author: Miller, J.

text:
    No. 12,306.
    J. W. Jones vs. J. S. N. Freeman.
    TUe plaintiff, contesting an election, relying on a paper purporting to be tally list of the votes, not attested by the commissioners appointed by the Board of Supervisors, and on ballots with the paper delivered to the clerk of the court by one of such commissioners and a person not shown to have had any official relation to the election, the plaintiff producing no supporting testimony that the paper and ballots exhibit the result of the election, has no cause of complaint, if, in that condition of the proof, the jury give controlling effect to the compilation of votes and proclamation by the Board of Supervisors also placed before the jury, announcing the election of defendant; under the law, that proclamation standing as evidence of defendant’s election, unless overthrown by proof. Election act of 1894, !Mo. 181, Secs. 86, 37, 40,42.
    A PPEAL from the Tenth Judicial District Court for the Parish of Natchitoches. Hunter, J.

      Jack, Tucker & Fleming for Plaintiff, Appellant.

      Pierson. & Porter and Scarborough & Carver for Defendant, Appellee.
    Argued and submitted February 16, 1897.
    Opinion handed down March 29, 1897.
   The opinion of the court was delivered by

Miller, J.

The plaintiff appeals from the judgment dismissing his petition contesting the election of defendant as sheriff of the parish of Natchitoches.

The petition charges, in substance, that the Board of Supervisors excluded in their compilation of the votes cast at the election the vote east at Ward 3 of the parish, and thus deprived petitioner of the count in his favor of a majority of one hundred and eighty-seven he claims to have received at that poll as a candidate for sheriff. At other polls he charges the receiving of illegal votes, the exclusion of legal votes and other wrongful acts on the part of the commissioners to his prejudice by which he claims he was deprived in the count of a number of votes cast in his favor, and he allegés that the votes cast for him, but not counted by the Board of Supervisors, were enough to overcome the majority of sixty-five in favor of the-defendant, proclaimed as the result of the election by the Board of Supervisors. The answer of the defendant avers that though given a majority only of sixty-five by the compilation and proclaimed-result, he was, in fact, entitled to more, and the answer details the illegal votes alleged to have been returned for the plaintiff by which defendant’s majority was reduced. The answer charges that in Ward 3, alleged by plaintiff to have given him a majority of one-hundred and eighty-seven, that riotous men took possession of the polls: by threats and intimidations compelled two of the appointed commissioners and the sheriff to leave; then appointed commissioners of their own, who received one hundred and ninety-two illegal votes cast for plaintiff. The answer further charges the attempt by violence to compel the Board of Supervisors to compile these illegal votes in plaintiff’s favor and avers that the entire proceedings at that poll were illegal and no votes should be counted as cast at that poll except thirty-five, of which the defendant received twenty-two,, east while the election was conducted by the lawful commissioners and before the mob took control of the polls.

The plaintiff by motion and the plea in bar, as it is termed, sought to exclude from the defendant’s answer, all defences, excepc those relating to the grounds of contest stated in the petition. There were other preliminary questions arising on the applications to count the votes before the trial; on rules to compel security for costs, and other questions which have been discussed in the brief. But in our view these questions require no consideration under the agreement of the parties as to the issue for decision.

The plaintiff excepted to the allowance of the jury, the plaintiff' insisting that under the law the trial must be by the court without a jury. The Revised Statutes prescribed the jury trial and a majority verdict as the mode to determine contested election cases. Under-the later act of 1877 and that of 1894, now in force, the method of trial is to be that for ordinary cases, save that election contests are to have a preference. As trial by jury is secured to all suitors who-claim it, we find no basis to deny a jury in a contested election case. Act No. 24 of 1894, No. 24 of 1877. Code of Practice, Arts. 494, 495,

On the trial the plaintiff offered in evidence the compilation of the votes and. the proclaimed result announcing defendant’s election;. there was the admission that the compilation embraced no votes at-poll three; the clerk of the court testified that the box produced by him, accompanied with a paper purporting to be the tally lists of the votes at that poll, had been delivered to him one or two days after the election, the seal on the box when delivered unbroken, until on a previous occasion it was produced in court, and that this delivery was by D. W. Childers and B. F. Adams. On the cross-examination by defendant’s counsel the witness stated the commissioners for that poll appointed by the Board of Supervisors were H. H. Oliver, D. Childers and W. M. Finley. The plaintiff offered successively the paper accompanying the box signed by H. T. Brown, D. W. Childers and B. F. Adams and the ballots contained in the box. To this defendant’s counsel objected that the paper was not attested by the commissioners of election appointed by the board, that the ballots rested solely on that paper, and hence neither the paper or ballots could be admitted in evidence, the defendants supporting the objection by the affidavit of the two appointed commissioners of the violence at the poll, the control of the mob, and that no election had been held there. The objection overruled, the defendant reserved the bill. The minutes of evidence show that the affidavit was-offered in evidence. In this condition of the proof the plaintiff closed his case, the minutes showing the ease was rested on both sides on the record as made up by the stenographer’s notes, all ocher' demands given up.” The agreement thus restricted the issue to the alleged vote at poll three and the effect to be given the evidence before the jury.

The argument for plaintiff is, substantially, that the paper accompanying the box and the ballots in it showed the plaintiff’s election. The election law provides that the duly appointed commissioners shall conduct the election, count the ballots, replace them in the box sealed, and deliver the tally lists, list of voters, compiled statements and ballot boxes to the Board of Supervisors. On the returns thus made the board is to compile the total vote at all the polls, proclaim the result, and on that proclamation the commission issues to the successful candidate thus announced. Act 181 of 1894, Secs. 36,37, 40, 42. In this ease the paper relied on by plaintiff is not attested by the commissioners appointed by the board, but is signed by one only and two persons not shown to have had any official relation to the election. It is urged on behalf of the plaintiff that the law authorizes one of the commissioners to act, and to appoint others. But one can appoint only, when the others appointed are not present. So if none of the commissioners appointed by the board are present, the voters can select. But in a contested election when one of the parties relies solely on alleged returns not signed by the commissioners, nor transmitted to the board, the burden is on him to show the condition which under the law call to the functions of returning officers, others than those appointed by the board. The presumption the law attaches to acts of public officers is invoked to sustain this paper. But, at least, before that presumption can exert any influence, it must appear that the appointing power of the single commissioner was exerted. There is no explanation in the testimony of the signatures of the strangers to the returns, nor allegations or proof that one paper was ever transmitted to the board. On the contrary it is shown the paper with the box came into the hands of the clerk from one only of the appointed commissioners and a stranger. The law, scrupulous to preserve the integrity of the ballots actually cast, guards against any substitutions by the requirement that the commissioners themselves, or, at least, two of them, shall carry the ballot boxes and returns, not to the clerk, but to the Board of Supervisors. Act No. 181 of 1894, Secs. 37, 47. In our opinion neither the paper or the ballots were put before the jury under the sanctions prescribed by law to make either evidence in the case. The defendant’s answer, i. e., that part referring to the beginning of the elections at poll 3, was formally offered in evidence by plaintiff. The averments in the answer on this point were, in effect, the opening of the election, the violence later, the control of the mob, the voting up to the time of that control giving defendant a majority and that 192 illegal votes for plaintiff were thereafter received by those who took charge of the poll and counted by them for plaintiff. The answer, in our view did not improve plaintiff’s case. Resting on the basis supposed to be afforded by the paper, the ballots, the testimony of the delivery of the box and paper, confronted by the compilation of the votes and the official announcement of the defendant’s election, the plaintiff chose to rest his case. The jury were thus permitted to consider all the evidence produced by plaintiff, notwithstanding defendant’s objection to the paper and ballots. Without any supporting testimony the jury might well refuse to be guided by a paper and alleged ballots, the paper attested by the commissioners appointed by the board, nor accompanied with the poll list and with no explanation on that subject and with the proof that neither ballots or paper came through the channels provided by law or were laid before the board. In this condition of the record, in our opinion, the plaintiff has no cause for complaint of the controlling effect, the jury gave to the compilation and proclaimed result of defendant’s election made by the officials charged with the duty of ascertaining and announcing the result, and which stands as the legal evidence of that result, until it is overthrown by proof.

We have given attention to the discussion in the brief, whether the jury should have considered the affidavit of the two commissioners detailing the occurrence at poll 8, and stating that the votes claimed by plaintiff at that poll were illegal. The affidavit is shown to have been offered in connection with defendant’s objections to the testimony, and also to have been offered on the merits. On the rule for new trial, the contention was the paper should not have been considered by the jury. Its only function, it is claimed, was to support the objections to the testimony. The learned counsel for plaintiff evinces the sincerity of his appreciation that the affidavit should be restricted to the objections. On the other hand, the counsel for defendant certainly understood the paper was before the jury on the merits. In that faith, relying on the minutes, the defendant closed his case. The argument to the jury on both sides, we gather from the affidavits, was to some extent devoted to that paper. Under these circumstances, we do not feel at liberty to set aside a verdict upon the ground that notwithstanding the note of evidence the affidavit is not to be deemed offered in evidence, and on the assumption it exerted an improper influence on the jury.

The election law makes liberal provision to maintain the actual election by the votes cast. No election, it is declared and repeated, shall be vitiated by the omission of duties on the part of the commissioners or of any other instrumentality to conduct the election. While it gives prima facie effect to the proclaimed result, the party aggrieved by that proclamation is reserved the fullest opportunity to overthrow that announcement by proof that he received the majority of votes. The carefully framed petition of the plaintiff contained all the averments to give him the office, if sustained by the proof. It must be borne in mind that had he chosen to offer the testimony, the defendant would have had the right to offer opposing proof. The plaintiff conceived he could rest on the record as made up by the stenographer. The defendant was content to stand on it. The plaintiff complains of the requirement of security from him for costs, and from the argument we infer that requirement had some influence in inducing the agreement to submit. While it is to be regretted that any litigant should be embarrassed in asserting his right by inability to provide for costs, it must be apparent that circumstance can exert no influence on our decision.

The rule for the new trial was mainly devoted to the influence supposed to be exerted upon the jury by the affidavit, and, on that ground the application for another trial is earnestly insisted upon here. We have already expressed our views on that point, and our conclusion is the court did not err in refusing'the new trial.

We have considered the case in all its aspects and find no basis on which we can disturb the verdict.

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


source: Caselaw Access Project

license: Public Domain

text:
    No. 12,278.
    Pontchartrain Railroad Co. Vs. The Board of Levee Commissioners of the Orleans Levee District.
    Property by reason of its situation away from the Mississippi river, owing- no servitude for levees, must be paid for when expropriated for a levee in the rear of the city constructed, by the Orleans Levee Board. Const., Art 156; O. C,, Arts. 665 et seq.; 34 An. 494 ; 43 An. 275; 160 U. S. 468
    Damage to the property of the owner, or loss in respect to the property incident to the expropriation, entitles him to compensation although there is no taking of the property.
    The right to compensation for property taken for public use is not to be denied on the ground that the expropriation is the exercise of the police power.
    APPEAL from the Civil District Court for the Parish of Orleans. Théard, J.

      Denègre, Blair & Denègre for Plaintiff, Appellee.

      Bernard McCloskey for Defendant, Appellant.

      Argued and submitted March 5, 1897.
    Opinion handed down March 29, 1897.
   The opinion of the court was delivered by

Miller, J.

This appeal is by the defendant from the judgment awarding plaintiff compensation for the damage to the railroad, caused by the construction by defendant of a levee across the defendant’s road.

The defendant, created a corporation by legislative act to construct and maintain a levee system in the Orleans Levee District by levees on the river, canal, lake or elsewhere, about building a levee between the rear of the city and the lake, crossing plaintiff’s railroad, was enjoined by plaintiff on the ground that the levee would cause plaintiff damage by necessitating the taking up, relaying the tracks and elevating the grade of the roadbed, for which damage the plaintiff claimed previous compensation. The answer was the general issue followed by trial and judgment for plaintiff, the subject of this appeal.

The injunction was directed against the digging of a canal, as well as the making of the levee, but the canal was abandoned, and by agreement the work of the levee was permitted to proceed, the court to award suitable compensation, if of the opinion any was demandable. The damage alleged arises from depositing the earth dug to make the levee upon the plaintiff’s tracks, the construction of the levee on and across defendant’s roadbed and the cost of elevating the grade and taking up and relaying defendant’s tracks. No question is raised as to the amount of the damages awarded, but the contention is whether any compensation is due.

The argument for the defendant is that every proprietor must submit to the loss incident to the Duilding on his land the levee requisite to guard against overflow of the river in the city front, or the lake in the rear. It is claimed that such 'a work authorized by law is the exercise of the police power, to which all must submit, and in respect to which no compensation for resulting loss can be claimed-by the owner whose property is affected by the exertion of that power. But in opposition to this view is the well settled principle embodied in the Constitution that private property shall not be taken for public purposes without compensation to the owner. Civil Code, Art. 2621; Constitution, Art. 156. Where land is taken, or the use of it incommoded, or a burden is imposed on the owner to build a levee, or, to take another illustration, to open a street, the right of the owner to compensation is not to be denied, because of the supposed exercise of the police power, but the owner’s claim for compensation falls within the operation of the principle that secures compensation when private property is taken for the public utility. The police power, hence, exerts no influence on the issue here. Cooley Const. Limitations, p. —; Carrollton Railroad Co. vs. Avart, 11 La. 192; Municipality No. Two, for opening Euphrosine St., 7 An. 72.

The defendant cites the line of authority that denies any compensation for property owners affected by the exercise of such functions of government as raising the grade of streets or bridging rivers, or exerting control over the channels of rivers. But in that class of cases there is no taking of property. Any injury that may arise to private property is consequential to the exertion of governmental functions, and entirely disconnected with expropriation for public purposes. The distinction between expropriation and consequential injuries arising from the exercise of the necessary functions of government, is stated in one of the cases cited by defendant. In the one case no compensation is due, for the reason, with others, there is no encroachment on private property; in the ocher, there is an expropriation, and hence the owner’s right to compensation. Transportation Company vs. Chicago, 99 U. S. 642.

The front proprietor on the Mississippi river or other navigable rivers must yield without compensation the property for levee and road purposes. The servitude for levee and road purposes is imposed on him and he acquires his property subject to that servitude. Civil Code, Arts. 665 et seq.; Bass vs. State, 34 An. 494; Ruch vs. City, 43 An. 275; Eldridge vs. Trezevant, 160 U. S. 468. But the plaintiff’s land not on the river owes no such servitude.

We do not understand it is controverted that a substantial injury to the property owner, in respect to his property or loss imposed on him incident to the expropriation, though there is no taking, entitles him to compensation, nor is there any issue, as we appreciate the argument, that the damages claimed are fairly within the scope of the article of the Constitution awarding compensation for private property taken for public use.

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


text:
    No. 12,264.
    Ouachita National Bank vs. Julius Weiss & Co.
    The shipment to a factor unaccompanied with any instructions or agreement as to the application of proceeds, will subject the property to the factor’s privilege for the debt due to him by the consignor, and this privilege takes effect under the statute, from the time the bill of lading is delivered to the carrier, and under the Code when the property is received. Civil Code, Art. 3217; Act No. of 18S2; Act No. of 1874.
    This privilege can not be defeated by an order accompanied by the bill of lading given by the consignor after the privilege of the consignee has attached.
    APPEAL from the Civil District Court Rightor, J. for the Parish of Orleans.

      Harry H. Hall for Plaintiff, Appellee.

      Farrar, Jonas & Kruttschnitt and E. T. Lambkin, for Defendants, Appellants.
    Argued and submitted on briefs December 18, 1896.
    Opinion handed down January 18, 1897.
    Rehearing refused April 26, 1897.
   The opinion of the court was delivered by

Miller, J.

The plaintiff claims to have advanced J. W. Parks, a planter in the parish of Ouachita, to enable to make his crop of 1894; that one hundred and twenty-five bales of cotton, part of the crop, was shipped to defendants for the purpose of paying plaintiff, to whom the shipper transferred the bill of lading and gave an order on defendants for the cotton; on the refusal of defendants to deliver, the plaintiff sued for the cotton or its proceeds, to the extent of the amount advanced. The defendants’ answer avers that they have the factor’s lien on the cotton to pay one-half the indebtedness of the planting firm of which the shipper was a member;, and the answer avers the tender to plaintiff of the surplus of the proceeds after applying one-half of the proceeds to the privileged debt due defendants. From the judgment in plaintiff’s favor, defendants appeal.

The firm of Lee & Parks were indebted to defendants for advances in the year 1894. J. W. Parks, the shipper of the one hundred and twenty-five bales, and a member of that firm, when the debt of his firm to defendants had reached a certain amount, obtained from defendants for his firm a further advance. He executed a paper stipulating that two hundred bales should be shipped defendants in addition to four hundred bales of cotton his firm had agreed to ship them. Lee & Parks did ship four hundred and ten bales, and Parks made two shipments of two hundred bales of his cotton, of which the one hundred and twenty-five bales form part. After crediting the proceeds of all the cotton shipped by Lee & Parks and half the proceeds of that shipped by Parks, there still remains a large debt due them by Lee & Parks.

The plaintiff, the Ouachita National Bank, in support of their claim to the proceeds of the one hundred and twenty-five bales, have proved the loan to Parks by the bank of three thousand dollars, and we think it was the understanding the bank was to be paid from Parks’ crop of 1894. We do not understand the bank claims any lien arising from this loan. The one hundred and twenty-five bales were shipped to defendants with no instructions, under a bill of lading stating Parks was the shipper and exhibiting the shipping marks of his firm, L. & P. But after the shipment, the bank reminded him of his debt, and he then sent the triplicate bill of lading and the order on defendants for the delivery. The order is dated 13bh March, 1895, more than thirty days after the cotton came into defendants’ hands. The bank stands before us with such right as the order and accompanying bill of lading can give, andas we appreciate the argument it seeks to maintain, the cotton came into defendants’ hands charged with the payment of the bank’s debt. The bank produces 'the testimony of Parks that he owed the bank nothing individually, that the shipment was not to pay his firm debt, but to pay the bank, and he testifies the bank knew it. The bank also offered the testimony of Lee that at defendant’s instance he solicited the shipment to them of Parks’ cotton, to enable them to make commissions, and that at defendants’ request he asked Parks after ;the shipment to consent to the application of his cotton to payment of his firm’s pebt, which he refused.

The defendants to maintain their right to apply one-half the proceeds of the one hundred and twenty-five bales of cotton to pay the debt of Lee & Parks rely on the paper containing the recital of the loan of sixteen hundred dollars by defendants, in consideration of which there is the agreement to ship two hundred bales in addition, the paper states, to the four hundred bales agreed to be shipped by Lee and Parks. The paper begins: “We, the undersigned, J. W. Parks of Lee & Parks in consideration of, agree,” etc. The testimony of Parks is, the words “of Lee & Parks ” was not in it when executed. The testimony of defendants’ witnessis, he does not know whether or not the paper contained the words, and in answer to the suggestion that the paper bore the impress of being copied, the witness stated, if copied, the press copy would be furnished, but none was furnished. But it was not questioned the paper bears Parks’ individual signature. In addition the defendants have produced the testimony of a witness that about the 11th of March, a short time after the shipment, Parks expressed his willingness that defendants should get the proceeds in controversy, and the testimony of another witness that in the negotiation between defendants and Parks, it was distinctly understood he was to ship the cotton “ pledged,” to use the expression of the witness, to pay the firm’s indebtedness to defendants, and this witness also testifies that later, Parks promised the shipment followed by that of two hundred bales, including the one hundred and twenty-five bales in controversy.

The appropriation by the shipper of the property or its proceeds to pay the debt he indicates made known to the consignee, who assents to such appropriation expressly or by receiving the consignment under the instructions as to its disposition, precludes the consignee from asserting any claim to defeat the purpose of the consignment. The decision in 43 An., p. 1, Bank vs. Mayer & Co., cited by plaintiff, is a type of others affirming this species of dedication of property shipped. If the paper signed by Parks stipulating for the shipment of two hundred bales is to have the force claimed for it by defendants, and if the other testimony offered by them is to be accepted, they had the right to. apply the cotton to pay their debt. Their entire conduct evinces insistence on that right. We have the statement from plaintiff’s witness, Lee, the cotton was not shippedto pay the debt of Lee & Parks. It was Parks, not Lee, that made the shipment, and the witness’ statement as to the purpose of the shipment seems to be his deduction. Parks’ testimony that the shipment was to pay the bank’s debt, and that defendants knew it, is not accompanied with any testimony how they knew it. It does not appear any communication was made to them before the shipment that it was for the bank. On"the contrary, the shipment was made with no direction whatever accompanying the shipment. It was not until a month after the cotton was received and had become subject to plaintiff’s privilege, if that privilege existed, that an order was presented to defendant to deliver the cotton. It seems to us, in the condition of this record, there is no basis on which we can hold this cotton came into defendants’ hands under directions, express or implied, to appropriate the proceeds to the bank’s debt. This case is in marked contrast in this respect with that cited by plaintiff. In that case, before the shipment the consignee was presented with the bills drawn against the shipment, received it with full knowledge of its dedication, and it was held he could not, after receiving the property under the mandate for its disposition, set up his factor’s privilege to defeat the disposition proposed by the consignor, and in effect assented to by the consignee. Here the property comes into defendants’ hands with no dedication whatever to interfere with the operation of the privilege of defendants, if the law gave any.

The plaintiff denies that defendants had any privilege. If that contention can be maintained the order of the shipper must prevail. The statutes and the Code gave the factor the privilege on the property consigned to him for the payment of the debt of the consignor; the statutes from the date the bill of lading is placed in the mail or in the hands of the carrier; the Code when the consignment is received. Acts 1874, 1882, Nos. —; Art. 3247, C. O. Giving due weight to the testimony of Lee that the cotton was not shipped to pay the debt to defendant, it remains he was not the shipper, nor does he testify to any"communication to defendants of the purpose of the shipment, nor does he undertake to give testimony of the negotiation of Parks with defendants when he obtained the loan from the defendants for his firm and executed the paper for the shipment of two hundred bales, on which defendants rely. It is true Lee also testifies to the refusal of Parks to assent to the application of his cotton to pay the firm’s debt. This was after the shipment. If defendants had the right to make that application his refusal of consent did not diminish that right. The statement from Parks that defendants knew the shipment was for the bank’s • debt must be taken in conection with the fact that neither he nor the bank or any other person ever made such communication to the defendants, and the additional fact that no instructions accompanied the shipment. On the other hand there is evidence-carrying, we think, great persuasive force that the shipment was-designed, when it was made, to pay the indebtedness to Lee & Parks. The paper executed when the sixteen hundred dollar loan was obtained, if read without the words claimed to have been added, still must be deemed significant on this branch of the controversy. The loan of sixteen hundred dollars to the firm, in consideration of which the obligation expressed to ship two hundred bales of cotton, carries the inference the firm’s indebtedness was to be repaid from the cotton. If it was Parks’ cotton we can not suppose defendants would advance only to get commissions, the sole reason, according to defendants’ witnesses, for Parks’ shipments to defendants. No explanation comes from Parks or from any witness who was to send forward the two hundred additional bales, if he was not to be shipper. He did ship that precise number, of which the one hundred and twenty-five in controversy are part; the marks on the cotton are L. & P., and there are no instructions of any purpose other than that defendants would naturally draw from their negotiation with him. We have, then, this paper stipulating the loan; the obligation to ship two hundred bales, and read with or without the words “ Lee & Parks,” indisputably signed by Parks individually, is followed by his shipment of his individual cotton, making up the six hundred bales the paper stipulated were to be shipped. It is extremely difficult to resist the conclusion on this phase of the record that the shipment was to pay the debt of Parks, made up in part of the sixteen-hundred-dollar loan he had obtained for his firm on the faith of the promised shipment recited in the paper signed by him. We' have, too, placed before us the testimony of Parks’ expressed willingness the defendants should have the proceeds, and the testimony of another of defendants’ clerk or agent who, we infer, conducted the negotiation with Parks, and that witness testifies positively it was distinctly understood with Parks that he was to ship his cotton to pay the indebtedness to which defendants have applied .the proceeds. We think the conclusions upon the testimony is his shipment fulfilled that understanding; that the cotton shipped to pay the defendants’ debt was subject to their privilege the moment it reached their hands, and that privilege could not be defeated by Parks’ order given a month later.

It is therefore ordered, adjudged and decreed that the judgmen' of the lower court be avoided and reversed, and it is now ordered, adjudged and decreed that the defendants be decreed to have a privilege as factors on the one hundred and twenty-five bales of cotton, or the proceeds, to pay one-half the indebtedness of Lee & Parks ($2914.63), two thousand nine hundred and fourteen dollars and sixty-three cents, the surplus of the proceeds to be paid to plaintiff, and the prayer for damages by the defendants be rejected and that plaintiff pay costs.


author: McEnery, J.

text:
    No. 12,319.
    State ex rel. Armand Romain vs. Board of Supervisors of Election.
    The judiciary is silent until the presentation of some real right in conflict opens its lips.
    Therefore, where a candidate for office applies for a mandamus to compel the appointment of commissioners of election in his behalf, and the application is dismissed and an appeal taken to the Supreme Court, and if, when the ease is submitted, the election lias been held, the appeal will be dismissed.
    APPEAL from the Civil District Court for the Parish of Orleans. Théard, J.

      W. S. Benedict for Plaintiff and other Appellants.

      M. J. Cunningham, Attorney General, E. B. Kruttschnitt and F. C. Zacharie for Intervenors, the Democratic Party, Appellees.
    Argued and submitted February 20, 1897.
    Opinion handed down March 1, 1897.
    Rehearing refused April 12, 1897.
   The opinion of the court was delivered by

McEnery, J.

The relator was a candidate for Congress. He was nominated by a nominating body of one hundred. He applied for representation at the polls in the distribution of commissioners allowed by the present election law. His claims to representation were resisted by what is called the Regular Republican organization and the Democratic party.

The nominating body of one hundred and the organization called the National Republican party joined in his application. The election officers decided that representation should be accorded to the two prominent political organizations, the Republican and Democratic parties.

The relator'applied for a mandamus to the District Court to enforce his rights of representation.

On the plea of no cause of action the suit was dismissed. He has appealed to this court. All this was in November, 1896, preceding the election. The election has been held and the right of relator to his office has been transferred to one of the political bodies of the Federal government.

The question presented is purely an abstract one, which involves no right between the contending litigants. For this reason a motion has been filed to dismiss the appeal.

The motion must prevail.

The province of the judiciary is to interpret the law in every controversy of right which is brought before it. Its decree is final only in the case in controversy, and is applicable to all corresponding cases as a precedent.

It is incapable of determining feigned issues. In the instant case to construe the election law, where there is no right in the controversy, in which the opinion rendered could affect no one or be the basis of any effective decree, would be to render the court only a moot court for the examination and trial of political theories.

The reference of such cases to it is inconsistent with the institu - tion of law. The fact that its acts are limited to the determination of controverted rights is evidence that to entertain feigned issues is beyond its power.

Vast changes and crises may follow in swift succession. Political order may be subverted, yet there may be no case involving in a special controversy the rights of contending litigants.

The judiciary is silent until the presentation of some real right in conflict opens it’s lips.

The appeal is dismissed.


author: Blanchard, J.

text:
    No. 12,418.
    Mrs. Mary E. Meibaum vs. James A. Brennan.
    L Title, springing from acts of sale sufficient in form to transfer immovable property, acquired ingood faith, accompanied by possession as owner, suffices-for tbe prescription of ten years.
    2. Such title held sufficient, and defendant, who bad agreed to purchase, but who refused to receive the property on the ground that title was not good, compelled to accept it.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      Henry P. Dart and Benj. W. Kernan for Plaintiff, Appellee.

      Frank Zengel for Defendant, Appellant.
    Submitted on briefs March 31, 1897.
    Opinion handed down April 12, 1897.
   The opinion of the court was delivered by

Blanchard, J.

This is a suit to compel the defendant to complete- and carry into effect an agreement to purchase certain immovable-property by accepting the property and taking title thereto.

The property in question is a certain piece of ground with improvements, situated on the corner of Annunciation and Toledano streets, New Orleans, and is subdivided into three lots.

The defendant agreed to take the property and pay two thousand one hundred and fifteen dollars therefor.

The allegation is made that a good and legal title was tendered him, and that without just cause he refused to accept the same.

Defendant admits the agreement to purchase at the price stated, but claims the title tendered is not good for the reason that Jean M. Begue, a remote author of plaintiff’s title, acquired the property at sheriff’s sale for taxes in 1874, at the suit of the State of Louisiana vs. James Crocker, in the Superior District Court. He avers that the record of this suit is lost, and that no registry of any deed or act of conveyance of the property to Crocker can be found in the conveyance office, and there is no evidence that Orocker was the owner of the property at the time of the tax sale.

The judgment of the court below was favorable to plaintiff and ■defendant appeals.

Nothing appears in the record to connect James Orocker with the proprietorship of this property save the appearance of his name on the tax assessment rolls for several years as owner- thereof, the .suit of the State against him for taxes, and the sale of the property under the judgment rendered therein.

Nothing is known of Orocker, nor of any heir, or vendee of his. No adverse claimant appears on that behalf, though more than twenty-three years have elapsed since the property was sold at tax sale as belonging to Orocker.

Though the record itself, of the suit of the State against Orocker, is lost, the deed to the property, executed by the sheriff to Begue as the purchaser at the tax sale, was duly recorded at the time in the ■conveyance office.

Begue went into possession as owner after his purchase, and this possession continued down to his death. He died and his succession was duly opened. By virtue of a judgment of the Probate Court rendered therein, Mrs. Rosina Begue was recognized as the widow in community and universal legatee of the said Begue, deceased. This was in 1878. The judgment recognizing her as widow and legatee was duly registered in the conveyance office, as a muniment of title.

In 1881, Mrs. Rosina Begue, who had meanwhile become the wife •of JohnS. Schellang, sold the property, with consent of her husband, to Frederick Apken for eight hundred and fifty dollars, with warranty of title.

Apken sold it in 1887 to Charles L. Schoff for thirteen hundred dollars, with warranty of title.

Schoff sold it in 1892 to the plaintiff for thirteen hundred and thirty-four dollars and' thirty cents, without warranty of title.

These several acts of sale were duly registered in the conveyance office.

The possession of the property by these several vendees, as owners, was peaceable, public and uninterrupted.

On this showing we agree with the judge a quo that defendant ought to take the title.

As to the tax title acquired by Begue in 1874, the record of which suit was lost, after this lapse of time the maxim omnia prsesumuntur recte et solemnitate acta esse, may be invoked.

The several acts of sale, beginning in 1881, to Apken, Sehoff and the plaintiff, are sufficient in form to transfer immovable property.

Such title acquired in good faith, accompanied by possession as owner, suffices for the prescription of ten years. C. C. 3478, 3484-5-6-7; Beer vs. Leonard, 40 An. 845; Wells vs. Wells, 30 An. 935; Pattison vs. Maloney, 38 An. 885; Barron vs. Wilson, 38 An. 209.

There is no suggestion that Crocker left heirs, who may have been minors long enough to suspend the current of prescription. And if there be such, we agree with the trial judge that the assessment in Crocker’s name and the sale for his taxes, would silence any claim urged in behalf of such possible heirs.

Judgment affirmed."

Nicholes, C. J., not having heard the argument takes no part in this opinion.


author: Watkins, J. Breaux, J.

text:
    No. 12,430.
    Marx Weil vs. Moses Schwartz.
    The remedy through the medium of the folie enchere has been properly characterized as summary and severe, and consequently it ought to be confined to cases clearly coming within the provisions of the law.
    It is not applicable to sheriff’s sales made under writs of fieri facias.

    An order of court dissolving an injunction on bond is of that class contemplated by O. P. 566, which may cause the plaintiff an irreparable injury, in case it would operate a change of the possession of immovable property, or alter the statics of the property so as to defeat any substantial object to be attained thereby.

      Breaux, J., concurring: The injunction having been bonded, on appeal from the interlocutory order permitting the seizing creditor to bond, which the appellant and plaintiff in injunction pleads may cause him irreparable injury, he, appellant, may justly ask a hearing in support of his injunction.
    A PPEALfrom the Civil District Court for the Parish of Orleans. Rightor, J.

      E. Evariste Moise for Plaintiff, Appellee.

      Dinlcelspiel & Hart for Civil. Sheriff, Defendant, Appellee.

      Lazarus, Moore & Luce for E. Y. Benjamin, Intervenor, Appellant.

      Argued and submitted March 19, 1897.
    Opinion handed down March 29, 1897.
    Rehearing refused April 26, 1897.
   The opinion of the court was delivered by

Watkins, J.

As this is an appeal from an interlocutory order dissolving an injunction on bond, the merits and motion to dismiss may be taken together.

The grounds of the motion are, (1) that plaintiff in injunction has no right of appeal; (2) the bonding order is interlocutory; (8) it causes no irreparable injury, the demand being compensable in money.

From the petition of E. Y. Benjamin we ascertain that in certain interlocutory proceedings, entitled as this suit is, certain lots of ground situated in the city of New Orleans were adjudicated to him at public auction, as the last and highest bidder; and that subsequent to said adjudication he expressed himself as willing to comply with his bid on being tendered a good and valid title.

That the seizing creditor and his counsel insisted upon his complying with his bid, and upon his failing to do so they proceeded to at once readvertise the property at his risk and expense.

That, in communicating with the seizing creditor and his counsel, he attracted attention to the fact that there were several defects in the title of the seized debtor, and advised them that said defects-were, in his opinion, so serious that he would not accept the adjudication of same except upon a decree of court declaring the validity of said title; but that the seizing creditor and his attorneys refused to take a rule to have said title passed upon, and proceeded to have said property resold at the risk and expense of petitioner.

“ That said property has been readvertised for sale * * * ala folie enehere, without any rule having been taken and without any order of court; and that it is doubtful and questionable whether the seizing creditor and the civil sheriff can proceed to sell a la folie enehere without any order of court passing upon the matter and upon their right to do so.”

After setting forth in full the grounds of his objection to the title tendered, the petitioner prays, that the seizing creditor be enjoined and restrained from further proceeding “ with the said sale a la folie enehere ” and that he have and recover judgment decreeing him to tender, and to deliver to him a good and valid title to the aforesaid property’on his complying with his aforesaid bid and paying the purchase price; and that in default of his so doing, that he have judgment canceling said adjudication and relieving him from any and all obligations thereunder.

The seizing creditor obtained an order for the suspension of the plaintiff’s injunction against the proposed sale a la folie enehere, upon bond, in the penal sum. of three thousand dollars; and from that order the latter sought and obtained a suspensive appeal.

The questions to be here considered are:

1. Whether this is such an interlocutory order as will authorize an appeal.
2. Whether this is an injunction which can be dissolved by giving bond, even if the application for the bonding was taken and tried contradictorily with the parties; and
8. Whether the application to bond, being ex parte, is not illegal, .and should, therefore, be vacated and set aside on appeal.

Counsel have ex industria argued many questions which would have applicability were the case here upon its merits, but which are altogether irrelevant to this appeal.

The simple question for consideration is whether the bonding order •is such an interlocutory judgment as may cause the plaintiff in injunction an irreparable injury, in the sense of Code of Practice, Art. 566.

It has been frequently decided that an order dissolving an injunction on bond would cause such irreparable injury, within the contemplation of the article, in case it would operate a change of possession of immovable property. Torre vs. Falgoust, 33 An. 560; Railroad Company vs. New Orleans, 30 An. 970; Boedecker vs. East, 24 An. 154; Marion vs. Johnson, 22 An. 512; White vs. Cazenave, 14 An. 57; Villavaso vs. Barthet, 38 An. 417; Delacroix vs. Villere, 11 An. 39; Bethancourt vs. Stephens, 19 An. 291; Brown vs. Brown, 30 An. 507.

It has been just as frequently held that no appeal lies from an order of dissolution where the apprehended injury is compensable in money. Anderson vs. Smith, 28 An. 649; Stetson vs. City, 12 R. 489; Brott vs. Eager & Co., 28 An. 262; Cobb vs. Parham, 4 An. 147; Live Stock, etc., Co. vs. City, 32 An. 1192; Osgood vs. Black, 33 An. 493.

Under these two rules decisions, practically innumerable, as many various tests have been applied, and it would not prove beneficial to the litigant or instructive to the profession, to pause here and attempt their alignment in respect to the present litigation. Suffice it to say that a bond of three thousand dollars could not possibly compensate an adjudicatee whose bid at the sheriff’s sale was six thousand dollars, and on account of whose failure to pay over the purchase price a sale a la folie enchere is proposed by the seizing creditor; for non constat that the property will sell at the second offering for the difference of three thousand dollars. But let that be conceded for the argument, and yet the position of the parties is not altered, because the plaintiff in injunction affirms his right to the property, if the title be cleared of legal impediments, and he absolutely denies the right of the seizing creditor to proceed a la folie enchere.

To protect himself in the premises he was bound to enjoin; and our conclusion is that, if the seizing creditor had not the right to proceed to sell a la folie enchere, the bonding order was in violation of the rights of the plaintiff in injunction and operated to his irre - parable injury, and as such the latter was entitled to an appeal.

The right to sell property a la folie enchere is founded on the precept of our Code which declares that “ in all cases of sale by auction * * * if the person to whom adjudication is made does not pay the price at the time required * * * the seller at the end of ten days, and after the customary notices, may again expose to public auction the thing sold, as if the first adjudication had never been made; and if at the second crying the thing is adjudged at a smaller price than that which had been offered by the person to whom the first adjudication was made, the latter remains the debtor to the vendor for the deficiency, and for all the expenses incurred subsequent

The plaintiff raised an issue of fact upon this point and insists that tc the first sale.” R. C. C. 2611.

In an early case our predecessors examined the question now under consideration and held, that the seizing creditor had not the right to proceed a la folie enchere in the event a bidder at a sheriff’s sale should fail to comply with the adjudication and pay the purchase price.

Upon this question the court said:

“After a most deliberate examination of the question, we arq. of opinion that the doctrine a la folie enehere is not applicable to those sales made by a sheriff under writs issuing on final^ judgments. Art. 2595 of the Code declares that judicial sales are subject to the same rules as other public sales, in all such things as are not contrary to the formalities expressly prescribed for such sales, and with the modifications made thereafter. When we turn to Art. 2589 of the Code and observe the formalities required for selling property at the risk of the first bidder, we find them altogether different from the directions given to the sheriff by Art. 689 of the Code of Practice. Under the former article, if the price be not paid, no steps can be taken until after the expiration of ten days, to have a second sale, and then the customary advertisements must be published; but, under the latter, no such delays or formalities are necessary; the sheriff may, if the price be not paid, when the sale is for cash, or if the proper securities are not given when it is on a credit, proceed anew to sell the property and adjudge it to another person. The decisions of this court have been entirely adverse to the idea that the sheriff has to wait ten days and then sell after the customary notices.” Gallier vs. Garcia, 2 Rob. 319.

The same principle has been frequently since maintained; for instance, in Nolte vs. Creditors, 3 La. 268; Durnford vs. Degruys, 8 M. 220; Walker vs. Allen, 19 La. 311; McCargo vs. Insurance Co., 10 R. 307; Amory vs. Black, 13 La. 268; Duncan vs. Armant, 3 An. 84; City vs. Pellerin, 12 An. 92; and Insurance Company vs. Ruddock, 22 An. 46.

This jurisprudence is principally grounded upon the difference between the provisions of Revised Civil Code, 2611, which treats of “all cases of sale by auction,” and that of Code of Practice, 689, which treats of sheriff’s sales, exclusively — the latter contemplating no delay whatever in making the second advertisement, while the former provides that the seller may proceed at the end of ten days to expose the thing first adjudicated for a second sale.

In Guillotte vs. Jennings, 4 An. 242, it was "said that “the remedy through the medium of the folie enehere has been properly characterized as summary and severe, and from this consideration the conclusion is fairly derived, that it ought to be confined to cases clearly coming within the provisions of the law, and in whsch its requisitions have been observed. See Second Municipality vs. Hennen, 14 La. 586.

“Article 2859, O. 0., seems to us to contemplate that the terms of the folie enehere shall be the same as the first adjudication,” etc.

In Jennings vs. Hodges, 16 An. 321, the court held that “ the remedy by a sale a la folie enehere is a harsh one, which must, in all cases, be strictly preceded by an observance of all the forms of law known in commutative obligations,” etc.

Applying the principles of the foregoing adjudications to the instant case, we think the order dissolving the plaintiff’s injunction on bond was improvidently made, and, manifestly, operates to his prejudice and injury.

Whatever rights the plaintiff acquired as an adjudicatee of the real property adjudicated at the sheriff’s sale are made the foundation of this injunction suit, and should be maintained in statu quo until the . same have been judicially determined — it matters not what the result may be.

If the bond furnished by the seizing creditor is held to respond to all of his demands in the injunction suit, should it prove successful, it is quite evident it would stop short of the principal relief which is demanded by him therein.

We think the proper course was for the judge a quo to have declined to grant the order of dissolution on bond, and allowed the injunction suit to take its regular course in his court.

Entertaining this view, we are of opinion that the interlocutory order appealed from should be set aside and plaintiff’s injunction reinstated.

It is therefore ordered and decreed that the interlocutory judgment dissolving the plaintiff’s injunction on bond be and the same is hereby annulled and reversed; and it is further ordered that this appeal be maintained and plaintiff’s injunction reinstated for trial according to law; and that the seizing creditor and appellant be taxed with the cost of appeal, all other costs to await final judgment in the District Court.

Concurring Opinion.

Breaux, J.

The seizing creditor assumed that the adjudication was legal and that the title was one the adjudicatee should accept.

The adjudicatee denied that the title was one he should accept.

There are several grounds alleged in the petition for an- injunction to which he alleged he had called plaintiff’s attention.

He alleged that despite the grounds to which he had called appellee’s attention after the adjudication, the plaintiff readvertised the property for sale at his (defendant’s) risk and expense.

He sued out the injunction to prevent the plaintiff from selling the property at his risk and expense.

The injunction having been bonded on appeal from the interlocutory order permitting the seizing creditor to bond, which the appellant pleads may cause him an irreparable injury, he (the appellant) may, I believe, justly ask a hearing in support of his injunction.

The writ of injunction may have issued without grounds sufficient to maintain the .petition and order of injunction.

But the court having granted the order of injunction and the petitioner for the injunction having complied with the order by tilinga •sufficient bond to respond for all damages he should now be heard.

While the adjudicatee most assuredly has no right unnecessarily to obstruct the execution of a judgment or the enforcement of an ■order of seizure and sale, he should have latitude enough at this period in the history of the litigation to sustain, if he possibly can, the plea of nullity which he has filed.

No objection to form; that is, to sell a la folie enchere is before us, £ts I appreciate the issues. Such a contention is, in my judgment, ultra petitwm, and at variance with the grounds heretofore urged by the plaintiff and the defendant.

Granted, however, in so far as the question is one of form that the sheriff is authorized to offer seized property for sale a la folie .enehere, in my opinion this appellant, none the less, having furnished the required bond, should have a standing in court, to be heard before ■.& re-offer of the property.

‘The appellee is amply protected by the bond.

For these reasons I concur in the decree.

Nicholls, O. J. and Miller, J. dissent.


author: Breaux, J.

text:
    No. 12,270.
    Louis A. Sibley vs. New Orleans City & Lake Railroad Company and Louisiana Electric Light Company, in solido.
    jRkling outside of tine car on a running step is unusual and dangerous.
    There were others on the step,near the plaintiff; they all passed a pole equally as near as the one by which a moment after the plaintiff was knocked off and -severely injured.

      Taking under consideration the width of the step and the distance from the stejr to the pole, the rock and sway of the car in motion does not account for the contact of the plaintiff with the pole.
    The plaintiff must have leaned back into the darkness (either to jump off, or for some other cause) to an extent that his head came in contact with the pole.
    If one’s negligence proximately contributed to the injury, so that without his concurring fault it would not have happened, he can not recover for the injury.
    APPEAL from the Oivil District Court- for the Parish of Orleans. King, J.

      Benjamin Bice Forman and B. B. Forman, Jr., for Plaintiff, Appellant.

      Hugh L. Bayne and Denegre, Blair & Denigre for Defendants, Appellees.
    Argued and submitted February 3, 1897.
    Opinion handed down February 15, 1897.
    Rehearing refused April 26, 1897.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff brought this action against the defendant for the sum of fifty thousand dollars.

On the 14th of July, 1895, at about 12 o’clock at night, plaintiff was a passenger on the inbound West End train of the defendant railroad company. The car was a summer car. At the corner of Canal and Tonti streets he was knocked off this car by an electric light pole of the defendant light company. He was at the time riding upon the running steps of the ear that runs along the side from front to rear. He was standing on the up-town side of the ear. The car was on the right-hand track. He had paid his fare, which’ was collected by the conductor while he was riding on the step in the position in which he was when he got hurt.

He says that the conductor gave him no warning at the time and made no objection to his riding on the running steps; that he was riding on the steps because the car was crowded. He avers there was no standing room in the ear; that when he was struck he was standing with his right hand on the railing of the dash-board and his left hand on the upright brass rod of the stanchion of the side of the car; that he was looking toward the inside of the car; that it was usual to ride upon the steps of the summer cars when the ears are crowded, and that no warning of any sort had been given to him.

The distance of the pole that struck the plaintiff from the track was two feet eight inches. The width of the step of the summer car was one foot six inches. The pole that struck the plaintiff was nearer the track than any other save one, which stood at an equal distance from the track.

The witness for plaintiff, who made the measurement, testified that the extension of the car itself (the body of the car), beyond the rail was one foot and one inch, and that the distance between the outside rail to the nearest side of the pole was, at the locality, as before stated, two feet eight inches. On the other hand, the assistant superintendent of the defendant railroad company testified that the distance was twenty-six inches from the post at the locality of the accident to the side of the car, by his measurement, and that it was fifteen inches from the outer edge of the step running along the side of the car, leaving eleven inches for the width of the step, and fifteen inches from the edge of the steps to the pole. Something was said by one of plaintiff’s witnesses about the lateral motion of the car. The extent of the spring or play of the motion was not known.

The other poles than those before mentioned of the Light Company were from the track a distance of three, four and five feet respectively.

The plaintiff was greatly and permanently injured.

To clear the grounds at the commencement of the discussion, we sought to settle the question of distance between the track, the car, the running steps and the alleged offending electric light pole.

There is variance in the testimony upon this point. It remains that in the brief and at the bar, plaintiff’s position is, on this point, as follows, viz.: the width of the step of the summer car was one foot six inches and the distance from the step to the pole fourteen inches. If we take into consideration the fact that the unfortunate young man was struck on the temple near the ear, the distance of which the defendants contend, is correct, viz.: fifteen inches from the step to the pole.

The theory of the court a qua and of the defendant was that, as the plaintiff approached Tonti street in this city, either for the purpose of jumping off or ascertaining the distance of the train from Galvez street, where he expected to get off, or from some other cause, he leaned back and protruded his body and head from, the car into the darkness to such an extent that his head came in contact with the pole and he was knocked off.

The plaintiff raised an issue of fact upon this point and insists that the evidence is to the contrary; that he did not lean back to see how far he was from his street, and did not in the least change his position. His statement is that the distance from the post to the step was fourteen inches; that the cars rock and sway from side to side when moving rapidly; that the whole of the distance, (it is contended, in behalf of the plaintiff,) is accounted for in this wise. The length of his arms, counsel estimates, was fourteen inches; holding the stanchion as he was doing when he was hurt, his head reached the post, although his elbows remained unmoved to the sides without extending them in the least.

We have found it impossible,.after a careful examination into the facts, to agree with counsel. The rock and sway of a car in motion are not proven in this case, we have already stated. In the case to which our attention was directed from the evidence it appeared that when in motion the wheels of each car have a lateral play on the rails of one and one-half inches. Summers vs. Crescent City Railroad Co., 34 An. 139-147.

One standing upright on the running steps of a summer car one foot and six inches in width, would not be exposed to a blow against a pole at the distance this pole was from these steps, because of the lateral motion of the car. His body despite this motion would remain within an entirely safe distance from the pole. Granted that it accounts for a limited distance of the intervening space, there remains at least one foot. .

A passenger in a car who would needless’y protrude his head out of the window a distance of one foot, and receive a blow from a pole at that distance, which he had seen erected, as was the case with the plaintiff, and along a route familiar to him as the defendant railroad line is familiar to the plaintiff (having gone over it many times since a number of years, would not be entitled to damages).

In our view the one who chooses to ride on the running step has no greater right and is subject to the same rule. Ordinary prudence would suggest not to project one’s body into the darkness a distance of one foot outside of the running steps on a car in motion.

The plaintiff, testifying, said:

“ Q. You have ridden on these cars for the last six or seven years?
“ A. I have.
“ Q. And you knew these poles were alongside the track?
“A. There are posts in the middle of the track.
“ Q. Then you know that?
“ A. Yes, sir.
“ Q. You saw that every day when you went out, then, didn’t you?
“A. Yes, sir.
* * * * * *.
“ A. I wouldn’t lean out of any car.
“ Q,. Then you think it would be dangerous for any man to do that?
“ A. Yes, sir; to any man it would be imprudent.”
“ It is well settled that a passenger who voluntarily and unnecessarily places himself in a position of danger can not hold the railway responsible for injuries of which his position is the efficient cause.” Peterson’s Railway Accident Law, 282, 288.

We think the conclusion is inevitable, with the facts before us, that the defendant projected his head and thereby met with the sad accident of which he complains. There were other passengers on the running steps at the time; six in number; they passed other poles, and equally as near as the one which struck the plaintiff. Not one of these passengers was injured. It is evident had the plaintiff stood erect without leaning backward that he also would have passed without injury.

The plaintiff seeks to support the position that he was ordinarily prudent in riding upon the steps by quoting from Beach on Contributory Negligence, par. 149:

“It is not negligence per se for a passenger to ride upon the platform or steps of a railway ear.”

In the section from which the quotation is made, the text writer says: “But if there is standing room within the car it is negligent to occupy the platform.”

It appears that the cars were crowded and that there were no vacant seats. It was not made evident, by preponderance of proof, that there was no standing room. In Chicago Railroad Company vs. Railroad Company, 6 Brad. (Ill.) 201, it was held: “So long as there is standing room in the cars he must ride there.”

There is authority in support of the position, that upon this point the burden of proof was with the plaintiff. “He must prove that he was there from necessity and not from choice.” Camden vs. Railroad, 44 American Reports, p. 123.

To meet the weight of these authorities the plaintiff urged that he had paid his fare to the conductor while he was riding on the steps and that from him he received no warning. We are not led to infer from the testimony that the defendant railroad eompany gave its sanction to riding on the steps of its cars. On the contrary, there is evidence of record that it was against the express rule of the company.

Upon this subject, Mr. Beach very properly says: “ How can an employee authorize a passenger to violate, not only the express rule of the eompany, but also the rules that every prudent man establishes for himself for his own protection.” Par. 152.

In any case it does not relieve the passenger of the duty of care.

The District Judge, who saw and heard the witnesses, was satisfied from the evidence that plaintiff could have safely ridden upon the steps, if he had used ordinary care; that he did use ordinary care from the lake to Tonti street, and was not injured, although he passed the electric light poles situated in the two blocks just before reaching Tonti street (one of these poles was equally as near as the alleged offending pole and the other within a small fraction as near).

Having exposed himself as he did, the plaintiff is without right to recover damages from either of the defendant companies.

The judgment is affirmed.


text:
    No. 12,453.
    State of Louisiana vs. Peter Precovara.
    The offence was prescriptible.
    An indictment which has been declared a nullity does not interrupt prescription.
    A year had elapsed from the date of the alleged crime to the day the information was filed.
    A PPEAL from the Nineteenth Judicial District Court for the Parish of Iberia. Voorhies, J.

      M. J. Cunningham, Attorney General, and James Simon, District Attorney (P. A. Simmons, Jr., of Counsel), for Plaintiff, Appellant.

      A. & C. Fontelieu for Defendant, Appellee.
    Submitted on briefs March 20, 1897.
    Opinion handed down March 29, 1897.
   The opinion of the court was delivered by

Breaux, J.

An information for a prescriptible offence was filed.

A plea of prescription was interposed as a bar to the prosecution.

On the trial of this plea it was proved that an indictment had been found, which, upon a motion made by the defendant to quash, was-quashed by the court.

Whereupon the District Attorney filed an information.

The judgment of the District Court sustained the plea of prescription.

From the judgment the District Attorney has taken this appeal.

The defendant could not be legally convicted. The information did not negative prescription. The defendant had not failed to sus - tain his plea. The indictment was, upon this plea, decreed null.

The indictment which had been declared null did not interrupt prescription. No appeal was taken from the court’s order annulling it; it was as if it had not been found against the defendant.

This court has decided in a number of cases that a prior prosecution upon a fatally defective iudictment does not interrupt prescription, State vs. Morrison, 31 An. 211; State vs. Baker, 30 An. 1134: State vs. Curtis, 30 An. 1166.

The year having elapsed from the date, it was alleged in the information that the crime had been committed, to the date the information was filed, our only alternative is to affirm the judgment of the District Court.

It is therefore ordered, adjudged and decreed that the judgment of the District Court is affirmed.


author: Watkins, J.

text:
    No. 12,417.
    Marion B. Monroe vs. H. Weston Lumber Company, J. J. Clark, J. A. Blaffer & Son, and Ferdinand Hinderer, in Solido.
    A petition which recites and avers that, in certain proceedings, pleadings and printed briefs, in a certain suit depending in a court of justice, which the parties thereto caused and directed their attorney at law to prepare and file, are certain libelous and slanderous statements, discloses a cause of action.

      A PPBAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      A. B. Philips and Albert Voorhies for Plaintiff, Appellant.

      Edwin T. MerricJe and J. J. McLoughlin iox Defendants, Appellees.
    Argued and submitted March 17, 1897.
    Opinion handed down March 29, 1897.
   The opinion of the court was delivered by

Watkins, J.

This is an action for ten thousand dollars for slander and libel brought against the H. Weston Lumber Company, a private corporation, and several individuals in solido. The claim is founded upon the charge that said defendants conspired and confederated together in the matter of the suit of Marion B. Monroe vs. His Creditors, No. 42,011, on the Civil District Court docket, to prosecute the petitioner on a charge of fraud in order to defeat his discharge; and that, among other things, they falsely charged him with fraud in concealing his commercial books and knowingly omitting property from his schedule.

The plaintiff avers “that said proceedings were malicious and without probable' cause, and that same were aggressively and maliciously prosecuted from the date of their filing, April 10, 1894, up to the final decision of the Supreme Court on the 23d of March, 1896, in favor of your petitioner.”

And he further alleges that, in the course of said proceedings, said parties maliciously slandered and libeled petitioner by verbal and written accusations of fraud as aforesaid in the course of the proceedings in the District Court, and more especially in the Supreme Court in their brief filed February 11, 1896, and in the oral argument of their counsel acting under'their instructions, and falsely charging petitioner with the fraudulent purpose of having materials furnished him and of swindling his creditors out of their honest debts.”

And further, that they maliciously slandered and libeled him by “ falsely charging and publishing him with being ‘ certainly a rogue,’ and a perjurer besides.’ That these charges and accusations were and are false, and were published by the defendants maliciously, they well knowing at che time that there was no truth in them.”

Amongst other exceptions filed by the different defendants was that of no cause of action; and it having been maintained by the judge a quo and the suit dismissed, the plaintiff has appealed.

The exception is grounded upon the following provision of our statutes, namely:

“ No client or person shall be held liable or responsible for any slanderous or libelous words uttered by his attorney at law; but attorneys shall be themselves liable and responsible for any slanderous or libelous words uttered by them.” Rev. Stats., Sec. 123. (Our italics.)

And in his reasons for judgment the judge a quo mainly rested his decision on that statute and the decision of the court in Stockpole vs. Hennen, 6 N. S. 481; the latter preceding the statute in point of time.

The judge regarded that decision as being reflected in the subsequent act of the Legislature and consequently he thought it of more than usual importance and as possessing special significance.

The case was one brought against the defendant as a practising lawyer who, as counsel in a pending suit, had charged the plaintiff, who was examined as a witness, with being guilty of perjury, and of having come to court with the intention of perjuring himself; and the petition alleged that the words spoken were falsely and maliciously employed, and with the intention of injuring the plaintiff.

In that case the court said: “ The best rule is, we think, to protect counsel for everything they say which is pertinent to the case, if they are instructed by their client to say it; and to hold them responsible for everything that is impertinent to the case whether they are instructed or not.”

But, in our conception, neither that decision nor the statute cited are applicable to the present case. The false, slanderous and libelous charges of which the plaintiff complains are those contained in the pleadings, proceedings, and printed briefs filed in court and not “slanderous or libelous words” uttered, as expressed in the statute.

Besides this the plaintiff distinctly affirms that the alleged false, slanderous and libelous recitals and averments contained in the pleadings, were authorized and directed by the defendants as clients and parties to that litigation; and that, therefore, they were primarily liable therefor.

It is our opinion that the distinction plaintiff’s counsel has made is quite clear, and that our learned brother of the District Court has fallen into error in not sanctioning and maintaining same.

An illustration of this rule may be found in Randall vs. Hamilton, 45 An. 1154; Wimbish vs. Hamilton, 47 An. 246.

In our opinion, the judgment appealed from should be reversed and the suit reinstated and remanded to the lower court for trial.

The costs of appeal to be taxed against the defendants and appellees, and those of the lower court to await final judgment therein.


text:
    No. 12,451.
    State of Louisiana vs. Charles Jammerson, alias Dozey, alias Black.
    Jurisprudence recognizes the right of an accused to recant his confession made on arraignment and to supplant it by a plea of not guilty; but the trial judge may, inhis discretion, refuse to allow the change when he is satisfied by the surrounding circumstances that the ends of justice can not be served by allowing the privilege.
    APPEAL from the Nineteenth Judicial District Court for the Parish of Iberia. Voorhies, J.

      M. J. Cunningham, Attorney General, and James Simon, District Attorney (P. A. Simmons, Jr., of Counsel), for Plaintiff, Appellee.

      A. & Chas. Fontelieu for Defendant, Appellant.
    Submitted on briefs March 20, 1897.
    Opinion handed down March 29, 1897.
   The opinion of the court was delivered by

Watkins, J.

The defendant was indicted and convicted of petit larceny and sentenced to imprisonment in the State penitentiary for a period of six months, and from the sentence and judgment pro - nounced he prosecutes this appeal.

To sustain his appeal the defendant relies on a single bill of exceptions he reserved to the ruling of the trial judge, in refusing to allow him to withdraw a jilea of guilty and substitute a plea of not guilty, and demand a trial by jury.

The bill of exceptions recites that the defendant’s counsel did file a motion to withdraw his plea of guilty and substitute the plea of not guilty, and demanded an immediate trial. That the jury commissioners had drawn a jury for the fourth week of the term, which had not been discharged at the time said motion was filed, and that said motion was filed just as soon as he was able to secure the services of counsel to represent him.

The trial judge assigns the following as his reasons for declining to grant the defendant’s plea, viz.:

“ Because the party pleaded guilty at the beginning of the term, and makes this motion after the jury term has ended, and when there is no jury in attendance, (on account of which) he could not be tried before September next, the regular jury term of this court. If there was any doubt in the court’s mind of the guilt of the accused, the court in its discretion might grant the request, although the accused is riot entitled to it as a matter of course.”

Because the jury for the fourth week was ordered not to report in court, as no cases were to be tried during the fourth week, the judge having given this order in open court on the Saturday of the third week.

And “ because a confession of guilt on an arraignment is final, and can not be withdrawn without the State’s consent, or consent of the court. No such circumstance exists in this case; and after a plea of guilty, nothing is left for the court to do but pass sentence.”

There is nothing in the record to impeach this statement, and yet the insistence of defendant’s counsel is, that, in point of fact, the withdrawal of the jury drawn for the fourth week of the term had not been formally ordered, nor had they been notified by the court not to appear.

In the present state of our jurisprudence we are dispensed from discussing that question, as this court is bound to accept, without question, the statement of fact contained in the judge’s assignment of reasons which the bill of exception contains. -

In State vs. Delahoussaye, 37 An. 551, this court was called upon to deal with a similar question and in so doing said:

“ Jurisprudence recognizes the right of an accused person to recant his confession made on arraignment and to supplant it by-the plea of not guilty.
“But, it is clear that the judge may, in his discretion, refuse to allow the change when he is satisfied by the surrounding circumstances that the ends of justice can not be served by allowing the privilege.
“ The facts shown by the recordare sufficient to satisfy us that the trial judge exercised sound legal discretion in overruling the motion in this instance.”

The ruling of the judge in the instant case was exactly in keeping with that decision.

Judgment affirmed.


text:
    No. 12,452.
    State of Louisiana vs. Charles Jammerson, alias Dozey, alias Black.
    A PPEAL from the Nineteenth Judicial District Court for the Parish of Iberia. Voorhies, J.

      A. & Charles Fontelieu for Defendant, Appellant.
    Submitted on briefs March 20, 1897.
    Opinion handed down March 29, 1897.
   The opinion of the court was delivered by

Watkins, J.

This case is identical with that of same title, ante, p. 597, this day decided.

For the reasons therein assigned the judgment is affirmed.