text:
    No. 13,867.
    Richard H. Grant vs. W. P. Haynes and J. W. Freeman.
    Syllabus.
    1. In an action brought to recover for services rendered in having obtained subscription to the stock of a corporation, the issue was the amount earned for services vet non. If a public wrong was committed, not connected with the services rendered, it might give rise to condemnation at the bar of public opinion, which may seek, by legitimate influence, to condemn and suppress it, but in matter of business, it affords no ground to refuse to pay a creditor if he has earned the amount which he claims.

      2. An issue of fact is not sustained by the testimony that some time previous to the services rendered, wrongs against tbe social order had been committed. Rumors and reports, based, from all appearances, on the previous wrongs charged, i. e., wrongs of a date anterior to services claimed, and as to which several of the witnesses directly swore, do not make it appear with reasonable certainty that they were continuing wrongs.
    3. Witnesses testified that in the community in which he resided, plaintiff, as a member of the community, and while at home, was not deemed guilty as charged; others testified to the contrary. The jury found that the weight of the testimony was with the former.
    4. To that extent, the jury’s verdict is affirmed. It is not affirmed as to the amount of damages.
    APPEAL from tbe Thirteenth Judicial District, Parish of Eapides —Blackman, J.

      White & Thornton for Plaintiff, Appellee.

      Scarborough & Carver and Andrews & Ilackenjos for Defendant, Appellant.
   The opinion of the court was delivered by

Breaux, J.

Defamation of his character is plaintiff’s cause of action. Ten thousand dollars is the amount he claims for damages. From a verdict and judgment for plaintiff in the sum of five hundred dollars, the defendants appeal.

Plaintiff is a steamboat captain and pilot, and defendants are stockholders and promoters of the Boyce Cotton Seed Mill and Manufacturing Company.

Plaintiff brought suit against the defendants some time previous to the present suit, in which he alleged that he had entered into a contract with defendants to raise a subscription to the stock of the Boyce Cotton Seed Mill and Manufacturing Company, and to secure a site for the mill at or near Boyce, La., and that, as a consideration, defendants agreed to pay him five per cent, on the amount of all stock subscribed. ITe alleged in his petition in this first suit that it was agreed that he was to use his energy and influence to secure a site and raise subscriptions; and he also alleged in his petition that, through his efforts, an oil mill site was secured, and stock subscribed to thel amount of ten thousand dollars, and he claimed five hundred dollars for his services, that amount being five per cent, of the sum he claimed to have secured and the commission he averred the defendants had bound themselves to pay.

Defendants, in the first suit, answered plaintiff’s petition, and admitted that they had employed plaintiff to solicit subscriptions, but alleged that he failed to secure any subscriptions, and that those obtained were secured by themselves. They also charged that they had learned that plaintiff’s reputation was such that plaintiff could not secure subscriptions; that many persons refused to subscribe for the reason that plaintiff was connected with the proposal to construct the mill in question, which was afterwards, they aver, constructed by themselves (the defendants in this suit).

The plaintiff accepted a sum less than the amount of his claim, and discontinued the suit. In the present action, he sets forth that the answer filed in the suit which was discontinued, as just stated, and the interrogatories propounded to various witnesses, suggested and gave rise to the implication that the plaintiff’s conduct, as the father of a family, was not what it should have been. Plaintiff is a widower with eight children, four of whom reside with him.

Defendants, in their answer in the case now before us for decision, pleaded the privileged character of their allegations in their defense in the first suit filed. They also alleged that their defense and allegations to that end were based on probable cause, and with the advice of counsel; that, if true, the allegations were a good defense to the suit brought, and they substantially further avered that, should the court not sustain these grounds of defense, they honestly believed, from common report, the truth of their allegations. Defendants aver in their answer (inter alia) “that his. conduct with her (the asserted concubine) on the boat and since she left there has been such as to cause them to believe, as they did at the time, that he lived with her as his concubine.”

In the case here, a number of witnesses were examined, and the interrogatories and answers filed in the first suit were filed in evidence in the present suit. By his witnesses, plaintiff sought to prove the extent to which he had been wronged by defendants’ answer, and the issues raised by them in the first suit, anc| defendants directed their efforts chiefly to prove that the reports circulated in 'the community, and the poor success plaintiff had met with in securing subscriptions, justified their defense.

The charge brought, we think, was useless to the defense. If true, the defendants were none the less liable for the amount due for services actually rendered by plaintiff in securing subscriptions. A defense entirely foreign to the issues, does not fall within the rule protecting averments as privileged. Averments are not privileged, if it appears that they are entirely useless to the defense. • The charge made was not a disqualification to attend to the business of soliciting subscriptions, and to aid in establishing a factory in the community. The language used had a tendency to degrade, without, in the least, as we take it, assisting in establishing a defense. While it is true that the greatest latitude should be allowed in judicial proceedings in order to enable the parties to bring before the court all pertinent issues, or issues which parties may deem pertinent, yet there must be some limit to this wide range.

We have reviewed our decisions on the subject, and have not found that they (while they recognize every right which is needful to the full presentation of the issues) have gone to the extent of laying down the rule that an averment which has the effect of holding up one of the parties to public odium, is to be sustained and protected, as privileged, although not called for by the character of the issues. The most recent views of this court upon this subject were expressed in Wimbish vs. Hamilton, 47 Ann. 246. In that case the court said: “The allegations were pertinent to the issue presented.” Here, there is nothing of the sort. “ The employe was seeking to recover from 'his employer an amount he averred was due. The charge was an independent one, not connected in any manner with the service he was expected to render. The lack of influence of one who has undertaken to do a certain thing, in which his influence may be of some moment, would not be a cause preventing him from recovering for what he has done. We are'justified in concluding that the amount due for his services is all the court would have allowed him. To determine that issue, the question of personal conduct in matter not connected with the service, if true, however to be regretted and reprehended, is not an issue to be considered.

We pass to the other grounds of defense in the casd before us for decision — want of malice, probable cause, and the truth of the averments, contained in the answer filed in the first suit. We take it that absence of malice is not a complete defense against a demand for damages by one who uselessly charges another with having failed in a duty, or with having transgressed the law in a manner in which he, as a defendant in a suit, can not be held to have been particularly concerned. Although the averments may not have been made malo animo, they are not to be dismissed from all consideration because of that fact.

With reference to probable cause, we have not discovered wherein it was in its nature a probable cause, for we think it was made without any cause whatever. The truth of the averments, vel non, made in the first suit, present the serious and most important issue of the case.

It is true that defendants heard, from credible persons o:' the community, words condemning plaintiff for an asserted intimacy with his servant or housekeeper at his home, at which his children reside. The particulars of the intimacy at plaintiff’s home are not given, and the testimony does not disclose acts) leading to unavoidable inferences of improper intimacy. At a previous time, while away at some distance, commanding and piloting 'a steamboat, this servant was a chambermaid on the boat. Witnesses testified to facts which sustain the allegations made in the first suit. It must be borne in mind that this was sometime previous to defendants’ employment of plaintiff as a solicitor, and while the defendant was away from home. In reading decisions upon the subject, we found the following in point, which we think expresses a correct view: “A woman who is at the time chaste, virtuous, and exemplary, although she may at some previous time have had illicit intercourse with a man, is an innocent woman within N. C. Code, Sec. 1113, which provides that ‘if any person shall attempt, in a wanton manner, to destroy the reputation of an innocent woman by words, written or spoken, which' amount to a charge of incontinency, every person so offending shall be guilty of a misdemeanor.’ ” State vs. Grigg, 104 N. C. 882; 11 S. E. 684.

Beyond the fact that this woman is plaintiff’s housekeeper; that she is a quadroon or octoroon; that her conduct was not reputable before she came to Boyce; and that rumor charges improper relations, the record does not reveal any particular fact showing illicit intimacy.

In bringing this decision to a close, we will state that the advice of counsel is available as a mitigating circumstance, and to that fact we have given due weight. Besides, w'e do not think that this is a case for allowing an unreasonable sum in damages.

It is therefore ordered, adjudged, and decreed that the amount of the judgment be and the same is hereby reduced to one hundred dollars ($100), and, as reduced, it is affirmed.,

Blanchard, J., dissents.

Rehearing refused.


source: Caselaw Access Project

author: Blanchard, J.

license: Public Domain

text:
    No. 13,837.
    State of Louisiana ex rel. Mrs. W. C. Heintz, Wife, Etc., vs. The Judges of the Fourth Circuit Court of Appeals for the Parish of St. Tammany.
    Syllabus.
    Where two persons are sued jointly in a petitory action and one of the co-defendants, in her answer, alleges that that part of the property in her possession was acquired by purchase from the co-defendant, on whom she calls to defend her title and possession and against whom she asks judgment in warranty in case of her eviction, and defendants being cast the co-defendant and warrantor alone appealing, this appeal is considered to have brought up the whole case and the judgment of the appellate court, in affirmance of the judgment of the trial court, is held to have finally disposed of the case as to all parties, and the other defendant cannot afterwards appeal from the same judgment.

      p PPLICATION for Writs of Mandamus and Oertioran.

      ■ Henry L.' Garland, Jr., for Relatrix.
    Respondent Judges pro se.

      (Benjamin Moore Miller and Benjamin Ory of Counsel).
   The opinion of the court was delivered by

Blanchard, J.

Relatrix invokes the writ of mandamus to compel the respondent judges to entertain jurisdiction of an appeal which she has taken to their court in the cause entitled Emmet T. Moody et at. vs. Zachariah Strain et als.

The writ of certiorari is asked in aid of the application for mandamus —to bring up the record of the original suit, to the end that the court may be in possession of the necessary information to pass intelligently upon the questions presented.

The record has been brought up.

It appears that Emmet T. Moody and Louis J. ITeintz, alleging themselves to be owners of a certain lot of ground, brought suit' in the District Court of St. Tammany Parish, against Zachariah' Strain and Mrs. W.. O. ITeintz (the relatrix) and prayed judgment awarding them the ownership and possession thereof.

Strain and Mrs. ITeintz filed separate answers. The former asserted ownership in himself of certain parcels of ground described as lots Nos. 163, 164, 165, 166, 167 and 168, and prayed rejection of plaintiff’s demand.

Mrs. ITeintz, in her answer, admitted she was in possession of a portion of the land described in plaintiff’s petition, viz: — lots 167 and 168, but averred her ownership of the same by purchase from Zachariah Strain (her co-defendant). She represented her title to be good and sufficient, but that should it prove not to be, then she was entitled to recover of Zachariah Strain, her vendor, the purchase price of the property, and that said Strain should be called in warranty to defend her title and possession. She prayed rejection of plaintiff’s demand, and, further, that if any judgment should be rendered against her “that like judgment be rendered in her favor and against Zachariah Strain as in ease of warranty.”

The parties litigant agreed on two surveyors, who are named, and asked the trial judge to commission them (which he did) to make a survey of the land described in the deeds under which the plaintiffs claimed title, and of that described in the deeds under which the defendants claimed title — the object being to establish the identity vel non of the land described in the deeds under which the plaintiffs claimed, with that occupied by defendants.

The survey was made and procos verbal thereof returned. Its conclusion was that “defendants occupied a tract of land 180 feet by 500 feet belonging to plaintiffs.”

Judgment following in favor of the plaintiffs “and against the defendants” decreeing the former to be the owners of 35.51 acres (describing same) “and that they have and recover possession thereof from the defendants.”

This judgment, further, for some reason not given, did not pass definitely upon the question of warranty raised, but reserved to Mrs. Heintz (relatrix) the right to proceed against the defendant Zachariah Strain under the warranty in the deed from him to her.

From this judgment, immediately following its rendition, counsel for Strain, in open court by motion, took a suspensive and devolutive appeal to the court of respondent judges.

The! Appellate Court, in due course, handed down an opinion and decree affirming the judgment.

Some eight or nine months after the decision of the cause in the District Court and some seven months after its decision in the Court of Appeals, Mrs. Heintz (relatrix) applied by petition to the District Court for a devolutive appeal from the judgment of that tribunal in the case, returnable to the court of respondent judges.

An order of appeal was granted and the cause was filed a second time in that court.

No citation of appeal to any one was asked in the petition for appeal, and the order allowing the appeal did not direct citation to issue to any one.

It seems, however, that counsel for Mrs. Heintz, by letter to the Clerk of the District Court, directed that official to issue citation of appeal to the plaintiffs in the ease, Emmet T. Moody and Louis J, Heintz. He did not direct him to issue citation of appeal to Zaehariah Strain, her co-defendant.

Moody and Louis Jj Heintz, by counsel, appeared in the Court of Appeals and moved to dismiss the appeal upon the ground, substantially, that a second appeal cannot be allowed from a judgment which had once been appealed in its entirety and disposed of in all particulars and as to all its legal effects and bearings.

They, too, asked its dismissal upon the further ground that Zaehariah Strain, co-defendant of the appellant who had been called in warranty by the answer of the appellant, was a necessary party to the appeal and he had not been cited as such.

The Court of Appeals sustained this motion and dismissed the appeal.

Then followed this application for' mandamus to compel the reinstatement of the ease on the docket and its determination on the merits by the appellate court.

Huling■ — Our conclusion is the mandamus will not lie.

The relatrix, in her answer in the District Court, claimed to own lots of ground 167 and 168 by purchase from Zaehariah Strain. He was her co-defendant in the same cause, wherein he had appeared and filed answer. She averred him to be her warrantor, called on him as such in her answer to defend her title and possession, and asked judgment against him in warranty in case of her eviction.

This was in law a demand in warranty. C. P. 382.

She cannot now take the position that no call in warranty was issued against Strain, and that the issue of warranty was not pressed.

' He was a party defendant in the cause, had appeared therein and was before the court for any judgment that might be’responsive to the issues raised.

He defended the suit in his own right and behalf, and having been called on by his co-defendant and warrantee in her answer to defend it in her behalf — he being the author of her title — we must presume he did so, and that when he took the appeal in the case, it was prosecuted on her behalf as well as his own.

Accordingly, she is bound by the judgment rendered on that appeal and the ease is concluded as to her as well as to him.

The judgment of the District Court was “against the defendants.” She suffered her co-defendant, who was the warrantor of her title and whom she had called on to defend it, to take the appeal alone, and evidently placed her reliance on his appeal as sufficient for both.

We think all the issues involved were, under the circumstances, car-pied up by that appeal, and when Strain was cast on the appeal he lost for her as well as for himself.

Connery vs. Water Works Co., 42 La. Ann. 441; Vincent vs. Phillips, Tutrix, 48 La. Ann. 351.

She has had her “day in court;” she cannot now demand to reopen the ease-by a second appeal.

It is, therefore, ordered that the rule nisi which issued herein be discharged and that the peremptory writ of mandamus be denied at the cost of the relatrix.


author: Breaux, J.

text:
    No. 13,903.
    State ex rel. Clara J. Millaudon et als. vs. Hon. Walter B. Sommerville, Judge.
    Syllabus.
    The relators’ petition for a mandamus and ithe relief sought had been secured before the application for mandamus was presented. After the rule nisi had been issued, the rule to tax costs was tried and the amount fixed.

      The right, reserved by the judgment fixing the amount of costs does not fall within the grasp of a writ of mandamus.

    APPLIOATION for Writs of Certiorari and Mandamus.

      Kernan & Qowland for Eelators.
    Eespondent Judge, pro se.

      (Arthur B. Leopold,, of Counsel).
   The opinion of the court was delivered by

Breaux, J.

The complaint is that the respondent ordered the indefinite continuance of a rule the relator filed to have the amount of costs determined in a suit before his court.

The facts are that in a suit in which the relators are.plaintiffs and Peter Gallagher is the defendant, the latter was condemned to pay the costs; The relators applied by rule to compel the defendant to show cause why the costs should not be taxed. When the rule was called for trial, relators aver that, on the suggestion of Gallagher’s attorney, that there was an injunction suit pending against the execution of the decree of the court, defendant, in the suit in question, asked for a continuance of the rule.

The relators, it appears, objected to the indefinite continuance, which the respondent, notwithstanding, granted. Eelators urge that, by this continuance, they were denied a remedial process to which they were entitled;. that there was nothing in the injunction suit to prevent them from having the amount of their costs ascertained on0a rule to tax costs.

In his answer to the rule nisi issued by this court, the respondent-judge sets forth that one day later than the day the rule to tax costs was filed, Gallagher, defendant in the suit in question, filed a petition for an injunction against the execution of the judgment which had been pronounced, and that he substantially admitted that he owed the costs not charged on the clerk’s and sheriff’s fee docket incurred by relators. The judge adds that on the application of petitioner for an injunction, considering that in the interest of justice no loss could result to relators, he continued the rule indefinitely, to be taken up on the same day on which the trial for the injunction might be heard and determined; that inasmuch as plaintiff in injunction admitted the costs by the plea of compensation, his action could not work any injury or a denial of justice; that the admission of the total costs — $89.80—by plaintiff in' injunction, really disposed of the rule to tax costs and as the execution of the judgment has been enjoined, relators have no cause for complaint.

But it appears, in addition, that, after the petition for mandamus had been filed and the rule nisi issued on this application, the defendant, Gallagher, in the suit in question, by injunction, of his own accord, appeared in the District Court and filed his return to relator’s rule in the suit of Millaudon vs. Gallagher, and especially admitted the amount of coste claimed in the rule to tax costs as well as all other costs appearing on the clerk’s and sheriff’s fee docket, even though not claimed in the rule. This admission was considered by the respondent judge and the rule of the relators was made absolute, without prejudice to plaintiff’s injunction.

In our view the issues brought up on the rule filed in the District Court to tax costs are passed upon and disposed of to the extent that, it was possible to dispose of them in the situation in which they were when decision was rendered on the rule. The relators here asked for mandamus and certiorari to the end of compelling the respondent to try and decide the rule to tax costs. The respondent has decided the rule. This was all for which the relator made application, and all that he had a .right to expect under the law. A writ of mandamus will lie to, and require cognizance to be taken of, an issue, but it will not seek to control a judge in deciding the issue. The rights of relators are, as we understand them, to be considered and passed upon in the injunction suit to the extent that they have been reserved. The decree rendered on the rule and the reservation of the rights as made, were within the discretion of the district judge.

For these reasons, the rule nisi, which was issued on this application, is recalled and discharged and relators’ demand is rejected at their costs.

Provosty, J., takes no part, this case having been submitted prior to his taking his seat on this bench.


author: Nicholls, O. J.

text:
    No. 13,913.
    State of Louisiana ex rel Anthony N. Muller, District Attorney. vs. T Don Foster, Judge Nineteeth Judicial District.
    Act No. 48 of 1900 abolished the justice of the peace court in the city of New Iberia, and established instead thereof “the City Court of the City of New Iberia,” and conferred upon the latter criminal jurisdiction of offenses committed in said city and not punishable by imprisonment at hard labor under the laws of the State. This grant of power was not intended to operate, nor did it operate a withdrawal from the judicial district court, for Iberia parish of its existing constitutional jurisdiction to try the same cases.
    APPLIOATION for writ of mandamus.

    Eelator pro se.

    Eespondent Judge pro se.

   Statement op the Case.

The opinion of the court was delivered by

Nicholls, O. J.

The plaintiff in his petition, applying for a writ of mandamus alleged that the defendant, Hon. T. Don Foster, was presiding judge of the Nineteenth Judicial' District, and had under the Articles 109 and 117 of the Constitution of the State of Louisiana “unlimited and exclusive jurisdiction in all criminal cases,” and “had authortiy to try at any time all misdemeanors.”

That said jurisdiction was of right vested in him by the articles of the Constitution above referred to, and that no discretion as to acceptance or waiver of said jurisdiction was left to him, and that when such cases, whether by information or presentment, were brought before him under the Constitution, he was bound to take cognizance of the same (namely, of all trials of misdemeanors) and try to decide same at any time.

That relator was elected and qualified and was acting District Attorney in and for the said Nineteenth Judicial District. That while acting in such capacity, on the 13th day of February, A. D., 1901, he filed, with the consent of the court first had and obtained, information in the Nineteenth Judicial District Court, then in session in and for the Parish of Iberia, against Ed. Nereaux, M. F. Smith, Ulger Mestayer, Silvador LeBlanc, Albert W. Ribbeck and Ralph Landry for “having and permitting a slot machine, it which money is gambled for money in return in his premises,” which informaton was filed under and in conformity of Act 57 of the General Assembly of the State of Louisiana of 1898.

That each and every one of the said parties were under a bench warrant, issued by the order of the said lion. T. Don Foster, presiding judge of the Ninetenth Judicial District Court, promptly arrested and brought to the bar of the court. Upon each and every one of them being arraigned under such charge above referred to, they filed several pleas, among which was the following plea to the jurisdiction of the said Nineteenth Judicial District Court, viz: “State of Louisiana vs. Ed. Nereaux, No. 1787. Now comes the defendant in the above numbered and entitled information, and especially pleads and shows to the court that this Honorable Court is without jurisdiction or competency to try this defendant under said information, or for the offense or crime charged against him therein. Wherefore, he prays that he be hence dismissed without day and without cost.” ,

That there were several other exceptions filed by said defendants, but upon the trial of the exceptions to the jurisdiction of the court, the judge presiding, from the bench, announced to the attorneys that he did not wish to hear arguments upon any exceptions other than that to the jurisdiction of his court, and consequently the said presiding judge only passed upon the exception to the jurisdiction of his court.

That for the purpose of the exception mentioned all of the said cases were consolidated and the trial of the State vs. Ed. Nereaux, No. 1797, was to stand as being a definitive trial of the case against each of the mentioned defendants above named.

That upon the trial of said exceptions to the jurisdiction of his court, and after argument of counsel, the presiding judge, T. Don Foster, sustained said exception to the jurisdiction of his court, and quashed the several informations and dismissed and discharged the several defendants above mentioned and named, for the reason he claimed that the Articles of the Constitution 96 and 109, and the Act 48 of 1900, divested him of all jurisdiction to try misdemeanors committed within the Sixth Ward of the Parish of Iberia, and he positively refused and refuses to try said parties for said misdemeanors as it was his duty to do under the Constitution, all to the great injury and expense of petitioner, as well as of relator, and in violation of the right of the State through petioner, as District Attorney, to have parties charged with misdemeanors tried according to law by the District Judge above mentioned.

That the refusal of the judge to try said eases worked an irreparable injury to petitioner and relator, as there was no right of appeal in such cases, and the action of the judge amounted to a denial of justice.

Petitioner prayed that a writ of mandamus issue from your Honorable Court directed to Hon. T. Don Foster, presiding judge of the Nineteenth Judicial District Court, in and for the Parish of Iberia, directing and commanding him to try and decide the several cases of the State of Louisiana vs. Ed. Nereaux, No. 1797; State of Louisiana vs. M. F. Smith, No. 1793; State of Louisiana vs. Ulger Mestayer, No. 1796; State of Louisiana vs. Albert W. Ribbeck, No. 1792; State cf Louisiana vs. Silvador LeBlanc, No. 1794; State of Louisiana vs. Ralph Landry, No. 1794, all charged with a misdemeanor, namely “the having and permitting a slot machine, in which money is gambled for money in return in his premises,” in violation of Act 57 of the Acts of the General Assembly of the State of Louisiana of 1898.

To the alternative writ of mandamus and order sued out, the respondent judge made return.

That in the matters and eases set forth in relator’s petition he did sustain the exception to the jurisdiction to respondent’s court, for the folowing reasons, to-wit:

1. Article 109 of the Constitution provides: “They (District Courts) shall have unlimited and exclusive original jurisdiction in all criminal cases, except such as may he vested in other courts authorised hy this Constitution.”

2. Article 96 of the Constitution provides: “The General Assembly shall have the power to abolish justice of the peace courts in wards containing cities of more than five thousand inhabitants, and to create in their stead courts with such civil jurisdiction as is now vested in justices of the peace, and with "criminal jursdiction which shall not extend beyond the trial of offenses not punishable by imprisonment at hard labor under the laws of this State, and of violation of municipal and parochial ordinances, and the holding of preliminary examinations in cases not capital.”

3. By Act 48 of 1900, the General Assembly abolished the offices of justice of the peace and constable in and for the Sixth Ward for the Parish of Iberia, containing the Oity of New Iberia, a city of more than five thousand inhabitants, and establishing instead thereof the City Court of the Oity of New Iberia, to be composed of a judge and a marshal, to be elected in 1900 or appointed by the Governor in the event of the previous resignations of the incumbents of the offices of justice of the peace and constable. Said act provides in Section 3: “That said City Court shall have such civil jurisdiction as is now vested in justices of the peace, and criminal jurisdiction of offenses committed in said ward and not punishable by imprisonment at hard labor under the laws of this State, and exclusively of violations of the ordinances of the City of New Iberia and of the ordinances 'of the Police Jury of the Parish of Iberia within the limits of said ward, with powers to arrest, examine, commit and discharge in all cas< s not capital. Persons sentenced to a fine or imprisonment'by said City Court shall be entitled to an appeal to the District Court of the parish, upon giving security for fine and costs of court, and in such cases trial shall be de novo and without juries.”

4. The offense charged in the informations recited in relator’s petition is denounced by Section 2 of Act 57 of 1898, as follows: “That any owner, lessee, tenant or proprietor of any premises or building, who shall have or permit in or about same or connected therewith, any slot machine operated in, violation of Section 1 of this act, shall be, upon conviction thereof, fined not less than twenty-five dollars or more than two hundred dollars, or be imprisoned for not less than thirty days, nor more than ninety days, or both, at the discretion of the court.”

5. Upon the trial of the plea to the jurisdiction it was admitted that the offenses charged were committed, if at all, in the Sixth Ward, Parish of Iberia.

G. The court took judicial cognizance of the fact, that the City Court of the City of Iberia had been erected and put into operation by the resignations of the justice of the peace and constable elected in April, 1900, and the appointment by the Governor of the State, of a judge and marshal of said court.

The offenses charged, not being punishable by imprisonment at hard labor, fell within the jurisdiction expressly conferred upon said City Court, by Section 3, of Act 48 of 1900, and tbe said City Court, being created under tbe express authority conferred upon the General Assembly by Article 96 of the Constitution, that jurisdiction was eliminated from the general jurisdiction of the District Courts by the exception contained in Article 109 of the Constitution, “except such as may be vested in other courts authorized by this Constitution.”

“It was plain to respondent that under these constitutional articles and acts of the General Assembly, the court over which he presides was without original jurisdiction to try parties for offenses committed in the Sixth .Ward of the Parish of Iberia and not punishable at hard labor. And this was the more apparent from the grant of appellate jurisdiction to his court from convictions in that class of cases by the City Court. The granting of original and appellate jurisdiction to the same court in the same class of criminal causes would be anomalous. Equally anomalous would be the granting of the right of appeal from the City Court to the District Court and the conferring upon both courts of concurrent original jurisdiction, as contended for. by the District Attorney, for the effect would be to enable the prosecuting officer, if so inclined, to deprive some of the right of appeal, by instituting the proceedings in the District Court, and according it to others for the same offenses, by instituting the proceedings in the City Court.' Eespondent was unable to accept such results as being contemplated by or resulting from the language of the Constitution and of the statutes.”

“A further reason in support of the construction adopted by respondent was found in the fact that the Constitution of 1898 imposed upon the District Judges, outside of Orleans, the additional duties and labors of presiding in courts of appeal away from the parishes of their own districts. And it was consistent that the Article 96 of the Constitution was designed to enable the General Assembly to Relieve of a portion of their labors in criminal matters, those district judges, whose districts contained cities of more than five thousand inhabitants, by establishing in such cities minor courts for • the original trial of minor offenses, with the right of appeal to the District Court,”'

“Eespondent .denies that any injury can result to the State or to the relator, or to any right of either; by holding that original jurisdiction in the cases in question is in the City Court and not in the District Court, for, it being unquestioned that the City Court has jurisdiction, it is open at all times, with a constantly present judge, for the prosecution and trial of such causes, and the State has always a competent court 'for the punishment of infractions of the Act 57 of 1899.

“For the foregoing reasons respondent respectfully submits, that the writ of mandamus herein prayed for should not be made peremptory, and that the alternative writ issued should be revoked and set aside.”

Opinion.

Py Article 109 of the Constitution the District Courts of the State have “unlimited and exclusive original jurisdiction in all criminal eases except such as may be vested in other courts authorized by the Constitution.”

In Article 90 of the Constitution it is declared that “no judicial powers except as committing magistrates in criminal cases shall be conferred on any officer other than those mentioned in this title, except such as may be necessary in towns and cities, provided the General Assembly shall1 have the power to abolish justice of the peace courts in wards containing cities of more than five thousand inhabitants and to create in their stead courts with such civil jurisdiction as is now vested in justices of the peace, and with criminal jurisdiction, which shall not extend beyond the trial of offenses not punishable at imprisonment at hard labor under the laws of the State and of violation of municipal and parochial ordinances, and the holding of preliminary examinations in cases not capital.”

Act 48 of 1900, on which respondent judge relies in support of his position, is an act entitled: “An act abolishing the offices of justice of the peace and cpnstable in Ward Six (0), Iberia Parish, and creating in their stead the City Court of the City of New Iberia.

By the first and second section of this act the offices of - justice of peace and constable were abolished and ordered to be superseded by a court to be known as the City Court of the City of New Iberia.

The third section of this act was as follows:

Be it further enacted, etc. That said City Court shall have such civil jurisdiction is as now vested in justice of the peace, and criminal jurisdiction of offenses committed in said ward and not punishable by imprisonment at hard labor under the laws of this State,'and exclusively of violations of the ordinances of the City of New Iberia, and of the ordinances of the Police Jury of the Parish of Iberia within the limits of the ward, with power to arrest, examine, commit and discharge in all cases not capital. Persons sentenced to a fine or imprisonment by said City Court shall be entitled to an appeal to the District Court of the parish, upon giving security for fine and costs of court, and in such eases trial shall be de novo and without juries.

It will be noticed that there is no attempt made by the Legislature to oust the jurisdiction by this act of the District Court of the Nineteenth Judicial District. It is claimed, however, that the passage of that act had that effect, ivso facto. It is claimed that it is irreconcilable that tv/o courts should have jurisdiction over the same subject matter with one of the courts having appeals over the judgments of the other. There have been frequent instances of this concurrence of jurisdiction with appellate jurisdiction by one of the two courts over the other.

Wells in his treatise on Jurisdiction, Chapter 19, Section 154, says:

“It is competent to the legislature to assign the adjudication of a particular class of subjects to a single court exclusively; or, otherwise, to allow several courts to exercise a special jurisdiction on the same branch of a general jurisdiction, and this may extend to justices of the peace and District Courts, (a). However, unless a concurrence is directly or indirectly provided for, it does not exist; as it does not come by implication merely. And so, when a statute upor a general subject specifies or creates a tribunal to determine the questions thereon arising, the jurisdiction so conferred is exclusive, in the absence of anything to express the contrary (b) in the statute itself, or elsewhere; although, if a statute gives a particular jurisdiction to a court, while another possesses such jurisdiction already, this does not. oust the former, but the two are concurrent, when the statute does not expresely take away the pre-existent authority.
“The Supreme Court of Florida in State ex rel. Buckhiett vs. Butt, Judge, 5 S. Rep., 597, held that “A mere grant of jurisdiction to one court to try a certain class of criminal offenses, is not a withdrawal from another court of an existing jurisdiction to try the same offenses. An act whose terms purport simply to grant to the Circuit Court jurisdiction of an offense which such act makes a misdemeanor, will not be held as having been intended to deny to the County Criminal Courts of record their constitutional jurisdiction of such offense, but should be construed as simply a grant of concurrent jurisdiction to the Circuit Court. Whether such grant of concurrent jurisdiction is constitutional, not involved nor decided.”

We adopt the above quoted views as sound. We think the only question presented to us in this controversy is the one which we have just decided.

For the reasons assigned, it is ordered, adjudged and decreed that the writ of mandamus prayed for by relator issue, directed to the Hon. T. Don Foster, presiding judge of the Nineteenth Judicial District Court in and for the Parish of Iberia, directing and commanding him to try and decide the several eases mentioned in relator’s petition.

Provosty, J. takes no part — this case having been submitted prior to his taking his seat on this bench.


text:
    No. 13,465.
    Succession of Michele Mascari.
    Syllabus.
    A creditor of the succession, after the account of its administration had been filed, took an appeal against the homologation by petition and citation out of court.
    The creditors whose claims had been correctly carried on the account were protected by the decree which is suflicietnly correct to protect their rights as creditors. After deducting their claims, the amount remaining for distribution was less than the lower limit of the Supreme Court’s jurisdiction. Moreover, the appealing creditors did not make the creditors who were parties to the judgment, parties to the appeal. In order to sustain an appeal, all parties to the judgment must be made parties to the appeal.
    APPEAL from the Twenty-Eighth Judicial District, Parish of Jefferson — Rost, J.

      Rufus E. Foster for Administratrix, Appellee.

      Alfred E. Billings for Absent Heirs and others, Appellees.

      James D. Beguin for Nicholos Lamantia, Appellant.
   The opinion of the court was delivered by

Breaux, J.

The attorney for absent heirs, who is also the attorney for Pauline Guezza, wife of Dominick Prisconeri, tutrix of her minor children, Joseph, Theresa, Kate and Frank Maseari, and as attorney of Marie Debello and of her husband, moved to dismiss the appeal on the following grounds:

1st — That tbs court is without jurisdiction ratione materiae.

2nd — That ali the parties in interest have not been made parties to the appeal. The administratrix joins in this motion to dismiss the appeal.

Michele Mascari died on the 14th of November, 1898. In December following, his succession was opened. His sister, Petrina Mascari, averred, in her petition to have the succession opened, her heirship and 'that of the children of Christine’ Mascari, deceased wife of Calogora Romanio, and the heirship of the children of Texedino Mascari, widow of Antonio Tobueno, residing in Italy, if still living, and lastly the children of the predeceased brother who died in New Orleans on the 27th of April, 1890, leaving five children, four of whom are minors.

In her petition for an administration, the administratrix averred that an administration was necessary. She prayed for an inventory, which was made in the Parish of Orleans on the 12th of January, 1899, by Frederick Diebel, notary, showing assets amounting to seven hundred and eleven dollars. A prior inventory had been made in the Parish of Jeiferson by John E. Tillotson, notary, showing property valued at eleven hundred and sixty-six dollars. 'Petrina Mascari qualified as administratrix.

In due time the property of the succession was sold. The administratrix filed a final account of her administration showing the gross assets to be $2902.14 and the liabilities $1303.93, leaving a balance of $1598.21 to be distributed among the heirs. The judgment appealed from was duly rendered. It was preceded by the advertisement and notice.

Whatever may be the rights of the appellant against the succession, the averments of his petition for an appeal do not question the validity of the claims of creditors carried on the final account. The evidence upon which the account was homologated, that is, the oath of the administratrix, was in the usual form, sustaining the correctness of each item of the account and this has been held sufficient. Succession of Rabasse, 50 Ann. 747.

Notice by advertisement had been given to the creditors and all concerned in the filing of the account for homologation. Appellant’s allegations for an appeal show that he was well aware that an account had been filed. He is not an unknown or overlooked creditor who claims to he entitled to a contribution from creditors whose claims have already been approved by judgment.

There is another ground of dismissal urged by the appellee still more fatal to the appeal.

The appeal was not taken in open court, but it was taken out of court after the adjournment of the court. The creditors whose claims have been approved by the judgment were not made parties to the appeal. Appellant did not seek to make them parties. The petition does not ask that the creditors be cited and the order of appeal is silent as relates to those creditors. No application is made to have the case remanded in order that they may be made parties. All parties to the record must be made parties to the appeal. Dewey vs. Sheriff, 21 Ann. 209. The want of proper parties is fatal to the appeal. Robert, Executor, vs. Moniot, 11 Ann. 409.

In accordance with the rule laid down in repeated decisions it only remains for us to dismiss the appeal.

Eor reasons assigned, the appeal is dismissed.

Rehearing refused.


text:
    No. 13,933.
    Mr. Anna Grangell, Wipe of John Grangell, vs. Joseph D. Taylor.
    Syllabus.
    Tlie Supreme Court is without jurisdiction ratione materiae of an appeal from the judgment of a District Court which perpetuates an injunction sued out by a judgment debtor to restrain the seizure of his notarial fees under garnishment proceedings when the fees attempted to be seized amount to two hundred and fifty dollars and the principal of the debt for which judgment was rendered in the case in which the garnishment issued was for two thousand dollars.
    APPEAL from the Civil District Court, Parish of Orleans — St. Paul, J.

      George W. Flynn for Jos. D. Taylor, Plaintiff in Injunction, Appellee.

      Gage, Baldwin & Crabites for Mrs. Grangell, Defendant in Injunction, Appellant.
   On Motion to Dismiss Appeal.

The opinion of the court was delivered by

Nicholls, O. J.

The defendant and appellee have moved to dismiss the appeal taken by the plaintiff herein on the ground that the Supreme Court is “without jurisdiction ratione materiae to hear, try and determine this case, as the amount involved in the original suit or in the judgment appealed from does not exceed the sum of two thousand dollars, exclusive of interest,” and refers the court, in support of the motion, to article 85 of the Constitution of 1898.

The case is before the court on the following:

“Agreed State op Facts.”

In the above matter counsel for Mrs. Anna Grangell, wife of John Grangell, and counsel for Joseph D. Taylor have agreed on the following statement of facts as those necessary to the final determination of the issues raised by the petition for injunction, to-wit:

First — That Mrs. Anna Grangell in this case has obtained against Joseph D. Taylor a judgment in the sum of two thousand dollars ($2,000.00), with interest and costs.

Second — ‘That Joseph D. Taylor is a notary public in and for the parish of Orleans, duly appointed by the Governor of Louisiana, commissioned and qualified.

Third — That Mrs. Grangell caused to be issued a writ of fiera facias and thereunder, under supplemental petition, in due form of law, sued out garnishment process against the succession of Frank Satimore, No. -, of the docket of the Civil District Court, the succession of Mrs. Mary Segar, No.-, of the docket of the Civil District Court, and of Mrs. Widow Ann Murphy, No.-, of the docket of the Civil District Court, and thereunder seized the fees allowed Joseph D. Taylor for services as notary thereunder, as follows:

The succession of Satimore, estimated at $100 00
The succession of Segar, $75 00
The succession of Murphy, estimated at $75 00

That thereupon the injunction suit herein was brought, and that thereto the exception of no cause of action was filed, and same being overruled by the court, the answer herein was filed, and the matter being submitted to the court on this statement of facts judgment was rendered in favor of Joseph D. Taylor, plaintiff in injunction, and against Mrs. Anna Grangell and husband, defendants in injunction, and from that judgment this appeal is prosecuted.

Appellant has filed no brief. We are not informed on what theory the appeal was taken. On the statement of facts submitted this- court is without jurisdiction. The appeal is dismissed.


author: Monroe, J.

text:
    No. 13,804.
    Clara Barber vs. Woodley Watson.
    Syllabus.
    1. One who occupies the position of widow in community and sole heir ab intestatOj has such an interest in the property of the community which had existed between her deceased husband and herself, as to entitle her, in default of the appointment of any one charged with that duty, to invoke the aid of the court for its preservation.
    2. And where, in such a case, having, in the capacity of widow and heir, instituted a suit and caused such property to be seized, the plaintiff is thereafter appointed administratrix and makes herself a party' to such suit in that capacity, there is no substitution of a new plaintiff, but, in so far as the succession is concerned, merely the substitution of a representative formally authorized for one whose authorization, though sufficient for the purpose, was informal.
    IN RE Woodley Watson, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, State of Louisiana.

      Andrew Augustus Qunby, for Woodley Watson, Defendant, Applicant.

      Madison & Madison, for Clara Barber, Plaintiff, Respondent.
   The opinion of the court was delivered by

Monroe, J.

We are asked to review a judgment of the Court of Appeal for the Second Circuit, based upon the following facts and pleadings, to-wit:

Thomas Barber died, intestate, in the parish of Morehouse, in July, 1899, leaving Clara Barber as his widow in community and sole heir; and, shortly thereafter, she was sent into possession of his estate by an ex parte judgment, upon her petition to that effect.

Thereafter, Woodley Watson applied for the administration of said estate, and his application having been denied, he appealed from the judgment, and he and Amerieus Watson also appealed, devolutively, from the judgment putting Clara Barber in possession. The two appeals w.ere heard in this court, and it was held that an administration should have been ordered, but that, as between Clara Barber and Woodley Watson, the former was entitled to such administration; and the judgment so rendered by this court became final in March, 1900. Pending the said appeals, however, Clara Barber, appearing in the capacity of widow in community and heir of Thomas Barber, filed a suit in the District Court claiming that the community which had existed between herself and her deceased husband was interested in a certain lot of cotton, which had been raised upon the share system, and, making the allegations otherwise required, had caused said cotton, amounting to about ten bales, to be seized under a writ of sequestration. To this proceeding, the defendant therein, Woodley Watson, filed an exception, to the effect that the plaintiff had not been legally recognized as the sole heir of Thomas Barber and was, therefore, without interest or capacity to prosecute the; suit. But, before any action had been taken upon said exception, the judgment hereinbefore referred to was rendered by this court. Clara Barber, thereupon, qualified as administratrix of the succession of Thomas Barber, and, in that capacity, made herself a party to the pending suit against Woodley Watson, and asked that judgment be rendered therein as prayed for in the original petif'on; and, Watson’s exception having been overruled, he answered to 1he merits and there was a trial and judgment for the plaintiff, maintaining the writ and declaring her to be entitled to four and a quarter bales of the cotton seized. From the judgment so rendered the appellant appealed to the Court of Appeal, where said judgment was affirmed, and it is the action last mentioned that we are asked to review.

The proposition of the learned counsel for the applicant is, that, the suit having been brought by Clara Barber as widow in community and heir, her subsequent appearance as administratrix was the substitution of a new party plaintiff for which there is no authority in law; and hence, that the judgment of the District Court should have been reversed and the suit dismissed.

We are unable to concur in this view. Clara Barber, whether as widow in community or as heir of Thomas Barber, and irrespective of any recognition which she may have received by the judgment of the District Court putting her in possession, had such an interest in the property of the community which had existed between her deceased husband and herself as entitled her, in default of the appointment of any one charged with that duty, to invoke the aid of the court for its preservation. And quoad her acts in that behalf, so long as they were merely administrative and conservatory, she may be said to have represented the succession and to have continued to represent it, subject, no doubt, to certain personal liability, until a representative, formally authorized by the court, appeared to take her place. That the case was somewhat urgent appears from the following statement, which we find in the opinion of the Court of Appeal, to-wit:

“On the merits, the defendant’s own testimony shows that there were “abundant grounds for the writ to issue, as he was using all diligence “to gin and sell the property, to pay his own debts with it, or pocket it.” Under these circumstances, we think that the subsequent appearance of Clara Barber, in her capacity of administratrix, was not the substitution of a new plaintiff, but rather the appearance of an original plaintiff, through a representative whose authority was formally confe cred, whereas the authority of the representative by whom the suit was brought had resulted from the necessity of the situation, and was informal.

We find no error in the judgment complained of. It is, therefore, ordered, adjudged and decreed that the preliminary order herein issued be avoided and annulled and that this application be denied at the cost of the applicant.

Rehearing refused.

Provosty, J., takes no part — this case having been submitted prior to his taking his seat on this bench.


text:
    No. 13,906.
    M. L. Swords, Sheriff and Tax Collector vs. G. R. Baillio.
    Syllabus.
    There is no conflict between Article 48 and the concluding paragraph of Article 229 of the Constitution of 1898. The latter merely gives the General Assembly authority to exempt municipalities from the payment of parish licenses when the licenses levied by such municipalities are equal in amount to those levied by police juries for parochial purposes; but in the case of towns of less than 2500 inhabitants this must be done by a general law applicable alike to all municipalities of that class, and not by a special law applicable alone to one municipality.

      APPEAL from the Sixteenth Judicial District, Parish of St. Landry —Lewis, J.

      William J. Sandoz for Plaintiff, Appellee.

      Kenneth Baillio for Defendant, Appellant.

      B. Lee Garland, District Attorney (E. B. DuBuisson, of Counsel), for the Parish of St. Landry, intervenor, Appellee.
   The opinion of the court was delivered by

Blanchard, J.

This is an action to enforce payment by defendant rf a parish license of $2,000 for conducting the business of retail liquor dealer for the year-1901, together with 2 per centum per month interest thereon, as penalty, from January 1, 1901, and 10 per centum on the amount to be collected as attorney’s fees.

The allegation is ma'de that this license was duly levied by the parish authorities, but that the defendant resisted the collection of the same on the ground that he was exempted therefrom by the terms of Act 141 of the acts of 1900.

The petition then charges that the act under which the exemption is claimed is unconstitutional because contravening the provisions of Art. 48 of the Constitution of 1898.

Defendant answered pleading the Act 141 of 1900 in bar of plaintiff’s recovery, affirming the same to be constitutionally valid, and, in any events denying plaintiff’s right to the penalty of 2 per cent, per month and the 10 per cent, claimed as attorney’s fees.

There was judgment below sustaining the plaintiff’s contention that the act of 1900, pleaded in bar of his recovery, is unconstitutional, and decreeing recovery against defendant as prayed for, except as \to the demand for 2 per cent, per month penalty, which was disallowed.

From this judgment defendant appeals.

In this court, plaintiff, by way of answer to the appeal, prays amendment of the judgment in so far as it denies recovery of the 2 per cent, per month penalty, and asks that the same be allowed.

Buling — Defendant does business as retail liquor dealer in the town of Washington.

The town has a population of 1,200 people and is duly incorporated.

The town authorities, by ordinance, levied for the year 1901 a license tax on retail liquor dealers doing business in the town, equal in amount to that levied by the police jury of the parish for the same business, in the same year, and this license, amounting to $2,000, so levied by the town of Washington, the defendant has paid.

The license of $2,000.00 levied by the police jury on the business he conducts he declined to pay.

This declination rests upon Act 141 of 1900, which is as follows:

“Be it enacted by the General Assembly of the State of Louisiana, That the Town of Washington, in the Parish of St. Landry, be exempted from the payment of parochial licenses, upon the municipal authorities imposing a license equal to that of the parish authorities.”

And for constitutional authority for the enactment by the legislature of this statute, the concluding paragraph of Art. 229 of the Constitution of 1898 is pointed to.

That paragraph reads:

“The General Assembly shall have authority to provide that municipalities levying license taxes, equal in amount to those levied by Police Juries for parochial purposes, shall be exempted from the payment of such parochial licenses.”

But plaintiff contends that not alone by the light of the foregoing provision of the Constitution must the statute of 1900 be read and tested.

■ He insists there are other provisions of the Constitution having an important bearing on the'issue raised, and that on a just consideration of these, ini connection with the one relied on by the defense, must decision be reached.

The provisions referred to are to be found in Article 48 of the Constitution. One clause of that article declares that the General Assembly shall not pass any local or special law:—

“Creating corporations, or renewing, extending or explaining the charters thereof: — provided, this shall not apply to municipal corporations having a population of not less than twenty-five hundred inhabitants, or to the organization' of levee districts and parishes.”

Another clause declares that no local or special law shall be enacted:

“Granting to any corporation, association or individual any special or exclusive right, privilege or immunity.”

Testing Act 141 of 1900 by these prohibitive declarations of the original law, it will not stand a moment.

What does this act do?

It singles out one particular town in the State from the hundreds having less than twenty-five hundred inhabitants, and grants it special immunity from the payment of license taxation levied in virtue of parochial authority.

It, in effect, amends and extends the charter of the town of Washington. The charter of that municipality, which was adopted in 1897, under the general laws of the State, does not and could not exempt the inhabitants of the town from the payment of parish licenses. The act of 1900 does so, and, thus, gives the town a power it did not have before. If this be not so, then was there no reason for its passage.

Again, Section 21 of the existing charter of the town declares that no person pursuing an occupation in the town shall be called on to pay a greater license tax than the State exacts for the same calling.

Under the law the State license for pursuing the occupation of retail liquor dealer is $100. Yet the act of 1900 is authority for the town of. Washington to impose a license on a retail liquor dealer as great as $2,000. ' ° ' ’

So, there is no escaping the conclusion that the act amends and extends the charter of the town.

It is, therefore, in clear and palpable violation of those provisions of Article 48 of the Constitution referred to.

It remains to be seen whether, as is the contention of the defendant, the situation is altered and the act saved, notwithstanding its contravention of Article 48 of the Constitution, by the concluding paragraph of Article 229 above quoted.

Does this paragraph control and render inoperative, as to an act like the one under consideration, the inhibition of Article 48 ?

Constitutions, like statutes, must be so construed as to give force and effect to all their provisions when such a construction may be deduced from the terms employed.

There is no conflict between Article 48 and 'the last paragraph of Article 229, and it requires no strained construction to make the two harmonize.

The latter article merely gives the Legislature authority to exempt municipalities from the payment of parish licenses when the licenses levied by such municipalities are equal in amount to those levied by-police juries for parochial purposes; but in case of towns less than 2500 inhabitants, this must be done by a general law applicable alike to all municipalities of that class, and not by a special law.

It is only as to the charters of the cities and larger towns of the State — those having a population of not less than twenty-five hundred inhabitants — that the Legislature has authority to deal through the medium of special laws. State ex rel. Fortier vs. Capdevielle, 104 La. 561.

The above contention is not only reasonable, but accords with both the letter and spirit of the Constitution viewed as a whole, and permits lo each of the articles referred to its due force and effect.

Under the theory of Statd government which obtains, the Legislature, on all matters not prohibited by the ConstitutiOü, Federal and State, is supreme and may enact into law any measure it sees proper.

There was, therefore, no necessity for the insertion of the last paragraph of Article 229, unless, by reason of some other provision of the Constitution, the General Assembly was prohibited from passing a law falling within said grant of authority.

That prohibition was not contained in Article 48, since that article deals only with the denial of power in the matter of local and special laws.

We look for it and find it, however, in another article — one on the subject of taxation, with which the paragraph of Article 229, under consideration, also deals.

“Taxation shall be equal and uniform throughout the territorial limits of the authority levying the tax,” is the opening declaration of Article 225

The word “taxation,” as here used, includes both property taxes and license taxes. State vs. O’Hara, 36 La. Ann. 95.

Property taxation must be equal and uniform based on value; license ' taxation must be equal and uniform on all persons of the same class.

Therefore, under the mandatory direction of Article.225 as to the equality and uniformity of taxation, the Legislature would have been powerless to exempt any city or town from the payment of parish licenses had it not been for the qualification and modification put upon Article 225 by the concluding paragraph of Article 229.

We conclude, with the district judge, in whose very clear and capable ■opinion we concur, that the defendant is not exempted from the payment of the parish license herein sued for.

We agree with him also, and for the reasons he assigns, that plaintiff is entitled to recover 10 per cent, upon the amount to be collected herein ' as fees of counsel appointed to aid the tax collector in the collection of State and parish licenses. Sections 20 and 26 of Act 171 of 1898.

With regard to the penalty of 2 per cent, per month upon the amount of the delinquent license the defendant owed, the judge correctly held such penalty did not accrue, or begin to run, until the first day of March.

The language of the statute is:—

“That all unpaid licenses shall bear interest at the rate of two per cent, per month from the first day of March,” etc.

And inasmuch as the 1st of March, 1901, had not yet arrived when he decided this case (his judgment being dated February 12, 1901,) he was right in rejecting the demand at that time for the penalty.

But the 1st of March is now passed and the license unpaid. The penalty of 2 per cent, per month began from that date, and an amendment of the judgment is here asked to include it. It must be allowed.

For the reasons assigned, it is ordered that the judgment appealed from be amended by charging the defendant with the penalty of 2 per cent, per month from March 1, 3 901, upon the amount of the unpaid license, and in the further particular that the 10 per centum attorney’s fees allowed by the court a quo be collected upon the amount of the license proper, with the penalty of 2 per cent, per month from March 1st added, and as thus amended the judgment appealed from be affirmed, with costs in both courts.


author: Provosty, J. Provosty, J.

text:
    No. 13,972.
    State ex rel. Sumner Building & Supply Co., In Liquidation, et als. vs. Judges of the Court of Appeals.
    Syllabus.
    1. The claims of several creditors between which the only connection is that they are due by a common debtor and are secured by privileges on the house of such debtor, cannot be joined together to mahe up the amount requisite for this court to entertain jurisdiction.
    2. A case must on a second appeal go to the court having jurisdiction of it in the condition in which it is, and not to the court that, had jurisdiction of it in the condition in which it was at the time of the first appeal.
    APPLICATION for Writs of Certiorari and Mandamus.

      Bice & Montgomery, for Relators.
    Respondent Judges pro se.

      William 8. Benedict, amicus curiae.

   On the application for a rehearing by

Provosty, J.

The opinion of the court was delivered by

Provosty, J.

A house having been built for the plaintiff, and the contractor who had built the house having become insolvent, the persons who had furnished labor and materials to the contractor for the building of the house caused their claims to be recorded in the office of the recorder of mortgages, so as to exercise recourse against the plaintiff and her house under a statute of this State. The plaintiff brought suit against all the claimants, joining them all as defendants in one suit, asking that she and her house be decreed not liable for their claims, and that the inscription of the claims be cancelled, and that the claimants be condemned in solido to pay her one thousand dollars damages. The claims together exceed the lower limit of our jurisdiction but not one reaches this limit singly. The defendants separately by separate answers reconvened, praying judgment against plaintiff for the amount of their claims with recognition of their privilege.

The question is whether this court has appellate jurisdiction of such a suit. The point was considered, and was decided adversely to the jurisdiction, in the case of Tague vs. Insurance Co., 38 Ann. 456, and we adhere to the view there expressed.

We pay no attention whatever to the claim of one thousand dollars in damages, for the reason that it is plainly and admittedly a mere fictitious claim. Our jurisprudence is well settled that in considering jurisdiction fictitious claims are disregarded.

Nor is the fact that this is a second appeal and that the case came to this court on the first appeal any reason why we should entertain the appeal. -The ground upon which we entertained the first appeal has ceased to exist, and cannot serve as a basis for the present appeal. It was that the District Court had declared a statute of this State to ho unconstitutional. We reinstated the statute on the first appeal, and from that time the case ceased to involve the constitutionality of a statute. We cannot deal with the ease as it at one time was, but must deal with it as it now is, and in its present condition it does not involve the constitutionality of a statute.

The idea that the case has in some way continued to be on appeal to this court is a wholly erroneous one. A ease cannot be pending in the lower court, and in the appellate court at the same time. Upon our remanding the case our connection with it was severed except.in so far as supervision over the execution of our own judgment might be concerned, and there is no question arising in the case in connection with the execution of our judgment. The present appeal is not a continuation of the first appeal, but is a distinct and separate appeal, with- a motion for appeal and a bond for appeal of its own; it is taken from a different judgment, and from a judgment rendered on different pleadings. We say different pleadings, because by our judgment on the first appeal the question of the constitutionality of a statute of this State was removed from the pleadings.

. The case is appealable to us neither on the ground that it involves ' $2000, nor on the ground that it involves the constitutionality of a statute; hence, it was properly appealed to the Court of Appeals, and the mandamus herein is therefore made peremptory.

On Reconsideration.

In this ease our attention having been called to the fact that subsequent to the remanding of the ease supplemental pleadings were filed assailing for a second time thq constitutionality of the Act of the Legislature, the constitutionality of which had been declared by our judgment on the first appeal — we, of our own motion, ordered a reconsideration of the case; but there is now filed with us the reasons for judgment ón which the judgment appealed from is based, and from those reasons for judgment we find that the case on the second trial was tried on questions of fact irrespective of the issue of unconstitutionality raised by* the supplemental pleadings. O’Neil vs. Vermont, 144 U.S. 336; also Moss vs. Newhouse, 52 Ann. 945. Therefore as the case now stands before us it is not a case in which a statute of this State has been declared to be unconstitutional; and, consequently, we have no jurisdiction of it; and we adhere to our original opinion.


text:
    No. 13,613.
    S. C. Brink and Mrs. Jennie Neeland vs. J. M. Bartlett et al.
    Syllabus.
    1. The creditor lias tlie right to sue the debtor and'his surety and if the surety is entitled to the benefit of discussion, he may, after judgment, have the property of the principal first seized and sold.
    2. Tinder Statute 180 of 1894, the bonds of the contractor and of his surely must respond to the laborer’s and material man's claim for labor performed or material furnished for constructing the building, although the work was performed with the material furnished to one who had a mortgage with the contractor. The contractor is liable under the statute although no attested account has ever been served on the owner.
    3. The contractor who has seen the work performed and the material furnished in constructing the building, is not in a situation to deny his liability, on the ground that he has not been notified. The surety on his bond is held to the same liability.
    IN RE E. H. Vordenbaumen, Applying for Certiorari, or Writ of Review to the Court of Appeal, First Circuit, State of Louisiana.

      Lee Emmett Thomas, for Applicant.

      Leonard & Randolph, for S. O. Brink, Respondent.
    Wise & Herndon, for Mrs. Jennie Neeland, Respondent.
   The opinion of the court was delivered by

Breaux, J.

Suits were brought by Mrs. Jennie Neeland and S. O. Brink against J. M. Bartlett, contractor, and E. H. Vordenbaumen, surety, on his bond for building materials furnished by them to the contractor just named. The grounds being similar, both applications— that of S. O. Brink and that of Mrs. Neeland — are passed upon and decided as on one application for both.

The facts shown by the testimony are that J. M. Bartlett, a building contractor, entered into a contract with Neith Lodge of Odd Fellows at Shreveport to construct a building for the lodge. As a contractor, he furnished a bond, as required by Statute 180 of 1894, with Vordenbaumen as surety.

Bartlett entered into a contract with A. B. Knowles to furnish the brick and do the brick work for the sum of three thousand three hundred dollars. Knowles furnished a bond with security to Bartlett. These two bonds, one in favor of the owner, the Neith Lodge, and the other in favor of Bartlett, the contractor, were duly recorded. Bartlett fulfilled his contract and was paid. Plaintiffs in the suit above mentioned furnished Knowles with brick! and stone used by Knowles in performing his part of the contract. Knowles was paid by the contractor, Bartlett, but Knowles failed to pay said plaintiffs, Neeland and Brink, who had furnished brick and stone, as before mentioned, the whole amount due them. These creditors, Neeland and Brink, brought suit for the balance due them and recovered judgment.

Vordenbaumen, security on the bond of one of the defendants in the suit in question, urges that his principal has paid Knowles and that he, in consequence, cannot be legally called upon to pay those who had sold materials to Knowles. Vordenbaumen alleges that one of the plaintiffs, Mrs. Neeland, was requested by him to have her account recorded in the mortgage office and that she failed to have it recorded. Further, he filed a plea of discussion and averred that an attested account was served on the owner of the building; that the owner, at the date it was served, had funds due the contractor ample to pay the claims due. The judge of the District Court, in the case the title of which is written above, rendered judgment against principal and security, Bartlett and Vordenbaumen. From the judgment the defendants prosecuted an appeal to the Court of Appeals. That court decided against them and affirmed the judgment against which they had appealed. The action is here both on a writ of review and cerliorari.

We will not stop to discuss one of the propositions averred, but not argued, that the surety is not entitled to raise issues not raised by his principal. It is well settled that one who is security on a bond, as the security is here, has the right to plead the exceptions and defenses that the principal might plead. Eespondents do not insist upon that defense.

In our view, the text of the Code on the subject regarding the benefit of discussion meets relator’s complaint on this score. We quote: “The creditor may include in the same suit both the debtor and the surety. If he obtains judgment against both, the surety who is entitled to the benefit of discussion may insist that the judgment shall'be first executed against the principal debtor.” C. C. 3051. As well stated by the judge of the District Court in his reasons for overruling the plea, “the law regulating the plea of discussion does not authorize the defendant to elect for plaintiff which remedy he shall pursue, but simply gives the surety the benefit of pointing out property of the contractor subject to execution,” citing Hill vs. Miller, 7 Ann. 622, and Hill vs. Bourcier, 29 Ann. 843.

But relator insists that the furnishers of materials, Neeland - and Brink, have no contractual relations with the defendants, Bartlett and Vordenbaumen, relators. That they, Mrs. Neeland and Brink, entered into a contract with Knowles to whom they must look for payment, and not to Bartlett, the contractor, or in his default, to his security, Vordenbaumen, who are, they contend, third persons. If these premises were to be granted, the conclusion would lead to a reversal of the judgment and would sustain relator’s contention.

At the outset of the discussion, we find that the principal object of Statute 180 of 1894 was to protect the workman’s wages better and the material man’s claim. To that end, the owner is bound to obtain from the one with whom he contracts to put up his building a bond and security. One of the principal provisions of the statute is that one who enters into a contract to have a building constructed for an amount of one thousand dollars or over, must call for a bond with sufficient security from the contractor to secure the workmen and the furnishers of materials. After having done this and having had the papers recorded, he is, by the statute, left to deal with the contractor and not with the workmen and material men. We are next led. briefly to consider the contractor’s responsibility in this connection.

His bond stands as security for the payment of all workman’s claims for work on the building and for all the materials used in the construction. The scope of the statute and the obligation of the bond are far-reaching enough to include, within the terms of the security, all wages and all amounts due for supplies furnished, whether to the first contractor or to the contractor who has bound himself to do this labor or furnish the materials to the first contractor, provided always, as relates to the materials, that they are actually used in the construction of the building as before stated.

In Willey vs. St. Charles Hotel, 62 Ann. 1581, this court recently passed upon this question and said that the bond stood as security in favor of the .workmen and material men who had contracted with the contractor or sub-contractor.

Recurring to relator’s proposition, stated above, that no contractual relations exist between relator and his principal on the one hand, and "the furnisher of materials on the other, we think it ground enough to say in answer that the relations are statutory, and by the effect of the statute it is to be considered as written in every contract that the workman and the furnisher of materials has the right to a direct action against the contractor and the security on his bond. One may be bound by the terms of a statute, although, ipsissimis verbis, no special reference is made to the obligation. We take it that this proposition is not controverted by the learned counsel for the relator. In his carefully prepared brief, he argues that the Legislature did not contemplate, in enacting the statute, to hold the contractor bound to the payment of the workmen’s wages and the material men’s claims.

From an early period, the workman’s wages and the claims of the material man have engaged attention. True, there is nothing in the Code of 1808 regarding the claim of the material man, but regarding the workman, whose claim may be considered as being somewhat in pari matemae, provision was made to secure their claim against the proprietor by granting them the right to sue him for any amount due by him to the undertaker at the time of the filing of the suit. (We use the Latin words guardedly.) The claims of the material men and the laborers, as relates to class of rights, are not absolutely similar. Schwartz vs. Cronan, 30 Ann. 995.

The framers of the Code of 1825 somewhat enlarged the right of these claimants as compared tp what they were under the prior Code. They could sue and cause the money due by the proprietor to be seized. They were subrogated to the privileges of the undertaker. Art. 2744 O. C. C. This article was amended by Statute 66 of 1844. Instead of authority to seize, as granted under the Code of 1825, it provided for the service of an attested account of the workmen. In the course of time the material man’s claim was included within the terms of the article which had been previously amended by the statute of 1844. R. C. C. 2772, 3249, and 3272. The framers of the Constitution of 1879 ordained that additional security should be provided for the class of work we are now considering. They directed the General Assembly to enact laws to that end. Article 175 of the Constitution of 1879 (Article 185 of the Constitution of 1898). Laws were enacted upon the subject. The last is Act 180 of 1894, amended in 1896.

We have seen that laws priorTo the just cited statute, as relates to the seizure, provide for the service of attested notice of claims and privileges. All this evidently was nob considered protection enough. By the Act of 1894, the further security consisted, as already mentioned by us, of a bond to be made out as required by its terms. The conditions are that the parties to the bond shall respond if called upon by a workman or material man who has a legal claim falling within its conditions. The statute in question is silent regarding the necessity of serving any attested notice in order to be able to recover against the parties to this bond, nor does the statute require that the claim be recorded in order that one may recover. True, there is mention made of a privilege in the act, but not, as we take it, with the view of modifying or limiting the right to recover on the bond. The following, as we read, is an additional guarantee of payment — quoting from the act in question: “And they shall have a privilege on the land and building if they record their sworn bills, whether the original contract is recorded or not”, thus affording the opportunity of obtaining a right which is in its character cumulative and not one modifying or tending to modify the right secured by the bond. The act just cited is supplementary to prior laws on the subject of laborers’ and material men’s recourse for the recovery of amounts due them.

Relator insists that the act nowhere mentions sub-contractors. That is quite true, but the controlling object of the statute is to protect those whose labor and material have aided in erecting thie building. This is, in substance, the idea of the act. It indicates, in the first place, a recourse against the amount paid by the owner to the contractor and it substantially imposes upon the contractor the duty of seeing that the material men and the workmen who have furnished the materials and labor, respectively, are paid.

The claim is against one who contracted with the contractor and furnished Rim with materials which could well escape the attention of the contractor as articles needed in constructing the building. He would have no building to deliver to the owner without the brick and stone furnished to one with whom he had contracted and therefore cannot plead ignorance of the fact that they were furnished as alleged. The contractor had it in his power to protect himself. We are informed by the testimony that he did require a bond from the one who defaulted in payment to plaintiffs, Brink and Neeland. A contractor is not without right to require evidence of psjyment of material men before making final payment to the one with whom he contracted and to whom the materials were furnished.

Relator cited a number of decisions. They are of a date prior to the passage of the Act 180 of 1894, except the one of Willey vs. St. Charles Hotel Co., 52 Ann. 1582, in which the court held that the material furnished had not been sufficiently identified as having been used in constructing the building and in the second place it was held that the sale had been made and completed in another State and therefore did not come within the conditions of the bond furnished. The state of facts was 'different from the facts.in the case before us for decision. Here the materials were identified and the contract therefor was made in this State and with the knowledge (as it should have been to the knowledge of) the contractor. It was not in any sense a foreign contract entered into in another State.

Eor these reasons, the orders nisi issued in these cases are recalled and discharged. The applications for the writ of certiorari and review are rejected.


author: Nicjiolls, O. J.

text:
    No. 13,968.
    State of Louisiana vs. Lee C. Bright.
    Syllabus.
    1. ’-die amendment, pending trial, of an information ror larceny by substitution therein of the name of a husband for that of his wife as the owner of the property stolen is authorized to be made by Section 1047 of the Revised Statutes when there appears to be a variance between' the statement of ownership in the information and the evidence offered in proof thereof. Conviction of the accused upon the amended information evidences the propriety of the amendment upon the existence of a variance as a matter of fact.
    2. Where, pending a trial of a person for larceny, the information is amended by substituting therein the name of a husband for that of his wife as the owner of the property stolen and both before and after the amendment both husband and wife were examined as witnesses and the accused made no effort to have the trial postponed, nor availed himself of the presence of the spouses on the stand as witnesses to negative the ownership as laid in the amended information, he is properly refused a new trial based upon a claim that he was surprised by the amendment and that he could disprove by the wife as newly discovered testimony that the property was her paraphernal property.
    APPEAL from the Criminal District Court, Parish of Orleans — ■ Baker, J.

      Walter Guión, Attorney General; J. Ward Gurley, District Attorney,' and Porter Parker, Assistant District Attorney (Lewis Guión, of Counsel), for Plaintiff, Appellee.

      Robert E. Marr and Chandler C. Luzenberg for Defendant, Appellant.
   The opinion of the court was delivered by

Nicjiolls, O. J.

The defendant was charged with the larceny of a diamond pin in an information filed against him by the assistant district attorney for the Parish of Orleans. The ownership of the pin was laid in Mrs. Ethel Staehle. On the trial of the case Mrs. Frederick Staehle, Fiederiek Staehle and several other witnesses were placed on the stand and testified as witnesses • for the State and were cross-examined on behalf of the defendant. At this stage of the trial the assistant district attorney moved the court to amend the information by substituting the name of Frederick Staehle for Mrs. Ethel Staehle, to which counsel of defendant objected.

The court overruled the objection and ordered the information to be amended as moved by the assistant district attorney, to which ruling of the court counsel for defendant excepted and reserved a bill of exceptions.

The State then announced that it rested its case. Richard L. Dalton and McDermott were then sworn by the clerk, examined as witnesses on the part of the defendant and cross-examined on the part of the State-After hearing the evidence, argument of counsel and receiving the instructions of the court, the jury returned a verdict of guilty as charged. The defendant moved for a new trial. This application was refused, to which ruling defendant reserved a bill of exceptions. The court then sentenced him to suffer imprisonment in the State penitentiary at hard labor for two years, and he appealed.

The bill 'of exceptions reserved to the ruling of the court allowing the amendment, after reciting the fact that an information had been filed against him for the larceny of a diamond pin, the property of Ethel Staehle, and that after the jury in the case had been empanelled and sworn, this information was read to the jury, declares that thereafter Ethel Staehle, one McDermott and one Frederick Staehle were examined by the State as witnesses, whereupon the district attorney moved to amend the information so as to lay the ownership in Frederick Staehle, that is, to have the information read that said pin was the properly of Frederick Staehle, to which defendant objected; that the court overruled the objection and allowed the information to be amended, to which ruling the defendant reserved and tendered his bill r.f exceptions.

The grounds assigned for the granting of a new trial were: 1st. That the verdict was contrary to the law and the evidence. 2nd. That the court erred in permitting the district attorney to amend the information after the jury had been sworn and the accused had been placed in jeopardy. "3rd. Because the information filed by the assistant district attorney laid the ownership of the pin alleged to have been stolen in the person of Mistress Ethel Staehle and accused was put on trial upon that information.. That after the jury was empanelled to try accused the information laying- the ownership in Ethel Staehle was read to the jury and accused was put in jeopardy. That Ethel Staehle and Frederick Staehle were examined as witnesses on behalf of the State and left the witness stand, whereupon, on motion of the assistant district attorney and to the surprise and over the objection of the accused, the information was amended and the ownership of the pin was laid in Frederick Staehle. That this sudden change in the information did not give him an opportunity of bringing proof to the contrary as set forth in the information. That accused had since discovered evidence that Frederick Staehle was not the owner of the pin alleged to have been stolen, and that upon a new trial he would prove by Ethel Staehle that the pin alleged to have been stolen was her own separate property; that with due diligence he could not have discovered with any degree of certainty that said evidence existed as he afterwards believed; that his failure to produce said evidence upon his trial was not due to any negligence on his part and said evidence was material to the issue. In overruling the motion for a new trial the court stated that on the trial the district attorney, acting upon the presumption that exists in such cases that the property was community property, asked and obtained leave to amend the information by changing the ownership from Mrs. Staehle to Mr. Staehle, her husband. That counsel for the defendant objected upon the sole ground that as a matter of law it was the amendment of a material allegation and although the witnesses were present offered no evidence to show that this presumption which prevails in all such cases until rebutted, did not hold in this case.

That it seemed to the court, under the circumstances, that even if it were conceded that the amendment was not necessary, that the defense could not be set up on a motion for a new trial. That if Mrs. Staehle was the owner -of the property, then the information was perfectly good, and if she was' the custodian of the property, it would hold. The accused could not be prejudiced by changing the ownership of the pin from Mrs. Staehle to her husband. That the real question was not whether Frederick Staehle owned the pin or Mrs. Frederick Staehle owned it,- but whether the accused stole this particular pin.

That under section 1047 of the Revised Statutes and the decisions of the Supreme Court, the State had the right to amend. He declared that under the evidence, of which he gave a summary, no one could .nave any reasonable doubt-as to the guilt of the accused. That the accused' had been found guilty by the jury and he was compelled to maintain their verdict.

Opinion.

Section 1047, of the Revised Statutes, provides that whenever, on or before the trial of an indictment for any crime or misdemeanor, there shall appear to be any variance between the-statement in the indictment and the evidence offered in proof thereof or the name or description of any person, body politic or corporate therein stated to be the owner of any property, real or personal, which shall form the subject of any offense * * * or in the ownership of any property named or described therein, it shall be lawful for the court before which the trial shall be had, if it shall consider such variance not material to the merits of the case and that the defendant can not be prejudiced thereby in his defense, to order the indictment to be amended according to the proof, both in that part of the indictment where such variance occurs and in every other part of the indictment which it may become necessary to amend; the trial to be had before the same or another jury, as the court shall think reasonable, and after such amendment the trial shall be proceeded with in the same manner in all respects as if no such variance had occurred. Provided, that in all such cases where the trial shall be so postponed the witness shall be bound to attend to prosecute and give evidence. * * * ”

The amendment which the court ordered to be made in the case before the court was made under the authority of this statute. The accused excepted at the time to the amendment being made, but made no objection to the trial being proceeded with before the same jury. The tiial was continued after the amendment had been made and witnesses, both for the State and for the defense, were placed upon the stand, examined and cross-examined.

Defendant contends that the power of the trial judge is exceptional and wholly statutory and can not be exercised arbitrarily, but is confined by the statute to the ease where there is “a variance between the statement in the indictment and the evidence offered in proof thereof;” that when the bill of exceptions shows that no such variance exists or that the amendment offered is not supported by the evidence the erroneous ruling of the district judge in permitting an amendment is reversible error. That it was admitted that Mrs. Staehle was the custodian and certainly for the purposes of pleading the owner. An amendment changing the allegation of ownership from her to another was unlawfully allowed; such amendment so far from being supported by the evidence was directly contrary thereto and resulted in the conviction of the accused of a crime which the evidence shows he did not commit, the theft of Frederick Staehle’s property; that the “rule is universal that-it is proper for an indictment for larceny to lay ownership in the per'son having lawful possession at the time of the theft; that is, the ostensible and apparent owner”; that “Mrs. Ethel Staehle being the ostensbile and apparent owner, it being alleged that the property was stolen from her person, there was nothing to warrant an amendment lodging such ownership in some one else”.

It may be true that an indictment for larceny, laying the ownership of the property stolen in the actual possessor and apparent and ostensible owner, would hold good against a claim made by the accused that the latter was not the real owner, but this is something different from a claim that when the State has reason to believe that evidence introduced on the trial that the possessor and ostensible owner is not the real owner, it should b'e forced to adhere to the allegation of ownership máde in the indictment, and not be authorized or permitted to substitute the name of the real owner for that of the ostensible owner. The ownership having been originally laid in Ethel Staehle and changed to Frederick Staehle after evidence heard, and the jury having returned a verdict of guilty against the accused after the amendment, on the whole evidence adduced before it both before and after the amendment, we must assume that the evidence must have been such as to justify the verdict based upon an ownership of the pin in Frederick Staehle and therefore to have warranted and justified a change in the allegation of ownership from Ethel- Staehle ”to him.

The defendant relies very greatly upon the decision of this court in State vs. Williams, 45 Ann. 939, in which the cases of State vs. Everage (33 Annual, 120), State vs. Hanks (39 Annual, 235), and State vs. Ware (44 Annual, 954), cited by the State herein, were referred to. Ail examination of that case will show that it bears no resemblance to the present one. Emma Williams, the defendant, had been indicted, tried ■and acquitted upon an indictment charging her with grand larceny of the goods of one Louise Waters. She was subsequently prosecuted and convicted upon another indictment charging her with grand larceny at the same time and place of the same goods, but laying the ownership of the property in Harry H. Waters. The identity of the particular acts involved in the two indictments was admitted. Defendant filed a plea of autrefois acquit which was overruled and being sentenced under the charge and verdict she appealed. The judgment was affirmed on appeal. The court held that acquittal under an indictment for larceny of goods alleged to belong to “A” was no bar to subsequent indictment for larceny of the same goods alleged to be the property of “B", where it was shown that the acquittal was due to the misnomer in the allegation of ownership, that the second jeopardy was not for the same offence.

In the body of the opinion the court declared that our law grants great latitude of amendment in cases of misnomer and that it would be better practice in such caseát for the State to avail itself of this privilege, than to let the case go to trial and to a verdict of acquittal and then bring another indictment under correct allegations as of ownership, but that as it was not required to do this as a duty the failure to amend did not forfeit any of its legal rights.

The opinion so far from supporting appellant’s position that an amendment pending trial for larceny in order’ to correct an erroneous allegation- in the indictment as to the ownership of the property stolen, is not warranted, is authority to the contrary, as it refers to such amendments as being the proper course to pursue in cases so situated.

Appellant has no reason to fear that he will ever be placed in jeopardy a second time under a charge of larceny for this same pin on the particular occasion charged in the indictment.

Appellant’s application for a new trial was properly refused. Reasserts that he went to trial unprepared to meet the changes of the situation which resulted from the amendment to the indictment, but he made no effort to obtain a continuance, or to have the case tried before another jury. He mentions as the witness jhrough whom' he expects to disprove the allegation of the ownership of the pin being in Frederick Staehle, the wife of Staehle. Both Staehle and his wife were examined as witnesses in the case, both before and after amendment, and defendant had ample opportunity to examine both of them at that time, but he failed to avail himself of the opportunity to do so. Why he did so he does not attempt to explain.

We see no reason for reversal of .the judgment and it is hereby affirmed.