author: Watkins, J. Miller, J. Nicholls, O. J. Bbbaux, J.

text:
    No. 12,110.
    State of Louisiana ex rel. Charles A. Butler, District-Attorney, vs. Honorable J. H. Ferguson, Judge of the Criminal District Court, Section “A.”
    The respondent judge having granted an order of appeal in favor of the defendant,. returnable to this court -within ten days, from a decree disallowing a change of venue: Held, that certiorari is not the proper mode of testing the legality of such order.
    That writ can not be employed as a substitute for a motion to dismiss an appeal.
    The orderly and proper course to be pursued is to await action in this court on the appeal.

      Miller, concurring. — The relator, alleging that the accused is allowed no appeal-from interlocutory orders, asks for writs of certiorari and mandamus to set aside an appeal grant the accused from the judgment refusing him a change of venue, the appeal beingreturnable in ten days now on the point of expiration; with the prompt and complete remedy of the motion to dismiss the appeal available to the relator, there is, in my opinion, neither warrant nor necessity in this case to substitute for that well defined remedy the exercise of our supervisory jurisdiction. Constitution, Arts. 81,90. State vs. Hornsby, 8Rob. 362.
    Nicholls. G. J*.,; Breaux, J., dissenting.

    QN APPLICATION for Writs of Mandamus and Certiorari.

      M. J. Cunningham, Attorney General, and Charles A. Butler, District Attorney, for Relator.
    Respondent Judge in propria persona.

    Submitted on briefs March 25, 1896.
    Opinion handed down March 27, 1896.
   Tbe opinion of the court was delivered by

Watkins, J.

Alleging that in a criminal case pending in his court,, the respondent granted an order of suspensive appeal in favor of the defendant, returnable to this court within ten days, from a decree disallowing a change of venue; and averring said decree to be-absolutely null and void, the relator prays for certiorari to bring up the record from the respondent’s court, to the end that the proceedings may be examined and declared absolutely illegal and void; and Jor mandamus to compel the respondent to proceed with the trial of the aforesaid cause.

The principal question we have to examine and decide is, whether relator is entitled to relief by- certiorari; the mandamus is subsidiary thereto, and can not be made'effectual without the illegality of the proceedings is first ascertained and decided.

In the brief of relator no authority is cited in support of relief by •certiorari; consequently, we must make an examination of authority for ourselves.

The province of certiorari is to bring up to this court “a copy of proceedings in a suit pending (in the court of the respondent) to the end that their validity may be ascertained” (C. P. 855) ; and “ finding that the proceedings are regular, * * * it shall dissolve the order it has issued.” C. P. 865.

In State ex rel. Matranga vs. Judge, 42 An. 1089, this court interpreted the relief that is afforded by this writ thus:

Certiorari has never been employed to inquire into the correctness of the judgment rendered where the forms of law have been followed and where the court has jurisdiction, and was, therefore, •competent.

“Hence it has been held that the supervisory jurisdiction of this •court under certiorari must be restricted to an examination into the ■external validity of the proceedings held in the lower court.

“It can not be exercised to review the judgment as to intrinsic •correctness, either on the law or on the facts of the case.

“The supervisory power of this court must not be confounded with its appellate jurisdiction.”

And to the same effect are the following cases: State ex rel. Valeton vs. Skinner, 33 An. 257; State ex rel. Gooch vs. Justice, 38 An. 968.

In State ex rel. Block vs. Judge, 41 An. 179, the court said:

“The remedy (by certiorari'), it has been freqently held, can be invoked only to ascertain the validity of the proceedings before an inferior court on the face of the papers, and never to inquire into the ■correctness of decisions, whether interlocutory or definitive, made in •the case.

“Were it otherwise, all cases which are not not now appealable could be reviewed effectually by the superior court as if they were appealable; and so every judgment rendered by justices of the peace and by District Courts, from which no appeal lies, could be taken to this court and reviewed on their merits, and the judgment annulled or affirmed,” etc.

In State ex rel. Chandler vs. Judge, 43 An. 826, we said:

“ The supervisory jurisdiction of this court must not be confounded with its appellate jurisdiction. Proceedings (by certiorari) have for their object to ascertain, not the correctness of a judgment, but the validity of the proceedings in the inferior court, on the face of the. papers.”

In the earlier decisions of this court which were rendered soon after the adoption of the present Constitution, Art. 90 of which confers upon this court “ general supervision over all inferior courts,” are fouud much the same expressions as those we have cited above.

For instance, in State ex rel. Wintz vs. Judge, 32 An. 1225, the court used this language, viz.:

“The Constitution intended that our supervisory jurisdiction should be distinct, in nature as well as in name, from our appellate jurisdiction.

“ The former was intended simply to enable us to compel inferior courts to perform their functions, to prevent them from exceeding the bounds of their jurisdiction, and to enforce observance of that regularity in their proceedings which is essential to fairness in the conduct of contradictory litigation.

“Mere error in the decision of questions properly submitted to their determination, and regularly determined, can only be corrected in the exercise of a jurisdiction purely appellate.’’'’

That decision was examined and approved in State ex rel. Patton vs. Judge, 40 An. 393.

In State ex rel. Weber vs. Judge, 32 An. 1092, the court said:

“ A certiorari should not be granted when there exists a remedy by appeal.”

In State ex rel. Unbehagen vs. Justice, 35 An. 365, it was held that this court, “ in the exercise of its supervisory powers over inferior courts, will not transform itself into a court of appeal for the revision of the rulings of such courts.”

In State ex rel. Insurance Company vs. Judges, 36 An. 316, the court said:

For this court (by means of certiorari') to undertake to revise (a) judgment would be to exercise a purely appellate jurisdiction which, :in such matters, we have uniformly declined to do.”

In State ex rel. Race vs. Judges, 37 An. 120, the court said:

Certiorari issues only to test the validity of proceedings, and not the correctness of judgments by courts of competent jurisdiction. It serves to pass upon questions of form, and not of substance.” State ex rel. Wood vs. Judge, 38 An. 377.

In State ex rel. Chandler vs. Judge, 44 An. 567, we said:

“ Writs of certiorari can not be allowed in appealable case to reverse interlocutory decrees rendered therein. Such decrees may be revised and corrected on appeal.”

The most recent expressions of opinion by this court are of similar import. State ex rel. Liggins vs. Judge, 47 An. 1022; State ex rel. Bassetti vs. Judge, 44 An. 1093; State ex rel. Morere vs. Judge, 44 An. 1100; State ex rel. Waller vs. Justice, 47 An. 27; State ex rel. Evershed vs. Judges, 47 An. 180; State ex rel. Manning vs. Justice, 47 An. 1085.

A very careful examination of the decisions of the court embracing a period of fiften years, clearly indicates its determination to adhere to the terms of the Oode of Practice which define the scope and province of the writ of certiorari; for it provides that this writ is granted only “in cases where the suit is to. be decided in the last resort, and where there is no appeal by means of which, proceedings .,absolutely void might be set aside.’’ C. P. 857.

Consequently, this court can not exercise a jurisdiction by cer-tiorari over the respondent’s decree, because full relief can be .afforded relator on appeal.

It is of the respondent’s order of appeal of which the relator complains; and, as in the due course of proceedings, the transcript will be on file in this court within ten days thereafter, it will be in order ■for him to lodge a motion to dismiss the appeal upon the grounds ■stated in his petition. Indeed the relator informed this court upon the date of submission that the transcript of appeal had already been prepared by the clerk of court and was in readiness to be filed.

There can not be the least doubt of the rule of practice being, that the regularity and legality of an appeal must be determined by the ■appellate tribunal acting in the exercise o£ its appellate jurisdiction, and in the cause on appeal.

This is the law and the jurisprudence, as well. This identical question was examined and decided in State ex rel City vs. Judge, 45 An. 950, wherein the respondent made return that he had granted the .appeal (complained of) under and in conformity to the provisions of Art. 571 of the Code of Practice, as he was bound to do.

“ That this court had jurisdiction of the parties and of the subject matter of the suit. That the appeal had been perfected, and that his action is not open to review by certiorari.

“He further shows that certiorari can not be substituted fora motion to dismiss the appeal in question antecedent to the return •day thereof.”

And upon due consideration of the record in which the appeal was taken and the statement of the respondent judge in his return, we •said: “There is no escape from the conclusive force of the reasons assigned by the respondent judge.

“The only purpose of the writ is to test the validity of the proceedings. C. P. 855, 857.

“The case brought up is an appealable one, and the relator’s complaint is that it has been appealed to this court, but improperly.

“The orderly and proper course for relator to have pursued was to await action in this court on the appeal. It has mistaken its ■remedy.”

That opinion forcibly presents the same issues which relator has raised herein. He has offered the writ of certiorari as a substitute for a motion to dismiss an appeal, before the transcript has been filed or the return day has arrived, contradictorily with the judge alone, and in the absence of the appellant.

And in respect to the remedy by appeal we find the controlling principle nowhere more correctly or accurately stated than in State ex rel. Meaux vs. Judge, 47 An. 950, in which Justice Miller, speaking for the court, said: “On a question of the right of appeal, we think the doubt should be resolved in favor of the appeal, especially ■as on the development of the case the court can dismiss the appeal if it is manifest there is no jurisdiction.”

It is manifest that this course can not receive the approval of this •court.

Once establish the rule that under a writ of certiorari the legality of an order of appeal is intrinsically examinable, and this court-would heap upon itself a mass of litigation it would be wholly ineap - able of dealing with. To thus hold would be a departure from our well-established jurisprudence, and at variance with the precepts of the Code of Practice.

Some reference has been made to the case of State ex rel. Brouillette vs. Judge, 45 An. 244, as announcing a contrary principle; but this is an erroneous supposition.

The opinion says:

“Ordinarily we exercise such (supervisory) jurisdiction only in-unappealable cases, leaving errors committed hi appealable oases to-be corrected in the ordinary course on appeal.

“ But in the instant case it can not be determined whether they are appealable or not until after trial and sentence.”

Reference is also made to the case of State ex rel. Rocchi vs. Judge, 45 An. 532; but it is sufficient answer to say that the case stated only involved fifty-nine dollars and sixty-five cents, and was not, consequently, appealable to this court; and hence, the only remedy was-by certiorari. State ex rel. DeBuys vs. Judges, 32 An. 1256.

On thorough examination of all the decisions of this court with regard to relief .by certiorari, we are satisfied that relator is entitled to no relief in the present form of action.

It is therefore ordered and decreed that the provisional order herein rendered be set aside, and relator’s demand be rejected at his • cost.

Conoubring- Opinion.

Miller, J.

In my opinion the remedy to dismiss the appeal' granted by a lower court when none is allowed by law, is the motion-to dismiss. Such motion is determined' without oral discussion, ad - mits of speedy decision and gives complete relief. This remedy is, I think, to be deemed settled, and is of constant application in criminal as well as civil cases. In the leading case of Hornsby, where the-question discussed was the power of the court to give the accused an appeal from an interlocutory decree overruling his pleas in bar, the court suggested the motion to dismiss would have been sustained if made. State vs. Kennedy, 8 Rob. 590.

With this remedy available to the State, there is, in my opinion, no reason or warrant for interposing our supervisory jurisdiction conferred for other purposes and limited to such purposes by the uniform jurisprudence of this court.

I concur in the opinion of Mr. Justice Watkins.

Dissenting Opinions.

Nicholls, O. J.

While the framers of the Constitution in dealing with the powers of this court fixed its appellate jurisdiction with extreme care, limiting and controlling it within minutely defined boundaries, they, for reasons which to them were deemed sufficient, placed no restrictions whatever upon its supervisory jurisdiction over inferior courts. A broader and more comprehensive grant of power could not well be imagined. When the court as organized under the present Constitution met, thus invested with plenary authority over the subject, it found itself confronted with the danger of being overwhelmed by applications from suitors from every tribunal in the State calling and seeking for relief for supposed wrongs received at the hands of the inferior courts. Self-protection suggested that the court should map out some course of conduct by which, while exercising its powers, it should do so - on certain general lines.

The court therefore through Mr. Justice Levy as its organ announced its intention so to do in the case of State ex rel. Sinnott vs. Falls, 32 An. 555. In reference to Art. 90 of the Constitution conferring supervisory control on the Supreme Court over inferior courts it said: “ It gives control and general supervision over all inferior courts and grants the power to issue certain writs without any-qualification or limitation limiting the exercise of that power to eases, in which it may have appellate jurisdiction. The use of this power-must then be regulated¡by the discretion of the court, and here it maybe well to remark that we think the control and general supervision over inferior courts addressed to our sound discretion should be most carefully administered and exercised only in cases where there is a flagrant usurpation of authority or where serious injury may accrue to parties to whom no other remedies are afforded or where the intermediate courts are without power to grant relief. Under such circumstances alone will this court be' disposed to use this discretionary power.”

In the case of State ex rel. Pugh vs. Judge, 33 An. 1390, the court spoke approvingly of the reservation made in the Sinnott case of its power in dealing with exceptional cases, saying: “ We prudently made an express reserve of cases in which urgent considerations of public policy might demand our interference.” In State ex rel. Murray, 36 An. 578, this court said: “ In the exercise of the supervisory powers vested in this court by the present Constitution, relief can be allowed in cases of denial of justice in which, under previous Constitutions, none could be awarded. The writ (mandamus) may issue at the discretion of the court, where the law has assigned no adequate relief by the ordinary means, and where justice and reason require that some mode should exist of redressing a wrong or an abuse of any nature. Also, even where a party has some other means of relief, if the slowness of ordinary legal forms is likely to produce such' a delay that the administration of justice may suffer.” In the body of the opinion the court said: “ So that if there be a remedy, it is not an adequate one, and if a party entitled to an injunction is refused the same he remains with a right without a remedy, at the mercy of a District Judge, unless the court can interfere and relieve him from the effect of a denial of justice.” In that particular case the court said: “ No doubt an appeal lies, but if termed suspensive, it is barren of effect.” * * * “It does not follow, however,” said the court, “ that because this court has such power to interpose its authority in cases of emergency and denials of justice, it will thus interfere whatever be the case presented. It will issue the writ in its discretion according to the exceptional .features of each case presented.”

The court has never gone so far in adopting a general line of conduct as to say that it looked to the articles of the Code of Practice either for the source of its powers or for limitations upon these powers. It has simply utilized and referred to particular articles of the Code of Practice as furnishing safe, conservative guides for its general action. The court has, on the contrary, recognized its absolute power over the whole subject matter. It has acted or refused to act as individual cases were submitted to it, or as they called or did not call, in the exercise of discretion under an unquestionable power, for exceptional relief There will be no difficulty whatever in producing to this court decision after decision of its own that it will not grant relief under its supervisory powers unless the applicant has exhausted his legal remedies in the lower court — that it will not grant relief if the party has a remedy by appeal; but these d icisions are nothing more than announcements in the particular cases that they presented no special features under or through which to invoke a departure by the court from its general line of conduct. • One of the ■troubles of its adopting such a general course is that in the progress of time the various decisions are supposed to crystalize substantially ■intolaws absolutely and inflexibly controlling the court in its action. Already we hear it said that if such or such a decision were rendered it would overturn the jurisprudence of the State, and so, decisions rendered under a system adopted simply to furnish suitable rules for the orderly administration of justice and for safeguarding the court against being overwhelmed with unreasonable applications have come to be regarded as absolutely tieing the hands of the court in proper cases. I think it not ■only proper but necessary that this court should from time to time ■exert this power of reserved action lest suitors and judges should, under these discretionary decisions of the court, successfully come to ■be able to work wrong and injury without adequate prompt remedy. My views on this subject I announced almost immediately after I ■came upon the bench. They will be found declared in the cases of State ex rel. Rocchi vs. Judge, 45 An. 544; 46 An. 164; State ex rel. Lehman vs. Judge et al. I am fixed in the opinion that this court should, uutrammeled by mere discretionary precedents of its own, be left free to carry out and enforce in exceptional cases its power and duty of keeping inferior tribunals not only inside of their jurisdiction, but from abdicating their jurisdiction. The question here is not •as to the correctness or incorrectness of the judge’s judgment or ruling touching a change of venue — that question can not possibly be reached or be determined by us on a separate substantive appeal from it by detaching it from its proper place as part of the proceedings in which it was made and by attempting to bring a criminal action piecemeal before us. The question before us is as to the order ■of appeal itself. There is no appeal by the State from that order. Unless the State can be relieved through this court it has forcibly to stay all proceedings until the appeal can be brought up and ■the appeal dismissed. All that a suitor seeking time would have to do, under such a practice as this, would be just on the eve of trial to take some motion in the case, have it overruled, appeal from it suspensively and force the case over without a remedy on the part ■of the State to the next term of the court or possibly longer. The right of the State to ask a dismissal of the appeal when the appeal should come up is not an adequate remedy. Before the case could be brought up and disposed of it might have lost its place on the docket, and it would have on account of an appeal to be indefinitely postponed. The State can not be forced into such a position through a clear, illegal and “flagrant” not “assumption of,” but “ abdication of ” jurisdiction by the District Jndge.

There is and could possibly be no difference of opinion among the members of this court as to the power of this court to entertain jurisdiction to review, as a matter of separata appeal, an order of a District Judge overruling temporarily an application for a change of venue with a right reserved to renew the application later. That proposition is outside of the range of debate. If this court is without power to take jurisdiction, the court below was powerless to abdicate jurisdiction. The case of the State vs. Maurice J. Hart is now, in spite of the order of appeal, pending in the Criminal District Court. An absolutely null order is supposed by the judge to stand in the way of a trial — and will have that effect unless brushed away. The State has asked us to do so, as the District Judge declares he is unable to do so, on the ground that the order vested this court with jurisdiction. That position is totally unfounded. We have no jurisdiction. The Criminal District Court has, and should be made to proceed. State ex rel. Chism & Boyd vs. Judge, 34 An. 1177. Weexercised our discretionary power of supervising control in the State ex rel. Bruilette vs. Judge, 45 An. 243. One single exercise of that power completely overturns the theory predicated upon our being inflexibly controlled by precedents of our own. I repeat here what I said in the Rocchi case that though the error of the District Judge may have been an error of judgment, it was not one of such a character as that which is referred to in the general use of that term as applied to prohibition, certiorari and mandamus, and as not forming properly matters for correction through those remedies. The error here is not in respect to the regularity of the proceeding or the facts of the case, but as to the power of the court — an error on that point I think it is our duty to rectify. * * * One of the principal reasons for granting this court supervisory control was to settle questions involving the power and jurisdiction of courts.” I am not called on to know what effect this particular order of appeal will have upon a prompt trial of the ease in the District Oourt. The District Attorney evidently thought it would work improper delay; had he not thought so he would not have invoked our powers. It is enough for me to know that the State has asked at our hands that an absolutely null order which blocks and stays all proceedings below until set aside should be, at once, disposed of and the case be permitted to take its legal and proper course.

I think the relief asked for should be accorded.

Bbbaux, J.

The defendant applied for a change of venue; after a legal hearing before the court, presided over by the respondent. The application was not granted; the court, in the order refusing to grant the change of venue, reserved to defendant the right to renew his motion on the examination' of jurors upon their voir dire.

The ease was assigned for trial. The defendant moved for an appeal from the order denying a change of venue.

The motion was granted.

The relator prays for an order directing the trial j udge to .vacate the order of appeal and reinstate the case.

The respondent returns that the order of appeal was lawful, and that he is divested of jurisdiction for the time being; chat his action is not reviewable in the proceedings here; that the facts and the law on the application for a change of venue arereviewable, and if he has committed an error the remedy is by motion to dismiss the appeal.

With reference to the first ground:

I agree, in a criminal case, the proceedings in the court of the first instance are superseded and arrested for the time being, but must add by an order of appeal, though it may be voidable.

But if the order is absolutely null and void it should not have the effect of bringing the court to a standstill until the case is reach ed on appeal.

The questions are, in the first place, is the order void; in the second place, is the remedy to set it aside within the supervisory jurisdiction of this court?

The following precedents are pertinent and affirmatively answer the first question:

“On general principles, an appeal from an interlocutory order or judgment in criminal matters does not lie.”

“ An appeal in criminal matters is regulated by the common law rules of practice, except when modified by our own statutes, and1 the common law practice in criminal trials does not know such a proceeding as an appeal from an order (or judgment, if you will)' overruling a plea which does not determine the case.” State vs. Wilkins, 37 An. 62.

Again, the right of appeal in a criminal case arises after verdict' and sentence, and not from questions not disposing of the merits of the cause. Ex parte Mitchell, 1 An. 413; State vs. May, 9 An. 69; State vs. Pratt, 9 An. 157; State vs. Johnson, 36 An. 306.

In State ex rel. Cook vs. Keeper, 15 An. 347, the question is treated as jurisdictional, and it was held that there must be a final judgment before an appeal can be taken.

Mr. Wharton, under Sec. 775 of his book on Criminal Pleading, of “ error” says: “It does not lie till after judgment. It is essential to the just administration of penal law.”

The purpose of the order of appeal is to enable one to obtain a. hearing before the court of appeals. When it is manifest that under no circumstances the court has jurisdiction it must follow that the order granting the appeal is absolutely null.

It is obvious that under the law and in accordance with the authorities, this application on appeal can not be heard at the period in the proceedings at which the order was granted.

A motion for the want of jurisdiction may be made at any time for the reason that the proceedings in that case are absolutely null.

If this court is without jurisdiction the order of appeal should not hinder and obstruct the jurisdiction of the court of the first instance.

“Cases may be supposed in which a remedy (mandamus) would be proper and warranted by analogy. Some instances are mentioned in the cases cited, as where a judicial tribunal declines taking cognizance of a case within its proper jurisdiction.” Moses on Mandamus, p. 51.

Having thus concluded in regard to the nullity of the order of appeal, the second question arises, can the remaining issue be determined by this court under its supervisory powers?

At the time that, to this court, was given the “ control and general supervision over all inferior courts ” it had been settled, at common law, that if anything occurred in the proceedings of the court of the first instance “differing from the regular course of the common law ” the writ of certiorari was a remedy.

Shortly after the present Oonstitution had been adopted, in regard to the functions of that writ and of the writ of mandamus the interpretation was, as I appreciate, in accord with the common law.

From State ex rel. Pugh vs. Judge, 33 An. 1381-1391, I quote: “It issues at the discretion of the court, even where the party has other means of relief.” See also State ex rel. Judge, 32 An. 549, 552; State ex rel. Murray vs. Judge, 36 An. 578, 583; State ex rel. Lehman vs. Judge, 46 An. 175.

In the case of the State ex rel. Brouillette vs. Judge, 45 An. 243, the District Court had granted a change of venue. This court annulled the order and reinstated the case; although there was a possibility of a hearing on appeal from the sentence or of a hearing in the exercise of our supervisory control if the sentence had been for less than the appellate amouut.

The relator was not compelled to resort to an appeal; his grounds of nullity of the order changing the venue were considered and relief granted in the exercise of the supervisory jurisdiction of this court.

The State should not be forced to await the action of an appellant in order that it may have opportunity to have declared null an order which is absolutely null.

I therefore dissent.


source: Caselaw Access Project

author: Wateins, J.

license: Public Domain

text:
    No. 12,091.
    John E. Naghten vs. His Wife.
    A motion to dismiss, on the ground of imperfections in the order and "bond of appeal must be filed within three judicial days after the transcript has been filed; but when the transcript shows that an amuont is involved which is below the lower limit of our jurisdiction, it is our plain duty to dismiss the appeal eosproprio motu.

    APPEAL from the Oivil District Oourt for the Parish of Orleans. Théard, J.

      Dinkelspiel & Hart for Plaintiff, Defendant in Rule, Appellant.

      W. S. Benedict for Defendant, Plaintiff in Rule for Alimony, Ap-pellee.

      Submitted on briefs April 9, 1896.
    Opinion handed down April 20, 1896.
   On Motion to Dismiss.

The opinion of the court was delivered by

Wateins, J.

Counsel for the defendant as appellee moves for the dismissal of the plaintiff’s appeal, on the ground that the bond for a suspensive appeal was not filed within the delay required by law — there being no order, in the alternative, for a devolutive appeal.

The suit is one of divorce, and plaintiff is appellant from an interlocutory decree making defendant’s rule for alimony absolute. It was signed on the 10th of January, 1896, and the order of appeal was granted on the 26th of February. 1896 — the appeal bond being filed on the 27th of that month.

The order of appeal is couched in the following language, to-wit:

“ It is ordered by the court that a suspensive appeal from said judgment be allowed to mover, returnable to the Honorable the Supreme Oourt, * * * on the first Monday of March, 1896, upon his furnishing bond in the sum of one thousand dollars, conditioned according to law.”

Counsel for appellant attracts our attention to the fact that, as appellee’s motion to dismiss his appeal is grounded upon an alleged informality of the order of appeal, mainly, it should have been filed in this court within three judicial days after the transcript was filed; and that the transcript was filed on the 9th of March, 1896, and the motion to dismiss was only filed on the 81st of that month, it came too late—citing Webb vs. Keller, 39 An. 35, and authorities therein referred to.

In O’Reilly vs. McLeod, 2 An. 138, the court said:

'“Amotion is made to dismiss, on the ground of informality in the order of appeal, and the appeal bond. It comes too late. It should have been made within three days after the record was filed. Murray vs. Bacon, 7 N. S. 271; Hall vs. Nevill, 3 An. 326; Mitchell vs. Lay, 4 An. 514; Temple vs. Marshall, 11 An. 613; Creevy vs. Breedlove, 12 An. 745; Dumonchel vs. Lenerick, 21 An. 20; Murrison vs. Seiler, 22 An. 327; Kohn vs. Davidson, 23 An. 467.

And there are many other cases of like import. Vide C. P. 886. (Garland) and authorities.

It is evident that appellee’s motion came too late; it must, there-lore, be denied.

But there is another ground on which we feel compelled to dismiss the appeal ez proprio motu; and it is because the amount in dispute is below the lower limit of this court’s jurisdiction.

.Plaintiff’s petition was filed on the 7th of September, 1895, and in the respondent’s answer she demands an allowance as alimony at the rate of one hundred dollars per month to date from the time of the institution of this suit; and upon the trial of defendant’s rule for alimony pendente lite, the judge a quo gave her judgment for thirty-five dollars per month from January 21, 1896, his decree bearing date from January 14, 1896.

It is thus evident that, at the date plaintiff obtained his order of appeal, less than one hundred dollars was recoverable thereunder; and, that as the amount can not be increased, in the absence of an answer and prayer for an amendment of the judgment appealed from, this court has no appellate jurisdiction.

The question was decided and definitely settled in Imhof vs. Imhof, 47 An. 706; and we feel bound to maintain the ground of our decision, and dismiss the appeal ex proprio motu, this cause having been submitted upon the plaintiff’s motion to dismiss, and upon the merits, thus enabling us to examine the transcript.

Appeal dismissed.


author: McEnery, J.

text:
    No. 11,940.
    Marion B. Monroe vs. His Creditors.
    The Supreme Court will not disturb the verdict of a jury on a question of fact in acquitting an insolvent debtor of fraud. To remand the case because the appellate court might differ from the jury on a question of fact would be, as stated in 7 An. 25$, trenching too far upon the humane principle that no man should be tried twice for the same offence. 44 An. 11.
    APPEAL from the Civil District Court for the Parish of Orleans. Bightor, J.

    A. B. Philips for Petitioner.

      Merrick & Merrick and George G. Walshc for Opponents, Appellants»
    Argued and submitted March 12, 1896.
    Opinion handed down March 28, 1896.
    Rehearing refused April 20, 1896.
   The opinion of the court was delivered by

McEnery, J.

Marion B. Monroe made a surrender of hi» effects to his creditors. His debts were large and the assets insignificant.

At a meeting of his creditors, a majority in amount and in num-bér voted for his discharge. Several creditors filed oppositions,, contesting the indebtedness of some of the creditors, and alleged that the insolvent had been guilty of fraud in not surrendering certain immovables in the name of his wife, which they alleged were community property, and that he • had made false statements to his-creditors in order to secure credit, particularly that he had stated to-them that the property in the name of the wife was community property. The property was purchased by the wife on October 14, 1891, and in the deed it is recited that the price was paid with her separate and paraphernal funds. In the opposition of the H. WestonLumber Company the wife was cited, and the prayer was that there be judgment against her and the insolvent, decreeing the property to belong to the husband, and,'that it be surrendered and sold for the benefit of the creditors. There was a trial by jury and the verdict was that insolvent had been guilty of no intention of fraud; but added, we refuse his discharge under insolvent proceedings.

On motion of the attorney for the insolvent, the latter part of the verdict was stricken from it, and the insolvent discharged.

The creditors, and not the jury, say whether or not the insolvent shall be discharged, and the refusal to grant the discharge by the jury was surplusage.

We can not disturb the judgment of the jury in acquitting the defendant of fraud. To remand the case because we might differ from the jury on a question of fact would be, as stated in case of Thompson vs. Chapman, 7 An. 258-59, trenching too much upon the humane principle that no man should be tried twice for the same offence, having been acquitted after a fair trial of the facts charged by a jury of bis country. These views were affirmed in case of Burdeau vs. Creditors, 44 An. 11. There are no errors of law alleged in the course of the trial that would .-justify the setting aside-of the verdict and the remanding of the ease.

The jury returned as their verdict that the property belonged to-the wife, and we think the verdict justified by the evidence.

Judgment affirmed.


author: McEnery J.

text:
    No. 12,109.
    State of Louisiana vs. Zander Wren and Y. F. Harville.
    Kindred offences, generic in kind, growing out of the same transaction, may be-charged in the same indictment, provided they be incorporated in separate counts.
    The'State does not waive the right to peremptorily challenge a juror after he has-been examined and turned over to the defence. It is within the discretion of the trial judge to allow a peremptory challenge after the juror has been sworn..
    It is sufficient in an indictment, to negative prescription, to aver that the crime-was never made known to any officer of the State of Louisiana qualified and authorized to direct a prosecution.
    APPEAL from the Ninth Judicial District Court for the Parish of' Red River. Sail, J.

      M. J. Cunningham, Attorney General, and J. B. Lee, District Attorney, for Plaintiff, Appellee.

      James F. Pierson and J. C, Egan, Sr., for Defendants, Appellants..
    Argued and submitted March 28, 1896.
    Opinion handed down April 6, 1896.
   The opinion of the court was delivered by

McEnery J.

The defendants were charged in an information with' the larcenyof four sows and fourteen pigs, and also with altering the marks of the four sows with the intent to steal the same.

The first count charged the larceny, and the second the marking, with the intent to steal. The larceny and the marking are alleged in. the indictment to have occurred at the same time. The defendants were convicted under the second count. A motion to quash was filed, because the information charged the defendants with the commission of separate and distinct crimes covering different and ■separate transactions; second, the information charges different and ■separate felonies in one and the same count; that the punishment is different in one count in the information from the charge in the other ■count of the information.

They are kindred offences and grew out of the same act. They belong to the same generic class, and the rule is that such offences may be charged in the same indictment provided they be incorporated in separate counts. State vs. John Cook, 42 An. 85.

The two offences are charged in separate counts, and this meets ’both the first and second objections. The punishment being different ■does not prevent the offences being charged as in this information. That the punishment is similar and the offences generic and grew out ■of the same transaction is a sufficient compliance with the law.

In the case of State vs. Crosby and State vs. McLane, 4 An. 434, 435, it was held that a count for larceny may be joined in the same ■indictment with one for receiving stolen goods, the court stating “that it is no objection to the validity of an indictment that sev■eral offences of the same nature, and upon which the same or a ■similar judgment maybe given, are charged in different counts.”

In the brief of defendants it is stated that when the motion to quash was overruled the defendants understood that they were being prosecuted for a single transaction, the counts in the information covering but this one transaction, and that they were compelled to answer to an information in which the two counts referred to were distinct and separate transactions at different times. On this point we were without authority to review the facts, and we are confined to the averments on the face of the indictments. We find no bill of exception in- the record to the admissibility of testimony, showing a different transaction from that charged in the information.

A iuror, after having been examined as to his qualifications, was accepted by the State. The defendants also accepted the juror after examining him. The State then peremptorily challenged the juror, which was sustained. The juror was challenged before the oath was administered. The State did not waive the right to challenge the juror when he was turned over to the defence. Besides, is discretionary with tbe court to allow a peremptory challenge after the oath has been administered. State vs. Roland, 38 An. 18.

A plea of prescription was filed to the prosecution.

It is alleged by the defendants that the negative averments in the indictment should include every fact which would show that the knowledge of the crime had not been brought to any officer having the authority to investigate and to prosecute. The information alleges that “said crime was never brought to the knowledge of any officer of the State of Louisiana, qualified and authorized to direct a prosecution, until the second day of October, 1895.” This averment was sufficient to- take the prosecution without the prescriptible time.

In case of State vs. Hanks, 38 An. 469, the language employed in Sec. 986, Revised Statutes, was interpreted to mean that “no person shall be prosecuted for an offence unless indicted within a year after it was denounced to the public officer.”

The averments in the information come within this interpretation. There is nothing in the motion for a new trial that calls for our ruling. The matters alleged are those which were urged during the trial, and were facts which went to the jury.

Judgment affirmed.


author: McEnbry, J.

text:
    No. 11,915.
    Hiddleston Kenner vs. Jos. Weill et als.
    where a plaintiff in reconvention sets up title and claims possession, and the defendant in the reeonventional demand answers the intervention, denying ownership and possession, these latter demands are eliminated from the suit, and the only matter in dispute is the amount of rent claimed from the defendant while in possession.
    APPEAL from the' Oivil District Court for the Parish of Orleans. King, J.

    Plaintiff,- Appellant, in propria persona

    cites 34 An. 325; 46 An; 484; 13 An. 295; 7 An. 70; 5 La. 356.

      Farrar, Jonas & Kruttschnitt for Defendants, Appellees.

      Argued and submitted February 15, 1896.
    Opinion handed down March 9, 1896.
    Rehearing refused April 20, 1896.
   The opinion of the court was delivered by

McEnbry, J.

The plaintiff leased the Roseland plantation in St. '¡Charles parish in 1893. Meyer Weill held or controlled mortgage notes on the plantation. The plaintiff desiring to continue his lease, alleges that the made a verbal agreement with Meyer Weill to pay him "eight hundred and thirty-one dollars and forty-one cents for an extension of time so that he could enjoy the lease to the first of January, 1894. The defendants are the heirs of Meyer Weill and they were .sued by plaintiff for the above amount, which he had paid, on the ground that notwithstanding the agreement and payment, Meyer Weill foreclosed the mortgage. We have nothing to do with this part of the suit as it is on appeal to the Circuit; Court of Appeals.

The defendants as plaintiffs in reconvention claimed the ownership •of the land and that the plaintiff was wrongfully in possession, and ■they claimed the rental value of the plantation, an amount below the lower limit of the jurisdiction of this court. The plaintiff answered this reconventional demand, alleging that he was not the •owner of the property described in the petition of intervention and ■denied that he was in possession of the same. There was a judg-ement in favor of defendants recognizing their ownership and possession, and a moneyed judgment against defendant for five hundred ••dollars with legal interest from judicial demand. The defendant appealed from the judgment on the demand in reconvention to this •court. Having judicially confessed that he was not the owner, and dn possession of the plantation, the only matter in dispute was the amount of rent due by plaintiff to the defendant. Harris vs. Stockett, 35 An. 387; State ex rel. Humphreys vs. Richardson, 46 An. 133.

The plaintiff says that the “record does not reveal a single circumstance wherein the plaintiff might be considered to have confessed judgment. On the contrary he denies possession in himself and alleges title and possession in third parties.” The issues were between plaintiff and defendant, and not between third parties to the suit. Having disclaimed ownership and possession as between them ■¡the only matter in dispute was the amount of rent due by the plaintiff.

Plaintiff calls our attention to State ex rel. Mower vs. Judges, 42 An. 665, as being directly in support of the position he has assumed in the motion to dismiss. In that case defendant was in possession ■of the whole tract of land sued for, which was admitted in the ¡answer. The plaintiff was compelled in his petitory action to sue him for the whole as possessor. No part of the land was surrendered to the plaintiff, the averments in the answer only going to the extent that the defendant had moved on the land for the purpose of homesteading one hundred and sixty acres.

The appeal is dismissed.


text:
    No. 12,052.
    Archey Settoon et als. vs. The Texas & Pacific Railway Company.
    where one goes on premises by implied permission, be does so at bis own risk, assuming the responsibility of all risks incident to the place.
    Where there are two avenues of travel and the more dangerous one is selected, the party injured can not recover, if the injury inflicted was due to the risk incident to the route selected. The traveler assumes all risks in such cases.
    APPEAL from the Fourteenth Judicial District Court for the Parish of Iberville. Talbot, J.

      Hébert & Hébert for Plaintiffs, Appellees.

      Howe, Spencer & Cooke and L. DePoorter for Defendant, Appellant.
    Argued and submitted February 12, 1896.
    Opinion handed down February 24, 1896.
    Rehearing refused April 20, 1896.
   The opinion of the court was delivered by

McEnery, J.

The plaintiffs, parents of Henry W. Settoon, brought this suit for damages against the defendant corporation for the death •.■of their son, who was killed by its cars at the town of Whitecastle.

The defence is such as is usually urged in such cases.

There was judgment for plaintiffs in the sum of twelve thousand1 five hundred dollars, and the defendant appealed.

In front of and alongside of the depot of the railroad there is a switch track, and beyond this the main track.

Between the two tracks the company filled in with cinders for the purpose of affording a dry surface for its passengers who get off and on the trains at this point, and also for the convenience of its employees. It is in evidence that people in the vicinity used this cinder-walk, but we do not think that it is shown that there was an implied invitation to the public to use it, any more than its main track, or the switch track. The fact of the road having made the space between the two tracks dry by placing cinders on it in itself is-not an invitation to the public to use it. The road might fill in the space between the ties on the main track with gravel, yet this would not be an implied invitation to the traveling public to use 'the roadbed as a highway. In the vicinity of the depot there is a store, and from this leading to the cinder walk there is a pathway. Prom the store, leading to Bowie street, back of the depot and toward the town, there is a driveway, and alongside of this is a plank sidewalk. Through and over the cinder walk is the shortest way, probably, to Bowie street, but the death of the plaintiff’s son proves it to be the more dangerous. In the early part of the night, about 8 o’clock, plaintiff’s son was at the-store, called the company’s store, or Romantus T. Hart’s store. It does not appear that the railroad company is-in any way interested in this store. The plaintiff’s son, accompanied by one Gonzales, left the store at the hour mentioned, took the small foot-pathway, crossed the -switch track and went on the cinder waik, intending to reach Bowie street. They had not proceeded far before they were both struck by a pole, extending over the cinder walk, which was used by the company in moving box cars for the purpose of making up a freight train. Gonzales escaped serious injury and was thrown down. Plaintiff’s son was thrown on the switch track, his thighs crushed, and he died in about three hours. __The defendant company was engaged in its proper and legitimate^calling in making up a freight train ."The switch had been placed there for that purpb'SB7'a:nd“we are not informed that any other more convenient and safe method could have been employed. The plaintiff’s son knew what the switch was there for, and he knew the mode employed by the de-' fendant in making np its train. Conceding, therefore, that he went on the cinder walk by implied consent of the defendant, the law is uniform in its expression that if one avails himself of the license, he ■ does so subject to all the incidental perils.

But the trespasser or one who avails himself of an implied invitation to go on premises is not without a remedy, if the injury inflicted was wantonly and maliciously done, or if it could have been avoided in time by the use of viligance. It is not to be expected, however, that railroad companies will patrol and police their .tracks for the purpose of warning the public of danger. The tracks are silent but potent signals of danger, and to the cautious the cinder walk would have warned of impending danger, particularly on a dark night, such a one as prevailed when plaintiff’s son was injured.

The evidence we think is sufficient to show that the plaintiff’s son was warned of danger. The witness Gonzales who accompanied plaintiff’s son says: “He and I were walking from the company’s. store, and as we walked up on the railroad there was a train backing down and as we got about one hundred and fifty feet between the on.e hundred and fifty feet above the switch, we were knocked! over with the pole that they were backing with; they were-backing these boxes on the main line to switch them out. The-, pole struck us and knocked us over the switch, and he got. run over and died about three hours afterward.” And further on in his testimony he says the night was dark, and that he could note see when he got on the track the character of the premises, but he could see .that the boxes on the main line were moving, but he thought it was another train on the main line. The sight of these boxes moving ought to have been a sufficient warning to the plaintiff’s son that there was imminent danger ingoing on the track, or on the cinder walk between the two tracks. The defendant company can not be held liable for deceased’s want of judgment, or of his mistakes. He had not been placed by the company in a position of peril when he was suddenly called upon to make an election as to the best mode of escape, but he was where he had voluntarily placed himself, and where‘he had ample time, by reflection, to retreat from the danger point.

The brakemen engaged in making up the train and moving the cars by means of the pole were provided with lights used as signals. One of the brakemen saw the witness Gonzales and plaintiff’s son when they approached the switch track and before they got on it for the purpose of crossing to the cinder walk, and hallooed to them to stop. They paid no attention to the warning. Probably they did not hear the warning, but the witness’ statement of the distance is such that they ought to have heard. Plaintiff’s counsel, while admitting that the witness gave the warning, contend that it was at such a distance they could not hear, because of the noise of the moving train. This noise ought to have been a warning to them, independent of the' warning given by the brakemen. But as the witness saw them, and as he had a light and the switch engine bell was ringing, it is reasonable to suppose that if plaintiff’s son had been exercising the slightest prudence he would have seen the brakemen and heard the bells, and at once ought to have known that a train was being made up, and that there was danger in walking in the space between the tracks.

There is a plank walk from the store to Bowie street, to which point plaintiff’s son was going. It was the less dangerous route. Plaintiff’s son chose the more dangerous one, and he was responsible for the selection, taking the latter with all of its attendant and incidental risks.

The facts in this case bring it within the ruling of Bollinger vs. Railway Co., 47 An. 722, and Burbank vs. Railroad Co., 42 An. 1156.

It is therefore ordered, adjudged and decreed that the judgment appealed from be avoided and reversed, and it is now ordered that plaintiff’s demand be rejected at their costs.


author: McENERY, J,

text:
    No. 11,935.
    Mrs. Martha B. Warren vs. Francis T. Copp.
    Where the garnishee is negligent in answering interrogatories and permits a judgment to he entered against him, he can obtain no relief from the judgment.
    It is negligence on the part of the garnishee to answer interrogatories and to entrust the delivery of them to the Cleric of the Court hy a messenger in his employment, who fails to deliver the answers to the clerk. The negligence of the messenger must be imputed to the garnishee.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      Thomas 8. Ellis and Frank E. Bainold for Plaintiff, Appellee.

      Fenner, Henderson & Fenner and Howe, Spencer & Cocke for Defendant, Appellant:
    It is now settled jurisprudence in this State that actions to annul judgments are not confined to the causes specified in the Code of Practice, but extend to all cases which would be a ground for such relief, under the practice of the courts of equity in other States. 1 Rob. 528; 3 An. 646; 6 An. 799; 31 An. 288.
    The elements essential to obtain such relief are: (1) That the party has no other means of relief, such as by appeal or new trial; (2) he has not been guilty of laches in asserting his right; (3) that the judgment is one that he had a meritorious defence, •and which it would be against good conscience to execute; (4) that he was prevented from availing himself of his defence by accident, mistake or fraud; (5) he was not himself guilty of negligence or want of reasonable diligence.
    The facts alleged in this petition exhibit every one of these elements.
    The Code itself expressly authorizes the avoidance of judgments rendered on confession where the confession is based upon an error of fact. Civil Code, 1846, 2291, and Ranlett vs. Gordy, 32 An. 908.
    Oourts of equity annul judgments obtained through accident or mistake in a great variety of cases, not one of which is as strong as the one here presented. 31 Conn. 348; 20 Cal. 110; 13 Wis. 482; 6 Rhode Island, 202; 11 Mo. 438; 2 Hilton (N. Y.), 91; 104 W. S. 96; 1 Howard pr. 52; 17 Wis. 232; 10 S. W. Rep. 469; 34 Pac. Rep. 76.
    Prior to the act of 1839 garnishment was not allowed in execution of judgments. After that date the seizure was effected by taking possession of the thing seized, or in ease of incorporeal effects, 'by giving notice to the debtor thereof, and the seizure could in ono event take anything except the actual property of the judgment debtor. In providing the additional remedy of garnishment the purpose of the law was only to furnish a more efficient method of reaching and subjecting the debtor’s property to the .execution of judgments; it was never its purpose to compel one man to pay the debt of another for which he is in no manner re - sponsible. When such a result is brought about through accident or mistake, it operates a perversion of the purpose of the law and converts the law into an engine of oppression.
    The powers of a court of justice will not be invoked in vain to prevent such injustice.
    Argued and submitted March 10, 1896.
    Opinion handed down March 23, 1896.
    Rehearing refused April 20, 1896.
   The opinion of the court was delivered b.y

McENERY, J,

The plaintiff obtained judgment against the defendant. She issued a fi. fa. on the judgment, and a garnishee process against Violett & Co., residing in the city of New Orleans, where the judgment was obtained.

On April 24, 1895, the garnishees were personally cited. The next day the garnishees went before an officer and answered the interrogatories, positively denying that they had any property of the defendant in their possession, or under their control, or that they were indebted to him in any amount. The answers to the interrogatories were entrusted to an employee to take to the clerk’s office and file.

On inquiry, he informed his employers, the garnishees, that he had obeyed their instructions and had placed with the clerk the answers.

They were not handed to the clerk and were not filed in the suit.

On May 7, 1895, the interrogatories were taken as confessed, and on 13th of May following, a final judgment was rendered against the garnishees for the sum of seven thousand dollars.

On May 20 notice of judgment was served; this was the first intimation to the garnishees that their answers had never reached the Clerk’s office. Violett & Oo. then instituted a suit to have the judgment against them canceled, and obtained an injunction to enjoin the execution of the judgment. The suit to annul the judgment is based on the ground that they were not indebted to the defendant, Oopp, in any amount; had no property of any kind belonging to-him in their possession or under their control, but that Oopp was largely indebted to them, all of which was stated in the answers which they believed had been filed; that their failure to file the answers was the result of accident and mistake, and that they had exercised all care and diligence to guard against the failure to answer the interrogatories, and under these circumstances it would be grossly inequitable and unjust and against good conscience to permit the enforcement of the judgment; that the creditor had been in no way injured or prejudiced by thejomission to file the answer.

There was an adverse judgment to plaintiff on an exception of no eause of action, and they have appealed.

Since the case of Richard H. Chinn vs. the First Municipality of the City of New Orleans (1 Rob. 523), the jurisprudence of this State has been fixed and determined as to the relief which may be granted in suits to annul judgments. In cases which present facts on which, in the other States of the Union, a court of equity would interpose, relief may be granted when the party asking the same has been guilty of no laches. Perry vs. Rue, 31 An. 287.

The facts do not warrant any conclusion that there was any mistake, error or accident upon which relief may be granted. There was no mistake, as the garnishees acted properly in making the answers, and they knew what was required of them, both as to substance and time. The same may be said as to error, as there was no ignorance of that which exists or the mistaken belief in the existence of that which has none. 0. 0., Arc. 1821. There was no unforeseen or unexpected event occurring externally to the plaintiffs by which they lost a legal right.

The mistake, error of fact and accident, are all merged in the failure of the employee to file the answers, and his false statement that he had filed them. The first was negligence proper, and the second the attempt to evade its consequences. The question to be considered is can the negligence of the employee under the facts presented be implied to Violett & Co., who must show that they have been guilty of no laches? Chinn vs. Municipality, 1 Rob. 523.

In the case cited, which was a suit to annul a judgment by default taken against the municipality and confirmed, the petition averred that the attorney of the municipality had prepared an answer, which had been delivered to the Clerk of the Court, or to one of his deputies, which had been lost. The truth of the allegations in the petition was attested by the Mayor and by the messenger by whom the attorney had sent the answer to be filed. In this case in which the equity powers of this court were defined in annulling judgments, the court said, under the facts, “in the present case, the party is not able to show whether the answer was given to the clerk or to one of his deputies. It does not appear that, on the part of the defendants, any attention was paid to the case, until after the execution reached the hands of the sheriff.”

In that case, as in this, there were sworn statements that the answer had been sent by a messenger, yet the court held that the failure of the answers to reach the clerk’s office was negligence. The fact of the answer having been prepared and sent by a messenger was not sufficient, and the absence of the answer from the record was treated as though the defendants had paid no attention to the case until after execution issued,

The messenger in this case was selected by the plaintiffs, and it is impossible to separate his acts from those of plaintiffs. It was the duty of plaintiffs to file with the clerk the answers, and there was no unforeseen event which prevented them from performing this duty.

We can find no reason for relaxing the rule in relation to answers on facts and articles. On the contrary, there is good authority for saying that the rule in relation to answering interrogatories should be more rigid.

In DeBlanc vs. Webb et al., 5 La. 82, an attachment issued and Willeox and Fearn were cited as garnishees. Three interrogatories were propounded to the garnishees. The first two interrogatories were answered positively and distinctly, showing an indebtedness to the defendant in the sum of $1418, being amount of cotton and money in their hands, with instructions issued before service of citation on them, to apply the same to the debts of other parties. These creditors intervened, prayed for a dissolution of the attachment and judgment in their favor. There was judgment in favor -of plaintiff in attachment for the whole amount claimed by him, which was ordered to be paid by the garnishees, from which they and the in-tervenors appealed.

The third interrogatory was not answered, and the plaintiff moved for judgment on the ground that the interrogatories had not been fully answered. The garnishees asked to be allowed to amend their answers. It was denied. This court said in affirming the judgment: “ The practice of allowing amendments to petitions and answers made in the ordinary manner, where such amendments tend to the furtherance of justice, has always been adopted and literally acted on, under the provisions of our jurisprudence. But, answers required to be made under oath, to interrogatories on facts and articles, ought not to be considered as coming within the scope of these provisions. The rules relating to such answers appear to be different from those which govern in ordinary answers to actions; they are, of necessity, more rigid and unbending, in order to hasten the administration of justice.” And in closing the opinion, this court said: To permit the garnishees now to avoid the legal effect of their negligence in not answering this interrogatory would, in our opinion, violate express law on the subject, and might in other cases lead to prevarications and unsuccessful delays in the administration of justice.”

It was claimed by the garnishees that the answer to the first two interrrogatories responded to the third interrogatory.

It has been the uniform jurisprudence in this State that if there has been laches or negligence, that destroyed the title to relief. Norris vs. Fristoe, 3 An. 646; Swain vs. Samson, 6 An. 799.

The negligence is the more inexcusable when there is a failure to perform a legal duty.

The failure of the employee of plaintiffs to file their answers to the interrogatories is traceable directly to the garnishees, and their own act was the proximate cause of the failure to answer the interrogatories.

Our reports are replete with cases where parties have lost rights by their negligence which, if appreciated in money, would amount to large sums, such as the failure to file an opposition to an account in time, and more frequently the failure to file transcripts during the legal delays and irregularities in bringing up appeals. Ford vs. Brooks, 35 An. 151; Stafford vs. Harper, 32 An. 1076; Ex rel. Slocomb vs. Barrow, 30 An. 833; Leflore vs. Carson, 7 An. 65; White vs. Union Bank, 6 An. 162.

In the latter cases if the fault is imputed to the appellant, or was through his agency, he would be condemned to suffer.the consequence of his negligence. We would not inquire into the means he employed for sending the transcript to the appellate court, nor by what means his negligence was induced in allowing irregularities in the order for appeal, or in the bond.

. The language of the Oode of Practice is positive, that if the garnishee refuses or neglects to answer under oath within the legal delay, such refusal or neglect shall be considered as a confession, etc. The answer out of court is not a compliance with the article of the Oode of Practice. Within the legal delay it must be in the record, unless there may be some unforeseen event or accident or fraud, which has not been brought about through agency of the party interrogated.

There has been no fraud, or imposition, artifice or unfair means employed by the plaintiff in execution in obtaining the judgment. The answers were not filed through the negligence, ill will, mistake or fraud, or ignorance of the messenger employed by plaintiffs. The defendant herein was in no way responsible for the acts of this messenger. He was the chosen messenger of plaintiffs, in whom they placed confidence, but there is here no question arising as to any injury inflicted upon the plaintiffs by the messenger that cán enter into any contest between plaintiffs and this defendant, who was in no way connected with, or in no way induced the confidence of plaintiffs in their messenger. The authorities on this point, quoted by plaintiffs, have no application. It is, as we have said, impossible to separate the conduct of the messenger from that of plaintiffs.

In endeavoring to do so, to each inquiry comes back the answer that the plaintiffs employed him to do an act personal to themselves, and they must, on all the authorities which we have consulted, be held to the negligence of the employee.

This case unquestionably presents a great hardship, which the plaintiffs must suffer. We have diligently endeavored to find some means to avoid the rigor of the law, but his own act has brought him within its grasp, and we repeat what was said by this court in DeBlanc vs. Webb et al., 5 La. 85; “A strict adherence to the articles of the Oode of Practice, which relate to the answers of garnishees) may, in the instance now before the court, operate an injustice to the appellants; but private loss or injury must often be tolerated in support of public good, and individual inconvenience yield in support of sound general principles.”

Judgment affirmed.


author: Miller, J.

text:
    No. 12,494.
    D. Witham et als. vs. The City of New Orleans.
    A statute addressed, to “ persons, firms or corporations acting under any parish or city ordinance or State law,” will not readily be presumed to include the city of New Orleans, which, if intended to be embraced, it is reasonable to suppose, would have been specified, and not introduced under the general words, “ acting under any State law.”
    While the city is subjected to legal restraint and the supervision of the Board of Health in respect to the use of the Mississippi river, the court holds that the Act No. 14 of 1877, extra session, prohibiting the casting of offal in the river, was designed to apply to “ persons, firms and private corporations.”
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      James Wilkinson for Plaintiffs, Appellants.

      James J. McLaughlin, Assistant City Attorney,' and Samuel L. Gilmore, City Attorney, for Defendant, Appellee.
    Argued and submitted April 30, 1897.
    Opinion handed down May 10, 1897.
   The opinion of the court was delivered by

Miller, J.

The plaintiffs, one a citizen of the parish of Plaque-mines and the other of St. Bernard, are appellants from the judgment sustaining the exception of no cause of action to their petition for an injunction to restrain the city from emptying garbage and offal of the city in the Mississippi river, at a point the petitioners allege is prohibited by law.

The act of 1877, relied on by petitioners, prohibits any person, firm or corporation, acting under any ordinance of the parish, city, or law of the State, from emptying garbage, dead animals, night soil and other offensive matter into the Mississippi river, except in the middle of the river at the lower limits of the city, and the enforcement of the act by prosecutions for its violation is confided to the Board of Health. On the trial of the exception the evidence was that the emptying of the offensive matter, the subject of complaint, was at a point in the middle of the river selected by the Board of Health, about two miles below the lower limits on the left bank of the city and above the limits on the right bank. The judgment of the lower eourt was mainly on the ground that the act of 1877 did not apply to the city of New Orleans.

It will be perceived we are not asked to hold that the emptying of this refuse and offensive matter in the river is a nuisance in the sense that any such use of the river is injurious to the public health or comfort of the lower parishes. But the petitioners recognizing that the act sanctions such use of the river under the conditions stated, insist the act is violated by the city, and they have the right to protection against such violations. The question is whether under this act and the evidence offered, petitioners exhibit any case for relief.

The argument for petitioners assumes the city limits intended by the act were those of the right bank, on which the city extends further down than it does on the left bank. The act, in designating the lower limits, might be deemed to refer to the left bank limits. But if the argument for plaintiffs is well founded, then the dumping place for this offal and other matter is nearer the city than permitted by the act. The place for dumping at the lower limits was plainly in the interest of the city. If it is lawful to dump in the river at the lower limits, the place of dumping above, nearer the centre of the city, might well be complained of by citizens of New Orleans but not by the lower parishes, it being, as we think, no purpose of this restriction as to the place of dumping below the city limits to protect any portion of such parishes if they can be deemed inconvenienced, but simply to remove the dumping so far below as not to injuriously affect the water needed for the uses of the city.

The act does not refer specifically to the city. If that had been the purpose it is not reasonable to suppose the city would not have been named. The language, “ any person, firm or corporation” acting under any ordinance or law, would not naturally suggest itself if the City was ip the legislative contemplation. The rule of statutory construction is that the leading purpose of the Legislature is not introduced by a mere general designation. But the language is that appropriate, and which would readily occur if at the time, persons, firms and private corporations were dropping offal in the river from the wharves in front of the city and near points of supply to the reservoir of the water for the daily consumption of the people. We take notice of the many corporations then existing in this city engaged in the business of removing night soil. Doubtless, individuals and firms were using the wharves for similar purposes. Hence, the prohibition from dropping from wharves into the river night soil, refuse, dead animals, etc. These offensive uses of the river by persons, firms and private corporations furnish, we think, obvious guides in construing this act, but the subjects for its natural application, as well as the terms of the act, exclude its application to the city of New Orleans.

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

Brbatjx, J., concurs in the decree.


author: Miller, J. Blanchard, J.

text:
    No. 12,472.
    Chicago, St. Louis & New Orleans Railroad Company vs. The Town of Kentwood.
    The constitutionality of the Act No. 49 of 1882, providing the method of creating municipal corporations, and the organization of the municipal corporation under the act, can not be attacked collaterally by the defendant, resisting a tax claimed by the corporation. R. S., Sec. 2595; 46 Ill. 9; 15 American and Eng lish Eney. of Law, p. 198.
    Under the jurisdiction of this court of eases involving the constitutionality or legality of taxes levied by municipal corporations, the questionof the constitutionality of this act of 1882, or whether its statutory requirements were fulfilled in organizing the defendant corporation, are not within our jurisdiction.
    The court again affirms the competency of legislation conferring on municipal corporations the power of taxation. 1 Dillon on Municipal Corporations, Ch. 19, Sec. 590; 46 An. 449 ; 49 An. 236 (Town of Mandeville vs. Baudot).
    A PPEAL from the Sixteenth Judicial District Court for the Parish ■i* of Tangipahoa. Reid, J.

      Farrar, Leake & Lemle and W. H. McClendon for Plaintiff, Appellant.
    O. P. Amacker for Defendant, Appellee.
    Submitted on briefs April 14, 1897.
    Opinion handed down May 10, 1897.
    Rehearing refused May 31, 1897.
   The opinion of the court was delivered by

Miller, J.

The appeal is by plaintiff from the judgment dissolving its injunction to restrain the collection of a tax of one hundred and five dollars, imposed by the defendant, the town of Kent-wood, on plaintiffs’ property.

The defendant claims to have been incorporated as a town in 1892, under the provisions of the act of the Legislature, No. 49 of 1882, providing the method by which cities and towns may obtain acts of incorporation. The act requires the petition of the majority of the taxpayers of the town or village, setting forth their desire to be incorporated, giving the boundaries of the proposed town; on the presentation of this petition to a justice of the peace he is to order an election for the town officers, provided there are two hundred inhabitants in the designated limits, and the act provides for the issue of commissions to the elected officers and for the preparation of a suitable charter. The town officers were elected, commissioned by the Governor as directed by the act, the charter prepared, and in 1895 the tax in contestation on plaintiffs’ roadbed, within the town limits, was claimed under the assessment by the town authorities.

The petition in effect avers, that the Act No. 49 of 1882 is repugnant to Art. 29 of the Constitution, requiring that the legislative act shall embrace hut one subject, to be expressed in its title; and repugnant also, because an attempt to delegate the legislative power to ñx the boundaries’of towns, which power it is claimed must be exerted by the legislative department and can not be surrendered; the petition further denies any power in the town, if incorporated, to levy the tax, denies that the town was incorporated in conformity with the act, and denies there is any ordinance of the town authorizing the levy.

The argument for plaintiff on the alleged unconstitutionality of this act of 1882 has had our consideration. We would have difficulty in holding the title of this act insufficient to cover the incorporation in question, as villages, in the body of the act, the point of plaintiffs’ objections, might be deemed a synonym of “town” expressed in the title. Again, under our Constitution forbidding the creation of corporations by special acts, the objection that the act of 1882 is a delegation of political power to ñx parochial or municipal boundaries might be deemed answered, and the act does not seem to differ essentially from those of a similar character in other States, the Constitutions of which contain prohibition of special acts of incorporation, and are as significant as ours against the delegation of legislative power. 1 Dillon, Ch. 111, Sec. 20. Whether the constitutionality of the law for incorporating towns, or whether the statutory conditions were fulfilled, can be urged collaterally, least of all, in resisting a tax, is more than doubtful. We have a statute of obvious pertinence on this subject, now Sec. 2593 of the Revised Statutes, and irrespective of any statute, we are inclined to think the current of authority in other States where the question has arisen is against the collateral attack on the charter here proposed. 46 Ill., p. 9; Taylor on Corporations, Sec. 145; American and English Encyclopedia of Law, p. 198, notes at foot. But while we have not been inattentive to these questions urged by plaintiff we do not think we are called on for any determination of these issues, and omit any expression of opinion in reference to them.

Our jurisdiction is fixed by the amount involved and in other cases by the nature of the contestation.. We have none in this case by reason of the amount. Of questions of taxation we have jurisdiction only when the legality or constitutionality of a tax imposed by a municipal corporation is involved. Art. 81. The question whether there was any authority for the organization of this corporation, or compliance by it with statutory requirements, is not submitted to us by the Constitution. If not a municipal corporation our jurisdiction is excluded; if a corporation the legality or constitutionality of the tax is within our jurisdiction.

This view directs our attention to the defence, that under the law the municipal corporations created under the act of 1882 have no power to levy taxes. But the Legislature, by general act, has conferred that power on all municipal corporations. We have affirmed the constitutionality of the acts. Act No. 109 of 1882; Town of Alexandria vs. White, 46 An. 449; 1 Dillon, Ch. 19, Sec. 590.

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

ON Application for Rehearing.

Blanchard, J.

Plaintiff asks a rehearing in this case on the ground that in the opinion of the court handed down no allusion is made to the point urged in oral argument, and in the brief, that the town council of Kentwood did not adopt a budget and levy the tax for 1895 sought to be collected.

It is insisted that the record shows conclusively that no budget was adopted, and no tax levied, and that these were essential prerequisites without which no collection of taxes can be had.

It is quite true our opinion omitted discussion of this question, but it was for the reason that plaintiff’s petition contains no allegation of the non-adoption of a budget, and none that the tax was not levied. The matter was not put at issue by the pleadings.

It is a fact that plaintiff offered in evidence the proceedings of the town council of Kentwood for 1895, for the purpose of showing, as stated on the record, that there is no law authorizing the collection of this tax.” It was clearly meant by this to show that the town council had taken no action formally levying this tax and directing its collection. This evidenee was received without objection, and it may be contended that this supplied the deficiency of the pleadings referred to. This might be true were it not for the fact that plaintiff distinctly alleges twice in its petition that the tax had been levied.

Having averred that the tax which is attacked for illegality and nullity had been levied, plaintiff can not be heard to shift its position, and either assert or prove there had been no levy.

Rehearing refused.