author: Brbaux, J.

text:
    No. 12,541.
    Antonio Monteleone vs. Mrs. J. M. Harding et als.
    The wall built by plaintiff was made a common wall by the owners of the lot adjacent, who used it as one of the sides of their building.
    The trespass and encroachment charged, in that plaintiff had exceeded by about two inches, the niue inches allowed to one who builds a wall on a dividing line, was not sustained.
    The defendants having made use of the wall as a support for their own building-are indebted for one-half of the cost of construction.
    The intervenors, an insurance company, were subrogated to the right of plaintiff, when it paid plaintiff the value of one-half of the old party wall, which had not heen insured.
    An amount equal to the value of the old wall was allowed to the intervenor in accordance with decree in Monteleon vs. Insurance Company, <W An. 156. The remainder due by the defendants to plaintiff is an amount to which plaintiff has a right, it being for oosts of construction to which intervenors had not been suborgated, as it was additional cost of the new wall.
    APPEAL from the Oivil District Oourt for the Parish of Orleans, J.

      Albert Voorhies for Plaintiff, Appellant.

      Dart & Kernan for Defendants, Appellees.

      Farrar, Jonas & Kruttsehnitt for Royal Insurance Company, Intervenor, Appellee.
    Argued and submitted February 24, 1898.
    Opinion handed down March 7, 1898.
    Rehearing refused June 28, 1898.
   The opinion of the court was delivered by

Brbaux, J.

This suit was brought by the plaintiff for two thousand three hundred and seventy- six dollars and forty-three cents, alleged proportion due by the defendants of the value of a wall separating the property of plaintiff and defendants.

The answer traverses the allegations of plaintiff’s petition and specially pleads that there was no necessity of demolishing the old and substituting a new wall; that plaintiff substituted a wall of greater width and encroached thereby upon their property, some two and a half inches.

The prayer was for a judgment condemning the plaintiff to remove the wall to its former limits, and denying all liability. Alternatively in case of judgment in plaintiff’s favor then that respondents have an offset and deduction (from such sum as may be found due) for value-of the old wall owned in common.

The Royal Insurance Company intervened and alleged that it had insured plaintiff’s building; that it was destroyed by fire within the terms and life of the policy, and that thereafter he brought suit against it and recovered judgment from the company for eight thousand dollars; that one of the elements of loss recovered by him was the value of the whole party wall separating his property from that of the defendants here, and that he got the sum of four thousand one hundred and fifty-seven dollars and fifteen cents as the value of the wall; that the judgment rendered under which this amount was collected included one-half of the value of the party wall which Monteleone was seeking -to recover from the defendant in the suit before us for determination; that intervenors, the insurance company, had paid and satisfied the judgment rendered against it, as just stated, and that by the payment it was subrogated by law to the claims of Monteleone against the adjacent proprietors for one-half of the value of the party wall; that the right of subrogation was recognized by the judgment of this court, citing 47 An. 1568. The intervénor claimed an amount alleged as being equal to one-half of the value of the party wall owned by the proprietors of adjacent property, defendants in this suit.

•The defendants filed a general denial in answer to the petition of the insurance company, intervenors. The plaintiff, Monteleone, alleged is his answer to the intervention, substantially, that he had not insured the whole party wall, but that he had only insured the half of which he was the owner, and that he had only recovered its value and not the value of the entire wall; that the reservation of this ■court in the ease cited supra was not as extensive as the intervenor alleged. The judgment of the District Court was partly in favor of plaintiff and against the defendants, and partly in favor of the intervenor against defendants.

We conclude from the argument at bar and the brief that defendants no longer contend for a decree to compel plaintiff) to remove the party wall to its former limits as prayed for in their answer. The difference between the old limits of the wall and the new is only about two inches; the new wall is on the division line of the adjacent owners, but it extends on the defendants’ side of the line about two inches more than the nine inches authorized by law under Art. 667, C. P.

Since the answer was filed in which the defendants claimed by way of reconversion that because of the alleged encroachment the plaintiff should be made to demolish his wall, the defendants rebuilt their houses on the adjacent lots, and used the wall in question, and made it a part of one of their buildings. Having thus utilized this wall the claim for its demolition on the ground of trespass to the extent of two inches of landfalls. The defendants grant that they no longer have any claim for its demolition, but they urge that they are none the less entitled to the value of the two inches of ground. We have made a careful examination of the evidence upon which to base damages for the value of the land, in excess of the nine inches allowed, upon which plaintiff’s wall rests, and have not found that it made certain the fact that defendant is entitled to anything. The testimony is somewhat conflicting as to the space taken up by plaintiff. The weight of the evidence, in our judgment, sustains the conclusion on this point that the wall is nineteen inches in thickness, of which six and three-quarters inches extends from the centre line of the old wall over plaintiff’s place,' and twelve and one-quarter inches upon defendant’s property, but as to its value there is no evidence to sustain a judgment.

This brings us to the demand made upon defendants for the value of one-half of the party wall. The wall, to the extent of its use by the defendants, is a common wall, owned in indivisión by plaintiff .and-defendants. It was entirely rebuilt by plaintiff.

The destruction of the old wall made it necessary to rebuild a new wall. It was built at plaintiff’s expense. The day that defendants-, made use of the wall as a support for their own building, and made-it a common wall, they became indebted for one-half of what plaintiff laid out for its construction. C. O. 676.

At the beginning of our work: fixing the amount due by the defendants, the objection is urged on their part that plaintiff had a thicker and more solid wall built than the defendants needed, and that the costs of construction was more than they should have been. The-building of defendant was three stories high; that of plaintiff five.. The weight bearing on the common wall and its support on either side was not so greatly different.

We conclude from the evidence that the wall was not built stronger than it should have been built. The evidence discloses that the difference in height between plaintiff’s and defendants’ building is about eitghteen feet. The building of the defendants has a large clear span of about thirty feet and very high stories. The party wall may be-stronger than actually necessary to support their building, but the difference, in our view, is not so great between the weight of plaintiff’s building and that of defendants as to render it a matter of sufficient moment to make further deductions than was made, when the ease wasjtried in the District Court. With reference to the costs of materials used by plaintiff in building this wall, it appears that plaintiff made use of hard brick that cost more than the ordinary brick with which the defendants built. He also used cement and mortar. For similar construction defendants made use of lime. The difference in the^costs was not great.

The party wall, used by defendants was, we are informed, in height fifty-seven feet, and from front to rear one hundred and three feet. An account was in the record of the number of bricks in the wall, and of other’materials made use of in the construction; there was. also a sketch of the wall clearly indicating the portion of the wall charged to the defendants. The measurements, supported as they are by evidence, and the items charged, all have every appearance of being correct. The bill rendered by plaintiff to defendants amounted to one thousand and sixty-nine dollars and sixty-three cents,«actually paid for labor and material in constructing the half of the party wall. This bill, we take it, is binding upon the plaintiff, and a correct basis of his demand.

We pass to another branch of this case growing out of a claim set up by the intervenors for the value of so much of the wall as was owned by the defendants; adjoining proprietors. The question is not res nova. In Monteleone vs. Insurance Company, before cited, this court, in passing upon the suggestion of defendant to have deducted one-half of the party-wall which had been allowed to plaintiff for loss, held against such a deduction, and refused to grant the demand. It follows that this judgment decreed that the defendant was responsible for a constructive total loss of the whole wall, and that no deduction as asked was made. ' I n’t he application for a rehearing the defendants urged that this was error, and reiterated the argument against the allowance. The proposition in support of the position was argued at some length in the brief. The plaintiff in a brief in reply to defendants’ application for a rehearing referred to the reservation contained in the opinion and judgment of the court. We give no importance to the position taken in that suit on this subject, save to the extent that it makes it manifest that it was an issue in the case, and that it was decided after it had been argued. The court heretofore, after having considered the grounds, expressly determined that plaintiff was entitled, under the contract of insurance, as made, to recover for the whole wall, and having reserved to defendant, now intervenor, a right of subrogation, the matter is closed as between these parties. Under the decree the payment made by the insurance, company to the plaintiff carried with it a subrogation to his right.

The question resolves itself into this:

The defendant in the first case cited supra denied that plaintiff had the right to recover for the whole wall. This court, looking upon the right of subrogation as securing an equivalent to the deduction asked, declined to make the deduction asked. It is manifest, in the face of the subrogation which followed payment, the plaintiff could not retain the whole of the amount paid, and at the same time recover, for his individual account, any part o'f the sum due by the owners of the adjacent property on the old wall. The amount, that is, the amount due by the defendants based on the value of the old wall, was fixed by{the judge of the District Court at a sum which should not, in our view, be less.

From the balance remaining after having deducted this last sum ([i. e., sum of allowed to intervenor) from the total shown by the account rendered of one thousand and sixty-nine doilars and sixty-two cents, there remained three hundred and ninety-four dollars and sixty-two cents. From this amount was deducted one hundred and eighty-four dollars and thirty-two cents, cost of foundation and footings and of old bricks. The foundation of the wall had not been destroyed. It was strong enough to support defendants’ wall. It was taken out and another laid to support plaintiff’s heavier wall. It was reasonable, in our view, for plaintiff to bear this expense. The other item deducted was for old bricks used and thus leaving a balance of two hundred and ten dollars and sixty-one cents due plaintiff.

It is in evidence that the wall has cost a larger sum than plaintiff recovered from the intervenors under the decree rendered in the first suit. The amounts due to the insurance company were fixed by taking the cost of the old wall as a basis, as it had no concern in matter of the cost of the new wall. The intervenor recovered the value of the old wall and not the cost of construction of the new wall, which was more. It was different between the plaintiff and the defendants; the former had recovered from the insurance company less than the costs of the new wall. The defendants had not objected to the material used in constructing the new wall; when it was being constructed they had openings made in the wall in their interest, and when it was completed they, without protest, made it a wall in common. In our judgment payment of the difference in the costs of the two walls by them is fair, reasonable and just.

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

Rehearing refused June 28. 1898.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 12,572.
    Antonio Monteleone vs. Mrs. J. M. Harding et als.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Albert Voorhies for Plaintiff, Appellee.

      Dart & Kernan for Defendants, Appellants.

      Farrar, Jonas, Kruttsahnitt & Gurley for Royal Insurance Company, Intervenor, Appellee.
    Argued and submitted February 24, 1898.
    Opinion handed down March 8, 1898.
    Rehearing refused June 28, 1898.
   The opinion of the court was delivered by

Breaux, J.

The facts in this case and the issues are the same as in the case of A. Monteleone vs. Mrs. J. M. Harding et als., No. 12,541, handed down yesterday morning.

For the reasons assigned in that ease, the judgment of the District Court is affirmed.


text:
    No. 12,763.
    Mrs. Florencia Calderon vs. Augustine Martin, Her Husband.
    Mental infirmities are infinite in degree. The law intervenes in behalf of a person when the malady affecting his intelligence prevents him from governing his person and his property.
    These are the tests, and one may be interdicted although he is not always devoid of all power to reason.
    The condition in this case makes manifest habitual mental alienation, and the consequent necessity of appointing a curator to safeguard defendant’s person and property. >

    To protect every right of the interdict and soothe his condition as much as possible is the object of the law in authorizing interdiction.
    A PPEAL from the Civil District Court for the Parish of Orleans. ** Monroe, J.

      H. N. Gautier and L. P. Paquet for Plaintiff, Appellee»

      A, A. Ker, H, 257. Upton, Lazarus, Moore & Luce for Defendant, Appellant.

      Argued and submitted April 22, 1898.
    Opinion handed down May 2, 1898.
    Rehearing refused June 28, 1898.
   The opinion of the court was delivered by

Breaux, J.

The wife brought this suit for the interdiction* of her- ■ husband, on the ground of mental unsoundness, rendering him incapable of properly administering his estate and of taking care of hi? person. The father of the defendant died testate in 1893, leaving his property,valuable at his death, to his widow and his only offspring, the defendant. To the former he bequeathed one-third of his succession, with the usufruct of the remainder, and to the latter two-thirds, subject to the mother’s usufruct.

In 1894 plaintiff was married to the defendant. The evidence discloses that his mental faculties were always weak. Of late years he has become quite timid, to a degree that he is unwilling to leave his home alone. When he is away from his home he is afraid to return without having some one with him. At his home he shows by his acts and utterances that he is weak and almost entirely devoid of all will power. He is unable to correctly calculate or to multiply simple numbers. His utterances are difficult and not easily understood. These are the salient facts stated by the witnesses for plaintiff-. About an equal number of witnesses for defendant expressed a different view in regard to his mental condition. We infer that all the witnesses agreed in the opinion that the defendant is frequently abnormally nervous, and that he is unable to earn a livelihood, but those for the defendant evidently did not think that his condition was such as to warrant his interdiction. With reference to the property left by the father, which was all he had, it was wasted, save a small amount. His mother had not. chosen to adhere closely to the limitation manifestly desired by the father and testator in regard to the disposition of the property bequeathed. The mother and the son together have freely-expended amounts inherited, so that at this time a large estate-is of little value. The District Judge heard the witnesses. He heard the defendant testify and propounded a number of questions to him. Judgment was rendered holding that the defendant was incapable of performing validly any of the acts which a person of sound mind) could perform and decreeing his interdiction. The questions before us for our determination are brought upon appeal of the defendant from the judgment of interdiction. In our opinion, defendant’s sad condition comes within the grasp of the law which authorizes the interdiction of one who, because of mental incapacity, is unable to properly protect himself and manage his estate. The defendant can not> in his present state of mental weakness, transact the customary business of life. He is not, in the strict senee of the word, absolutely insane, but he is none the less, in our view, as much in need of protection as if his case were one strictly of the most pronounced type of insanity.

The expenditure of his patrimony and his total failure, in a satisfactory manner, to account as a witness for the loss, is a direct manifestation of most lamentable mental weakness. By his incoherence in answer to questions he made it evident that he did not really know what had become of his property.

The testimony taken as a whole indicates, in our opinion, a derangement of the mind’s functions. We do not assert for an instant that the defendant is a confirmed lunatic. Alienists have asserted, and we think correctly, that those designated as imbeciles in law may ordinarily make use of their senses; may have ideas, memory and some judgment, and conduct themselves more or less properly at times; they may read, articulate words with more or less clearness, even calculate when the calculation is not complicated. Defendant’s case falls within the definition. In our judgment, within proper limits a definition of habitual mental infirmity might be given less wide and comprehensive than the foregoing definition that would cover defendant’s case.

With reference to the defendant, we will not use the harsh word “ imbecile,” as there is no actual necessity to use the word. He has no knowledge of numbers, and he is, we think, as incapable of comprehending his interests properly as any person who may come within the definition by alienists of non compos.

We must affirm, the evidence shows, that he is mentally infirm and a proper subject to place in charge of a guardian.

Personally, the defendant’s condition awakens sympathy. Evidently he is kind and loving to his mother. In his mental blindness he never fails to discern his mother and to call on her in his distress. It appears that he sometimes on the streets near his home is exposed to the scoffs and jeers of mischievous and thoughtless lads. In these and other troubles of the kind, he, boylike, would endeavor to get his mother’s protection; an appeal to which the good mother never fails to respond, however disagreeable the afflicted offspring may be to others.

We do not suppose that any one is to be benefited, or that any one Seeks an advantage in having defendant interdicted. The law has established measures of protection for the interdict only. The purpose is the care of his person and the proper gestión of his property. The solicitude of the law is made manifest by the different articles of the Code. These articles look to kindly and proper offices on the part of the law’s agents. With studious care it has provided that the income of the person interdicted “ shall be employed in mitigating” his sufferings and in accelerating his cure. O. O. 418. It is also made the duty of the judge to visit the person interdicted, and otherwise to inform himself of the state of his health. O. 0. 424, 425.

The defendant cited the case of Francke vs. His Wife, 29 An. 302-315. There are, in our view, impressive inferences to be drawn from that decision which are favorable to plaintiff’s demand. Mrs. Francke, the person it was sought to have decreed insane, in the cited case, had no property. Here, on the contrary, we are informed that there is a little property, which, under the management of a curator, may be applied to soften the hard lot of the interdict, who manifests no disposition or capacity for labor or employment of any sort.

Different, also, from the cited case, there is here option left to the court in selecting a curator upon whom the duty will devolve of asserting all of defendant’s rights, and there is, therefore, no ground for the application of the intimation found in the cited case. The conjugal rights between the defendant and the plaintiff remain, and all rights, without the least reservation, are sacred. It is the curator’s duty to uphold them all before the courts, be their nature what they may. The wife is not necessarily the curator of the husband. But the husband, under the law, is the curator of the wife; in consequence, the intimation in the Francke case does not apply. The interdicted person is entitled to every regard and sympathy. The greatest care should be taken to maintain all his claims.

It is therefore ordered, adjudged and decreed that the judgment appealed from is affirmed, at appellant’s costs.

Rehearing refused June 28, 1898.


author: Blanchard, J.

text:
    No. 12,926.
    State of Louisiana vs. David Martin.
    On Rule to Set Aside Judgment of Forfeiture.
    1. Tile mere appearance o£ accused at same term o£ court, after his appearance-bond has been forfeited, does not entitle him to have the judgment of forfeiture set aside, or satisfaction thereof entered.
    2. Nor does his arrest under a second capias and his being in the custody of the-court before its adjournment for the term, or his having given a second bond to secure his further appearance, entitle him or his sureties to this satisfaction.
    3. But the final disposition of the case by his subsequent trial and conviction, or acquittal, before collection of the judgment of forfeiture isjhad, entitles him or his sureties to have satisfaction of the judgment of forfeiture ^entered on. proper proceedings taken therefor.
    ON APPEAL from the Sixteenth Judicial District Court, Parish of St. Helena. — Reid, J.
    . Milton A. Strickland for Plaintiffs in Rule, Appellees.

      M. J. Cunningham, Attorney General, and D. S. Kemp, District. Attorney, for State, Defendant in Rule, Appellant.
    Submitted on briefs, December 10, 1898.
    Opinion handed down December 19, 1898.
   On Motion to Dismiss Appeal.

The opinion of the court was delivered by

Blanchard, J.

The State is appellant from a decree making absolute a rule declaring a judgment of forfeiture of an appearance bond satisfied.

The appeal is met by a motion to dismiss on the ground that the case is a criminal proceeding in which no right of appeal exists in-.the State from the'ruling and judgment of the court a qua.

That the State has the constitutional right of appeal in certain-criminal proceedings, even though there be lacking express legislative enactment on the subject, is not an open question, and the exercise of this right is affirmed by jurisprudence.

See authorities cited in Knoblock’s Criminal Digest, p. 18. Also-State vs. Dubois, 39 La. Ann. 676; State vs. Breeden, 47 La. Ann. 874.

Conceding that an appeal by the State will lie where an indictment is quashed, or a judgment is arrested, in felony cases, counsel for appellees denies that such right of appeal by the State ought to, or does, lie from a decision declaring a judgment of forfeiture of a bail bond satisfied.

In State vs. Williams, 37 La. Ann. 200, the sureties of defendant on his appearance bond appealed from a decree refusing to set aside a judgment of forfeiture, and the appeal was maintained.

In State vs. Burns, 38 La. Ann. 363, and State vs. Balize, Ib. 542, the bail bonds were forfeited and the sureties appealed. In the former ease the appeal was dismissed because sought and returned too late — not because the right of appeal was questioned or denied. In the latter case the appeal was maintained, and the judgment of forfeiture annulled and set aside.

In State vs. Martin, 49 La. An. 752 (the case of this same defendant on a former hearing), the appearance bond of accused having been forfeited and judgment entered up against the principal and sureties, a motion was made to set aside the judgment of forfeiture. Prom a decree denying the motion defendant appealed. No question of his right to do so was raised, and on the' merits the judgment appealed from was affirmed. See also 37 La. Ann. 62; 39 Ib. 939; 47 Ib. 363.

If persons charged with crime and their sureties on appearance bonds may appeal from final judgments forfeiting such bonds, or from final judgments refusing to set aside the forfeitures when made, surely the State may likewise appeal from adverse final judgments denying forfeiture, or setting aside forfeitures once made, or declaring judgments of forfeiture satisfied. The reasons for the one appeal are as strong and cogent as those for the other.

“But,” declares■ counsel for appellees, “ conceding the State an appeal in this case, how can the court say the judgment of the lower court, as presented, is error, without examining into all the facts upon which it is based, and all the circumstances surrounding its rendition? This your Honors will not do in any criminal case. You do not consider or review facts.”

True, it is not given this court to consider or review the facts of a criminal prosecution in so far as the same pertain to the question of the guilt or innocence of the accused. But where an issue arises, like the one here presented, involving a question of law blended with facts, it is subject to our review. State vs. Nelson, 32 La. Ann. 845; State vs. Trivas, 32 La. Ann. 1086; State vs. Hyland, 36 La. Ann. 87; State vs. Seiley, 41 La. Ann. 143.

The appeal is from a ruling of the judge on the law as applicable to-a certain state of circumstances presented to him involving the right of release from forfeiture, vel non, of an appearance bond. No facts are involved on which a jury in a criminal prosecution had sat or could sit. The judgment discharging the sureties from the payment of the forfeited bond, decreeing the former judgment of forfeiture satisfied, can, in no sense, be assimilated to a verdict of a jury discharging an accused.

It is muc* more to be assimilated to a judgment in a civil proceeding annulling a former judgment for a moneyed demand.

The motion to dismiss is denied.

On the Merits.

Defendant was indicted in 1895 for receiving stolen goods, arrested and gave bond for his appearance. Nothing further was done in his case until the November term, 1896, when he was arraigned, pleaded not guilty and the case assigned for trial on a day fixed. On that day he failed to answer when called and his bond was duly forfeited. Four days later he was rearrested (being then in the court room) on a second capias that had issued. He gave a second appearance bond and was released from custody.

The day of his rearrest was the last, save one, of that term of ■ court. The adjournment of court the next day (Saturday) was necessitated by reason of the fact that a regular term of the same court in an adjoining parish would convene the following Monday.

At the time of his appearance in court and rearrest another criminal case was on trial, at the conclusion of which, within two hours thereafter, the jury was discharged for the term. It is shown that the witnesses for the prosecution in defendant’s ease were then absent and it was not practicable to try his ease before the final adjournment of the court. But, based upon his appearance and rearrest, and upon his then being in the custody of the court, he and his sureties filed motions to set aside the judgment of forfeiture of the first bond.

This motion was tried the succeeding day (the last of the term) and overruled. Whereupon an order of appeal was taken to this court. The case was considered here in February, 1897, and a decree handed down affirming the judgment appealed from. 49 La. An. 752. The question there presented was (the appearance bond having been duly and legally forfeited-, the accused having been rearrested and in custody and offering for trial, but too late for trial then because the petit jury was about to be discharged, the court was about to adjourn for the term and the State’s witnesses were absent, one or more of them in an adjoining parish) whether the appellants were entitled to have the jndgment of forfeiture vacated. It was answered in the negative. It was held that the appearance of the-accused, under the coercive power of the court, will not suffice to set aside the judgment of forfeiture, even if the appearance be at the same term when the judgment was rendered, but too late for-trial at that term. It will be observed the issue there was, whether, under the circumstances presented, the judgment of forfeiture should be set aside. The issue here is, whether this judgment of forfeiture,, there maintained, should now be held satisfied.

What is to be considered is whether what took place afterward warrants the decree of the trial court sustaining the rule to declare satisfied the judgment of forfeiture affirmed by us.

The judgment of this court was rendered February 15, 1897. On February 18, three days later, defendant was tried in the parish of St. Helena on the indictment charging him with receiving stolen-goods, and acquitted. On March 1 following, within the legal-delay, an application for rehearing was filed, one of the grounds of which was “ that since the rendition of the judgment in this Honor-, able Court, in this cause, David Martin has been tried and acquitted on the charge wherein the bond was forfeited, as shown by a certified copy of the minutes of the District Court hereto annexed and made part hereof.” And the certified copy of the minutes of the District Court annexed did show the trial and acquittal of the accused. The rehearing was refused. No opinion thereon was handed down.. In State vs. Bass, Man. Unrep. Cas. 250, it was held that where, after an, appeal in a forfeited bail bond case had been taken, the principal on the bond was tried and acquitted, and this was made to appear by the proceedings of the trial being added to-the transcript, this equrt could not formally act upon the same.

In June following the denial of the rehearing, the accused and his sureties on the forfeited bond took a rule to have cause shown why the. judgment of forfeiture should not be - declared satisfied, set aside and annulled. The petition in rule sets out at length the facts and circumstances of the case, all of which were practically covered and involved in the former appeal, except the subsequent trial and acquittal of the accused.

Defendants in rule excepted that the petition disciosed no cause of action and that it was a collateral attack on the judgment of forfeiture. They further pleaded by way of exception, res judicata, averring that the same issues were passed upon and decided by the previous judgment of this court. The exceptions were overruled and bill reserved.

Later, in their answer, defendants in rule averred the regularity of the forfeiture of the bond, the appeal from that judgment to this, court, and the action here thereon.

They represented that execution had issued, but that no return-had been made on the ft. fa., that no money had ever been paid or-collected on the judgment, and that none of the conditions of the bond had ever-been complied with.

The case was tried and judgment was rendered declaring the judgment of forfeiture satisfied. This appeal followed.

At the conclusion of the record of the testimony taken in the ease-the trial judge made this note: — “ The court has received the testimony offered on the trial hereof for the purpose of having the matter speedily and finally determined by the appellate court, to avoid its-being returned in the event the appellate court desires it, but wilt decline to consider any question raised except that, whether or not. the judgment has been satisfied by the final trial and acquittal of the-accused.” On this issue he thought the case was with the plaintiffs; in rule.

While the question, considered originally, is not free from doubt, repeated adjudications of this court sustain the ruling of our learned brother of the District Oourt. State vs. Schexneider, 45 La. Ann. 1445; Lafleur vs. Mouton, 8 La. Ann. 489; State vs. Hamill, 6 La. Ann. 257; State vs. Langton, 6 La. Ann. 282; State vs. Brown, 13 La. Ann. 267; State vs. Scmidt, 13 La. Ann. 267; State vs. Bass, Manning’s Unreported Cases, 250.

The mere appearance of the accused at the same term of the court after his bond had been forfeited did not entitle him to have the judgment of forfeiture set aside, or satisfaction thereof entered. State vs. Grice, 11 La. Ann. 605.

Nor did his arrest under the second capias and his being in the custody of the court before its adjournment for that term, or his having given a second bond to secure his further appearance, entitle him, or his sureties, to this satisfaction. And this is what we decided when the case was before us heretofore. 49 La. Ann. 752. Why? Because the appearance he then made did not finally dispose of the case. He was not finally tried and convicted or acquitted. State vs. Defesse, 18 La. Ann. 104.

But subsequently he was tried and acquitted, and with this final disposition of the case, before collection of the judgment of forfeiture was had, satisfaction of such judgment must, it would seem, under the established jurisprudence, be entered on proper proceedings taken therefor.

Judgment affirmed.

Breaux, J. Dissents.

Nicholls, O. J., takes no part, being absent ill.


text:
    No. 12,641.
    Frank G. Mahan vs. John and Peter Everett and Planters’ Molasses Company, Ltd.
    Pedestrians are entitled to the right of way on the sidewalks of the city, and to the assurance that they may traverse the same in the confidence of safety.
    Ordinary care is to be observed by those using the banquette to avoid danger, but not the same alertness is required of them as is the case when they cross streets where vehicles, ears, etc., have equal rights of way.
    While it is permitted to load and unload drays, floats, and other vehicles over the banquettes, the same must be done with due care and precaution for the safety and protection of passers-by, those engaged in the work remembering always that they are temporarily obstructing a thoroughfare over which the general public afoot has the prior servitude or right of passage.
    APPEAL from thé Civil District Court, Parish of Orleans. mus j.

      Lazarus, Moore & Luce and Joseph N. Wolf son for Plaintiff, Appellant.

      Bernard MeOloskey for J. and P. Everett, Defendants, Appellees; D. B. H. Ghaffe for Planters’ Molasses Company, Ltd., Defendant, Appellee.
    Argued and submitted May 5, 1898.
    Opinion handed down June 13, 1898.
    Rehearing refused June 28, 1898.
   The opinion of the court was delivered by

Blanchard, J.

This is an action sounding in damages for personal injuries alleged to have been sustained. The amount claimed is five thousand dollars.

The averments are that plaintiff was walking along a public •street in the city of New Orleans, where he had a right to be; that he was prudent and careful; and that in passing certain premises occupied by the Planters’ Molasses Company, Limited, without notice or warning, a barrel of molasses was violently rolled on skids from a vehicle standing near the curbstone in the street, which barrel struck petitioner, beaking his leg and causing him great bodily •pain and serious injury, rendering him less able to earn a living for himself and family and making him a cripple for life.

The Molasses Company and the owners of the vehicle are sued in solido, on the allegation that the injury to plaintiff was occasioned through their fault, and that of their employees, in failing to exercise due care and diligence to insure the safety of pedestrians along the street from the danger incident to the unloading of barrels of molasses, in the manner mentioned, from drays into the warehouse. It is set forth that the Molasses Company employed John and Peter Everett, who own and operate public drays and floats, to haul the molasses in barrels to their warehouse and they were so engaged at the time of the accident; and it is averred that, besides this contractual relationship, the Molasses Company and the Everetts jQintly owned, controlled and managed the drays and floats so engaged in hauling "the molasses.

Defendants plead the general issue, and represent that if any damage resulted to plaintiff it was brought about by his own negligence.

It was not a jury trial, and the judgment of the court below was for defendants, from which this appeal is prosecuted.

Plaintiff was an old man, between sixty-nine and seventy years of age. His.sight apparently was not good, or he was suffering in some way from his eyes, for the evidence discloses that he was wearing green spectacles, with side glasses. Just why he wore these glasses is not told. He was on the street, engaged in his usual avocation— trading on a small scale, buying small quantities of commodities to-sell again without delay at a small .profit, a kind of peddling business. Sometimes, he says, he would sell a carload of some stuff or other on commission. He had just bought a box of peaches and was carrying it under his arm intending to sell it. He had been well-to-do in days gone by, but was not at the time of the accident in good circumstances.

He had a right to be on the streets and it was not negligence, or want of prudence, or care, on his part to be there even though he found it necessary to protect his eyes with green glasses. There is no pretence that he could not see, or see well enough to justify his being out alone. He testified his hearing was good and that he could see.

Pedestrians are entitled to the right of way on the side-walks or banquettes of the city. That is what the side-walks are dedicated, constructed and maintained for. Ordinary care is to observed by those using the same to avoid danger, but not the same alertness is required of them as is the ease when they cross streets where vehicles, street cars, etc., have equal rights of way.

While it is permitted to load and unload drays, floats and other vehicles over the banquettes, such loading and unloading must be done with care and precaution, having due regard for the safety and protection of passers-by, those engaged in the work remembering always that they are temporarily obstructing, more or less, a thoroughfare over which the general public afoot has the prior servitude or right of passage. It follows, as tersely stated by plaintiff’s counsel, that the loading and unloading into and from vehicles over the side-walks mnst be done in such way that the physically weak as well as the physically strong, the tenderly young as well as the maturely ¡old, .men and women, whether young and; vigorous, or old and feeble, may traverse the same in the confidence of safety.

Anything short of this constitutes negligence in those engaged in such loading and unloading, and where injury results to a passer-by a conclusive, certainly a clear, case of contributory negligence on his part must be made out to free the former from liability.

No such conclusion or clear case of contributory negligence on part of plaintiff is made out by the defence herein. We are not able to agree with the conclusions of our learned brother of the lower •court in this regard. A careful consideration of the testimony leads to a different result than that announced by him.

The float or wagon from which the barrels of molasses were being discharged into the store of the Planters Molasses Company, Limited, was standing close to the curbstone of the side-walk and a skid was used down which the barrels were rolled. One end of the skid was •on the wagon, the other end on the side-walk. The length of the skid was eight or ten feet and the end of it which rested on the sidewalk was from two and a half to three feet from the door of the •store through which the barrels were to pass into the building. The heighth from the side-walk to the top of the wagon where the skid was placed was about a foot and a half. The skid placed thus formed an incline. One man only was in the wagon. He manipulated the barrels to the point where the skid rested on the float, adjusted them on the .skid, then loosened his hold and the barrels rolled down. The weight of the barrels was six hundred and fifty pounds. There can be no doubt that the momentum gained by the -heavy barrels in going down this incline was considerable. A sack or bag folded was placed at the inner end of the skid to break the fall or force of the barrel as it reached the paved side-walk. One •of defendants, on the stand, admitted the barrels would or may run four or five feet after reaching the lower end of the skid. This would carry them clear into the store, for the door of that building was less than three feet from the end of the skid. For a barrel to roll from the top of the skid to the sidewalk required, we are satisfied, but an instant. The man in the wagon who poised a barrel on the skid at its upper end and then sent it on its downward course was guilty of gross negligence in loosening his hold on it at the instant that a pedestrian was stepping opposite the lower end of the ■skid. That is exactly what the driver of this float did, and the barrel which he thus loosened ran down upon the plaintiff just as the latter was entering the narrow passage way left on the side-walk between the end of the skid and the door of the building. It was the duty of this driver as he poised the barrel preparatory to its downward flight to glance at the condition of things at the lower end of the skid and if he saw a passer-by about to enter the space between the skid and the door to hold the barrel until he had passed the danger line, or else call out to him to stand until the barrel had passed down and out of the way. He did neither of these things. He either did not glance down to see if the way was clear, or else he carelessly, with almost criminal negligence, loosened the barrel notwithstanding the dangerous proximity of plaintiff to the lower end of the skid. The-plaintiff could not have been over a step away from the narrow passage left on the sidewalk and still in motion toward it when the-barrel that injured him left the top of the skid. It was much more the duty and care of the driver of the wagon to take notice of plaintiff nearing the lower end of the skid and regulate bis action accordingly, than it was plaintiff’s duty and care to notice the driver in the wagon and regulate his movement or conduct by what the driver was doing. The plaintiff was on the public thoroughfare for foot passengers and had a right to the occupancy for the moment of that particular part of the side-walk superior to that of the barrel of molasses. He had a right to expect, even if he noticed the barrel poised on the skid at the wagon end of it, that the driver would recognize his superior right of way and of passage and hold the barrel until he had exercised it. Itwill not do to say that the plaintiff, seeing the skid and noticing the driver and the barrels, must stop and make inquiry as to the intentions of the driver with respect to sending the barrel down at that particular instant of time. The obligation rested decidedly on the driver to give warning to plaintiff, or else hold the barrel in his grasp an instant longer.

The plaintiff testified he did not see the barrel until it struck him, that no warning was given him, no hand was put upon him or signal made to him to stop. He says he wss noticing in front of him as he walked along and was exercising the ordinary care of a pedestrian. A witness for the plaintiff, who saw the accident, says he had just passed the end of the skid himself; no one was there preventing people from passing, nor stopping the barrels or impeding their force as they came down the skid; nor was any warning or notice given. He testified, too, that the colored man on the float shoved-the barrel on-the skid without regard to consequences.

A witness for the defence, employed by the defendant company, denies the driver shoved the barrel, and asserts that the barrel had left the hands of the driver at the time plaintiff attempted to pass. It is immaterial whether the barrel rolled down of its own momentum or its speed was accelerated by a shove at the upper end of the skid. Nor, in our view, is it of consequence that the barrel-had been started on its flight downward as plaintiff essayed to pass.. It should, we hold, have been held by the driver at the upper end of' the skid until the possibility of danger to plaintiff had passed, until the latter had been called to stop and had stopped, or had moved on beyond the danger point.

Another witness for the defence, also an employee of defendant company, says he put his hand on plaintiff to stop him as the barrel was coming d'own, and that plaintiff would not have been hurt had he stopped when he did this. He admits, however, that when he touched him the barrel was half way down the skid and plaintiff was right at the end of the skid, and it was too late to hold him out of harm’s way. As opposed to this plaintiff testifies that no one put his hand on him or tried to stop him, and John Everett, one of the defendants, who was present and in a few feet of the place where the accident occurred, stated on the stand that he knew of no effort made to stop plaintiff, and that he gave plaintiff no warning.

There was conflict of testimony as to the velocity with which the barrel moved down the incline. However this may be, results speak for themselves. It was moving with force enough to break plaintiff’s leg. To have done this its velocity must have been great enough to come down the skid in an instant of time — too swift to enable plaintiff to escape it when turned loose above just as he was stepping in front of the skid below. If the force of the barrel was sufficiently great to break plaintiff’s leg, it is improbable that he could have stopped it had he made an effort to do so as it approached him. On this point the witness Connors, sworn for the defence, says: “Just as the barrel left the driver’s hands I turned, and Mr. Mahan had thrown down his hands as if to prevent the barrel from hitting him.” Yet it did strike him and with force enough to break: his leg.

We find the case to be with the plaintiff and the judgment appealed from must be reversed.

John and Peter Everett alone are responsible, however. There is no case against the other defendant, the Planters’ Molasses Company, Limited.

The driver of the float whose negligence caused the accident was in the employment solely of the Everetts. He had no connection with the Molasses Company, and that corporation are not liable for his fault. While the molasses belonged to the company and was being hauled to their store, the hauling-was done under contract with the Everetts, who, as boss draymen, were independent contractors. A contractor is not liable for the negligent or improper execution of the work by the contractor. Woods on Master and Servant, p. 593; Farren, Tutor, vs. Sellers & Co., 39 La. An. 1011.

As- to the quantum of damages, we think one thousand dollars sufficient compensation for the injuries sustained by plaintiff.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from, in so far as the Planters’ Molasses Company, Limited, is concerned, be affirmed; but in so far as John and Peter Everett are concerned, that said judgment be annulled, avoided and reversed, and it is now ordered and decreed that plaintiff do have and recover of said John and Peter Everett, in solido, the sum of one thousand dollars with legal interest from this date, together with costs of both courts, except those incurred in making the Molasses Company, Limited, a party.defendant, which must be borne by the plaintiff.


author: Bbbaux, J.

text:
    No. 12,917.
    State of Louisiana ex rel. Toilet Supply Co., Ltd., vs. Hon. F. A. Monroe, Judge, and Robert J. Douglas.
    Thewx'itof sequestration which issued in the case covered property the value of which the judge of the District Court, after hearing evidence, fixed at less than two thousand dollars.
    All parties interested acquiesced in the value as fixed. An appeal will not lie to this eoux’t for want of jurisdiction from an order permitting the defendant to bond property when its value is less than two thousand dollars.
    A writ of certiorari issued in aid of the application for a writ of mandamus does not present other issues than those raised in the application for the mandamus.

    ^N APPLICATION for Writs of Mandamus and Certiorari.

      ■Robert J. Maloney for Relator.
    Respondent Judge per se.

      J. D. Kiernan for Respondent, Douglas.
    Submitted November 7, 1898.
    Opinion handed down November 21, 1898.
   The opinion of the court was delivered by

Bbbaux, J.

The relator brought suit claiming that the secretary and treasurer of the company had in his possession, in virtue of his office, all its property.

That its secretary and treasurer” circulated reports that the company was insolvent, and had gone out of business.

The relator also averred, that the secretary and treasurer ” was conducting relator’s business in the name of the “ Towel-Delivery Company,” a fictitious firm, of which its “ secretary and treasurer” was the only member, and using the property of the coucern for his individual account, and thereby causing it great and irreparable injury.

Relator, having made the usual averments for a writ of sequestration, obtained it, and had the property sequestered.

Relator prayed, also, for a writ of injunction enjoining and prohibiting its “ secretary and treasurer ” from injuring relator in its business, and from collecting the revenues of the company; and upon the prayer, the writ of injunction was issued.

The relator alleges that thereupon the civil sheriff took into his possession all its property — i. e., the property of the Toilet Supply •Company, Limited, found in the possession of its secretary and treasurer.

On the 29th of June, the defendant secretary and treasurer moved to bond the writ of sequestratiou. The court granted the motion in July, 1898; relator alleging that the property was worth more than two thousand dollars, moved for a suspensive appeal.

The court refused to grant him the appeal for which he applied. The relator alleged various grounds upon which he relies to sustain his appeal, and applied for writ of mandamus and eertiorari to compel the judge of the District Court to grant him a suspensive appeal.

The respondent judge avers, in answer to the rule nisi issued by this court, that the property sequestered consisted of toilet stands, towels and similar articles of property, in the hands of some hundreds of subscribers, who were to pay a small sum monthly for the use and for replenishing the supply; that at the time of the institution of the suit by the relator, the Toilet Supply Company, the business appeared to have been farmed out to the defendant “secretary and treasurer,” who, with the president of the company, and, it may be, a third person nominally, were the only persons interested.

That relator, who was plaintiff in the suit, by means of the writ of injunction and sequestration, issued ex parte, sought to deprive the defendant Douglas, “ secretary,” of his means of earning a livelihood, and to destroy the business itself.

It appears that the application of the defendant to bond was made within the legal delay, after the sheriff had made the seizures ordered and the court had heard evidence enabling it to fix amount of the bond. It was bonded.

Further, the court a qua says, that the question is one relating exclusively to a value in money, and that plaintiff, the president, Begg, can not sustain an injury not to be compensated in money.

Robert J. Douglas, secretary, made one of the respondents, set forth, that the value of the property sequestered is less than two. thousand dollars, and that this court is without jurisdiction.

The gravamen of relator’s complaint is, that the court a qua refused to grant it an order of appeal, authorizing him to take a suspensive appeal from the judgment of the court, which order permitted Robt. J. Douglas, defendant in the sequestration proceedings, to bond the property sequestered in the suit.

After hearing evidence, the District'Court fixed the value of all the property at fifteen hundred dollars.

The plaintiff in the suit, who is the relator here, did not enter any objection whatever of record to the value fixed.

On the contrary, some delay having arisen after the defendant’s motion to bond had been filed, in order that the court might fix the value of the property, plaintiff assumed that defendant had lost his right to bond, because of that delay, and he, thereupon, moved the court to permit him to bond.

In his application to bond, he alleged the amount at which the court had fixed the value of the property, and asked to be permitted to furnish a bond therefor 'without making any allegation regarding its insufficiency in amount.

We take it that all parties concerned considered a bond of fifteen hundred dollars to be enough to protect all of plaintiff’s and relator’s demands.

This court is without jurisdiction of questions relating to the writ of sequestration. It is manifest, that no suspensive appeal will lie to this court from an order permitting a, defendant in sequestration proceeding to bond when the whole property involved in the suit is of value less than two thousand dollars.

"With reference to the writ of injunction which was issued in the ease. The defendant had made no application to bond it, or to set the writ aside upon bond. No question arises in matter relating to the injunction.

So far as disclosed by the record, it remains in full force and effect before the District Court.

The relator, in the prayer, sets forth that a certified copy of all the proceedings in the case should be sent to the court, to the end that their validity may be ascertained.

We take it, that the prayer and allegation were made in aid of the application for a writ of mandamus, to compel the District Judge to grant a suspensive appeal. No other remedy is prayed for.

It is therefore ordered, adjudged and decreed that the application in this case for writs of mandamus and certiorari be dismissed for want of. jurisdiction; that the rule nisi which issued in the case be discharged and set aside, at relator’s costs.


author: Breaux. J.

text:
    No. 12,901.
    State of Louisiana vs. Dennis Hopkins.
    The only point presented on appeal related to evidence of a fact that did. not afford ground to reverse the verdict.
    ON APPEAL from the Seventh Judicial District Court for the Parish of Madison. Montgomery, J.

      M. J. Cunningham, Attorney General, and Wm. S. Holmes for Plaintiff, Appellee.

      Snyder & Spencer for Defendant, Appellant.
    Submitted on briefs November 12, 1898.
    Opinion handed down November 21, 1898.
   The opinion of the court was delivered by

Breaux. J.

Tee defendant was indicted for murder on the 25th day of January, 1898.

He was arraigned and pleaded not guilty on the 5th day of February following.

In July of 1898 he was tried and a verdict of guilty “without ■capital punishment ” was returned by the jury.

Only one bill of exceptions was taken during the trial, and it sets forth that the court was requested to charge that when a person is ■engaged in quarreling with another, and some one at a distance informed of the quarrel awaits for the persons ¡quarreling and voluntarily engages in the quarrel, this third person must be held to have provoked the quárrel, and not one or the other of the persons engaged in the quarrel.

The record also contains the following:

“ The prisoner, in open court, requested that he be sent to the ‘ State penitentiary ’ for safe keeping, which request was granted ' by the court, and the sheriff was ordered to convey him ‘ to the .State penitentiary at Baton Rouge.’ ”

There is a receipt of record showing that the defendant is in the penitentiary. The accused is not represented by counsel before this ■court.

We are not informed of the reason which influenced.the accused to seek safety in the penitentiary.

In view of the gravity of the case we gave consideration to the ruling of the trial judge as shown by the bill of exceptions before mentioned, and we do not dismiss the appeal.

On the Merits.

The refusal of the District Judge to instruct the injury as requested was proper in our view. The inscruction was not possible without assuming that the facts set forth in the requested charge had been proven on trial. It was a matter of fact, which did not involve any principle of law.

The case of defendant was not prejudiced by the refusal.

The bill of exceptions recites that the court instructed the jury that they were the exclusive judges of the evidence, and if they found from the evidence that the accused provoked the difficulty and “ slew the deceased he would not be entitled to use the plea of self-defence” to obtain an acquittal, but as to whether he “did provoke the difficulty ” or not, the “jury must determine from the-evidence.”

This charge correctly, as we take it, presented the law of the case. The sufficiency of the proof of facts stated was a question for the-jury to determine.

An expression of opinion by the court as to what had been proven-would have been an instruction regarding the facts of the case.

The issues before us do not justify us in setting aside the verdict and sentence.

The judgment is affirmed.


text:
    No. 12,833.
    Rosetta Gravel Paving and Improvement Company vs. City of New Orleans.
    Plaintiff’s witnesses sustained his claim, under the contract for services rendered.: during three months on Washington street. The report of one of defendant’s officers, and a certificate issued thereon, showed that all needful repairs had been made up to within a few days prior to the end of those three months.

      Held: That this claim was properly allowed by the District Court.
    Plaintiff failed to show full compliance with the contract for two of the months-claimed, and the preponderance of proof sustain'defendant’s claim of failure of plaintiff to comply with his contract as to these months.

      Held: That plaintiff’s claim for these months was properly rejected.
    Interest is due, from the time the'debt became due and exigible as against a .municipal corporation; if it have in its treasury the amount provided for its-payment.
    APPEAL from the Civil District Court for the Parish of Orleans.. Théard, J.

      Farrar, Jonas, Kruttsschitt & Gurley for Plaintiff and Appellee.

      Sam’l L. Gilmore, City Attorney, and W. B. Sommerville, Assistant City Attorney, for Defendant and Appellant.
    Submitted on briefs November 11, 1898.
    Opinion handed down November 21, 1898.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff claims two thousand five hundred dollars of defendant as having been earned by it under a contract, whereby it was to keep and maintain in good order Washington street, from Magazine to Carrollton avenue, for a term of five years, at the rate of five hundred dollars a month, to be paid by the defendant. All the payments have boen made except for the last five months — i. e., for April, May, June, July and August, 1896. The judge of the District Court gave judgment in favor of the company for the months of April, May and June, and rejected plaintiff’s demand for the months of July and August.

The defendant prosecutes this appeal from the judgment. The plaintiff in the court prayed for a judgment for the whole amount it claims as due.

There were 158 days during the five months for which payment is demanded.

Plaintiff claims that the following is sustained by the testimony of his witnesses:

269 days’ laker on the street at $1.60.................................................. $403 50

67 days of sprinkling at $2.40 ..................................................... 160 80

693 94-100 cubic yards of gravel at $2.50.......................................... |,284 85

Total..........................................................................................$1,949 15

(without taking into account the operation of a steam roller for thirteen days.)

And that during this period there were seventy rainy days on which sprinkling to allay the dust would have beeB useless.

There is, on the other hand, evidence of record on the part of defendant showing that at times there was not sufficient sprinkling of the street. Two witnesses testified that for two of the months, July and August, there was no sprinkling done at all.

With reference to the other months, April, May and June, in addition to plaintiff’s evidence, there is the testimony of the City Engineer, who, in compliance with the City Council, examined the street in May, also in- the early part of June, and found it in a poor condition.

In his report to the chairman of the committee, after his examin - ation, he states in what respect there was a failure on the part of plaintiff in executing the contract.

But later, in June, another officer of the public works department made an inspection and reported to the engineer that the street was in proper condition. Whereupon the engineer issued a certificate ■to the chairman of the finance committee certifying that the plaintiff had “ repaired Washington street from Magazine to Carrollton avenue” in accordance with, its contract dated June 5, 1898, for the maintenance of the same.

We gather from the testimony that the needful repairs had been made after the first inspection (but prior to the last inspection), just alluded to upon which certificate issued to plaintiff in order that it might collect amount due.

Taking and weighing together the reports and certificates of defendant’s officers and the evidence of plaintiff, we think they sustain as correct the judgment from which the appeal was taken.

In our view the testimony as relates to the two last months, would not sustain any change of the decree.

Two of defendant’s witnesses testify that sprinkling was entirely neglected during these two months, and that there was an absolute failure to comply with the contract. Others, not as positive in giving their testimony, yet have testified to partial failure in the work of keeping up the street.

Plaintiff’s report, taken from its own books, shows that there was no sprinkling done in August, and charges up the work of one man on the street for that month. In July there were twelve or thirteen days of sprinkling and the work of two men. Should we take this report alone, without considering other testimony, there would not have a full compliance with the contract. This failure, and the direct testimony of two witnesses of non-compliance, are sufficient, we think, in sustaining the position that the judgment should not be amended.

We note that the plaintiff claims to have expended more than the amount allowed by the judgment for the five months.

We have no reason to assert that there was less expended than alleged, and that the amount expended was not sufficient for June and preceding months, but the evidence does not give rise to the inference that the expenses should include the last two months as months for which they had been made.

There were due, we have reasons to infer, for months of April, May and June, and months preceding, and are not to be charged to July and August of 1896;

The defendant complains of the interest allowed, which was 5 percent. from each month as the respective amounts became due.

The defendant contends that as the contract does not call for interest it should not be allowed. It was admitted of record that the city-had made provision for the payment of the plaintiff under the contract. This ease does not fall within the grasp of Fernandez vs. City, 42 An., p. 1, in which there was no money in the treasury to-pay claim.

The amount was due and exigible at the end of each month.

All debts bear 5 per cent, interest from the time they become due, unless it is otherwise stipulated.

It is therefore ordered, adjudged and decreed that the judgment appealed from is affirmed at appellant’s costs.


text:
    12,796.
    The State vs. Charles Marshall
    The validity ve/xonot tile ordinance under -which the defendant was fined, gave rise to the issues involved.
    The ordinary use of property can not be interfered yvith by assuming that it is a nuisance per se.

    ON APPEAL from the Sixth Recorder’s Court of New Orleans, Arnanld, J.

      A. E. Blackmar, amicus curies.

      Denigre,% Blair & Denigre for Defendant Appellant.
    Argued and submitted June 13, 1898.
    Opinion handed down June 20, 1898.
    Rehearing refused (reasons assigned) December 5, 1898.
   The opinion of the court was delivered by

Breaux, J.

Defendant complains of an ordinance adopted by the city of New Orleans on the ground that it is unreasonable, arbitrary, oppressive and unconstitutional. It was adopted over the mayor’s veto. The ordinance denounces as a nuisance the parking of cars and trains on the neutral grounds of “ Elysian Field Avenue.” It seeks to make it unlawful fora “railroad company to permit its engines cars or trains of cars to remain standing upon any portion of the ground known as ‘ Elysian Field Avenue or the ‘ neutral ground’ between the levee and Miro street, except so far as may be done by trains in motion.” (Italics ours.)

The remaining section of the ordinance sets forth the penalty for its violation, which shall not exceed twenty-five dollars or imprisonment for more than thirty days, or both, “ each day that said engines, cars or trains of ears shall reman so standing constituting a separate offence.”

On the trial in the Recorder’s Court the defendant offered documentary evidence to prove that the so-called “ neutral ground” is the property of the Pontchartrain Railroad Company since more than sixty years.

The evidence consisted of a deed of sale signed by Bernard Marigny as vendor and the railroad company as vendee. Copies of documents were also offered to prove the right of the vendor as owner-previous to this sale.

This evidence was ruled out and excluded by the court. To the-ruling the defendant excepted, reserved his bill of exceptions and; annexed thereto certified copies of the evidence and made thempartof the bills of exceptions. But during the trial parol evidence of possession of this strip by the railroad company was heard. The-record does not show that plaintiff objected to its admissibility.

The evidence discloses that on the twenty-fourth day of February last four box cars remained several hours on the track of the Louisville & Nashville Railroad — i. e., on the so-called neutral ground of the Pontchartrain Railroad Company.

After the case had been submitted the accused was fined ten dollars by the recorder and in default of the payment of the fine to. imprisonment in the parish prison for the term of ten days.

From the sentence the accused prosecutes this appeal.

At the outset we desire to have it understood that our jurisdiction is limited on this appeal to a determination of the question of the -validity of the ordinance and of the constitutionalityjor legality of the fine Impose. We can only reiterate that which our decisions have repeatedly held, and that which the article of the Constitution clearly announces: the issue on appeal in cases such as the one before us for decision is restricted to the constitutionality or legality of the fine imposed.

In determining the issues before us, the fact (under the Constitution recently adopted “ the facts ”) making clear the illegality or unconstitutionality of the ordinance are revie wable. “ The law and •the fact” are before court, proving or disproving the illegality charged. The plaintiff contends as relates to the “fact” of ownership of the so-called “neutral ground” that the evidence is not properly before us, háving been excluded. Tt was not, as we read the record, all excluded. There is enough of record to prove that unquestionably the Pontchartrain Railroad Company, as relates to issues here, was the owner of the “ strip of land ” to which attention of the council was directed when the ordinance was adopted. No attempt was made to have the oral testimony excluded which was offered to prove its title and no offer was made to rebut the testimony showing possession and title. The message of the Mayor informing the council of his veto of the ordinance as illegal (a veto it appears, sent in, with the advice of the City Attorney) refers to the “ neutral ground” as the property of the railroad company. There was other evidence regarding its title admitted without objection. We feel justified in considering the ordinance as one applying to the owner of the property, the “ neutral ground ” to which it (the ordinance), it terms, refers.

We take up the ordinance under which the penalty was imposed.

In our judgment the parking or collecting two, three or more cars at a place on a railroad track is not necessarily a nuisance. Plaintiff proposes, under the terms of the ordinance, to prevent all parking within certain limits. Unless it is shown in what respect the parking is a nuisance, it is not permissible. to assume that it is a nuisance. The ordinance of a city can not transform into a nuisance that which is not injuriously discomforting to others. Tiedeman’s Limitations, 122a.

“It is true one can not lawfully use his property in such a manner as to injure another, but a particular use, which may or may not result in creating a nuisance according to circumstances, can not ■ be declared such in advance. The question when it mayor may not become a nuisance within some provision of law must be settled as one of fact and not of law.” Grossman vs. City of Oakland, 41 Pacific Reporter, 5, 6.

There is nothing of record giving rise to the inference that the parking of cars is, of itself, injurious to the public. To suppress parking altogether it would be necessary to make it appear in some way that it is a nuisance. For illustration: The city has the power to regulate the rate of speed railroad cars shall run through its limits, but it has not the power to adopt such regulations as to speed as would needlessly interfere with its business.

Upon the same principle it has the power to regulate the parking of ears, but it has no power to put a stop to it entirely on the hypothesis that it may become a nuisance.

The evidence shows that the parking of cars is a matter of necessity, particularly in transporting freight; that the property of the railroad would be rendered almost valueless if parking cars was entirely stopped. We do not for an instant imagine that it was ever intended by the legislator to permit municipal corporations to destroy a right on mere assumption, without the least showing that ■the act was in itself a nuisance.

In the ease before us there is affirmative evidence of record, proving that it is not a nuisance per se.

Furthermore, it appears that it was in contemplation of the Coun•cil, in adopting the ordinance, to make it unlawfui for the railroad company to permit its “ engines, cars or trains of cars to remain standing upon any portion of the ground ” designated in the ordinance. See prior quotation from the ordinance.

This prohibition is not, as we appreciate it, directed against the blocking of intersecting streets. It is conceded that all the intersecting streets and crossings are free enough, and that there is not any interference with them by the railroad company. There is an exception to the sweeping restraint of the ordinance, which we copy from the section: “ Except in so far as may be done by the train in motion.”

The exception or provision is far from being plain. It adds nothing to the meaning of the section. The enactment, as we take it? was Intended as a “move on” ordinance, applied to railroads. Well enough in itself if it were not that the .transportation of freight and the carrying of passengers require that they shall “ remain standing ” at one place a reasonable length of time.

■ We are compeiled to decline to give the sanction of this court to an ordinance so needlessly restraining in its character. If enforced as written it would operate as an interference with commerce and travel.

A road existing under legislative grant can not be Interfered with and any of its operations treated as a nuisance unless, upon examination, it appears that it is a nuisance. The action of the municipality declaring that an act is a nuisance may give rise to a prima facie, but not to a .conclusive, presumption of its being a nuisance. ' The excessive restraint the ordinance here seeks to impose strips it of even the prima facie force and effect ordinances usually have. The injury and annoyance growing out of nuisances can be suppressed only by legal ordinances.

We are informed that there is another suit (an injunction) pending between the same parties, in a court of another jurisdiction. It appears, in that case, special acts of alleged nuisance are averred-We see proper to state here that we have not felt called upon to-decide with reference to special acts of alleged nuisance.

We have limited eur examination and'study to the ordinance, to> determine whether it was illegal or legal. For reasons stated it can not be enforced. This conclusion disposes of the case.

It is therefore ordered, adjudged and decreed that the judgment appealed from is annulled, reversed and avoided; the ordinance upon which the judgment of the recorder was based is delared illegal and null, plaintiff’s demand is rejected and the action dismissed-

On Application nor. a Rehearing.

This court desires to have it well understood, that it does not decide that, as between the city of of New Orleans and any one else, who may claim an interest of any kind, that the city is not the owner of “Elysian Fields avenue;” or, that it is the owner. The question is left entirely open as if no controversy had ever arisen in which the matter was considered at all.

As a matter of fact, the defendant, in our judgment could show under the title claimed by the railroad he represents, the railroad’s right of possession, and its right to operate cars over Elysian Field’s avenue. The whole question related to the parking of cars on Flysian Field.

We decided that parking of cars was not of itself a nuisance.

Rehearing refused.


author: Breaux, J. Breaux, J.

text:
    No. 12,797.
    The State vs. William F. Owen.
    There are few uses of proporty that are nuisances per se.

    A use which is not necessarily a nuisance is not to be treated as a nuisance.
    A municipality is without power to suppress that which it may regulate..
    ON APPEAL from the Sixth Recorder’s Oourt of New Orleans,. Arnauld, J.

      A. E. Blachmar, amicus curias.

      Deéngre, Blair & Denegre, for Defendant, Appellant.
    Argued and submitted June 13, 1898.
    Opinion handed down June 20, 1898.
    Rehearing refused (reasons assigned) December 5, 1898.
   The opinion of the court was delivered by

Breaux, J.

An affidavit was made against the defendant charging him with having violated an ordinance of the council of the city <of New Orleans relative to parking cars on Elysian Fields avenue.

On the trial of the case before the Recorder’s Court it was shown that the roads, of which the defendant is superintendent (the Morgan’s Louisiana & Texas Railroad, and the Louisville & Nashville Company), exchange cars. The exchange is made on Elysian Fields •avenue, a strip or portion of ground owned by the Pontchartrain Railroad Company, a company intimately related in business with the Louisville & Nashville Railway Company. The grounds on which the exchanges are made are known as the “neutral grounds” on “Elysian Fields.”

Different from the “neutral grounds” on “Canal street,” these grounds, we are informed, are private property. It sufficiently appears of record for the purpose of this case that the title is in the Ponchartrain Railroad Company, and that these grounds are partly in the possession and use of the Louisville & Nashville Railroad •Company, with the written consent of the owner, the Pontchartrain Railroad Company.

It appears that without this interchange of cars, which is daily made on these “neutral grounds,” the business of these roads, would be considerably impeded.

The evidence also discloses that it is impossible to interchange cars without bringing them to a standstill.

We'gather from the evidence: (as relates to the practical working of the exchange), the railroad company that has a car to be hauled, some distance further than its terminus hauls it to the continuing road on the “neutral grounds” and places the car upon its (the continuing road) at this place, to be taken up and hauled to its 'place of destination.

To prevent the car from remaining a length of time on these grounds and the consequent alleged nuisance, the city of New Orleans, through its council, ordained that the parking of cars or the collection of cars on the “ neutral grounds ” of “ Elysian Fields ” is a nuisance, and that it is unlawful for any railroad company “ to permit it» engines, cars or trains of ears to remain standing” on these grounds ■“ except so far as may be done by trains in motion.”

The penalty provided by the ordinance was imposed upon the defendant for the alleged violation. From the sentence defendant appealed.

The ordinance assumed that the exchange of 'cars is a nuisance and therefore seeks to suppress it entirely. It may be that it might be enforced so as to extend to cases of nuisance. We are not dealing with the possibilities of the ordinance, but with the ordiuance as it is. Interpreting it as it reads, we do not think that it is legal. It treats as a nuisance per se an exchange which manifestly is not a nuisance per se.

The offence charged here is the delivery of cars and an exchange of cars.

There is no question here of. the improper carrying on the work of exchanging cars and the injury thereby occasioned.

The ordinance seeks to sfop the work. In our view the collecting of cars or stopping them on “Elysian Fields,” done in a fair and reasonable way, gives no ground of complaint.

Yet, the ordinance in question would absolutely prevent the stop even for a very short time, and render exchange of cars impossible.

The ordinary use of property can not be thus prevented.

For reasons assigned in State vs. Marshall, 60 An. —, the judgment is reversed.

It is therefore ordered, adjudged and decreed that the judgment appealed from is annulled, reversed and avoided; the ordinance is declared illegal and null. Plaintiff's demand is rejected and the action dismissed.

On Application pop a Rehearing.

Breaux, J.

For reasons assigned in refusing the application for a rehearing in case of the State vs. Marshall (this day handed down), the application for a rehearing in this case is refused.


author: Watkins, J.

text:
    No. 12,984.
    The State of Louisiana vs. Albert Tate.
    The proces ■verbal of the finding of a coroner’s jury is competent evidence to show the fact of a homicide having been committed, but the recitals of fact therein contained can not go to the jury. They are objectionable as hearsay testimony.
    A PPEAL from the Twentieth Judicial District Court for the Parish Cl of Ascension. Guión, J.

      M. J. Cunningham, Attorney General, and G. A. Gondran. District Attorney, for Plaintiff, Appellee.

      John Maries for Defendant, Appellant.
    Submitted on briefs December 10, 1898.
    Opinion handed down December 19, 1898.
   The opinion of the court was delivered by

Watkins, J.

The defendant prosecutes this appeal from a verdiet convicting him of the crime of murder, and a sentence to the extreme penalty of the law, relying upon a single bill of exceptions which presents the question of the admissibility of a proces verbal oj the coroner’s inquest for the purpose of establishing the fact of the death of the deceased.

The bill of exceptions relates that the State offered the- proces verbal of the finding oi the coroner’s jury for the purpose of proving the fact of the death of the deceased, whereupon counsel for the defendant objected to its introduction on the ground that it contained an assertion that deceased came to her death by means of the shot fired by the accused, and that same was inadmissible as hearsay evidence.

The trial judge assigns as his reasons for overruling the objection and admitting the evidence that he stated to the jury that the inquest proceedings served no other purpose than to establish the fact of the death of the person alleged to have been slain, and he instructed the jury that they should disregard all other statements that it might contain.

And he further states that, “in point of fact, however, the inquest was not read to the jury at any stage of the trial, and what it contained could not have influenced their verdict.”

We are of opinion that the proces verbal of the finding of a •coroner’s jury is competent evidence tending to establish the fact of a homicide, and that other recitals therein contained could not have possibly exercised any influence on che jury prejudicial to the accused, if same was neither exhibited to them nor read in their hearing.

A motion for new trial on the sole ground that the verdict is contrary to law and evidence presents merely a question of fact of which this court can take no cognizance.

Judgment affirmed.

Nici-iolls, C. J., -absent-.


text:
    No. 12,922.
    State of Louisiana vs. Meanee Bazile.
    On the trial of an accused upon a charge of 1-og stealing, testimony tending to snow that the hog had been killed by tbe accused and its carcass secreted, and that he subsequently sent another person to cut it in pieces and carry them to his house, is admissible because it indicates a felonious asportation of the property after the theft had been first begun, by the taking of the living hog and the concealment of its carcass after it had been killed.
    ON APPEAL from the Nineteenth Judicial District Court for the Parish of Iberia. Voorhies, J.

      M. J, Cunningham, Attorney General, and James Simon, District Attorney, for Plaintiff and Appellee.

      Weeks & Weeks and Walter J. Burke for Defendant and Appellant.
    Submitted on briefs November 12, 1898.
    Opinion handed down November 21, 1898.
   The opinion of the court was delivered by

Watkins, J.

The defendant prosecutes this appeal from a verdict convicting him of hog stealing, and a sentence to one year’s imprisonment in the penitentiary;

The first bill of exceptions relates to the competency and relevancy of the testimony of a State’s witness, the tendency of which was that the defendant had killed the hog during the day, and sent for the dead hody in the afternoon of that day; and that counsel for the defendant objected thereto, on the ground that he had been indicted for the larceny of a living and not a dead hog; not for the killing of a hog with intent to steal the meat. Consequently, the testimony did not respond to the charge of the indictment, and was consequently inadmissible.

The indictment charges, that the defendant “ one hog of the value-of eight dollars * * * did steal, take, and carry away,” etc.

The killing of the hog by defendant, during the day, was certainly an evidence of his intention to subsequently take and carry same-away; particularly when said act was coupled with the further fact that he concealed its body and covered it with grass.

But if these circumstances be regarded as doubtful or inconclusive-in any respect, the fact of his having afterward sent for the carcass of the hog and had it carried to his house and cut up into quarters would seem to place his felonious asportation beyond a doubt.

The object of this testimony doubtless was to show that the defendant had taken the property away and converted it to his own use.

In our opinion such testimony does not tend to show that-the defendant was guilty of the crime of killing a hog with-intent to steal the same. Had the testimony merely shown that-the defendant had killed the hog and nob taken it away, but left it concealed from view, the objection urged would have been more-forcible; bub it goes further, and shows the subsequent removal of the carcass to the defendant’s house, and that it had been cub into-quarters and hung up in his house preparatory to future use, and where it was subsequently identified.

• The trial judge assigned no reasons for admitting the testimony, but we think his ruling was clearly correct.

The same question was raised on the defendant’s motion for a new trial, and was for like reason correctly overruled.

The second bill of exceptions raises the question of error in the judge’s declination and refusal of defendant’s motion to have the minutes of the court corrected so as to show that he had assigned his reasons for his conviction in writing, and not orally, as therein recited — the defendant having waived a trial by jury and elected to be tried by the court.

It appears from the bill that the judge, for his own convenience, noted down on slips of paper memoranda applicable to the case, and that he simply adverted to them in summing up the case; he, therefore, declined to have the minutes opened and changed, because they were, in his opinion, correct as they stood.

We are of opinion that the preparation of such data for his own personal use in delivering his opinion was not the equivalent of assigning his reasons in writing; and that his refusal to so alter the minutes was not error.

But if it were, it is inconceivable that the defendant could have sustained any injury thereby.

The third bill of exceptions relates to the judge’s refusal to permit defendant’s counsel to have the clerk open a note of evidence on the trial of his motion for a new trial. As we understand the motion, it was exclusively based upon the ground that the judge had admitted illegal testimony, which supposed error had been dealt with during the progress of the trial, and had been-made the subject of a prior bill of exceptions; consequently it necessarily rested on the same foundation, and, puts at issue the question of the verdict being contrary to law and evidence, and we have repeatedly and uniformly held that such an issue is one of fact exclusively, of which this court possesses no jurisdiction.

On this hypothesis no useful purpose could have possibly been accomplished by granting the counsel’s request; and had it been granted, and the testimony taken and annexed to his bill, it could have received no consideration at our hands.

We have no hesitancy in approving the ruling of the judge.

Judgment affirmed.


text:
    No. 12,921.
    The State of Louisiana vs. Agricole Theriot.
    An oath lawfully taken is the essential thing to he charged in an indictment for perjury; and in case perjury is assigned on a non-judicial oath it is insufficient to maintain a prosecution if the person who administered the oath was not legally authorized to administer that particular oath.
    AN APPEAL from the Nineteenth Judicial District Court for the ^ Parish of Iberia. Voorhies, J.

      M. J. Cunningham, Attorney General, and James Simon, District Attorney, for Plaintiff and Appellant.

      .David Todd for Defendant and Appellee.
    Submitted on briefs November 12, 1898.
    Opinion handed down November 21, 1898.
   The opinion of the court was delivered by

Watkins, J.

The State is appellant from a judgment and decree of the trial judge sustaining the defendant’s motion to quash the indictment.

The indictment charges perjury, and the motion alleges that the indictment contains no averment which will support a conviction of perjury; and “that the oath alleged to have been falsely taken, appears by the very allegations in the indictment, not to have been made in any judicial proceedings; and (that) the oath set out in the indictment is one authorized by law, and not required to be made by any law or statute whatever; and is one the false taking of which violates no law, and on same no indictment for perjury can be predicated.”

We make the following extract from the brief of the Attorney General as a succinct statement of the case of the State, viz.:

“ The defendant in this case was indicted for the crime of wilful and corrupt perjury committed by making a false oath before the clerk of the Nineteenth Judicial District Court in and for the parish of Iberia, for the purpose of obtaining a marriage license. See indictment and oath.
“The accused filed a motion to quash the indictment, which was sustained, and it is from the ruling of the trial judge sustaining the motion that the State appeals.
“The sole and only questions here presented are, whether a false-oath made before the clerk of court in order to obtain a marriage license to marry a minor constitutes perjury; and whether the said: clerk has the power and authority to administer said oath when he-believes the applicant has not the consent of the parents and is-falsely representing matters. If he has the power to administer the-oath, is it not made pursuant to the laws of the State, and the false* oath therefore perjury?
“Then, if our position is correct, the motion to quash should have been'overruled.”

The trial judge in sustaining the motion to quash says:

“ The only question is, whether the clerk of court, under the law, had authority to administer the oath, the assigned basis of the perjury in this case. If he was not authorized to do so, then, the indictment can not be supported.
“Under Article 101, C. C., the only authority given to clerks in the matter of marriage licenses is to require of the intending husband a bond with surety in a sum proportioned to his means, with condition that there exists no legal impediment to the marriage. -vs. -, 15 An. 410; State vs. Dole & Ball, 20 An. 378.
“There is no doubt that to constitute the crime of perjury the oath must not only be a lawful oath, but it must be taken in due course .of justice and by a court or magistrate having competent jurisdiction.
“ Thus, in all cases when the law provides that an oath shall be administered, it is then administered in due course of justice. In a. case of this kind, nothing is requiredbut a bond, and the court is unable to see where the clerk of court derived his authority to administer-the oath which this perjury has assigned.” Flower vs. Swift, 8 N. S. 451; State vs. Wimberly, 4 So. Rep. 161; 8 Rob. 650.

In State vs. Dreifus, 38 An. 877, it was held that an “ oath lawfully taken is an essential to the indictment and consequent conviction of perjury;” aDd that “in case perjury is assigned on a nonjudicial oath, it is insufficient to maintain a conviction, if the person administering the oath was not legally authorized to administer that particular oath.” And such authority does not appear in this instance.

The ruling of the trial judge is correct.

Judgment affirmed.