author: Tauiafeiiro, J.

text:
    No. 3520.
    Succession of John McDonogh. — On application of Moses Fox for probate of codicil.
    Isolated expressions uaocl by a court in giving reasons for its judgment can not control tbo force and eilbcfc of a formal decree. A deoreo which pronounces a document claimed to be a codicil to a last will and testament a forgery, can not therefore be controlled, limited or qualified by expressions used by the court in giving its reasons for the judgment.
    Tho plea of res judicata will be maintained where tlie suit is between tho same parties and is founded on the same cause of action.
    Appeal from the Second District Court, parish of Orleans. JDuvigneaucl, J.

      li. King Gutter and K. K. Washington, for appellant. Semmes & Molt and George S. Zaceij, for the cities of New Orleans and Baltimore, appellees.
   Tauiafeiiro, J.

The appellant alleges that John McDonogh died in New Orleans in the year 1850, leaving a largo fortune, which he disposed of by act of last will, constituting the cities of New Orleans and Baltimore legatees by universal title for a largo part of Ms estate; that subsequent to tho date of the testament by which these large bequests were made, McDonogh, by a codicil to his last will and testament, willed and bequeathed to the appellant the sum of three hundred thousand dollars, which he directed tho trustees of his estate to pay to this legatee eight years after the decease of the testator; that in the year 1860 ho instituted suit against the cities of Now Orleans and Baltimore for the purpose of having the codiciL or will under which lie claims probated and executed, and to recover judgment for and payment of the sum aforesaid; that by decree of this court it was determined that the last act of will or codicil was not sufficiently proved and established, and the decision was against him by a bare majority of the court. The appellant avers that the application now-made to have the codicil probated and its provisions executed, is a revival of his former action, and forms a supplemental or additional petition to the one heretofore filed on the twenty-sixth of September,, 1860. In the present action the applicant made the cities of Baltimore and New Orleans, by their proper representatives, parties, and prays-that the codicil to the last will and testament of McDonogh be admitted to probate and an order rendered for its execution ,• that he be recognized as the nephew of John McDonogh and the person named in the codicil, and that he have judgment in solido against the cities of New Orleans and Baltimore for the sum mentioned, with interest, etc. The applicant for probate and execution of the codicil was met by each of the defendants with the exception of res judicata. That plea was sustained by the court a qua, and the suit dismissed. Prom this judgment the plaintiff has appealed.

The final decree of this court in the former case, and pleaded as resjudicata in the present one, is found in 18 An. 419 et sequentes. It is contended on the part of the appellant that by the decision in that case the court did not pass upon the question of forgery which was directly charged by the defendants, and that it merely rejected the plaintiff’s demand on the ground that he had not established the genuineness of the codicil with legal certainty, and that the decree should rather be regarded as of the nature of a nonsuit, and not as definitively settling the controversjr.

We are unable to see the correctness of this view of the decision first rendered on the appellant’s claim. A careful perusal of that decision leaves upon our minds a different impression. It seems to-admit of no doubt, from the terms used by the court in announcing its conclusions from a review of the evidence, that it believed the codicil is a forgery, although it does not pronounce it to be such co nomine-. But it is well settled that isolated expressions, if there were such, intimating doubt in regard to the issue, can not control the decretal force of a formal judgment. The reasoning of the court arguendo is less to bo regarded than the final conclusion announced. 14 La. 445 j, 19 La. 318; 10 An. 352.

We think all the conditions required to constitute res judicata meet in the present case. A judgment has been rendered between the same-parties, acting in the same capacity, and the cause of action was the same. It was inter easdempersonas et eandem eonditionempersonarum. That judgment was definitive against the plaintiff. The exception,, we think, was properly sustained by the lower court, and the judgment is therefore affirmed.

Rehearing refused.


source: Caselaw Access Project

author: Howe, J.

license: Public Domain

text:
    No. 3347.
    James Brewer v. E. J. Gay et al.
    He wlio alleges simulation must prove it.
    Under an allegation of simulation merely, of a mortgage, evidence that it is fraudulent, hut-real, will not be admitted if objected to.
    A. X). Kelly granted a mortgage in favor of Hr. J. C. Patrick, or any future holder of certain notes which, he had given, on real estate in tho city of New Orleans to ^ecure their payment. The mortgaged property was afterward sold under judicial process by other and subsequent mortgage creditors. This suit was then brought by tho other and subsequent mortgage creditors to cancel the mortgage given in favor of Patrick or any future holder- or holders of the notes, and to havo the proceeds applied to the payment of their mortgages by preference, on tho ground that the mortgago given in favor of Patrick was simulated and fictitious. Hold — That the mortgage creditors having alleged merely that tho mortgago in favor of Patrick was simulated, and having failed to establish the simulation by proof, they could not bo permitted to show that it was fraudulent, set it aside on that ground, and claim the proceeds of tho sale for tho benefit of the junior mortgages.
    Appeal from the Seventh District Court, parish of Orleans. Collens, J.

      Miles Taylor, J. 8. Whitaker and J. Galchoell Pierce, for plaintiff. Pace, Foster c6 F. T. Merrick, for E. J. Gay, defendant, and Lea, Finney & Miller, for the other defendants.
   Howe, J.

On the fourth of November, 1865, A. D. Kelly, of New Orleans, by public act granted iu favor of Dr. J. C. Patrick, of West Baton Rouge, or any future holder or holders of certain notes therein described, a mortgage on certain real estate in the city of New Orleans. The notes were forty-eight in number, and their aggregate amount $89,600. The object of tho mortgage as recited in the act was to secure to Patrick a debt due him by Kelly for that sum.

The mortgage was recorded November 6, 1865, and about the same time the notes were delivered as follows: to the amount of about §30,000 to T. L. Bayne, Esq., for purposes to bo hereinafter mentioned,, and to the amount of about $59,000 to the defendants, A. H. Wallace,. J. H. Wallace, A. H. & T. II. Wallace, D. H. Gordon, and Kelly,. Tackett & Ford, respectively, as collateral security for debts due them hy A. D. Kelly & Co.

Of the notes delivered to Mr. Bayne, one was in February, 1867,. transferred to the defendant, the Canal Bank; and six in November,. 1866, to the firm of William Edwards & Co., and are now held by the defendant, E. J. Gay, a member of that firm.

The plaintiff obtained judgment against A. D. Kelly & Co. May 10, 1866, and caused it to he recorded June 7, 1866. As a judicial mortgagee, he commenced this action December 31, 1869, praying to be decreed a preference over the defendants above mentioned (the property having in -the meantime been sold under judicial process) on tho grounds that this mortgage, of November 4,1865, was a mere simulation, that it was made to cover and shield the property of A. D. Kelly from the pursuit of his creditors, that the defendants acquired possession of the notes held hy them after plaintiff’s judicial mortgage had arisen, and that therefore their mortgage claim was “null and void” as to him.

There was judgment iu favor of plaintiff as to all the defendants except the Canal Bank and E. J. Gay. The mortgage of the bank was recognized for $3000 and interest, and that of E. J. Gay for $4960 and interest. All parties have either appealed or by answer as appellees asked for an amendment of the judgment.

' An examination of the very voluminous record in this case will be simplified by attending to the exact issue raised by the pleadings. The demand of the plaintiff is founded upon the allegation that the mortgage to Patrick of November 4, 1865, was a simulation, a vain •shadow cast by Kelly on his property for his own purposes merely, to shroud it from the pursuit of his creditors. There is not an allegation that the mortgage was real but fraudulent; that having an actual existence it was liable to be annulled as giving an unlawful preference to creditors. We may therefore properly dismiss from consideration all the testimony in reference to illegal preference, the defendants having duly objected to its reception for such purpose; and the main question in the case which is loft is, not whether the mortgage existed for a fraudulent purpose, but whether it had any existence at all.

The plaintiff who alleges simulation must prove it. So far from proving it in this case, the record shows that the mortgage attacked had a real existence, though the debt secured was not precisely what it was described to be in the public act. The object of the parties seems to have been to create a series of notes secured by mortgage, and to use these notes for two purposes, first, to secure Dr. Patrick, •who had loaned to A. D. Kelly & Co. his notes for large, sums, which notes A. D. Kelly & Co. had pledged at the banks as collateral, and ■on which Patrick was primarily liable as maker, and second, to secure a number of creditors of A. D. Kelly & Co. in respect'to their matured «claims, whose validity is not disputed.

The portion of the notes designed to secure Patrick were delivered to Mr. Bayne, to bo hold by him in accordance with this plan. He delivered one of $3333 33 to the defendant, the Canal Bank, for the purpose of taking up a note of- $4900 made by Patrick, and those pledged by Kelly & Co. lie delivered six, amounting to $7666 66, to William Edwards & Co., as collateral to a loan of $4960 in cash, used also to take up a note held by the Bank of Louisiana, which had been made by Patrick and pledged by Kelly & Co. These notes are held by E. J. Gay, one of the defendants, a partner of Edwards & Co.

It seems clear (the question of illegal preference being eliminated) that the moment the notes were delivered to Bayne the mortgage had a legal existence, the vinculum juris was complete. • This occurred .about November 6, 1865. The notes were negotiable, were indorsed in blank, and the mortgage was made in favor of any future holder. The notes did not perish in the hands of Bayne, nor did the mortgage. He delivered the notes to the Canal Bank and Gay (Edwards & Co.) for a valuable consideration, and we see no reason why they should not enforce them and enforce their accessary mortgage. '21 An. 3; 22 An. 2S5.

Nor do we sec why they should not enforce them íd full. Kelly does not object, nor Patrick’s estate, nor Bayne as agent, and neither is made a party to this suit. There are no equities between maker and payees. To say that those holders of collaterals should not be permitted to collect more than they have advanced or agreed to take would be to deal too summarily with the rights of parties not before the court.

The rights of the other defendants, the Wallaces, Gordon, and Kelly, Tackett and Ford seem equally clear. As to them Dr. Patrick was a nominal mortgagee, but the mortgage was none the loss valid under the facts above recited as to the plaintiff. The notes were transferable by mere delivery, and the mortgage was made not only in. favor of Patrick, but of any future holder or holders of these notes. Within a day or two, certainly within the month of November, 1865,. the notes to the extent of about $51,000 were delivered to the defendants, the Wallaces and others, lastly above named, as collateral security for valid existing debts. The vinculum juris was complete, and we do not think that the plaintiff, acquiring his rights as judicial mortgagee seven months later, can legally complain. Swift v. Tyson,. 16 Peters 20; Succession of Dolhonde, 21 An. 3; D’Meza v. Generes,. 22 An. 285.

It is therefore ordered that the judgment appealed from bo reversed, and that there bo judgment in favor of defendants with costs in both, courts.


author: Taliaferro, J.

text:
    No. 2391.
    City of New Orleans v. W. S. Mount, Treasurer, and Michinard, Assistant City Attorney.
    Certificates of indebtedness or police warrants issued by the Board of Metropolitan Police are not bills of credit within the meaning of section ten of article one of the Constitution of the United States. The statute of twenty-seventh of February, 1809, making, such warrants receivable for taxes due the city does not violate this provision of the* Constitution, and is not, therefore, void on that account.
    Appeal from the Fourth District Court, parish of Orleans. Théard, J.

      J. B. Beckwith, City Attorney, and O. Boselius, for plaintiff and appellant. JS. Mlleul, for defendant and appellee.
   Taliaferro, J.

The Mayor of New Orleans took out injunctions, against the City Treasurer and the Assistant City Attorney to restrain them from receiving in payment of city dues (licenses and taxes due the city) Metropolitan Police warrants as provided by an act of the Legislature approved twenty-seventh February, 1869, on the ground-of the unconstitutionality of the act, it being, as alleged, in violation of section ten of article one of the Constitution of the United States, which declares that “no State shall emit bills of credit nor make anything but gold and silver a tender in payment of debts.”

Newman, a broker, intervened, contesting the validity of the injunctions and claiming the right to pay his license in Metropolitan Police warrants, a right, he alleged, had been denied him.

There was judgment for defendants and intervenor, dissolving the injunctions, and the plaintiff appealed.

Instruments of the kind hero objected to as bills of credit, were certificates of indebtedness issued by the corporation to facilitate their business operations, which have often been decided not to be bills of «credit within the meaning and intendment of section ten of article one of the Constitution of the United States. Story on the Constitution, No. 1364; Smith v. The City of New Orleans, 23 An. 5. IVe think the judgment of the lower court correct.

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


text:
    No. 3486.
    State v. Charles Earle and John Garvey.
    in all criminal prosecutions in which tlio punishment at hard labor is twelve months or more, the accused is entitled to twelve peremptory challenges to the jurors chosen to try the cause, and in like manner the State is entitled to six peremptory challenges in each prosecution. Revised Statutes of 1870, section 998.
    In case, therefore, that more than one accused has been put on trial for the same offense in the same indictment, the State will not thereby gain the right of peremptorily challenging more than six jurors, who have been chosen to try the cause.
    Appeal from the First District Court, parish of Orleans. Abell, J.

      8. JBelden, Attorney General, for the State. A. A. Atocha, for defendants and appellants.
   Howe, J.

The defendants liaviDg been found guilty of murder and sentenced accordingly, have appealed to this court. They make five points here, of which, however, it will be necessary to examine but one.

It appears from an inspection of the first bill of exceptions taken during the trial, that the State was allowed to challenge peremptorily snore than six jurors, the court below deciding that each prisoner was ■entitled to twelve peremptory challenges and “the State to six for each accused.”

It is true that each defendant was entitled to twelve peremptory challenges, but it by no means follows that the State is entitled to six for each defendant. The State has no rights in the matter beyond those conferred by the statute, and the statute declares that “in all ■criminal prosecutions wherein the defendant is allowed peremjstory •challenges, the State shall also be allowed to challenge without cause any number not exceeding six.” R. S. 1870, sec. 998. This means, •clearly, six in a single prosecution — in the trial of a single indictment — without any reference to the number of defendants included in the prosecution, or mentioned in the indictment. The language is plain, the case at bar is within its provisions, and we are, therefore, ■constrained to think the court erred in allowing the number of peremptory challenges by the Siate to exceed six.

The precise question in this case was decided by the Supreme Court ■of Ohio in the year 1840 in the same way, under a statute which we think practically identical in this respect with our own. In the law of Ohio the phrase “trial of an indictment” was used instead of “criminal prosecution,” and the right to challenge, peremptorily, two of the pannel was given to “every prosecuting attorney” and “ every defendant.” The lower court, in a case where there wore three defendants, having allowed the State six peremptory challenges, the Supreme Court, in reversing the judgment, said:

“There was but one indictment, and on the part of the State the right of peremptory challenge should have been confined to two, while each of the defendants could, in like manner, legally object to the same number. Had the defendants been separately tried, the indictment would have been separate as to each, and on every trial the ■State’s right to such challenge of two of the jurors would have been legal, but upon a joint trial it is otherwise.”

We are constrained to order a new trial.

It is therefore ordered that the judgment appealed from bo reversed, •and that the cause be remanded for a new trial.


author: Wyly, J.

text:
    No. 2419.
    Eugene Cenas v. Richard Shackleford.
    ‘The maxim cle minimus non curat lex will not "bo applied to a caso wliere judgment lias been given for one year’s interest «moro than is duo on tlie demand, but in such, a caso tlio judgment of tbo court a qua will bo amended so as to allow interest only from the time it was due.
    Appeal from the Fourth District Court, parish of Orleans. Théard, J.

      O. If. Conrad & Son, for plaintiff and appellee. H. Shackleford, in person, appellant.
   Wyly, J.

The defendant having appealed from the judgment herein against him on a promissory note, ■ contends it is erroneous because it allows interest from the nineteenth day of March, 1859, .although tlio indorsement on the note and the evidence shows that the interest for the year ending nineteenth March, 1860, has been paid.

The plaintiff contends that this is merely a clerical error of the judge in drawing up the decree, and as the defendant did not seek to ha^e it remedied, by application for new trial, it should not be noticed in revising the judgment; and, also, under the authority of McMullen v. Jewel, 3 An. 139, this error should not save him from damages for frivolous appeal.

In the case cited there was error in condemning the defendant to pay the costs of an illegal citation, hub the court regarded this as a trifling error and applied the rule do minimus non curat lex. But here the plaintiff had judgment in accordance with the prayer of his petition and he recovered of the defendant one year’s interest on the debt more than was due him. This was not a clerical error of the judge, and it is not a trifling error to which the rule referred to should be applied.

■ It is therefore ordered that the judgment herein be amended so as to allow interest only from the nineteenth day of March, 1880, and as thus amended let it be affirmed. It is further ordered that appellee pay cost of appeal.


text:
    No. 3379.
    James H. Young v. The Magazine Street Railroad Company, and The Magazine Street Railroad Company v. James H. Young. (Consolidated.)
    In a sequestration suit where the preservation of the property sequestered is provided for hy the defendant giving a bond, the appointment of a judicial sequestrator is illegal, and the order appointing a sequestrator in such a case, with the order homologating Ms account, will bo annulled and set aside on appeal.
    Appeal from the Eighth District Court, parish of Orleans. Dibble, J.

      R. King Cutler and F. Hi. Butler, for plaintiff and appellee. Cotton <& Bevy and Semmes & Mott, for defendant and appellant.
   Taliaferro, J.

In the progress of the trial of these cases in the court below the judge a quo appointed a judicial sequestrator and placed in his possession and under his administration the property in controversy, viz: the railroad and all its appliances and appurtenances by an order rendered on tho nineteenth of July, 1870. The sequestrator, it seems, took charge of the road on the sixteenth of October following and on the thirteenth of February, 1871, the court rendered an order that the sequestrator flic an account, which was accordingly done. This account was opposed by the railroad company as to attorney’s foes, $590, and services of the sequestrator, $3500. An order was rendered homologating the account, reducing the charge of the sequestrator to $200 per month. Prom the order appointing the sequestrator and that homologating his account the railroad company have appealed.

The points presented are:

That the Magazine Street Railroad Company having obtained a release of the injunction sued out by Young, by entering into the required bond on tbe fourth of April, 1870, the judge was without power to order a sequestration; that the item of account, $3500, for services of I-Iillman, the sequestrator, is excessive and should not be allowed; that the sequestrator, if entitled at all to claim compensation for his services in that capacity, can only claim it from the party east in the suit.

The railroad company having entered into bond in favor of their adversary to secure Mm against loss or damage that might result from their retaining possession of the road ponding tho suit, and not perceiving that anything subsequently occurred to weaken that security, wo do not think a state of things existed that authorized tlie judge ex-officio to appoint a judicial sequestrator. The preservation and safe keeping of the property in controversy being provided for, tbe appointment of a keeper was unnecessary and productive of unnecessary costs.

It is therefore ordered, adjudged and decreed that the order appointing Hillman judicial sequestrator and that homologating his account be annulled, avoided and reversed. It is further ordered that tbe appellee, pay costs of these proceedings.


text:
    No. 2518.
    John M. Prather v. The City of New Orleans.
    The municipal government set up hy the military authority of tho United States for the city of Row Orleans, which continued from 1862 to 1866, and administered the affairs of the city hy officers appointed hy the military authority, was not the government of a conqueror. The doctrine in relation to contracts made hy an occupying conqueror in reference to property of the conquered, from which he is afterward expelled, or which he ‘is required hy treaty to give up, has no application to contracts made hy such municipal officers.
    A contract made hy tho city, under the authority of an ordinance of tho Common. Council, whereby tho steam ferry privileges were sold to a third person for a given period of time, was therefore binding and obligatory upon tho city, even though tho officers in possession of the city government at tho time the contract was made, wore superseded by officers appointed or elected hy the city herself before tho term of the contract had oxpired.
    In tills case it was held, that inasmuch as the city government that succeeded the one hy which the steam ferry privileges had been given, had repealed tho ordinances of the former Council which authorized the contract, and had taken the contracts for the steam ferry privileges away from the contractor and given them to another person, tho first contractor was entitled to recover from the city tho damages which tho violation of his contract had caused him.
    Appeal from the Fourth District Court, parish of Orleans. Théard, J.

      Billings & Hughes, for plaintiff and appellant. George 8. Laeey, for defendant and appellee.
   Howe, J.

This is a suit for damages. On the sixteenth January, 1866, by ordinance No. 6412, tlie government of tbe city of New Orleans, as then constituted, directed the Mayor to advertise for sealed proposals for the sale of the steam ferry privileges from foot of Canal street, and foot of Esplanade street, for a term of ten years from June 1,1866.

On the fifth of February, 18C6, by ordinance 6425, the Mayor was authorized to enter into contracts with the plaintiff (presumably the highest bidder), in accordance with tho specifications of tho advertisement.

On the nineteenth February, 1866, the contracts were duly passed before the city notary, and on the twenty-first February, 1866, were each indorsed as follows by the military commander of the Department ■of Louisiana:

“Contracts of this character should not have been made by the city government in its present anomalous and inchoate condition; but as this contract does not trench upon any portion of the wharf or levee •space reserved for the use of the general government, it is approved, ¡subject to tho condition that this approval shall not prejudice any right of the United States to any levee batture, or prejudice or determine .any private right or interest.”

Shortly after a new set of municipal officers were elected, John T. Monroe being Mayor; and on the twenty-fifth May, 1866, by ordinance '60, N. S., tho Controller was authorized to sell for a term of ten years tho same rights which had been conferred on plaintiff.

On the tyenty-mnth May, 1866, the ordinance 6425, under which the ■contracts with plaintiff had been made, was repealed.

On the first June, 1866, the plaintiff made a written demand on the Mayor to be put in possession, or, in the language of his letter, “have my bonds and contracts returned to nie.”

In December, 1866, the ferries in question were let to other partios. In May, 1867, this suit was begun. The court below gave judgment for defendant, and the plaintiff appealed.

First — It is contended by the defendant that the city government ■established in New Orleans during the war, and commonly known as the bureau system, had “no legislative powers,” such powers being expressly withheld from.it by the military orders creating it. If by •“legislative powers” is meant tho power to make laws, we might agree with the defendant’s view; but if it is contended that this bureau government could not pass such ordinances as those above quoted, Nos. ■6412 and 6425, we can not assent to tho proposition. The ordinances in question were merely mandates from the authorities charged with the administration of the ferries to the Mayor to administer them in a ■certain way.

It is matter of history that for nearly four years the government established by military authority passed ordinances of this character, and that this was done with the permission, at least, of the military power.

Moreover, tho contracts in this case, and necessarily the action preliminary thereto, were specially approved, as we have seen, by the military commander.

Second — But it is claimed that on the ninth February, 1866, the same military commander prohibited the municipal authorities from making such contracts as those before us, and that his special approval of these particular contracts on the twenty-first. February, 1866, was so limited and conditional as not to cure the want of power produced by his general prohibition. We can not assent to this construction. He approved of the contracts. So far as his approval was necessary to render legal the action of the municipal authorities, it was given. Their power to make the contract was completed, and their liability to observe its obligations was also complete. The condition attached was evidently meant to prevent possible infringement, not on the rights of parties to the contract, but of outside parties.

Third — It is further contended by the defendant that the laws in force at the time these contracts were entered into, required “all contracts to be made or let by authority of the City Council, and all materials and supplies to be furnished to be offered by the Mayor at public auction, after the usual advertisements, and adjudicated to the lowest bidder.” We apprehend this jmint was made through inadvertence. The city in this case had something to sell, not. to hire or buy, and she was surely not required to sell to the lowest bidder. The statute quoted, act of 1850, page 164, § 22, refers to work to be done for or supplies to be furnished to the city, and the authorities •cited, 12 An. 154, 496, and 15 An. 667, have the same reference.

Fourth — It is contended by defendant that the plaintiff voluntarily abandoned his contracts with the city by his letter of June 1, 1866, above qiioted. We can not concur in this view. The letter was superfluous and inartificial. The city had already actively violated its obligations by repealing the ordinance’6425 and re-offering the privilege for sale. The right of action was complete, and the letter contains no voluntary remission thereof. On the contrary, we understand it to express a desire on the part of the plaintiff either to proceed with his contract or to formally repudiate its further obligation, and possibly to sue for damages. At all events, we can not easily presume from his language that he intended to donate his damages.

Fifth — It is finally contended by the defendant, and this was the basis of the judgment in its favor in the court below, that the contracts in question, “ even if lawful and binding upon the contracting parties” at the time they were entered into, ceased with the existence of the particular form of municipal government under which they are made, and in support of this proposition we are referred to the familiar principle that any contracts or agreements which the conqueror may make with individuals farming out the property of the conquered, will continue only so long as he retains control of such property, and will cease on its restoration to or recovery by its former owner.

The effect of such a view would be a little singular in .this case. The contracts made on the nineteenth February, I860, by which the plaintiff was to bo put in possession of the ferry privileges on the first of June, 3866, are admitted to be “lawful and binding;” yet by the change of city government in the intervening month of April or Slay, they are made unlawful and of no binding effect.

But we can not recognize the application to this case of the principle of international law quoted by defendant. The municipal government established by military authority, and continuing without interruption from 1862 to 1866, was one of the series of municipal governments which have in times past administered the affairs of the corporation. It was, during nearly four years, in quiet possession, without tile shadow of an adverse claimant. Its officers wore recognized as the municipal officers by every department of government, State and national. The doctrine in relation to contracts made by an occupying conqueror in reference to property of the conquered, from which he is afterwards expelled, or which he is required by treaty to give up, has no application to the contracts made by such municipal officers. They were not occupying conquerors. The city of New Orleans, their principal, was not an occupying conqueror. They were not contracting in regard to the property of some third and conquered person. They contracted in regard to the property of the city, which was then in possession of the city as owner, and is still in its possession. As to the city, there has never been any change of possession or control as owner. She was owner in January, 1866, and she was owner when this suit was brought. She has changed her officers, hut how can such change effect “lawful and binding” contracts made by their predecessors 9

But if it he granted that these municipal authorities in some way represented and acted for the United States as occupying- conqueror,, the conclusion desired by defendant does not follow.

In the case of Leitensdorfer v. Webb, 20 Howard, 176, where the question was of the validity of a provisional government established in New Mexico in 1846 by a military commander, and especially of the continuing effect of its laws and judicial system, a similar point was made, hut the court replied: “The fallacy of this pretension is exposed by the fact that the territory never was relinquished by the conqueror, but was retained by the occupant until possession was matured into permanent dominion and sovereignty, and this, too, under the settled purpose of the United States never to relinquish the possession acquired by arms.”

Applying this undoubted principle to the case at bar, and admitting for the moment that the contracts in question were made on behalf of an occupying conqueror, we should only find that the occupation still continued, not by,¿military force, it is true, but by civil dominion and sovereignty. The Confederacy did not retake New Orleans,- and to-day New Orleans, like Boston, is within the national domain.

We think the plaintiff entitled to recover, and we fix the amount of damages, from the evidence, at $11,280, with interest from judicial demand.

Jt is therefore ordered that the judgment appealed from be reversed, and that plaintiff, John M. Prather, have judgment against the defendant, the city of New Orleans, for the sum of $11,280, with legal interest from May 10, 1867, and costs of both courts.


author: Wixy, J.

text:
    No. 1753.
    H. R. Short v. E. Lapeyreuse.
    A depositary who soils sugar deposited with him and converts the proceeds to iiis own use is responsible to the owner for its value.
    If it be shown, in a suit for the value of the sugar, that the depositary received it, then the burden of showing what became of it falls upon him.
    Appeal from the Third District Court, parish of Orleans. JSmerson, J.

      Klmore & King, for plaintiff and appellee. A. c6 M. Voorhics, for defendant and appellant.
   Wixy, J.

The plaintiff sues for the value of a lot of sugar deposited with the defendant by the agent of tbo plaintiff, alleging that the same has been sold by the defendant and converted to his own use. To this demand the defendant interposed the exception of domicile.

Prom the evidence we believe his domicile is in this city. It is shown, that his family residence is on St. Philip street; and lie has a plantation in the parish of Sfc. Martin, whero his family resided before removing to this city. Had we doubts, wo would decide he can bo sued at either place. Yillere v. Butman, 23 An. 515, and authorities there cited.

On the merits we think the case is clearly with the plaintiff.

The settlement made with Burket after lie had ceased to bo the agent of the plaintiff will not exonerate the defendant, because he bad been previously notified and called upon to settle with the plaintiff. It was bad faith in tiie defendant to ship and sell for his own account the sugar of the plaintiff left in Ms keeping as a depositary. And this occurred after he had been called on for settlement by plaintiff’s attorney, who offered to pay the bill for storage. The plaintiff refused to ratify the settlement made by Burket for Mm without authority, and Burket offered to return to the defendant the amount received in the settlement. The amount of sugar deposited with the defendant being clearly shown the burden of proof is on Mm to show what has become of it.

On the whole we see no reason to disturb the judgment of the court a qua in favor of the plaintiff.

Judgment affirmed.


text:
    No. 3417.
    State v. Pierre Bertin and Jean Capdevielle.
    Persons on trial on it oliarge of burglary have the logal right to confront the witnesses who appear against them face to face. An examination by the jury under an order of the court of the place or house where the crime is alleged to have been committed, away from and out of the presence of the accused, while the trial is going on, is a violation of this right, and the ruling of the judge a, quo directing the jury to retire to such place and make the examination out of the presence of the accused, will be reversed on appeal, and the cause will be remanded to the court a qua for a new trial.
    Appeal from the First District Court, parish of Orleans. Abell, J.

      Simeon Belden, Attorney General, for the State. James O. Walker, for defendants and appellants.
   Howe, J.

The defendants having been convicted of burglary while armed with a dangerous weapon, were duly sentenced and have appealed.

We deem it necessary to examine but one point, which is presented by a bill of exceptions, and that is that certain proceedings were had and testimony taken on the part of the State during the progress of the trial out of the presence of the accused, and in spite of their objection. This point, if tenable, is of the gravest moment. The object of law is the doing of real justice, and nothing can be more painful to the legal mind than'the conviction of an innocent man. It is but natural and proper, therefore, that criminal jurisprudence should protect the accused person by numerous safeguards, and among these is the rule that, in general, every proceeding of his trial should take place in his presence. For, peradventure, if he be present he may at any moment, by a question, a suggestion, an argument, or even a glance, confound his accusers, vindicate his innocence, or at least mitigate his punishment. Especially is his presence proper at the taking of testimony against him; and, therefore, in this State, as in many others of the Union, it is wisely provided by the Constitution (article six) that the accused shall have the right of meeting the witnesses against him face to face.

Now, in this case it seems plain that this rule has been transgressed. In the midst of the trial, on motion of the State, the judge a qua directed the jury to retire from the courtroom and visit and inspect the premises where the burglary was alleged to have been committed, lie directed a witness for the State to accompany them and point out the places marked out on the diagram of the premises which the witnesses had testified to the day before, and which the State had offered in evidence. The accused were not permitted to attend this inspection of the premises, and the explanations of the State witness, his pointing out to the jury the relations between the diagram already in evidence and the premises inspected, took place out of the presence of the accused. Why such proceedings were permitted, we are not informed, and can not imagine. The judge a quo states at the foot of the bill of exceptions that the jury were specially instructed not-to converse with the witness, and the witness was instructed “to make no explanations, but to confine himself to pointing out appearances as-described in tho said diagram.”

Concede that in the absence both of the accused and tho judge (for the judge did not accompany the expedition), the witness and the jury obeyed these instructions to the letter. It would result merely that the witness gave testimony on the premises, out of court, and in the absence of the accused, in the same way that a dumb person gives-testimony, namely, by signs. (G-reenleaf, vol. 1, sec. 366, and cases cited.) And it needs no argument to prove that the effect of such “pointing out,” in dumb-show, is as potent with a jury as if the verification of the diagram had been enforced with a multitude of words.

It is therefore ordered that the judgment appealed from be reversed .and tile verdict set aside, and the cause remanded for a new trial according to law.


author: Howell, J.

text:
    No. 2440.
    Succession of Etienne Cordeviolle.
    A married woman may, with tho consent of her husband, be appointed dativo testamentary-executrix.
    Article 1664 of tho Civil Code, which allows a married woman to accept tho testamentary executorship, with the consent of her husband, confers tho same power on tho judge to* appoint a married woman dative testamentary executrix, on her receiving the consent of her husband.
    Appeal from the Second District Court, parish of Orleans. Diwigneaud, J.

      Armcind Pitot and Charles Louque, ior appellee. II. A. Dooley, C. Poselius and Alfred Phillips, for appellant.
   Howell, J.

Two parties, Ferdinand de Luca, as agent and attorney in fact of the “ Commune de Lavagna,” of Italy, a legatee of the deceased, and John Dawson, who was agent of the deceased prior to-his death, have appealed from a judgment appointing Mrs. Commagere, a married woman'and the sister and a legatee of the deceased, dative testamentary executrix.

Their main ground of objection is her alleged disqualification as a married woman not separated in property. They contend that article-25 of the Code disqualifies women for any civil functions except those which the law specially declares them capable of exercising, and that articles 1663, 1664, 1678 and 1679 (R. C. C.) do not specially declare a married woman capable of exercising the functions of dative testamentary executrix.

It is provided in article 1664 that a married woman may accept the testamentary executorship with the consent of her husband. The appellee lias such consent, and we are unable to perceive tlie distinction between tlie power to accept tlie testamentary executorship and the dative testamentary executorship. If the testator can confer such appointment, tho judge is vested by article 1678 R. C. C., article 924,* No. 7, C. P., and section 1459 R. S., with the same power, to be exercised on a proper occasion. The dative executor is the substitute when there is no testamentary executor, and in our opinion the various articles of the two Codes construed together clearly authorize tlie appointment of a married woman, with the consent of her husband, dative testamentary executrix.

We think tho judge a quo did not err in giving the preference to the appellee.

Judgment affirmed.

Rehearing refused.


text:
    No. 3390.
    J. O. Noyes v. Sigmund Loeb.
    An action to annul a judgment may bo entertained as a general rule, if it l>o shown that the machinery of tho court has been abusod. In such a case tho court will prefer to excuse an inadvertence rather than to encourage a fraud.
    A judgment will be annulled if it be shown that tho instrument on which it is based has been paid or satisfied before tho institution of suit, and the fact of payment concealed.
    APPEAL from tho Sixth District Court, parish of Orleans. Gooley, J.

      Henry 13. Kelley, for plaintiff and appellant. 13. B. Foreman, for defendant and appellee.
   Howe, J.

This case, which is a suit of nullity, was before us last winter upon the peremptory exception of no cause of action, and we liad occasion to decide that tlie petition showed a cause of action and to reverse the judgment of the lower court. 23 An. 13. The cause being remanded for a trial on tho merits, judgment was given by tho lower court in favor of defendant, and the plaintiff has again appealed.

Tlie judgment sought to he annulled was rendered in tlie case of Loeb v. Noyes upon a promissory note for $1791 09 during tlie absence of Noyes and his counsel. That it was rendered in their absence is, of course, in itself, no reason for annulling it. It might under some circumstances bo a reason for declining to annul on the ground of laches. But there are eases where tho maxim lilujatoris absentia Dei presentía refleatur applies in full force; and a court of justice perceiving- that its machinery has been abased will prefer to excuse an inadvertence rather than to encourage a fraud. Tlie case at bar belongs to this class. It would be against good conscience to execute the judgment sought to be annulled.

Tho plaintiff in the suit of nullity lias established enough of the allegations of Ms petition to satisfy us of this. 23 An. 13.

Among other facts he has shown that tlie note on which the judgmeat was rendered had been paid to the extent of $1000 and the balance remitted by agreement with the then holders; that Sigmund Loeb, plaintiff in the judgment, acquired the note long after maturity, that the note itself had a credit of $500 indorsed on it and a memorandum at the foot of the credit: Paid to Sigmund Loeb & Co.;” that these indorsements were erased and no explanation offered of such alteration; and that Sigmund Loeb proceeded to take judgment for the whole amount of the note in the absence of his adversary. If the document on which judgment was thus rendered was not forged, it was at least falsified, and the case is brought within the article 607 of the Revised Code of Practice.

The case is stronger in favor of the appellant than that of Beau- , champ v. McMickon, 7 N. S. 607, for in that chse Beauchamp confessed judgment upon a document purporting to be a copy of a lost draft, and it might have been urged that ho had fully admitted the correctness of tho cop^-. Yot it appearing to have been false, the court, Martin, Judge, said: “Truth must be the basis of all judgments, and where one is obtained on false documents made by the party in whose favor it is rendered, the detection of the falsity must entitle the opposite party to relief, even where there is no malice.”

It is therefore ordered that the judgment appealed from be reversed. It is further ordered that tho judgment in tho suit No. 1165 of the docket of the Sixth District Court for the parish of Orleans, in favor •of Sigmund Loeb v. James O. Noyes, for the sum of $1791 09, rendered March 16, 1870, and signed March 23, 1870, be annulled; that the preliminary injunction issued herein on the twenty-sixth April, 1870, commanding Sigmund Loeb and the civil Sheriff of tho parish of Orleans to desist from attempting to enforce or execute said judgment be made perpetual; and that Sigmund Loeb pay the costs of both court.

Rehearing refused.


text:
    No. 3359.
    Kate L. Hanney v. Thomas L. Maxwell and another.
    ‘To enable a judgment creditor to maintain a seizure of property held by tho wife as her separate estate, under a judgment of separation, on the allegation that the judgment of separation was collusive, and rondered in fraud of the rights of the seizing creditor, the seizing creditor must show affirmatively that ho was a creditor at the time the judgment of separation was rondered. C. C. 3434; 6 An. 391; 4 B. 336.
    Appeal from the Eighth District Court, parish of Orleans. Dibble, J.

      D. K. Washington, for plaintiff and appellant. JB. <& JET. Marr, for defendant and appellee.
   Howe, J.

The plaintiff alleged that she was separate in property from her husband by judgment of a competent court, and entitled to the possession of certain paraphernal property, and especially of certain furniture, which had been decreed by the judgment to belong to her separate estate. This judgment was rendered December 29, I860; and duly published, and decreed the house in which she then resided and the furniture therein (which is the furniture in question) to be her paraphernal property.

She further alleged that the defendant Maxwell had, on the twentieth of June, 1870, seized this furniture under a writ of fi. fa. issued on a judgment in favor of H. Hansell v. J. A. Pickett & Co., and she prayed for an injunction. It appears that her husband was one of the firm of J. A. Pickett & Co.

. The defendants answered by a general denial and an allegation that the judgment of separation was fraudulent and collusive.

There was judgment in favor of plaintiff, perpetuating the injunction, and the defendants appealed.

The plaintiff established the case set forth in her petition, and the defendants failed to prove the single affirmative point made by them in their answer. They did not prove, nor evemallege, that H. Hansell was a creditor at the time the judgment of separation was rendered, and it was therefore logically impossible for them to establish their allegation that it was rendered by collusion to defraud him. Rev. C. C. 2434; Morris v. Williams, 6 An. 391; Brassac v. Ducros, 4 Rob. 336.

Judgment affirmed.

Rehearing refused.


text:
    No. 2445.
    Joseph Christen v. R. Rhulman.
    The law does not authorize judgment to be rendered on a demand that is not tine at the institution of the suit. In case suit be brought on several claims, only one of which is duo, judgment -mil only be given on such claim, reserving to the plaintiff any privileges which he may havo acquired by attachment on the property of the debtor on claims not yet due.
    Appeal from the Seventh District Court, parish of Orleans. Oollens, J.

      L. Gasteva, for plaintiff and appellee. Somov & Benedict, for defendant aud appellant.
   Howe, J.

This suit was instituted on the twenty-second April, 1869, on five promissory notes, one of which was due at the time the suit was begun, and the rest of which were to fall due respectively September 23, 1869, March 23, 1870, September 23, 1870, and March .23, 1871.

There was an attachment issued upon the allegation that the defendant was about to mortgage or assign his property with intent to defraud his creditors, but no question in regard to the regularity or validity of the attachmeiit is before us.

There was judgment rendered in favor of plaintiff on the twenty-fifth May, 1869, for the sum of $165 47, the amount of the note then due, and it was further decreed “ that said plaintiff have judgment against said defendant for the further sum of $500, to become due on the twenty-third September, 1869, $500 to become due on the twenty-third September, 1870, $500 on the twenty-third March, 1870, and $500 to become due on the twenty-third March, 1871.”

We are not aware of any law authorizing judgment in such a case as this, save for the amount due at the moment j udgment was rendered. 6 N. S. 685.

It is therefore ordered that the judgment appealed from be reversed and that plaintiff have judgment against defendant for the sum of ono hundred and sixty-five dollars and forty-seven cents, with interest from March 23, 1869, and costs of lower court, and with attaching creditor’s privilege, and that plaintiff pay costs of appeal; this without prejudice, however, to any privilege plaintiff may have acquired under the attachment for debts 'not due.


text:
    No. 2442.
    Succession of S. Anglada. — Opposition to Tutor’s account by the Heir emancipated.
    In this case all the questions in dispute between the tutor and the minor wore referred to an auditor for adjustment, who made his report, which was homologated by the judge a qic't and judgment rendored thereon in conformity with the terms and conditions of tho report. One of tho conditions of the report was that in case the minorrefused to receive a building which had been erected on the minor’s property hy the tutor without authority of law, that then tho tutor should have the right of removing said building from the premises. The minor subsequently refused, to pay for the building.
    Held — That tho judgment being in the alternative, giving the minor the right to accept or reject the building, and in the latter case the tutor had reserved to him the right of removing it, that as the minor had refused to accept the building, the tutor could not claim to be credited with the value of the building on the amount found to be due by him as tutor to the minor, hut that he was left to exercise his right secured to him by the judgment of removing tho building.
    Appeal from the Second District Court, parish of Orleans. Duvigneaud, J.

      T. A. Bartlette, for appellant. J. W. Thomas, for appellee.
   Wyly, J.

In the judgment of thirty-first of May, 1869, the court below settled all the issues except as regards the interest due by the tutor on the revenues of the property, which question was referred to an auditor appointed by the court with instructions to compensate the interest found to be due by the tutor with the interest due by the minor “on the disbursement of $600 made by said tutor in the erection of a back building on the property of said minor,” twenty days being allowed tbe auditor to file Ms report.

lu the account thus homologated we find the following statement in reference to the disbursement by the tutor of $600 for the building on the property of the minor, viz: “The value of a two-story frame building covered with slate, 26x21, erected in the rear of the premises at the expense of S. Font, tutor, which building increases the value of the premises belonging to the minor, situated at the corner of Basin and Julia streets, which cost the sum of $600. If the minor requires that the building should remain, she becomes indebted for its value, or, in case of refusal, the tutor demands the right to remove the same from the premises.” With this statement in the account of the tutor, the item of $600 charged up against the minor was homologated.

The auditor found the tutor indebted to the minor $1790 85, and he found the minor indebted to the tutor $911 02, the cost of the building including five per cent, interest from 1880.

Before the report of the auditor was homologated the opponent, who is the sole heir, emancipated by marriage, disclaimed and waived al right to the building erected by the tutor on her property without authority of the court, and for which she is charged $600, with interest since 1860, and she claimed judgment for the full amount found to be due her, to wit, $1790 85, without allowing credit for the value of said building. The court gave judgment on the eleventh of June, 1869, homologating the airditor’s report showing the indebtedness of the tutor to the opponent, $1790 85, and rejecting the credit of $911 02, the cost of the building and interest; and considering the disclaimer by the heir of the building mentioned in the account of the tutor and also in the report of the auditor, the court decreed that the tutor have the right to remove the said building from the premises of the minor. From this judgment the appeal has been taken by the tutor.

We are of opinion that the judgment of the court below is correct. Indeed, there is no dispute as to the correctness of the $1790 85 found in the auditor’s report to be due by the tutor to the heir. But it is insisted that the credit of $911 02 allowed by the auditor to the tutor for the cost of the building, including interest from 1860, ought to be allowed, and that amount deducted from the amount of the judgment, because in the judgment of the thirty-first of May, 1869, the court • dismissed all opposition to the account except that part referred to the auditor, and in dismissing the opposition'to the disbursement of $600 for the building, the court virtually ratified that expenditure made by the tutor, and could not by a subsequent judgment reverse it, no appeal having been taken from said judgment of the thirty-first of May, 1869. This would be true if the heir had been charged unconditionally in the account with the cost of the building. But in homologating the account the item referring to the disbursement for the building became the judgment of the court, and how was that item entered in the account? It was in the alternative, to wit: , “If the minor requires that the building should remain, she becomes indebted for its value, or in case of refusal, the tutor demands the right to remove the same from the premises.”

Now, the heir refused to accept the building, as she had the right to do under the judgment of the thirty-first of May, 1869 j then why-should tho amount in her favor in the auditor’s report, to wit, the $1790 85, be credited with the cost of the building erected on her property by the tutor without authority of the court? She certainly was not chargeable with the cost of property she had the right under the judgment of the thirty-first of May, 1869, to refuse to accept from her tutor, and which sho did refuse to accept at the trial of this case in the court a qua.

The court did not err, therefore, in giving the heir judgment for the amount found to be due her, and in decreeing that the tutor be permitted to remove the building which he had illegally erected on tho premises of the minor.

The appellant raises many other questions, which we can not consider in revising the judgment before us, which is tho judgment’of the eleventh day of June, 1869. There are two other judgments in the record, which were rendered before the one now under revision, in which these questions were disposed of, and as no appeal was taken therefrom, vre will not examine the correctness of said judgments. The appellee also raises a question which we can not examine. It is as to the value of the rent of the property of the minor occupied by tho tutor in 1863, 1864 and 1865. This question was settled in the judgment of the thirty-first of May, 1869, from which no appeal was taken.

Judgment affirmed.


text:
    No. 3367.
    James H. Young v. Magazine Street Railroad Company. Magazine Street Railroad Company v. James H. Young. (Consolidated Cases).
    In tlio year 1861 a contract was entered tuto between tho City of Jefferson and Joseph Kaiser, granting to tho latter the right to build street railroads through the corporate limits of the city. Article ninth of the contracts stipulated that in case of failure by tho contractors of oithor of said roads to commence or complete either of said works, or any part thereof, within the period herein prescribed, or in case tho Common Council bo dissatisfied with the manner in which the works are being executed, the Council shall have the right to annul tho contract without putting the contractor in default. It was further stipulated that in case the contractor fails to completo the works within tho time proscribed, he shall forfeit all claims for work done, and the city shall have the right to resell the privilege and right of way at the risk of the contractor and his sureties in solido. Held — That under the authority given in this section to resell, nothing but tho right of way and privilege could be resold; and that if the road was once fairly completed this provision, having fulfilled its coercive purpose, ceased to have any further force.

      fa PPEAL from the Eighth District Court, parish of Orleans. Dibble, J.

      Franlc D. DuFler and JR. King Outler, for plaintiff and appellant.

      Thomas J. Semmes and Bufas Wajples, for defendants and appellees.
   This case was tried by a jury in the court below.

Howe, J.

Tho principal point involved in this litigation, is in regard to the right of‘the Common Council of Jefferson City, in the year 1870, to annul tlie contract for building the Magazine Street Railroad, and. to sell the railroad and its appurtenances to the plaintiff, James II. Young.

In 1861 a contract was entered into between the city and Joseph Kaiser, granting to him as the highest bidder a right to build the railroad. The time to complete the work was afterwards extended to January 1, 1866, and on the thirtieth May, 1866, the Magazine Street Railroad Company, party hereto, was organized, and became the owner of the road.

On the first March, 1870, the Common Council of Jefferson passed a resolution to annul the contract, and on the second March, 1870, through a committee, sold the whole property to Young.

The proceedings for this forfeiture and sale were secret and hurried, and the price was vile, but in the view we have taken of the case, it is not a necessary, as it certainly would not be a pleasing task, to enter into a full detail of the facts. If the Common Council had no power to sell as they did, and what they did, it matters little to Young, their vendee, whether their method of procedure was praiseworthy or not.

The section of the contract on which Young relies is as follows:

“Ninth — In case of failure by the contractors of either of said roads to commence or complete the above described works, or any part thereof, within the period herein prescribed, or in case the Common Council be dissatisfied with the manner in which the works are being executed, the Council shall have the right to annul the contract, without putting the contractor in default, in the manner indicated in article 1905 of the Civil Code, and without applying to a court of justice to annul the same, and without indemnity; and in case the contractors shall at any time abandon the works, or fail or refuse to finish and complete the same in conformity with his contract, ho shall forfeit all claims for indemnity for the work done by him up to the date of abandonment, and the City of Jefferson shall thereby be discharged from any and all liabilities therefor; and in case either of such annulment or of such abandonment, the City of Jefferson shall have the right to resell the privilege and right of way at the risk of the contractor and his securities in solido.'1’’

It is apparent that this section confers no right to resell anything but a right of way and privilege. The phraseology, and especially the use of the word resell, would indicate that the city, in case of annulment, was to reconvey to some purchaser what by the original contract it had conveyed to Kaiser. So that it seems preposterous for Young to claim that under this clause the city could sell him mules, cars, railroad iron, stables, harness, and even money in the “change boxes,” when the clause itself refers only to a resale of an incorporeal right granted to Kaiser in 1861.

But waiving this point, as of but partial application, we are satisfied from the testimony that the road was fairly completed on the first January, 1866, and that from that moment the section quoted, having fulfilled its coercive purpose, ceased to have any further force. Whether the parties owning the road continued to keep it in good repair, whether they had their cars properly lighted, whether they ran their cars regularly and with proper speed, are questions which have ■nothing to do with this case. Delinquencies of this sort are provided for by other penalties in the contract than annulment and sale.

The jury gave a verdict in favor of the Magazine Street Railroad, and we think it a just one.

Judgment affirmed.


text:
    No. 2460.
    Mary McDougal Williams, Wife of William Von Phul, v. Succession of A. A. Williams.
    The act of Congress, approved March 2, 1867, which authorizes the transfer of causes, under certain circumstances, from the State courts to the focloral courts, can only ho invoiced hy the plaintiff or defendant in the cause. It can not he invoiced hy an. intervenor who voluntarily makes himself a party to the suit. $for will the transfer he allowed if it he made for the first time hy the plaintiff or defondant in the appellato court of the State. Such applications to transfer causes from one jurisdiction to another, should he made before the cause was tried in the court of the first instance.
    APPEAL from the Second District Court, parisli of Orleans. Muvigneaud, J.

      Mays <& New and Campbell, Bpofford c6 Campbell, for .appellant. M. J. Ch'over, for appellee.
   Taliaferro, J.

Alfred A. Williams died in September, 3863, and bis wife in 1854. He became tutor to bis three minor children, of whom the plaintiff, now the wife, of Yon Phul, was one. She sues the -estate for $71,571, with five per cent, interest from first of March, 1863, being, as she alleges, for property and money derived by inheritance and donations, and which her father as tutor received and never accounted for. She avers that no inventory of her property when a minor was over made by her tutor, and that he failed to present •accounts of his administration of her property.

The dative testamentary executor, himself a coheir with the plaintiff, and another to the succession of their common father, admits that the plaintiff has rights and valid claims against the estate, but says the extent and amount of the same are unascertained and unliquidated; and for the purpose of a legal adjustment thereof, he denies the allegations of the plaintiff’s petition and requires proof.

An intervention was filed by Yernon K. Stevenson, a judgment creditor of the estate for $74,000; Joseph A. Cassat for $9500 by note, .and N. King Knox for a claim of $10,601. They contest the claims of the plaintiff as illegal, and deny that she has a legal mortgage on the property of the estate.

The plaintiff had judgment in her favor in the court below for $88,845 87, with five per cent, interest from first of September, 1863, on the sum of $87,012 54, and eight per cent, interest from twelfth of August, 1868, on the sum of $1833 33i. The intervention of Stevenson and that of Knox were dismissed; the judgment set up by Stevenson was decreed null and without effect. Prom this judgment the intervenor, Stevenson, alone has appealed.

In this court the appellant has filed his affidavit under the provisions of the act of Congress, approved second March, 1867, entitled “An act to amend an act entitled an act for the removal of causes in certain cases from State courts,” approved July 27, 1866, he being a citizen of New York. I-Ie declares that “ from prejudice and local influence helms reason to believe, and does really believe, he will not be able to obtain justice in the Supreme Court.” He tenders his bond with security, as required by the statute referred to, and prays for the removal of this cause, so far as he is a party and interested therein, to-the Circuit Court of the United States for this district.

This court being exclusively appellate in its jurisdiction, is confined, to the consideration of appeals taken from final judgments rendered, by the inferior courts of the State, except in cases of interlocutory decrees calculated to work irreparable injury. The appellant, if the attitude he occupies in this litigation entitles him to the benefit of the act of Congress referred to, having failed to interpose his right to have the same transferred before the final judgment in the case was rendered by the State tribunal from which he appeals, we think he can not now invoke the aid of the law of Congress. That act provides for the transfer of causes “at any time before the final hearing or trial of the suit.” This right, too, seems to be restricted to cases where a citizen of another State than that in which the suit is brought is either plaintiff or defendant. The appellant in the case before us is-neither plaintiff nor defendant. He is an intervenor, voluntarily making himself a party in a suit between citizens of the same State,, the result of which could *in no wise have affected his rights had he kept aloof from the controversy. He chose to run the chances of obtaining- a judgment in his favor in a-State court, and failing- in that, he seeks for better fortune in another tribunal, which is incompetent to revise the judgment appealed from, and which is without jurisdiction ralione personal of the original parties to the suit. We conclude, therefore, that he has no right to claim a transfer of the cause, and his application is therefore -refused.

On the merits we find no error in the judgment. The notes on which'the appellant’s large claim is founded were proved to have been. given for a loan of Confederate money. It was also established that at the time the loan was made and the contract entered into, Stevenson lived in Nashville, Tennessee, then within the Federal lines, and that Williams, who gave the notes, lived in Louisiana. The plaintiff appears to have established with sufficient certainty her claims against the succession, and they were properly allowed.

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