author: Wyly, J. Ludeliiíg, C. J., Howell, J.

text:
    No. 5376.
    State ex rel. Albert Baldwin v. A. Dubuclet, State Treasurer— State of Louisiana, Intervenor.
    This appeal was made returnable at tbe session of tbe Supreme Court to be held. at New Orleans on tbe first Monday of November, 1874. Before tbe return day, to wit, on tbe twentieth of July, 1874, tbe relator procured tbe consent of tbe Governor fox tbe transfer of tbe case to Monroe, and for its trial at tbe term held at that town. Tbe Governor also employed an attorney for tbe defense, notwithstanding tbe opposition of tbe Attorney General and of Dubuclet, tbe defendant..
    The Governor bad no authority to consent to tbe transfer of this case, and to employ counsel as he did. Tbe Attorney General is the proper officer to represent tbe State in all her law suits, and tbe act 21 of tbe acts of 1872, on which tbe Governor relied, was not intended to deprive the Attorney General of the control and management of bis cases, but only to provide for certain contingencies in which be may designate an attorney to act on behalf of tbe State. Under that statute.be was empowered to appoint counsel to act in this suit.
    Tbe citation was necessary to perfect tbe appeal. The defendant’s case can Dot be tried without bis consent, except at tbe time and place designated in tbe citation. A trial at a different place would be a trial without a citation. Besides, be is entitled to tbe delay fixed, to prepare his defense.
    The plea that defendant is not interested, has no force. If not interested, why was he cited and made a party?
    There is nothing in the act for “funding the obligations of the State,” relied on hy relator, which confers on him or implies a right or duty, as “ Discal Agent,” to recover from tbe State Treasurer, and to bold and account for, under tbe obligations of his official bond, all the moneys belonging to tbe State, or to choose a bank for such purpose, and nothing which imposes on said treasurer tbe duty to deposit said moneys with tbe relator, and therefore there is no cause for tbe mandamus prayed for.
    It is only where a specific, ministerial duty is imposed by law on an officer, that tbe writ of mandamus can properly issue against him. Tbe term “ fisoal agent” does not necessarily mean depositary of tbe public funds, so as, by tbe simple use of it in a statute without any directions in this respect, to make it tbe duty of tbe State Treasurer to deposit with him any moneys in tbe treasury and confer on such agent power to compel such deposit.
    APPEAL from tlie Superior District Court, parish of Orleans.

      HawJcins, J. Kennard, Home & Prentiss, for relator and defendant.

      A. P. Field, Attorney General, and J. Q. A. Fellows, for defendant and lor intervenor.
   On Motion to Dismiss.

Wyly, J.

The relator has appealed from the judgment rejecting his mandamus proceeding to compel the defendant to recognize him as fiscal agent, under act No. 3 of the acts of 1874, and to deposit with him all the funds of the State.

The appeal was made returnable at the session of the Supreme Court to be held at New Orleans on tbe first Monday of November, 1874. Before tbe return day, to wit, July 20, 1874, tbe plaintiff procured tbe consent of tbe Governor for tbe transfer ot tbe case to this place, and for tbe trial thereof at this term ; and under act No. 21 of the acts of 1872, the Governor employed an attorney to take charge of the defense.

Tbe Attorney General objects to tbe trial of tbe case before tbe return day, and at this term of the court; he denies the authority of the Governor to give consent for its transfer, and also his authrity to appoint counsel to assist or supersede him in the management Of the case.

Antoine Dubuclet, the defendant, also refuses to consent to the trial of the case here.

Looking to act 21 of the acts of 1872, the statute under which the Governor acted in this case, we find that he “has the right in ease of the absence, death, resignation, or inability to act in any particular case of the Attorney General, or proper district attorney, or where either of them may be directly interested, a right to designate an attorney for such case to act in behalf of the State, for the protection of the public interest.”

Was the Governor authorized under this statute to consent to the transfer of the case and the trial thereof at this term, notwithstanding the opposition of the Attorney General who tried the case in the court below? We think not.

The Attorney General is the ¿roper officer to represent the State in all her lawsuits, and the statute in question was not intended to deprive him of the control and management of his cases.

In order to protect the public interest in any particular case where the Attorney General was interested, or was unable to act from death, resignation, absence, or from any other cause, this statute authorizes the Governor to appoint an attorney for such case. It does not authorize him to give consent for the transfer of any particular case and for the trial thereof before the return day, at a different term of the court. The act gives him no personal control of the case whatever. When the condition happens upon which he has authority to supply counsel for the State, the attorney designated by him takes control of such case.

The attorney designated by the Governor in this case does not consent to its trial here. But under the statute the Governor was utterly without authority to appoint an attorney to act in this case, because the Attorney General is not personally interested, he has not resigned,, nor is lie dead, or absent, or unable to attend to the duties of his office. He appears to have faithfully defended the case in the court below in behalf of the State, the intervenor, and in behalf of Dubuclet, the defendant. He gained the case, and he will doubtless be ready to meet the relator and try the appeal at the time and place where it was made returnable, and where he was cited to trial. Because he refused to try the appeal at a different place and term, and before the return day, it can not fairly be said that the Attorney General is unwilling or unable to act, or that the public interest confided to him has in any manner suffered or is likely to suffer.' In refusing to try the case, as desired by the relator, he has simply exercised a legal right, of which the appellant has no cause to complain.

The defendant, Dubuclet, is interested in this case; he is the party against whom the mandamus is sought, and he has not consented to the trial here. He has been cited to meet the relator and try the appeal on the first Monday of November next, at New Orleans. Under section 7 of act 35, of the acts of 1874, he can employ special counsel for his defense. If the case is tried now he may well complain that he has not been heard; because to try the case at a different place, and before the return day, is equivalent to' a trial without citation and an opportunity to make a defense.

What is the use of citing the defendant to the trial of this appeal at New Orleans on the first Monday of November, 1874, if he can be condemned rightfully at the July term of 1874, at Monroe?

If citation was necessary to perfect the appeal, the defendant’s case can not be tried (without his consent) except at the time and place where he was cited.

The appellant contends, however, thatjthe defendant has no interest. If -so, why was he sued and cited below ? If his presence was necessary at the trial there, it is equally as important here. And the trial of the defendant before the day he was cited to trial, and at a different place, is certainly a trial without citation. He is entitled to the delay from the time the appeal was taken until the return day thereof to prepare his defense and to employ special counsel, if he chooses to do so.

The defendant is the party sued and against whom our decree must be enforced, if the mandamus be made peremptory. He is a necessary party, and the case can not be tried here .without his consent.

It is therefore ordered that this appeal be stricken from the docket, with leave to the appellant to withdraw the transcript and file it at New Orleans, in conformity with the order of appeal.

Ludeliiíg, C. J.,

dissenting. The simple question now before the court for decision is, can the chief executive of the State consent on the 'part of the treasurer, and in spite of his opposition and of the Attorney General's, that the case may be removed to Monroe for speedy determination?

The case is one in which an officer of the State is proceeding, by mandamus, against another officer of the State, to compel him to perform a ministerial duty. It is made the duty of the chief executive of the State “ to see that the laws are faithfully executed.” If it be a ministerial duty of the treasurer, under any law of the State, to do what he is required to do in the relator’s petition, it is the duty of the executive to see that the law be executed. The case by law, is a preference case, and I am at a loss to imagine why the Governor could not direct the case to be submitted for decision, by the Attorney General, and if he refused or neglected to do so, to employ other counsel. Dubuclet personally, is not before the court; it is the treasurer alone who is before the court, in his official capacity. And in numerous cases running all through the 24th, 25th and -26th Annual, this court has recognized this fact, that when an officer is proceeded against in his official capacity, he has no right to appear in person or by attorney selected by himself, but must be represented by the Attorney General or some other attorney selected by the Governor. Act of 1872, p. 62.

This case was brought here by consent of the relator and the Governor.

The Attorney General applied for time to file a brief after the case had been submitted, which[was allowed, and he filed his brief without urging this want of consent; and at the last moment he files another ' brief through another attorney, urging this want of consent on the part of the treasurer. I do not think it should be considered; but if it be, I do’not regard the objection valid.

What honest reason can be urged against an early decision, on the construction of a law, defining the<’official duties of State officers ? I can not imagine] any, and am the less inclined to consider the objection oi want of consent.

On the Meeits.

Howell, J.

The relator alleges that he was elected and has duly qualified as Fiscal Agent of the State under act No. 3 of April, 1874, known as the Funding Act and which created a board of liquidation, composed of the Governor, Lieutenant Governor, Auditor, Treasurer, Secretary of State, Speaker of the House of Representatives aud such fiscal agent, chosen by said officers, that he has furnished bond in the sum of $250,000 as required by said Board, ‘‘that as fiscal agent of the State, it is his duty to receive from the State Treasurer and to hold and account for, under the obligations of his official bond aforesaid, all the moneys belonging to the State,” that he has chosen the New Orleans National Bank, whereof he is a director and the president, as the place of deposit of the State funds and so notified the Treasurer, whose duty it is to deposit the same with the relator as fiscal agent, but has failed and refused to do so, though requested, and he prays for a writ of mandamus commanding said Treasurer to recognize relator as the fiscal agent of the State and to deposit with relator in his said capacity all the State funds now on hand or which may hereafter come into his the treasurer’s hands or control.

The treasurer denies that the relator has any legal right to demand of him as treasurer, the moneys of the State or that there is any law which gives to the relator the right to 'the deposit of the money of the State, and he adopts the answer of the State which intervenes and alleges that under the constitution and laws the treasurer is the only officer authorized to receive, keep and disburse all moneys of the State and he can not be interfered with or controlled in that respect by any authority; that there is no provision in the “Fundingbill” which makes it the duty of the treasurer to pay out to or deposit with the relator or the latter to receive any of the State moneys, and hence there is no cause or ground for the writ of mandamus; that the title of the “Funding act” does not express the object of the appointment of a fiscal agent of the State with power to receive and hold the moneys of the. State which is a matter foreign to the objects of said act; that by existing unrepealed law the treasurer is required to deposit the State moneys in some safe bank with which he shall keep an account and the said deposits can only be removed upon the consent of the Governor and the causes therefor must be reported to the legislature) that under the said law he has the moneys of the State deposited in the Louisiana National Bank, the safety of which would be jeopardized by depositing them with an individual not an officer of the State and not required by law to give a bond. From a judgment refusing the writ of mandamus, the relator has appealed.

The title of the funding bill and the sections relied on by the relator, are as follows: “An act to provide lo^mding the obligations of the State by exchange of bonds) to provn!KJQBh|Müoal and interest of said bonds; to establish a board of liquidation^Hphorize certain judicial proceedings against it; to define and punish violations of this act) to prohibit certain officers from diverting funds except as provided by law and to punish violations therefor ; to levy a continuing tax and provide a continuing appropriation for said bonds) to make a contract between the State and holders of said bonds; to prohibit injunctions in certain cases; to limit the indebtedness of the State and to limit State taxes ; to annul certain grants of State aid) to prohibit the modification, novation or extension of any contract heretofore made for State aid) to provide for the receipt of certain warrants for certain taxes and to repeal all conflicting laws.

Section X. “Be it enacted by the Senate and House of Representatives of the State of Louisiana in General Assembly convened, That for the purpose of consolidating and reducing the floating and bonded debt of the State, the Governor, Lieutenant Governor, Auditor, Treasurer, Secretary of State, and Speaker of the House of Representatives are hereby authorized to cause to be prepared, and to issue bonds, to be known as “consolidated bonds of the State of Louisiana,” of the denominations of one hundred, five hundred, and one thousand dollars, to the amount of fifteen millions of dollars, or so much thereof as may be necessary, all payable forty years from the first day of January, 1874, and all to be numbered consecutively, and made payable to bearer, and to bear interest at the rate of seven per cent, per annum, payable semi-annually in the city of New York and the city of New Orleans, on the first day of July and January of each year, and coupons for such interest'shall be attached thereto; said interest and principal to be payable in lawful money of the United States.

“Sec. 2. Be it further enacted, etc., That the parties designated in the foregoing section shall constitute aboard of liquidation, and a majority of said board shall elect a fiscal agent for the State, who shall be a member of said board.

Seo. 7. Be it further enacted, etc., That a tax of five and-a-half mills on the dollar of the assessed value of all real and personal property in the State is hereby annually levied, and shall be collected for the purpose of paying the interest and principal of the consolidated bonds herein authorized, and the revenue derived therefrom is hereby set apart and appropriated to that purpose, and no other; and that io shall be deemed a felony for the Fiscal Agent or any officer of the State or board of liquidators to divert the said fund from its ligitimate channel as provided, and upon conviction the said party shall be liable to imprisonmeaáMÉJlp-ot more than ten years nor less than two, at the dir jM^Bp^ne court. If there shall, during any year, be a surplus arit ‘l^Urom said tax after paying all interest falling due in that year, such surplus shall be used for the purchase and retirement of bonds authorized by this act, said purchases to be made by said board of liquidation from the lowest offers, after due notice, provided, that the total tax for interest and all other State purposes, except the support of public schools, shall never hereafter exceed twelve and a half mills on the dollar. The interest tax aforesaid shall be a continuing annual tax until the said consolidated bonds shall be paid or redeemed, principal and interest} and the said appropriation shall authorize and make it the duty of the auditor and treasurer, and the said board, respectively, to collect said tax annually, and pay said interest and redeem said bonds until the same shall be fully discharged.”

Sec. 17. “That all acts or parts of acts'in conflict with this act, or-any section thereof, are hereby declared to be repealed, and that this aet- shall take effect from and after its passage.”

It seems a sufficient answer to relator’s demand to say that there is nothing in the foregoing which confers on him or implies a right or duty as fiscal agent “ to receive from the State treasurer and to hold and account for, under the obligations of his official bond aforesaid, all the moneys belonging to the State,” or to choose a bank for such purpose, or that imposes on the said treasurer the duty to deposit said ■moneys with the relator, and therefore there is no case, no cause for the writ of mandamus.' The act does not specifically prescribe any duties of the fiscal agent, confer on him any special powers or make any reference in the title or elsewhere to the deposit or the choosing of a place of deposit of the moneys of the State; and it is only where a specific ministerial duty is imposed by law on an officer, that a writ of mandamus can properly issue against him.

But it is contended on behalf of the relator, that the phrase “ Fiscal agent of the State” had, at the time the Funding act was passed, a distinct, well understood meaning, and that the legislative intent in using it was manifest, as the depositary of the State funds, that is, the fiscal agent of the State created by this act was, by necessary intendment, the depositary of the State moneys, which however, are to remain there or with him subject to the checks of the State treasurer just as they are now kept and checked on by the treasurer in the bank selected by Jiim under previous legislation. And this theory, it is said, is deprived from and supported by the laws relative to the fiscal agent of the city of New Orleans, which was made the depositary of all the city funds and the law making the Citizens’ Bank the fiscal agent for the funding of the floating debt in 1870.

Our examination of these laws does r "•» us to the conclusion, as suggested, that the term fiscal agent°; tor ^ssarily the depositary of the public funds so as, by the simple uso3,13 it in a statute, without any directions in that respect, to make it the duty of the city or State treasurer to deposit all moneys therein and confer on such agent power to compel such deposit with him or it.

. As to the fiscal agent for the city of New Orleans, the laws referred to (see acts 1856, pp. 144, 145, acts 1870, extra session, p. 46), are explicit in directing when and how such agent — a bank — shall be chosen, what shall be placed in its keeping, the purposes thereof, how drawn, etc., while in the act under review, no such directions appear and nothing is said except that a majority of certain designated officers, composing a board of liquidation, shall elect a fiscal agent for the State, who shall be a member of said board and shall be subject to certain penalties should he divert a' certain fund. But every officer of the State and board of liquidators are embraced in the same provision. And as to the “fiscal agent” under the funding act of 1870, (session acts 1856, extra session, p. 153), the president of a bank named, was designated by the law for the purpose, in conjunction with the Governor and Auditor, of negotiating the bonds authorized by said act, but no reference was made to the custody of the public moneys. The duty was specific and limited to the object of said act. We find in neither law nor any other, any thing that implies even that the use of the term fiscal agent in a statute confers the right to the public funds. By existing laws the treasurer is to deposit the State moneys in a bank selected by him, and he may, with the concurrence of the Governor, remove them to another if they become unsafe, (it. S. 3773), and there is nothing in the present funding act at all inconsistent therewith and they are therefore not repealed or affected by the repealing clause of this act.

Whatever may be the duties of the relator under the present funding act, it is clear to us that it is not one of his duties to demand, receive and place in a bank chosen by him or elsewhere the moneys of the State, those arising under the provisions of this act or from any other source. This duty pertains exclusively to the treasury department, and the moneys there can, under the constitution^ only be withdrawn by the treasurer under a specific appropriation made by law.

Judgment affirmed.


source: Caselaw Access Project

author: Wtlt, J.

license: Public Domain

text:
    No. 3548.
    R. Esterbrook and A. Gallier v. Mary E. Gauche.
    This is an action of nullity brought by plaintiffs against a judgment, on the ground that it was rendered against them in the absence of their counsel, in consequence of the omission of the clerk to attach his name as attorney for them on the usual list posted up, wherefore they were deprived of the defense.to which they were entitled. This omission was not attributable to the other litigants or to their counsel. It was merely an error of the clerk.
    In this instance the plaintiifs have mistaken their remedy. The true one was an appeal. Their defense to the suit was, that the tacit or legal mortgage set up against them was not inscribed prior to the first of February, 1870. Belief was therefore attainable by appeal. Consequently an action of nullity will not lie.
    APPEAL from the Seventh District Court, parish of Orleans.

      Collects J. G. Schmidt, tor plaintiffs and appellants.

      Thomas Gilmore and J. 3. Isley, for defendant and appellee.
   Wtlt, J.

In suit No. 3547 of the docket of this court, John S. and Louisa Skinner sued Wm. C. Sibley to enforce a tacit mortgage on a house and lot in the city of New Orleans, which the latter purchased from John Gauche;

Sibley called the widow and heirs of John Gauche in warranty, and they called in warranty their vendors, B. Esterbrook and A. Gallier. At tiie trial in tile court below the counsel fop Esterbrook and G-allier was not present, because when the case was posted for trial his name was omitted from the list of cases posted for trial that day. He now brings this action of nullity in behalf of his clients to have the judgment which was rendered against them in his absence, revised because they were deprived of a just defense by the omission of the clerk to attach his name as attorney for them to the list at said posting. The court rejected the demand and plaintiffs have appealed.

It is not pretended that the omission .of plaintiff’s counsel’s name from the list posted, was a fault attributable to the other litigants or to their counsel. It was merely an error of the.clerk.

After examining the case we find the plaintiffs have mistaken their remedy. It was an appeal. Their main defense to the suit was that the tacit or legal mortgage set up, was not inscribed prior to the first January, 1870. On this point the evidence is as ample in the original suit as in the present action. Relief was therefore attainable by appeal j consequently, an action of nullity will not lie. 1 R. 523 ; 3 An. 646 ; 6 An. 249 ; 6 An. 799 ; 9 An. 203 ; 14 An. 396 ; 23 An. 146.

Judgment affirmed.

Rehearing refused.


author: Wti.t, J.

text:
    No. 3626.
    O. W. Fluker, Administrator v. Amos Kent.
    Parol evidence was clearly inadmissible to prove that the wife of the defendant was the debtor in a oontraot executed by him, and that he signed it as her agent, and not in his individual capacity as it appears in the contract itself, no error or mistake in executing the instrument being alleged in the answer.
    This testimony being excluded, there is no reason why the defendant, who was not one of the heirs of his wife’s father, should not pay the debt he contracted with the administrator of the succession, whether there are, or not, sufficient funds in his hands to pay the debts of the deceased.
    If the plaintiff had consented, when the instrument was given, in consideration of the purchase by the defendant of succession property, that said defendant should not be required to pay the debt until there was a partition of the estate among the heirs, it would not have been obligatory, because .an administrator oan make no oontract in a matter of that kind binding on the succession, he having no right to fix the terms of selling succession property.
    APPEAL from the Sixth Judicial District Court, parish of Tangi-
    pahoa.

      JEllis, J. Gross & Bordee, W. O. Pipián, Merrick, Pace ds Foster, for plaintiff and appellant.

      O. P. Amacher, 1. <& F. J. Ellis, for defendant and appellee.
   Wti.t, J.

This is a suit on the following instrument:

“ St. Helena, January 2, 1875.
“ On demand I promise to pay O. W. Fluker, administrator of estate of Kobert Fluker, deceased, thirteen hundred and eighty-one dollars and seventy-five cents, in solvent bank money of the State of Louisiana, for value received. I also promise to pay for ten thousand pounds of seed cotton, more or less, when amount of said cotton is ascertained, at six and one-half cents per pound.
“ (Signed) AMOS KENT.”
The amount shown to be due on this contract is $1991 75, subject a credit on the second of May, 1866, of $843 50.

The defense to the suit is:

First — -The defendant gave the written obligation for purchases made by him for his wife, whom he represented at the sale of the succession property of her father, and- by law and by express agreement with plaintiff no payment of the note was to be made until definite partition of the estate.

Second — The plaintiff has no cause to demand the payment of the note in advance of a final liquidation and partition of the estate among the heirs,, because by the judgment homologating his account it appears that he has on hand ample funds to pay all the creditors of the succession.

If there were funds in the hands of the administrator sufficient to pay the debts, and if the maker of the instrument sued on was one of the heirs of Kobert Fluker, deceased, of course the demand of the plaintiff could not be enforced, because article 2625 of the Revised Code provides that, “heirs may purchase property of the succession to the amount of their proportion, and are not obliged to pay the purchase m$ney until a liquidation is had, by which it is ascertained what balance there is in their favor or against them.”

The wife of the defendant was one of the heirs of Robert Fluker, but she did not sign the evidence of debt sued on nor make the purchase.

The defendant in his testimony, which was excepted to, swears that he purchased at the succession sale to secure his wife’s rights, as heir, after ascertaining from the administrator that cash would not be required from the heirs who might purchase. “ In this matter I acted solely upon her (my wife’s) account, and not in my individual capacity. This was perfectly understood among the heirs and approved by the administrator. In this matter I had the full and perfect acquiescence of my wife. When I gave the note, it was the understanding with me and the administrator that the note was to be compensated by my wife’s interest in the estate.”

To the deception of this evidence the plaintiff took a bill of exceptions, on the ground that “ parol proof can not be admitted against or beyond what is contained in the acts, nor what may have been said before or at the time of .mating them, or since.” Revised Code 2276. We think parol testimony was clearly inadmissible to prove that the wife of the defendant was the debtor in the contract executed by him, and that he signed it as her agent and not in his individual capacity; no error or mistake in executing the instrument being alleged in the answer. 8 An. 452; 19 An. 472 ; 23 An. 244; 6 Peters, 57, 60.

This testimony being excluded, there is no reason why the defendant, who was not one of the heirs of Robert Eluker, should not pay the debt he contracted with the plaintiff, the administrator of said succession, whether there is or not sufficient funds in his hands to pay the debt of the deceased. While the administrator continues in office he must discharge its duties, and collecting claims belonging to the succession is one of these. 14 An. 349.

If the plaintiff had consented, when the instrument was given in consideration of the purchase by the defendant of succession property, that the defendant would not be required to pay the debt until there was a partition of the estate among the heirs, it would not have been obligatory, because an administrator can make no contract in a matter of that kind binding on the succession, he having no right to fix the terms of selling succession property.

It is therefore ordered that the judgment herein, in favor of defendant, be annulled, and it is decreed that the plaintiff recover judgment against the defendant for nineteen hundred and ninety-one dollars and seventy-ñve cents, with legal interest from the second of January, 1865, subject to a credit of eight hundred and forty three dollars and fifty cents, on the second of May, 1866, and costs in both courts.

Rehearing refused.


author: Wyly, J.

text:
    No. 3896.
    John T. Bailey & Co. v. Lacey, Terry & Co.
    'Hie plaintiffs having judgment against tlie defendants m solido, issued execution thereon and made Terry, one of the defendants, a party garnishee, propounding to him certain interrogatories. This proceeding was excepted to; the judge a quo erred in overruling the exception. Terry, "being one of the deiendants in execution liable vn solido with the others, was not a third person, and could not he proceeded against by garnishment process. . ’
    APPEAL from the Eighth District Court parish of Orleans.

      Dibble, ‘ HauMns & Tharp and A. G. Semmes, for plantiffs and appellees.

      E. Phillips, for defendant and appellant.
   Wyly, J.

The plaintiffs having judgment against the defendants in ■solido for $2979 66, issued execution thereon, and made L. H. Terry, one of the defendants, a party garnishee, propounding to him certain interrogatories.

This granishment proceeding was excepted to on the ground that L. H. Terry being one of the defendants in execution, liable in soKdo with the others, was not a third person, and therefore could not be proceeded against by garnishment process.

The court overruled the exception and L. H. Terry appeals. We think the court erred.

The appellant was defendant in execution, liable for the full amount thereof, and in no sense a third person. Against him the garnishment process did not lie. C. P. 246.

It is therefore ordered that the judgment appealed from be annulled, and it is ordered that the garnishment process herein be dismissed at plaintiff’s costs in both courts.


author: Wyly, J. Morgak, J.,

text:
    No. 5302.
    State ex rel. Wm. W. Howe v. Charles Clinton, Auditor—State of Louisiana, Intervenor.
    under a title to make appropriations for the general and current expenses for the year • ending thirty-first of December, 1874, an appropriation for an expense or debt incurred prior to that time can not he made, because the object is not expressed in the title, as required by article 114 of the constitution.
    Besides, the claim of plaintiff can not be enforced, because at the time it was incurred, the total debt of the State exceeded the limit fixed in the amendment of the constitution.
    APPEAL from the Superior District . Court, parish of Orleans.
    MawMns, J. Kennard, Howe & Prentiss, for relator and appellant.

      A. P. Field, Attorney General, for intervenor apd appellee.
   Wyly, J.

The relator appeals from the judgment refusing to render peremptory the mandamus sued out by him to compel the Auditor to issue to him a warrant for $5000, pursuant to an appropriation in the second section of act No. 59 of the acts of 1874.

In this proceeding the State intervened and opposed the issuing of the warrant, on the ground that that provision of the act violates article 114 of the constitution, because it is not covered by the title, and also on the ground that it violates the amendment of the constitution, limiting the State debt to twenty-five millions of dollars. Both of these objections appear to be fatal to the pretensions of the.relator.

The title of act No. 59 is, “ An Act making appropriations for the general expenses of the State for the year ending the thirty-first of December, 1874.” The appropriations contained in the first section seem to be for the purpose mentioned in the title. But such is not the case with, section two, in which the appropriation in question is made. This section provides, That the following amounts be and the same are hereby appropriated out of any moneys which may he received for delinqent taxes, licenses and penalties due the State prior to the first day of January, 1874; provided, that the Auditor of Public Accounts shall draw his warrants for the following, in advance of the payment of moneys into the treasury on account of said delinquent taxes, licenses and penalties, and said warrants, when so drawn, shall be receivable for all delinquent taxes, licenses and penalties due the State prior to the first day of January, 1874, as provided in act No. 3 of the session of 1874. * * * * * * *

To William W. Howe, to pay claim approved by the Auditor of Public Accounts in his last report to the General Assembly, five thousand dollars.”

This claim can not be regarded as an appropriation for the general expenses of the State for the year ending the thirty-first of December, 1874.” It was merely recognized by the Auditor as a debt already due by the State, in his report dated January 1, 1874.

Under a title to make appropriations for the general or current expenses for the year ending the thirty-first of December, 1874, an appropriation for an expense or debt incurred prior to that time can not be made, because that object is not expressed in the title, as required by article 114 of the constitution. This claim although it' may be equitable (being for professional services rendered by the relator in' defending several large suits against the State), can not be enforced, because at the time it was incurred the total debt of the State exceeded the limit fixed in the amendment of the constitution.

It appears from the Auditor’s report, dated January 1, 1874, received in evidence in this case, that the total amount of the actual bonded and miscellaneous debt of the State is $24,508,180, and the total amount of the bonds and miscellaneous debts for which the State is contingently liable, is $5,483,602. Total actual and contingent liabilities of the State, $29,991,782.

Deduct from this the total amount of delinquent taxes, which the Auditor estimates at $3,000,000, and the actual and contingent liabilities of the State will be found to exceed $25,000,000. Besides, warrants have already been issued against the fund or revenue due by delinquent taxpayers. In the Auditor’s report the total amount of old warrants thus issued and outstanding is $1,565,702 08.

We conclude, therefore, that the judge a quo did not err in refusing to enforce by mandamus the claims of the relator.

Judgment .affirmed.

Morgak, J.,

dissenting. In my opinion the employment of the relator by the Governor was authorized by law. The services which he rendered were conscientious, able and effective. The sum allowed him by the Legislature is insignificant in comparison to the magnitude of the interests which were intrusted to his care. I think payment of his services, under the authorized employment, formed a part of the expenses of the State, and I see no constitutional objection to the manner in which its payment was provided for. He earned his fee, and I think it should be paid to him..

I can not, therefore, assent to the decree just pronounced.

Rehearing refused.


author: Wyly, J. Morgan, J.,

text:
      No. 4819.
    Succession of Hampton Elliot—Samuel M. Davis v. Mrs. Virginia C. Burre, Testamentary Executrix et als.—Mrs. Mary E. Risley v. Mrs. Virginia C. Burke—Mrs. Letitia C. Elliot v. Mrs. Virginia C. Burke et als.
    The property in controversy and claimed hy Davis, belonging to the succession of Elliot, whose domicile was in Adams County, State of Mississippi, and it being undoubtedly the purpose of Elliot, in making the assignment under which Davis claims, to conceal his property from his wife whom he had abandoned, the court co qua did not err in rejecting his demand.
    The title set up hy Mrs. Sisley, the second claimant, can not he considered a valid will. It is written in pencil on a small piece of paper; the intention of the party to make a will is not manifest, and there is no corpus on which a will can operate. The notes referred to in the writing are not those involved in this suit. Therefore the court below did not err in declaring the writing void as a will and sotting aside the prohate thereof.
    The will relied on hy Mrs. Burke, a third claimant, is valid, and under it she is entitled to the property of Hampton Elliot as far as he was able to make a testamentary disposition thereof according to the laws of Mississippi, the place of his domicile, and where the will under consideration was made. It is not sufficiently proved that the parties lived in open concubinage and were therefore not capable of making donations to each other, except to the limited extent allowed by article 1481 of the Revised Code of 1870.
    The rights of Mrs. Elliot, the surviving widow and fourth claimant, must be determined by the laws of Mississippi. According to those laws, said widow is entitled to one-half of the personal property of the deceased.
    The immovable property is controlled by the laws of this State and passed under the will to Mrs. Burke.

      APPEAL from the second District Court, parish of Orleans.

      Tissot, J. Olarlce, Bayne <& Bensluiw, for Davis, appellant.

      J. 8. Whitaker, 'J, A. Campbell, JS. Bermudez, John Bay, for Mrs. Risley, appellant.

      JB. IT. McCaleb, T. W. Collens, and William H. Bunt, for Mrs. Elliot, appellant.

      Labait & Aroni, B. Shackelford, J. L. Tissot, for Mrs. V. C. Burke, appellee.
   Wyly, J.

On twenty-ninth March, 1872, Hampton Elliot died in New Orleans, leaving a surviving widow and no forced heirs, and property, chiefly in mortgage notes, appraised at upwards of $80,000.

In regard to this property, the present controversy arises between the following parties: Samuel M. Davis claiming by deed or an assignment of date April 16, 1869; Mrs. Virginia C. Burke, by will of date twenty-ninth May, 1869, executed in Adams County, Mississippi; Mrs. Mary E. Risley, by will of date twenty-ninth November, 1871, executed in New Orleans; and Letitia C.. Elliot claiming as surviving widow.

The court gave judgment as follows: The demand of Davis was rejected and the property decreed to belong to Hampton Elliot’s succession. The will propounded by Mrs. Risley was held to be null and void, and her demand thereunder rejected. The demand of Mrs. Elliot was disallowed; and the will propounded by Mrs. Burke was declared to be valid, and she was recognized as the universal legatee of Hampton Elliot and, as such, entitled to the property in controversy.

From this judgment Davis, Mrs. Risley, and ■ Mrs. Elliot have appealed.

In regard to the facts the finding of the court is that Hampton Elliot died possessed of the property in controversy, and that his legal domicile was in Adams County, Mississippi.

So far as the immovable property of the succession is concerned, Davis can not claim title, whether the funds employed by Elliot in the purchase thereof belonged to him or not.

In regard to the movable property claimed by Davis under the deed or assignment of sixteenth April, 1869, the inquiry is simply as to the ownership thereof, and for that purpose parol as well as written evidence may be considered.

If the position of the parties were different, that is, if Davis after collecting the $80,000 and upwards from the succession of Jacob Surget under the assignment of the heirship of Elliot 6of date sixteenth April, 1869, had retained the money, and Elliot or his heirs were suing to recover it, he could hold up the deed or assignment, which he claims as the basis of his title, and parol evidence could not be received to contradict it, whether that instrument was a bona fide transfer or not. If it were a simulation nothing but a counter letter could show the fact so far as regards Elliot or his heirs.

But what was the action of Davis under the assignment of Elliot’s heirship of the estate of his uncle, Jacob Surget, of date April 16,1869 9 Under it Davis collected the money, and after accounting to Elliot as his principal, paid it over to him or put it under his control, and expressed the wish that Elliot may live long to enjoy it. Although neither Elliot nor his heirs could have disputed the title of Davis in an action against him for the money collected under the assignment of the sixteenth April, 1869, still, after the real intention of the parties under that instrument has been executed and the money paid over to Elliot in pursuance thereof, it was perfectly competent to prove by any legal evidence the ownership of the thing. And the proof in the record shows beyond doubt that the property in controversy belongs to Elliot’s succession. It was undoubtedly the purpose of Elliot in making the assignment to Davis to conceal his property from his wife, whom he had abandoned.

We are therefore of the opinion that the court below did not err in rejecting Davis’ demand.

We will next consider the title set up by Mrs. Risley. She propounds it as a will. It was written in pencil on a small piece of paper, and is as follows:

“New Orleans, Twenty-ninth November, 1871.
Mary, I have shown you notes for loaned money for over eighty thousand dollars secured by first mortgage on valuable real estate in this city. There is a large margin allowed, that is, if house and ground is worth twelve thousand dollars, only six thousand would be loaned on it. If I die, this is for you. H. ELLIOT.”

We can not regard this as a testamentary paper. The intention of the party to make a will is not manifest ; and there is no corpus upon which a will can operate. The notes referred to in the writing are not those involved in this suit, because it is shown that they were never exhibited to Mrs. Risley. We think the court did not err in declaring the writing void as a will and setting aside the probate thereof.

In regard to the will set up by Mrs. Burke, it is not doubted that it is perfect in form and conveys title, unless her incapacity to inherit be established by the evidence. It is urged in argument, but was not pleaded, that the proof shows that Mrs. Burke lived in open concubinage with the deceased, and therefore under article 1481 of the Revised Code she was incapable of receiving a donation of immovable property from him, and could only receive a donation of movables in an amount not exceeding one-tenth part of his whole estate. In support of the position, the letters of Elliot to Mrs. Burke, introduced in evidence by herself, are chiefly relied on. They show a degree of familiarity highly unbecoming in the correspondence between a gentleman and a lady; and from their tenor the relation of the parties to each other looks highly suspicious. But in the absence of corroborating evidence and in view of the fact that during the correspondence and nearly the whole time of their acquaintance, she was in New York and he in New Orleans, we can not decide the parties lived in open concubinage, and were, therefore, not capable of making donations to each other, except to the limited extent allowed by article 1481 of the Revised Code of 1870.

Our conclusion is that the will propounded by Mrs. Burke is valid, and under it she is entitled to the property of Hampton Elliot as far as he was able to make a testamentary disposition thereof, according to the laws of Mississippi, the place of his domicile, and where the will under consideration was made.

We come now to consider the rights of Mrs. Elliot, the surviving widow of deceased. They must be determined by the laws of Mississippi. Looking to the Revised Code of Mississippi of 1871, we find article 1282, which reads as follows:

When a husband dies intestate, or shall make his last will and testament, and not make satisfactory provision therein for his wife, as aforesaid, she shall be entitled to share in his personal estate in the following manner, to wit: If there be no children, or if there be but one child, in that case she shall be entitled, out of the residue left, after paying the debts of the deceased, to one-half; but if there be more than one child, in that case she shall be entitled to a child’s part, in either case in fee simple, and she may claim distribution thereof at the time and in the manner that other distributees may have distribution of estates.” * * * * * *

Elliot left no children and according to the laws of Mississippi his widow is entitled to one-half of his personal property. The immovable property is controlled by the law of this State and passed under the will to Mrs. Burke.

It is therefore ordered that the judgment herein be amended so that Mrs. Elliot, the surviving widow, be decreed to be the legal owner of one-half the movable property belonging to the succession of Hampton Elliot, and as thus amended it is ordered that the judgment be affirmed, appellants, except Mrs. Elliot, paying costs of appeal, and so far as relates to Mrs Elliot costs to be paid by Mrs. Burke.

Morgan, J.,

dissenting. I dissent from the opinion of the majority of the court, and reserve the right to give my reasons therefor hereafter.

Rehearing refused.


author: Tali ARERRO, J.

text:
    No. 3935.
    Francis C. Mahan v. A Dubuclet, State Treasurer. Joseph Hernandez and Patrick Frizzel, Intervenors.
    "Where one of two innocent persons must suffer a loss through the misconduct of another, the loss ought rather to fall upon him who put it in the power of the third party to inflict the injury.
    APPEAL from the Eighth District Court, parish of Orleans.

      Dibble, 8. P. Dime and John Pay, for plaintiff and appellant. Hays é

      New, for defendant and for P. Frizzel, intervenor, appellees.

      Bornor & Benedict, for Joseph Hernandez, intervenor and appellee.
   Tali ARERRO, J.

The plaintiff brought this suit against the defendants to recover from their possession two State warrants, each for the sum of $1523, bearing respectively the numbers 2025 and 2026, and issued by Gr. M. Wickliffe, the Auditor of the State, on the thirteenth of July, 1869. The warrants were sequestered and released under bond. Hernandez and Frizzel intervened; the former claiming to be owner of warrant No. 2026, the latter to be owner of warrant No. 2025. The answer of defendants is a. general denial. The intervenors had judgment sustaining their titles to the warrants. There was judgment in favor of defendants, dismissing the plaintiff’s suit as to them at plaintiff’s costs.

The plaintiff has appealed.

The facts seem to be these. The plaintiff, in December, 1869, at the request of Wickliffe, Auditor of Public Accounts, let him have possession of the two warrants to exhibit before a committee of the Legislature then investigating certain charges against him, and plaintiff took from him a receipt for the warrants. Wickliffe disappeared soon after without returning the warrants, and plaintiff was unable to get any trace of them until some time after he ascertained they had been presented at the Treasurer’s office for payment. No advertisement or notice of the loss was given by the plaintiff. The allegations of the intervenors that they are dona fide holders under the blank indorsement of Keefe, to whom the warrants were issued; that they gave a valuable consideration for them in due course of trade, without notice of the plaintiff’s claims, seems to be sufficiently well authenticated.

The rule that seems applicable in this case is, that where one of two innocent persons must suffer a loss through the misconduct of another, the loss ought rather to fall upon him who put it into the power of the third party to inflict the injury. By delivering possession of the warrants to Wickliffe, the plaintiff enabled the latter to throw them upon the market, which under all the facts and circumstances shown, and in the absence of any explanations on his part, the presumption is that he did so. .

We think the decree of the lower court correct.

Judgment affirmed.


author: Morgan, J.

text:
    No. 3920.
    Mrs. O. K. Dunning v. John Coleman & Co.
    Judgment having been rendered in favor of John Coleman & Co., -with privilege on a certain piece of property on Hampart street, New Orleans, which privilege was for having paved the street in front thereof, said property was sold by the sheriff and bought by John Coleman. It had been previously mortgaged to the plaintiff for a sum in excess of the amount realized at the sale. Mrs Dunning, the plaintiff, issued executory process, and the sheriff decliued to sell the property under her mortgage, as he had already sold it under Coleman’s privilege. Mrs. Dunning now sues John Coleman & Co., to have the sale rescinded and her mortgage declared to have priority over Coleman’s privilege.
    Article G84 of the Code of Practice and article 3274 of the Civil Code of 1825, which has not been repealed or changed by any special legislation, govern this case. The act of 1840, on which the defendants rely, even if that act were admitted to be in force now — a point on which no opinion is expressed — gives them the privilege claimed, but on certain conditions.’ When they were complied with, it was too late to have any effect on the plaintiff’s mortgage.
    The Statute of 1840 does not, in any manner, repeal or change the article of the Code above quoted,‘in regard to the time when the privilege shall be recorded. It simply fixes the length of time which the privilege is to endure. As the privilege under which the sale took place was not superior to the plaintiffs mortgage, and as the price bid was not sufficient to pay her mortgage, it follows under the article of the Code oí Practice above cited, that there was no legal adjudication, and therefore that there was no sale.
    The court a qua did not err in nonsuiting plaintiff as to the claim she made against Coleman, to cause him to make restitution of the rents received by him since the sale, to he placed to the credit of her debtor. The plaintiff would have had no authority for making these rents responsible for her debt, if the property had remained in the hands of her debtor.
    Her rights rested on the realty and not on its revenues.
    APPEAL from the Seventh District Court, parish of Orleans.

      Ool-Mlleul, for plaintiff and appellee.

      Sornor <& Benedict, for defendants and appellants.
   Morgan, J.

On the seventh May, 1869, Edmund Murphy executed his promissory note for $6000, payable to his own order twelve months after date. The payment of the note was secured by special mortgage on certain real estate in this city. The mortgage was recorded in the mortgage office on the tenth May, 1869.

Coleman & Co. paved the street in front of this property. The work was done nnder the authority of the Council. The authority was first given on the thirtieth August, 1860, and the work was to have been completed in two years; but in 1868 the time was extended to the first November, 1870. The contract was recorded on the eighteenth May, 1870, nearly two years after it had been agreed upon, and nearly one year after the mortgage. Coleman obtained judgment for the amount of his claim, and caused the property to be sold to satisfy it.

The plaintiff took out an order of seizure and sale against the property. Her suit was returned by the sheriff, in consequence of the property having been previously sold under Coleman & Co’s judgment.

Plaintiff seeks to annul the sale, and to cause the privilege of Coleman & Co. to be erased from the books of the mortgage office, to the extent, at least, that it shall confer no priority over her mortgage.

The property sold for less than the sum due to the plaintiff.

The 684th article of the Code of Practice provides, that “if the price bid is not sufficient to discharge the privileges and mortgages existing on the property, and which have a preference over the judgment creditor, there shall be no adjudication, and the sheriff shall proceed to seize other property of the debtor, if there be any.” If there was no legal adjudication, there was no sale. There certainly was no legal adjudication if the defendants’ asserted privilege had no preference over the plaintiff’s mortgage.

Privileges are strioti juris, and, whether the result of general laws, or special statutes, must be rigidly construed.

Now the article 3274 of the C. C. declares that “no privilege shall have effect against third persons unless recorded in the manner required by law in the parish where the property to be affected is situated. It shall confer no preference on the creditor who holds it, over creditors who have acquired a mortgage, unless the act or other evidence of the debt is recorded on the day that the contract was entered into.” This article, found in the Code of 1825, has not been repealed or changed by any special legislation. The act of 1840, under which the defendant claims (admitting it to be in force, upon which it is not necessary to express an opinion) gives the privilege claimed, but it provides “that the privilege which secures the reimbursement as aforesaid for paving shall only exist when an account of said paving, certified by the treasurer and comptroller of the said municipality, shall be duly recorded in the office of the Register of Conveyances in this city, and provided said privilege shall exist for two years only after the tax has become due.”

There is, therefore, no privilege until the work is done, and when the work is done the privilege interferes with no one until it has been duly recorded. “Duly recorded” means recorded in compliance with the requirement of law. The requirement of the law is that it shall be recorded on the day when the evidence of debt was given. That day was the twenty-eight February, 1870. It was not recorded until the eighteenth day of May following. It was too late for it to have any effect upon the plaintiff’s mortgage, for this statute of 1840 does not, in any manner, repeal or change the article of the Code above quoted, in regard to the time when the privilege shall be recorded. It simply fixes the length of time which the privilege is to endure.

As the privilege under which the sale took place was not superior to the plaintiff’s mortgage, and as the price bid was not sufficient to pay her mortgage, x_ follows, under the article of the Code of Practice cited, that there was no legal adjudication, and, therefore, that there was no sale. The judgment of the court below, in this regard, was correctly rendered.

Appellee contends that there was error in the judgment which non-suited her as to the claim she made against defendants to cause him to make restitution of the rents received by him since the sale, to he placed to the credit of her debtor. We think the district judge was right. The plaintiff would have had no authority for making these rents responsible for her debt if the property had remained in the hands of her debtor. Her rights rested on the realty and not on its revenues; what became of them is no concernment of hers.

Judgment affirmed.

Rehearing refused.


text:
    No. 4025.
    Bank of New Orleans v. Western Union Telegraph Company.
    Tide is a suit to recover the amount of losses sustained in consequence of incorrect information given by defendants, in violation of their contract with plaintiffs, as to the fluctuations of the gold market in New York. The defense is, that the error in the telegram was no fault of defendants, hut occurred in the working of the indicator of the v Geld Stock Company placed for convenience in the office of defendants in New York, but under the management of a corporation entirely distinct from theirs. This does not exonerate them from liability, because by their contract they were bound to carry to plaintiffs correct information, which they could have obtained without relying on the indicator.
    APPEAL from the Fourth District Court, parish of Orleans.

      TMard J. A. & W. VoorMes, for plaintiffs and appellees. Semmes <fs for defendants and appellants. .
   Wyly, J.

The defendants, who were employed to furnish the plaintiffs with daily reports, indicating the fluctuations of the money market of New York, delivered a telegram to them on the second of November, 1869, reporting gold at 12 M. at 128|, whereas the true rate of gold at New York at that hour was 127-|.

The plaintiffs alleging that they were induced hy this telegram to buy foreign exchange to the amount of $173,816 15, sue the defendants for $1738 16, the amount of loss they sustained by said purchase, by reason of the erroneous report in said telegram rating gold at one per cent, higher than it was in New York at that day and hour. The court gave judgment for plaintiffs for the amount prayed for, and the defendants appeal.

There is no controversy as to the facts, the allegations of the plaintiffs being fully proved. . ..

The defendants, however, contend that the error in the telegram was owing to no fault of theirs; that the information conveyed in the telegram was taken from the indicator of the Gold Stock Company of New York, a corporation distinct from the defendants, and the error occurred in the working of the indicator. It is true the error resulted from a defect in the working of the indicator of the Gold Stock Company, placed for convenience in the office of the defendants in New York; hud this did not exonerate them from liability, because by their contract they were bound to convey to the plaintiffs correct information, which they could have obtained without relying on the indicator.

Failing to comply with their contract, the defendants conveyed to the plaintiffs incorrect information, whereby they sustained the loss complained of.

Judgment affirmed.


text:
    No. 5431.
    Henry Samory v. Widow Samuel M. Montgomery.
    According to plaintiff’s own statement, his claim is based on the balance due him on a judgment in his favor oí the Third District Court, parish of Orleans, against S. M. Montgomery, which judgment, by execution issued thereon, was not satisfied in full. The judgment of the Third District Court was rendered on the twelfth of December, 1863 ^ it was affirmed on the tenth of June, 1867. Meanwhile the property was seized, and, on the fifth February, 1864, was sold to plaintiff, who claims that there is a balance of $700£ due bim on the jugment.
    This present suit was instituted in the Second District Court, parish of Orleans, against the representatives of the said S. M. Montgomery, deceased, to cause the plaintiff to be recognized as a creditor of tbe estate in the above amount to be paid in due course of administration.
    It bas been decided that a devolutive or suspensive appeal from a final judgment of a district court, does not suspend prescription, pending the appeal. Therefore prescription, running in this instance from the twelfth December, 1863, the day on which the judgment relied on by plaintiff was rendered, which judgmentwas affirmed on the tenth January, 1867 was not interrupted by this suit instituted on the fifth of December, J871, and fixed for trial on the eleventh September, 1874, on motion of plaintiff’s counsel, when, on that day, the defendant filed the plea of prescription.
    To revive a judgment, citation must issue from the court which rendered it. To revive the judgment sought to he enforced in this case, citation should have issued from the Third District Court.
    The suit in the Second District Court can in no sense be considered as a suit to revive the judgment of the Third District Court, and if it were, the second court, under the statute of 1853, had no power to revive it. Hence the foundation on which the plaintiff’s claim-rests, to wit, the judgment of the Third District Court, has been destroyed by time.
    APPEAL from tbe Second District Court, parish of Orleans.

      Tissotr J. L. Tissot, Bandall Humt, for plaintiff and appellee.

      Titos. Sunton, for defendant and appellant.
   Morgan, J.

Plaintiff was tbe owner of four promissory notes executed by S. M. Montgomery, three of which were executed on the twenty-fourth May, 1861, for $5000 each, and one on the thirteenth January, 1862, for $640. The notes were secured by mortgage.

On the tenth November, 1863, plaintiff instituted suit against Montgomery iu the Third District Court of New Orleans, to recover the amount of these notes and to make the property mortgaged liable therefor. At the time the suit was instituted, Montgomery was not in New Orleans. A curator ad hoe was appointed to represent him. The Third District Court on the twelfth December, 1863, rendered judgment in favor of the plaintiff for, First — $ 15,000; Second — $650; and Third — $782, attorney’s fees with lien and privilege on the property mortgaged. On the fifteenth July, 1865, the defendant, Montgomery, appearing in his own name through counsel, moved the court for a devolutive appeal, which was granted. Pending the appeal Montgomery died. His widow qualified as natural tutrix to their minor child and made herself, through her counsel, a party to the suit.

On the tenth of June, 1867, the judgment of the district court was affirmed. In the meanwhile execution had issued on the judgment, the property mortgaged was seized and, on the fifth February, 1864, sold to the plaintiff. Plaintiff claims that there is a balance of .$7002 60 due him on the judgment.

This suit is instituted against the representative of the succession of Montgomery to cause the plaintiff to be recognized as a creditor of the estate in the above amount, to be paid in due course of administration. The petition was filed on the fifth December, 1871. The answer was filed on the twenty-first December, 1871. The case seems to have lingered along until the first September, 1874, when, on motion of plaintiff’s counsel, it was’fixed for trial on the eleventh September, 1874.

On that day the defendant plead the prescription of five and ten years.

To take the case as stated by the counsel for plaintiff. The action is based, either on the judgment of thé Third District Court of New Orleans, or on the notes secured by mortgage on which that judgment was obtained. His position is that in neither case was prescription acquired on the fifth December, 1871, when the present suit was instituted. He states the proposition that a legal interruption of prescription takes place when suit has been instituted before a eourt of justice against the debtor. The authorities he brings forward to support his position probably do so. And if taken thus broadly stated, his answer would be complete. But according to his _own statement the claim of plaintiff is based on the balance due him on the judgment in his favor of the Third District Court, which, by execution issued thereon, was not satisfied for its full value. It is, therefore, he says, a claim based on a judgment affirmed by this court. The judgment of the Third District Couit, as we have seen, was rendered on the twelfth December, 1863. It was affirmed on the tenth June, 1867.

He contends, first, that prescription commenced to run on this judgment on the tenth June, 1867; and second, that this suit having been instituted on the fifth December, 1871, prescription had not then been accomplished, and that it was interrupted by the suit.

First — In the case of Arrowsmith v. Durell, 2L An. 295, it was expressly decided that a devolutive appeal from a final judgment does not suspend or interrupt prescription pending- the appeal.

In Walker v. Succession of Hays, 23 An. 176, it was held that a suspensive appeal did not interrupt prescription, which, the court said began to run on the day the judgment of the District Court was signed. And, in the case of Byrne, Vance & Co. v. Garrett, 23 An. 587, the same conclusion was reached. We may, therefore, conclude that his first proposition is not supported by authority.

Second — In Wade ®. Caspar;', 24 An. 211, it was held thata judgment is prescribed by the lapse of ten years from its rendition. And in the succession of Hardy 25 An. 489, it was held that the prescription of a judgment can only be averted by complying with the requirements of the act of 1853.

The act of 1853 provides that “all judgments for money, whether rendered within or without the State, shall be prescribed by the lapse of ten years from the rendition of such judgment, provided, however, that any party interested in any judgment may have the same revived at any time before it is prescribed by having a citation issued according to law, to the defendant or his representative, from the court which, rendered the judgment.’’ R. S. No. 2813.

Now the directions of the statute are positive. To revive a judgment, citation must issue from the court which rendered the judgment-To revive the judgment nowsought to be enforced citation should have issued from the Third District Court. This was not done.

It is, however, contended that inasmuch as the judgment was not prescribed when this suit was instituted, prescription was interrupted. But while this case was sleeping on the docket of the Second Court, prescription was running against the judgment in the Third Court. Nothing prevented the plaintiff from instituting proceedings to revive the judgment. Instead of doing this he instituted proceedings to have the judgment paid by the tutrix in due course of administration. When he came to try his case, the foundation upon which it rested— the judgment — had been destroyed by time. The suit in the Second Court can in no sense be considered as a suit to revive the judgment of the Third Court, and if it were, the Second Court, under the statute, had no power to revive it.

We conclude, therefore, that the plea of prescription must prevail. It is therefore ordered, adjudged and decreed that the judgment of the district court be avoided annulled and reversed, and that there be ■judgmentin favor of the defendant with costs in both courts.

Rehearing refused.


author: • MORGAN J. Taliaferro, J., Wyly, J.,

text:
    No. 3130.
    William H. Johnson v. Canal and Claiborne Railroad Company.
    It is true that the allegata and the probata must agree, hut it is sufficient if the substance of the issue be proved. The real substance in this case is not where the plaintiff was, to a mathematical precision, when he was injured; but first, whether he did suffer, and secondly, whether, if he suffered, it was from the fault of the defendant.
    But where the conduct of the plaintiff has been negligent and has contributed to the injury received, he can not recover, even though the defendant be in fault, and such is the fact in this instance. The damage done to plaintiff was in part the result of his own carelessness. He can not therefore, make the railroad company responsible for a disaster which he brought to some extent upon himself.
    APPEAL from the Seventh District Court, parish of Orleans. J.

      Oollens, J. Jury trial. John U. Kennard, for plaintiff and appellee.

      M. D. Ogden, for defendant and appellant.
   • MORGAN J.

The petitioner alleges that on the night of the twelfth of November, 1869, between the hours of ten and eleven, at a point on Canal street, between Baronne and Carondelet, while exercising his privilege as a citizen, of walking the streets, proceeding on foot down the sidewalk of the neutral ground on Canal street, on the right hand side of said neutral ground, and going towards the Mississippi river from the direction of Baronne street, he was knocked down, run over, and had one of his legs so terribly crushed by car No. 18, belonging to the Canal and Claiborne street Railroad Company, drawn by one of the company’s mules, and driven by an agent and employe of said company, that it was necessary to have his leg amputated, and he was thereby made a cripple for life.

On the trial the plaintiff, when examined as a witness, said that when the defendant’s car ran over him he was walking on the track of the railroad. His testimony was objected to on the ground that it did not correspond with the allegation in his petition, which was that when the accident happened he was proceeding down the walk of the ueutral ground on Canal street. It is true that the allegata and the probata must agree. Bat we understand that it is sufficient if the substance of the issue be proved. Now the real substance of the issue in this ease is not, to a mathematical precision, where the plaintiff was when the terrible calamity of which he is the victim overtook him, but first, whether he did suffer, and second, whether if he suffered it was from the fault of the defendant. We think the testimony was properly received. As to the first point, we think it fully established that the defendants’ car did the deed. As to the second point. The general propositions that every person is responsible for the damage he occasions, not merely by his act, but by his negligence, imprudence, or want of skill; that we are responsible not only for the damage occasioned by our own act, but for that which is caused by the acts of persons for whom we are answerable, or of the things which we have the custody, is not disputed. Neither can it be denied that a railroad company is responsible for the damages caused by its servants. They have been constantly made to pay the injuries which they have occasioned, where the injuries have been the result of carelessness or bad management of their servants.

But where the conduct of the plaintiff has been negligent and has contributed to the disaster, he can not recover, even though the defendant be in fault. This is the language of this court in the case of Knight v. Pontchartrain Railroad Company, 23 An. 462, in which this whole doctrine was considered and where all the authorities which could be found upon the subject are referred to. We are satisfied that that case was properly decided, and our inquiries must now be directed to the question of negligence on the part of the plaintiff.

In tlie centre of Canal street, on what is known as the neutral ground, there are four railroad tracks; two belonging to the City Railroad, and two belonging to the defendants. Those belonging to the defendants run near the edge of the neutral ground, those belonging to the City Railroad, in the center. Both lines of road traverse a thickly settled portion of the city, and their respective cars are almost constantly going and coming. The space between the side of the neutral ground and the defendants’ track is narrow. The space between the different tracks is limited. The starting point for the City Railroad cars is between Carondelet and St. Charles streets. The defendants’ cars cross St. Charles street and go towards the levee.

The plaintiff’s residence is iu the lower part of the city. To reach there he uses the City Railroad cars. At about half past ten o’clock of the night of the twelfth of November, 1869, he came down Baronne street to take the Bayou road cars. These cars start from a point between St. Charles and Carondelet streets. Under these circumstances what would have been the course of a prudent man 1 He would have waited on the corner of Canal and Baronne for his car. Or, if he wished to take the car at its point of departure, he would have gone up Canal street on the upper side until he got opposite his car, and then crossed the street. Instead of this he crossed Canal street one square and a half below the point where he wished to take the car, and up the neutral ground. Even here if he had walked on the flagging which intervenes between the railroad track and the street proper he could have done so with comparative safety. But, from his own evidence, he was walking on the track itself when the disaster occurred to him. Two roads were open to him. One, absolutely free from risk of any kind; the other, full of danger. He chose the latter, and no matter how much we may regret the circumstance of his calamity, we feel constrained to say that- it was in part the result of his own carelessness. He can not therefore make the railroad company responsible for a disaster which he brought to some extent upon himself.

This opinion does not in any manner clash with the decision in Barksdall’s case 23 An. 180. There the child was run over while endeavoring to cross St. Charles street on the upper crossing of St. Mary street. He was then in the proper place and pursuing the route which was the only one lie could safely have taken. He did not, therefore, contribute to the negligence which caused him to suffer. It was the driver of the car who was alone to blame for the accident.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be avoided, annulled and reversed, and that there be judgment in favor of the defendants, with costs in both courts.

Taliaferro, J.,

dissenting. The inquiry in this case is simply: could the accident have been prevented by the exercise of that degree -of attention and care by the car driver which it was Iris duty to exercise in order to avoid accidents ? What is a car driver required to go at a moderate speed for, if it is not to avoid accidents'? What is he re■quired to be circumspect in driving for, if it is not to avoid running over people ? Why is he required to be constantly on the alert while moving, to look ahead and around, if it be not that he may-go along with safety among the thousands of persons constantly on the streets ? Now, these are the obligations he is under, and if he does not fulfill ■them he fails in his duties to the public and to his employers. I imagine there is no more common thing than that of accidents being prevented by the vigilance and skill of car drivers slackening their speed or stopping their cars, on occasion when there is danger of collision with other vehicles or of running over a person. Such prevention of accidents I doubt not, happens daily. The evidence is perfectly satisfactory to ane, that if the car driver in this case had been doing his duty, this accident might certainly have been prevented; that Johnson’s being on the track did by no means render the accident inevitable. Grant that' he was imprudent in being on the track, still, it is clearly shown by proof, that if the car driver had been doing his duty, he might easily have avoided running over the man. One witness says that at the point where this accident happened, it was light enough to see to pick ■up a pin. The witness Martin, sitting near in his cab, and viewing the scene distinctly, is positive in his statement that if the car driver had been driving as he ought to have done, he might have avoided running over him/ This witness swears that at the time of the disaster, the car driver was talking with a man standing in the car near the ■door. He was driving at an unusual speed. One witness thought at about the rate of ten miles an hour. A policeman who pursued the car after tile accident, in order to identify it, saw more of his reckless driving. The policeman swears that the car driver made no stop whatever npon the happening of the accident, but went rapidly on and was near running over two other persons on the course at the Clay statue. It is clear to me from the evidence that this driver is an ignorant and stolid man of a reckless character, having no experience in the business he was engaged in, when he ran the car over Johnson. He was introduced as a witness on behalf of the defendants, but with little advantage to them.' It was drawn out of him on cross examination that the defendants had discharged him subsequently to this accident, on account of a collision between the car he drove and a steam car, and he admitted he was in fault for the happening of the collision. If then, under ordinary prudence and care, and by bestowing the attention upon his business that his duty required; if he had been driving at a moderate and safe speed, and looking forward and around him instead of being engaged in conversation with the young man standing at the door near him, he might without any difficulty have avoided running over the plaintiff. How stands the matter ? Here an accident occurred which the car driver had it entirely in his own power to prevent, and yet he did not prevent it. No co-operative act on the part of the plaintiff was necessary to enable the car driver to obviate the accident. There was clearly then in this case, no contributory negligence. All the facts in this case place it in that class of cases defined by this court, in 23 An. 464 (Knight v. Pontehartrain Railroad Company) under the second head as follows : “Where the conduct of the plaintiff has been imprudent or negligent, but such imprudence or negligence has not contributed to the accident. In such case the plaintiff may recover from a defendant in fault.” Can a person be said to have contributed to an accident unless by his own act he has placed it out of the power of the other party to prevent it when this other party might, otherwise have done it ? Take the case at bar, and suppose the facts in regard to the victim to have been different from what they are shown to be. Suppose the driver, going as he was, at an unusual and unwarrantable speed, reckless of accidents, and Johnson had rushed rapidly upon the track directly ahead of the mule and car so that the driver could not if he had aimed to do it, prevent his being killed or crippled and we have a case of contributive negligence. Many cases of what is termed contributive negligence occur. Par the greater number that appear in our reports belong to this class. But the facts of the case at bar are far different from those presented in any of the cases of thatclass. Johnson, it is shown, was sufficiently far in advance of the car, for a driver of ordinary prudence and care going at the customary speed, to have stopped his car before reaching him and thus have prevented the accident. It is a case in my opinion coming distinctly under the second class of cases as defined in Knight’s case, 23 An. 464, viz: that although a party may have been imprudent or negligent, yet, where by his negligence or imprudence he has not contributed to the accident he may recover from a party- in fault.

In this case it was entirely at the volition of the driver to run over the man or not. Having done so, he and his employers should be responsible for the consequences.

I think the plaintiff should recover damages.

Wyly, J.,

dissenting. I concur in the dissenting opinion of Mr. Justice Taliaferro.

Rehearing refused.


author: Taliaferro, J.

text:
    No. 3867.
    James J. O’Hara v. Henry Blood.
    Where the defendant, “being sued for the payment of a certain sum in consequence of the construction of banquettes in front of his property in Locust street, averred that the city of New Orleans had not complied with the formalities set forth in the city charter in this— that one-fourth of the owners of real property fronting on said unbanquetted street did not petition for the banquetting alleged to have been done in that locality;
    Held — That a petition signed by a number of persons representing themselves as property holders on Locust street, asking for banquettes to be constructed in that street, being found in the record, it must be supposed, in the absence of rebutting evidence, on the principle of omnia presumuntur rite esse aeta that the persons petitioning constitute one-fourth of the property owners on that street.
    APPEAL from the Seventh District Court, parish of Orleans.

      Oollens, J. Hornor <& Benedict, for plaintiff' and appellee.
    J. A. Bonier, for defendant and appellant.
   Taliaferro, J.

The petition alleges that the defendant is indebted to him in the sum of seven hundred and forty-two dollars and thirty-six cents, with eight per cent, interest thereon from the nineteenth November, 1870, for having constructed banquettes in front of the defendant’s property on Locust street, in conformity with a contract entered into between the city and Patrick Harnan, who transferred all his right and interest in said contract to petitioner.

He prays judgment for the above sum, and interest with special privilege on defendant’s property on the Northwest side of Locust street, between Philip and Jaekson streets.

The answer is a general denial. The defendant avers that the city of New Orleans has not complied -with the formalities and requisites set forth in the city charter in this, that one-fourth of the owners of real property fronting on the unbanquetted street referred to in the petition, did not petition for the banquetting alleged to have been done at that locality; that the petition was not published dui’ÍDg the requisite time, and that the City Council never passed any resolution authorizing the said banquetting.

There was judgment in favor of the plaintiff in the court below as prayed for in the petition, and the defendant has appealed.

A review of the record satisfies us that the plaintiff has made out his case. We find a petition signed by a number of persons representing themselves as property holders on Locust street, asking for banquettes to be constructed on that street. On the principle that omnia jpresumimtur rite esse acta, we must suppose that the persons petitioning constitute one-fourth of the property owners on that street. The defendant has offered no evidence to rebut the presumption. A resolution of the City Council is shown accepting the bid of Harnan; and also we find the contract entered into between him and the city for the doing of the work, and the proper evidence showing that the work was performed according to the contract by the plaintiff, to whom the contract was assigned by Harnan.

The decree of the lower court we think correct.

Judgment affirmed.

Rehearing refused.


author: Taliaeerro, J.

text:
    No. 2738.
    Culver, Simonds & Co. v. H. J. Leovy, B. B. Hart et al.

      In tliis instance the main groimd of the defense seems to be, that the judgment appealed from was against these defendants in solido, and it was so changed by this court as to discharge one of them, the Delta Newspaper Company, and hold the other two liable jointly and not m solido, and therefore the surety is not liable for the amount of the judg* ment so rendered. The Code of Practice provides that the appellant shall satisfy whatever judgment may be rendered against him, and that the surety shall be liable in his stead. The language used is plain and expressive — that the surety’s liability is to be just that of his principal, to pay and satisfy the final judgment of the appellate court whatever that may be. The condition of the bond signed by the surety in this case is the one required by law. The defense he sets up is more specious than weighty.
    APPEAL from the Sixth District Court, parish of Orleans.

      Oooley, J. Merrick, Mace & Foster, for plaintiffs and appellants.

      B. S. Ma/rr, F. A. Monroe, for B. B. Hart, defendant and appellee.
   Taliaeerro, J.

The plaintiffs obtained judgment in solido against the Delta Newspaper Company, as maker, and Leovy and Duncan as indorsers of a promissory note.

Defendants appealed giving Barnett B. Hart as their surety on the appeal bond. The court reversed the judgment, dismissed the suit ■against the Delta Newspaper Company, and condemned Leovy and Duncan jointly, each for his virile share. 19 An. 202. Execution was issued and returned nulla Iona. Proceedings were then taken against the surety on the appeal bond, and the litigation was protracted and carelessly conducted. On the second December, 1869, another rule was taken against Hart, the surety, to render him liable. After a hearing the rule was dismissed and the plaintiffs have appealed. The main ground of the defense seems to be, that the judgment appealed from was against these defendants in solido, and it was so changed by this court, as to discharge one .of them, the Delta Newspaper Company, and held the other two liable jointly and not in solido, and, therefore, the surety is not liable for the amount of the judgment so rendered. The Code of Practice, article 579, prescribes the conditions upon which the surety is required to bind himself; these are, “that the appellant shall satisfy whatever judgment may be rendered against him, etc., and that the surety shall be liable in his stead.”

We think the language used is plain and expressive; that the surety’s liability is to be just that of his principal, to pay and satisfy the final judgment of the appellate court whatever that may be. The condition of the bond signed by the surety in this case is the one required by law, and we think the defense lie sets up more specious than weighty.

It is therefore ordered that the judgment appealed from be annulled and reversed. It is further ordered that the rule be made absolute, and that the plaintiffs receive from Barnett B. Hart, surety on the appeal bond, the amount of the judgment, interests and costs obtained by them against Duncan and Leovy, and all costs of these proceedings.


author: TaliafeRRO, J.

text:
    No. 5287.
    Hibernia National Bank et als. v. Samuel Smith et als.
    Nathaniel Montross, of New York, took out an order of seizure and sale against certain property mortgaged to Mm by Samuel Jamison to secure the payment of promissory notes on which this suit was brought. The mortgaged property was sold apd adjudicated to plaintiffs. The amount due on the debt for wMch the property was seized, was paid, and the remainder of the proceeds of the sale was retained to pay prior incumbrances. The city of New Orleans claimed as due for unpaid taxes against the property a certain sum. of money with interest and costs and attorney’s fees, and alleged the city’s right to be paid in preference to any other creditors. The State tax collector for th e First Distrist of New Orleans excepted to the jurisdiction of the court, showed that the State has a first privilege upon the property for all taxes and can not be called in as an ordinary creditor as aimed at by plaintiffs.
    But Smith & Co., who held certain mortgage notes, drawn by Jamison and secured also by first mortgage, took executory proceedings against the said property which plaintiffs have injoined. They have made parties to this suit as in a kind of conmrsus, the city of New Orleans, claiming a sum due for taxes, itlso the State tax collector of the First District of New Orleans and Nathaniel Montross, holder of the notes and mortgage under which the property was sold, and they have prayed that the proceeds of the sale of the property in their hands be distributed among the creditors of Jamison, according to their respective rights of mortgage and privilege.

      The court a qua maintained the exception of the State tax collector, gave judgment in favor of the city for a certain amount of taxes with lien and privilege on the property, and dissolved plaintiffs’ injunction.
    The judge below erred only so far as he gave judgment in favor of the city for taxes. It would be in time after the execution of the order of seizure and sale now pending, to present the claim for taxes, reserving to the city her right to be paid the taxes due, out of the proceeds of the sale when made.
    APPEAL from the Fifth District Court, parish of Orleans.

      Cullom, J. <& W. Voorldes, for plaintiffs and appellants.

      Finney & Miller,. for defendants and appellees.

      Walsh, for the city of New Orleans.
   TaliafeRRO, J.

The Hibernia Bank, the Citizens’ Bank and the New Orleans National Banking Association, as plaintiffs, institute this action by injunction to restrain and prohibit the defendants from proceeding to sell under executory process certain real estate situate in New Orleans, upon which they hold a mortgage first in rank.

The plaintiffs allege that they are the owners of this property, setting forth that they bought it at a sheriff’s sale previously provoked by the defendants under an order of seizure and sale obtained by them against one Jamison the former owner of the property, and predicated as it seems upon a junior mortgage.

The plaintiffs made parties to this suit, the city of New Orleans, claiming a sum due for taxes on the property, also the State tax collector of the First District of New Orleans, and Nathaniel Montross holder of the notes and mortgage under which the property was sold, were made parties in a kind of concursus and the plaintiffs pray that the proceeds of the sale of the property in their hands be distributed among the creditors of Jamison according to their respective rights of mortgage and privilege.

The answer admits that under a previous order of seizure and sale against the property of Jamison, the defendants caused the said property to be seized and advertised for sale and they reiterate the allegations set forth in their petition in that case and make the proceedings therein a part of their answer in this case. They specially deny that the plaintiffs are the owners of the property in question. They deny the plaintiffs’ right to the injunction and pray that the same be dissolved with damages and for general relief, etc.

During the progress of the case, the Hibernia Bank and the Citizens’ Bank having effected an agreement or compromise with the defendants, withdrew from the case, leaving the New Orleans National Banking Association the sole plaintiff.

The judgment of the court below dissolved the injunction with five per cent, damages against the jdaintiff, on two-fifths of the amount enjoined, viz: the amount collectible on the executory process,principal interest and attorneys fees, calculated to the date of the issue of tile injunction and two-fifths of the costs down to the twelfth of January, 1874.

From this judgment the plaintiff has appealed. The facts of this case appear to he, that on the nineteenth of December, 1872, Nathaniel Montross of New York, took out an order of seizure and sale against certain property mortgaged to him by Samuel Jamison. The suit via execwtiva, was based upon two promissory notes of $5000 each; these notes being two of a series of three, each for $5000. The mortgaged property was seized and sold on the eighteenth February, 1873; the three original plaintiffs in this case became the purchasers at the price of'$52,900. It seems they paid the amount due on the debt for which the property was seized and retained in their hands the remainder to pay prior incumbrances. The city of New Orleans claimed, as due for unpaid taxes against the property,' $7448, together with interests and costs and attorneys fees, and alleged the city’s right to be paid this sum in preference to any and all other creditors. The State tax collector for the First District of New Orleans excepted to the jurisdiction of the court — showed that the State has a first privilege upon the property for all taxes and can not be called in as an ordinary creditor as aimed at by plaintiffs. The judgment in this case already referred to awarded the city the sum of $5775 for taxes, with lien and privilege upon the property in contest, and sustained the exception of Folger, the State tax collector.

' After the first seizure, the one under which the sale was made, Montross .held the other mortgage note of the same series of three of $5000 each, and he held besides $12,500 in notes of Jamison secured by first mortgage on the same property. S. Smith & Co., also held mortgage notes of Jamison to the extent of $12,500 secured by the first mortgage; upon this amount Smith & Co., in May, 1873, took executory proceeding against the property and it is upon these proceedings that this injunction suit is founded, being number 5287'.

In November following, Montross proceeded via exeoiitiva on his three notes for $17,500, and caused the property to be seized and advertised for sale. Thereupon the plaintiffs aforesaid again resorted to injunction to stay and prevent the sale, forming the suit number 5286.

In this case, No. 5287, we see no sufficient object there would be in remanding it. In the case 5286, Montross answered without excepting to the jurisdiction. Judgment was rendered in each case on the same day. We think in the case No. 5287 the decree is erroneous so far as it renders judgment in favor of the city for taxes and correct as to dissolving the injunction. It will be in time, after the execution of the | order of seizure_and sale now pending, for the claim for taxes to be presented. Reserving to the city her right to be paid the taxes due out of the proceeds of Sale when made, it is ordered that the judgment appealed from so far as it condemns the plaintiff to pay the city $5775 for taxes with interest and costs, be annulled and reversed and that the judgment as thus altered and amended be affirmed. The appellees paying costs of this appeal.

Rehearing refused.


author: Taliaferro, J. •

text:
    No. 5286.
    Hibernia National Bank et als. v. Nathaniel Montross et als.
    The decision in this case stands on the same ground as the preceding one, No. 5287, and is governed by it.
    APPEAL from the Fifth District Court, parish of Orleans.

      Otülom, J. W. Voorhies, for plaintiffs and appellants.

      Finney & Miller, for defendants and appellees.
   Taliaferro, J. •

This case arises, like the one just decided (No. 5287), out of the injunction proceedings instituted by the plaintiffs against executory orders taken out by S. Smith & Co. and N. Montross against property of Jamison subject to their mortgages.

The injunction in the case now before us stands upon the same ground as the one in No. 5287, to which we refer.

In this case, on review of the evidence and the law applicable to it, we see no reason to disturb the judgment appealed from. It is ordered therefore that the judgment appealed from be affirmed with costs.


author: Howell, J.

text:
    No. 3592.
    Charles L. Richardson v. Lacey, Terry & Co.
    Judgment having been rendered against the defendants, as a firm, and the individual members thereof in solido for the amount of a note of the firm, there ■was another judgment in the same instance against Terry, one of the firm, for the same deht, on a rule against him as garnishee ; this was an error; and an order making a rule upon him absolute to forthwith deposit in court sufficient cash or assets to satisfy the judgment against him as garnishee, was another error. Terry was not a third person in contemplation of the law applicable to garnishees; he was one of the defendants; judgment had been rendered against him individually and as a member of the firm. The second judgment, under a fieri facias against the “ defendants, ” added nothing to his liability.
    APPEAL from the Fourth District Court, parish of Orleans.
    Théard, J. JDirrham/mer & Kennard, for plaintiff and appellee.

      Oooley <& Phillips, for defendants and appellants.
   Howell, J.

Three appeals come np in this record; one by the defendants from a judgment against the firm and the individual members thereof in solido, for the amount of a note of the firm; one by L„ H. Terry, one of the members, from a judgment against Mm for the same debt, on a rule against him as garnishee, and another by him from an order making a rule absolute to forthwith deposit in court sufficient cash or assets to satisfy the judgment against him as garnishee.

The first judgment is correct, .it being presumed that the judge had evidence before him to justify it; but we think the other two without authority in law. Terry is not a third person in contemplation of the law in reference to garnishment. He was cited as defendant, and judgment was rendered against him individually and as a member of the firm, and the second judgment, under a fieri famas against the “defendants,” added nothing to his liability. He was one of the defendants, and not a third person.

It is therefore ordered that the judgment against the defendants, signed on the eighth of February, 1871, be affirmed, and it is further ordered that the judgment against Lucius H. Terry, signed on twenty-seventh June, 1871, and the order of third July, 1871, making absolute the rule on him to deposit cash or assets in 'court be reversed and annulled, with his costs in said proceedings in the lower court. The plaintiffs and defendants, appellees, to pay eosts of appeal.