dealt exclusively with Mr. Gagne when they employed him as their attorney, and it nowhere appears that they gave him any authority to engage another lawyer or lawyers to assist him in the performance of his duties. It was Mr. Gagne who employed plaintiff to represent some of these trapjpers in a case which was pending in the United States Court, but without the knowledge or consent of the defendant, either individually or as an association. In the case of Voorhies vs. Harrisson, 22 La. Ann. 85, the court said:

“When the evidence shows that the attorneys employed in the case have engaged the services of other attorneys as associate counsel without the knowledge or consent of the client, an action will not lie against the client to compel the payment of fees of such associate counsel.”

This is the ease here; and it does not matter how valuable or beneficial the services of the attorney may have been to the party against whom he brings his claim. Roselius vs. Widow Delachaise, 5 La. Ann. 481; Wailes and Mathews vs. Succession of Brown, 27 La. Ann. 411; Cooley vs. Cecile, 8 La. Ann. 51; Forman vs. Sewerage and Water Board, 119 La. 49, 43 South. 908.

No doubt, plaintiff acted in perfect good faith, and that the services rendered by him are fully worth the amount he olaims, but we find that Mr. Gagne had no authority to employ him for the defendant. His services’ were valuable and meritorious, and we must conclude by saying what the court said in Hayward vs. Campbell, 119 La. 56, 43 South. 910:

“It is with regret that the court finds itself compelled to decide against h”- ”


text:
    No. -
    First Circuit
    LEJEUNE, ET AL., v. LEJEUNE, ET AL.
    (January 28, 1926, Opinion and Decree)

      (Syllabus by the Editor)

    1. Louisiana Digest—Fraudulent Conveyances—Par. 125.
    A sale of land will be declared a simulation where, although a cash consideration was stated in the deed, the circumstances surrounding the transaction and the evidence preponderates to show that there actually was no consideration.
    Appeal from the Parish of Acadia. Hon. W. W. Bailey,, Judge.
    Action of Ellis LeJeune, administrator, et al., against Ernest LeJeune, et al., to have two sales of land declared simulations.
    Judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Philip S. Pugh, of Crowley, attorney for plaintiff, appellee.
    A. L. Fontenot and C. B. DeBellevue, of Crowley, attorneys for defendant, appellant.
   LECHE, J.

Plaintiffs and defendants are the forced heirs of the late Mrs. Elodie Matt LeJeune, and the present suit is to have declared null and void, as being a fraudulent simulation, two sales made by the deceased to her two sons who are defendants. Mrs. LeJeune died May 19, 1924, and the sales of two small tracts of land, one to each of her sons, Ernest and Aides LeJeune, had been passed on the 30th of January, 1924. The considerations recited in the acts are respectively $340.00 and $500.00 cash. The vendor and the two vendees lived near Church Point in the Parish of Acadia, and they all went together to Crowley in the same parish, where the acts of sale were drawn up by a notary public and signed in his presence. There was no' money or other equivalent consideration handed by the vendees to the vendor in the presence of the notary and attesting witnesses, at the time of the passage of the acts.

Both of the defendants were called as witnesses and cross-examined in conformity to the statute by the attorneys of plaintiffs, and their testimony is substantially the same. They both testify that on the morning of January 30, 1924, they each paid their mother $300.00 in five, ten and twenty-dollar bills, or altogether a total of $600.00, before going to the notary’s office in Crowley, in the presence of three witnesses whom they had summoned for the purpose of witnessing the payments. That they then entered a waiting automobile with their mother and proceeded to Crowley, a distance of about twenty miles. Ernest claims that he had previously advanced his mother $40.00 and Aides claims that he also had previously advanced her $200.00. The three witnesses, Julien Cormier, son-in-law of Aides LeJeune; Felix Comeaux, nephew of Mrs. Aides LeJeune, and Angolus LeJeune, brother-in-law of Ernest LeJeune and cousin of both defendants, • all swear that the money was handed, each bill separately in denominations of five, ten and twenty dollars, by each of the defendants to their mother, the two payments aggregating $600.00.

Mrs. Elodie LeJeune lived in a small building containing only two rooms, one used as a kitchen and the other as a bedroom, situated on land said to belong to her son, Ernest. This modest little abode was one or two hundred yards from the home of Ernest, and with Mrs. LeJeune was living her widowed sister, Mrs. Polite Doucet. These two old ladies, Mrs. LeJeune 73 years of age and Mrs. Doucet 70, thus lived in a simple and primitive manner. Riches and luxury were unknown to them. They had a few chickens, and with the milk furnished to them by Ernest and other small material contributions from the two defendants, they managed to eke out a living. Their only source of revenue was pension which Mrs. LeJeune, as widow of a Confederate veteran, received quarterly from the State of Louisiana. It was under these conditions of living that Mrs. LeJeune is said to have received $600.00 in United States currency on January 30, 1924. The defendants say they do not know what their mother did with this money, whether she kept it on her person or whether she put it away in her armoir. Ernest, who lived within a stone’s throw of his mother, frequently visited her, is said to have been kind to her, and yet he does not pretend to know what became of the $600.00. Mrs. LeJeune was ill for about two weeks and died on the 19th of May, a little over three months after she had received this sum of money. None of the other children knew anything about the $600.00 and Ernest and Aides said nothing to them about it. They made no inquiries and did not search for it, except that Ernest says that, after his mother’s death, he looked in her armoir to get some change to buy candles and he found no money.

Mrs. Doucet testified that on the morning her sister left to go to Crowley, she was in the' house with her; she saw no money paid by defendants; that she rode in the automobile part of the way to her son’s home and got out. This, of course, is denied by the defendants and their three witnesses. Mrs. Doucet says the only money she saw about that time was $15.00, left out of the pension money, which her sister had in her purse, and that also remains unaccounted for. Edouard Daigle, who is president and cashier of the Farmers Bank and Trust Company at Church Point, had been consulted by these defendants in regard to the sale of January 30, 1924, and, though he was a notary public and apparently had earned their friendship, they nevertheless went to Crowley to consummate the transaction. He had advised them to give their mother a series of notes in order that she might have something to assist her in living, but his advice was not followed. Just previous to the filing of this suit at the request of plaintiffs’ attorney, the defendants were interviewed by Daigle and told of the intention of their coheirs to demand a cancellation of these sales. Defendants’ only reply was that they had paid their mother and would not give up the property. They avoided details as to the amount, manner and time of payment. They did not tell Daigle at that time nor at previous interview that they had already advanced part of the purchase price to their mother. The defendants are small farmers and, though Daigle would not say they were “impecunious”, it is apparent from all the testimony that neither one of them is endowed with wealth.

It is simply incredible, considering the close and intimate relations between the defendants, especially Ernest, and their mother, that they should have paid her $600.00 in cash on January 30, 1924; that they should not have known what their mother did with this money; that they should not have discussed it with,' or said something to the other children or to anyone else about it; that they should not have inquired what became of this money when their mother was on her death bed about three months later, without means even to buy candles for her bier, and that they should have maintained a Sphinxlike silence under these circumstances until the present suit was filed.

The trial judge thought the sales were simulations and so do we, and the judgment appealed from is therefore affirmed.


author: ODOM, J.

text:
    No. 2386
    Second Circuit
    G. W. CLARK v. TREMONT LUMBER COMPANY
    (November 4, 1925, Opinion and Decree)
    (March 11, 1926, Rehearing Refused)

      {Syllabus by the Editor)

    1. Louisiana Digest—Appeal—Par. 625; Master and Servant—Par. 160 (I).
    A finding of the trial court in the Workmen’s Compensation Act as to the amount of disability, being clearly correct, is affirmed.
    2. Louisiana Digest—Master and Servant —Par. 159.
    Section 8 (a) of Act 20 of 1914, as amended by Act 43 of 1922, provides for the payment of compensation during partial disability not exceeding three hundred weeks.
    Appeal from Fifth Judicial District Court of Louisiana, Parish of Winn. Hon. F. E. Jones, Judge.
    This case was originally tried in the District Court in May, 1924.
    There was judgment rejecting plaintiff’s demand and dismissing his suit, from which judgment he appealed. This court remanded the case for another trial. It was again tried in the District Court in April, 1925, when additional testimony was adduced by both sides. The last trial resulted in a judgment for the plaintiff.
    From this judgment defendant has appealed.
    Judgment amended and affirmed.
    Julius T. Long, of Shreveport, attorney for plaintiff, appellee.
    Theus, Grisham & Davis, of Monroe, attorneys for defendant, appellant.
   ODOM, J.

This case was originally tried in the District Court in May, 1924. There was judgment rejecting plaintiff’s demand and dismissing his suit, from which judgment he appealed. This court remanded the case for another trial. It was again tried in the District Court in April, 1925, when additional testimony was adduced by both sides. The last trial resulted in a judgment for the plaintiff. From this judgment defendant has appealed.

Our learned brother of the District Court submitted a written opinion which we find in the record as follows:

“This case is brought under the Employers’ Liability Act. The plaintiff seeks compensation from the defendant company on alleging that he sustained certain injuries while in the employ of the defendant company. This case was tried in the early part of 1924 in the Fifth District Court by Judge Reynolds. The suit was dismissed at plaintiff’s cost. Plaintiff appealed and the Court of Appeal remanded the case for a new trial. The plaintiff was in the employ of the defendant company cutting logs in its forest for so- much per thousand feet, and had been in the employ of the said company for some time, when on July' 2, 1923, he was injured by a dead tree falling and striking him. He and his partner, Frank Gunn, were cutting an oak tree and when it fell the dead oak tree standing behind the plaintiff fell and hit him. The tree hit the plaintiff on the back of the head, left shoulder and down his back, knocking him to the ground in an unconscious condition. The tree was of such magnitude that the partner, Frank Gunn, was unable to remove same and had to call some other laborers who were working nearby, and after some ten minutes the tree was removed from off the body of the plaintiff. The tree was about 30 feet long and between 12 and 15 inches in diameter at the place it hit the plaintiff. The plaintiff was carried home and remained in his bed for two or three weeks and was paid compensation in the sum of $33.50 by the defendant. The plaintiff then went back to work and worked a few days the last of July and a few days in August and September. He complained with his back and head continually’ and, according to the payroll, his ability to saw logs diminished instead of increasing from the last of July to the first of October.
There has been an array oí doctors who have testified on each side in this ease and the majority of them agree that the plaintiff is carrying a great load and is suffering and is unable to' do manual labor that a man of his age should do. Doctors C. E. Hammer, S. C. Barrow, E. L. Sander-son, A. P. Crain, G. H. Cassity, M. L. Adair and O. C. Rigby all testified for the plaintiff and in their opinion plaintiff is suffering from the injury caused by the lick received from the falling tree. Doctors J. E. Walsworth, J. V. Adams, S. M. Brian, J. W. Scott, S. C. Fittz, Thomas Reagan, L. L. Cazenavette,. Henry Daspit, Gray and Bennett testified for the defendant, and in the opinion of the majority of these doctors the plaintiff is suffering from some disability, and all agree that the lick that he received from the tree on the second day of July, 1923, is not the cause of the present disability of the plaintiff and has no connection with same. Dr. Barrow made an X-ray of the plaintiff’s head and in reading the X-ray he and many of the other doctors for the plaintiff say the skull is pressed in just above the knot that is usually found on the back of the 'head, and that same was caused by some force, and that the skull is pressing upon the brain and causes the disability that the plaintiff is now suffering from. The doctors for the defendant in reading this X-ray say that this indenture on the skull of the plaintiff is a natural occurrence that is found in many persons and that it is natural, and that it was not caused by the blow, and a blow on the back of the head sufficient to cause such an indenture would frequently produce instant death. They all agree that the plaintiff had the transverse process of the fourth lumbar vertebra fractured, which produced considerable pain and suffering, and some of the doctors say this is entirely knitted together pid that the plaintiff suffers no disability from this cause; other doctors disagree. The doctors for the defendant contend that the plaintiff is suffering from syphilis of the central nervous system. Some of the doctors of the plaintiff and defendant made a blood test of the plaintiff and also extracted spinal fluid and made that test. Each of these tests showed negative, which shows that the plaintiff was not suffering from syphilis, and the doctors for plaintiff deny that plaintiff is suffering from such cause, while the doctors for defendant admit that each of these tests showed negative, and from their showing the plaintiff is not suffering from syphilis; but frcjm the history of the case, the complaints of the- plaintiff, they are all of the opinion that he is suffering from syphilis of the central nervous system, and his disability is due to this cause. By careful reading of the testimony of the doctors in this case attention to the physical facts and facts that are testimony of the layman in his case for the conclusion of the same. The plaintiff, before he received the injury, worked continuously and made from two to five dollars a day, according to the grade of timber he was working in. There is no testimony that he ever made any complaints of any kind but made a regular saw hand, but immediately after going back to work after the injury he began to complain that his back and head were both hurting' him and he was not able to or at least did not perform a full day’s work. He was taken off the compensation three weeks after the injury and was forced to do something to support his wife and children. After this case was tried in 1924, and was on appeal to the Court of Appeal, he sought employment at a mill, east of Sikes, and had to quit on account of not being able to perform the work, and the manager of the mill stated that he was worth nothing as a laborer at his mill. He then sought a light job as fireman in Sikes at a planer mill and the evidence shows that he complained continuously of his head and back hurting him, and the plaintiff himself says that his back and head have given trouble ever since he was injured, and that he never suffered any before and that he is not able to do more than a half day’s work on the farm now. The doctors all agree that he is suffering from a disability but disagree as to the cause of this disability. Some attribute the disability to the injury plaintiff received on the second day of July 1923, others disassociate his disability from the lick that he received in July and contend that it is caused from syphilis of the central nervous system. The opinion of -the doctors who attribute his disability to the injury received on the second day of July, 1923, is borne out by the testimony of the laymen in the case, the facts and .circumstances surrounding the case. There is no doubt but that a dead tree between 12 and 15 inches in diameter fell and struck the plaintiff on his head, shoulders and in the small of the back and caused the fracture of the transverse process of the fourth lumbar vertebrae and was knocked unconscious, and before that date the plaintiff made no complaint and suffered no apparent disability, but since the accident he has continually complained and has suffered a disability. It is certain that when a tree of this size falls and hits a person on the head, shoulders and small of the back and fracturing a part of the spinal column, it will affect the entire system, and the court is of the opinion that the plaintiff’s disability was primarily caused by the injury that he received on the second day of July, 1923, and is entitled to compensation.
“The extent of the disability is hard to determine. The plaintiff has been hurt now over two years and the disability still exists, and the doctors for the plaintiff say that his disability will be permanent. The plaintiff has been able to do some work and says himself that he is able to do about one-half work and the court will fix the disability at 50 per cent.
“The plaintiff was cutting logs by the thousand. Some days he made as low as two dollars and other days between five and six dollars. The week before he made an average of nearly three dollars and sixty cents, and a fair estimate of his day’s labor is fixed at three dollars and sixty cents. His disability being 50 per cent, he is entitled to recover 60 per cent of one-half of three dollars and sixty cents per day. That is, the plaintiff is entitled to recover one dollar and eight cents per day during disability. The court finds that he suffered total disability for a period of three weeks and is entitled to receive 60 per cent of the wages for three weeks and that his disability thereafter is partial but permanent and that he is entitled to receive thereafter compensation of one dollar and eight cents per day not to exceed four hundred weeks in all.
“The plaintiff did not receive any medical attention except a call or two from Dr. Brian. He was confined to his bed and had to be attended for a part of three weeks, and after getting up and trying to work he was advised to go to the Charity Hospital in New Orleans, where he received attention for six weeks. The defendant under the circumstances in this case should have sent the plaintiff to some hospital to be examined and treated and theo plaintiff is entitled to recover two hundred and fifty dollars medical bill which the company should have provided. For these reasons there should be judgment for the plaintiff according to the above and foregoing.”

We think the district judge has correctly stated the case and the facts and has reached a correct conclusion, except as to. the period of time during which compensation should be paid.

The suit was brought under Act 20 of 1914, as amended by Act 43 of 1922. The act as amended provides that for injury producing partial disability to do work of a reasonable character the compensation shall be 60 per cent of the difference between wages which the injured party was earning at the time of the injury and what he is able to earn thereafter during the period of disability, not beyond 300 weeks.

The lower court found, correctly, we think, that plaintiff is partially disabled, and found that he is able to earn one-half as much as he was earning at the time of his injury, or $1.80 per day, and allowed him compensation at 60 per cent of this amount during his disability, not beyond 400 weeks. That was error.

. The compensation is due during disability not beyond 300 weeks.

The judgment appealed from should therefore be amended accordingly.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended so as to allow compensation to plaintiff during the period of his disability, not, however, beyond 300 weeks, and as thus amended it is affirmed. The costs of the 'appeal to be paid by plaintiff; all other costs to be paid by defendant.


text:
    No. 2457.
    Second Circuit.
    MOORE v. DAY BUILDERS SUPPLY COMPANY, ET AL.
    (February 8, 1926, Opinion and. Decree)
    (April 10, 1926. Rehearing Refused.)
    (Original Opinion May Be Found in 3 La. App. 575 (herein).

      (Syllabus by the Editor.)
    (ON APPLICATION FOR REHEARING.)
    1. Louisiana Digest—Trial—Par. 1.
    Where a petition was amended, and this amendment served on defendant, if no default was entered and no answer thereto filed, it was error to proceed with the trial without issue joined on this amendment.
    2. Louisiana Digest — Appeal — Par. 726, 727.
    Where issue was not joined on an amended petition an appeal will be remanded for the purpose of joining issue before trial.
    Appeal from the City Court of Alexandria Ward, Rapides Parish, Louisiana, Hon. J. B. Nachman, Judge.
    Action by Mrs. Anna C. Moore against Day Builders Supply Company.
    There was judgment for plaintiff and defendant appealed.
    Case remanded.
    T. F. Hunter, of Alexandria, attorney for plaintiff, appellee.
    Hakenyos, Scott and Provosty, of Alexandria, attorneys for defendant, appellant.
   ODOM, J.

In our opinion, remanding this case we stated:

“Under the circumstances we think the amended petition cannot be totally disregarded.”

Learned counsel for defendant Day Builders Supply Co., Inc., in an able and forceful brief, insisted that in giving effect to the amendment we have held that the amendment was in fact allowed or permitted by the Judge of the City Court, and they renew and further urge the point that in the absence of a formal order by the City Judge allowing the amendment it cannot be considered.

On further consideration we have reached the conclusion that there was in fact an allowance of the amendment by the City Judge.

When the amendment was presented to him, he marked thereon:

“Filed February 5, 1925. J. B. Nachman, City Judge.”

Immediately following this filing, and on the same day, he issued the following order, to-wit:

STATE OF LOUISIANA—PARISH OF RAPIDES.
City Court, Alexandria Ward.
No. 5606.
Mrs. Alvin N. Moore v. City of Alexandria and Day Builders Supply Company, Inc.
To Day Builders Supply Co., Inc., Alexandria, La.:
You are hereby cited to appear before me, at my office in the city of Alexandria, parish aforesaid, within ten (10) days from service of this citation on you, at 10 o’clock a. m., to answer the demand of plaintiff in a supplementary petition, a copy of which is hereto attached.
Herein fail not, or judgment will be rendered against you, with interest and costs.
Given under my hand, at my office, in the city of Alexandria, La., on this 5th day of February, 1925.
(Signed.) J. B. NACHMAN,
City Judge.

This order was placed in the hands of the marshal and on the following day it was served by him on the defendant Day Builders Supply Company, Inc., as, shown by his return thereon.

It is perfectly evident, therefore, that the City Judge allowed the amendment. It may reasonably be argued that the mere filing of tbe amendment by the City Judge does not indicate that he intended to allow it; but his order for the service thereof shows unmistakably that he did allow or permit it. If he had intended to refuse to allow the amendment he would not have ordered it served as he did.

The questions as to whether the amendment which was offered was one which should, under the law;, have been allowed, or whether it came too late, are not raised and we express no opinion as to them. The only point raised is, that the amendment was not in fact allowed by the City Judge. We think it was.

Amendments, even after issue joined, are permissible within the discretion of the court.

Code of Practice, 419.
Benoit vs. Hebert, 1 La. 612.
Spencer vs. Conrad, 9 Rob. 79.
McCubbin vs. Hastings, 27 La. Ann. 715.

And leave of the court is necessary.

Tullos vs. Lane, 45 La. Ann. 333, 12 South 508.

We ordered the case remanded for the reason that there was no issue joined on the amendment. It was served, but no default thereon was entered and no answer thereto filed.

It was error to proceed with the trial without issue joined on the amendment.

Brown vs. Brown, 21 La. Ann. 461.
Allain vs. Preston, 2 La. 392.
Knight vs. Knight, 12 La. Ann. 60.
Caldwell vs. Fales, 2 La. 130.
Hughes vs. Hanson, 8 Mar. (N. S.) 338.

If it be contended that the Judge erred in allowing the amendment, defendant can preserve its rights by excepting to the ruling of the Judge, and thereby have his ruling reviewed by this court.

Rehearing refused.


author: WESTERPIELD, J.

text:
    No. 9202.
    Orleans
    GRECO v. FRIGERIO, Appellant
    (March 15, 1926. Opinion and Decree.)
    (April 12, 1926. Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Courts—Par. 128.
    The real and not the fictitious amount involved determined the jurisdiction of this court. Consequently inflated and grossly exaggerated demands for damages will be discounted to something near the probable amount which could be awarded if liability exists.
    2. Louisiana Digest—Servitude—Par. 1, 3, 15.
    A bath room attached to a city residence and supported by beams resting in the wall of an adjoining proprietor creates continuous apparent servitude and may be proveod by parol and is subject to the prescription acquirendi causa of ten years.
    .Appeal from the Civil District Court for the Parish of Orleans, Division “A’.’, Hon. H. C. Cage, Judge.
    Action by Vincent Greco against Mrs. Mamie Prigerio.
    Judgment for plaintiff.
    Defendant appealed.
    Judgment reversed.
    II. Marinoni, Jr., of New Orleans, attorney for plaintiff, appellee.
    Charles Louque, of New Orleans, attorney for defendant, appellant.
   OPINION.

WESTERPIELD, J.

Plaintiff alleges that he is the owner of the property known as 529 Esplanade Street, which he describes in detail in his petition; that defendant is the owner of the adjoining property; that “the property of plaintiff and that of defendant adjoin and are separated by a division wall which is the exclusive property of plaintiff”; that defendant has caused to be erected “abutting and resting upon said division wall * * * certain water pipes, shed toilet and bathroom, which are held by and joined to said wall * * * all to the discomfort and loss of property rights of the petitioner and without his knowledge, permission or consent.” He asks for $3000 damages and a judgment ordering the defendant to remove all obstructions resting upon his wall.

Defendant, claiming a servitude, pleads the prescription of ten and thirty years.

There was judgment below ordering defendant to remove the bathroom and its support from plaintiff’s wall, but denying to plaintiff all damages claimed as not proven.

In this Court following the argument counsel moved for the transfer of the case to the Supreme Court upon the ground that the amount involved exceeded the maximum jurisdiction of the Court. The motion will be denied upon the authority of numerous decisions of the Supreme Court holding that the real and not the fictitious amount in controversy controls our appellate jurisdiction. The sum demanded by plaintiff is obviously inflated and a gross exaggeration of any possible damage he may have suffered. In fact, the trial court who held with plaintiff found no damages at all to have been proven.

The evidence shows that the wall belonged entirely to plaintiff and his authors in title, but, if as contended by counsel for defendant a servitude has been established by a former owner, plaintiff’s title whs qualified to that extent, for a predial servitude is a real right unaffected by change of ownership. R. C. C. 653.

Plaintiff’s ownership of the alleged servient property began January 9, 1922, and defendant bought the property to which it is alleged the servitude is due on January 11, 1921. There is in the record the testimony of one George Paoletti, who swears that about fifteen or twenty years ago he obtained the permission of Mrs. Labosse^ the then owner of plaintiff’s property, to build the bathroom. as at present constructed, and that at that time he, Paoletti, built the bathroom and supported it by inserting beams in the wall dividing the property. There is nothing to controvert this evidence, and, if admissible, it establishes an agreement between adjoining proprietors for the erection of the bathroom complained of, or at least it proves that the bathroom was as presently placed for more than ten years.

But counsel contends that a servitude can only be established by title. This is only true as to continuous non-apparent and discontinuous servitudes, whereas the one contended for here is apparent and continuous, which under express provision of our Civil Code may be proven by parol. R. C. C. 755. Kennedy vs. Succession of McCollam, 34 La. Ann. 568. We quote the following from the cited case:

“Oral testimony is admissible to establish title to a continuous and apparent servitude, where such is claimed to have been acquired by the prescription of either ten or thirty years.
“Title to it can be shown, first, in the same manner that title to real estate is established, that is, by a translative title to which, if valid, confers an immediate and indisputable right, by the prescription of thirty years, with the possession prescribed by law, without any written evidence of title, and in the absence of good faith; secondly, title can also be maintained to such servitudes in two other ways in which real estate cannot be acquired, viz., by destination de pere de famille, which is equivalent to title, and the prescription of ten years, by possession, both of which it is lawful to prove by oral testimony.
“Indeed, destination de pere de famille, as a rule, is not susceptible of written evidence, in such cases, under the sanction of law. R. C. C. 767 (763), 769 (765); Delahoussaye vs. Judice, 13 La. Ann. 588.
“In relation to the acquisition of such a service by the prescription of ten years, no written evidence is necessary. The fact of the possession with the characteristics thereof, as prescribed by law, is all that is required. Article 53, Chapter IY, Section 11 of the Code of 1808, was to the effect that, ‘perpetual and apparent servitudes could be acquired by title or by a posses-1 sion of thirty years,’ but it was modified by the compilers of the Code of 1825, so as to read that, ‘continuous and apparent servitudes may be acquired by -title, or by a possession of ten years,’ striking out the word thirty and substituting, the word ten; by making provision in. Article 3470 for the acquisition, by prescription, by the longer term. Articles 765 and 3504 of the Revised Civil Code of 1870.
“When making this change the compilers observed: ‘Nous avons pense que le terme de nix ans, qui etait celui exige par les anciennes lois de cet etat suffisant pour le prescription des servitudes continues et apparentes.’ They then referred to Partida 3, tit. 31, law 15, which is to the effect that if the service be of such a nature that it is daily used without labor on the part of the person who enjoys it, as if it be an aqueduct, * * * and a neighbor makes use of it during ten years, acting in good faith, believing that he had a right to do it, ® * * using no force, he will then acquire the service * * * by prescription. It is manifest that this mode of acquiring a right to a continuous and apparent servitude can be established by oral testimony, when there exists no written evidence to justify title.
“There is no antagonism between the two articles; that which refers to the prescription of ten years relates to those cases in which good faith is required; the other, which mentions the prescription of thirty years, concerns the cases in which no good faith is required, and therefore applies to those where the possession is even characterized by bad faith.”

Counsel further contends that the right to support the bathroom was personal to the owner who acquired it and did not pass with the property as a real servitude, citing Articles 754 et seq. of the Revised Civil Code. We do not think so. In the first place, a servitude is presumed to be for the benefit of the estate. Levet vs. Lapeyrollerie, 39 La. Ann. 214, 1 South. 672. In the next place, a bathroom, the supports to which rest in a wall some five or six feet distant from the side of the house, so as to create a sort of architectural hyphen, as the record shows Was the case here, is so obviously advantageous to the property possessing the bathroom as to permit of little discussion. The fact that bathing is a personal habit can not affect the situation.

Our conclusions are that a servitude, continuous and apparent, has been shown to be due by plaintiff’s property, which has existed for more than ten years.

Under the circumstances we will not consider the claim for damages nor the other defenses urged by defendant.

For the reasons assigned the judgment appealed from is reversed, and it is now ordered that there be judgment in defendant’s favor dismissing plaintiff’s demand.


author: WESTERFIELD, J.

text:
    No. 9260.
    Orleans
    MARINE BANK & TRUST COMPANY v. RAUSCH COMPANY, INC., APPELLANT.
    (March 15, 1926. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Costs and Fees— Par. 69, 73.
    The Civil Sheriff is entitled to retain his costs and fees out of funds1 in his hands resulting from the execution of a writ of attachment within four months of the bankruptcy of the defendant in writ before turning the fund over to the trustee in bankruptcy. And this is true whether the costs were incurred before or subsequent to adjudication so long as no demand is made for the surrender of the fund by the trustee.

      2. Louisiana Digest—Bankruptcy—Par. 16, 19.
    There is no reason why the State court should send its officers to the bankruptcy court to receive pay for their services to which they are justly entitled and on account of which services the fund to be distributed in the bankruptcy court arose.
    Appeal from the Civil District Court, Division “B”, Hon. M. M. Boatner, Judge.
    Action by Marine Ba,nk & Trust Company against John P. Rausch Company, Inc.
    There was judgment for plaintiff.
    Defendant appealed.
    Judgment amended and affirmed.
    Terriberry, Rice and Young, of New Orleans, attorneys for plaintiff, appellee.
    Monroe and Lemann, M. W. Heard, MeCloskey and Benedict and W. O. Hart, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

The Civil Sheriff of the Parish of Orleans appeals from a judgment of the Civil District Court ordering him to turn over to defendant’s trustee in bankruptcy without deduction of his costs and charges as allowed under the State law the remainder of a certain fund in his hand resulting from an attachment sued out by plaintiff prior to the bankruptcy proceedings of defendant.

On April 21, 1922, the Marine Bank & Trust Co., plaintiff herein, sued out an attachment in the Civil District Court against John P. Rausch Co., Inc., defendant herein. The Civil Sheriff in execution of the writ seized 1200 barrels of rosin. Of the rosin seized 1046 barrels had, prior to seizure, been the subject of an agreement of sale between the Rausch Co. and a corporation styled W. R.' Grace & Co. With the- consent of interested parties the 1046 barrels of rosin were delivered to Grace & Co. by the Sheriff and the agreed price ($3848.04) turned over to the Sheriff. Subsequently, on May 2, 1922, John P. Rausch Co., Inc., was adjudicated a bankrupt by the United States District Court for the Eastern District of Louisiana sitting in bankruptcy. On May' 16, 1922, Paul Villere, the trustee in bankruptcy, intervened in these proceedings and informed the court of the bankruptcy and asked and obtained an order staying all further proceedings.

On • May 12, 1923, a judgment was entered by consent of all parties ordering the Sheriff to turn over all the money and rosin in his possession to Paul Villere, trustee, “except sufficient to cover the costs and charges of the Sheriff, which are still unsettled,” and the Sheriff was ordered to retain the sum of $1348.04 (the approximate amount of his costs and charges), “subject to further orders of court or agreement of parties.” On June 7, 1923, the Court being moved thereto by the trustee in bankruptcy, ordered the Sheriff to turn over all “the funds and property now in his hands resulting from the seizure made in this cause, subject, however, to the partial judgment herein rendered on May 17, 1923,” to Paul Villere, Trustee in Bankruptcy, and, “It is further ordered that the claim of the Civil Sheriff as against the plaintiff in suit, the Marine Bank & Trust Company, for reimbursement of his expenses and fees hereby reserved to the said Civil Sheriff and with a further reservation to the said Civil Sheriff of all his rights as against the estate of the bankrupt to be urged in the bankruptcy court.”

The question is, therefore, whether the Sheriff has a right to retain out of funds resulting from the execution of a writ of attachment prior to the bankruptcy of defendant in writ the costs and charges due to and expended by him in preserving the property seized before and after adjudication. It is conceded that all costs and fees due the Sheriff before adjudication can be retained and that consequently the judgment appealed from must be amended in this respect.

In answering the remaining question in the negative, we think the trial court overemphasized what was said by our Supreme Court in Lehman Stern & Company vs. E. Martin & Company, 132 La. 231, 61 South. 212. It was there held:

“That all attachments sued out against an insolvent within the four-month period are a nullity in view of Section 67 of the U. S. Bankruptcy Act of 1898, and that a state court has no jurisdiction whatever in view of such adjudications.” and
“It goes without saying that the attachment sued out by the plaintiff was stricken with the nullity denounced by the federal statute, and the property affected b.y the attachment was discharged and released from the same. Under said section, which is the supreme law of the land, after an adjudication in bankruptcy, the State Court has no jurisdiction to hold property under an attachment for any purpose. A proceeding which becomes null and void can no longer produce any legal effect. A State court cannot retain the possession of property which the federal statute declares shall be wholly discharged and released from a levy, attachment, or judgment.”

It is one thing to say that the attachment is null when sued out within four months of bankruptcy and that the Court is divested of jurisdiction by the fact of bankruptcy, and quite another thing to hold that the officers of the court are not entitled to collect their lawful expenses which originated in the execution of orders issued by the Court when its jurisdiction could not be questioned and continued after the divestiture of jurisdiction because of the laches of the trustee in bankruptcy, and were occasioned by the preservation of the property of the bankrupt. The expenses claimed by the Sheriff as being due subsequent to adjudication were for keepers’ fees and insurance of the property and were necessary and proper for its protection and preservation until claimed by the trustee in bankruptcy. The same reasoning which would deprive the Sheriff of expenses subsequent to adjudication would also deprive him of expenses prior thereto. Because if the attachment is annulled by the fact of bankruptcy, under the bankruptcy act it is made retroactive, and if the attachment was sued out within four months of bankruptcy, as was the case here, it is null ab initio. Consequently by a parity of reasoning the Sheriff has no more right to fees- and expenses incurred before adjudication and within four months than he has for fees and expenses incurred subsequent thereto. But he is entitled to both, as we see it.

The following authorities to which we have been referred by counsel we think appropriate here, though it does not always appear what expenses and charges were under consideration and when incurred with relation to the adjudication.

In the case of Wilson vs. Parr, decided by the Supreme Court of Georgia, and reported in Yol. 8, A. B. R., p. 230, the Court held that where a receiver of a partnership was appointed by the State Court and the partnership later was adjudicated a bankrupt, the receiver, while pledged to turn over the assets of the partnership to the trustee in bankruptcy, should first deduct from them the costs and expenses incurred by him in marshaling the assets of the partnership. The Court said:

“It seems to us eminently proper for the costs and enumerated expenses of the receivership in the State Court to have been ordered paid from the fund before the same was turned over to the trustee in bankruptcy. The services of the receiver and his attorneys enure to the benefit of the creditors of the bankrupt. They were rendered under the order of the said Court and the fund' in that Court was the result of the services of the receiver and his attorney acting under orders of the Court and ought to be paid.”
“There is no reason why the said Court should have sent its officers to the bankruptcy court to receive pay for their services to which they were justly entitled, and from which the fund to be distributed in the bankruptcy court arose.”

The Supreme Court of Rhode Island has held to the same effect. Mauran vs. Carpet Lining Company, 6 A. B. R. 734, 50 Atlantic 331. After ordering the receiver to turn over the funds to the trustee in bankruptcy, the Court said:

‘‘In so doing, however, the question of proceedure arises, whether the expense incurred shall be paid out of the fund, or whether the whole fund shall be surrendered, and our receivers sent to the Federal Court to ask for his fees and expenses. We think that the former is the proper course.”

In the case of Popkin-& Company, Bankrupts, 38th American Bankruptcy Reports, page 20, the court said: “After adjudication the Sheriff must deliver the property to the receiver or trustee in bankruptcy upon the payment to him of his lawful fees and poundage.”

The Popkin case specially affirmed the case of Schmidt & Company, Bankrupts, 165th Federal Reporter, 1065, where this language was used: “We are satisfied that the language used by Congress in the sixty-seventh section of the bankruptcy act (Act July 1, 1898, c. 541, 30 Stat. 565 U. S. Comp. St. 1901, p. 3450), providing that levies under judgment within the period named ‘shall be deemed null and void,’ was not intended to deprive state officers of their statutory fees, accruing prior to bankruptcy, under proceedings in the state courts, which were in all respects regular and in accordance with the state law and practice. The order is affirmed.”

The amount due the Sheriff is- not disputed. It is fixed at $1216.98.

For the reasons assigned the judgment appealed from is amended so as to permit the Civil Sheriff to retain in his hands the sum of $1216.98 out of the funds resulting from the seizure made in this cause as fees and costs due him before surrendering the balance of said fund to Paul Villere, Trustee in Bankruptcy of the defendant, John P.* Rausch Co., Inc.


text:
    No. 10,412.
    Orleans
    THOMPSON v BERTUCCI, Appellant
    (March 29, 1926. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Appeal—Par. 729.
    Where a litigant is not vigilant in his own interest, a cause will not be remanded because a judgment was taken against him in the absence of himself and his counsel. But, if the evidence administered in confirmation of default is insufficient to support the judgment, and it seems likely that further evidence could be presented, this court will reverse the judgment appealed from and remand the case for further hearing upon that ground.
    Appeal from the Civil District Court, Hon. E. K. Skinner, Judge, Division “C”.
    Action by Anna Thompson, widow of John Dines, against William Bertucci.
    There was judgment for plaintiff.
    Defendant appealed.

      Judgment reversed and case remanded for further proceedings according to law.
    I. J. Barrios, of New Orleans, attorney for plaintiff, appellee.
    Dart and Dart and L. L. Dubourg, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

Defendant appeals from a judgment taken against him in the sum of $1900.00 in his absence and in the absence of his counsel. A motion to advance the case upon the ground that as a claim for personal injuries it was entitled to preference was made by defendant in this Court and granted. In this motion the following circumstances are related concerning the conditions under which the default judgment was obtained and the truth thereof is generously admitted by plaintiff’s counsel:

“That mover, who was absent in Bay St. Louis, Miss., only received notice from his then counsel that the above cause was fixed for trial in the Civil District Court on the night before the date on which the case was fixed for trial; that his said counsel telephoned him on the night before the trial over long distance telephone of the fixing of the case for the next day; that mover informed his said counsel at that time that it would be impossible for him to make arrangement at that late hour to leave someone in his place and come to New Orleans the next morning, and requested said counsel to have said case continued. That mover heard nothing more from his said counsel and assumed that the case had been continued, but said case had in fact been tried the next day in mover’s absence, as mover subsequently learned, as hereinafter set out; that the record in this cause shows that at said trial mover’s counsel did not appear and judgment was rendered against mover for the full amount sued for, which is $1900.00, approximately. That mover only learned that this judgment had been rendered against h.im a short time ago when he undertook to sell his interest in a piece of real estate in this city and the said judgment- appeared on the mortgage certificate ordered out by the notary as an encumbrance against said property.”

We are asked to remand the case and are referred to Succeession of Kerner, No. 8785, Orleans App., where we said:

“While absence of counsel at the original trial of a suit (except under conditions prescribed by Act 196 of 1912) furnishes no peremptory cause for continuance on behalf of counsel’s client, but is rather a matter Within the discretion of the trial judge, nevertheless, when it appears on appeal that appellant has, by no fault of his own, been deprived of a fair opportunity to have his cause properly presented and tried, the Appellate Court, in order that the ends of justice might be subserved, will set aside the judgment appealed from and will remand the case for further trial.”

We think the present case differs from the Succession of Kerner, and while we are prepared to go very far to relieve litigants from the derelictions of counsel who neglect their interests in matters of this sort, nevertheless, when, as in this case, the litigant himself seems indifferent or at least displays insufficient interest in his own affairs, we think it would be an abuse of our discretion to reopen the case on that ground. The defendant, assuming that he relied on his counsel obtaining a continuance, which would be assuming much, for only the Court, and not counsel, could give such assurance, should have made some inquiry as to the progress of the litigation, and failing to hear from his counsel, should have obtained other counsel or taken the matter in his own hands. A proper interest in his own affairs should have prompted him to act before he did, and his not being advised or not knowing the fact that judgment had been rendered against him is no excuse. Months elapsed after the judgment and a fi fa was issued without awakening defendant to activity in his own interest, and it was only when he desired to sell bis interest in property encumbered by tbe judicial mortgage resulting from tbe recordation of the judgment tbat be became active.

However, we cannot affirm tbe judgment appealed from because of insufficient evidence to sustain it.

No one testifies that defendant injured tbe plaintiff except tbe plaintiff herself, and she says she was unconscious immediately following tbe accident; consequently we are unable to see bow she could tell who struck her or what automobile ran into her.

“Q. Do you know tbe name of tbe party who owned tbe automobile tbat struck you?
“A. Bertucci.
‘‘Q. How do you know bis name is Bertucci?
“A. T know bis place of business, and he also gave bis name and address to tbe motorman and conductor of tbe car tbat I was discharged from.
“Q. Do you know who was operating tbe Bertucci car when it struck you?
“A. I didn’t notice anything, but tbe time tbat I could look around be was right on me. After be struck me I didn’t know anything.”

The witness W. J. Cummings testified:

“Q. Did you see tbe accident?
“A. Well, I was on tbe car tbat morning and beard a commotion on tbe car and looked back to see what happened and someone hollered, ‘They knocked tbat woman down,’ and I jumped down quick to get tbe automobile number, and be said --the party who bit tbe woman is gone, and a colored chauffeur said, ‘No, that’s tbe car that knocked tbat woman down.’ ”

Samuel Daupbine testified:

“Q. Do you know anything about tbe accident?
‘‘A. I was on tbe car tbat time going to work, and as soon as she put her foot out of the car I beard her boiler. I didn’t know What happened until I got off; tbat was somewhere around seven or eight o’clock, and as soon as she got off tbe car I beard someone boiler, and I didn’t know what happened until I went to tbe window and looked, and tbat was when I saw her. The automobile had gone off.”

Julia Page testified:

“Q. Did you see tbe accident?
“A. I did not; when I saw her she was lying down and tbe automobile had passed her.
‘‘Q. Did you see tbe automobile tbat was accused of bitting her?
“A. I saw two automobiles, but I don’t know which one bit her.”

When it is considered tbat tbe defense to this suit as set up in tbe answer avers tbat defendant was tbe victim of a mistake and was charged with running into tbe plaintiff because be happened to be following tbe automobile which struck her and ran off, and in stopping to render possible assistance to tbe injured plaintiff was mistaken for tbe party who caused tbe accident, it will be seen tbat this defense is not without support in tbe testimony of plaintiff’s witnesses testifying solely under examination by plaintiff’s counsel. On tbe other band, there is nothing but plaintiff’s statement tbat Bertucci ran into her to sustain the judgment, and this cannot be accepted, for she claims to have known nothing after tbe accident.

Tbe judgment must be reversed, but in view of all tbe circumstances we will remand tbe case, for it may be that plaintiff can offer other testimony which, in tbe absence of defendant and defendant’s counsel, be considered unnecessary. At any rate, we will give counsel an opportunity to present further testimony by remanding tbe case.

For tbe reasons assigned, the judgment appealed from is reversed and it is now ordered tbat this cause be remanded to tbe Civil, District Court for further proceedings, according to law, and not inconsistent with tbe views herein expressed.


author: CLAIBORNE, J.

text:
    No. 9230.
    Orleans
    McDonald v. KARP, Appellant
    (March 15, 1926. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Sequestration — Par. 18, 25.—Appeal—Par. 345.
    When a plaintiff claims the ownership of an automobile and sequesters it in the hands of the defendant, who bonds the sequestration, and judgment is rendered against the defendant and becomes final, the plaintiff may proceed at once against the surety on the bond without issuing execution against the defendant.
    2. Louisiana Digest—Obligations—Par. 154, 156. ,
    Putting in default ceases to be essential when it is impossible or useless, or when the debtor refuses to comply with his obligation.
    Appeal from Civil District Court, Division “D”, Hon. Porter Parker, Judge.
    Action by D. A. McDonald against J. Karp, the surety on a release sequestration bond.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Wm. H. Byrnes, Jr., Legier^ McEnerny and Waguespack, of New Orleans, attorneys for plaintiff, appellee.
    James B. Bosser, Jr., of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

This is a suit against the surety on a release sequestration bond.

The plaintiff in the original suit against the defendant filed August 22, 1922, alleged that on August 7 he bought an automobile from: the defendant Karp; that on August 18 said Karp took possession of said automobile illegally and drove it to a place of hiding; and he prayed for a sequestration and for judgment recognizing him as owner of said automobile. The sequestration issued and the sheriff took possession of the automobile. The defendant Karp obtained a release of the sequestration on furnishing a bond for $150 with Ray J. Martinez as surety.

After an answer filed by defendant Karp and sworn to by his attorney in the absence of Karp from the city there was judgment on April 10, 1923, in favor of plaintiff, recognizing him as the owner of the automobile and putting him in possession thereof. The attorney for the defendant was absent from the trial.

On April 25, 1923, the plaintiff, McDonold, filed a rule in which he alleged all the facts above related and further alleged that he had made diligent search to locate the said truck and the said J. Karp, all without avail; and on further suggesting to the Court that the delays within which the defendant might take a suspensive appeal have elapsed and that your mover desires now to have a personal judgment rendered against the said Ray J. Martinez, surety on the sequestration bond furnished by the defendant, and he concluded by praying that Martinez surety show cause “why a personal judgment should not be rendered against him and in favor of the said D. A. McDonald in the full and true sum of $150, together with all costs of these proceedings.”

The rule was served upon Martinez in person.

On the trial of the rule, Martinez was absent and not represented.

The plaintiff testified:

“Q. Since obtaining tbe judgment, bave you made any attempt to locate Hr. Karp or tbe truck?
‘‘A. I bave not.
“Q. Do you know where Mr. Karp is?
“A. I think be is out of town. Several parties would like to locate bim.
“Q. Your information is that he bas left town?
“A. Yes, sir.
“Q. What is your information as to where tbis truck is?
“A. I don’t know; bave no idea.
“Q. You bave made demand on Mr. Martinez, tbe surety by tbis rule, to pay you tbe amount?
‘‘A. Yes, sir.”

There was judgment for plaintiff against Martinez for $150 and Martinez bas appealed.

Tbe defendant bas argued in tbis Court that tbe rule against Martinez was premature, and that it should bave been preceded by a writ against tbe defendant Karp and a judicial demand for tbe delivery of .the automobile.

In support of his proposition be cites Welsh vs. Barrow, et al., 9 R. 535.

Tbe facts of that case are as follows:

Welsh was overseer for Shields,, owner of a sugar plantation; be sued bim for $900, with privilege on tbe crop, bis salary for tbe year 1841, and sequestered tbe crop in tbe bands of Barrow, who bad purchased tbe -plantation. Barrow bonded tbe sequestration with G-rinage as surety. There was judgment in favor of Welsh against Shields for $900, with privilege on tbe crop. See . Welsh vs. Shields, 6 Rob. 484, et al. 1

Thereafter Welsh sued Barrow and Grin-age upon their bond for tbe amount thereof. Welsh vs. Barrow, 9 Rob. 535. Tbe Court dismissed tbe suit, as in case of non-suit, on tbe ground that Barrow, tbe principal on tbe bond, bad not been put in default to deliver tbe property sequestered, and that no judgment bad been rendered against bim. But tbe case under consideration is different in tbis, that Karp, tbe principal on tbe bond, bas refused to deliver tbe automobile, has- been put in default for so doing, by tbis suit, and that judgment bas been rendered against bim condemning bim to deliver tbe automobile, which be bas failed to do.

Tbe necessity of putting in default no longer obtains when it is impossible or useless. “Lex neminem cozit ad vana.” 2 H. D. 1021, 2 L. D. 478, Garcia vs. Champonier, 8 La. 522, Hivert vs. Lacoze, 3 Rob. 358.

Tbis principle is recognized in tbe Welsh case. Tbe Court said on page 539:

“Non constat that tbe property sequestered was not in Barrow’s possession at tbe time that the execution should bave issued and that be was unable to deliver it then, so as to render tbe putting in default a useless and nugatory proceeding. If so, it was tbe duty of tbe plaintiff to show tbe fact by tbe return of tbe Sheriff on tbis execution, after an unsuccessful attempt to obtain its delivery, or to estaolisb that our requiring it would prove inefficient.” See also Noble & Kaiser vs. Warner, 21 La. Ann. 284, Downey vs. Kenner & Buckley, 42 La. Ann. 1129, 8 South. 302.

Default is also unnecessary when tbe debtor refuses to comply with the obligation. New Orleans & Nashville R. R. Co. vs. Ganalb & Co., 18 La. 510.

Article 596 of the Code of Practice provides that no suit shall be instituted against such security (on an appeal, bond) until tbe necessary steps shall bave been taken to enforce payment against tbe principal.

Yet it has been repeatedly decided that proceedings against the security may be instituted without previous steps against the principal on the bond when such steps would be impossible or useless. Wogan vs. Thompson, 10 La. Ann. 284; Bourgest vs. Adams, 11 La. Ann. 78; Trimble vs. Brichta, 11 La. Ann. 271; Alley vs. Hawthorne, 1 La. Ann. 122; LeBlanc vs. Succession of Massieu, 27 La. Ann. 325; Simonds vs. Heinn, 22 La. Ann. 297. That principle has been applied in sequestration cases. Downey vs. Kenner & Buckley, 42 La. Ann. 1129, 8 South. 302. When the principal is not present in the parish nor represented, the surety is liable. Pinard vs. George, 30 La. Ann. 386.

The plaintiff testified that from information received the defendant Karp was “out of town” and that he had made demand upon the surety. He could not be required to do more. On the trial of the rule against the surety, Martinez, he made no appearance. Upon the confirmation of a default less strictness of proof is required.

We are therefore of opinion that the judgment is correct and it is therefore affirmed.


text:
    No. 10,194-10,216.
    Orleans
    BORIE, ET AL., v. KING, Appellant
    (January 4, 1926. Opinion and Decree.)
    (February 1, 1926. Rehearing Refused.)
    (March 29, 1926. Writ of Certiorari and Review Denied by the Supreme Court.)

      (Syllabus by the Court.)

    On MOTION TO DISMISS.
    1. Louisiana Digest — Appeal — Par. 119. Prohibition—Par. 17.
    No appeal will lie from a judgment dismissing a suspensive appeal upon the ground that the surety is not such as the law requires. The proper remedy is by prohibition.
    Appeals from the Civil District Court, Division “A”, Hon. Hugh C. Cage, Judge.
    Action by Bernard S. Borie, et al., against Fred C. King.
    Judgment for plaintiff.
    Defendant’s appeal dismissed.
    Prowell and McBride, of New Orleans, attorneys for plaintiff, appellee.
    P. L. Fourchy, of New Orleans, attorney for defendant, appellant.
   WESTERFIELD, J.

ON MOTION TO DISMISS.

Plaintiffs obtained a judgment as prayed for against defendant in the Civil District Court. Defendant was granted a suspensive appeal. Plaintiff, by rule, questioned the solvency of the surety on the appeal bond and the court rendered judgment, making the rule absolute, and dismissed the appeal. From this judgment dismissing the appeal a suspensive appeal was granted to this Court. Plaintiffs move to dismiss upon the ground that no appeal can be taken from a judgment dismissing an appeal, the proper remedy being by writ of prohibition.

The appeal must be dismissed.

"The proper remedy for correcting the illegal rulings of the District Judge in dismissing the appeal or declaring it devolutive only, after a suspensive appeal has been granted or a bond has been filed, is by writ of prohibition.” State vs. Judge, 21 La. Ann. 113.
“The Supreme Court will examine into the sufficiency of the surety on appeal bond on application for a writ of prohibítion, and if the surety is found to be good, the prohibition will issue, restraining the Üudge from executing the judgment until the appeal is decided.” State vs. Judge, 21 La. Ann. 73b.
“The judgment of the court below setting aside a suspensive appeal on the ground that the surety on the bond is not good and solvent will be reviewed by thfe Supreme Court on an application for a writ of prohibition.” State vs. Judge, 23 La. Ann. 279.

See also 36 La. Ann. 711; State ex rel. Menge vs. Rightor.

In Reynolds vs. Egan, 122 La. 55, 47 South. 371, on rehearing, the Court said:

“The argument in support of this proposition seems to be that the judgment dismissing the appeal is a final judgment, or, if interlocutory, that it works, or may work, irreparable injury, and that a suspensive appeal will lie from any judgment of that character. This argument, predicated upon one general rule relating to appeals, ignores other rules, general and special, establishing the conditions upon which all appeals are allowed, and upon which the execution of judgments may be stayed by appeals, and would lead to the conclusion that the party cast, in any given case, may appeal from a judgment dismissing an appeal previously allowed conditionally, and not perfected, and by a succession of appeals from such judgments of dismissal obtain the same delay as though the original appeal had been perfected and sustained. More than this: The logical result would be that the execution of any judgment, whether in a case in which,, under the law, the judgment is to be provisionally executed, notwithstanding the appeal, in which the appeal was not applied for within the legal delay, in which no bond has been filed, or in which the bond was not filed in time, or was not such bond as the law requires, could be suspended by appeal upon appellant’s allegation of the existence, or of his compliance with the required conditions, or, in fact, upon his mere allegation of grievance, and upon a bond differently conditioned and given at a different time than as 'required by law.”

For the reasons assigned, the appeal herein taken is dismissed., at the cost of appellant.


text:
    No. 2460.
    Second Circuit.
    MONCRIEF v. OBER.
    (April 10, 1926. Opinion and Decree.)

      (Syllabus by the Editor.)
    1. Louisiana Digest—Automobiles—Par. 4, 7.
    A small cable illegally stretched above the surface of a public road is such an obstruction that the failure of one driving an automobile to notice it would not indicate careless or reckless driving.
    2. Louisiana Digest—Automobiles—Par. 8, Appeal—Par. 625.
    The finding of the trial court as to the amount of damages sustained in an automobile accident, being eminently correct is affirmed.
    (Civil Code, Art. 2315. Editor’s Note.)
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo, Hon. E. P. Mills, Judge.
    Action by Joseph Miller Moncrief against Jake Ober for damages arising from an automobile accident.
    There was judgment for plaintiff and defendant appealed. Judgment affirmed.
    Long and Crow, of Shreveport, attorneys for plaintiff, appellee.
    Harry V. Booth, of Shreveport, attorney for defendant, appellant.
   WEBB, J.

In this action J. M. Moncrief, husband of Mrs. Dorothy Moncrief and father of their minor child, Charles Moncrief, appears individually and as the representative of minor child, and is joined by his wife, who appears in her own behalf, each seeking to recover damages alleged to have been sustained by them through the negligence of defendant, Jake O'ber, who is alleged to have obstructed the highway by placing a cable across it which came in contact with an automobile belonging to the plaintiff, J. M. Moncrief, while being driven on the highway by Mrs. Moncrief.

It is alleged that the automobile was injured and that there would be expenses for medical attention to Mrs. Moncrief and the child; that the child was seriously injured on the hand and body, and that Mrs. Moncrief sustained injuries to her body causing her to suffer a nervous breakdown.

The prayer fixes the damages on behalf of J. M. Moncrief at one hundred and fifty dollars; for the child, five hundred dollars; and for Mrs. Moncrief, at thirteen hundred dollars.

The answer of the defendant denied any negligence or that the injuries had been sustained, and alleged that the accident was attributable to the fault of Mrs. Moncrief in driving the car off of the paved or asphaltic surface of the roadway, and in her failure to maintain a proper lookout.

The judgment of the District Court was in favor of J. M. Moncrief individually for twenty-five dollars and of Mrs. Moncrief for two hundred dollars. Defendant appealed.

The plaintiff answered the appeal, asking that the judgment be amended so as to increase the amount awarded to Mrs. Moncrief to the sum originally claimed, and otherwise affirmed.

OPINION.

The cause presents the following questions :

1. Was the defendant negligent, and, if so, was his negligence the proximate cause of the accident, or merely a contributing cause?

2. What damages, if any, were sustained by the parties?

(1.) The evidence establishes that defendant had stretched across and over the highway a cable, which did obstruct the free passage of vehicles along the highway (when such vehicles should happen to be partially off of the paved or asphaltic surface and on the graveled part of the way), and it not appearing that defendant had obtained permission to stretch the cable across and over the highway, we are of the opinion that his act in placing the cable across and over the highway was negligence. (Revised Statutes, Sec. 3379.)

The evidence shows that the automobile, at the time it came in contact with the cable, was partially off of the paved or asphaltic surface of the roadway, that is, that the left wheels were on the gravel just off of the asphalt, and it further appears that had Mrs. Moncrief known of the obstruction, and been looking for it, she could have seen it for some distance before reaching the point on the road where the cable was stretched over the way, and under these circumstances it is claimed she was negligent, and that the negligence contributed to the accident.

The evidence, however, does not show that the car would have cleared the cable had it been entirely on the asphaltic surface, and, besides, the portion of the roadway immediately next to the asphalt pavement is no less a part of the roadway than the center roadway, and the fact of the ear not being wholly upon the asphaltic part of the roadway does not in itself show negligence on the part of Mrs. Moncrief.

As to the failure of Mrs. Moncrief to have seen the cable, the drivers of automobiles on the highways are charged with the observance of ordinary care as to objects which may be lawfully upon the way, and will be held to have seen such objects (with the resulting consequences) where the evidence shows their failure to have noted the situation is attributable to lack of ordinary care in observing the way; but as to obstructions unlawfully upon the roadway, their failure to have noted the situation will not be attributed to want of ordinary care in observing the way, unless the evidence shows the obstruction to have been such that the failure to have noted the situation shows the driver to have been carelessly or recklessly driving upon the highway. (McWhorter vs. Draughn, 98 Sou.Rep. 597; R. C. L., Highways, vol. 13, p. 396.)

The evidence shows that the cable was small; that it was ‘stretched above the surface of the roadway; and we do not think- that it is shown to have been such an obstruction as that the failure of one to have noted it would indicate careless or reckless driving.

(2.) Three persons claimed to have been injured as the result of the collision. J. M. Moncrief claimed one hundred and fifty dollars for damages to the automobile, loss of the use of the car while it was being repaired and for physician’s fees which would be necessarily expended for his wife and child as the result of the injuries alleged to have been sustained by them.

The evidence shows that the windshield and top of the automobile were practically destroyed; that defendant had the car repaired and gave plaintiff seven and 50-100 dollars with which to purchase new curtains; but the plaintiff, J. M. Moncrief, says that the repairs were not properly made, and he and his wife stated it would require about fifty dollars to place the car in as good condition as it was before the accident; while the mechanics who repaired the car stated the windshield was replaced and the top repaired and that the work was first class. It appears, however, that the top as repaired has no buttons by which the curtains could be attached and broken parts had not been replaced.

The plaintiff also stated that he had paid one dollar for a prescription for his wife, and something is said about the failure of plaintiff to have earned five dollars which he would have earned had the car not been laid up for repairs.

While the evidence of the damages sustained by the plaintiff, J. M. Moncrief, is vague, we are of the opinion it establishes that the car, after being repaired, was not in as good condition as it was before the accident, and in view of this fact and the statements as to the amount which would be required to place the car in condition, we find the judgment in favor of plaintiff for twenty-five dollars not excessive.

Relative to the injuries of the child, and damages claimed of five hundred dollars, the evidence shows that the child’s hand was scratched or slightly cut, and the injury appears to have been trivial; besides, there was no appeal taken from the judgment which did not allow any damages for the benefit of the child.

The evidence in support of the claim of Mrs. Moncrief shows that her knee was bruised and that she suffered from an unusual nervous condition for about a month after the accident; and while the physician called to examine plaintiff accounted for her conditions following the accident on the theory that she was predisposed to be nervous, there is no contradiction of the testimony as to her condition' following the accident.

The plaintiff has asked that the amount allowed be increased, but the evidence does not, in our opinion, show that plaintiff received a permanent injury as the result of the accident or that she had not recovered from the effect of the accident at the time of the trial, and the amount allowed Mrs. Moncrief is not unreasonably small under the evidence.

The judgment is affirmed.