author: Blanchard, J.

text:
    No. 13,807.
    Georgiana Knight et al. vs. Kaufman & Meyer et als.
    Syllabus.
    1. Under the Constitution of 1898 this court has jurisdiction, without regard to the value of the property, of all suits involving homestead exemptions.'
    2. The fact that title to property is taken in the wife’s name, and that it is paid for out of her personal earnings after marriage, does not take it out of the category of community property.
    3. The wife’s earnings are, like the husband's, assets of the community, there being no separation of property.
    4. Where the wife enjoins the sale of property standing in her name, she must show by indubitable proof that it was acquired by means of separate, paraphernal funds under her administration, and it is always better to have the act of conveyance so declare.
    5. It was not fatal misjoinder of parties plaintiff, nor inconsistency of pleading, nor the assertion of contradictory demands, for the wife and husband, in the same petition for injunction, to declare, first, that the property stand-. ing in the wife’s name is her separate, paraphernal property, and as such not liable to the seizure; second, in the alternative, that in the event it should be held the property is community in character, then it is exempted from the seizure under the operation of.the homestead law.
    APPEAL from the.Twelfth Judicial District, Parish of Vernon— Lee, J.

      Egan & Pegues for Plaintiffs, Appellees.

      Edward L. Wells for Defendants, Appellants.
   The opinion of the court was delivered by

Blanchard, J.

Under the Constitution of 1898 this court has jurisdiction, without regard to the value of the property, of all suits involving homestead exemptions.

This is such a suit.

Kaufman & Meyer are judgment creditors of William J. Knight, who is the husband of Georgiana Knight.

They issued execution and seized a lot of ground, with improvements, situated in the town of Orange, Louisiana.

Whereupon Georgiana Knight enjoined the, sale averring the property to be her separate, paraphernal property, having been acquired by purchase in her name “with her own separate, paraphernal money and earnings.”

William J. Knight, by appearance made in the same petition, set up, in the alternative, that in the event the court should be of the opinion the property seized is not the separate, paraphernal estate of his wife, and should hold the same to be property pertaining to the marital community of acquets and gains, the same is, nevertheless, exempt from the seizure because protected therefrom by the homestead exemption of the Constitution of 1898.

The court a qua did not find from the evidence that the property was the separate estate of the wife.

Neither do we. It should not have been claimed as her separate property.

The fact that the title was taken in the wife’s name, and that it was paid for out of her earnings for personal services rendered after marriage, did not take it out of the category of community property, there being no separation of property. This is elementary.

The wife’s earnings are, like the husband’s, assets of the community. Property acquired after marriage, whether in the name of the husband or wife, is presumed to be community property.

It follows that when 'title to real property acquired after marriage appears in the wife’s name, it is just as much subject to seizure at the suit of community creditors as though it stood in the name of the husband who is the head and master of the community.

And when the property so standing in the name of the wife is really her separate, paraphernal property, because purchased by her with her separate, paraphernal funds, and she enjoins its said on that ground, she must show by indubitable proof that it was so acquired by her with separate, paraphernal funds under her administration, and intended as an investment thereof, and it is always better to have the act of conveyance so declare.

Here, while the title was taken in the name of the wife, there is an utter absence of proof that it was acquired with paraphernal funds, or that she ever had any paraphernal funds to so invest.

The wife’s separate claim to the property being disallowed, it remains to be seen whether the property, as community properly, is exempted from the seizure by the operation of the homestead law, under the alternative pleading of the husband herein.

The court a qua decreed it was, and this appeal is prosecuted by defendants in injunction.

An exception of want of privity of interest and misjoinder of parties plaintiff, and another of inconsistent and contradictory demands, were, we think, properly overruled, under the authority of Babineau vs. Guilbeau, 52 La. Ann. 992.

The averments of this husband, setting out his homestead claim, are almost fatally meager. He barely does squeeze through on them. The objection leveled at the insufficiency of the statement of the case in the petition to admit proof of essential facts has very much force. The district judge, however, thought the evidence tendered should be received and we will not disturb his ruling, especially since it would result in non-suit and the additional expense to the litigants of a new suit.

The evidence found in the record shows that the property in question is the only property owned by the debtor; that his wife owns no property; that the claim of the judgment creditor originated after the adoption of the Constitution of 1898; that the debtor has a family dependent on him for support; that they live on this property; and that its value is only a few Hundred dollars.

This makes out his case.

Judgment affirmed.

Rehearing refused.


source: Caselaw Access Project

author: Monroe, J.

license: Public Domain

text:
    No. 13,502.
    Richard Thompson vs. W. C. Dotterer, Receiver of the New Orleans and Western Railroad Company.
    Syllabus.
    A receiver of a railway company which furnishes cars to another company, under a traffic arrangement, whereby the latter company is to operate them, is not liable for damages resulting from such operation over the tracks of the latter company.

      APPEAL form the Civil District Court, Parish of Orleans— Theard, J.

      Benjamin Bice Forman for Plaintiff, Appellee.

      Farrar, J-onas S KruUschniii for Defendant, Appellant.
   The opinion of the court was delivered by

Monroe, J.

Plaintiff was holding, by their heads, a pair of horses, which were standing on Basin street, in New Orleans, upon August 4th, 1899, when a steam engine, with cars attached, coming along Bienville street, turned the corner into Basin, and so frightened the horses, that the plaintiff, in the' effort to control them, was seriously injured. He brings this suit for the recovery of $2500, as the damages sustained, against William C. Dotterer, receiver of the New Orleans and Western Railway Company, alleging that the train which caused said damages was unlawfully and negligently operated by said receiver. The answer is a general denial. There was a verdict and judgment for the plaintiff, in the sum of $250, from which the defendant has appealed, and, to the appeal, the plaintiff has answered, praying an increase in the judgment.

The theory upon which the suit was brought and upon which it has been argued on behalf of the plaintiff, is, that the horses,' which the plaintiff was holding, were standing upon Basin street, at a point about forty feet from the comer of Bienville, and with their heads in the direction of the latter street, when the engine and cars came sharply around the comer from Bienville street, and were suddenly brought into such close proximity to the horses that the discharged steam went under them, and with the ringing of the bell, and other noises, frightened the horses, with the result as stated. A careful consideration of the testimony of the. two witnesses who undertook to establish these facts leaves us in considerable doubt concerning them. The plaintiff, himself, swears that he was standing with the horses, at the comer of Basin and Canal streets, which is two squares distant from Basin and Bienville, and we find nothing in his testimony which is irreconcilable with that statement. Upon the other hand, a witness named Hardy places the horses, of which he was the owner, and the plaintiff, where they are placed by the petition, so that there is a conflict upon that important point between the two witnesses who, alone, testify concerniug it. We need not, however, be detained by the consideration of that question. It is shown by affirmative and uncontradieted evidence that William C. Dotterer, receiver of the New Orleans and Western Eailway Company, was not operating the train which is said to have caused the accident, but that said train was operated by the New Orleans, Spanish Fort and Lake Eailroad Company, and that the tracks near which the accident occurred and over which said train was being operated at that time, were tracks claimed by and in the use of said New Orleans, Spanish Fort and Lake Eailroad Company. Whether that company was properly making use of the corporate and other franchises, is a question which does not properly come up in this case. As a matter of fact, it was acting as a corporation, and, in tjhat capacity, had made a traffic arrangement whereby it was operating cars, furnished by the New Orleans and Western Eailway Company, over tracks of which it, the Spanish Fort Company, claimed to be in possession as owner, and over which, it is alleged in the petition, the New Orleans and Western Eailway Company had no right to operate cars. Under these circumstances, we are of opinion that the verdict and judgment appealed from should be set aside and reversed, and that there should be judgment in favor of the defendant, rejecting the demand of the plaintiff, with costs in both courts. And it is so ordered.

Behearing refused.