author: Nicholls, O. J.

text:
    No. 13,108.
    State ex rel. Mrs. Eleonore Duchenne vs. Board of Liquidation, City Debt.
    Syllabus.
    1. A judgment against the city oí New Orleans rendered in 1879 for damages-for eviction under th'e city’s warranty obligations tracing back to and re suiting from a contract of sale made a great many years before, is not <r “floating debt” of such a character as to fall under the exceptional provi sions of Act No. 67 of 1884 touching the funding of the city’s indebtedness.
    2. A judgment of that character rendered in 1879 and registered under the provisions of Act No. 5, Extra Session of 1870, not being prescribed at the date of the passage of Act No. 67 of 1884, it was not the duty of the Board ot Liquidation so finding it, to go behind that fact and examine and ascertain whether prescription might or might no’t have run against the judgment later.
    IN RE Board of Liquidation applying for certiorari, or writ off review, to the Court of Appeals, Parish of Orleans, State of Louisiana.

      Branch K. Miller for petitioner.
    Respondent judges for themselves.

      Submitted on briefs March 20, 1899.
    Opinion handed down May 15, 1899.
   The opinion of the court was delivered by

Nicholls, O. J.

Relator avers that, on June 4th, 1898, Mrs. Eleonore Duchenne, as surviving widow in community of Paul Duchenne, and natural tutrix of their minor children, brought suit against it for a mandamus to compel it, under Acts No. 67 of 1884, and 110 of 1890, to pay, or fund, a certain final judgment for the sum of one hundred and seventy dollars, with legal interest from judicial demand (March 4th, 1871), and seventeen dollars cost of court additional, rendered in a certain suit entitled Jean and Pierre Lamarlere vs. City of New Orleans, No. 2315, of the docket of the Civil District Court'for the parish of Orleans.

That on August 2nd, 1898, on the day fixed for the return of the alternative writ, it filed its answer to the same, setting up, in effect, after pleading the general issue: First — That under the laws creating it, and defining its powers, it was without right or authority to fund, or pay, any judgment against the city of New Orleans, except such as might have been rendered for or against a year or years prior to 1879; that the judgment of-eviction in the case of Myra Clarke Gaines vs. P. H. Monsseaux, et al., No. 3662, of the docket of the United States Circuit Court for the Eastern District of Louisiana, upon which the judgment described in Mrs. Duchenne’s petition was founded, and by the effect of which the city of New Orleans became tire debtor of her deceased husband, was rendered June 13th, 1879, and hence was not within the class of judgments which were entitled to be funded or paid by it; that the latter was without authority of law to fund the judgment into a bond or bonds, in any event.

Second — That the judgment sued upon had been extinguished by the prescription of ten years, established by Article 3547 of the Revised Civil Code, and hence that the same was no longer evidence of any debt or liability of the city of New Orleans.

That the judgment of the District Court was in favor of plaintiff in the said suit, in which the mandamus was made peremptory, and the board was ordered to fund or pay the judgment sued upon; that the case was then by it carried, by appeal, to the Court of Appeals for the parish of Orleans, which, on the 30th day of January, 1899, affirmed the judgment of the District Court, which was appealed from, and on the 27th day of February, 1899, refused a hearing.

That the issues involved in the said suit are of paramount importunes to the Board of Liquidation, the city of New Orleans, and all judgment creditors thereof, especially those who are entitled, or may deem themselves entitled, to the benefits of Acts 67 of 1884, and 110 of 1890.

That in its execution of the mandates contained in said statutes, and the discharge of its duties thereunder, the board has construed them, particularly the former, to mean that no judgment against the city of New Orleans would be either funded or paid By the board, unless it was rendered or based upon a floating debt or claim of the city of New Orleans, which was created or came into existanee prior to the year 1879; that the finding of the Court of Appeals is to the effect that the benefits of said statutes extend also, besides those thus described, to any and all judgments in existence against the city c-f New Orleans at the date of the adoptioii of Act 67 of 1884, to-wit: July 9th, 1884; that such construction is different from that placed upon it by the board; under which it has retired floating debts or liabilities of the city of New Orleans, amounting to many hundreds of thousands of dollars; all of which has been fully acquiesced in by the creditors of the city of New Orleans, until the contentions made in the present suit; that the said ruling of the Court of Appeals for the parish of Orleans, if maintained, will greatly embarrass the board in the discharge of its duties, and introduce confusion and disorder into the administration of its affairs, and greatly impede or interfere with the discharge of its duty, to the disadvantage of the city of New Orleans, and its judgment creditors; that it is further held by the Court of Appeals that the articles of the Revised Civil Code, fixing the prescription of judgments at ten years, have 'no application to judgments against the.city of New Orleans; that if such be the true interpretation of the law, it would deprive the city of New Orleans of a mode of extinguishing its debts, of which all other persons would enjoy benefit; that there are at present many judgments aggregating many thousands of dollars against the city of New Orleans, which are prescribed, and of which the city is therefore not the debtor, if they are subject to the laws of prescription, but which arewalid outstanding obligations of the city if the said finding of the Court of Appeals is correct in point of law; that this issue is one of great and imminent importance and interest to tlxe public, to the city of New Orleans, to its judgment creditors, and to the board, in reference to the duties and powers imposed and vested by the law to the proper, safe and sufficient discharge of which, in reference to judgments in existence for more ■ than ten years, which may be presented to it for payment.

That it is of the highest public importance that the proper construction of said Section 3 of Act 133 of 1880, and Section 2 of Act 07 • of 1884, should be determined by the highest court of the State, particularly to ascertain whether or not the privileges of the same are •extended to holders of judgments or floating debts, or claims, for 1878 and previous years alone, or whether or not they likewise extend to all .judgments against the city in existence at the date of the adoption of the said statute, besides the first named.

That upon whether or not the prescription of ten years applies to .judgments against the city, depends the question of the indebtedness of the city on a large number of judgments rendered more than ten years since; that the board believes that this court has already determined that a claim or demand against the city is subject to prescription, the same as a claim or demand against any other person, notably in the case of Conger vs. City of New Orleans, 32 Ann., 1252, et seq., and State ex rel. Rubira vs. Board of Liquidation, 35 Ann., 753, and in other cases, and that a like rule should prevail as regards judgments, which are, in law, nothing more than claims or demands judicially ascertained to be due and liquidated as to amount; that in :the interest of a uniformity of jurisprudence upon a public question of far-reaching importance, and in order in to the correct determination of the issues in said case, which the board avers have been erroneously determined by the Court of Appeals, this court should require, by certiorari, the Court of Appeals to certify the said cause to this ■court for its review and determination.

In view of the premises the board prays that a writ of certiorari issue from this court, directing the Court of Appeals for the parish of 'Orleans to certify, and to send to it, on a day certain, the full and complete record of all the proceedings in the Court of Appeals in the-■said ease, to the end that the same may be reviewed, determined, and -the validity of the same ascertained.

This court, in view of the importance of the issues raised, and of ■their public character, ordered the record to be sent up as prayed for.

The judgment of the Court of Appeals, whose correctness is questioned herein, was as follows:

“The relatrix seeks, by mandamus, to compel the defendant to pay a. certain judgment.

The defense is:

First — That the judgment is not fundable under existing law.

Second — That it is more than ten years old, and, not having been revived,*it is extinguished by prescription.

The judgment sued on is one for damages for eviction from property sold by the city, and included in the Gaines case in the Circuit Court of the United States. The date of rendition was June 3, 1879, and registry was duly made in the office of the comptroller of the city of New Orleans in accordance with the requirements of Act No. 5, extra session, of 1870.

The Board of Liquidation was created by Act No. 133 of 1880, for the purpose of liquidating, reducing and consolidating the debt of the city of New Orleans. It was authorized and empowered, by Section 3, to retire and cancel the entire valid debt of the city of New Orleans, except the floating debt created up to the date of the passage of this act, whether represented by bonds of various classes or by-judgments.

Act No. 67 of 1884 amended that section by making- it ‘the duty of the board to retire and cancel the entire debt of the city of New Orleans now in the form of executory judgments, and registered under ■ the provisions of Act No. 5 of 1870, and that which hereafter may become merged into executory judgments and likewise registered, except the floating debt, or claims, created for and against the year 1879 and subsequent years; that it is the full intent and meaning of ’ this act to apply solely the privileges thereof to executory judgments at present rendered against said city, and to such floating debt or claims against said city for 1878 and previous years merged, and to be-merged into executory judgments, whether absolute, or rendered,, against the revenues of any particular year or years previous to the-year 18791

It will thus be observed that under the Act of 1880 the-entire valid' debt could be retired, except the floating debt created up to the date of the passage of that act; i. e., April 10th, 1880.

One of the evident purposes of the amendment of 1884 was to allow the funding of obligations anterior to 1879, excluded by the terms of" the Act of 1880, and to further that purpose the city was directed to-turn over and transfer to the Board of Liquidation all uncollected revenues anterior to 1879, when collected.

But had this been the only purpose, the phraseology of the statute-would have been different; it would have been sufficient to say ‘judgments rendered, and to be rendered/' for the floating debt or claims for 1878 and previous years.

Instead of that the privileges of the act are extended, in express terms, to ‘executory judgments at present rendered/ and to the floating debt or claims for 1878 and previous years, ‘merged, and to be merged, into executory judgment.’-

As the last clause specifically mentions claims for 1878 and anterior years already merged into judgment, as well as those to be merged, it is clear that this provision was entirely unnecessary had the executory judgments first mentioned been intended to refer to obligations arising previous to 1879.

We may not disregard the plain and positive text of the statute-because of the suggestion that it tends to establish an unfair distinction between creditors who had obtained judgments at the time of the adoption of the act, and those who had not, when the claims of both were for the same year.

The phraseology and punctuation of the act are involved, but its meaning is sufficiently evident, and our conclusion is that the board is-authorized and required to retire two classes of obligations.

First — All claims against the city for 1878 and previous years upon their being liquidated and merged into judgments.

.Second — All the debts for any years which had passed into the form' of executory judgments, and been registered at the date of the adoption of the act.

The judgment forming the basis of the present demand falls within the second category, and is therefore fundable.

We now reach the plea of prescription.

In 1870 the General Assembly passed a law ‘to declare the effect,. and prescribe the mode of satisfying judgments for money against the city of New Orleans.’

By its terms the courts of this State were denied all authority or jurisdiction to issue writs of mandamus, or fieri facias, to enforce payment of any money judgment against the municipality. In lieir thereof it provided for a registry of final and executory judgments in-the comptroller's office, and declared that they should 'have the effect in taw of establishing and fixing the amount of the plaintiff’s demand against such corporation.’’

The only means of satisfaction allowed consists of the money to be .specially designated, and. sot apart, for that purpose, by the City Council, in its annual budget, or specifically appropriated from any unexpended balance to the credit of the budget appropriation for contingent expenses.

The manifest object of this act has been judicially declared to be •‘to restrict creditors of the city to the ordinary forms in the enforcement of their demands; to protect the property and means of the city from seizure under execution; and to compel judgment creditors to have their judgments registered, so that they might be provided for and paid in their regular order out of the annual budget of each year.’

The registry was a new and peculiar mode of execution substituted for all existing remedies for the execution of judgments. State ex rel. Strauss, 30 Ann., 79; Rousseau vs. City, 35 Ann., 558.

There can be no question that the law regulating the execution of judgments in force at the time when a judgment is rendered, must govern the execution of that judgment; the only question for exkmin■ation is as to the effect of that law..

The first result is that the only asset that may be subjected to the •satisfaction of a registered judgment is the amount appropriated annually in the budget. The next is that the judgment creditor is powerless to do anything to accelerate payment; the courts having uniformly held that the framing of the budget was a discretionary legislative function of the council, not judicially controllable, so long .as legal and constitutional provisions were observed. The fact, the ■duty, of appropriating a sufficient amount out of the annual revenues to pay judgments has been considered as subordinate to the higher and absolute duty of first providing out of the revenues for the necessary alimony or support of the city. 36 Ann., 56; 33 Ann., 79; 37 Ann., 18; 31 Fed. Rep., 537.

It follows from the foregoing, that the time at which funds attributable to the payment of judgments become available, depends absolutely on the financial condition of the municipality and the absolute ■will of the City Council, and that the creditor’s sole remaining remedy i's to obtain from the comptroller a warrant on the treasurer afler the fund has, on due appropriation, found its way in the latter’s hands.

But, says the respondent, this can not affect the validity of the plea of prescription, because, according to repeated adjudications, the ability to execute a judgment is altogether apart from its prescriptibility.

It is true, as contended, that it has been held that the enjoining of a judgment, the taking of an appeal, whether suspensive or devolutive,, the issuance of a fi. fa., or even minority, will neither suspend nor interrupt the prescription of a judgment.

The argument urged, might, in consequence, be forcible, were a. revival the only legal means of arresting the current of prescription of a judgment, or were the city in all respects to be assimilated to an ordinary debtor.

But such is not the case.

It is the settled law of this State that a revival is not intended to bo an exclusive mode of preventing the prescription of judgments, and that the prescription of a debt, evidenced by a judgment, can be interrupted in the same manner as any other debt, provided the acknowledgement of the judgment debt be in writing. Succ. of Patrick, 30 Ann., 1071; Calhoun vs. Levy, 33 Ann., 1297; Calhoun vs. Levy, 34 Ann., 414; R. C. C., Art. 2278.

Previous to the year 1853'judgments were imprescriptible. 15 Ann., 650; 30 Ann., 1071.

It was the manifest design of the law of 1853 to reserve to the judgment creditor a method of protecting himself by his own act against a debtor who refused to acknowledge a debt not susceptible of being enforced by execution within ten years for lack of property liable to a levy.

It would do violence to the spirit of the statute, and the reason for its enactment, to say that it deprives a creditor of his remedy in eases-where the debtor has acknowledged a debt evidenced in the most solemn and dignified form known to the law.

The city is a corporation created by the State, and its rights ekid' obligations, its power to create, and its methods of discharging debts, must be measured by the statutes defining the scope of its corporate - authority.

It is therefore competent for the legislature to impose upon the city its fiat as to the nature and extent of the latter’s liability for the demands of its creditors, and while abolishing the writ of fifiri facia*- .as a means of execution to contemporaneously declare the status of a claim merged into a judgment.

This, we think, it has done clearly and emphatically by declaring ■ that “final judgment against the city of New Orleans, condemning -.said corporation to pay any sum of money when the same shall have become executory, shall haw the effect in law of establishing and .fixing the amount of the plaintiff’s -demand against said corporation.”

We do not see how a debt can receive more solemn acknowledgment than is given by that provision.

The next declaration is that, when there is sufficient money in the treasury to pay such judgment, ‘it shall be the duty of the comptroller to warrant on the treasurer for the amount due thereon without •any special appropriation of money therefor by the City Council.’

We look upon this as unmistakably an order to pay an acknowledged debt in due course of municipal administration.

That this view is consonant with the motives of the act seems to be intimated in the language of the Supreme Court in the Strauss case supra.

The creditor who has recovered judgment against an executor or ■administrator is not permitted to seize and sell, under execution, the property which belonged to the deceased, nor to enforce payment ■ otherwise than in due course of administration.

The creditors of the city of New Orleans may sue and obtain judgment, but the city has no property or rights not exempt from seizure under execution, because the statute forbids the issue of the ■execution against the city.

The city can pay its debts only out of its revenues, whether derived from taxes or from other sources; and if the city could be interfered with by seizure under execution in the collection and control and disbursement of its revenues, as current exigencies require, the city government could not be -administered; could no longer subsist.

The second and third sections of the act provide for the registry of all final judgments against the city, and for their payment out of the annual budget; that is, in due course of administration by the administrators chosen and appointed by law.

In this connection .it must be borne in mind that under our jurisprudence, the effect of an acknowledgment of a claim against a succession is to suspend prescription during the entire ..pendency of the ■administration. . , '

The registry under statutory direction of a judgment debt on the •city’s records as a liability can hardly be considered as less solemn than the placing, on an account of a succession debt.

As illustrative of the principle involved herein, the case of Gasquet vs. Board, dealing with the Act No. 36 of 1873 in reference to the payment of school certificates, is instructive.

The court held that as no writ of fi. fa could lie'against school moneys, and as the certificates were not payable at any fixed date, but •out of particular funds, and only when such funds came into the treasury, prescription did not begin to run until such funds came into the treasury.

To the same effect are the rulings in Fernandez vs. City, 46 Ann., 1130; Johnson vs. City, Id., 714, and Wadsworth vs. City, 48 Ann., 886. In reference to claims against the revenues of particular years, in the first mentioned case the court said: ‘These claims are not subject to prescription that the judgment applied for can interrupt.’

‘The payment being suspended and made conditional to there being funds in the. treasury, the plea is ineffective until a right of action arises.”

The reasoning applicable to a mere claim should apply with greater force to a solemn judgment registered according to law on the public records of the city, when its payment is also made contingent upon the advent in the treasury of a certain fund.

The relatrix has not slept upon her rights, and it is not shown that there have been at any time funds in the treasury applicable to the payment of her judgment.”

Opinion.

The judgment sought to be funded, which has given rise to this 'controversy, is declared by the Court of Appeals to have been based upon a claim against the city of New Orleans for damages for eviction from property sold by it and included in the Gaines cases, in the ‘Circuit Court of the United States, to have been rendered in June, 3879, arid to have been registered in the office of the comptroller of the city in accordance with the requirements of Act No. 5, extra session of 1870.

We are of the opinion that the judgment of the Court of Appeals, •directing the Board of Liquidation to fund the judgment, is correct.

The second Section of Act No. 67 of 1884, authorized and required, and"made it the duty of the Board of Liquidation to retire and cancel the entire debt of the city of New Orleans then (July 9th, 1884) in the form of executory judgments, and registered under the provisions of Act No. 5 of 1870, and that which may become merged into executory judgments, and likewise registered, except the floating debt or claims created for and against the year 1879 and subsequent years.

The General Assembly declared “that it was the full intent and meaning- of the act to apply solely the privileges thereof to executoryjudgments then rendered against the city, and to such floating debt or eiaims against said city for 1878 and previous years, merged, and to-be merged into executory judgments whether absolute or rendered against the revenues of any particular year or years previous to the year 1879.”

We do not think a judgment against the city for damages for eviction rendered against it under its warranty obligations, tracing back to and resulting from a contract of sale (made a great many years-before) is a “floating claim” of such a character as to fall under the-exceptional terms of the act.

The obligation is not one which was created for or against any particular year or years.

It was a debt of a kind, which, when ascertained ^nd declared by-judgment, was protected from impairment through adverse legislation and against whose aggressive, hostile, present enforcement, the funding plan and law were specially designed to guard.

When presented for funding, the claim was in the form of an executory judgment, existing at the date of the Act of 1884, and registered' under the provisions of Act No. 5, extra session of 1884. It, therefore, fell precisely under the terms of Section 3 of Act 67, of 1884.

We think that for the same reason that the judgment falls directly under the terms of that law, the Board is not in a position to question the rights of the creditor to fund the claim on the ground of prescription.

It was not prescribed at the date of the passage oí Act No. 67 of 1884; it was then an existing, valid, registered judgment, and the direction of the law makers was express to the Board of Liquidation that it should fund all such judgments.

The board so finding it, was not required to go behind the fact to-examine and ascertain -whether prescription might, or might not, have subsequently run against the judgment.

The judgment of the Court, of Appeals being, in our opinion, correct, it is hereby affirmed.

Me. Justice Monroe recused, having tried the case in the court of first instance.


source: Caselaw Access Project

author: Nicholls, C. J.

license: Public Domain

text:
    No. 13,078.
    Mr. and Mrs. Carl P. Maus vs. Theodore Broderick.
    Syllabus.
    The fact itself that a team is found running away upon the streets of a city without a driver requires explanation as to how and why this should have been, and if the driver is not produced as a witness or his absence accounted for, it is fair to presume that no satisfactory explanation could have been given.
    ON APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      É. Evariste Moise, Jno. Wagner and Giunio F. Socola for Plaintiff and Appellee.

      John B. Fisher for Defendant and Appellant.
    Argued and submitted April 22, 1899.
    Opinion handed down May 15, 1899.
   The opinion of the court was delivered by

Nicholls, C. J.

The plaintiffs are husband and wife. ■

• They sue the defendant asking damages to the amount of forty-one hundred dollars, for personal injuries alleged to have been received by the wife from having been thrown violently on to and against the hard, unyielding, asphalt pavement with which St. Charles avenue is paved, from a wagon which she was then driving. The allegations on which the prayer for judgment is based are that a vicious and strong-bodied horse, hitched to a large four-wheeled, heavy, covered',. vehicle, both horse and wagon belonging to the defendant, had Been placed by him in charge of an employee; that said employee carelessly and negligently, and incautiously, left the same standing on Louisiana avenue unattended and unguarded, and having no one in charge of said horse, contrary to and against the ordinances of the city of New Orleans; the said employee having, in the pursuit of the business in which he was engaged, entered one of the premises on Louisiana avenue for the purpose of delivering goods there. That the horse, during the employee’s absence, started off, dragging the heavy wagon out Louisiana avenue to Dryades, down Dryades to a cross street, and from said cross street to some point on St. Charles avenue unknown to petitioners, which point was reached with the horse at full speed. That Mrs. Maus was proceeding up St. Charles avenue on the swamp, or wood side, seated in and driving a milk wagon, intending to cross at Second street and go towards the river.

That she crossed St. Charles avenue, to proceed into Second street, when defendant’s horse and wagon (coming up the said avenue behind her at full speed, before she could avoid it, or even know of said horse and wagon) ran into and collided with the wagon which she was then driving. That in so doing, and by consequence thereof, she was thrown out of the wagon on to and against the hard, unyielding, asphalt with which St. Charles avenue is paved. That, on striking the -.pavement, she became and remained unconscious for some time. That from said fall she received severe injuries which she described, and suffered great pains, which were still continuing, and would continue . until her death.

That she was confined to her bed for more than eight weeks, and ' large amounts had been expended by reason of her injuries for physician's fees and medicines. That she had been, by reason of her iinjnries, rendered incapable of rendering the services and performing the duties which she had been capable of rendering, and had rendered before, and said incapacity was permanent; that petitioner had suffered, and would continue to suffer, loss therefrom.

That these were the direct, and immediate consequences of the carelessness and negligence of defendant and his employee; that the •employee of defendant having control and custody, of the horse and -wagon of defendant, in thus leaving the said horse and wagon standing as he did, was violating the ordinances of the city prohibiting him so to do, and it was, in itself, a gross piece of negligence on the part of both the defendant and his employee.

That they well knew the character of the horse, and that he should not be so trusted.

That she had no reason to believe that the horse and wagon coming .behind her was without any one in charge thereof, nor had she any reason to suspect or believe that they would turn to cross St. Charles .ayenue at the very point she turned, but, on the contrary, she had every right to believe that they would continue up the street. That petitioners were, neither of them, guilty of any negligence whatever, but, on the contrary, were exercising all the prudence, care, caution and skill which they were called on to exercise, or which the law of the land, or of nature, required of them.

Defendant, after pleading the general issue, averred that if any accident occurred, which was not admitted, same was contributory negligence of Mrs. Maus.

The court rendered judgment in favor of plaintiff for one thousand ■dollars, and defendant appealed.

Appellee, in the Supreme Court, moved that the judgment be increased to thirty-two hundred and thirty-hve dollars.

Opinion.

The defendant has appealed from a judgment against him- in favor of the plaintiff, for one thousand dollars as damages for personal injuries received by his wife by a collision between a wagon in which ■she was driving, and a run away team belonging to the defendant.

In order to reverse the judgment we would have to be satisfied that ■the court below erred, and be able to so declare.

As usual, in such cases, there is a conflict m the testimony.

All parties agree that on the day named in the petition, a horse, attached to a wagon, both belonging to defendant, was seen running furiously up St. Charles avenue in the rear of a milk cart which plaintiff’s wife was then driving.

That upon the latter’s attention being drawn to the fact by some one on the sidewalk, she, in order to escape injury, whipped up her own horse endeavoring to reach Second street, which she was then approaching, at which she proposed to leave the avenue, and proceed towards the river.

Before slie had well turned into Second street she was thrown violently from her cart and quite seriously injured.

One set of witnesses declare that the run away team did not touch the milk cart at all; that the accident was due, not to a collision ■between the two vehicles, but as the result of the left wheel of the milk wagon’s having struck, as Mrs. Maus was turning into Second street, an iron post such as is placed at the edges of the neutral ground on St. Charles avenue at its intersection with the various cross streets, to prevent vehicles from trespassing upon the neutral ground.

Another set declare that the milk wagon did not touch the iron post, but it was violently struck in the rear by the run away team, and thrown to one side, and this it was which caused plaintiffs wife to oe thrown out.

All agree that defendant’s team was without a driver when it was-running up the avenue.

It is not shown what caused the horse to -run away, nor is it satisfactorily shown where the team was when the running commenced, nor whether there was a driver on or around the team at that precise time. One of the witnesses said he saw' the driver running after it, but did not pretend to know more of him than this. Broderick himself was, evidently, not with it, and knew nothing of the facts, for Schultz testified that he himself had gone up to his house and told him that his horse had run away, and Donovan testifies that Schwartz and Broderick tried to stop the horse on its return to the latter’s establishment.

Broderick’s statement, therefore, that the “driver” was “thrown out,” obviously was as to a fact not within his own knowledge.

The testimony in the ease is by no means as full as would be desirable, but under the cireanistances of this particular case we think the-defendant has ..failed to show that which the situation of things called upon him to show.

There was at one time a driyer to the team; he was not produced,nor was his absence accounted for.

He, of all others, was bound to know when, where, and under what circumstances, the horse ran away. If he was on his seat, or anywhere about the team at the time, it was easy for the defendant to-have shown the fact by him.

The fact itself that a team is found running away upon the streets of a city, without a driver, requires explanation as to how this should' have been, and if it is not given, it is not an unfair inference that no satisfactory explanation could be made.

We do not attach any speeial value to the statement made by one of the witnesses, that the driver had left his team to deliver meat at the house of one of defendant’s customers, for we are inclined to think rthat this witness was testifying more to his belief than from his knowl. edge.

After going through the record we are not prepared to say that the • district judge erred in his conclusions as to the facts of the case, and this being the case we have to adopt them.

We do not see any question in law involved in the suit which calls for special reference.

For the reasons assigned the judgment is affirmed.


author: Nicholls, O. J. Nicholls, C. J.

text:
    No. 13,016.
    Tutorship of Minor Heirs and Succession of James I. Kidd, Deceased.
    Syllabus.
    1. A minor on reaching majority is required to have recourse to an action foi an account to have recognized and enforced a claim against his father oí monies of his received by the father during tutorship, but not for a claim for a debt due to his mother transmitted to the minor by inheritance from her for paraphernal funds received by the husband and converted to his own use during the marriage. The prescription of four years provided for by Art. 362 of the Civil Code applies to claims of the former but not of the latter character.
    2. No fixed rule can be formulated for the ascertainment of the existence and the extent of the liability of the community to the succession of the husband for his separate funds expended for its use. The circumstances and surroundings of each ease have to be considered to determine whether the community could and would have been in the situation in which it was at the date of the husband’s death in the absence of having had outside assistance called in for its benefit.
    If such outside assistance would have been necessary it would be fair to presume that it had been furnished by the husband himself if he had at the time the necessary means to have done so.
    3. A written receipt given by a ward to his tutor for a certain amount paid to the former on his reaching majority would only show the fact of an indebtedness to that extent and of the payment thereof, and serve as a voucher on an account when filed, and not acknowledge the existence of a further indebtedness nor disclose, fix, nor recognize the ultimate balance due.

      ON APPEAL from the Third Judicial District Court for the-Parish of Lincoln. Barksdale, J.

      J. B. IJolstead for Plaintiff and Appellee (Mrs. Z. M. Kidd).

      8. D. Pierce for E. S. Kidd, Defendant and Appellant.

      Frederick W. Price, as Under Tutor for the Minor Heirs of James I. Kidd, Appellees.
    Argued and submitted January 23, 1899.
    Opinion handed down April 17, 1899.
    Rehearing refused, reasons assigned, May 30, 1899.
   The opinion of the court was delivered by

Nicholls, O. J.

James I. Kidd, a resident of the parish of Lincoln,, died in that parish on the twenty-ninth of January, 1896, leaving a-surviving wife and four minor children, issue of his marriage with his said wife, in February or March, 1880.

He had been previously married, in 1870, to Martha R. Sims, who-died on the twenty-fifth of August, 1871.

Of this marriage was one child, Ernest S. Kidd, who survived his mother.

The widow of James I. Kidd qualified as natural tutrix of their minor children, and proceeded to administer the succession of her husband in her capacity as tutrix. (

J. I. Kidd seems to have been a. member at different times of the partnerships of Kidd & Lewis, M. B. Kidd & Bro., Jackson & Kidd and Kidd, & Gullatt.

An inventory of the property of the succession was made, amounting in value to the sum of thirty-one thousand two hundred and fifty-eight dollars and thirty-nine cents ($31,258.39).

Of this amount ($16,507.63) sixteen thousand five hundred and seven dollars and sixty-three cents was put down as the interest of the succession in the partnership of Kidd & Gullatt and two hundred and thirty dollars ($230) as its interest in the partnership of M. B. Kidd S Bro.

In June, 1897, the tutrix filed a provisional account of her administration, accompanying the account with a petition, in which she-asked for citation upon Ernest E. Kidd, for the homologation of her account, and for a partial partition of the succession.

J.u this petition she alleged that her husband during his marriage with her had received and used for the benefit of the second com'munity two hundred and fifty dollars ($250) of her paraphernal property, which should be paid to her before any partition was made to replace said amount.

She did not place Ernest S. Kidd as a creditor upon the account, nor did she charge the second community as being indebted in any way to the separate estate of the husband.

Ernest S. Kidd answered, pleading first the general issue.

He admitted that the property inventoried and assets of the succession were acquired after the second marriage, but averred the same were acquired with the separate funds of J. I. Kidd, owned by him at the date of that marriage and brought into the community.

He consented to a partition of the property of the .deceased between the widow in community and his heirs, but denied that this could be accomplished in kind; and insisted upon a partition by licitation.

lie averred that the community was largely indebted to the succession of the deceased for separate funds brought by him into and used for the benefit of the same, in the production and acquisition of other property.

That his father owned at that time a half interest in the mercantile business of Jackson & Kidd, which was worth twelve thousand dollars; that he also owned a residence lot in Vienna, La., worth two hundred dollars, a residence and lot in the same place worth six hundred dollars; horse and buggy, cattle and hogs, worth three hundred dollars; cash in hand outside of the firm of Jackson & Kidd, five hundred dollars, and other accounts and credits.

That all of this property was brought into and used for the benefit of the community and the amount thereof should be replaced1 to his heirs before the widow in community should receive anything from1 the latter.

He averred that in the year 1870 his father was married to respondent’s mother, Martha R. Sims; that he was the sole issue of that marriage.

That just after that marriage and during the lifetime of his said wife, L I. Kidd received from his father-in-law, Isaac J. Sims, six hundred and eighty acres of land in Jackson Parish,' worth three*1 thousand dollars, sixteen hundred and fifty dollars in cash, and various movables, the whole amounting in the aggregate to four thousand eight hundred and seventy-four dollars, which said money and property were the paraphernal property and funds' of his wife and for which he became indebted to her, he having used the same for his individual behalf.

He averred that his mother, Martha R. Sims, died in March, 1871, -a creditor of her husband for said amount, leaving respondent as her sole representative; that he became by inheritance from her, a creditor of his father, with legal interest from the date of his mother’s death.

lie averred that subsequent to his mother’s death and in the year 1873 his father received for him from the succession of Isaac L Sims, respondent’s grandfather, the sum of fifteen hundred dollars in cash, and on the twenty-fourth of August, 1881, the further sum for respondent of six hundred and seventy dollars, from the succession of John D. Sims, which sum was due respondent as heir of his mother, who was herself the heir of said John D.^Sims, who was her brother.

That his father became indebted to him and his succession was still indebted to him in these last two amounts with legal interest from the date of their receipt.

That the indebtedness due to him w'as subject to a credit of four thousand dollars on the twenty-ninth of January, 1896, amount paid him that day by his father by check on Gillis, Leverich & Go., of New Orleans.

That his father took charge of the said property and money anu appropriated same to his own use, converting the property into money and using the same in his mercantile business and other speculative pursuits carried on in his individual name and for his own individual use and benefit.

That his father at no time paid or returned to respondent a’ny portion of said property or money except the said amount of Four Thousand Dollars, through the cheek stated.

That Gillis & Leverich were in failing circumstances at the time and were unable to pay the check when presented, and respondent was forced to take in settlement of same from them property from which he was not able to realize more than one-half the amount.

That the cheek was given to him by his fatherva few days before ..and in view of death and it was a full recognition by him of his obli.gations to him.

That previous to the marriage between the parents of respondent .his father had little or no property‘or money, and was not in a pecun.iary condition to make or accumulate money, but after his said marriage and the receipt of said paraphernal funds and property of respondent’s mother and the funds received from the successions of respondent’s grandfather and uncle, his father was able to and did ■engage in lucrative mercantile and speculative ventures, and with the funds made the fortune of which he died possessed. That all of said funds — the original capital and all of its earnings and profits except the four thousand dollars before mentioned — are included in the assets of the succession of his father.

That the aforesaid sums less the four thousand dollars paid as .■stated are still due to him by his father, and also legal interest thereon ■from the dates on which they were severally received and went into his hands, and that the same should be paid him out of the succession of his father.

In view of the premises, respondent prayed that plaintiff’s demand to be decreed to be the owner of one-half of the assets of the succession of J. I. Kidd, and to have the same partitioned to her unincumbered with any debts due by the community to the succession of J. I. Kidd and by said succession to respondent, be rejected; that previous to making the partition prayed for by her, the succession of his father be decreed to be legally entitled to be paid out of the said community •the amounts before shown to be due by it to the said succession, with legal interest from February 28, 1880; that after deducting this amount from the assets of the community and adding the same to the succession of J. I. Kidd, that the remainder be divided equally ■between the plaintiff and the said succession.

Respondent further prayed that he individually have further judgment against the succession for the further sum of seven thousand •and fifty-four dollars, with legal interest on four thousand eight hun-dred and seventy-four dollars, from March, 1871 — five per cent interest on fifteen hundred dollars from -, and five per cent, interest, on six hundred and seventy 49-100 dollars from August 21st, 1881, until paid, as before stated.

That the sum of $7,044.49, with interest .as stated, be taken -from the succession of J. I. Kidd and paid to respondent previous to any partition of said succession, among the heirs of Kidd, and that-the remainder of the assets of said succession be partitioned among his heirs share and share alike.

That the property to be partitioned be sold for cash and a partition be made of the proceeds.

The minors, Allie, Eva, Milton and J. Ibry Kidd, children of J. I. Kidd, by his second marriage, and half brothers to Ernest S. Kidd, appeared through their under tutor and adopted the allegations of his answer, and the prayer thereof, in so far as therein and thereby judgment was sought to be obtained in favor of the succession of J. I. Kidd and his heirs against the second community, but denying all the allegations thereof in so far as E. S. Kidd sought to obtain a judgment for himself against the succession of his father, and praying that that portion of his prayer be rejected.

The widow in community and tutrix pleaded the prescription of four and ten years against the demands of E. S. Kidd, and the under tutor of the minors filed also on their behalf a plea of prescription of four years against the same.

Plaintiff moved the court to force E. S. Kidd to elect and declare whether or not he sued his father’s succession by reason of his father having been his tutor.

This motion was overruled.

She also moved to strike out and dismiss the demands of E. S. Kidd on the grounds that the allegations did not disclose any cause of action against the community for matters prior to the date thereof.

■ That he had accented unconditionally the succession of his father, and had participated in several partial extra judicial partitions, the division of which was on the basis of one-half to the widow and the’ Other half share and share alike, to each of the five children; that he had thereby acquiesced in the rights claimed by the plaintiff and was estopped from setting up claims against his father’s succession and against the community.

That he had confounded his rights, if any he had, with his father’s succession, and could not sue himself nor claim a debt against the community of his father’s succession.

That if he had any such rights he should have provoked an admin - istration and settlement of the community before acceptance of his succession and before participating in the partial extra judicial partitions.

That the demands of E. S. Kidd could not be legally engrafted upon the proceedings before the court, but only adjudicated In a direct action against the legal representatives of his father’s succession,, plaintiff being only before the court as tutrix for a partition of the remaining effects of the community in her hands.

The exception of no cause of action was overruled and the motion to strike out was referred to the merits.

Plaintiff moved the court to fix the fee of her attorney and order the same paid out of the funds of the succession before partition.

The District Court rendered judgment homologating the provisional account filed by the tutrix, with the following amendments:

“That the minors, Alice, Eva, Milton and Ibry Kidd, represented by their under tutor, and the major Ernest S. Kidd are entitled to the sum of seven thousand dollars to be paid to them in equal portions, and that Mrs. Zou M. Kidd be paid the sum of two hundred and fifty dollars, said sum to be paid before partition.”

It further ordered, adjudged and decreed that the plea of prescription of four years interposed’ by the tutrix and under tutor be sustained and the demand of E. S. Kidd for the balance due him by his father be rejected; the costs to be paid by the succession, non-suit as to partition.

An order of appeal suspensive or devolutive was granted to the tutrix and a like appeal was granted to E. S. Kidd.

The latter perfected his appeal; the tutrix did^not.

Mrs. Zou M. Kidd individually and as tutrix, answered the appeal praying that the judgment be amended by rejecting the demands of appellant in toto and by fixing and allowing counsel fee of accountant out of the succession as a whole.

Opinion.

The first point to which we direct our attention is the denial by Mrs. Zou M. Kidd, widow in community of James I. Kidd, and tutrix of their minor children, of the right of Ernest S. Kidd, a child of her husband by a first marriage, to raise the issues he had raised in this-proceeding.

She contends that “an heir of the first wife has no right to inject' demands against his father into a partition proceeding of the community of the last marriage between the widoyr and minor heirs; (children of the second marriage) on the one side, and the major heir, the child of a first marriage, on the other.

That the heir of the mother stands as a third party to the proceeding. That the father’s heir cannot set up in the partition what his father owed him as tutor. That the; present proceeding instituted by her, looked simply to a partition of the remainder of the property of the succession, and that issue should not extend beyond that question.

After the death of J. I. Kidd, his widow qualified as natural tutrix ■of their minor children. In June, 1897, she filed an account designated as a provisional but evidently intended as a final one so far as the succession was concerned, and in the same proceeding she asked for a partition claiming half of the entire succession as partner in community, and asking that the other half be equally divided between Ernest S. Kidd, child of the first marriage, and the four children of the second marriage, all minors, making no mention of any indebtedness by the succession to Ernest Kidd, nor of any community debt to the succession of the husband.

E. S. Kidd was made a party defendant and filed in opposition to the account, an answer setting up the demands on which this contest is based. He joined in the prayer for a partition, insisting, however, that it should be made by licitation. The under tutor of the minors of the second- marriage also consented to the partition. All of the property now remaining belonged to the second community. The ’husband having died first, the settlement of his succession carried with it as an incident, the settlement of the community.

The widow in this case was as tutrix administering the succession -of her husband.

Parties holding claims against the succession if denied, were authorized to bring suit against her as representing the entire succession to have the same recognized.

Ernest S. Kidd claimed to be a creditor of his father’s succession partly for. property and funds for his mother, received by him during his lifetime and converted by him to his own use and partly for monies belonging to him received by his father after his mother’s -death, while he was a minor.

He was interested in his father’s succession and also in the second ■•community both as a creditor and as an heir.

Before he had instituted any proceedings (the tutrix filed an account called provisional), he was called into court by the widow to-show cause why the account filed should not be approved, and as de-. iendant in a partition proceeding which carried with it between the heirs and widow an adjustment of the rights of the parties.

The community and its affairs were not alone before the court for settlement, but also those of the succession of the husband, whose separate rights and obligations were so interconnected with and so interdependent upon those of the community as not to be easily separated. Zeigler vs. Creditors, 49 Anl., 176.

Having filed an account of her administration and called the appellee into court for the purposes of a partition, we do not think the widow in community and tutrix was authorized to restrict it to a simple division of community property, leaving undisposed of all questions of claims between the separate estate of the husband against the wife or against the community, or of the wife against the community or her husband’s succession, or of the community against the-wife or the husband’s succession.

We think that the heirs of the husband were justified in this particular case in claiming to have a simultaneous and complete settlement of all claims and counter claims between the parties. It is true that the widow is not in privity with the heirs of the husband in the-settlement or partition as an independent matter of the succession of her husband or after the community has been liquidated, and that it would not be permissible to blend community with separate property in sales to effect partitions (Mayor vs. Arment, 14 Ann., 181), and' that proceedings like the present appear to involve a partition within a partition, or rather a double partition in the same action, but the succession matters proper can be easily kept separate and distinct from those of the community.

The widow in community might be an unnecessary party in respect to questions exclusively affecting the separate estate of the husband,, but we do not think her simple presence in the suit without participation would work injury. There might be eases presented under such conditions as might make it important and proper to consider separately the affairs of the succession and those of the community, but that we think, could be left to be determined as a matter of practice, as they would arise and special facts shown. (13 Ann., 464, Succ. of Tucker).

We do not think that under the circumstances of this ease, the form-in which the issues were presented was calculated to work injury to any one and it had a tendency to avoid successive litigation which could well be closed at once. Ernest S. Kidd as creditor of his father’s succession, could have gone into the partition proceedings by intervention. Being both creditor and heir, we see no objection as matters took shape, to his proceeding in the way he did. The objections urged are leveled at that portion of his demand wherein he sought to be recognized as heir of his mother and as a creditor of his father’s succession. The conclusions we have reached on that branch -of the case make this question an unimportant one. It is contended that dames I. Kidd, having been appointed tutor of his son, Ernest, after his mother’s death the son was restricted in his remedy to an action for an account of tutorship, that he was not authorized to bring as he was doing a direct action or claim against the succession of his father as being his debtor for the amount of monies belonging to him, which had gone into his hands with interest.

That position is not correct so far as the indebtedness of the father to the son arose from the latter’s inheriting from his mother’s succession a debt due to her by her husband for paraphernal funds of hers received by him and converted to his own use during his marriage.

A debt of the husband to the wife so transmitted to the son as the heir of his mother, retains its separate, independent character and is not merged by reason of the father’s qualifying as the minor’s tutor after the mother’s death, into the tutorship liability for funds and property belonging to his ward, received by him during the tutorship.

It is not held by a fiction to have been paid by himself as husband •over to himself as tutor, and held as such. When the minor reaches the age of majority he is not required to obtain the recognition and the enforcement of such a claim through an action of account; nor is a claim of that character covered by the four, years’prescription of Art. 362 of the Civil Code. He has the right to proceed upon it by direct action. This has been repeatedly held. Ziegler vs. Creditors, 49 Ann., 145; Pertruit vs. Damare, 50 Ann., 893; 1 N. S., 334; 1 La., 347; 31 Ann., 535; Cambre vs. Grabert, 50 Ann., 808; 28 Ann., 830; Bridges vs. Simonton, 6 La., 163; Commagre vs. Gally.

The claims for amounts received by the tutor for the minor during the tutorship stand on a different footing. That claim has to be advanced and urged through an action for an account, and if that account is buried by the four years’ prescription the claim itself is lost.

It is the necessity of having recourse to the particular method of proceeding by action of account and the loss of the same by non-faction which controls the situation. Ludwig vs. Weber, 35 Anl., 581; Commagere vs. Gally, 6 La., 163; Cochran vs. Violet, 37 Anl., 224-225; Bedell vs. Calder, 37 Anl., 809; Gallion vs. Keegan, 39 Anl., 468. The fact that a tutor should pay his ward arrived at majority a certain amount of money avowedly to be credited to the tutor in his final account with him but without at the time a final adjustment and settlement of the tutorship, would not keep the right of action for an account open for four years from that date. A written receipt for the amo’im paid if produced would only show the fact itself of an indebtedness to that extent and of the payment thereof and serve as a voucher on an account when filed for the amount paid, ■but it would not fix or disclose nor recognize the ultimate balance due.

The evidence satisfies us that J. I. Kidd was appointed and qualified as tutor of the minor Ernest, after the death of his mother, and that he received in that capacity for appellant the various amounts which were received by him after his wife's death. The prescription of four years bars recovery for those claims. That prescription, as we have said, would not have barred recovery of monies of paraphernal funds of the wife received by the husband during the marriage, had the existence of claims to the extent asserted been satisfactorily shown, but that fact has not been so shown.

Appellant has been made an unfortunate sufferer by the destruction' of the records of the parish of Jackson, and the consequent destruction of the evidence necessary to establish a portion of his demand. But for the check given him by his father for four thousand dollars, we would not have been able to have sustained claim against his father for even that amount. The evidence going to establish his father’s indebtedness to him for three thousand dollars, for proceeds of 'the sale of land donated to his mother by her father and converted by him to his own use, is of a very weak character, too weak to support, a judgment for the same.

The most difficult issue in the case is the ascertainment of the situation of the second community with respect to any indebtedness due by it to the succession of the husband.

The evidence shows that at the date of his second marriage, in February, 1880, Kidd was an equal partner in the commercial firm of ■ Jackson and Kidd, whose assets at that time consisted of a storehouse and stock of goods which, were worth about twenty thousand dollars. That he owned two lots of ground at Vienna, worth about eight hundred dollars, and a few movables of no very great value. Kidd’s partner, Jackson, says he was at that time worth five thousand dollars, outside of his partnership interests, But the statement made is not sufficiently verified or corroBorated by details to carry much , weight as evidence, though it is probably well grounded.

He is not shown to have had any real estate upon which the monies he then had were likely to have been expended in the way of permanent improvements thereon.

Mrs. Kidd had at the time no property nor none afterwards other-than two hundred and fifty dollars, which her husband received. The inventory of the succession of Kidd showed assets to the amount of-, all belonging to the community.

The partnership of Jackson and Kidd was dissolved in 1882, and in the interval between Kidd’s second marriage and June or July, 1881. did a large and prosperous business.

At that date their storehouse, worth about a thousand dollars and almost their entire stock of goods were consuined by fire. The property was only partially covered by insurance and the amount of loss over and above the same was about five thousand dollars.

From that time on the business was carried on with a view to-closing, and iu fact the partnership ended the next summer. On' a partition made at that time between the partners, each received about six thousand dollars. Kidd afterwards formed a commercial partnership with Gullatt, under the name of Kidd and Gullatt, which continued up to the former’s death.

He seems to have been a prudent, conservative business man, engaged almost exclusively in mercantile business.

•The evidence does not show him to have met with any business losses or reverses. Under these circumstances it is claimed by the widow that the entire property left at her husband’s death belongs to the community, and that her husband’s succession is entitled to nothing. That there has been a failure on the part of his heirs to show by direct evidence that any portion of his separate estate was used for the benefit of the community.

That it is not sufficient to show that at the date of the marriage or at any particular time during the marriage, her husband had in his possession and under his control a certain amount of money belonging- to himself individually, to justify his heirs in obtaining a judgment in their favor against the community for that particular amount, if the whereabouts of the money could not be ascertained.

In dealing with this question as to the liability of the community to the separate estate of the husband for separate funds claimed by his heirs to have been expended by him for the community, each case has to be disposed of under its own particular state of facts, as shown by the record. No fixed rule or standard as to extent of the evidence necessary to sustain such a claim can be formulated. We have to take into consideration all the surroundings and circumstances connected with each case to ascertain whether it can be reasonably said that the situation of the community at the time of the husband’s death could or would have been found as it was, in the absence of having called into its assistance and for its benefit outside funds and property.

If this could not be reasonably said, we do not think we would be likely to fall into error in presuming (if the husband himself had at that time separate funds which could be applied for that purpose), that he himself had in fact furnished this assistance; the only trouble would be to ascertain with sufficient definiteness what the amount applied was.

In the case at bar if the husband did not furnish his means for the benefit of the community and if they do not stand represented by a claim against the community, it is difficult to know what became of them and still more difficult to know by what process and through what instrumentalities the community acquired the property belonging to it described in the inventory. The partnership of Jackson and Kidd existing as an entity prior to Kidd’s marriage, separate and distinct from the parties who composed it, kept up and retained that same character separate and distinct from the community up to the-time of its dissolution, though one-half the profits enuring therefrom fell into the community.

During its existence each partner must have drawn from time to-time from its profits and applied the same, it may be reasonably supposed, for their family wants. If Kidd’s family was not supplied from that we cannot imagine from what other quarter it was.. The effect of our recognizing the right of the heirs of the husband' to withdraw prior to the partition of the community the amount of his sejiarate funds, reasonably ascertained to have been utilized for its benefit, will not be to leave it in a condition of insolvency, but with surplus of profits over expenditures simply reduced.

The community which started with nothing at all and with the large demands upon it for the support of the family and with nothing but the husband’s capital and his personal services applied to that capital to work on, would still come out on dissolution with a large amount belonging to it.

It would be inequitable under the situation shown by this record to permit the whole capital of the husband to be sunk and lost by leaving the succession of the really active worker in the same to suffer.

It is, we think, a proper case for permitting the spouses to withdraw from the property left at Kidd’s death the amount of the separate estate of each, and to partition the balance representing profits exclusively between the widow in community and the heirs of the husband.

We think we can safely fix ten thousand dollars as an amount of .separate funds of James I. Kidd expended during his lifetime for the ¡benefit of the community. Menhert vs. Dietrich, 36 Ann., 390; Succ. of Webre, 49th Ann., 1491; Succ. of Billington, 50 Ann., 969; Succ. of Blanchaud, 48 Ann., 578; Heirs of Gee vs. Thompson, 41 Ann., 354; Denegre vs. Denegre, 30 Ann., 278; Succ. of Rhodes, 39 Ann., 474; Succ. of Boyer, 39 Ann., 509.

The District Court non-suited the application for a partition. Although there was a difference of opinion as to the method of making it, all parties agreed and prayed that one should be made.

The right to a partition is an absolute one. The court should have ordered the partition and fixed its mode. We think justice would be best subserved by reversing the judgment on that particular subject and remanding it to be disposed of finally by the lower court.

For the reasons assigned it is hereby ordered, adjudged and decreed that the judgment appealed from be amended by increasing the amount due by the community between Jarnés I. Kidd and his second wife, appellee herein, up to the sum of ten thousand dollars, and that it be annulled and avoided and reversed in so fair as it non-suits the parties upon their demands for a partition, that the judgment appealed from except in so far as herein amended and partially reversed, be affirmed and that the cause be remanded to the District Court for further proceedings according- to law in respect to the matters left open by this judgment.

On Application foe Rehearing, or Amendment of Judgment.

Nicholls, C. J.

Ernest S. Kidd, one of the appellants herein, asks the court to so amend its judgment, as to leave open the question of the paraphernal debt alleged to be due by J. I. Kidd to his first wife, sued for herein by said appellant, as her heir for paraphernal funds •of the said wife received by her husband during their marriage, and converted to his own use and benefit, and to order that issue to be tried over again in the District Court,' and to allow appellant to introduce other and additional evidence to sustain this part of his demand.

In support of this application, he avers, that he has now in his possession a letter written by his father, in which he acknowledges the amount of paraphernal funds'received from his wife.

That this evidence was not available at the first trial, having been discovered since. That in addition to this, he has made the discovery that the act of sale (notarial in form) from J. I. Kidd and his wife to W. F. Sims, prior to the destruction of the records in Jackson Parish, was recorded in Lincoln Parish.

In our original opinion in the case, we stated that this appellant had been an unfortunate sufferer from the destruction of the records in Jackson Parish, which had caused him to place his claims before us upon insufficient evidence. We think it in the interest of justice that he should be given an opportunity to furnish some evidence hereafter, if he can. It is claimed that he will be able to do so. This matter comes to us rather irregularly, but we think it our duty to act upon it. Davis vs. Dancy, 1 N. S., 589.

For the reasons assigned, it is hereby ordered, adjudged and decreed, that the judgment hereinbefore rendered by us in this case be amended so as to annul and reverse that portion of the judgment of the District Court appealed from which rendered judgment against Ernest S. Kidd, upon the demand and claim set up by him against his father, James I. Kidd’s, succession for monies received by his said father during his marriage with the mother of said Ernest S. Kidd belonging to her separately as her paraphernal funds, and converted by her husband to his own use, and it is now ordered, adjudged and decreed that the matter of said claims be left open for examination by evidence and for decision, and be tried and disposed of by the District Court under. our decree heretofore rendered, remanding ihis cause to said court for further proceedings according- to law.

There being no necessity for a rehearing in order to make this alteration, in our former judgment, the rehearing applied for is refused.

Monroe, J. takes no part, the case having been submitted prior to-his accession to this bench.


author: Vatkiks, J.

text:
    No. 13,079.
    The City of New Orleans vs. Lucien F. Lozes.
    Syllabus.
    Ordinance No. 14,807, C. S., which provides a meat inspection service, and a' precedent observance thereof as a condition of the right to either expose same for sale, or to sell the same in the city of New Orleans, is legal, valid and constitutional; and same evidences a proper and legal exercise of police power, for the protection and preservation of the public Health and sanitation of the municipality.
    In this regard, the city has ampie warrant of law to pass ordinances requiring ante-mortem inspection of animals intended to be slaughtered for use as human food, as well as those requiring post mortem inspection of the meat of such animals before same is placed upon the market for sale.
    ON APPEAL from the First Recorders Court of the City of New Orleans. Finnegan, J.

      James J. McLoughlin, Assistant City Attorney, and Sami. L. Gil-more, City Attorney, for Plaintiff and Appellee.

      B. B. Howard, H. 0. Hollander and A. M. Aucoin, for Defendant,. Apppllant.

      Saunders & Miller as amid curiae.

    Argued and submitted March 11, 1899.
    Opinion handed down April 3, 1899.
    Rehearing refused May 29, 1899.
   The opinion of the court was delivered by

Vatkiks, J.

An affidavit was made against the defendant to the effect that, on the 4th day of December, 1898, at about the hour of 4 o’clock a. m., in the Ninth Street Market, in said city, he did violate Ordinance 14,807, Sections one (1) and two (2), by selling or offering for sale, meat, without same having been first inspected, marke.1 or tagged; whereupon, he was charged with having been guilty of an offense for which he should be arested and dealt with according to law.

To this charge the defendant tendered the following demurrer, viz.:

1st. That the pretended ordinance No. 14,807, O. S., is illegal, ultra vires, null and void and of no effect, for the reason that the city council of the city of New Orleans is and was without authority tc pass same.

2nd. That said pretended ordinance is unconstitutional, because it seeks to impose a tax which 'has already been imposed by the State of Louisiana; and the same is illegal, null and void, being in conflict with the provisions of Act 118 of 1869, Act 144 of 1877, Extra Session, and Act 87 of 1888.

3rd. That said ordinance is illegal, because by the enactment of said laws, with regard to the inspection of meats intended for consumption as human food within the parish of Orleans, the entire subject matter “has bec-n entirely and completely placed under the power and jurisdiction of the State Board of Health of the State of Louisiana.”

4th. That said ordinance is illegal, because it seeks to set aside and render of no effect the provisions of Act 87 of 1888, under and in pursuance of which his meat had been already inspected, and a proper certificate issued to him, and for which he had already paid the necessary and legal fees; and, hence, this is ah attempt on the part of the city of New Orleans, through its board of health, “to exact a dual fee for one and the same service,” in violation of the Constitution and law.

This demurrer was overruled, and the defendant was tried, upon the introduction of evidence was convicted, and sentenced to pay a fine of fifteen dollars, and in default of payment of same, to suffer imprisonment in the parish prison for a period of fifteen days; and from that sentence, he prosecutes this appeal.

The case comes to us on the ground that, the recorder erred, in overruling the defendant’s demurrer.

As explanatory of the situation, we make the following extract from the brief of defendant’s counsel:

The defendant was a butcher, doing business in the city of New Orleans, and having his cattle slaughtered„in the parish of St. Bernard, under the supervision and regulations of the State Board o£ Health, paying for the inspection and receiving a certificate therefor, to the effect that the cattle inspected were healthy, and fit for human food, and had been slaughtered at the Crescent City Slaughter House.

The cattle are slaughtered, and the city seeks to collect from him, under Ordinance 14,807, O. S., another fee for the same service, through the inspector of the Municipal Board of Health of the city of New Orleans.

Said board-inspected the meat, but refused to tag the same, because the defendant declined to pay the second fee for said inspection and he was arested under the charge of selling meat which had not been inspected, and, thereupon, he entered the demurrer on the grounds stated.

The first contention of defendant’s counsel is, that said pretended Ordinance 14,807, O. S., is illegal, null and void, because the city was without power to pass the same, it being in conflict with Act 192' of 1898, and Act 87 of 1888, and Act 118 of 1869 — said legislative enactments having vested the exclusive power and authority in the State boards of health specially provided for therein, and repealed all laws or parts of laws in conflict or inconsistent therewith.

The second contention is, that said ordinance is unconstitutional, because it seeks to impose a tax that has already been imposed by the State of Louisiana for the same service, and for that reason, it is in direct conflict with the provisions of the legislative acts referred to.

Or, in other words, that those respective acts especially impose an. inspection, feé for meat slaughtered at the Orescent City Slaughter House, to be brought into the city of New Orleans for human consumption, and that, hence, the city of New Orleans is without power to impose another tax for exactly the same service.

Defendant’s further contention is, that by laws enacted for the regulation and inspection of meats, intended for sale in the parish of Orleans, for human consumption, the entire matter is exclusively in-the hands of the State authorities, and that the city of New Orleans has nothing to do therewith.

Counsel for the defendant makes the following statement of the facts on which these contentions are founded:

That the defendant in this case had his meats inspected under Act 87 of 1888, and Act 192 of 1898, by the officers of the State Board of Health. .

That the city Board of Health is only auxiliary to, and a branch of the State Board, and is specifically prohibited from acting independ-. ently of the State Board; but, on the contrary, is compelled to act under the supervision and advice of the State Board of Health, and to do no act in conflict with the powers and duty of the State Board.

This ordinance therefore provides that the second fee Herein sought to be collected shall be paid practically to the same health authorities, which is in violation of the said Constitution.

Counsel further contend that the only inspection that was offered to the accused was within the limits of the parish o'f St. Bernard, and therefore, outside of the parish of Orleans; and, consequently, not within the limits prescribed by the ordinance, that is, the city of New Orleans.

That.no inspection is offered or attempted in the city of New Orleans under said ordinance.

Re-stating and combining the foregoing objections, counsel for the defendant submits that the ordinance in question is illegal, unreasonable, unnecessary, and serves no good purpose whatsoever; but, on the contrary, it places an unnecessary burden and tax upon the people and upon the accused, in violation of the tenor and spirit of said laws.

The contention of the city attorney is that Ordinance 14,807, C. S., imposes a penalty upon any person offering untagged and uninspected meat for sale, and that the defendant, as a butcher, is charged with having offered for sale in a public market of the city of New Orleans, meat intended for human food, which had not been inspected by the inspectors of the City Board of Health — the meat having no tag or stamp showing that such inspection had been made.

That consequently, the question presented is, of the power of the city to pass said ordinance, bci-&iise the power of inspecting meats was exclusively vested in the State Board.

The city attorney further says: “There is no question of the “power of the city to pass any ordinance to protect the health of its ■“ citizens, nor can it be disputed that an ordinance providing for the ■“ inspection of meat which is to be consumed’ in N ew Orleans is a “health ordinance.

“Now, unless the State has divested the city of the right to protect “ its inhabitants from bad meat, then the power to protect resides 'in “ the council.

“But, we need not go that far. The very act which the defendant “ cites, Act 192, of 1898, not only divests the State Board of Health of “ any supervision whatever over meat which is to be consumed by the “ people of New Orleans, but expressly confers it upon the City Board “ of Health, exclusively.

“The Constitution of 1898, Article 296, reads: ‘The General As- “ sembly shall create for the State, and for each parish and munici- “ pality therein, Boards of Health, and shall define their duties and “ prescribe the powers thereof.’

“Act 192 of 1898 is entitled: ‘An act to carry into effect Article 29G “ of the Constitution of 1898.’ And Section 9 of the act, says:

“ ‘The Municipal Board of Health of the city of New Orleans shall “have the exclusive right to the collection of all fees and charges, “ now being made by the present State Board of Health, within the “ city of New Orleans, other than those accruing from coal oil inspee- “ tion and the registration of physicians, midwives and dentists.

“The Municipal Board of Health of the city of New Orleans shall “have the exclusive supervision or authority over meat inspection "service and sanitary regulations at the slaughtering pens, or abbat- “ toir, in the parish of St. Bernard, with regard to all meat intended for human consumption within the city of New Orleans.’ The same “ section nine repeals all laws or parts of laws inconsistent with or in “ conflict with this act of 1898.

“From which it is plain that the entire and exclusive control of the "inspection of meats in the parish of St. Bernard, at the slaughter “ pens, is conferred upon the City Board of Health in so far as meat " intended for human consumption in New Orleans is concerned. '

“Such being the case, any other inspection is irregular, ultra vires, “ null and void. It is admitted in this case that the meat offered for “ sale by the defendant was intended for consumption in the city of “New Orleans, and came from animals slaughtered at the slaughter- “ ing pens in the parish of St. Bernard. Such being the facts, it is R incompetent for any other inspector than the inspector of the City “Board of Health to issue any certificate of inspection of meats “slaughtered in St. Bernard for New Orleans consumption; and the “ attempt of the defendant to introduce in evidence a certificate of the “ inspection of certain live cattle issued by a person not the inspector “ of that board, was properly objected to by counsel for the city and “ the ruling’ of the court admitting such evidence was incorrect.

-x -x * •> ***** * *

“That said certificate related solely to live cattle, whereas the city “ board’s inspection is of dressed meat only.”

Ilis contention is further, that defendant’s case rests upon the provisions of the act of legisature above referred to, which relate exclusively to cattle on the hoof, and not at all to dead meat; and, if they did refer to dead meat, they would be superceded and repealed by the provisions of Act 192 of 1898, above referred to.

Summing up all these various contentious, the question comes to this, whether the city, in the exercise of its police power, or under the terms of the Constitution and law of 1898, has the power to regulate the inspection of meat at the slaughter house, or in the city of New Orleans, which is intended for use as human food; or, whether the same are inoperative by reason of the fact that said former laws •confer upon the State Board of Health the power of inspecting live cattle intended to be slaughtered for use as human food.

The general rule governing the construction oí statutes, as well as precepts of the Constitution is, that apparently conflicting provisions of either or both, shall rather receive that construction which will render them harmonious, than one which will render any portion inoperative and void.

The several acts referred to and relied upon by counsel for the defendant. relate, exclusively, to.the slaughtering of live cattle, that is, those on foot, or on the hoof, which slaughtering is and was, in contemplation thereof to be done outside of and beyond the territorial limits of the city of New Orleans.

Ordinance No. 14,907, O. S., provides, amongst other things, that it shall not be lawful for any person, firm or corporation, restaurant, '“ or hotel, to sell or offer for sale, or deliver the meat of any animal, '“not considered game or fowl, intended for human food, within the city of New Orleans, without the same has been first inspected and passed upon and approved by the officers appointed and empowered “ for such duty by the municipal Board of Health of the city of New “ Orleans, etc.”

It further provides “that such meat, when so inspected, passed upon “ and approved, shall be properly marked and tagged by said inspeet- “ ors, and same shall not be allowed upon the stalls of any market, “ whether public or private, or exposed in any other way, or at any “ other'place, or delivered to any hotel, restaurant, person or persons, “ unless so tagged, and marked, after having been inspected by the in- “ spectors of said Board of Health.”

It further provides “that for the purpose of meeting the costs of “ said, inspection, the owner of the meat inspected, or the person in “ possession of the meat inspected, shall pay the following inspection “ fees to the Board of Health”- — enumerating them in detail.

This ordinance, in terms, includes the case presented by the defendant, and brings him within the penalty therein provided for a violation thereof.

It appears quite evident, that the ordinance deals exclusively with the insx)ection of meal, or flesh of animals already slaughtered, and which is intended for use as human food within the city of New Orleans; and that it is an essentially different subject-matter from that with which the general assembly- dealt in the statutes quoted — the inspection of live cattle, although intended for human food.

For, notwithstanding the live cattle upon proper and careful inspection are found healthy and suitable for the purpose of being slaughtered for human food, non constat, that when slaughtered and prepared for market, the meat is suitable for human food, when subsequently put upon the market for sale.

Were no restraint put upon a subsequent sale of fresh meats by means of contemporaneous inspection by the proper officers of the City Board of Health, great abuse of the privilege might result, and great and incalculable injury be inflicted upon the community thereby, notwithstanding a rigid and careful inspection had been made prior to the slaughter of the animals.

But, if this were not so, we are of opinion that the ordinance is fully-authorized by the law of 1898, and that the statute is constitutional.

Act 192 of 1898 was passed for the express purpose of putting into operation Article 296 of the Constitution of 1898, which requires the general assembly to “create for the State and for each parish and municipality therein, boards of health, and to define their duties and “ prescribe the powers thereof.”

Its further object is to provide for the protection and preservation, of the public health, and for “a general sanitation of the State and a “ local sanitation of parishes and municipalities, etc.”

That act provides “that the council or legislative body of each and. “every incorporated municipal government in the State shall estab- “ lish and organize a town or city Board of Health” — indicating the particular method of the establishment and organization thereof.

It specially authorizes and requires said municipal boards “ to ap- “ point a sanitary officer, whose duty it shall be to enforce the require- ments of said board in all matters of sanitation, etc.” Ibid, Section five (5).

It further specially provides “that said parish and municipal “ boards shall have power and authority to pass health and sanitary “ ordhiances for defining and abating nuisances, dangerous to public “health; ******** * “ to regulate the carrying on of trade and business injurious to public “health; * * * * * and generally (to pass) “all health and sanitary ordinances necessary and incident to the-“proper local sanitation of the parish, city or town in which they “ exercise their powers.”

It further provides, ex industria, that it 'is the object and purpose of this act “to entrust full power and authority to such local boards “ to establish, control and administer all matters of strictly and purely “ local sanitation, not affecting other portions of the State.” Ibid., Section seven (7).

A comparison of the foregoing provisions of the statute with those of Ordinance No. 14,807, C. S., will show them to be perfectly harmonious and consistent. It is of no material consequence that a municipal Board of Health now existing or which may be hereafter created would possess a similar power to pass ordinances upon the same, or like subjects; as the city is primarily charged with the duty of protecting and preserving the public health, and of maintaining the municipality in a proper sanitary condition.

In furtherance of that idea, we are referred to the provisions of several ordinances prior in date to that of No. 14,807, C. S., which was adopted on November 10th, 1898.

The first is Ordinance No. 13,487, C. S., bearing date July 6th, 1897r ■which provides that “it shall be unlawful for any person, firm or eor- “ poration to sell, or offer for sale, or deliver the meat of any animal “not considered game, intended for human food, within the city of '“ New Orleans, without same having been first inspected and passed “ upon and approved by the officers appointed and empowered for such duty by the Board of Health.”

It provides further “that such meat when so inspected, passed upon, “ and approved, shall be marked or tagged by said inspectors, and same “ shall not be allowed upon stalls of any market whether public or pri- “ vate, unless so tagged or marked after having been inspetced by said '“ inspectors of the Board of Health.”

It further provides for the punishment of persons who violate its provisions.

That ordinance was, afterwards, supplemented, by file passage of Ordinance No. 18,689, bearing date October 5th, 1897, which dealt with the counterfeiting of any tag or stamp provided for in the ■original ordinance, and affixing a penalty for such an act.

The particular significance of the foregoing ordinances is, that they precede in date both the Constitution and statute of 1898, and appear never to have been assailed'or questioned as either illegal or unconstitutional on the grounds now stated, for the first time, notwithstanding they are precisely similar in terms to those of Ordinance No. 14,807.

But, there is an additional ordinance, No. 14,548, bearing date August 31st, 1898 — and which appears to have been adopted intermediately between the passage of the act of 1898, and Ordinance No. 14,807' — which specially deals with “the slaughtering of cattle and “ other animals at the abbattoirs, and providing a system of inspection “ of meats.”

That ordinance provides, amongst other things, “that all meals “ brought into the parish of Orleans requiring inspection under “ Ordinance 13,487, O. S., must bear evidence of having undergone “ previous inspections, i. e., must bear the stamp or certificate of some “specially accredited State, municipal, or United States official, at- “ testing the fact that the animal has passed both an ante and post mortem inspection.” Sec. 10, Ordinance No. 14,548.

This ordinance puts the proposition of the city council in a very-plain light, by requiring that all meats broua-ht. into the city, which are intended for use as human food, shall bear evidence of having undergone previous inspections; that is to say, that same have passed both ante and post mortem inspections.”

This ordinance conforms the inspections of meats to the idea herein-before outlined; and it seems to us to be a most reasonable regulation,, and one tending to the protection of the public health.

It shows clearly that in the appreciation of the city council a single inspection of cattle on the hoof, before being slaughtered, was-insufficient and inadequate; and in that opinion, we concur.

We find nothing in either the Constitution or statute of 1898, contrary thereto.

In our opinion, Ordinance No. 14,807, O. S., is legal, valid and constitutional.

Judgment affirmed.

Monroe, J., takes no part, as he was not a member of the court when the case was submitted.