author: Morgan, J. Spencer, J.

text:
    No. 5435.
    City of New Orleans vs. John A. Morris.
    A claim o£ ownership sot up by a third person to certain property sought to be attached in a suit, can not be adjudicated on a rule tried in vacation.
    APPEAL from tho Superior District Court, parish of Orleans. Hawkins, J.

      George 8. Lacey, for plaintiff and appellee.

      O. T. Budclecke, for Germania National Bank.

      B. B. Forman, defendant in rule.
   The opinion of tho court was delivered by

Morgan, J.

Two writs of fieri facias, which were the basis of tho garnishment process by which tho Germania National Bank was proceeded against, were offered in evidence on the trial in tho court below. Those writs are not in tho record. A writ of certiorari issued to cause the omission to be rectified. The writ failed.

Under these circumstances, we prefer, on our motion, to issue another writ ordering their production.

It is therefore ordered that a writ of certiorari issue to the clerk of the Superior District Court directing him to attach to the record in this case the two writs of fieri facias mentioned in the writ heretofore issued at tho instance of the appellants.

Spencer, J.

Tho city of Now Orleans having judgments against defendant for taxes, issued writs of fieri facias, and propounded interrogatorios to the bank as garnishee. After propounding the usual interrogatories touching indebtedness to the defendant, the following “fourth interrogatory ” is propounded:

“ Are you not the holder of four promissory notes of two hundred and fifty dollars each, dated fifteenth of November, 1873, payable respectively on the first of July, August, September, and October, 1874, to bearer, at bank, in New Orleans, signed John P. Becker, and indorsed, ‘ for collection, B. R. Forman, agent ?’

All the other interrogatories having been answered no, this one was answered: “ The bank has three such notes, which were deposited by B. B. Forman, agent; that since the sendee of the interrogatories, the note due first of July has been paid and proceeds placed to the credit-of B. R. Forman, agent, and this respondent has no knowledge whatever whether or not John A. Monis, the defendant in execution, has any right, title, and interest, directly or indirectly, in the said notes; and respondent knows no other owner of said notes than said B. R. Forman, agent.”

When this answer was filed, the city of Now Orleans, showing that the hank made garnishee admitted having three of the notes described in the fourth interrogatory, and without alleging that J. A. Morris, the defendant in execution, was the owner of these notes, or had any interest in them, obtained an order on the bank to show cause why it should not be condemned to deliver said notes, or their proceeds, into the hands of tlio sheriff.

The bank, answering this rulo to show cause, re-affirmed in substance its answers to the interrogatories, and set up further that one Mrs. Homen, and B. R. Forman, agent, had sequestered the notes on a claim of ownership, and asked to have Forman, the depositor of said notes, made party, and thereupon the court so ordered. Forman excepted to being made-party by motion, averring that his title to the notes could not be thus tried and questioned, and that this case could not be tried, heard, and determined at chambers and in vacation.

The court, notwithstanding, tried the rule on the eighteenth of July. 1874, made it absolute, ordering the garnishee to deposit the notes or their proceeds in the sheriffs hands, and dismissing Forman’s exceptions. From that judgment this appeal is taken.

The plaintiff, on trial, offered the two writs of fieri facias against Morris forming the basis of the proceeding in garnishment. The clerk certifies that these writs are lost or mislaid, and that after diligent search they can not be found, and therefore they are not copied in the record-. This court, our predecessors, ordered a writ of certiorari to issue, which failed. It, of its own motion, ordered a second writ, with same result. The case is now submitted to us. Plaintiff insists that the appeal should 'be dismissed, but we think this would be an injustice. We think that the judgment is, on the face of the record, a nullity. The court could not try and determine such a case as this in vacation. See 23 An. 483; Dixon vs. Judge, Opinion Book 43, page 90.

It is therefore ordered and decreed that the judgment appealed from be annulled and avoided, and this cause remanded to be proceeded with according to law, plaintiff and appellee paying costs of appeal.


source: Caselaw Access Project

author: Wyly, J. Marr, J.

license: Public Domain

text:
    No. 6349.
    State ex rel. the Attorney General and Thomas Carey vs. John Barrow.
    Tho, Governor lias discretionary p.ower to .remove a tax collector, and appoint liis successor. In the absence of the Governor from the State the Lieutenant Governor has a similar power.
    J^PPEAL from the Superior District Court, parish of Orleans. Lynch,

      A. P. Field, Attorney General, and Cotton £ Levy, for relator and appellant.

      Charle* S. Bice, for defendant.
   The opinion of the court was delivered by

Wyly, J.

In this proceeding under the intrusion act for the office of tax collector of the Third District of Now Orleans there was judgment for defendant, and plaintiffs appeal.

Thomas P. Carey was appointed to said office on the eighteenth of January, 1876. On the tenth of May defendant was appointed (vice Carey, removed,) by the Lieutenant Governor, acting as Governor in the •absence of the Governor from the State.

i The question as to the authority of the Governor to remove a tax collector and appoint his successor is no longer an open one. 25 An. 119; 25 An. 396; 26 An. 537.

In the absence of the Governor from the State in this instance the Lieutenant Governor could discharge the duties of the office of Governor. Constitution, article 53.

It is unnecessary to examine the hills of exceptions to the exclusion of evidence at the trial, because if all the testimony, the rejection of which is complained of, were adduced it would not alter the result.

Judgment affirmed.

On Rehearing.

The opinion of the court was delivered by

Marr, J.

1 n January, 1876, Thomas Carey was appointed by the Governor, by and with tho advice and consent of tho Senate, tax collector for the parish oí Orleans, Third District. In May of the same year John Barrow was appointed by tho Lieutenant Governor to the samo office,, vice Thomas Carey, removed. Tho object of this suit is to determine the right to this office.

The relator insists on these propositions:

First — That tho power to remove tax collectors, which is vested in the Governor, can and should be subject to judicial control; that the officer can be removed only for cause, and it is competent for tho courts to inquire whether or not there was cause for removal.

Second — That in this case the Lieutenant Governor had no right to remove Carey and appoint Barrow.

First — The office of tax collector is created by statute, and the term is two years; but for “refusing or failing to do his duty,” as prescribed" by the act, the officer “shall be liable to dismissal from office by the Governor.” Rev. Stat., sections 1592 and 1593.

This precise question was before this court in Doherty’s case, 25 An. 119, and wo think it was correctly decided that this statute invests the Governor with discretionary power to determine when the contingency has occurred which authorizes him to dismiss tho tax collector, and the appointment of another to tho same office, vice tho lato incumbent removed, is the proof of the existence of sufficient cause for removal.

It is urged that this power is subject to abuse; and that is-true of all discretionary power. The executive, upon his responsibility, decides in, the last resort that cause of removal exists, and under the sanction of his official duty and obligation ho exercises the power which tho Legislature has chosen to confer upon him, and in tho exorcise of -which he can not be controlled by the judiciary.

The case is different with offices created by the constitution,, the incumbents of which can bo removed only in the mode prescribed by the con-1 stitution.

Second — It is in proof that the Governor was absent at tho city _ of New York, where he remained some four or five weeks. • By tho constitution, article fifty-three, in case of the absence of the Governor from the State “ the powers and duties of the- office shall devolve upon the-Lieutenant Governor until tho absent Governor shall return.” The case contemplated by the constitution liad occurred, and whatever power could have been exercised by tho Governor had he been present, tho same could have been lawfully exercised by the Lieutenant Governor in his absence.

Graham’s case, 26 An., relied upon by the relator, differs essentially from this. In that case-the Governor was at Pass Christian, in the State of Mississippi, but a few hours run from New Orleans. In this case the Governor was more than a thousand miles distant, and his absence, instead of being for a few days only as in Graham’s case, was for four or ñvo weeks. TVb express no opinion as to the correctness of that decision; we mean to say merely that it is not applicable to this case.

The decision in Doherty’s case has been uniformly adhered to, and we think it rests upon well-established principles.

It is therefore ordered that the decree pronounced in this case by our ju-edccessors be and remain undisturbed.


author: Marr, J. Egan, J.

text:
    No. 6552.
    Sarah A. Blake vs. S. O. & T. A. Nelson et al.
    "Where a wife, soparate in property, seeks to annul her transfer, of paraphernal property to her creditors, made according- to the forms of law, on the ground that the consideration of her transfer was the debts of her husband, the burden of proof is on her, to show in the most positive manner, the truth of what she alleges.
    Authentic ads, passod by a plaintiff or defendant, which recognize, or affirm a previous act passed by the same party, are admissible in evidence against him.
    Any competent judge, other than the judge of her residence may authorize a wife, in the absence of her husband, who has no domicile in the State, to form a contract, or institute a suit.
    The actitnto annul a contract on account of lesion, is prescribed in four years.
    Before a party can annul his contract, ho must restore vvliat he has received under the contract, and planetho other parties in interest in tho position they occupied previous to tho contract.
    APPEAL from tho Thirteenth Judicial District Court, parish of Madison. Hough, J.

      Montgomery ¿0 Deleney, for plaintiff and appellee.

      Jamex T. Coleman and G. L. Hall, for defendants.
   The opinion of tho court was delivered by

Marr, J.

In January, 1867, a petition was presented to tho Fourth District Court of New Orleans in the name of Mrs. Sarah A. Blake, signed by Hynes & Gordon as her attorneys, stating- substantially:

That petitioner was the wife of Conway R. Nutt, residing in Madison parish, separate in property from her husband; that she was largely indebted to certain parties in New Orleans, with whom she had an opportunity to make a settlement on favorable terms; that her husband was absent, and had been absent from the Slate several years, and that Ms residence was unknown to her, so that she could not obtain his authorization. The prayer was that she be authorized by the judge to make and sign such act of sale as might bo requisite for the purpose stated, and the authorization was granted as prayed for.

On the fifteenth of January Mrs. Blake, by authentic act, passed before Cuvellior, notary, in which this authorization is set forth, conveyed to Andrew R. Hynes, agent for the creditors named and designated, tho Ditchley plantation, situated in Madison parish, her paraphernal property, with the exception of two hundred acres, including the dwelling, which she reserved to herself, “ free from the incumbrance of tho parties for whoso benefit this sale is made,” the purpose being, as declared, “ the payment, by preference over all other debts and liabilities, of the debts specified, due to a number of creditors, including fifteen hundred dollars for attorney’s foes, tho whole aggregating §37,941 58.

It was stipulated that Hynes should sell tho property whenever he should be required to do so by the creditors represented by him, and apply the proceeds according to the terms of tho act, and on the fifth of August, 1867, he did sell it to Henry Harvey for ten thousand dollars cash.

The certificate of the recorder, incorporated in the act of the fifteenth of January, shows that there were but two incumbrances on the property:

First — A special mortgage in favor of Rotchford, Brown & Co., dated eleventh of March, 1858, to secure a note for §6180 10, bearing interest at eight per cent, duo in November, 1859.

Second — A special mortgage in favor of S. O. Nelson & Co., dated fourth of September, 1858, to secure advances for tho purposes of the plantation, to bo made in that year or any future year, not exceeding twenty thousand dollars at any one time.

In March, 1873, Mrs. Blake brought this suit against Mrs. Mary Harvey, widow of Henry I-Iarvey, and tutrix of their minor children, and against the several creditors for whom Hynes had been agent and attorney-in-fact, to have the act of tho fifteenth of January, 18C7, declared to be null and void, and to recover tho property conveyed by her to Hynes, and rent from the date of that act.

Tho grounds set up in the petition are substantially:

First — That the debts mentioned in the act of January 15, 1867, wore contracted by her husband, and not by her.

. Second — That the law prohibits the wife to bind herself or lior property for tho debts of her husband.

Third — That Hynes was her confidential friend and legal adviser; that ho induced her to accompany him to New Orleans for tho purpeso of settling these debts, representing to her that she was bound for them, and that she was in danger of being sold out of house and home, and that Hynes was in fact the agent and representative of tho creditors, and was acting in their interest.

Fourth — That the application to tho judge of the Fourth District Court for authorization was withoirt her consent.

Fifth — That the Fourth District Court of New Crleans was without juris diction to grant this authorization, because her domicile was in Madison parish.

Sixth — Lesion beyond moiety.

Defendants excepted on. several grounds, one of which is that plaintiff must first offer to restore the purchase money, an'd put the defendants in their original position before she can carry on this action.

They also pleaded the prescription of one, throe, and five years, which wo do not find it necessary to pass upon.- We incline, however, to the opinion that the prescription of ten years, as established by article 2221 of the Revised Civil Code, is applicable to the causes of nullity alleged, except lesion.

The creditors represented by Hynes disclaimed any interest in the controversy, and Mrs. Harvey took upon herself the burden of the defense. After a general denial, she pleaded specially: That several years before the war plaintiff begaii businpss with S. O. Nelson & Co. as her factors and commission merchants; that they made advances of money and supplies for the Ditchloy plantation, her separate property; that they kept the account in her name; that slio was authorized to borrow money and execute a mortgage in favor of S. O. Nelson & Co. to secure twenty thousand dollars; that after the close, of the war, in January, 1866, she was indebted to S. O. Nelson & Co. in account §4128 96, besides supply notes held by the several creditors specified in the act of the fifteenth of January, 18G7, the whole aggregating in capital §-32,075; that these notes were drawn by and also bore the- name of her husband, C. E. Nutt, authorizing her; that in addition to these debts there was a- preferred claim on the plantation of over four thousand deliars which had to be immediately arranged; that all of these claims were placed in the hands of Andrew R. Hynes by the holders and owners, with instructions to foreclose the mortgage and recover the debts; that plaintiff, desirous to save a portion of the plantation,' with the residence, urged a compromise upon said creditors, and they, unwilling to distress her and deprive her of a home, finally consented, and, to effect this compromise, she filed her petition in the Fourth District Court of New Orleans and obtained the order authorizing her to make the sale of the property.

That Hynes, by instruction of the creditors, offered the property for sale, and gave the utmost publicity to it by advertisements in the papers of New Orleans, Memphis, Louisville, and St. Louis, and finally sold it to Henry Harvey, for ten thousand dollars cash. Defendant alleges that Harvey made this purchase in the utmost good faith; that the price he paid was as much as the property was worth; that the proceeds of the sale were applied to the debts, and the notes and other evidences of debt were surrendered into the hands of plaintiff, and she was thus accpfitted of more than thirty-two thousand dollars of lier debts secured by mortgage on tlio plantation and left in the quiet possession of her resilience and two hundred acres of land.

Defendant prays that she be quieted in the title and possession of the property, or in the event that the title bo declared invalid, that the ten thousand dollars paid by her husband, and applied to the liquidation of plaintiff’s debts, be returned to defendant with interest.

The judgment of the court below, from which Mrs. Harvey appealed, awarded the land to plaintiff, and rejected tlio demand for rent, and that of Mrs.' Harvey for tlio return of the price.

Plaintiffs counsel took a b:ll of exceptions to the ruling of the court admitting tlio deposition of S. O. Nelson. ¥o think the court erred, but it is not necessary to state the objections, because we shall not consider this testimony or allow it to influence our decision.

Defendants offered in evidence a donation made by plaintiff to her children on the nineteenth of March, 1867,,of the two hundred acres reserved in the act of the fifteenth of January, 1867, to which plaintiff objected, on the ground that it ivas rea inter alias. This activas a recognition and confín nation of the act of fifteenth of January, as wo shall see hereafter, and it was properly admitted in evidence.

Plaintiff also objected to the introduction in evidence of the mortgage by plaintiff in favor of Rotchford, Brown & Co., on the same ground, and they objected to the mortgage in favor of S. O. Nelson & Co., on the ground that it had no connection with the debts for which the land ivas sold. These two mortgages were the only incumbrances mentioned in the act of the fifteenth of January, 1867, as recorded against this property, and the production of the instruments themselves afforded the best evidence that the property was actually incumbered by them.

Manifestly the burden of proof was on plaintiff to show the nullity of the act by which she conveyed the property in question to Hynes, and it is not enough for her to allege that the debts which she discharged by that act wore the debts of the husband. Where community exists the legal presumption is that all debts contracted during the marriage arc debts of the community, for which the wife is not liable, but where community does not exist, of course there can be no such presumption.

In this case Mrs. Blake obtained judgment against her husband in 1844, under which she purchased and became the. owner of Ditehley plantation, and that judgment separated her in property. Debts contracted by her, with the authorization of her husband, for the plantation, were prima facie, at least for debts, and the. documentary evidence in the record would suffice to charge her with the liability, if the suit were against her.

In the act of donation to her children, nineteenth March, 1867, which was made with the authorization of the judge of the district court of Madison parish, Mrs. Blake refers to the act of fifteenth January, passed before Cuvellier, “ under authority of an order granted in tho. absence of her husband from tho State of Louisiana by the Fourth District Court of Xeie Orleans.” She states that by this act she sold or gave in payment to Andrew R. Hynes, “ as attorney-in-fact of certain creditors of appearer, with the reservation to appearer of about two hundred acres, and the improvements thereon,” tlie'Ditchley plantation, etc.; and that by said “ act of sale or giving in payment all the debts of appear®' were ertingulshed, and the said two hundred acres, more or less, with improvements, rendered free from all liabilities or incumbrances of appearer.”

She also states in this act that her husband, “now a resident of the State of Texas,” was absent in fact from the State of Louisiana:

The mortgage, in favor of Rotcliford, Brown & Co. recites that it was executed by plaintiff with tho authorization of the judge of her district and of her husband; that tho debt was for advances made to her, and was liquidated by her note, countersigned by her husband.

Tho mortgage in favor of S. O. Nelson & Co. on its face is in strict conformity to the act of 1855, articles 126, 127, 128 of tho Revised Civil Code, and the judge who granted the authorization states that ho examined Mrs. Blake under oath, separate and apart from her husband, touching the object for which she desired to give the mortgage, and ascertained from her declarations, to his satisfaction, that it was not for any debt of her husband.

In an action against the wife, the exhibition of a mortgage, executed by her, with such strict observance of tho requirements of tho law, would create a presumption of indebtedness against her which it would require the most positive and satisfactory proof to rebut if it would not absolutely conclude her. How much greater tho necessity for such proof, on her part, when she sues to annul her solemn acts, and to avoid a compromise by which she and her property were relieved of this apparent indebtedness.

In the act of fifteenth of January Mrs. Blake acknowledged her indebtedness and the incumbrance on her property, and as these two mortgages were the only incumbrances recorded against tho property she could have referred to none other.' In the act of nineteenth March, 1867, she refers to tho act of fifteenth January as tho means by which all her debts had been extinguished, and tho two hundred acres of land, reserved to herself by that act, rendered free from all liabilities and incumbrances.

So far as the charges against Hynes are concerned, if proven, they ought not to prejudice the rights of the widow and children of Harvey. But we think Mrs. Blake has much less cause of complaint against Hynes than the allegations of her petition indicate. The statement that the application to tbo Fourth District Court was without her consent must be attributed to a defective memory. She availed herself of the authorization thus obtained in the solemn notarial act passed the next day, in which it is mentioned and set forth as the evidence of her power and capacity to make that precise contract, the only purpose for which it was intended; and two months after, in another solemn notarial act, she refers to it again with a circumstantiality which precludes the possibility of ignorance, either of the means by which this authorization w-as obtained, or of the purposes for which it was intended. If she did not specially authorize Hynes & Gordon to make this application, these two acts, the one passed in New Orleans, the other in Madison parish, show beyond her power of denial that she fully understood and approved and ratified what had thus been, done in her name and behalf.

In both these acts she states .that I-Iyncs was agent and attorney for the creditors whose claims had incumbered the entire plantation, her property. Hynes certainly did not conceal from her his relations to her creditors; and it is not improbable that she obtained better terms from him, her confidential friend, than would have been granted by a stranger, the mere attorney of her creditors. She desired to secure a home; and she accomplished this, after protracted negotiations; and she and her creditors constituted Hynes their trustee to carry into effect the compromise and settlement which they had agreed upon.

Mrs. Blake-was examined as a witness in her own behalf, and her testimony proves that Nelson & Co. furnished the supplies for her plantation. She says she and her husband signed these notes during the business with Nelson & Co., and she supposes they were intended for supplies and advances for the plantation. Her repeated acknowledgment of these debts, in public notarial acts, coupled with the fact that they were contracted with the authorization and assistance of her husband, and tlio sanction of the judge of the district and parish in which she resided, relieves Hynes of the imputation of having- taken an unfair advantage of her in representing that she was bound for them. There is no proof in this record which creates a doubt as to the truth of this representation.

, As to the jurisdiction of the Fourth District Court, article 132 of the Revised Civil Code empowers “ the judge,” when he is satisfied that the husband is absent, to authorize the wife, to sue or be sued, or to make contracts. This means, not that the judge shall grant a general authorization to the wife, but that when it becomes necessary for her to appear in court to sue or to defend a suit, or to make a contract, the judge may grant the authorization for the special case and purpose.

All the articles of the Code which provide for the judicial authorization of the wife use the term “the judge,” without other designation or qualifiliation; and counsel assume that this means the judge oí the domicile. This assumption will not stand tlie test of crit.cism. Article 3556, which, is devoted to the explanation of tlie terms used in the Code, and not therein defined, declares (No. 17) that “the word judge, as employed in this Code, means always the competent judge.”

There arc. cases in which the wife must bo sued at her domicile or usual place of residence, and there arc cases in -which the jurisdiction would be vested exclusively in some judge exercising his functions in a parish different from that in which she resides, and in which she would be a necessary party. No judge is specially vested with jurisdiction of suits in which married women are parties. The jurisdiction is established by general laws, applicable to all cases and persons falling within their purview, and they determine the competency of the judge in each particular ease.

When a married woman is to be sued, her husband must bo sued with, her; and if he appears and assists her in the defense, no other authorization is required. Should ho be absent, the plaintiff must demand that she be authorized by the judge before whom the suit is brought. R. C. P., art. 118.

The general rule- is that every one must bo sued before the judge having jurisdiction over the place of his domicile or usual residence; and, in ordinary civil matters, where the wife is to be sued, and her husband is absent, the authorization must bo by the judge of the domicile or usual residence. R. C. P., art. 162.

In tlie cases contemplated by article. 163 the suit may bo brought, at the option of the plaintiff, either at the domicile of the defendant or in the parisa in which the real property, tho subject of the litigation, is situated.

There are other cases specified in articles 164 and 165 of the Revised, Code of Practice in which suit must be brought without reference to the domicile of defendant. Therefore, when article 132 empowers the judge to authorize suit to be brought against a married woman whose husband is absent, it moans the competent judge; that is, the judge before whom, the suit is to bo brought, as declared by article 118, Revised Code of Practice. It follows that “tho judge,” or the competent judge, simply means the judge having j urisdietion of tlie cause.

Article 124, Revised Civil Code, declares that if the husband refuses to empower his wife to appear in court tho judge may give such authority. This means tho judge of lier domicile only'in tlie cases in which she is to appear before him. It necessarily means the judge having jurisdiction of the cause, whether tlie wife is to appear as plaintiff or as defendant, whether the suit be brought at her domicile or in some other parish, in accordance with the general laws regulating the jurisdiction of tlie courts.

Article 125, Revised Civil Code, which, like article 124, contemplates those oases only in which the husband is not absent, declares, if the husband refuses to authorize his wife to contract, she may cause him to bo cited to appear before the judge, who may authorize her to make such contract, or refuse to empower her after'the husband has been heard, or has made default. As the husband must be cited before the judge of his domicile, that judge alone would have jurisdiction under this article. This was decided in Fowler vs. Boyd, 12 La. 70; but we can not assent to the doctrine asserted in that case, that the parish judge of the domicile is vested with exclusive jurisdiction.

The act of 1855, Revised Civil Code, articles 126,127, and 128, requires the wife, when she desires, in addition to the authorization of her husband, to bo authorized judicially to contract a debt for her separate benefit, and to secure it by mortgage or other incumbrance on her separate property, to be examined, apart from her husband, by the judge of the district or parish in which she resides, according to the amount of the debt; and, of course, no other judge has jurisdiction in this case. This law relates, exclusively, to those contracts by which the wife becomes a debtor, and binds her separate property as security; and it contemplates not only the presence of the husband, but his authorization.

Article 182 differs from those just cited, in that they provide for cases In which the husband is present, and has the power and capacity to authorize his -wife, while article 132 relates, exclusively, to cases in which the husband can not authorize his wife, either because ho is absent or under interdiction. It enables the judge, where the.husband is either absent or under interdiction, to remove the incapacity of the wife, for the special occasion, just as articles 124 and 125 empower him to do where the husband is present and refuses to authorize her. The judge, who, under article 132, may authorize the wife to sue or be sued, must mean just what the same words imply in article 124, which empowers the judge to authorize her to appear in court; and that is, the judge before whom sho is to appear, whether as plaintiff or as defendant, the judge having cognizance of the cause, no matter in what parish he may exercise his functions.

The case is different where the wife is to be empowered to make a contract. 'When she proceeds, on the refusal of her husband, under article 125, she causes him to be cited. There is a suit, a contestatio litis; and the judge of his domicile or usual residence is vested with exclusive jurisdiction. When she proceeds under article 132, her husband being absent, she can not cause him to be cited; there is no suit, no issue made with any one, no contestatiolitis. Her application is purely ex parte, and there is no reason why she should make this application to the judge of tlie parish in which she resides^ rather than to the judge of the parish in which she- finds it convenient to make the contract.

The condition of the married woman who lives apart from her husband is anomalous. The Code, article thirty-nine, declares that: “A married woman has no other domicile than that of her husband,” and this is copied from the Code Napoleon, article 108, in which the strong negative, n'a point d’autre domicile,” is not more exclusive of the legal possibility of a separate domicile than our English version, “ has no other domicile”

A voluntary absence of two years is a forfeiture of domicile within the S ate. R. C. C., article 40. In 1807 the husband of Mrs. Blake had been absent from the State for several years, and he had no longer a domicile in the State. The law does no£ say a married woman has no other domicile than that of her husband “so long as he resides or has a domicile in the State;” nor does it moan any such thing. Article 120 says: “The wife is bound to live with her husband, and to follow him wherever he chooses to reside.” The plain meaning of the law is that the married woman, by reason of this legal and social obligation, by reason of the disability inseparable from her status and condition, has neither the right nor the capacity to create or establish a domicile for herself, and that she is bound to accept that of her husband; and this incapacity, not being subject by the terms of the law to any exception, or limitation, or restriction, lasts so long as the cause exists, so long as she continues to be a married woman, so long as she remains, in legal contemplation, under the bonds of matrimony, from which nothing but death of divorce can release her.

This rule is laid down clearly in the Roman law — Dig. lib. 50, tit. 1,1. 38, sec. 3 — from which it found its way into the systems of continental Europe and into pur Code: “Imperatores Antoninus et Verus resei pesenent mulierem, quamdiu nupta est, ineolam ejusdem civitatis videri, eujus maritus ejus est.”

Mrs. Blake resides in Louisiana, but that is a mere fact to which the law' does not attribute domicile as a consequence. She has no domicile in Louisiana, because her husband has none, he having forfeited that which he once had by prolonged absence. While she continues to be a married woman the law deals with her as being slib potestate mariti and subjects her to the disabilities and incapacities of her legal status and condition, though she be- a wife only in name and in legal contemplation, and may not have seen her husband for years. It would be strange, indeed, if her incapacity to contract should still continue, so that she must be empowered judicially, while she has become sui juris with respect to domicile, in spite of the law of public order, the law of public policy, which requires her to live with her husband, and which declares that she lias no other domicile than his. It is true under the French law, true under our law, as it was under the Roman law, quamdiu nupla est, her husband’s domicile is hers, and she can have no other, reside where she may.

Mrs. Blake cquld not apply to the judge of her husband’s domicile-for authorization, because he had none in the State; nor could she make the application to the judge of her domicile, for she had none in the State. The law does not say that the power delegated to the judge by article 132 must bo exercised by any special or designated judge, and judicial tribunals can not interpolate words which the Legislature has not chosen to. use, nor restrict the power to a judge in no way indicated by the law itself.

The power thus vested in thé judge is a very delicate one, and it is discretionary. The law does not say he shall, it says he may, authorize the wife. He should be very careful to see in every case that this power is not abused, that it is not imposed upon; to ascertain the existence of the facts which authorize him to interpose, and to grant the authorization only when he is satisfied that it is necessary for the interest of the wife. We think the power was properly invoked and exercised in this case. Mrs. Blake was in New Orleans, where her creditors resided. After much delay a settlement had been agreed upon which was highly advantageous to her, and there was no occasion for her to go out of the city of New Orleans in order to obtain judicial authorization to pass a contract before a notary in New Orleans to carry that settlement into effect. She was not about to contract any new obligation, but to discharge existing obligations which she had contracted years before, with the authorization of her husband and with proper judicial sanction, and by this means to save from the wreck of her fortune, for herself and her daughters, two of them widows, two of them not married, a home freed from the incumbrance imposed upon her entire property by these obligations.

As to the alleged lesion. If this cause of nullity ever existed, it was barred by the prescription of four years (R. C. 0.1876); but we think it never had any foundation in fact. The testimony shows that Mrs. Blake reserved to herself the most valuable portion of the Ditchley plantation, and íhat the remainder was well sold for ten thousand dollars cash. But she had nothing to do with this remainder, nor does it concern her whether it was sacrificed or sold for its full value. In consideration of iter giving this remainder in payment to her creditors, she was. dissharged from the debts fdr which she was bound personally, and for which her property was mortgaged, amounting in capital and interest to over forty thousand dollars, a sum beyond the value of the whole; and two months after this had been accomplished she made a donation to her' daughters of the property thus released and saved, which she could not otherwise have done.

It would not be just to allow Mrs. Blake to recover the property without requiring her to return to Mrs. Harvey the ten thousand dollars for which it was sold, and which was applied to the liquidation of her debts. It is true fifteen hundred dollars was retained for attorneys’ fees, but this was .prejudicial to Mrs. Blake’s creditors alone, not to her in any sense. She had the .full benefit of the price, in the discharge of her debts, which exceeded it fourfold, .and if her creditors, had permitted Hynes to retain the whole it would have been their affair, not hers.

Equity would also require that the mortgages and debts acquitted and discharged in consideration of the act of fifteenth January, 1867, should be restored to the condition in which they were on that day, before that contract could be avoided and annulled or otherwise disturbed. By the donation to her children of nineteenth March, 1867, Mrs. Blake has made this rextitfitio In integrum impossible.

We conclude that Mrs. Blake was sufficiently authorized to make the contract of fifteenth January, 1867 ; that there was ample consideration for that contract; that if she could otherwise maintain this action-she must first return or offer to return the ton thousand dollars paid by Harvey; that by her voluntary donation to her daughters of the property freed from incumbrance by that contract, she deliberately ratified and confirmed it, as far as the judicial authorization to make that donation could capacitate her for such a recognition and confirmation; and that she has interposed an effectual barrier, an estoppel, against the relief which she claims, to which wo think she is not entitled on any of the grounds alleged in her petition.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be avoided and reversed ; and that there be judgment in favor of defendants against the plaintiff, rejecting the demand of plaintiff, with costs in both courts.

Mr. Justice Spences, having- recused himself, takes no part in this decision.

Lissexting Opinions.

Egan, J.

I can not give my assent to the view expressed in the opinion of the court that, a married woman whose husband has once had a domicile in the State,,but has abandoned her and left the S:ate, may be authorized to act by any judge of any parish or jurisdiction in the State. The provisions of the law giving power to the judge having jurisdiction of a cause to authorize a married' woman to become a party to prosecute or defend and stand in judgment are express, and, e.v necesítate, as incident to jurisdiction of the cause, and have no application or force in the case at bar.

The incapacity of married women is classed with that of insane persons, interdicts, and minors. C. C. 1782. It is removed by the authorization of the husband, or in cases provided bylaw by that oljhe judge. C. C. 1786. ' If the husband refuses, the wife may cause him to be cited to appear before the judge (i. e., the judge of the domicile), who may authorize her. C. C. 125. If the husband be under interdiction or absent, the judge may authorize her. C. C., article 182. She may borrow money or contract debts with the authorization of her husband and of the “judge of the district or parish in which she resides.” C. C. 126, 127.

In these articles the definite article is always used to indicate what judge is meant. It is not any judge, but the judge, of the, domicile or residence. Such was the view taken in the case of Fowler vs. Boyd, 12 La. 70. It is immaterial to inquire whether, under existing laws'regulating jurisdiction, the judge is, as held by Judge Martin in that case, “ the parish judge.” It is the judge of the domicile, whether district or parish -judge, who is alone empowered or competent to give the authorization. The analogies of the law are all in favor of this view, and so, also, has been the uniform practice and general interpretation. In other ►States incapable persons are the wards of the law and of the courts of domicile, and we think are not less so hero.

It would .be a dangerous practice to permit a married woman to be authorized anywhere and by anj' judge So long as the law requires authorization at all, it should bo by the judge who knows her and her circumstances and needs, and the motives which prompt her, and those who deal with her. I can not g-ivo my assent to the idea that a married woman who once had a domicile in this State loses it for such purposes, and has none by the more fact of her husband’s abandonment or absence. I do not think article 89 of the Civil Code has the effect argued for, or can be held to apply to, a case like the present. The presumption of the law is that the last domicile of the husband in the State continues to bo that cf the wife, unless she is shown to have changed it after his aoandonment of her. In this case the fact accords with the legal presumption. The wife continued to reside at the marriage domicile, where she had also separate paraphernal real estate. The provisions of the law making it the duty of the wife to follow the husband wherever he may choose to reside have no relation to a case of this kind, where the husband has left the State, and the mere authority to contract is in question. But while I can not give my assent to the contrary doctrine, and therefore do not believe the authorization given by the district judge in New Orleans in this case good, I do not consider that question material to tlie determination of the case at bar. The plaintiff got the benefit of the price of tlie land sued for. She has not returned, nor offered to return it, to tlie purchaser. To enable her to recover without doing so would bo to enable her to perpetrate a fraud and an injustice to innocent persons. Slio can not keep the price and recover the land, whether authorized to alienate it or not. 2 An. 1; 6 An. 56; 10 An. 433.

I therefore concur in the decree.

DeBl.yxc,;!.' I concur in the views-of Mr. Justice Egan.


author: DeBlync, J.

text:
    No. 6584.
    F. Aufeukolk vs. P. Montegut et al.
    Tlie notice of transfer of a juítemont against a dceoasad person, served on tlio widow, and natural tutrix of tlio deeodont’s ohildron, ovon Moro she has re-’ eoivod lior letters of tutorship, is sufficient to perfect the transfer.
    A PPEAL from tlio Fourth District Court, parish of Orleans. Lynch, A J.

      'MeEncnj, Elllx <£ Elite, for plaintiff and appellee.

      ('‘Iinrlcx Lauque, for defendant.
   The opinion of the court was delivered by

DeBlync, J.

The defendant became tlio owner, by purchase, of a judgment of John Lacey vs. Mrs. Marmu, and, issuing execution thereon, seized tlio judgments which she had obtained against Bonnet and Woods. The seizure of the Bonnet judgment was released. The judgment against Woods had boon transferred by Mrs. Marmu to .plaintiff, Aufoukolk; she enjoined its sale under the seizure of Montegut.

This controversy hinges on the validity of that transfer. It was made on the tenth of July, 187G, and. on the same day the transfer was filed in court, and the judge recognized plaintiff as the subrogated judgment creditor, and ordered notice to be given to Woods, the judgment debtor. The sheriff proceeded to servo this notice on Woods, but ho had died 'that same day. His widow applied for recognition as representative of Ms estate on the nineteenth of July, and, on the twenty-ninth, signed the inventory as tutrix of the children. The service of the notice of transfer from Mrs. Marmu to plaintiff was made on Mrs. Woods, as widow in community and natural tutrix, on the twenty-second day of August, 1876; on tlio twenty-third of said month a notice of the seizure of the transferred judgment bjr Montegut-was served on Mrs. Woods, as widow in community, etc.

Mrs. Woods did not receive lier letters of tutorship until the thirteenth of October, and the defendant contends that no notice on her was good until then. Wo think otherwise. She was, by nature, the tutrix of her children. The judge does not confer the appointment of such a tutrix. He only confirms the designation made by the law. As tutrix, she sufficiently represented the estate to receive the notice.

The transfer to plaintiff is ill ho way assailed, and there is no error in the judgment of the lower court.

It is therefore ordered, adjudged, and decreed that said- judgment be, and it is hereby affirmed, at appellant’s costs.


author: DeBlanc, J.

text:
    No. 4975.
    John M. Carr vs. Louisiana National Bank.
    A contract ol pledge invalid, as to one ot its clauses, at. tlie moment of its formation, may bo mado valid by jisnbsounont act ol the Legislature, enacted tor that purpose; and a renewal ol the contract, alter the passage ol such an act, makes it legal.
    REPEAL from the Sixth District Court, parish of Orleans. Saucier,

      Alex. T. Sle.de, for plaintiff and appellant.

      Zea, Finney & Miller, for defendant.
   The opinion of the court was delivered by

DeBlanc, J.

Plaintiff claims from defendant, in cash, §5543 76, and, in legislative warrants, §8822 48, for this; On or about the fifteenth of August, 1871, he effected with said defendant a loan of §14,366 24. That loan is evidenced by a note dated fifteenth of August, 1871, payable one year after date, drawn'by plaintiff and indorsed by J. Pinckney Smith. To secure said loan, plaintiff pledged with said bank, as collaterals, §28,732 48 worth of legislative warrants, issued to pay the per diem and mileage of members during the session of 1871. The note thus given became due on the eighteenth of August, 1872,’ but was renewed and extended for one year.

Plaintiff alleges that on Friday, the twenty-first of March, 1873, at about two o’clock, p. m., J. H. Oglesby, President of the Louisiana Rational Bank, and acting for it, met him at the corner of Gravier and Baronno streets, and asked him to sign a paper which he, Oglesby, then hold in his hand, the purport of which was an agreement to allow the sale of the pledged warrants at thirty-five cents on the dollar; that it was all they were worth, and that lie would credit the amount in extinguishment of plaintiff’s .note; that, upon the representations and at the urgent request of said Oglesby, he signed said agreement; that at the time he made these representations the said Oglesby had already obtained from the. Auditor of Public Accounts a warrant on the State Treasurer for §19,910, in exchange for an equal amount of tho pledged warrants; that,;to the knowledge of Oglesby, an appropriation of twenty thousand dollars had been made to pay such warrants, which wore worth their face value, and that, on his part, it was a fraud and a deception to have induced plaintiff to consent to a sale at thirty-five cents on tho dollar.

In its. answer, the Louisiana National Bank, after the general issue, sets up the pledge made by plaintiff, admits tho receipt of new warrants to the amount of twenty thousand dollars in lieu of those first delivered, and avers tho insuffioienejr of what remains of those collaterals to pay tho pledged debt. It also acknowledges that, since the date of its answer, the now warrants woro sold for seven thousand one hundred dollars, credited on plaintiffs note.

What are the terms of the pledge referred to ? “I, .John M. Carr, do hereby consent and agree that, in case my note shall not bo punctually paid at maturity, the Louisiana National Bank shall have the right to sell and transfer the warrants so pledged, for cash, at public or private sale, without notice, at the option of said company, and the proceeds of said sale shall be appropriated to the payment of my said note, and all costs and charges attending the sale.”

Tho pledge made on tho fifteenth of August, 1871, was renewed by •plaintiff on tho thirteenth of February, and thirteenth of April, 1872. On the twenty-third of February, 1872,. the Legislature adopted an act amending article 3193 of the Civil Code, and “ authorizing the sale or other disposition of the property pledged, in such manner ns may be agreed upon by the parties, without the intervention of courts of justice, and providing that all pledges then existing shall remain in force and be •subject to the provisions of this act.”

Admitting the nullity — at its date — of the clause in the act of pledge of 1871 which authorized the private salí', and without notice, of the pledged warrants, was not its renewal on the thirteenth of April, 1872, •a now contract, or, if less than that, tho revival of a once prohibited and then authorized contract ? On this point the argument of plaintiff’s counsel is ingenious, but certainly not reasonable, for it is difficult to realizo how tho nullity pronounced by a repealed law can survive the repeal of that law, to wit: a contract or acknowledgment posterior to that repeal, aiid destroy tho effect of an agreement authorized by a special act of tho Legislature, one adopted expressly to legalize and sanction such contacts.

Had the Legislature in 1873 passed an act avoiding tho condition to sell without intervention of courts in every contract of pledge entered into after tlio adoption of the act of 1872 the pledgers could have justly complained that such a provision liad impaired and defeated an acquired right, but plaintiff can not seriously complain of an act which validates his invalid contract, and imparts to its last renewal a validity which, perhaps, it had not at its origin.

Tho legislative warrants were not exchanged for but converted into Auditor’s warrants. Tlioir form was improved, their substance was not altered. They wore, after as before that indispensable conversion, the property of Carr, tho pledge of tho bank, a debt of the State. They were dressed as required by law to gain admittance in the treasury, and in their new form increased in value. Their undressed twins at tho date of tho trial were still in tho coffers of the bank, and, according to the evidence, absolutely worthless.

If, as charged by plaintiff,' there really was an exchange of tho warrants, was it not like an exchange of copper for gold, and is this not the occasion to apply the rule “ that the mandatary is not considered as having exceeded his authority, when ho has fulfilled the trust confided to him in a manner more advantageous to tho principal than that expressed in his appointment.” R. C. C. 3011.

Tho additional grounds raised by plaintiff are :

First — That the hank was without authority to part with the, pledged warrants, except for cash. That is exactly, what it did; they were sold for sevon thousand one hundred dollars in cash. '

Second — That tho authority to soli legislative warrants was no authority to sell the Auditor’s warrants. This is a distinction in form, not in substance. The bank sold what it hold as a pledge, a claim of plaintiff against the State, tho identical claim pledged by the latter, then indorsed by the Auditor’s warrants.

Third — That defendant has sacrificed said warrants, and is liable for their value. They were sold on tho twenty-fifth of April, 1873, for one cent more on tho dollar than tho lowest price fixed by plaintiff, and, wo presume, for one cent less than might have been obtained at that dcite.. On tho thirtieth of Juno, 1873, tho hank, through its counsel, allowed J. M. Carr, tho plaintiff, a credit of two hundred dollars on a judgment rendered in its favor and against said Carr. That credit covers the difference between tho price received from the sale of tho warrants and that which Newman said “ho wras inclined to believe he offered for them.” Considering the date of tho sale and their value at that date, tho warrants were not sacrificed.

Plaintiff contends that theie never was but one act of pledge between him and the bank, that of 1871, and that said pledge being tho only one in existence in 1872, the law when adopted could not, without impairing tho obligation of that contract, authorize tho private sale previously prohibited. That said law impaired the rights of John M. Carr on the property ho had pledged. If so, all ho had to do, instead of renewing liis contract, instead of authorizing as he did, the sale at thirty-five cents on the dollar, would have been to plead the nullity of the pledge, or rather of one of its clauses, that which he himself had cither proposed or accepted. He did the very reverse, and of his own accord, over his own signature, far from repudiating the provision of.th,o act of 1872, which legalized the one illegal clause of Ms contract, he renewed Ms obligation and the pledge by which it was secured.

Of what right can plaintiff claim that he has been divested ? Is it of the right- to disregard an .agreement which he sought to withdraw, a consent which he gave to cancel a condition which ho fixed, to contest a ■privilege which ho granted? In this instance, ho could have been divested I mt of the right of violating one of the most important conditions of his contract, and that right has been swept away by his own act and the statute of 1872.

There is no error in the judgment appealed from.

It is therefore ordered, adjudged, and decreed that said judgment be and it is hereby affirmed at appellant’s costs.


author: Egan, J.

text:
    No. 6576.
    The Mayor et al. of the Town of Plaquemine vs. Gustave Roth.
    A municipal corporation can impose no tax on any occupation, unless authorized to do so by its charter.
    A PPEAL from the Justicc-of-the-Peaco Court, parish of Iberville. Tjl Marcot, I.

      Samuel Matthews, for plaintiffs and appellants.

      Barrote <£• Pope, for defendant.
   The opinion o.f the court was delivered by

Egan, J.

The only question presented for our determination in this .case is the power of the plaintiffs to imposo and collect a license tax from a person keeping a warehouse and running a dray in the town of Plaquominc.

The charters or acts of incorporation of municipal corporations within tlio State are- the measure as well as the source of their powers.

No general power to tax occupations, trades, and professions is conferred by that of the town of Plaquemine, and neither keeping a warehouse nor running a dray is among the objects of taxation enumerated in the charter; on tlio contrary, the enumeration, of other occupations as objects of taxation-would seem to exclude the two the taxing of' which is tlio matter of controversy here. 1 N. S. 126; 3 An. 314.

■ It is therefore ordered, adjudged, and decreed that the judgment appealed from 1)0 affirmed, with costs of both courts.


author: Spencer, J. Spencer, J.

text:
    No. 6551.
    Hart & Hebert, in Liquidation, vs. Pike, Brother & Co.
    In executory proceedings, the notieeotiacU5mo.1t, to ho served on the defendant previous to the soizure oi the properly, must be signod and issued by-the cleric, and not by the sheriff.
    APPEAL from the Fifth Judicial District Court, parish ol East Raton Rouge. Dewing, J.

      S. P. Oreves and II. If. Favrot, for plaintiffs and appellants.

      Thomas P. Dupree and Ilerron cC Bird, for defendants.
   The opinion of the court was delivered by

Spencer, J.

Defendants took out executory process against certain' property in the city of Baton Rouge, mortgaged by Hart & Hebert, a few days after the latter had made an assignment of their effects to their creditors.

The plaintiffs, representing the creditors, took out an injunction against tlie process, and allege many grounds therefor. It is only necessary to notice one of them. . They allego, and such is the admitted fact, that the-writ of seizure and sale was issued without tlio cleric’s having previously issued the notice of judgment prescribed by articles 735 and 730 of .tlie Code of Practice. That no such notice was over issued by the clerk, and none over served on the defendants in the process. It seems that on the day the writ came into tlio sheriff’s hands he gave a written notice to defendants that unless tlie amount be paid in throe days lie would seize and sell tlie mortgaged property.

This notice by the sheriff was not the notice required by law. It clearly results from the provisions of the Code of Practice, articles 735- and 736, that the preliminary notice therein provided for must be issued by the clerk. Tlio writ can not legally issue until that notice has been given, and the sheriff, therefore, can not have the power to giyo such noticej because ho derives liis whole knowledge from the writ, which can not legally reach him. until this notice is given and tlio delays expired. The judgment of the court a qua dissolving the injunction with three hundred and fifty dollars damages is erroneous. It is therefore ordered, adjudged, and decreed by the court that tlio judgment appealed from be annulled and avoided, and it is now ordered that the injunction sued out by plaintiffs- bo sustained and jierpctuated, defendants heroin paying; costs of both .courts.

On Application eor Rkhearinq.

The opinion of the court was delivered by

Spencer, J.

¥e held in this case that the “notice to the debtor,” prescribed by articles 735 and 730 of the Code of Practice, should bo issued, and signed by the clerk.

We have carefully reconsidered that opinion, and find that we must adhere to it.

Tho order or decree of the judge making tlio mortgage executory ia so far a judgment that it may be appealed from, and may bo enforced by execution quoad tho mortgaged property. It is a judgment, too, rendered ex parte, and without the previous citation of tho debtor, and it would bo a strange omission in tho law if no notice of this judgment was required to bo given the debtor before its execution. Wo find that by article C21, Code of Practice, even when the debtor has been cited and lias made default, a judgment confirmed against him in an appealable case can not lie executed until notice of judgment has been given him. Tho Code of Practice in this ease does not say by whom this noticie shall be issued and served; yet we apprehend that no one will dispute that tho clerk of tho court is tho proper officer to issue it. Why'? Simply because being the only legal custodian of the records, he is tho only person who can certify what that judgment is. So in the ease of executory proceedings, he is the custodian of the record, of tho judgment, and, ex necessitate, is the proper officer to issue the notice of it. Tho clerk issues the. notice, and tlio sheriff serves it.

Nor is this doctrino new to tlio jurisprudence of Louisiana. On the contrary, it plainly flows from both tho text and spirit of tho Code, and has been hold to be the true doctrine by this court in a number of cases. In Nash vs. Johnson, 9 R. 12, this court said: “Article 731, Codo of Practice, says that when the creditor‘is in'possession of an act importing a confession of judgment lie may proceed against the debtor or his heirs without a previous citation, and cause the property to lie sold; but in obtaining this order of seizure, says article 735, it shall suffice to give throe days notice to tho debtor, counting from that on which the notice is given, if lie resides on the spot, adding a day for every twenty miles between tho place of his residence and that of tho judge to whom the petition has been presented. This notice, says this court in 7 Martin, N. S. 514, is the one the sheriff is to give before seizure; but it is not said that it must be a notice signed by the sheriff, but one served or giveti by him. It has been held in 15 La. 434, that it is not necessary in executory process to servo a copy of the pc tition on tho debtor, but that ho must have notice; and it appears to ns very proper that such notice should be made out by the cleric, with whom the petition is filed, and that it should bo served by the, sheriff. To obtain the order of seizure, it is necessary to give notice, says the Code of Practice, that order or writ is issued by tho clerk on tho mandate or judgment given by tho judge, and it is not possible for the sheriff to give notice except by a notice signed by the cleric, he alone having in his possession all tho proceedings and the order or decree directing the writ to issue. This notice is something like a liotieo -of judgment, and the delay accorded to the debtor before the issuing of the writ is to enable tho party to apply to the judge for an appeal or to adopt some other mode of redress in ease the proceedings are irregular or unlawful.”

These views, so strongfy expressed by our predecessors, meet our entire approbation, and give, wo think, the .true interpretation of our law. Wo do not share tho apprehensions of defendants’ counsel, as to tho disastrous effects of this doctrine in unsettling titles in districts where a different practico has prevailed.

Wo have lately held that where tho notice was signed and served by the sheriff, he having tho writ in his hands ah the time, it was not such an irregularity as would vitiate the sale. In tho ease above, quoted (9 R. 12) it is said: “ It is possible that the notice, would bo good if signed by the- sheriff, after an order or writ of seizure was in his hands; but until ho gets such writ he has no authority to act, and can only serve tho notice given him by the clerk.”

We therefore conclude that the proper mode is for the clerk to issue tlic notice and the sheriff to servo it; and that its non-observance is good ground of injunction.

The rehearing asked for is refused.


author: Manning, O. J.' Spencer, ,T. DeBlanc, J.

text:
    No. 6505.
    State ex rel. Exchange Bank vs. Board of Liquidators.
    'Untler tlio funding not of 1RM the Board of Lianidators provided for by that act aro vested with discretionary power to fund, or refuse to fund, any and every indebtedness of the Htnte presented to them for funding; but by the act of 1875. (supplementing that of 3R7i.) they are prohibited from funding any bonds of tho State, enumerated in said act, until this court has declared them io be, valid.
    Tho Board of IJfjnidators, under said funding acts of 187A and 1875, having disere- ' t ionary powers, can not be compelled by a mandamus, to fund any indebtedness of tho State.
    J^PPEAL from the Superior District Court, parish of Orleans. Lynch,

      Ilennartl, Eoicc. <0 Prentiss, for relator and appellant.

      II. 11. Steele, Assistant Attorney General, and T. A. Flanagan, for defendant.
   Tho opinion of tho court was delivered -by

Manning, O. J.'

Tho relator holds ñvo bonds of one thousand dollars each, issued by tho State to the Baton Rouge, Grosse Teto, and Opelousas railroad in 1855, and purchased by him in 1872, which with their coupons ho desires to fund in tho consolidated bonds of the State. Tho exchange is to bo made at tho rate of sixty cents on tho dollar, under the funding act of 1874. To accomplish this he applied to the defendant. who refused to fund them, alleging that the act of May 17. 1875, had prohibited it until tho Supreme Court of this State had so ordered. Thereupon the relator took this proceeding by mandamus to compel tho defendant to exchange his bonds and coupons for the consolidated bonds of the State.

The defendant met tho alternativo writ with a denial that relator was in a situation which authorized him to require that his bonds bo funded, and for this: that the act of 1875 expressly prohibits tlie defendant from issuing any bonds in exchange for outstanding bonds or warrants of dato anterior to January 24,1874, the legality of which has been or shall hereafter be questioned, until said bonds or warrants shall have been declared by tho Supreme Court of this State legal and valid obligations against the State, and that they were issued in strict conformity to law, and not in violation of tho State and Federal constitutions, and for a valid consideration. Acts 1875, p. 110.

The same act proceeds to declare “ questioned and doubtful as to their legality and validity” certain enumerated bonds, among which are thirty thousand dollars of bonds of tho kind held by the relator, and tho Board of Liquidation is prohibited from issuing bonds, authorized by the funding act, in exchange for tho bonds thus enumerated until their legality, validity, and consideration have been tested under the provisions of the act and a final decree rendered thereon. Tho relator must therefore obtain from this tribunal a final decree establishing tho legality and validity of his bonds before lie can properly demand of the defendant that they be funded, and until he has obtained such decree he is not entitled to the writ Of mandamus to compel tho defendant to do that which it is not his duty to do before a final decree of this court is exhibited to him declaring such funding to be his ditty.

Tlie answer of the defendant also denies that relator’s bonds form any portion of tho floating debt, or of tho valid outstanding bonds, within the -meaning of tho supplemental funding act, and alleged that they did not pass from the possession of the State lawfully, and that the State did not receive any valid consideration for them.

It is manifest that the issue thus tendered is of higher dignity than a mere question of practice. It strikes at the root of the power of tlie Board of Liquidation to fund certain enumerated bonds, or classes of bonds, and the whole scope of that power, its original range and extent, and its subsequent limitation, come necessarily under review in order ■to determine the rights of relator in the present proceeding.

The funding act (acts 1874, p. 39) was a confession of bankruptcy on the part of tho State. It provided for tho exchange of all valid outstanding bonds of tho State; and all valid warrants drawn previous to its enactment, with certain exceptions, for consolidated bonds at the rato oí sixty cents in the latter for one dollar of tlio former. To effect this exchange, a Board of liquidators was constituted, whose duty was to receive the old bonds and warrants and issue tho new bonds, and in ease of the rejection of any bond or warrant by this board and its refusal to make tho exchange tho holder of tho bond or warrant thus rejected might apply by petition to tho proper court for relief, and if final judgment should bo rendered in his favor against tlio board, then it shall-lie its duty to fund tho bond or war-rant thus offered.

• The supplemental act, enacted tho following year, separated certain bonds ironi the general mass of the State obligations, and put them under suspicion. It enumerated them, in aggregate over fourteen millions, and declared their legality and validity questionable, and prohibited the Board of Liquidation from exchanging them until their validity shall bo tested in the manner pointed out by the act, and prescribed that the solo convincing and determinativo test should bo a final decree of tins tribunal declaring them to ho legal and valid obligations of the State, and that they were issued in strict conformity to law, and not in violation of the constitution of this State or of the United States, and for a valid consideration.

In order to enlarge this facility for testing the validity of any bond enumerated in tlio proscribed list, permission was given to any person assessed for State taxes to institute suit in liis own name, or to intervene in any suit instituted by another, against tho Board of Liquidation and prosecute it to a final termination; and any holder of braids or warrants whoso validity is questioned in any suit brought under the provisions of this aet may intervene in such suit, tlio final termination of all of them being a decree rendered by tho Supreme Court, without which tlio bond or warrant thus questioned could not bo funded. ■

Tlius it is apparent that the board was not compelled to exchange any bond or warrant that might bo presented under the act of 1874 for a consolidated bond without question. That it had a discretion is obvious from tho provision made Cor tho holder in ease ids braid was rejected; i. e., lie may apply by petition to a proper court for relief, and if final judgment is rendered in his favor, it shall bo the duty of tho board to fund his claim.

But tho act of 1875 deprived the board of this discretion quoad the bonds enumerated in it. So far from imposing upon its members the duty of inquiry touching the validity, or legality, or consideration of these bonds, tho act commanded them to assume that they wore invalid, illegal, and of no consideration, and prohibited them from deciding the question — prohibited them from exchanging the bonds until another designated tribunal had decided it for them.

Under the act of 1874, it is the duty of the board to fund the general indebtedness of tlio State, with discretionary power to reject such claims as did not seem proper, and with tho right to the holder to test tho merits of the rejection before a competent court. Under tho act of 1875; it is tho duty of the board to reject the bonds enumerated in it, and the holder of them must himself lift the cloud which that debt declares rests upon them, and vindicate their validity, legality, and good consideration by obtaining- a decroe from tho court of tho last resort in liis favor. That which was the duty of the board to do under the first act is its imperativo duty not to do under tho second.

A mandamus is an order issued in tho name of tho .State, addressed to an individual, or corporation, or court of inferior jurisdiction, directing- the performance of some act belonging to tho placo, duty, or quality 'With which it is clothed. Its object is to prevent a denial of justice, and it should therefore bo issued in all cases where tho law has assigned no relief by the- ordinary means, and even when a party has other means of relief, if the slowness of ordinary legal forms is likely to produce such delay that the public good and the administration of justice will suffer from it. Code of Practice, arts. 829 et sey. Our courts have more extensive power under the Code of Practice in issuing the writ than have those of common-law jurisdiction, but it never issues to compel public officers to do an act -in which they have discretionary power. College vs. Treasurer, 2 La. 395. One of its important and distinctive features is, that it is used merely to compel and coerce the performance' of a pre-existing duty. Wherever there is a clear and specific legal right to be enforced, or a duty which ought to be performed, and there is no other specific and adequate legal remedy, the writ will issue. It is not granted in doubtful eases. To warrant tho relief, the relator must have a clear and legal right to tho performance of a particular act or tho fulfillment of a particular duty at tho hands of the respondent, and this right must be a completo and not merely an inchoate right. High’s Extraordinary Legal Remedies, sections 7, 9,10.

To justify the issuance of tho writ in this, case, tho relator must have a present and perfect right to have, tho bonds presented by him funded, and it must be the respondent’s duty to fund them, a duty tho performance of which is not discretionary on the one hand — a right which is hot inchoate and imperfect on tho other.

Another prerequisite is that the respondent shall have refused to do that which was his duty .to do. It is not sufficient that tho relator has a, specific legal right tobo enforced, but its enforcement must have been obstructed and prevented by tho refusal of the respondent. It is not sufficient that the relator may have a legal duty to perform, but that duty must pre-exist-, and his refusal to-perform it is. the basis of tho, writ, and must be an antecedent fact or act which alone justifies its issuance.

• The relator’s bonds were among those enumerated in the act of 1875 as “questioned.” 'The law denounced them as suspect, and imposed upon the board the duty of refusing to fund them. It was not only not its duty to fund them, but its duty was not to fund them. Its only warrant for funding them was the sanction of their validity and legality, attested by a final decree of this court. Until that was imparted to thorn, there was no dereliction of duty by tho board in its refusal to fund the bonds, and nothing but its refusal to do its duty can furnish tho legal occasion for the command to do it.

It is objected that this ruling will compel circuity of action, and will foster multiplicity of suits, which the law abhors, for if tho holder of bonds is driven to his suit against the board to tost their validity, and can not halt until lie has obtained a final decree of this court, he must at last invoke, tlic writ of mandamus to compel the board to fund, and, again, that the validity of the bonds can as well bo inquired into and established by the writ of mandamus as by tlio direct action. But it is not to be assumed that tho board will refuse to do its duty when the bondholder presents that which alone can authorize it to act, viz.: the decree of the Supreme Court. And it must bo assumed that the board will refuse so long as it is its duty to refuse. Tho writ of mandamus is not fitted to ascertain the validity of bonds that arc made doubtful, not by a presumption of law merely, but by an express statutory declaration. Its essence is the enforcement of a right already ascertained, not tho ascertainment of a possible right already declare',d doubtful.

Tho intent of tho supplemental funding act will bo the more apparent if we consider the nature and effect of tho judgment we are now asked to render. It is to make the. mandamus peremptory, 1hat is, to say to the lower court, there was error in your not ordering tho respondent to fund the relator's bonds, although that respondent was never obliged to fund them until this decree is exhibited to him. Tlic essential prerequisite to tho respondent’s funding them is tiro decree now rendered upon his refusal to fund them. Not until tho final decroe of this court pronounces the validity of the bonds is his refusal a dereliction of duty, but we are asked to declare their validity, and in tho same breath to reverse the judgment of the lower court as being wrong, when tho only thing that could justify it in rendering a different judgment would be tho exhibition of our decree, now for tho first timo rendered. That decree is one of the ingredients, an essential ingredient, of the relator’s cause of action, but it is not supplied until tho action terminates. It should have been a germ that developed into life, and gave vitality to a right until then only in embryo. - By this construction, tho decree terminates tho existence of the action, though without it tlio - action could not have lived.

The final decree of this court was a necessary preliminary to the relator’s demand of the board to fund his bonds. The refusal to obey that decree was a necessary preliminary to the issuance of the mandamus to the respondent. The case lacks both, and therefore

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

Concurring Opinion.

Spencer, ,T.

In the case of Durant vs. the Board of Liquidation the defense put at issue the validity, consideration, legality, and constitutionality of the bonds, without objection as to the proceeding by mandamus being premature. Wo then held that this objection, made in the briefs of counsel only, came too lato, and intimated that such a cumulation of the merits with proceedings for mandamus at least avoided multiplicity and circuity of action and diminished costs. In the case now before us, the objection to the form of proceeding is specially made -i/i limine. An attentive examination of the funding bill and supplementary acts constrains me to the conclusion that the objection must prevail, however illogical 1 may think the law to be.

I therefore concur in the opinion delivered by the Chief Justice.

Dissenting Opinion.

DeBlanc, J.

Plaintiff is the holder of several bonds made and delivered by the State of Louisiana to the order of the Baton Rouge, Grosso Tote, and Opelousas Railroad Company, and bought, it is alleged, before maturity and at their market value.

Defendant refuses to fund said bonds, on the grounds :

First — That the suspicion which rests on their validity has not been removed by a decree of this court.

Second — That the board is expressly prohibited, before such a decree, from funding any of the bonds belonging- to the suspected class.

Third- — That said bonds were not lawfully issued, did not lawfully pass from the possession of the State, and they are not, within the meaning of our constitution and statutes, any portion of the floating debt of Louisiana.

Thus, without exception, every issue which can now or hereafter lie raised, by either plaintiff or defendant, in regard to the funding- of those bonds, is raised in and by their pleadings. Their validity and the title of the holder are asserted by plaintiff, denied by defendant. The action could be reduced, the defense can not be increased.

Plaintiffs petition contains two distinct demands, one that the board show cause why it shoflld not fund, as required; the other that by mandamus we command the funding. ■ The last of its demands is premature, the other is not. II both can not now bo urged, tho first can, and that which is irrelevant does not vitiate that which is relevant.

II plaintiff again appears before our courts, what shall it ask? Less the mandamus, which at this very moment it is asking, a decree — to enforce which an additional decree may become indispensable — one recognizing the right, tlic other ordering tho execution of the first. Why, then, not decide at once whether tlio bonds are fundable, whether that branch of tho action should be granted or denied ?

I respectfully dissent from tho opinion of tho court.


author: Manning:, O. J.

text:
    No. 6537.
    Jacob Strauss vs. M. Soye et al.
    Th> peones verbal o£ a sheriff, containing: all necessary recitals, signed l>y Hie sheriff, and the purchaser of tho property sold at public, sale by tho sheriff, and attested by two witnesses, has the legal value o£ a formal sheriff's deed.
    ^PPEAL from tho Fifth District Court, parish of Orleans. Callow,

      Hornor <£• Benedict, for plaintiff and appellee.

      Charles F. Claiborne, for defendant.
   The opinion of tho court was delivered by

Manning:, O. J.

Tho plaintiff enjoined the sale of lot No. 380 on Canal street in this city, which was about to take place under an execution issued upon a judgment against Mrs. Cormier, of which the defendant was tho owner by subrogation. Tho allegation is that Mrs. Cormier is not tho owner of tho property seized, but that plaintiff owns it by virtue of a purchase at sheriff’s sale on the thirteenth of December, 1875, which has boon duly recorded.

The answer is as follows: “ Now comes into court Martin Soye, made defendant herein, and for answer to tho petition herein requires strict proof of tho facts and allegations therein, and prays that plaintiff’s de-' mand bo rejected at his cost.”

The plaintiff offered in evidence the procos verbal of the sheriffs sale, and the certificate of its registry in the conveyance office. Tho defendant objected to tlic introduction in evidence of the proces verbal, on the ground that it was not a completo sheriffs deod, and upon tho court overruling the objection reserved his bill to the admission of the evidence.

The ruling of tho court was correct; tho objection went to the sufficiency and effect of tho evidence, and not to its admissibility.

No evidence was offered by the defendant, and he relies on a supposed ■incompleteness of tlie sheriff's conveyance to plaintiff, alleging that there must bo a deed from the sheriff supplemental to tho process verbal.

The proves verbal of tho sheriff in evidence fulfills all the requirements of the Code of Practice (articles 692, 693), and is of itself a deed. It contains all tho necessary recitals, and is signed by tho sheriff and tho purchaser, whose signatures are attested by two witnesses.

The judgment was for the plaintiff, and for these reasons —

The judgment of the lower court is affirmed with costs.


author: •Spenoeb, ,T.

text:
    No. 6414.
    L. C. Roudanez et al. vs. the Mayor and Administrators of the City of New Orleans. New Orleans and Pacific Railroad Company, Intervenors.
    An injunction will not issue, ;it the instance of tho taxpayers o£ a municipal corporation, to prevent tho officers oí that corporation from holding an election, under tho authority of á legislative act, to enable the citizens of the corporation to vote to levy, or not levy, a certain tax on themselves. The action is premature. No right of tho plaintiffs is, as yet. invaded, and the danger they seek to shun is too remote, and contingent, to warrant tlio issuance of an injunction.
    REPEAL from tho Superior District Court, parish of Orleans. Lynch,

      B. It. Forman, I. Ji. Fastis, and JI. K Oyden, for plaintiffs and appellants.

      Kemuo’d, Ifoice ff- Prentiss, for intervonors.

      Samuel P. Blanc, Assistant City Attorney, for defendants.
   The opinion of tho court was delivered by

•Spenoeb, ,T.

The plaintiffs, Roudanez and forty-two other citizens and property holders of New Orleans, bring this suit. They allege in substance. that each and every one of them owns real and personal property in said city liable to taxation. That the General Assembly, by act No. 20 of 1876, authorized and required tho Mayor and Administrators of Now Orleans to hold a popular election, to- decide whether or not a tax of one-half of one per cent on all taxable property in New Orleans should be cohected annually for four years, for tho use and benefit of the said Pacific Railroad Company. That said act.and the tax proposed therein are violative of the fifth and fourteenth amendments of the constitution of the United States, and of various articles of the constitution of Louisiana. That the Mayor and Administrators arc about to execute or attempt to execute its provisions against your petitioners and other inhabitants of New Orleans, to their great wrong and injury, etc.

Wherefore, they pray for an injunction restraining said officials from in any manner attempting- to carry into effect the said act No. 20.

The injunction was granted.

The Pacific Railroad Company intervened, -and moved to dissolve tho injunction on tlio face of the papers, and as bring prematurely and improvidently sued out.

Tho court below sustained this motion, dissolved the injunction, and plaintiffs prosecute this appeal.

The case has been ably and exhaustively argued before us, both as to the question of prematurity and as to its merits. But as these are matters of fact alleged in the petition, which for tho purposes of tho motion only arc taken as true, we do not see how wc can do more than pass upon tho motion and the ruling of tho court thereon. If wo sustain it, that ends tho case. If wo overrule it, tho case will have to be remanded to lie tried on the questions of law and fact involved.

Tho question therefore presented for our decision is, can tho plaintiffs, citizens and taxpayers of Now Orleans, alleging that tho defendants, the Mayor and Administrators of tho city, are about to hold an election to decido upon the levying- of a tax under act 20 of 1870, and that that act is unconstitutional, and that any tax levied by virtue thereof will be illegal and void, restrain and enjoin them from so proceeding'?

It is not protended that any tax 1ms been levic'd or is demanded of the plaintiffs. Nor is it oven asserted that such tax will be levied, but only that it may bo tho result of the proposed election.

Wo think that tho danger apprehended is too remoto and too conlingont to form the basis of a proceeding in court to avert it.

Courts of justice have enough to do in dealing with real, existing, and present wrongs, without anticipating and combating hypothetical evils of tho future that may or may not arise. It will be time enough for the plaintiffs to complain wnen their rights arc actually invaded, or when danger to their persons or property is imminent and impending. There are too many contingencies fit present between them and danger to justify them in resorting to law. Act No. 20 may yet bo repealed, or the tax proposed may ho voted down, or plaintiffs may cease to he taxpayers, or the railroad corporation may cease to exist, or forfeit its charter.

It scorns to ns that tlio plaintiffs have sot up, and now ask us to protect them against, a mere possible adversary, which at present is without substance or power to harm them.

Even if it he conceded that tho levy of tho tax contemplated by said act would bo unconstitutional (upon which wo of course express no opinion), wo do not see that that fact would render the holding of the election uneonstitutioiúil. If Hie tax would bo unconstitutional, it is fair to presume that a law-abiding people would vote it down. We know no provision of the constitution which forbids the Legislature from ordering an election to take the sense of tiio people upon any question which it may deem important. If private individuals were thus allowed to' interfere with and embarrass tho government, its most ordinary functions could be completely stopped by persons claiming to champion and protect the rights of tho public. Thus, if the Legislature should in its wisdom direct that a vote of the people be taken upon a proposed constitutional amendment, or upon tho calling of a State convention, or upon any other matter, ono or more individuals, alleging that tho expenses of such election would increase tho State debt, or necessitate a State tax beyond tho constitutional limits, could enjoin the holding of such election, and in fact paralyze tho government in its every step. While this court will always be found to favor tho largest liberty of the citizen asserting liis individual rights, and ready at all times to lend its aid for his protection, we can not give our sanction to a doctrine which we think destructive of all government, and which would till our courts with litigations based upon mere theories and hypotheses, and not upon actual grievances.

If the city of Now Orleans should, by vote or otherwise, seek to extort from tho plaintiffs illegal or unconstitutional taxes, whether to pay for election or other purposes, they will have ample opportunity to protect themselves through the courts. But “sufficient unto tho day is tho ovil thereof.”

Wc can not better express and conclude our views upon this subject than by quoting the language of that eminent jurist, Mr. Justice Cooley, in Miller vs. Grandy, 13 Michigan, 548.

“ An individual has no right as a taxpayer, either in his own name or on behalf of himself and tho other taxpayers, to filo a bill to enjoin proceedings in advance of tho actual levy of a tax. Ho can not seek redress until his own tax can bo ascertained, and he cannot then proceed in equity, except to protect his individual interest from injuries not remedial otherwise. * * • * * * * *

“Without undertaking to go into any elaborate discussion of all tho questions which might arise, wo feel confident that no case can be found which recognizes any propriety in enjoining the preliminary proceedings in advance of the actual levy of a tax on either personalty or realty. Apart from tho palpable difficulty of determining in advance whether the complainant will be in a condition to be injured when the tax is assessed, it is always to bo remembered that, under our system, taxes must be provided for at regular times, and by animal and somewhat rapid proceedings. . * * * ' * * * * *

“No court could over bo justified in such an interference vúth tlio necessary course of government. After a tax has been assessed and becomes collectible, each man’s share becomes severable from the rest, and delaying its payment will not necessarily operate upon his neighbors. These principles are familiar, and rest on good sense and sound policy.” •

It is therefore ordered, adjudged, and decreed that the judgment appealed from be affirmed, with costs of both courts.


author: Spencer, J. DeBlano, J.

text:
    No. 6604
    John Boubede vs. John O. Aymes. Executors of McNeil, Third Opponents.
    A party who judicially demands to ho paid the proceeds of a sale, admits (hereby the legality of that sale, and is estopped from impeaching it.
    A third opposition is only permitted-when the opponent is the owner of, or has a privilege on, (lie tiling seized.
    ^PPEAL from the, Sixth District Court, parish of Orleans. Saucier, J.

      Ilornor & Benedict and F. IP. Balter, for third opponents.

      F. I). Seghers and C. F. Schmidt, for plaintiff and appellee'.
   The opinion of the. court was delivered by

Spencer, J.

The material facts alleged by the 'third opponent, McNeil, are: That ho hold a mortgage note of Tabary for eleven hundred dollars; that ho had foreclosed, via executiva, and realized by the sale only ono hundred and thirty-five dollars of the debt; that pending these proceedings Tabary sold a certain other piece of property to his son-in-law, Aymes, and took notes secured by mortgage for the price; that McNeil proceeded via ordinaria and obtained judgment against Tabary for the balance due him, which judgment was, after the sale from Tabary to Aymes, recorded as a judicial mortgage. After getting this judgment McNeil instituted suit en declaration de simulation against Tabary and Aymes, to avoid the sale between them. Ponding this action to anull, Boubede, as holder of the notes given by Aymes to Tabary, took executory process, and sold the mortgaged property to Mathe for fifteen hundred dollars,-part cash and part on terms, to meet unmatured note. McNeil’s executors intervened by third opposition, alleging the above state of facts, and reiterating the simulation of the original sale from Tabary to Aymes, and charging that the judicial sale, at the suit of Boubede vs. Aymes, was a fraudulent simulation to screen Tabary’s property from his creditors, and averring that Tabary was in truth himself the owner of the, notes proceeded upon by Boubede, who was the more alter ego of Tabaiy. They pray that the sheriff be, ordered to retain the proceeds of the sale Iii his hands, and that McNeil be paid by preference over all others out of said proceeds the amount of his said judgment and judicial mortgage. The sheriff was ordered to hold tho proceeds. The executors also took rule on Mathé, the purchaser, to compel him to pay over in cash to the sheriff the whole amount of his bid. Mathé in turn took a rule on the sheriff to compel him to make him a deed on the terms of the sale and adjudication. The opposition and tho two rules were tried together. Boubede filed to the third opposition an exception that it disclosed no ■cause for intervening or for the relief asked.

The court sustained this exception, dismissed the opposition and rule of the executors of McNeil, and made absolute the rule of Mathé on tho sheriff. The executors of McNeil appeal.

Wo think there was no error in this decree of the court below. By intervening and claiming to be paid by preference out of the proceeds of the judicial sale in Boubede vs. Aymes, the opponents certainly ratified and admitted tho legality of that sale. See 3 An. 454; 22 An. 135; 23 An. 245.

As a further consequence, if it bo admitted that tho judicial sale in Boubede vs. Aymes was legal and valid, then tho sale from Tabary to Aymes was also legal and valid, for this judicial sale was predicated upon notes given by Aymes to Tabary for the price. It docs not lie in the mouth of McNeil to sa.y that the sale from Tabary to Aymes was void when he is claiming the price of that sale, realized under execution sale, in Boubede vs. Aymes. He is estopped from denying the reality and existence of either, and therefore shows no cause of privilege or preference on the proceeds, since his judicial mortgage never attached to tho property.

But the opponents allege that in truth and fact Tabary was and is the owner of the notes sued upon by Boubede, and counsel ask with groat earnestness in their brief if we “ are prepared to say that Tabary can take out of tho hands of the sheriff his money, while a judgment creditor, with an execution, stands by claiming it ? That money, proved to be Tabary’s, can not be seized in the hands of tho sheriff, simply because a third person, proved to have no interest, claims it.” Wc certainly would not undertake to maintain the affirmative of these questions. But, unfortunately, tho opponents are not, in this case, in tho attitude of “ a creditor with an execution,” or of one who has “ seized in the hands of tho sheriff” the funds of Tabary. If opponents had seized tho funds, and were seeking to hold them, under the allegations that they belonged to their judgment debtor, Tabary, and that the pretended ownership thereof by Boubede was a fraud and simulation, the case would present a very different aspect. But they have not seized- them. They have simply filed a third opposition. Now, this court well said in Livaudais vs. Livaudais, 3 An. 454, that “a third opposition is allowed but in two cases; first, when the third opponent is the owner of the thing seized; second, where ho has a privilege on it.” C. P., arts. 397, 401. In the case at bar the opponents do not and can not pretend to be owners of the fund in the sheriff’s hands, and we have seen that tlioir judicial mortgage, recorded against Tabary after the sale by the latter to Aymes, did not attach to the property so sold, and the proceeds of which arc in question in this suit. We seo no other ground for claim of preference.

We see no error in the decision of the court below on the rules taken by opponents and Mathé.

It is therefore ordered, adjudged, and decreed that the judgments appealed from bo affirmed, with costs in both courts.

Dissexting Opixiox.

DeBlano, J.

In this case, to a third opposition filed by the executors of Alex. McNeil plaintiff opposes the exception that their pleadings disclose no cause of action. For the purposes of the trial of that exception the averments of opponents must bo taken as'true. What are they? Tabary is a debtor to the succession of McNeil; that succession has obtained a judgment against him; that judgment has been recorded; by that recordation that succession has acquired a judicial mortgage on Tabary’s property.

Had ho any property at tho time the McNeil judgment was obtained and tho McNeil mortgage acquired? He had. The property affected by that mortgage was, it is alleged, apparently transferred by Tabary to Aymes, and a note from Aymes to Tabary, representing the purchase price of that simulation, apparently transferred to Boubede, tho diesen agent of Tabary. Though he held that note' for Tabary, Boubede has caused Tabary’s property to be seized and sold to satisfy a note belonging to Tabary. At that sale, Mathé, an innocent party, purchased that-which, up to that date., had not ceased to he Tabary’s property, and was-then opposed by tho McNeil mortgage.

Do the opponents claim the nullity 'of that sale and its proceeds ? They do not. Tho sale from tho sheriff to Mathé 1ms alono divested Tabary’s title to that property, and, by that sale, the only one recognized and ratified by opponents, the McNeil rights have been transferred from tho property to the proceeds of tho ratified sale, and, under the pleadings, the McNeil succession is entitled to these proceeds. Otherwise,, they shall pass from tho sheriff to Boubede, from Boubede to Tabary.

I do not think that the ratification of the sale from the sheriff to Mathé ratifies tho sale from Tabary to Aymes and the transfer to Boubede. The sale to Mathé is a real contract; the other never had any legal existence. It was not the simulated note and the simulated mortgage enforced by Boubede which imparted to the sheriff’s sale its undisputed validity; it was the owner’s consent and the creditor’s ratification. Tabary’s mortgaged property has been sold by Tabary’s agent, by his con.sent, under his instructions, and his creditor, the mortgagee, claims by preference the proceeds of that sale, and on opposition to whom ? Tabary, Ms debtor.

It may be that there has been no fraud, no simulation, on the part of either Tabary, Aymes, or Boubede, but it is charged there was, and, though the charges may be unfounded, though, if investigated, they could not bo verified, they stand admitted by the exception and during its trial. Taken collectively, they do disclose a cause of action, and, perhaps, the most appropriate action that could have been resorted to un•der the circumstances, to defeat the nearly realized effects of the alleged simulation.

For these' reasons, and believing, as I do, that the judgment of the lower court should be reversed, and the exception dismissed, I respectfully dissent from the opinion read by Mr. Justice Spencer.