author: Blanchard, J. Mr. Justice Breaux: Nicholls, O. J.

text:
    No. 13,946.
    Mrs. E. Mackin et al. vs. O. N. Wilds.
    Syllabus.
    1. It is error to apply, in one motion, for appeals from two judgments rendered in separate suits, and error to include the granting of the two appeals in one order, and error to attempt to make one bond suffice for both appeals. There should be a separate motion, order and bond in each case.
    2. But because there was error in the way these appeals are sought to be brought up it does not follow that both should be dismissed. The motion, order and bond suffice for one appeal, and it is held, under the facts appearing and the state of the record, that an appeal from only one of the judgments has really been taken herein, which appeal is maintained.
    S. Where a minor is concerned, there can be no consent decree ordering the partition of property by licitation.

      4. There must be proof adduced before the judge that the property is indivisible by its nature, or else that it cannot be conveniently divided in kind, before he is authorized to order its sale at auction to effect partition.
    On Rehearing.
    It is the duty of clerks of the District Court, in all cases, whether the testimony itself be taken down in writing, or not, to make upon their minutes a note of the fact of the swearing of witnesses (and giving their names) to the end of perpetuating the evidence of that fact, and not leaving it to rest upon memory.

      APPEAL from the Tenth Judicial District, Parish of Concordia— Dagg, J.

      Wade Boss Young, .for Plaintiffs, Appellants.

      Samuel Lucius Elam, for Defendant, Appellee..
   The opinion of the court was delivered by

Blanchard, J.

On application for rehearing by

Nicholls, C. J.

Blanchard, J. John Mackin and O. N. Wilds were joint owners of certain plantation property, divided into six different tracts of land.

Mackin died, leaving a widow, Elizabeth Mackin, and three descendants, issue of his marriage with the said Elizabeth, to-wit: — Katie and John, both of age, and William, a minor, to whom his mother became tutrix.

These parties, to-wit: — Mrs. Elizabeth Mackin, for herself as surviving widow in community and as tutrix of the minor, William Mackin, and Katie and John Mackin in their own right, brought the present action against Wilds for a partition of the property.

The petition alleges, that the property is not susceptible of division in kind and that the same should be sold to effect partition and for a division of the proceeds among the owners.

No family meeting, convoked in the interest of the minor, had recommended that the property be sold for the purpose of effecting its partition, and prior to the trial of the case no experts were appointed to consider and report whether or not it was susceptible of division in kind.

Wilds answered asserting his willingness that the property be sold to effect its partition and prayed accordingly.

No evidence whatever appears to have been taken in the case. There is no note of evidence and nothing to show that a witness was sworn or a document offered.

On the contrary, appended to the transcript is the certificate of the clerk of court to the effect that pages numbered from 1 to 37, inclusive, contain a true and correct copy of all the pleadings and documents filed, of all orders, judgments and minute entries, of all evidence adduced, and of all proceedings had in the case.

If this certificate be correct, and we must hold it so (Harrison & Bro. vs. Soulabere, 52 La. Ann. 707), then no evidence whatever was taken in the case, and the judgment rendered was a mere consent' decree.

This judgment ordered the sale of five of the tracts of land to effect partition between the co-owners, and the reservation from sale of one tract.

It is presumed, since no contention on that score is raised, that the tracts ordered sold are the same described in the petition for partition, although as to several of them there is a difficulty of identification owing to dissimilarity of description in the petition and in the judgment.

The sixth tract was not ordered sold because, as the judgment recites, the parties to the suit agreed otherwise.

The tracts included in the order of sale were directed to be sold by the sheriff at public auction, after advertisement, etc., and the proceeds distributed by him to the several owners in the way commanded in the judgment.

A writ of sale issued to the sheriff and he executed the same. The purchasers at the sale were J. S. Adams and R. S. Wilds. The total proceeds of the sale was the sum of $8,783.00.

The sheriff submitted in his process verbal a tableau of distribution of this sum among the claimant owners, but it does not appear that he paid the same over to them. On- the contrary, he states that O. N. Wilds, who was decreed entitled to the greater part of the proceeds, demanded that his share be paid over to him, but that he (the sheriff) refused so to do because of the litigation pending to annul the sale.

The sheriff, however, made deeds of sale to the respective purchasers.

Following the sale, Mrs. Elizabeth Mackin, for herself and as tutrix of the minor, William Mackin, and joined by Katie Mackin and John Mackin, filed a petition setting forth among other things that the judgment rendered in the partition suit was a consent decree, and that inasmuch as the minor, William Mackin, was one of the co-owners of the property thus sought to be partitioned, it was not competent for the court to enter up a consent decree ordering the partition of the property by licitation, but that it should first have been formally adjudged by the court, upon evidence adduced, that a partition of the property in kind could not be made.

The prayer of this petition was that the suit which it initiated be cumulated with the suit for partition and that it stand as an opposition to the homologation of the proceedings of the latter suit, and for judgment avoiding the decree rendered in the first suit ordering the partition of the property by licitation.

O. N. Wilds was made party' defendant, as were R. S. Wilds and J. S. Adams, who had purchased at the partition sale.

A new number was given to the action attacking the partition sale and it stands on the docket as a separate suit.

A unique feature appearing is that whereas it is asked that the later suit be allowed to stand as an opposition to the homologation of the partition proceedings, no application to homologate was then or ha3 since been filed.

The result of the trial of the second suit was a judgment adverse to plaintiffs.

Whereupon they presented a petition for appeal wherein it is recited that:—

“They have been aggrieved by the judgment of this court, rendered in the above entitled suit, ordering a partition of the property by licitation, and have been further aggrieved by the judgment rejecting their demand to have the proceedings set aside and a new partition made according to law, and desire to appeal from said judgments.”

The prayer was for a devolutive appeal from both judgments.

The order which followed was to the effect that “a devolutive appeal be allowed as prayed for * * * upon the petitioners executing bond with surety in the sum of one hundred dollars.”

A bond — one bond — of appeal was given, conditioned that the appellants should prosecute their devolutive appeal from the judgment ordering the partition of the property by licitation and from the further judgment rejecting their demand to have the partition judgment and proceedings annulled.

These appeals have been brought up in one transcript — the record of each case appearing therein.

They are met here by a motion to dismiss on the ground that there are two separate and distinct judgments, and only one motion and order of appeal and one bond; that appellants should have taken separate appeals and executed separate bonds, one in each case.

Ruling — There had been no order consolidating the suit for partition with the suit to annul the judgment ordering the partition. They were separate, distinct, independent suits and bore different numbers on the docket of the trial court.

It was, therefore, error to apply in one motion for appeals from both judgments, and error to include the granting of the two appeals in one order, if such were the case, and error to try to make one bond suffice for both appeals. There should have been a separate motion, order and bond in each case.

But because there was error in the way these appeals have been attempted to be brought up it does not follow that both should be dismissed. The motion, order and bond suffice, surely, to maintain one of the appeals.

An inspection of the petition for appeal shows it was really prepared for and had application primarily to the partition suit. The fact that the clerk copied this petition and order of appeal in the transcript of the second case and did not copy it in the transcript of the first case, cannot affect the rights of appellants. This act of the clerk does not have the effect of imputing the petition and order to the second suit.

The petition recites, as already shown, that the appellants “have been aggrieved by the judgment of this court rendered in the above entitled suit ordering a partition of the property by licitation.”

Row, while, in point of fact, the pleader had neglected to give the title and number of the suit at the head of his petition, and while its identification in this way fails, it (the identity) is established by the words: — “ordering the partition of the property by licitation.” Thus, “they (appellants) have been aggrieved by the judgment of this court in the above entitled suit ordering a partition of the property by licitation.”

Then follows the phrase, “and have been further aggrieved by the judgment rejecting their demand to have the proceedings set aside,” etc. But there is nothing here to indicate otherwise than that this was an attempt to include in a petition for appeal prepared for the first suit an application for an appeal also from the judgment rendered in the second suit. As such it is treated as mere surplusage.

This view is strengthened by the judge’s order of appeal, which was that “a devolutive appeal (not appeals) be allowed as prayed for,” etc.

It is true, in the appeal bond it is recited that appellants have taken a devolutive appeal from both judgments, making mention, first, however, of the judgment ordering the partition by licitation. But the condition of the bond is that appellants “shall prosecute their said appeal,” etc. — not “appeals.”

We conclude, therefore, that only one" appeal has really been taken, and that was from the judgment ordering the partition — the judgment in the first suit filed, the one numbered 2051 on the docket of the trial court. And that no appeal has yet been prosecuted from the judgment rendered in the second suit, to-wit :-^the one numbered 2073 of the docket of the court a qua.

The motion, order and bond of appeal found in the transcript suffice for the appeal taken and the motion to dismiss is denied.

On the Merits.

One of the parties litigant in the suit for partition was a minor. As to him there could be no consent decree ordering the partition of the property by licitation — certainly so in the absence of the advice of a family meeting, duly homologated, recommending this course.

The property in question was not indivisible by its nature. The law, where minors are concerned, favors the partition of property in kind, and O. C. 1339 expressly lays it down that there must be proof before the judge that it is indivisible by its nature, or else that it cannot be conveniently divided in kind, before he is authorized to order its sale at auction to effect partition.

The rule was thus succinctly stated in Succession of Dumestre, 40 La. Ann. 575:—

“Before ordering a sale of property held in common by minors with majors, the court must be satisfied, either by the report of experts, or by satisfactory evidence, that the property cannot be divided in kind, for it is the policy of the law, in its jealousy for the protection of minors, that they should rather own real estate than that they should have money or securities, which would be by their nature more imperilled than if invested in such property.”

In the instant case, there was no proof, no evidence of any kind administered. The dec~ce rendered was predicated merely upon the averments of plaintiffs" petition and the admissions of defendant’s answer. These were not binding on the minor. As to him it was a consent decree.

Because the judgment begins with the usual formula, to-wit: — “the law and the evidence being in, favor of the plaintiff and against the defendant,” etc., the latter’s counsel argues that a presumption attaches the judgment was rendered on sufficient evidence adduced, and such, undoubtedly, would be the case were the clerk’s certificate appended to the record silent on the subject of evidence adduced. But where, as in this case, it recites that the transcript contains “all the evidence adduced,” and none whatever appears, no such presumption attaches.

This question was exhaustively considered, on full examination of all the authorities, in Harrison vs. Soulabere, 52 La. Ann. 707, and it was there held that where the clerk certifies to a transcript as containing all the evidence adduced upon the trial and yet no testimony or evidence of any kind is found in the record to support the judgment rendered, the same must be avoided and one of non-suit entered, or else the cause be remanded.

This judgment of partition is on the face of the record unwarranted by law, and there has been no valid sale of property thereunder.

Even purchasers of property must look not only to the jurisdiction of the court which ordered its sale, but also into the power of the court to render the order of sale.

Succession of Dumestre, 40 La. Ann. 574.

Succession of Palfrey, 9 La. Ann. 560.

Eor the reasons assigned it is ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed and that the case be remanded to the court a qua to be proceeded with according to law — costs of appeal to be borne by defendant and appellee.

Provosty, J., dissents and reserves the right to file his reasons therefor.

Mr. Justice Breaux:

I thirds the appeal should be dismissed, the order of appeal dual in form and the bond given for two appeals cannot be considered as a sufficient bond in one appeal.

On Application for a Rehearing.

Nicholls, O. J.

We adhere to our refusal to dismiss the appeal. The minor being plaintiff in a partition suit, it was a condition precedent to its institution by the tutor that she should have been authorized to that effect by a family meeting. Evidence of that fact was necessary in the trial court before a judgment could be rendered. Being documentary evidence, it would, had' it been offered, have been, necessarily, filed, and appeared in the record. Not so appearing, and no application for a certiorari' having been made to produce it, it must be held that the suit was instituted without the advice of a family meeting. After the decision in this case was handed down, the clerk of the District Court forwarded to us a certificate to the effect that he “did not remember” whether any testimony was taken on the trial of the cause, and that the certificate as made was under the direction of the plaintiffs’ attorney. This certificate is inadmissible. If the original certificate was erroneous, it could not be altered in this ea; parie manner. We take occasion to say that it is the duty of clerks of the District Court, in all cases, whether the testimony itself be taken down in writing, or not, to make upon their minutes a note of the fact of the swearing of witnesses (and giving their names) to the end of perpetuating the evidence of that fact, and not leaving it to rest upon memory.

The rehearing is refused.


source: Caselaw Access Project

author: Monroe, J.

license: Public Domain

text:
    No. 13,947.
    State of Louisiana vs. Zenon Guy et als.
    Syllabus.
    1. The general character for veracity of a defendant in a criminal prosecution, who becomes a witness in his own behalf, may be impeached in the same manner as that of any other witness.
    2. And for that purpose, the inquiry may extend beyond the mere' question of his general reputation for truth and veracity and be prosecuted as to his general character.
    3. But proof as to particular vices, immoralities or courses of conduct ought not to be admitted.
    4. So, where a defendant, tried for larceny, becomes a witness on his own behalf, evidence as to his character for truth and veracity is competent, but evidence as to his character “for truth, veracity, ani honesty" should be excluded.
    APPEAL from the Sixteenth Judicial District, Parish -of St. Landry — Lewis, J.

      Walter Guión, Attorney General, and B. Lee Garland, District-Attorney, (Lewis Guión, of Counsel), for Plaintiff, Appellee.

      B. H. Pavy, for Defendant, Appellant.
   The opinion of the court was delivered by

Monroe, J.

Zenon Guy and several others were convicted of larceny and Guy has appealed from a sentence of imprisonment at hard labor. ITis case is presented to this court upon a single bill of exceptions, from which it appears that he took the stand as a witness in his own behalf and that the State thereafter called witnesses for the purpose of proving that his character “for truth and veracity and honesty” was bad; that thereupon his counsel stated that he had no objection to the administration of proof as to the character of the accused for truth and veracity, but that he did object to the admission of evidence tending to affect his general character for honesty, upon the ground, substantially that, considered as a witness, his credibility, alone, was at stake, his general character for honesty not having been put at issue by any evidence' offered by him to establish it; that “the charge against him was one involving honesty, and the State (on the issue of credibility) could, on no pretext, go into general evidence to prove defendant’s dishonesty before the defendant had made that quality a well defined issue,” and that he was unprepared to meet such evidence with counter proof because not advised that it would be necessary; and to ad adverse ruling upon this objection, the bill was reserved.

It may be regarded as settled that when a defendant in a criminal prosecution becomes a witness in his own behalf he also becomes liable to be impeached and discredited in the same manner as any other witness, and that the inquiry having that object in view is not limited to his general reputation for veracity, but involves his entire moral character. State vs. Parker, 7 Ann. 83; State vs. Jackson, 44 Ann. 160; State vs. Walsh, Ib. 1122; State vs. Favre, 51 Ann. 639.

In some jurisdictions an inquiry has been permitted touching upon particular lines of misconduct, and in State vs. Parker (supra), it was held by Mr. Justice Preston that the defendant should have been permitted to prove that the principal witness for the prosecution was a man of infamous character, notoriously guilty of acting falsely and fraudulently, of extorting montey by force and cheating from the unwary and feeble, and of living among low and abandoned women; that he was idle, dissolute ánd profligate, had no means of support, and no means of obtaining money other than those just set forth; that, although witnesses could not say that he had formed any character as to lack of truth, and was false in oaths and words, yet, from his vices and general bad character, they would swear that he was unworthy of credit; and they could not believe him on oath.

There was a concurring opinion in the ease, however, handed down by Mr. Justice Slidell, and approved by the other members of the court (Chief Justice. Eustis, and Mr. Justice Rost) which, we think, correctly states the rule upon the question at issue, to-wit:

“Slidell, J., 1st. Upon the first bill of exceptions, I think the ruling of the district judge was too narrow. He confined the party impeaching the witness, who had testified against him, to proof as to Ihc general reputation of the witness as to truth and veracity. In my opinion the prisoner should have been allowed to offer general evidence, as to the general character of the witness impeached. The State would then be allowed to inquire into the means of knowledge of the witness so testifying. I think it proper, however, to add, in my opinion, the district judge was right in excluding inquiry, on the part of the prisoner, as to any particular immoral conduct on the part of the impeached witness.”

In State vs. Hobgood, 46 Ann. 855, the question was presented, whether it was competent, for the purposes of an inquiry as to the veracity of a female witness, to offer evidence as to her general reputation for chasity, in the community in which she lived, and it was held that it was not competent. This court said: the inquiry must be into the general character of the witness and “not to any particular act, or any particular line of conduct.”

And so, in State vs. Jackson, 44 Ann. 160, it was held to be incompetent to prove that a witness was a man who lived and associated with criminal people. Our conclusion, therefore, is, that, for the purpose of impeaching the general character of a witness for veracity, direct questions upon that subject, and, under certain conditions, as to whether the testifying witness would believe the other under oath, being always admissible, the inquiry, beyond that, ought to be confined to the whole, or general, moral character of the witness sought to be impeached, and ought not to be prosecuted concerning particular vices .or courses of conduct, such as dishonesty, lewdness, insobriety, evil association, and the like.

For these reasons, it is ordered, adjudged, and decreed that the verdict and judgment appealed from be, and the same are hereby, annulled, avoided, and reversed, and it is further ordered and decreed that this case be remanded to be proceeded with according to law. «

Breaux, J., dissenting, handed down a separate opinion in this case.


author: Breaux, J.

text:
    No. 13,593.
    Smith Bros. & Company, Limited, vs. New Orleans and Northeastern Railroad Company, et als.
    Syllabus.
    This is an action for damages for the breach of an obligation of the carriers to carry goods in bond. Plaintiff's instructions were not misleading, but in all respects were clear enough. The reasons of plaintiff for desiring the goods to come from Charleston in bond were evident enough to warn defendants not to take them out of bond. Proper papers were delivered by plaintiff for obtaining the goods to be carried m bond.

    The goods were taken out of bond without authority and were, in consequence, of less value at the point of destination than they would have had, had they been brought there in bond as intended by plaintiff.
    The "defendants are liable for damages, which might have been foreseen. They knew that plaintiff is a merchant, who would seek to sell his goods in the most favorable market. It was not proper for them to assume (although they were in good faith) that it was as well to pay the duties in Charleston and there take the goods out of bond, thereby rendering it no longer possible to export them from New Orleans. Taking the goods out of bond was an act of interference with plaintiff’s right, rendering the defendants responsible for actual damages.
    Between the two defendants, the one the initial line and the other the continuing line to the point of destination, the responsibility is solidary, both having taken part in the taking of the goods out of bond and the carrying of them to the point of destination.
    APPEAL from the Civil District Court, Parish of Orleans — King, J.

      Denegre, Blair & Denegre, for Plaintiff, Appellee.

      Harry H. Hall, for N. O. & N. E. E. E. Co., Defendant, Appellee.

      Henry J. Leovy and Bice & Montgomery, for the Charleston and Savannah Eailway Company, the Savannáh, Florida and Western Bail-way Company, and the Alabama Midland Bailroad Company, known as the Plant System, Defendants, Appellants.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff claims damages in the sum of two thousand one hundred and eighty-two 66-100 dollars, growing out of defendants’ failure to carry a consignment of rice in bond. Plaintiff avers, substantially, that 218,260 pounds of rice were shipped to it from Hamburg on tbe steamship Dalmetia, due to arrive in Charleston, South Carolina, in May, 1898; that through their agents, the defendant railroads applied to plaintiff for the transportation of the consignment over their line of railroads from the port above named to New Orleans; that plaindff made known to these agents that it wanted the rice carried in bond, as sanctioned by a statute of the United States (without custom duty), and that for that reason they were not willing to pay the custom duty of two per cent, per pound at the port of Charleston; that after having been informed of plaintiff’s desire, the defendants’ agents advised it of their willingness and ability to transport this rice on the conditions before stated; that on receiving this information, plaintiff delivered its bill of lading to the agents of the Northeastern Railroad Company, who promised to make all needful arrangements with the steamship before named and with the customhouse authorities at Charleston and with other connecting railroads for the transportation of the rice through to New Orleans in bond, without payment of custom duties; that the said railroad company bound itself to deliver this rice in bond to plaintiff in New Orleans for twenty-five cents per hundred pounds for all charges.

The invoice, dated May 10th, 1898, issued in Hamburg for the 1000 bags of rice in question which, in due time, was placed in the hands of the “Plant Railroad system,” after the arrival of the steamship Dalmetia at Charleston, among other statements, contained the following, “to be shipped per Str. Dalmetia to Charleston in bond for New Orleans.” On May 25th, the agent here wrote to the representative of the “Elaiit System,” inclosing the invoice to which we have just referred. The letter contained the following, among other statements: “As I understand it, the Plant System is a bonded line, and there will be no difficulty in handling the business to New Orleans. All customhouse duties to be paid here by Smith Bros. & Co., Limited.”

A member of the plaintiff firm testified that when he delivered the bill of lading to the agent in New Orleans, in the presence of the agent of the “Plant System” who was here at that time, he stated to them that it was necessary for the rice to come in bond. lie also stated as a witness that he declined to turn over his rice to a rival system of rnilrcads to be hauled for the same rate, as he was led to believe dial the “Plant System” was a bonded road.

As relates to the “Plant System/’ its eo-defendant, the New Orleans and Northeastern Railroad Company, charges that the former agent of the “Plant System” falsely represented that their system was a bonded line and also represented that they could bring the rice from Charleston to New Orleans without the payment of duty and that they paid the duty, although well aware that they ought not to have paid it. This defendant avers that the judgment of the lower court released the New Orleans and Northeastern Railroad Company from all liability and held its co-defendant, the “Plant’System,” for the damages, because it had not committed the breach of contract of which plaintiff complained; that it was pretended by the officers of the “Plant System” that their officials had been misled by a letter of instructions sent by the agent of the New Orleans and Northeastern Railroad Company, a position not sustained in the District Court;,that the officers of the “Plant System” always understood that the rice in question was to be shipped in bond; that they were informed by the customs officials in Charleston that their line was not a bonded road and, instead of notifying plaintiff, they purposely withheld the information until June 2nd, and after they paid the duties, and that this was done only in order to cover the freight upon the haul.

It appears that about June the rice arrived in New Orleans, but not in bond, in violation of the agreement to which we have just referred. The New Orleans and Northeastern Railroad Company refused to deliver the rice to plaintiff without payment to it of the custom charges, amounting to four thousand three hundred and sixty1two 12-100 dollars, and the freight charges of twenty-five cents per hundred pounds. To prevent loss and to avoid a forced sale, plaintiff paid these amounts under protest and reserved all of his rights to sue for and recover the amount thus paid to this railroad.

Plaintiff in its petition sets out at some length the loss it incurred in consequence of defendants’ disregard and violation of the agreement as stated, growing out of the fact, it avers in substance, that the rice could have been more profitably handled and sold here in bond than with the custom duties paid, for the reason that if it had been in bond it could have been exported to foreign markets or it could have been sold to the United States government, which, at the time, was buying large quantities of such food for its armies, and further that plaintiff could not profitably handle so large a quantity of rice not in bond, owing to the limited sales of rice in the local market at the time; plaintiff charges that all these facts were well known to the defendants when they promised to transport the rice in bond.

Plaintiff avers that it had to sell this rice in the local market for less than it cost, and that if the defendant had complied with their contract as a common carrier, instead of losing, it would have made a profit. It claimed from the defendants m solido the amount of loss it alleges it has sustained and the profits it would have made. The final balance of the exhibit annexed to the petition reads: “Actual loss per pound, $.0156.”

The defendants filed separate answers. The New Orleans and Northeastern Railroad Company admits that a consignment of rice was made to the plaintiff as alleged, and especially avers that it was agreed by its agent with the agent of the “Plant System” that the rice was to come from Charleston to New Orleans over the “Plant System” and this defendant’s road in bond, and that it was understood that the customs duty of two cents per pound should not be paid in the port of Charleston.

This defendant avers that it was in no wise responsible for the failure of the “Plant System” of railroads to carry out the instructions received or to fulfill the undertaking it had assumed, and that if any payment of the duty in question made by the “Plant System” has violated any contract with plaintiff, this defendant is not responsible for its violation.

The other defendant, the “Plant System,” alleges, in- substance, in its answer, that if any damage has been suffered, plaintiff alone was at fault in communicating its instructions and purposes to the agent of the New Orleans and Northeastern Railroad Company, or in the misleading instructions given to the representative of the “Plant System” by the agent of the New Orleans and Northeastern Railroad Company.

The judgment of the District Court is in favor of plaintiff and against the defendant, the “Plant System,” for the sum of two thousand one hundred and eighty-two dollars and sixty-six cents, with legal interest from June 22nd, 1898, and sustains the writ of attachment sued out by plaintiff. As relates to the New Orleans and Northeastern Railroad Company, the District Court rejected the demand of plaintiff.

There is no question but that the plaintiff desired to have the rice carried from Charleston to New Orleans in bond and that ample notice of plaintiff’s wish in this respect was given to the agent of the New Orleans and Northeastern Railroad Company in New Orleans. We think that it is equally as evident that the “Plant System” was aware o£ the instructions given by plaintiff for hauling the rice in bond. While it is true the testimony is conflicting, one of the members of the plaintiff firm who testified and the agent of the New Orleans and Northeastern Eailroad Company agree in the statement that such was the instructions received and afterwards communicated to the officials of the “Plant System.” The agent of the “Plant System” admitted, as a witness, that his understanding and that of the agent of the New Orleans and Northeastern Eailroad Company was that the “Plant System” was a bonded line, but this was error, as the “Plant System” was not a bonded line for south-bound freight from Charleston.

We will not dwell upon this particular issue at any length. Before passing to the consideration or another ground of the decision, we will state, without the least hesitation, with reference to one of the defendants, the “Plant System,” that it must be held to have been fully informed of plaintiff’s intention regarding this consignment.

Indeed both the defendants knew that the goods were to come to New Orleans in bond. But, while virtually conceding this, the defendants urged that they did not know and that plaintiff did not make the least attempt to inform them of the fact that it, plaintiff, wished to sell the goods to the United States government or to ship them, duty unpaid, to another country. This defense is particularly urged by the “Plant System.” The contention on its part is that the New Orleans and Northeastern Railroad Company did not specifically explain to or instruct its co-defendant (the “Plant System”) as to the intention of plaintiff regarding the sale to the United States or a reshipment of the goods, as just stated, and that it, the “Plant System,” had the right to infer that the only possible damage that plaintiff could suffer would arise from the payment at Charleston instead of at New Orleans, and that as no damage could have arisen in that case, none was due. This is the important question involved.

The proof is that the grade of rice in question could not "compete in New Orleans with the domestic rice, and that it was quite evident that the rice was only suitable for exportation from the port of thi3 city.. In answer to the proposition that the low quality or grade of the rice was warning enough not to take it out of bond; that it must have been evident from that fact that it was intended for exportation, defendants deny that this was a warning or notice at all. We can only say, in deciding the question, that whether that fact was in itself a warning or not, defendants should not have taken the goods out of bond.

Viewed in the most favorable light, defendants’ action was hasty and ill-advised. They must or should have known that the owner had an object in importing this rice in bond. A member of the plaintiff firm testified positively that one of the agents of the “Plant System'’ had been informed of the object. There are circumstances sustaining the correctness of that statement.

The right to ship in bond was absolute and defendants should have been extremely slow in interfering with the right without special instructions.

In the presence of the testimony and in view of the surrounding facts and the rights of the parties, we do not think it possible, in justice and reason, to arrive at the conclusion that defendants were justified. The rice was intended by the owner for exportation or for sale to the United States and it was not for defendants to assume that it was intended to be sold in New Orleans.

It is evident that on receipt of the rice in bond, the plaintiff would have exported it if it had been to its advantage. It appearing that it would have been profitable at the time to export this rice, it is not for defendants to set up the defense that if it had been sold to the United States government, the receipt in bond would not have been of any benefit. The test, as relates to the measure of damages, is the disposition which plaintiff might have made of it by exportation, if exportation was to its benefit.

On this point the defendants insist, substantially, that no consequence which is not the necessary and ordinary result of a breach of the obligation can be supposed to have been contemplated unless full information be imparted to the party sought' to be held liable at the time of entering into the engagement; in other words, that the “special circumstances” rendering it important to plaintiff that the goods should arrive in New Orleans in bond were not communicated to the defendants who, therefore, cannot be held to have contemplated or to have foreseen the damages which might result from the duties being paid in Charleston, citing Articles 1934-1943 of the Civil Code and a number of decisions.

True, in this case, the defendants were not guilty of fraud or bad faith and, in consequence, the question falls, in some degree within the meaning of the articles just cited. But we are inclined to the opinion that these articles are not as restricted in their scope as defendants would have us take them. The words of one of the articles are, “ such damages as were foreseen or might have been foreseen.” We think that the special condition attached to enable one to recover damages was directly brought home to defendants by the recital contained in the invoice in their possession. The damages resulting from the breach might have been foreseen. The loss in the value of the goods was a direct consequence of the breach of the obligation. Besides information had been imparted to at least one of the defendants, if not both, ample enough to warn either or both not to pay the duty. This, as we think, brings the case within the rule furnished by the cases cited by the defendants, the leading case being Hadley vs. Baxendale, 9 Excli. 314. The decisions rendered under the common apd civil law systems, in our opinion, do not hold that one is not responsible unless every damage possible is brought home to him in express terms at the time the obligation was assumed. It is true that the loss is limited to the thing which was the object of the obligation.

Pothier (Dupin’s Edition, Vol. 1) illustrates the principle thus: Let us suppose that I have sold a thing having a well known value in the market and which I bind myself to deliver within a certain time and that I failed to comply with my obligation. If in that time the article had increased in value and it could no longer be purchased at the same price, the increase in price which the buyer from me is obliged to pay is a damage which I owe, because it is damage suffered propter rem ipsarn non habitant,, which is in touch with the thing which is the object of the contract and which I might have foreseen. This authority then gives examples of damages which could not have been foreseen. The latter do not cover defendants’ case. Pothier’s view has the support of the civil law authorities.

To conclude upon this subject, the carrier who takes goods of a merchant out of bond, without instructions, and despite the circumstances indicating that they had a value in bond, is not in the situation of one who could not have foreseen the possibility of accruing damages.

The responsibility of the defendants between themselves gives rise to the next question. The New Orleans and Northeastern Railroad Company insists that the breach of the obligation was committed by the “Plant System” and the “Plant System,” on the other hand, contend that they only carried out instructions communicated by the agent of the first named road. A letter was introduced in evidence, written by the agent of the New Orleans and Northeastern Railroad Company, instructing the “Plant System” to pay the customs duties. This was understood, the “Plant System” contend, as including all customs duties paid. There were two or more different statements in this letter, one leading to the inference that it was the carrier’s wish (that is, the New Orleans and Northeastern Railroad Company) that the duties be paid in Charleston and the other, that, in compliance with its desire, they inust not be paid. There was direct contradiction in the letter. The writer’s testimony was admitted to explain the meaning of the letter. To this explanation, counsel for the “Plant System” objected and reserved a bill of exceptions to its admissibility. Eor the reasons just stated, the letter was confusing and ambiguous. The explanation was properly heard. This witness said that by the words in the letter, “If any customs duties accrued at Charleston, please have same paid and billed against the shipment,” he meant if any charges accrued while the shipment was in bond, same were to be paid and billed against the shipment. The other testimony of this witness in this connection does not relieve his company (the New Orleans and Northeastern Railroad) from all responsibility. It remains that these defendant companies acted together. One was the continuing line of the other in carrying this freight. They both obligated themselves as carriers and each, we think, took a part in securing this freight and to that end in taking it out of bond. The information gained by one of the officials at one end of the line was communicated to the other at the other end.. The errors of each in the iterest of both and with the sanction of both do not present issues enabling us to conclude that the damages were all due by one of these railroads. ' '

As relates to the amount, we do not think that the testimony would justify us in reducing it lower than found due by the judgment of the District Court;

Eor these reasons, the judgment of the District Court is avoided, annulled, and reversed, and it is now ordered, adjudged, and decreed that there be a judgment in favor of plaintiff against defendants in solido for the sum of twenty-one hundred and eighty-two dollars and sixty-six cents, with interest at five per cent, from June'22nd, 1898, until paid. It is -further ordered that the writ of attachment herein issued be maintained with plaintiff’s lien and privilege on the property attached.

Costs of appeal are to be taxed to defendants and appellants.

Monroe, I., concurs in the decree.

Rehearing refused.


author: Nicholls, C. J. Blanci-iard, J.

text:
    No. 13,723.
    Charles S. Elms vs. Wright-Blodgett Company, Limited, et al.
    Syllabus.
    1. A suit brought by a defendant in injunction after dissolution of the injunction by the District Court and the delays for- a suspensive appeal have expired, to recover damages on the bond for wrongful injunction, should not be dismissed on an exception of prematurity, because the year for a devolu tive appeal had not yet expired, defendant filing the exception not having appealed from the judgment dissolving the injunction. This judgment may not be technically res judicata, but it can be legally used as the basis for a suit for damages subject to such rights as may arise from a reversal of 1he judgment on a devolutive appeal. The utmost right defendant would have would be to have judgment in the case delayed.
    2. Where a person alleging that another who made a sale to him of real estate illegally refused to execute .a deed of sale, institutes a- suit in which he claims ownership of the property and prays that defendant be ordered to execute a deed of sale and he incidentally causes an injunction to issue enjoining defendant from disposing of the property, he cannot, when the injunction has been dissolved as not having been justified by the facts, shelter himself from damages for a wrongful injunction, on the ground that his action, claiming the property, would, under Article 2453 of the Civil Code, have had the same effect as an injunction.
    3. Defendant in injunction, suing upon the injunction bond for damages for wrongful injunction, can only recover damages resulting from the injunction ; he cannot, in such a suit, recover for remote conjectural profits, of which he claims to have been deprived, the collateral and consequential results of the injunction.
    4. Whether defendant in an injunction suit in which the injunction has been dissolved should recover from the plaintiff in injunction in an action on the bond his attorney’s fees as damages, and, if so, how much, is to be determined by the facts of each special cause and not decided by any inflexible rule.
    APPEAL from the Fifteenth Judicial District, Parish of Calcasieu —Miller, J.

      Paul A. Sompayrac, for Plaintiff, Appellant.

      Pujo & Moss, for Defendants, Appellees.
   The opinion of the court -was delivered by

Nicholls, C. J.

On application for rehearing by

Blanchard, J.

Statement op the Case.

Nicholls, C. J. The plaintiff asks judgment against the defendant company, and William J. Martin, in sólido, for the sum of twenty-five hundred dollars, and against the defendants separately for the further sum of six thousaind seven hundred dollars, with interest. His demand is based upon allegations that on the 23rd of December, 1899, the defendant company, acting through Michael Kelly, its representative and corpartner, wrongfully, maliciously and libelously, had issued from the District Court for Calcasieu, a writ of injunction, enjoining and commanding petitioner not to proceed further to sell certain lands described, situated in the parishes of Calcasieu, Vernon and Bapides, of the full value of thirteen thousand dollars; thal; said company, as principal, and W. J. Martin, as surety, executed on that day an injunction bond, binding themselves firmly unto Charles S. Elms, in the full sum of two thousand and five hundred dollars; that said writ was wrongfully, maliciously and libelously sued out by defendant company, and for the purpose of injuring petitioner in his business and reputation; also to suppress competition they met with from him in the purchase of real estate. That said company, limited, well knew when they issued said injunction that petitioner was a young man engaged in the purchase and sale of real estate, and they desired and. did suppress said competition by the issuance of said injunction.

That at the time said injunction was issued, petitioner had sold the lands described to J. P. Underwood of Chicago, Hlinois, for $4.00 per acre, less 3% brokerage, and that the acreage of same was approximately 3280; that petitioner was simply carrying out his contract with said Underwood, all of which was well known to Wright-Blodgett Company, Limited, when they had said wrongful and malicious injunction issued.

That defendant company well knew that plaintiff had not sold said lands to them and all their claims and pretensions to the contrary were made to mask their greed and malice; that the said libelous injunction was dissolved by judgment of the court, on February 14th, 1900, and the same also rejected the demands of defendant company, limited, in loto; that the business of petitioner was damaged and arrested, his capital placed out of current business and he deprived of opportunities to purchase and sell real estate at a profit by said injunction; that while the capital of Elms was tied up by the said writ the defendant company took advantage of him by purchasing certain lands upon which he had options, and of which options he could not avail himself, owing to his capital being tied up, as aforesaid; that the damage to his business and loss of profits caused by said wrongful, malicious and libelous writ of injunction aggregates the full sum of three thousand dollars; that it was necessary for him (Elms) to employ an attorney to defend and dissolve said writ of injunction, and the fees paid and due said attorney is the sum of one thousand dollars.

That his business reputation had been damaged by said injunction to the extent of three thousand dollars; that he was forced to make expenditures in defending said injunction aggregating the sum of two hundred dollars; that said company should be made to pay Elms the full sum of two thousand dollars for exemplary and punitory damages for having issued, without probable cause, said wrongful, malicious and libelous writ of injunction.

The defendant company filed an exception of want of citation, and under reservation of same, excepted that plaintiff’s demand was premature, vague and indefinite.

Defendant company, under reservation of its exceptions, answered. After pleading the general issue, it admitted that it had filed the suit complained of; that it had signed the injunction bond therein; that upon trial thereof its demands were rejected and the injunction had been dissolved, but it specially denied that said suit was instituted and prosecuted for any other purpose than to have the agreement therein declared upon between Elms and itself recognized, enforced, and made executory by proper decree; that said suit had for its basis a legal agreement, and plaintiff therein had probable cause for its institution; that plaintiff was not entitled to recover any damage against it, by reason of the institution of said suit, not even the attorney’s fees, for the reason that said injunction was tried with the merits and all the services rendered by the attorney in said case were in defense of the main suit, for which judgment could not be recovered in the present proceeding, and for the further reason that the dissolution of the injunc-' tion did not have any effect whatever upon the right of plaintiff to sell or dispose of the property described in said suit, as the mere filing of said suit, claiming the title to be vested in plaintiff in said suit, operated in law an injunction; that all of the items claimed by plaintiff a« damages were fictitious.

It specially denied that it then, or at any time previous, entertained any malice against petitioner, or that the suit complained of was instituted with malice, or with any desire to injure his business in any way, and it averred that petitioner had long since sold the land which was the basis of the original controversy.

W. J. Martin adopted the answer of his co-defendant.

The District Oourt rendered judgment in favor of the plaintiff against defendants in solido for the sum of six hundred dollars for damages caused him by the issuing of the injunction complained of. with legal interest from date.

Plaintiff appealed.

Defendant answered the appeal. It alleged error in the judgment; prayed that it be entirely reversed, but if affirmed at all, the amount be reduced to fifty dollars.

Opinion.

This case is a sequence of that of Wright, Blodgett & Co., Limited, vs. Charles S. Elms, decided this day. The plaintiff herein sues the plaintiff in the former case and the surety upon the injunction bond, which he furnished in that case, for damages alleged to have resulted from the injunction. Defendants excepted to the suit on the ground of prematurity, alleging that the judgment of the District Oourt dissolving their inunction had not yet bejen settled finally by a decision of the Supreme Oourt, it being an appealable case. This judgment was rendered on the 14th day of February, 1900.

Defendants took a devolutive appeal from the same on the 19th day of December, 1900, and the judgment was affirmed this day by the Supreme Court. In support of the position taken by them, they refer the court to 2nd Greenleaf on Evidence, Sec. 452; Blass vs. Gregory & Wilson, 15 Ann. 421; Murphy vs. Redler, 16 Ann. 13; Lawler vs. Levy, 33 Ann. 220; and Wentz vs. Bernhard, 37 Ann. 636 et seq. They deny the applicability of Lemennier vs. McClearly, 41 Ann. 411, cited by plaintiffs to the facts of the present case, and call attention by reference to McClearly vs. Lemennier, 40 Ann. 253, that the judgment of the District Oourt dissolving the injunction had been affirmed by the Supreme Oourt before Lemennier instituted his action.

Referring to the Wentz case, defendants, in their brief, say:

“Justice Manning, on application for a rehearing, found that the arrest, which had been set aside by a judgment of the District Oourt, had been appealed to the Circuit Oourt, and the judgment affirmed. The exception of prematurity was, therefore, overruled, and the case considered on the merits, but the court will observe that the finality of the judgment was the sole reason given for an examination into the merits.”

The cases in 15th, 16th and 33rd Annuals were all cases of damages for “malicious arrest or prosecution.” In the first two of these cases (Blass vs. Gregory & Wilson, and Murphy vs. Redler), the Supreme Court simply declared that to sustain an action for a malicious prosecution, plaintiff must show that the prosecution was at an end. No question was before it as to what the situation would have been had the prosecution been terminated by judgment in the lower court, but that the action for damages had been instituted before the period for an appeal had expired. In the Lawler case, the suit was dismissed upon a question of pleading under an exception of “no cause of action.” The plaintiff had failed to aver the termination of the malicious prosecution. So far as the pleadings went, the prosecution, alleged to have been malicious, might still be pending and under investigation by the District Court. In Wentz vs. Bernhard, 37 Ann. 636, which was a suit for damages for false arrest and imprisonment, the defendants excepted that plaintiff’s petition contained no averment that the suit in which the writ of arrest issued had been finally determined. The exception was referred to the merits and disposed of with the judgment on the merits.

The Supreme Court, in deciding the ease on appeal from the judgment, stated that it might, perhaps, be considered as one on the merits, but that it would treat it as one sustaining the exceptions•, and the judgment rendered by the lower court against the plaintiff was affirmed from'that standpoint. In the original opinion the court was under the impression that the original prosecution was still pending in the court in which it originated, for it so declares, adding, “that when decided it might be taken on appeal for review, and it might well be that the appellate court might reverse the decree discharging the defendant from arrest, and the action was, therefore, premature. On application for rehearing the court was advised that, although the main action for debt against the plaintiff in the suit for damages was still pending, the suit, so far as his arrest was concerned, was terminated when the suit for damages was instituted, as the judgment of the District Court, setting aside the arrest, had been appealed to the Court of Appeals and been affirmed, and the issues on that branch of the case had become final. It therefore declared that the suit for damages was not premature.

The court’s first decision was based upon the fact supposed by it to exist that the original suit for arrest had not yet been disposed of at all by the court in which it was instituted. The remark of the Chief Justice as to what that court might decide when it should render a judgment, and the possibility of that judgment being ultimately reversed on appeal to the Supreme Court, against the plaintiff in the damage suit, is not entitled to the weight which counsel attribute to it. In the case before us it is not only shown that, prior to the institution of the present suit, the District Court had rendered a judgment in the case of Wright, Blodgett & Co., Limited, vs. Charles S. Elms, dissolving their injunction, but that the delays for a suspensive appeal had expired; that when defendants appealed from that judgment it was through a devolutive appeal, and that on this appeal the judgment has been affirmed by the Supreme Court, prior to its rendering judgment upon the demand made by the plaintiff in the present action.

We do not understand that because a judgment may be, from its character, an appealable one, and a right of appeal be open to the party cast for one year, that the judgment is forced to remain without any effect during that whole year. The party cast has it in his power to suspend its effect and to prevent its execution by a suspensive appeal, but he is not authorized to allow the delays granted to him for that purpose to expire' without availing himself of them and by. abstaining for a year from taking a devolutive appeal, successfully urge ihat the judgment pronounced against him could not be made available as the basis of any legal proceedings against him by reason of its not yet being a finality, nor yet fully protected from review by a plea of "res judicata.” The Code expressly provides, notwithstanding the existence of a right of ultimate review through the exercise of the right of a devolutive appeal, that the judgment can and shall receive execution.

If it be true that a man’s entire property can be swept away by execution of judgments, notwithstanding the right of devolutive appeal from the judgments, it can not be pretended that a party holding a judgment against him should be cut off from availing himself of the slow process of obtaining damages against the judgment debtor and making the judgment he had obtained a basis for the claim.

We are of the opinion that, although the judgment may not be technically "res judicata,” it none the less can be introduced in evidence as a judgment, though not as a final judgment, and made the basis of a claim on a judgment for damages, subject to such rights as may arise from the reversal of the same on devolutive appeal. (Succession of Gaines, 45 Ann. 1247.)

It may be that the court might, in view of a right of devolutive appeal still existing, postpone the trial of a case, or postpone rendering a judgment in it, upon a proper showing. (Succession of Troxler, 46 Ann, 738.) But it could scarcely, we think, declare the filing of a suit within the year for appeal, premature action and dismiss it upon that ground.

We do not think the present suit was prematurely brought.

Defendants next urge that the injunction which they caused to be issued can not serve as the basis of a claim for damages, because the same effect which resulted from the taking out of an injunction would have followed from the mere fact of claiming the property as their own. They cite in support of this position Article 2453 of the Civil Code, which declares that “the thing claimed as the property of the claimant can not be alienated pending the action so as to prejudice his right. If judgment be rendered for him, the sale is considered as a sale of another’s property, and does not prevent him from being put in possession by virtue of such judgment.” They contend that “this being the law, in the nature of things it inevitably follows that the issuance of the injunction was mere surplusage and had no other effect than preventing Elms from disposing of the land so as to harass the plaintiff in the event that the contract of sale should be maintained.” They claim that they had the right to institute an ordinary suit for the property fully protected from any claim for damages, and that a person is not bound to repair the damages which he may cause to another by the legitimate exercise of his legal rights. The defendants did not consider themselves protected from a sale of these lands by Elms, through the provisions of Article 2453 of the Code, for had they been of that opinion they would not have taken out the injunction they did. That article is based upon the theory of constructive notice or knowledge having been brought home to parties proposing to deal with the defendant in a petitory action that his title was contested. Whether the provisions of that article, under our present registry 'laws, would extend to a case where the rights claimed by the plaintiff in a petitory action were not based upon rights of his own, evidenced by registry, where registry would be necessary to convey notice to the general public, we need not now discuss. We may assume that if the defendants in this case had, in point of effect, been able to establish, and had, in fact, established,,the existence of a sale between themselves and Elms, and an intention on the part of the latter to dispose of the lands to another, by reason of there being no evidence of record of the existence of snch sale, that Elms could not, and would not, have been entitled to damages, because of the injunction, but if we suppose that the acts of Elms, «upon which defendants based their conclusions, that he had sold them these lands, were not of a character such as to create a contract of sale, and their conclusions on the subject were not well founded (as we have just decided they were not in their injunction suit), then the defendants would, through their injunction, have illegally interfered with Elms’ right of disposing of his own property as he might think proper, and might have very seriously damaged him through this judicial action. It will not do to say that the situation was the same as if judicial interposition had not been invoked and obtained. But for the court’s orders he, and those with whom he would be dealing, would be free to take their own course, subject to such risks as might arise from the actual situation, but with the hand of the law directly laid upon him, Elms was powerless to act, unless he should do so in disregard of judicial orders and subject to punishment. It is easy to see how an injunction could be made to serve as an instrument of coercion and wrong, and the means of inflicting damage upon others. In the case which we have assumed, the acts of the defendants in taking out the injunction would not have been, as they assert, “the legitimate exercise by them of a legal right.” The legal right of the defendants to have caused to be issued in this case the injunction against Elms has passed beyond the point of investigation and enquiry. It is a closed issue.

We are now to consider what are to be the consequences of the wrongful issuing of the injunction. We confine ourselves to the damages which result from the injunction itself. We consider a number of the allegations of plaintiff’s petition to have been simply made in aid of his claim for those damages and not as a basis for claims for other separate and distinct damages on substantive, distinct and separate causes of action. We are of the opinion that plaintiff’s demand for exemplary damages is not well grounded. Though the plaintiffs in the original suit were mistaken in their rights, we think they believed, under legal advice, that they were prosecuting a valid claim in a legal way. Plaintiff’s claim for damages for injury to reputation for the issuing of the injunction, is not sustained. We think he was well thought of before the injunction was issued, and that he continued to be well thought of afterwards. Very few persons were aware of the character of the litigation between these parties. Every law suit gives occasion to more or less gossip or talk, without knowledge of its actual character. The plaintiff can not be held accountable for loose discussions by outside parties in regard to litigation, nor for erroneous deductions therefrom, not warranted by the facts.

The demand made by the defendants for an injunction did not involve an attack upon plaintiff’s honesty or integrity. The parties may well have differed from each other in respect to their own respective rights and obligations, and each been determined to act on the strength of his own views on the subject without the character of either being impugned.

Plaintiff complains specially of a motion for a' continuance filed during the litigation, which was sworn to by Kelly, and .which plaintiff declares was libelous, and attacked his reputation without cause or justification. This application was made after the injunction had been granted, and conceding that the facts therein stated and complained of were unfounded and would give rise legally to a claim for damages, they would have to be sought in a different action from the present. These damages would result, not from the issuing of the injunction itself, but from matters occurring subsequent thereto. The motion for the continuance, it is true, was occasioned by the injunction and the defendants’ answer therein, but these matters arose collaterally. Defendants’ answer in that suit contained some very serious charges against the plaintiff in injunction, and defendant, also, asked damages against them in reconvention for injury to his reputation. He, thereby, to a certain extent, raised an issue upon that subject which plaintiffs were endeavoring to meet. We express no opinion in respect to the defendants’ action in this matter, for we do not think the subject should be brought up and disposed of collaterally in this action for damages upon the bond for an injunction.

The plaintiff claims from the defendants for damages to his business 'resulting from the injunction.' Here again we must confine ourselves to damages resulting directly from the injunction, not those incidentally, remotely, consequentially and collaterally connected with it. The ’plaintiff has, himself, shown that he was very successful in business after the injunction had been granted. How much more successful he might have been had the injunction not been granted we do not know, nor can we say. We do not see in the record any damage resulting to the plaintiff from his temporary inability, by reason of the injunction, tu carry out his contract with Underwood. That matter seems, as between those parties, to have been adjusted without loss. Plaintiff, however, contends that had this contract gone at once to execution, as it should and would have done, but for the injunction, he would, at once, have received the price of the lands and deposited them to his credit in thi Calcasieu Bank, with which he was doing business; that had this deposit been made, his account at that bank would have been such that the bank would have advanced him money for the purposes of his business,' and with those moneys he could have extended his business and made profitable investments, which, as matters took shape, he was unable to do.

Roberts, cashier of the Calcasieu Bank, being on the stand, as a witness for the plaintiff, was asked, on cross-examination, whether the injunction caused Mr. Elms’ credit to be injured with his bank, and replied that it had not.' Defendants’ counsel then said: “Mr. Elms has testified that he could not increase his line of credit with the bank; vas that due or not to the fact he had all he was entitled to, or did it have something to do with the injunction ?” To this, witness answered: “It had nothing to do with the injunction.”

Had Mr. Elms received the price, at once, of the lands held under options by Underwood, the sale of which was enjoined, it is not a matter of certainty what he would have done with it, nor what the actual result would have been of his use of it. In Hutchinson vs. Sparks, 3 Ann. 549, the court, referring to plaintiff’s claim, said:

“The ground upon which this claim for damages was made was that if plaintiff had obtained the notes when he demanded them, after, the report of the referee, he would have been able to raise money upon them, and could have employed it profitably. To sustain these allegations, witnesses were called to prove that at the time favorable opportunities were presented for speculations in- corn, and that plaintiff would have been able, with a sum of one thousand dollars, which he could have raised upon the notes, to realize profits to the amount of one thousand dollars. Damages thus remote and conjectural are inadmissible.” (See on the subject Gray vs. Lowe, 11 Ann. 392.)

There is nothing to show that defendants were informed prior to the issuing of the injunction as to the pecuniary situation of the plaintiff at that time, nor of his relations with the Calcasieu Bank, nor of their mode of dealing with each other. The consequential results of the injunction of which plaintiff complains were not such as would naturally and directly result from an injunction preventing the sale of certain specified property. The failure of the Calcasieu Bank to advance plaintiff more money was undoubtedly due to the latter’s already existing indebtedness to it, and whether that bank would have advanced to him and to what extent it would have- advanced to him, had he then either partially or completely extinguished this indebtedness, are uncertain facts.

Plaintiff urges that the defendants, through their agents, bought up lands for which he held options, by circulating the report that he was impecunious and would not and could not avail himself of his right to purchase the lands. This action on defendants’ part, conceding the facts to be as charged, and conceding defendants’ action to 'have been wrongful and injurious to plaintiff, was not the result of the injunction. Defendants were in position to accomplish the same results independently of any question of injunction; for there was no legal obstacle in their way preventing. If plaintiff had any right of action flowing from defendants’ acts in this regard it would have to be advanced as a matter of complaint independently of the injunction.

Defendants deny that they are responsible to the plaintiff for his counsel fee in the matter of the injunction suit; they claim that the injunction was dissolved, but as the result of the judgment upon their main demand to be declared owners of the property, and to force a specific performance by plaintiff to pass a deed of sale for the property. The value of the services of an attorney for dissolving an injunction may b.e other than their value for dissolving the injunction and also defeating a main demand connected therewith. In such cases the value of the services may often be: properly separately considered. The dissolution of an injunction for an error of pleading of form or something of that character, may, for instance, involve the work of only a few minutes, while the main demand may be dependent upon numerous and complicated facts; • and the examination of very difficult questions of law, requiring weeks of study and preparation and labor. Under such circumstances, it would be manifestly unjust to throw upon the plaintiff the counsel fees for the entire case, under guise that the suit was an injunction suit. Cases of that character, as to attorney’s fees, would stand upon their special features.

We do not consider the present case as one falling within that class. We do not think that parties causing- an injunction to issue by which a citizen is for months kept out of the control of his property on grounds involving for the ascertainment of the legality of the taking out of the injunction a great number of facts and difficult questions of law, which, on investigation, disclose the fact that there was no legal ground for the injunction, can shelter themselves from holding the defendant in injunction harmless from the expense incurred by him in establishing that fact, upon the ground that there was connected with the prayer for an injunction a prayer for a judgment, such as would have been asked in an ordinary suit, without an injunction, and that the dissolution of the injunction and the rejection of the prayer for judgment should have been disposed of at one and the same time. In this case had the matter of the injunction been taken up and disposed of separately from that portion of plaintiffs’ demand asking for a judgment and the injunction had been dissolved as having been illegally taken out on a state of facts not existing, as had been alleged, the main demand would have practically fallen by the effect of that decision; there would be little left to be done on what defendants style “the main demand.”

Plaintiff in this case prayed, in his answer, for a dissolution of the injunction, and before judgment discontinued his reconventional demand. He had made an unsuccessful attempt to obtain a bondsman to bond the injunction. The judgment first dissolved the injunction and then dismissed the suit.

As was said by Chief Justice Bermudez, in Wentz vs. Bernhardt, 37 Ann. 636: “While the judgment appears to be one upon the merits, it is practically one upon the exception.” The evidence shows that plaintiff engaged the services of an attorney for a stipulated fee of five hundred dollars. We have examined the proceedings with reference to the reasonableness of that fee and we think the services were well worth that sum. The District Court does not specifically allow this claim, but we think that five hundred dollars out of’ the amount of the judgment was evidently decreed to the plaintiff to cover' that fee. We think that the balance of the judgment was for expenses and other matters directly incidental to the dissolution of the injunction. We think the judgment of the lower court to be correct, and it is hereby affirmed.

Provosty, J., takes no part.

On Application for Rehearing.

Blanci-iard, J.

Complaint is made by defendant company that the decree of this court, affirming the judgment appealed from by plaintiff, does not specifically state by whom the costs of appeal should be paid. It is not necessary it should so state. Plaintiff, having appealed the case and lodged the transcript here, and being cast on the appeal in the sense that no change in the judgment to his advantage was made — the judgment being simply affirmed — the law itself carries the costs against him (C. P. 157, 549, 551, 523); they are incidental to the judgment (St. Romain vs. Robeson, 12 R. 194).

An appellant is to pay the costs of appeal where the judgment is affirmed. O. P. 907.

Rehearing denied.


author: Pkovosty, J. Provosty, J.

text:
    No. 13,980.
    City of New Orleans vs. Penn Mutual Life Insurance Company.
    Syllabus.
    X. The intent of the license ordinance of the City of New Orleans is that the amount of license to be paid by foreign corporations shall be calculated on the basis of the business done by the New Orleans agencies of such corpora tions.
    2. A business concern doing no business outside of the State has no interest in raising the question of the legality of an ordinance on the score of its requiring a license to be paid on business done outside of the State.
    APPEAL from the Civil District Court, Parish of Orleans — King, J.

      Henry Garland Dupre, Assistant City Attorney, and Samuel L. Gilmore, City Attorney, for Plaintiff, Appellee.

      Harry H. Hall, for Defendant, Appellant.
   The opinion of the court was delivered by

Provosty, J.

On the application for rehearing by

Provosty, J.

Pkovosty, J.

The defendant company, a Pennsylvania corporation with an agency in the city of New Orleans, is sued by the city of New Orleans for its license for the year 1899, amounting to $1425.00, with interest at the rate of two per cent, per month from March 1, 1899.

Its first defense is that the suit should have been by rule, there being no law authorizing the city of New Orleans to proceed by ordinary suit to recover licenses. The difference between a rule and an ordinary suit is that in the ordinary suit the defendant has ten days in which to appear and make his defense, and need not plead to 'the merits at once, but may interpose dilatory defenses, and is entitled to trial by jury; whereas in the rule the time for appearance is fixed by the judge at his discretion, and the defendant must plead all his defenses at once, and cannot claim trial by jury. From this it is evident that a defendant proceeded against by ordinary suit instead of by rule, has no ground for complaint. On the principle that the greater includes the less, authority to proceed by rule includes authority to proceed by ordinary suit.

The next ground of defense is that the ordinance levying the license operates extra-territorially, taxing property situated outside the limits of the State, thereby violating the Federal Constitution, §1, Section 2, Article 4, and the Fourteenth Amendment.

We fail to see what interest the defendant can have in raising this question, since the return made by it, on the basis of which the license in question is' claimed, shows that all of its business sought to be taxed is done within limits of the State; it will be time enough to considethe point when it shall have been made by a person having an interest.

The plain intent of the ordinance is that the license shall be calculated on the basis of the business done by the New Orleans agency of the defendant; and no attempt is now made, and none is likely ever to be made, to give to the ordinance any other operation. When an attempt is made to adopt the entire business of the defendant company as a basis for the license, it will be time enough for the defendant to question the legality of such a proceeding.

The defendant not having paid its license on demand is not in a position to ask exemption from the two per cent, per month interest.

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

On Application for Rehearing.

Provosty, J.

Of the several grounds on which defendant asks for a rehearing we need notice but one; it is that we did not pass upon the objection based on the inequality of the operation of the ordinance in question. Our reason for not doing so was that this objection is entirely dependent on the supposed extra-territorial operation of the ordinance, and that a decision against the right of the defendant to raise the question of the extra-territorial operation of the ordinance was necessarily a decision against this objection. By excluding from the case all question of the extra-territorial operation of the ordinance we ipso facto excluded all question of the lack of uniformity.

Rehearing refused.


text:
    No. 13,971.
    State of Louisiana vs. Eva Smith.
    Syllabus.
    1. Where, in a case appealable to this court, the transcript, duly filed, contains a correct copy of a bill of exception as prepared by counsel and signed by the trial judge, certiorari will not lie to obtain the reasons of the trial judge, not given originally and not incorporated in said bill.
    2. A bill of exception which contains neither the grounds of exception nor the reasons for overruling them, is defective, and is not entitled to notice.
    S. The opinions of non-expert witnesses, as to the imbecility, or insanity, of the accused, are admissible only in connection with testimony as to the facts upon which such opinions are predicated.
    APPEAL from the Eighteenth Judicial District, Parish of Lafayette — DeBaillon, J.

      Walter Guión, Attorney General, and William Campbell, District Attorney, (Lewis Guión, of Counsel), for Plaintiff, Appellee.

      Gus. A. Breaux, for Defendant, Appellant.
   The opinion of the court was delivered by

Monroe, J.

Defendant was convicted of perjury and sentenced 10 imprisonment at hard labor. The transcript contains a single bill of exception, which reads as follows, to-wit: “Be it remembered that on the trial of this case the accused, through her counsel, offered to prove, by the following witnesses, viz: Justilien Guillote, Theodule Guillote, and Charles Smith, all competent witnesses, that the accused was, at the date of committing the act of which she is accused, and for which she is being prosecuted, and has been, through life, an imbecile, with such very limited intelligence that she could not judge between the right and wrong of the crime of perjury, to all of which evidence the district attorney, on behalf of the State, objected that * * * * *

Which objection was maintained by the court, and the evidence excluded. To this ruling the accused excepted and presented this bill of exceptions, which was duly signed by the judge. Done and signed in open court, this 13th day of April, 1901.

(Signed) C. DeBaillon, Judge, 18th Jud. Dist., La.”

After the filing of the transcript in this court, the Attorney General, being under the impression that something had been omitted from the bill, in the transcription, applied for, and obtained, a writ of certiorari, directing the clerk to complete the transcript. But the clerk returned that the transcript was complete, and that the bill, as copied therein, is a correct copy of the original. Thereupon, the Attorney General obtained a similar writ, in the alternate form, directing the judge a quo to state, in writing, his reason for refusing to permit the witnesses named in the bill to testify, or show cause to the contrary; to which the judge makes the following return, to-wit:

“The undersigned respondent, for answer and return to the writ of certiorari in the above entitled proceedings, says, that the same should not be peremptory and the relief sought should not be granted, because the record; as made up and filed in your Honorable Court, is complete, and correct; and that nothing can be added to it, whether the record be sufficient or insufficient to maintain the verdict and sentence. Further answering, respondent returns that the bill of exceptions was handed to him after sentence and when respondent was about to adjourn court for that session, late Saturday evening; finding that the objections, which had been made to the excluded testimony, had not been incorporated in the bill, respondent signed the bill without assigning anv reasons, not deeming it necessary to assign any under the circumstances. Further answering, respondent returns that the object of the excluded testimony was to obtain the opinion of the witnesses as to the sanity of the accused; that she was, and had -been through life, an. imbecile with such limited intelligence that she could not judge between the right and wrong of the crime of perjury; and this, by non-expert testimony, by farmers, of very- limited education and experience. The witnesses were not offered to prove the acts, deportment, conversations, declarations, etc.; of the accused, from which the jury could have judged her mental condition. There was no pretense that the mania, or imbecility, existed when she committed the perjury; it was not shown that said witnesses were present in court when the accused testified in the case wherein the perjury was assigned. The accused was a material witness for the State in the prosecution of “State of Louisiana vs. Thomas Dickson,” charged with rape, and her 'testimony had sufficient effect upon the jury to obtain a qualified •verdict; her testimony was full and complete upon that trial, and she 'did not impress any one in court that she was insane, or that she was an imbecile. On the contrary, she clearly satisfied every one that she Was intelligent, cool, and deliberate, and above the average of her race. 'On her trial, she testified fully and intelligently. Her acts, conduct, demeanor, etc., on the witness stand, failed to show any such indicia of mental condition, as usually and naturally accompany and furnish proof of an existing malady or diseased mind. -She was interrogated by the jury and answered all questions intelligently, and she satisfied the jury that she was what is known in this country as a ‘smart colored woman.’ ”

We are of the opinion that the objection made by the respondent judge to the granting of the writ of certiorari is well made, as the transcript already contained a certified copy of all the proceedings had in the suit in connection with which the writ was applied for. C. P. 855. In an unappealable case, where the trial judge has “refused tó hear the party, or his witnesses, or has pronounced sentence without-having cited them to appear,” certiorari is the proper remedy whereby to bring up, for revision, by means of a certified copy, the entire record. C. P. 857. Rut, where such record is already lodged in this court, the writ has no function to discharge.

The bill of exception relied on was copied into the transcript exactly as it was prepared by the defendant’s counsel and signed by the judge. And, as so prepared and signed, it “contains neither the grounds of objection nor the reasons for overruling them, is defective and is hot entitled to notice.” State ex rel. Muller vs. Drew, Judge, 32 Ann. 1024; Davis vs. Millaudon, 14 Ann. 808.

The counsel for the defendant undertakes to supply these omissions by stating, in his brief, the grounds of objection urged by the district attorney; by stating that whilst the bill “was submitted to the district attorney to note his objection, and then to the judge for signature, neither saw proper to state it,” and it is further stated in the brief that “the bill of exceptions shows that the testimony of competent witnesses was offered on the trial of the case, as to the facts and actions of the accused through her life, that the jury might' draw its own conclusions as to the moral responsibility of the accused on her plea of insanity, which the court refused to hear.”

We fail to find in the bill any reference to “facts and actions,” whilst the return of the trial judge states specifically that, “the witnesses were not offered to prove the acts, deportment, conversations, declarations, etc., of the accused, from which the jury could have judged her moral condition,” but “that the object of the excluded testimony was to obtain the opinion of the witnesses as to the sanity of the accused; that she was and had been, through life, an imbecile, with such limited intelligence that she could not distinguish between the right and wrong of the crime of perjury, and this by non-expert testimony of farmers, etc.”

' Under the circumstances, whilst we are far from holding that imbecility and insanity can be established only by expert testimony, we are of opinion that it is within the province of the trial judge to determine whether witnesses offered as experts, as he says that the witnesses in question were offered, are entitled to be heard in that capacity. ■“Before a witness can be permitted to testify as an expert, his fitness and character as such should be established by a preliminary examinanon, and in ascertaining his competency the court may examine the .witness himself, or may find the fact from the testimony of others. This fitness of a witness to testify as an expert is a question of fact, and it is-addressed, in every instance, to, and lies within, the sound discretion of the trial court.” Enc. PL & Pr., Vol. 8, pp. 745, 746, 747. A non-expert witness who had adequate means of becoming acquainted with the mental state of a person whose sanity is in issue may, no doubt, give his opinion, based upon facts to be stated by him, as to whether such person was insane at the time of a specific occurrence. (Underhill Crim. Ev., 161.) And we think that such an opinion would be admissible, subject to the limitation mentioned, upon the question whether the person inquired about had been insane, or had been an imbecile, throughout his life. But, without limitation, it would not be admissible. In State vs. Coleman, 27 Ann. 692, it was claimed that the trial judge erred in maintaining an objection to the question: “You have stated that Coleman received, in his youth, severe injuries on the head, you have stated, also, that his language and conduct were, at times, strange and extraordinary; was that conduct and language that of a rational man ?” This court said: “The opinion of the witness was properly rejected. Without detailing the facts, in regard to the language and conduct of the accused, which witness thought strange and extraordinary, his opinion as to whether 'the conduct and language was that of a rational man’ was calculated to mislead the jury. Language and conduct which the witness might think were not that of a rational man, might not, if disclosed, produce the same conclusion with the jury.’?

And so, in the case at bar, upon the face of the bill of exception, itself, it does not appear that anything more was to be elicited from the witnesses than their opinions. Whilst the judge states in his return that that was the sole purpose for which their testimony was offered. Upon the case as thus presented, we find no sufficient reason for disturbing the judgment appealed from.

It is, therefore, affirmed.


author: Blanchard, J.

text:
    No. 13,871.
    Dr. B. A. Colomb vs. Rolling & McFarland.
    Syllabus.
    1. The rule of this court, requiring a litigant, who is cast in the Court of Appeal, to apply there for rehearing and have his application finally passed upon and refused before invoking at the hands of this court its writ of review, will be strictly enforced.
    2. In obeying the writ of this court and sending up the record of a cause for review, it is competent for the judges of the Courts of Appeal, if they see proper, in the interest of the orderly discharge of the public business pertaining to their courts, to submit a return in writing to the writ.
    3. For instance, if no application for rehearing in the Court of Appeal has been made, in a given cause decided by that court, prior to application here for the writ of review, it is proper for the Court of Appeal, in sending up the record of the case, to call attention to that fact.
    IN BE. Bolling & McFarland applying for certiorari, or writ of review, to the Court of Appeals, Fifth Circuit, Parish of St. James.

      Edward N. Pugh, for Applicant.

      Richard McOulloh, for Plaintiff in suit, Bespondent.
   The opinion of the court was delivered by

Blanchard, J.

On the 18th of March of the present year (1901) this court issued its writ of review, directing the record of this cause to be sent up pursuant to Article 101 of the Constitution.

The Court of Appeals, Fifth Circuit, accordingly, forwarded here the record of the case, and, in doing so, the presiding judge of that circuit submitted a return or statement giving the history of the case during its pendency in that court.

In obeying the writ of this court and sending up the record of a cause for review here, it is competent for the judges of the Courts of Appeal, if they see proper, in the interest of the orderly discharge of the public business pertaining to their courts, to submit a return in writing to the writ.

For instance, if no application for rehearing in the Court of Appeals has been made, in a given cause decided by that court, prior to application here for the writ of review, it is competent and proper for the Court of Appeals, in sending up the record of the case,- to call attention to that fact.

That is exactly what was done in this instance.

From the statement of the’presiding judge referred to, and from the minutes of the Court of Appeals for the Parish of St. James, it appears that this case came on first to be heard in said court at its regular term on the first Monday of April 1900, at which time the court was presided over by Judges Smith and Beauregard. Argument was had and the case submitted, and by the request and consent of counsel it was to be determined at chambers, ten days being agreed upon, or reserved, for the filing of applications for rehearing, to date from notice to counsel of the filing of the opinion and decree.

Under this submission the cause was decided by the court, as then constituted, affirming the judgment of the District Court in favor of the plaintiff. The date of this decision was the 24th of May, 1900.

Counsel for defendants filed an application for rehearing on the 7th of June, 1900, and this was forwarded by the clerk of the court to the judges then presiding over the Court of Appeals for the said Parish of St. James. But before the judges could reach a conclusion" upon the said application for rehearing, the term of office of Judge Smith of the said court drew to a close without provision, as yet, having been consummated for his succession.

In this emergency, and before the expiration of Judge Smith’s term, the court, deeming it best to avoid a hurried consideration of the application for rehearing, determined to replace the case upon its docket to be- tried again as of original trial by the incoming court as the same would be constituted under Article 99 of the Constitution of 1898.

Accordingly, an order to that effect was made, and the same was signed by Judge Beauregard on the 30th of June, 1900, the last day of Judge Smith’s term of office, directing the clerk to re-assign the case for re-trial and give notice of the order to the attorneys of record.

This order was received by the clerk and entered of record on the 3rd of July, 1900. The notice it commanded was given to counsel, and the ease was re-assigned, as of original hearing, upon the docket.

■When the court met at its next regular sitting in the Parish of St. James, being then presided over by Judge Smith, pursuant to reappointment under act of the legislature, and by Judge Kilbourne. under assignment by the Supreme Court pursuant to constitutional direction, the ease in question, being upon the docket as per its reassignment under the order aforesaid, came on for trial, as of original hearing, was argued and again submitted.

The case was taken under advisement, counsel entering consent of record that the same be decided at chambers, with leave to apply for a rehearing within ten days after notification of judgment.

It further appears that the court was careful, at this last trial, not only to have the time reserved for application for rehearing, but also stated in open court to counsel that the trial was an original trial,-as one of the judges (Kilbourne) had never heard the case before.

The court, on consideration of the case under the submission last referred to, again decided the same • in favor of the plaintiff and adopted as the reasons of the court (Judges Smith and Kilbourne) for its judgment, the former opinion of the court (Judges Beauregard and Smith). Accordingly, its decree was handed down, filed by the clerk and counsel duly notified of the same.

With regard to this judgment defendants, who were cast, filed no application for rehearing, and the application for the writ of review, made here, was so made without compliance with the amendment to Rule 12 of this court, which declares that no application for the writ of review in any case will be considered unless an application for rehearing has been first made in the Court of Appeals and refused.

> Counsel for the applicants for the writ of review was in error in treating the trial last had in the Court of Appeals as a trial on application for rehearing, or as a rehearing ordered by that court in the cause.

The action of the court shows it to have been a re-assignment of the case for a new hearing as of original trial there. It was not a new trial ordered after consideration of, and action upon, the 1a|ji||iggtion for rehearing from the judgment pronounced by Judges Béáüregárd and Smith. ' -

On the contrary, the application was Hot considered or,-acted on. The case was treated as though it had never been heard in' the Court of Appeals. The judgment had been in favor of the plaintiff in both courts and if he did not complain of the re-assignment for trial anew as of original hearing in the Court of Appeals, it did not lie in the mouth of defendants to do so.

An erroneous entry by the clerk on the minutes of the court was made, as of date of the day of the last trial of the case in the Court of-Appeals, to the effect that “the case came on for trial on a motion for a rehearing as per reassignment,” etc. This mistake or inadvertence is pointed out by the presiding judge in his statement, and it clearly appears as error in the further recital of the minutes of that very day. Eor instance, we find this in the minutes of that day as the concluding paragraph, to-wit: — “By consent of counsel this case was submitted to the court and it was agreed that the case be decided at chambers with leave to counsel to apply for rehearing within ten days after notification of judgment.”

This portion of the minutes, taken’ in connection with the previous order of court, through Judge Beauregard, reassigning the case for trial, not as of rehearing acted on and granted, but as óf original trial, show conclusively that the last trial in the Court of Appeals was considered by all parties as an original trial there. Else why should counsel make the agreement as to time in which to file application for' rehearing 1

If it were the ease on rehearing no further application for rehearing could be made. If it were the case on original trial in the Court of Appeals, an application for rehearing would lie. .

Counsel, by seeking and' obtaining the leave of the court for ten-days’ time in which to apply for rehearing after decision of the case was notified to them, conclusively acknowledged the trial then had to be original and not a trial on rehearing, and could not afterwards ignore the same.

One of the judges (Kilbourne) had never sat on the case before, and, therefore, more than the single presentation of it to him was advisable.

This was sufficient justification for the judges (Beauregard. and Smith) to make the re-assignment order they did make, of which defendants cannot complain since it was to their advantage and not their detriment.

This court was not in possession of these facts when, on the 18th of March last, it issued its writ of review and brought the case here.

It is considered that the rule of this court (being amendment to Eule 12, adopted June 18th, 1900), relative to the previous making of applications for rehearing in the Court of Appeals, and having the same passed upon, before invoking the writ of review of this court, has not been complied with.

It is, therefore, held that the facts as subsequently disclosed did not justify the issuance of the writ, and it is now ordered that the same be recalled and the application therefor be dismissed, with costs against the applicants.

Eehearing refused.