text:
    NO. 11,175.
    Thomas O. Butler vs. Lucy Washington.
    When a divorce a vincula, matrimonii is sought by one of the parties to a marriage that was celebrated in this State conformably to its laws, against the other party who is an absentee, permanently residing beyond the territorial limits thereof, a court of this State has ample jurisdiction and authority to decide the issue, it involving a civil status; and that jurisdiction attracts to it authority to bring such absentee into court by means of substituted service of citation and subject him to the judgment therein pronounced.
    APPEAL from the Twenty-second District Oourt, Parish of Aseen' sion. Duffel, J. ■

      B. McCtulloh for Plaintiff and Appellant:
    The only case of divorce in which constructive service of citation is permitted in this State is that wherein the absentee spouse has committed an iufamous crime and fled from justice. 2 An. 563; 3 An. 101; 5 An. 674; 6 An. 648, 218; 9 An. 239; 29 An. 817; 30 An. 878 ; 37 An. 669; 38 An. 764 ; 35 An. 1184; 41 An. 657; 42 An. 357, 363; 95 U. S. 733; 98 U. S. 714; 99 U. S. 362; C. P., Arts. 3, 26 to 29; 9 An. 35; 40 An. 29.
    Laws in relation to separation from bed and board and divorce must be strictly construed. 13 An. 495.
    The nullity of a judgment of divorce without citation is absolute and can not be cured by admissions in pleadings or otherwise. 15 An. 342, 519 ; 38 An. 202.

      Edward N. Pugh, for Defendant and Appellee,
    cited: 18 An. 64; 14 An. 869; 27 An. 315; 10 R. 217; 29 An. 347; Larombiére, Yol. 5, p. 46, Sec. 12; 22 An. 429; 23 An. 766; 30 An 1041; 116 U. S. 285; 43 An. 1148.
   The opinion of the court was delivered by

Watkins, J.

The object of this action is to have» a judgment of divorce a vinculo matrimonii declared an absolute nullity on the sole ground that the court rendering the decree was without legal right or warrant in law to appoint a curator ad hoc to represent the absentee defendant, upon whom service of citation was made — the law not authorizing the appointment of a curator ad hoc in such case.

The petition recites and the fact is that the plaintiff intermarried with the defendant in the parish of Ascension on the 10th of May, 1872, and for many years thereafter they lived together as man and wife. That on the 18th of August, 1879 the defendant instituted suit against him in that parish for a separation a mensa et thoro, upon an allegation of ill treatment. That to the complaint the husband made answer in personam, and after a contradictory trial had, judgment was pronounced in favor of the plaintiff, and duly signed on the 12th of January, 1880, decreeing a separation as prayed for.

That on the 7th of September, 1882, she began proceedings for a ' divorce a vinculo matrimonii, supplementing her petition in the suit Cor separation just adverted to, in which she set forth the aforesaid judgment alleging that more than two years had elapsed without any reconciliation between the parties having taken place.

That she averred that she had been informed and believed that her husband was an absentee, and had permanently left the State, and, on that ground, she was entitled to have a curator ad hoc appointed to represent him, and contradictorily with whom proceedings could be taken.

That thereupon the court made an order appointing a curator ad hoc to defend the suit and stand in judgment; and the curator thus appointed filed an anwer, and, contradictorily with him, a judgment was rendered decreeing a final divorce betwen the spouses.

It is that judgment the plaintiff attacks as an absolute nullity on the face of the proceedings related, as having been rendered in a suit in which he had not been cited personally; and on the averment that substituted service upon a curator ad hoc was unavailing to bring him into court in such a suit.

To this petition the defendant excepted that it disclosed no cause ofláction; and, in the alternative, she set up pleas of one, two, three, four and five years’ prescription; and, asa bar to the action, she urged an estoppel, based upon certain judicial proceedings that were taken by him against the present defendant, averring that by his acts and conduct thereon he fully recognized the validity and binding force of the judgment now attached, and can not for that reason be permitted to gainsay them in the instant ease.

Upon an examination of the law and the jurisprudence applicable to the questions raised, the district judge sustained the exceptions and dismissed the suit and the plaintiff has appealed.

It must be confessed that there has been quite a contrariety of decision on the question of the effect of substituted service of citation and of its efficacy to bring absentee defendants into the courts of other States than that of the domicil of such defendants and subject them to their judgments; but In sojfar as said judgments apply to proceedings in rem or in personam, generally speaking, the only test that need be applied is that furnished by the fourteenth amendment to the Constitution of the United States, as interpreted by Pennoyer vs. Neff, 95 U. S. 730, and as applied to the laws and jurisprudence of this State in Loughlin vs. Ice Company, 35 An. 1185, and in other and subsequent cases decided by this court.

In the ease of Young vs. Upshur, 43 An. 362, this question was gone over again very thoroughly, and all applicable State decisions were examined and analyzed, and amongst the cases cited was Dupuy vs. Hunt, 2 An. 562, from which the following paragraph was extracted, viz.:

“ If the absentee leaves his property without an administrator or agent; if it be attached at the suit of a creditor; or, if an absentee becomes a necessary party to a suit between other parties lawfully i/n court, in furtherance of justice, the law authorizes a curator to be appointed to represent him. There is something on which the jurisdiction of the court is based, and the judgment rendered would be within the recognized and ordinary prerogatives of the judicial power.”

We then proceeded to say:

“The principles stated in that ease were substantially followed in many subsequent opinions, and notably in Peterson vs. McRae, 3 An. 101; Jelks vs. Smith, 5 An. 674; Ackley vs. Lyons, 6 An. 648; Ferguson vs. Thomas, 6 An. 218; Prindle vs. Williams, 9 An. 34, and Stephens vs. Graves, 9 An. 239; * * * O’Hara vs. Booth, 29 An. 817; Morris vs. Bienvenue, 30 An. 878, and Fly vs. Noble, 37 An. 669.”

We further cite approvingly the cases of Heirs of McGehee vs. McGehee, 41 An. 657, and Duruty vs. Musachia, 42 An. 357, in all of which consistent principles are announced. In the more recent case of Robbins vs. Martin, 43 An. 488, a similar question arose and the previously cited cases were examined and approved, and our opinion concludes thus:

“ If indeed a non-resident can not be brought into a court of this State in such a case, such a cause of complaint as that propounded by the plaintiff, though well grounded in our law, would be practically remediless.”

The jurisprudence of this court thus formulated brings us to the conclusion that it consecrates two propositions of law which are applicable to this case and must control our decision of it, viz.: first, that the appointment of a curator ad hoc is admissible in case an absentee is a necessary party to a pending suit and when such an appointment is a sine qua non to the furtherance of justice; second, when the action is jurisdictionally well grounded otherwise and the appointment of a curator ad hoe is necessary in order that such jurisdiction may be exercised, else the complainant would be remediless.

Recurring to the facts of this case, it will be observed that the plaintiff was cited personally to answer the suit of the defendant for a separation; that he appeared and answered, and judgment was thereon pronounced contradictorily with him; that suit was brought in the parish- in which the marriage was celebrated and where the spouses subsequently resided; that after the .lapse of two years the wife filed in the original suit a supplemental petition demanding a final divorce grounded on the judgment of separation previously rendered; that in the meanwhile the husband had departed from the jurisdiction of the court and was beyond the reach of the process of the court at the time the supplemental proceedings were inaugurated.

And if under such circumstances the recusant husband could not be brought into court through the medium of a curator ad hoc, then, as we said in the Robbins case, “ such a cause of complaint as that propounded by the plaintiff, though well grounded in our law, would be practically remediless.”

In our code separation from bed and board and divorce are treated of under one and the same title (R. C. C. 138, et seq.). and Article one thirty-nine (139) declares that married persons may claim reciprocally a divorce for the several causes enumerated in Article 138, but, except in the cases where the husband or wife may have been sentenced to an infamous punishment, or convicted of adultery, no divorce shall be granted v/nless judgment of separation from bed and board shall have been rendered between the parties, and one year shall have expired,” etc. (italics ours), thus clearly evidencing the fact that such judgment of separation is merely a preparatory step to procuring a final divorce, a vinculo matrimonii for any other causes than those enumerated in the exception just qaoted.

The two form parts and parcels of the same proceeding and suit, and the defendant husband being a necessary party to the second or supplementary proceeding for divorce, it would seem illogical as well as inequitable to hold that substituted service is inefficacious to bring him into court, though an absentee, in the furtherance of justice and the acquired jurisdiction of the court over the defendant personally, quoad the original suit — the object aimed at being defeated if he could not be thus held amenable to the law of the State in which the contract of marriage was celebrated.

In the case of Savoii vs. Iguogoso, 7 La. 281, the old court having under consideration the foregoing cited articles of the code said:

“ The meaning and tenor of the whole law, taken together, appears to us to be applicable to either species of divorce, as well that which goes no further than a separation from bed and board in its primary effects, as that which at once dissolves the bonds of matrimony. The former is as complete a separation of the parties to the matrimonial engagement as the latter, with the exception that no new marriage of either could be legally made.”

The code declares that “separation is to be claimed, sued for and pronounced in a competent court of justice,” etc. R. O. O. 140.

The “separation” therein referred to must of necessity include all kinds of judicial separation, and for any and every cause, unrestricted as it is.

The immediately following article reads thus:

‘ ‘ When the defendant is absent or incapable of acting from any cause an attorney shall be appointed to represent him, against whom, contradictorily, the suit shall be prosecuted.” R. C. O. 141.

The language of this article appears to be equally as unrestricted as that of the preceding one, and there is just the same reason for its being equally applicable to all classes of separation suits.

The case of Laehand vs. His Wife, 10 An. 156, is an almost exactly parallel case to this one, and the court said of the question at issue in the instant ease:

“ The appointment of an attorney ad hoc to represent the absent spouse, who has abandoned the matrimonial domicil and left the State, being specially authorized by law in the preliminary proceedings for separation, which forms the basis of an ultimate decree of divorce when no reconciliation takes place, it is a reasonable inference that the same constructive citation was intended by the Legislature to be adopted in the final proceedings agaiust the party who persists in such a violation of conjugal duty.”

The case of Prindle vs. Williams, 9 An. 84, is cited and relied upon by plaintiff’s counsel as being diametrically opposed to Lachand vs. His Wife.

But, in our conception, the two are not necessarily in conflict, for the reason that the Prindle case was a suit for an absolute divorce a virculo matirmonii on the charge of adultery, and the court held, on a consideration of the precepts of the code, “ that unless a party has some property or interest in the State, upon which the jurisdiction of the court is to operate, the appointment of a curator ad hoc to represent such party can not be legally made.”

It is evident that the court treated the question raised as one of jurisdiction merely, thus presenting the identical question that was raised and decided in Pennoyer vs. Neff, whilst in Laehand’s case it was presented and decided with reference exclusively to the laws of separation and divorce — considering them in respect to substituted service as being sui generis.

In the first place the case of Lachand vs. His Wife was recognized and approved in the recent case of Mack vs. Handy, 39 An. 491; and in so far as a mere question of jurisdiction ratione materise is con-' cerned counsel has apparently overlooked the fact that the Constitution has given this court unlimited authority in “ suits for divorce and separation from bed and board.” Art. 81.

This precept was doubtless engrafted upon the organic law on the theory that divorce involves a delicate and important question of status rather than one of property right, over which it was thought best to give this court plenary power and jurisdiction.

For whilst marriage can not be treated in any other light than that of “ a civil contract,” yet the question of divorce from the bonds of matrimony involves, many times, very refined distinctions requiring the exercise of skill and care in their determination. And, as it is a recognized principle of public law “ that every State possesses exclusive jurisdiction and sovereignty over persons and property within its territory, as a consequence every State has the power to determine for itself the civil status and capacities of its inhabitants * * * but can not exercise jurisdiction over persons or property beyond its territorial limits.” Pennoyer vs. Neff, p. 722. This ease is jurisdictionally well grounded, because the object of the litigation is to determine the binding force of the marriage bond which was celebrated in this State conformably to our laws, and the courts of this State are fully vested with power to cite absentees who will be affected by their decrees or those who are necessary parties thereto, to the end that their jurisdiction in the premises may be exercised and the question of status fixed and determined.

In such instances, the question of status occupies the same relation to the parties litigant as a property right would have in others, and jurisdiction vested in a court to decide it attracts to it jurisdiction over the parties interested, and jurisdiction thus acquired renders effective substituted service on an absentee.

Such a suit, affecting as it does “the personal status” of the parties, is stated to be an exception to the general rule that is announced in Pennoyer vs. PTeff, for the court was careful to safeguard its views with this statement, viz.:

‘ ‘ To prevent any misapprehension of the views expressed in this opinion, it is proper to observe that we do not mean to assert by anything that we have said that a State may not authorize proceedings to determine the status of one of its citizens toward a nonresident. which would be binding within the State though made without service of process or personal notice to the non-resident. The jurisdiction which every State possesses to determine the civil status and capacities of its inhabitants involves authority to prescribe the conditions on which proceedings affecting them may be commenced and carried on with its authority. The State, for example, has the absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be ereaated and the causes for which it may be dissolved. One of the parties guilty of acts for which by the law of the State a dissolution may be granted, may have removed to a State where no dissolution is permitted. The complaining party would, therefore, fail if a divorce were sought in the State of the defendant, and if application could not be made to the tribunals of the complainant’s domicil in such ease and proceedings be there instituted without personal service of process, or personal notice to the offending party, the injured citizen would be without redress.” P. 730.

The case of Champon vs. Champon, 40 An. 28, presents a question of divorce obtained in a court of this State by a husband who had abandoned his wife in Prance, where the marriage took place, and was only personated therein by a curator ad hoc. The court in stating the facts of that case said that the parties were married in Prance, and that the husband abandoned his wife and came to this country and joined his concubine here, who together subsequently resided in New Orleans. Some time afterward the deserted wife came to New York to live. Soon afterward the husband instituted suit against his wife, claiming a divorce on the ground of excesses, ill treatment and abandonment; and, alleging her absence from the State, he procured the appointment of a curator ad hoc to represent her. There was nothing in the record to show that any monthly summonses had been given the wife to return and abide in the matrimonial domicil. Thereupon the court said:

“We have no hesitation in concluding, under this state of facts, that the judgment was absolute nullity.”

That conclusion was manifestly the correct and only one that the court could have arrived at legitimately. This state was not the domicil of the parties or the place of the marriage; and instead of the wife being guilty of abandonment of it, it was the husband who left her at the matrimonial domicil and consorted with a concubine here.

The court rested its decision distinctly upon the precepts of the codes in relation to absentees and the mode of bringing them into court, citing R. O. C. 56 and O. P. 116 as the only ones applicable.

But the instant case rests upon different facts altogether, and different precepts of the code are involved, to-wit, R. O. 0.140 and 141. The parties were married and domiciled in this State. The wife brought suit against the husband for a separation and cited him personally. He appeared and answered, and, contradictorily with him, that suit was tried and judgment rendered. The separation suit was grounded upon the husband’s ill treatment of his wife. Thereafter, though judicially separated from his wife a mensa et thoro, the husband left the State permanently, and not the matrimonial domicil, for there was none after the judgment.

It was in the court thus seized of full jurisdiction to determine the status of a marriage that was contracted in this State and wherein the spouses had their domicil prior to their judicial separation that the absentee defendant was sought to be reached and subjected to judgment through the instrumentality of substituted service of citation ; and for that purpose we think the District Court was clearly competent to make the appointment; and it is manifest that, on principle and authority, the judgment pronounced on such a citation, is of unquestioned validity, and that the district judge correctly so decided.

Judgment affirmed.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    NO. 11,183.
    The State of Louisiana vs. Adrien Sinegal.
    In case an appeal lias been taken for tbepurpose of delay, no relief can be granted.
    PPEAL from the Eleventh District Oonrt, Parish of Acadia. Perrault, J.

      M. J. Cunningham, Attorney General, for the State, Appellee.

      John N. Ogden for Defendant and Appellant.
   The opinion of the court was delivered by

Watkins, J.

The defendant was indicted on a charge of shooting with intent to commit murder, was found guilty and was sentenced to imprisonment in the State penitentiary for a period of four years.

He appeals from the sentence and judgment, assigning as the sole ground for his relief that the trial judge had erroneously declined to grant him a continuance, and compelled him to go to trial without his witnesses.

The record discloses that after the application for a continuance of the cause to obtain the attendance of two absent witnesses, whose names were given, was refused, and the trial was being proceeded .with, said witnesses appeared in open court, but they were not placed upon the stand, and that defendant availed himself of the statute and testified in his own favor, admitting the shooting, but denying the criminality of the act on the ground that it was accidentally done.

Under this state of facts the conclusion is irresistible that the application for continuance and the appeal likewise were taken for delay.

Judgment affirmed.


author: McEnery, J.

text:
    No. 11,176.
    James Lewis Dodds vs. George A. Lanaux. Edward G. Ortenbach vs. S. M. St. Martin, Sheriff, et al.
    1. The legal mortgage in favor of a minor in a partition sale attaches to the property formerly owned by the tutor.

      2.Property sold to effect a partition contradictorily with the minor, and the co-proprietor who purchases the property retains in his hands the amount due the minor, and stipulates a special mortgage to secure the same, the lega mortgage on the half of the property against his tutor, which rested on the property before it was acquired by the party holding in indivisión with the minor, and the special mortgage can co-exist. There is no inconsistency in the two claims, as they are distinct obligations, springing from distinct sources, and secured by separate and distinct mortgages.
    5. The special mortgage, containing the pact de non alienando, can be enforced against the vendee of tli6 mortgagor, who assumes the mortgage debt.
    The mortgagee in enforcing his special mortgage does not,take the place of the vendor and become a warrantor to the vendee.
    4. The pací de non alienando does not prevent the mortgagor from selling the property. Its effect is to permit the seizure of the property by the mortgagee in the hands of third persons by proceedings directly against the mortgagor without notice to third persons.
    In the executory process the plaintiff who holds a legal mortgage on one-half the property, on the whole of which he has a special mortgage, can not in enforcing his special mortgage require the proceeds to be distributed so as to also satisfy his general or legal mortgage.
    APPEAL from the Twentieth District Court, Parish of Ascension. Guión, J.

      B. N. Sims and G. A. Gondran for Plaintiff and Appellee:
    1. By virtue of the pact de non alienando in the sheriff’s deed and Lanaux’s conventional assumption, in the act of sale to him from the adjudicatee at thesheriff’s sale, of the debt of $2487.50 mentioned in said sheriff’s deed as being due to Dodds, then a minor, the latter, after emancipation, was entitled to an order of seizure and sale against Lanaux. 33 An. 759; 19 An. 125; 1 Rob. 135; 8 An. 267;• 15 La. 184; 16 La. 223; 1 La. 39; 44 An. 206, and cases cited.
    2. Lanaux makes no appearance or defence. The opponent, Ortenbach, discloses no interest or impending injuiy. JTis express waiver of the mortgage certificate in the act of sale to him from Lanaux was tantamount to an acknowledgment of the existence of mortgages on the property therein-described. Long vs. Martin, 7 An. 579; 14 An. 339. As a third possessor, quoad the legal mortgage debt of $5104.85, he would on paying the same be fully subrogated by effect of law to Dodds’ mortgage rights. O. O. 2161; 36 An. 685; 32 An. 202; 31 An. 859; 12 R. 206.
    3. Under the terms and conditions of the partition sale and the sheriff’s deed, the price of the sale accruing to Dodds as joint owner was secured by special mortgage and vendor’s privilege on the whole property sold. C. 0.1339-40-41-43, 2616-17; 12 An. 78; Gay vs. Hebert, 44 An. 207. Decisions in 33 An. 425,34 An. 1046 and 35 An. 547 applicable only when property purchased by heir at partition sale is paid for with his heritable share.
    4. The acceptance by a third person of a mortgage or pr.vilege stipulated in an act of sale in his favor does not impose on him the obligations of vendor and warrantor. O. 0.1902; 16 An. 198; 31 An. 415; 38 An. 585; 7 An. 67; 12 An. 699; 24 An. 603. Also distinction drawn between the rights of seller and third holder of vendor’s privilege respecting enforcement of resolutory condition.

      5. ICquitv the basis of estoppel. In asserting his legal mortgage plaintiff merely states a fact which the law and the public mortgage records have continuously proclaimed as true since a time long anterior to the acquisition by Lanaux or Ortenbacli of any rights on the property affected by it.
    6. The legal mortgage in favor of the minor at the time of the partition sale attached to the property formerly owned by his tutrix. That moitgage continued to adhere to the property, and could not be removed or enforced until after the termination of the functions of the tutrix. 6 R. 51; 33 An. 49; 5 An. 497; 12 An. 78, 361; 13 An. 508; 19 An. 55.

      Edward W. Pugh, contra,

    cited; 42 An. 747; 2 An. 478; 23 An. 442; 34 An. 1126; 33 An. 1126; 35 An. 142; 1 An. 307; 32 An. 949; 42 An. 746; 21 An. 11; 21 Wall.; 1 An. 482; C. P. 35; C. O. 1844 ; 6 Toul., Nos. 150, 153; Pothier, Obligations, Nos. 58, 71, 480; Mourlon, Yol. 3, p, 278, Art. 1686; 34 An. 165; Laurent, Yol. 30, p. 6, Sec. 2, p. 18, Sec. 16; Trop. Priv. and Hyp., No. 65, p. 595; Laurent, Yol. 30, p. 11, Secs. 9, 10; Pont. Priv. 1, tit. 28, Secs 190, 145, 187; 32 An. 287, 828; 17 An. 256; 17 La. 65; 33 An. 967; 31 An. 415; 38 An. 360; 19 An. 35.
   The opinion of the court was delivered by

McEnery, J.

The plaintiff, an emancipated minor, alleges in his petition that be is the sole issue of the marriage of Amelia Bouchereau and the late James A. Dodds: that in the matter of Robert N. Sims vs. Mrs. James A. Dodds, on the docket of the Twenty-second Judicial District Court for the parish of Ascension, an order of sale issued, and the sheriff, on the 6th day of February, 1886, sold'at public auction, according to law, a plantation situated in the parish of Ascension, on the right bank of the Mississippi river, six miles above the town of Donaldsonville, measuring fifteen arpents front by a depth of forty arpents, bounded above by the lands of Raphael Anthony and below by Pierre Fevrier and others, which was adjudicated to Robert N. Sims for the price of 16500, of which amount the said purchaser, according to the terms and conditions of sale, paid in cash the sum of 84062.50 and for the balance of the price, amounting to 82437.50, the whole of which belonged to the petitioner as joint owner of the property sold, the purchaser bound himself to pay the same to petitioner at the date of his majority, or emancipation, in pursuance to the conditions of sale, with interest from said date at the rate of 8 per cent, per annum payable annually. The purchaser, to secure said credit portion, interest and attorney’s fees, did specially mortgage said property to the petitioner, who also retained on the property the vendor’s lien and privilege.

That Sims, the adjudicatee of said property, sold the same to Geo. A. Lanaux, and that the said Lanaux assumed in the act of sale the above amount due the petitioner. The interest has been paid on the mortgage debt to 6th February, 1890.

The petitioner further shows that he has an additional claim on said property for the sum of $5104.85, with legal interest from the-24th March, 1892, and that he is entitled to a mortgage on all the immovable property owned by his mother at the date of her appointment as tutrix; that at said date she owned one undivided half of the Home place, the property above described, and the same was covered and affected by the legal and general mortgage in his favor resulting from said tutorship. The petitioner, while enforcing his mortgage rights under the sheriff’s deed of 6th February, 1886, to R. N. Sims, reserves the rights on said property resulting from said tutorship from the 29th March, 1876.

In the event of the seizure and sale of the property he asks that the funds be regulated and distributed conformably to the standing and rank of said mortgages.

He prays that the property described in the sheriff’s deed to Sims, 6th February, 1882, be sold in default of payment to satisfy his-mortgage debt.

The property was seized and advertised to be sold. Edward J. Ortenbach prayed for and obtained an injunction arresting the sale.

In his petition he alleges that he bought said property from Geo. A. Lanaux, 1st September, 1890; that the sheriff, purporting to act under an order of seizure and sale issued by the Twentieth Judicial District Court, had seized the property and advertised it for sale, and he denies that, said court issued or granted the order, and that he was without power or authority to act in the premises. Should this objection to the writ be overruled, he declares that a sale was made by the sheriff of this property, in the case of R. N. Sims vs. Mrs. Dodds, tutrix of J. L. Dodds, the minor Dodds being the owner of an undivided half of said property. At that sale Sims became the purchaser, and a part of the consideration was that R. N. Sims was-to pay said minor the sum of $2437.50, with interest from the date of sale, with vendor’s privilege on the property.' In the sale toLanaux he assumed to pay, as part of the purchase price, this-, obligation of Sims, and the purchaser from Lanaux, Ortenbach, plaintiff in injunction, obligated himself to do the same thing, securing said minor’s debt by the vendor’s privilege on the whole property. He avers that he has always been ready and willing to pay the amount of 3aid obligation to plaintiff resulting from-said assumption, but that he demands of said Dodds, the plaintiff, that he will give to him a full and clear receipt of all claims of the-indebtedness of said property to him.

Referring to plaintiff’s legal mortgage as set forth in his petition, he avers that he occupies the position of vendor and warrantor of the property; that he was originally the vendor, and as such he is estopped from setting up or claiming any mortgage against the property other than for the price of sale of the property to Sims,, and that the plaintiff has fully recognized his title by his suit to enforce the mortgage against Lanaux, reserved in the sale of sheriff to Sims, 6th February, 1886. He denies the existence of the legal mortgage resulting from the tutorship. He further states that there is a judgment of Melancon against plaintiff, rendered against his mother individually and as tutrix, 9th September, 1885, which affects, the property, and which plaintiff should pay before attempting to enforce his mortgage.

All of these facts, he alleges, constitute a cloud upon the title to the property, and as vendor and warrantor, said Dodds, the plaintiff, is bound in law to quiet and maintain him in peaceable possession of the property.

There was judgment for plaintiff and the defendant appealed.

The first ground for the injunction was abandoned in the lower court, and has not been urged in this. As there is no force in it, it-will not be reeessary to discuss it.

The facts admitted by counsel are as follows:

“James A. Dodds died in the parish of Ascension on the 20th day of November, 1875. His succession was opened in said parish and an inventory with appraisement was made of the property belonging to his succession and to the community of acquets and gains formerly existing between him and his wife, Emilia Bouchereau, showing property to the amount and value of $11,458.74, which inventory embraced among other things the plantation seized, in the present suit! This inventory was filed in court on the 13th o December, 1875, and on the 14th day of December, 1875, a correct abstract thereof was recorded in the mortgage book of the parish of Ascension.
“ And on the 14th day of December the said widow was duly appointed and confirmed as natural tutrix of her minor son, James Lewis Dodds, sole issue of her marriage with said deceased.
“ She qualified as such and letters of tutorship were issued to her on said day.
“ On the 1st of August, 1885, all of the right, title and interest of Widow Dodds in and to the Home plantation was sold at sheriff’s sale under a writ of fi. fa. in the suit of B. Lehman & Bro. vs. Mrs. James A. Dodds, and said interest, consisting of the undivided half thereof, was adjudicated to R. N. Sims for the price of 8335, part of which he paid cash and the balance he retained as owner of the judgment under which the execution issued. On the 22d of August, 1885, Sims, the purchaser of the widow’s half of the plantation, brought a suit against Widow Dodds, as tutrix of her minor son, for a partition of the property held in common between him and said minor. A decree of partition was subsequently rendered ordering a sale of the property, and the same was sold on the 6th of February, 1886, and adjudicated to R. N. Sims, as recited in the sheriff’s deed of sale filed in evidence. On the 18th of April, 1891, the plaintiff, J. L. Dodds, was emancipated by a judgment of the District Court of Ascension. On the 24th of March, 1892, Widow Dodds filed her final account of tutorship, showing indebtedness of $5104 to her son.
This account was approved by the latter, was duly homologat ed and on the said 24th March, 1892, a final judgment was rendered against the tutrix in favor of her son for said sum, $5104, with five per cent, interest from date thereof, with recognition of the general mortgage in his favor on all the property of his tutrix from the date of its registry, 14th December, 1875. Widow J. A. Dodds, after the sheriff’s sale in the suit of B. Lehman & Bro. vs. Mrs. J. A. Dodds, owned no property and has acquired none since that time.”

The proposition of the plaintiff in injunction is that he became the subrogee of Lanaux, and stands precisely in his shoes, and that Dodds, claiming through and under Sims, has no greater right than Sims would have had. The measure of Dodds’ right against Lanaux is fixed by the right of Sims against Lanaux. Upon this hypothesis Ms argument is based. He contends, that Dodds could ignore any and all alienations of the property made by Sims, and that the property was still in his possession, and at the moment he selected Lanaux as the party against whom he proceeded, he ratified the sale to Lanaux and made Sims’ act, so far as the violation of the pact de non alienando, his own.

In this way he made the contract of sale from Sims to Lanaux his own, by ratification, became Lanaux’s vendor, and therefore, the warrantor of his title, and of the title of Ortenbach.

From this springs his right to assert the vendor’s lien and privileges, and not from the partition sale in which Sims became the owner of the entire property, and in the deed to which the vendor’s privilege was retained in favor of Dodds.

At the partition sale, Sims a coproprietor, obtained title to the whole property, to which he had before the partition sale an undivided interest in the whole, and the sale only made him the owner of the entire property to which he had previously an undivided interest, his copartner receiving a portion of the money that the property brought at the licitation as an equivalent for his undivided interest.

In other words, Sims was not a purchaser of the property, as his co-proprietor never had title to the entire property, but only the right to receive a portion of the money it brought by licitation to effect a partition.

We have followed closely, and examined with care, the able brief of the counsel for Ortenbach, but from the facts in the record we are unable to agree with him as to the effect of the suit of plaintiff Dodds against Lanaux. We do not think it necessary to discuss whether or not Sirps had a right to grant the vendor’s privilege to plaintiff, as the mortgage stipulates that for the amount due him, the plaintiff, a special mortgage is granted to secure the same. He unquestionably had in the deed from the sheriff to Sims a special mortgage retained in his favor. The sheriff’s deed to Sims recites: “The undivided half cash, and the other undivided half, one-fourth cash on the day of sale, and the balance payable at the majority or emancipation of the minor, James Lewis Dodds, the purchaser giving approved security in solido to the satisfaction of the tutrix, with special mortgage and vendor’s privilege with the pact de non alienando on the property sold, until final payment, and the obligation of paying eight per cent, interest annually on said balance to said tutrix, 'the property to remain specially mortgaged for the security, for the payment of said credit instalment and the interest thereon as afore-said,” etc. In the petition for the order of seizure and sale, the deed is made a part of it, which also recites that in order to secure the payment of said credit portion of said purchase price and the interest thereon * * * a vendor’s lien and privilege was retained in petitioner’s favor on the property sold, and the said purchaser, in the authentic deed of sale, did specially mortgage and hypothecate said property in petitioner’s favor and bound him to make no disposition of said property to the prejudice of said act of adjudication, said mortgage and privilege securing said credit portion of the purchase price of said property.”

If, as contended by the plaintiff in injunction, no vendor’s privilege could result from the sale at the partition sale where one of the coproprietors became the purchaser, the stipulation in the act of such a privilege could not create it, as privileges spring directly from law and not from the conventions of the parties. Therefore, if the vendor’s privilege be stricken from said deed, the special mortgage securing the credit portion in favor of the minor still existed. That Sims, being the owner of the entire property, had a right to grant such a mortgage can not be denied.

The sale by Sims of the property, notwithstanding the pact de non alienando, could not by any process of reasoning make the holder of the special mortgage a vendor, standing in Sims’ place, when he has recourse to his (Sims’) vendee to enforce the payment of the mortgage. There was no violation of any contract in the sale, the ratification of which could make the mortgagee, enforcing his rights, a party to the contract between the mortgagor and mortgagee.

There is no violation of contract by the sale of property mortgaged with the pact de non alienando stipulated in the act of mortgage. Such a stipulation does not prevent the mortgagor from selling the property; its only effect being to permit the seizure of the property by the mortgage creditor in the hands of third persons by proceedings directly against the mortgagor, without notice to third persons. Bank vs. Miller, 44 An. 199.

In the sale from Sims to Lanaux, in the deed it is stipulated, ■“ and for the balance of the purchase price, say the sum of $2037.50, the present purchaser does hereby assume to pay to the discharge of the present vendor the obligation contracted by said vendor in favor of the minor, James Lewis Dodds, for the amount of $2437.50, being the amount retained by the present vendor to pay the minor, James Lewis Dodds.” The deed from the sheriff to Sims is made a part of this deed.

Lanaux assumed the mortgage in favor of Dodds, and thus took the place of the original mortgagor and could be proceeded against directly.

But the proceedings are not attacked for want of formality, or for the want of proper parties against whom they should be directed.

The plaintiff, we conclude, had a valid special mortgage on the property to recover the amount due him, to be paid at his majority, or when he was emancipated.

His attempt to enforce this mortgage could not impose upon him any conditions not mentioned in the contract or act of mortgage.

He can not, therefore, be made to assume the obligations of warrantor in a contract of sale between the mortgagor and the vendee.

If he had any rights on the property independent of his special mortgage, and not inconsistent with it, he did not relinquish them by enforcing his mortgage debt.

Dodds, the plaintiff, was a minor when this special mortgage was executed in his favor to secure the amount due him for his portion of the property held in indivisión between him and Sims. His mother’s part of this property had been sold under execution, and Sims became the purchaser, the minor owning one undivided half and Sims the other. Dodds had since 1875 a recorded legal mortgage against his mother’s interest in the property.

In 1891 Dodds, the minor, was emancipated, and in March, 1892, the final account of the tutorship was filed and homologated, and judgment was rendered in favor of the emancipated minor against his mother, tutrix, for the sum of $5104.85. The legal mortgage burdened the property when in the mother and tutrix’s possession, and when Sims became the purchaser and owner it rested on his half of the property. We do not understand that the existence of this mortgage is seriously contradicted.

From the statement of facts it is evident that the legal mortgage has never beeu cancelled. It was unaffected by the several sales heretofore mentioned. During the minority of Dodds it could only have been cancelled by a special mortgage on other property by the advice of a family meeting. Life Association vs. Hall, 33 An. 49; Fleetwood vs. Bordis, 12 An. 55; Massey vs. Steeg, 12 An. 78; McHugh vs. Stewart, 12 An. 361; Lecarpentier vs. Lecarpentier, 5 An. 497.

The special mortgage and the legal mortage were in no way connected, and were independent obligations, growing out of different and distinct transactions.

The first was to secure the minor for property owned in his own right which had been sold, and the second was the result of the management of his property by his tutor, being a mortgage on her property to secure her indebtedness to the minor.

There was no inconsistency in the ownership in the same individual of these separate and distinct obligations. He owned two distinct debts, secured by two different securities. The one did not include the other. The one could be enforced without affecting the other.

Ortenbach acquired the motrgaged property from Lanaux, and assumed the special mortgage in favor of the minor Dodds.

He bought the property affected by the legal mortgage. It was therefore unreasonable to demand that before he paid the special mortgage assumed by him that the emancipated minor should surrender the legal mortgage resting on one-half the property.

The Melancon judgment was rendered against the tutrix individually and as tutrix. The plaintiff in injunction has not paid this judgment, and there is therefore no legal reason why he should arrest the sale for a claim which he has not paid. The judgment creditor is silent, and it does not appear that he has in any way authorized the plaintiff in injunction to collect this judgment for him.

The plaintiff, Ortenbach, can suffer no injury from any decree entered herein. He acknowledges owing the bebt due the minor, which he assumed and made a conditional tender of the same.

In the sale from Lanaux to Ortenbach the latter has full warranty against “all debts, claims, mortgages, privileges, taxes or incumbrances whatsoever.” The price of the property was $12,500; $1062.50 was in cash, and the balance on terms of credit, payable one, two and three years from date, 1st September, 1890. The principal and interest retained on the credit price will be sufficient to pay the claims of plaintiff. It is significant that Lanaux makes no complaint, and there is no holder of the mortgage notes, if they have ever been transferred, who complains.

The proceedings were arrested by injunction and the allegations were traversed, but the issues were (1) whether the plaintiff could, enforce his legal mortgage on the property, of which it was alleged he was vendor and warrantor, the right to do which he had reserved in his petition for executory process; (2) whether plaintiff could enforce his mortgage without satisfying the judgment which was recognized of Melancon vs. Tutrix, Individually and as Tutrix. The amount due the minor and recognized by special mortgage is admitted. The tender of the amount acknowledged to be due was conditional, that he would give full acquittance for the legal mortgage and the Melancon judgment.

The appellee has filed a motion for an amendment of the judgment so as to give him the absolute right to enforce the legal mortgage in the executory proceedings out of the proceeds of the sale of the property affected by it to the amount of 15104.50, as prayed for in his answer to the injunction suit.

In executory proceedings the plaintiff can obtain the writ of seizure- and sale only on authentic evidence which imports a confession of judgment in favor of the creditor.

In the assumption by Lanaux and Ortenbaeh there was no promise to pay this, legal mortgage evidenced by authentic act. No order therefore in the petition for the the writ of seizure and sale could be granted, with reference to this legal mortgage, either as to the prop-erty or the future distribution of the proceeds.

The remedy is pointed out by law for the exercise of rights upon-the proceeds of the sale, or for the enforcement of the legal mortgage against the property.

The prayer of the petition is for the sale of the property, in default of payment of the sum due the minor, secured by special mortgage and his rights under the legal mortgage against the property affected by it, or on the proceeds to be reserved.

We interpret the judgment as responsive to this prayer. The plaintiff has obtained all the relief he prayed for, or which could be given him by executory process. His rights against the property or its proceeds are reserved.

The judgment in effect decrees:

1. That the sheriff proceed with the execution of the writ of seizure and sale.

2. The right is reserved to plaintiff to enforce his legal mortgage against the property or its proceeds.

Judgment affirmed.


text:
    No. 11,184.
    The State of Louisiana vs. Christoval Hillstock bt als.
    This court has repeatedly held that it will not interfere in the matter of continuances with the discretion vested in the trial judge unless his rulings are manifestly unjust and arbitrary.
    The same rule is applicable to his rulings on applications for attachment against witnesses.
    Where twenty-four witnesses have been summoned to prove an alibi and two do not attend, and the judge refuses to grant a continuance because of their absence, the evidence being cumulative oniy, his rulings were the exercise of a sound legal discretion in the interest of public justice in a manner that could in no way injuriously affect the defendants.
    APPEAL from the Eleventh District Court, Parish of Acadia, Perrault, J.

      M. J. Cunningham, Attorney General, for the State, Appellee.

      JS. L. Veazie, for Defendants and Appellants.
   The opinion of the court was delivered by

McEnery, J.

The accused were prosecuted for assaulting by wilfully shooting at with intent to commit murder and to rob, and were .convicted and sentenced. They appealed.

Under the provisions of Act 139 of 1890 they applied for subpoenas, •which were issued for eighteen witnesses. In the application it is ■.stated that the accused expect to prove by said witnesses “ that they were not present at the time and place of the commission of the robbery charged in the bill of indictment. ’ ’

Two of the witnesses, Mrs. Ledet and Whatley, although served personally with the summons, failed to appear.

Alias summonses were asked for these absent witnesses. The trial judge refused to order them. Mrs. Ledet was sick, and although she was summoned as Louise instead of Louis Ledet, the judge very properly declined to have her again summoned, as her physician’s certificate showed that she was in bed sick (childbirth) and was physically unable to attend court. The witness Whatley had personal service made upon Mm, and it was ' not only unnecessary but irregular to again subpoena him.

Attachments were asked against these witnesses. The judge refused to order them to issue, because of the physical condition of Mrs. Ledet, and the issuance of a subpoena for Whatley would be equivalent to a continuance, as the court was reaching the end of its term, and the attachment could not be served before the end of the term.

Finally a continuance was prayed for, which was denied, the trial judge assigning as reasons therefor the same that he gave for refusing the attachments, and as additional reasons that the motion was made for delay, and that the witnesses who were absent, by the statement of the accused in their several applications, could only testify to facts for which the other witnesses had been summoned to prove, and their testimony therefore would only be cumulative.

In the matter of continuance we have repeatedly held that this court will not interfere with the legal discretion vested in the trial judge unless his rulings are arbitrary aud unjust. State vs. Redmond, 37 An. 775; State vs. Primeaux, 39 An. 673.

The defendants have suffered no injury from the refusal of the trial judge to issue the attachments, and the denial of their motion for a continuance.

Six witnesses were allowed defendants, and they were entitled to additional witnesses. In the applications for the eighteen additional witnesses, on making application for them, they stated that they expect to prove by them an alibi. It is therefore to be presumed that the six witnesses first summoned were subpoenaed for the same purpose.

The derendants summoned twenty-four witnesses to prove the same facts.

The testimony of the two absent witnesses would therefore have been only cumulative. The judge’s rulings were neither arbitrary or unjust. On the contrary he exercised a sound legal discretion in the interest of public justice, in a manner that could in no possible way injuriously affect the defendants. 39 An. 673.

Judgment affirmed.


author: Breaux, J.

text:
    No. 11,026.
    Katherine Sherry Chase vs. New Orleans Gas Light Company.
    The burden oí' pleading does not devolve upon the defendant unless he has a special defence.
    Sued as a “ third possessor,” the defendant pleaded affirmatively, and alleged inter alia that the mortgage claim of plaintiff did not attach, for causes assigned, to the properties plaintiff seeks to have sold.
    Though the descriptive allegations were not as clear and complete as they should have been, notice was given to the opposite party of the grounds of defence, and it furnishes ample evidence in all future controversies of what was decided on the issues presented.
    The ruling of the District Court admitting the testimony remains.
    The notice of demand was signed by the sheriff and not by the clerk. The irregularity is cured if the defendant allows the property to be sold without objecting.
    Proceedings to sell property under an order of seizure and sale, after the seizure of the property, were not stayed by the mere commencement of proceedings in the United States District Court.
    4. Sales made by virtue of “ writs of seizure and sale ” which were issued, and the seizure made prior to the enactment abolishing them and completed subsequently under the authority of courts to which they^were transferred, are not null.
    APPEAL from the Civil District Oourt, Parish of Orleans. Ellis, J.

      Geo. L. Bright, for Plaintiff and Appellant, cited:
    Hughes vs. United States, 4 Wall. 232; 14 Peters R. 156; Greanleaí Ev., Sees. 329, 530; City Bank vs. Walden, 1 An. 46 ¡Louisiana State Bank vs. Orleans Manufacturing Co., 3 An. 294; Opinion of District Judge, p. 22; Pratt vs. Peters, 49 N. W. R., p. 766; Millbank vs. Jones, 28 N. E. R., p. 31; Winn vs. Gilmer, 16 S. W. It., p, 1058 ; 6 La. Ill; 17 La. S2, 259, 371; 49 La. 542; Gas Co. vs. Hudson, 5 Rob. 486; Bludwortli vs. Hunter, 9 Rob. 263; 9 La. An. 119.
    The regular practice is to object to the evidence. 21 An. 271; 20 An. 193.

      Buck, Dinkelspiel & Hart for Defendant and Appellee:
    1. A judgment maintaining an exception of no cause of action may serve as a basis for the plea of res acljudicata. 35 An. 553.
    2. The hypothecary action docs not lie except against a possessor under title. 26 An. 608.
    3. A creditor holding a mortgage with tne pact do.non alienando is not bound by any sale of the property to -which he is not a party. 33 An. 758; 113 U. S. 293.
    4. Proceedings in bankruptcy do not affect seizures of property pending at the ■ time the proceedings were filed. 14 Wall. 419; 16 Wall. 501; 20 Wall. 414; 21 Wall 642; 91U. S. 521; 3 Woods, 569.

      5. Where notice of demand was signed by the sheriff instead of the clerk, the irregularity does not affect the sale. 29 An. 262-206; 9 Robinson, 423; 80 An. 86; 33 An. 126.
    8. Proceedings pending in the courts of the parish of Orleans were not affected by the adoption of the Constitution of 1879. See Art. 257.
   The opinion of the court was delivered by

Breaux, J.

The husband of plaintiff was indebted to her for paraphernal funds aggregating 811,480.

He acknowledged receiving the amounts from his wife in a notarial act, on 29th March, 1877, which was recorded in the mortgage office on the 2d day of April of that year, and it is stated in the act that he disposed of them for his individual interest. The act was reinscribed on the 1st day of August, 1890.

Plaintiff seeks to enforce her legal mortgage by the hypothecary action against the properties described in her petition, in possession of the defendant company, as “their possessor.”

She alleges that the lots were owned by her husband at the date of the inscription of her claim and became subject to her legal mortgage.

It is proven that at his death plaintiff’s husband did not own any property.

General Denial and a Special Defence.

We will for a moment interrupt the statement of facts in order to consider and determine an objection of plaintiff to testimony offered by the defendant (and admitted by the court) on the ground that the answer is vague and indefinite; that it does not show in what cause the property was sold, what court issued the process, at whose suit and for what amount, nor that it was sold for a claim that primed the plaintiff for an amount insufficient to pay both.

That it contains nothing in avoidance of plaintiff’s claim, and that all evidence offered in support of that part of the answer should have been rejected.

The contention of plaintiff, if sustained, would limit the cause to the facts stated in her petition and to the general denial, which puts at issue the facts necessary to plaintiff’s recovery. This would, if sustained, abbreviate the facts of the case.

The answer reserves the exceptions overruled and contains a general denial, and further answering the respondent says: “That as to the fiist and second pieces of real estate described in the petition of plaintiff, her said so-called mortgage never attached for the reason that said property was sold under foreclosure proceedings, against the vendor, O. H. Chase, upon a claim identified with a notarial act of mortgage containing the pact de non alienando.

“That as to the third property, said so-called mortgage ne\er attached, because when the pretended evidence thereof was recorded in the mortgage office said property was then under seizure, by the civil sheriff, and that when subsequently sold by him, said inscription being subordinate to the writ under which the sheriff held the property, as well as the mortgage upon which said writ issued, was canceled.”

We have examined the decisions of this court, to which our attention is invited, as well as others upon the point involved.

They sustain the general proposition that the general denial only puts at issue the facts necessary to plaintiff’s recovery.

Discussions have been frequent and many rulings have been made in the application of this principle governing pleadings.

The following is our summary of the decisions referred to in plaintiff’s counsel’s brief:

Payment is a peremptory exception going to extinguish the action and plea in compensation and reconvention, and should be set forth with the same certainty as to amount, dates, etc., as if the party offering them were himself a plaintiff in a direct action. Gleises vs. Faurie, 6 L. 457; Landry vs. Bauguon, 17 L. 82; White vs. Moreno, 17 L. 371; Mortimer vs. Zoppeau, 9 L. 109; McKim vs. Mathes, 19 L. 542; Bludworth vs. Lambeth, 9 R. 263.

Principles are laid down in these cases on the subject of pleading which do not admit of discussion. They do not apply to the case at bar.

In other decisions referred to it is held that under the general issue the defendant has a right to show that plaintiff has no claims or a less one than he sets up, or show money legally expended for his maintenance ; and in general payment may be proved; made to any other person than the plaintiff, which tend to lessen or destroy the demand.

The defendant can not be permitted to set up a special defence under the general issue, for the plaintiff would be taken by surprise

Pleas will not be listened to not made below. Davis vs. Davis, Syndic, 17 La. 259; N. O. Gas Light and Banking Co. vs. Hudson, 5 R. 486.

The general issue reduces the controversy between the parties to the question of truth or falsity of the plaintiff’s allegation and the legal effects of the facts when proven. Wells vs. St. Dizier, 9 An. 120.

These cases present issues with reference to the admissibility of evidence under the plea of general denial, and are not in that respect analogous to the ease at bar.

The special allegations in defendant’s answer are not inconsistent but in harmony with the plea of general denial. They are a part of the defence supporting the issues, and affirming an hypothesis opposite to that alleged in the petition.

Oonceding that this answer is not as clear and explicit as it should have been, it is not made apparent nor is it suggested that plaintiff was taken by surprise, and deprived of the means of meeting the issue. N. O. Gas Light and Banking Go. vs. Hudson, 5 R/486.

“ If by loose mode of pleading either party should be surprised the law has vested ample power in the judge to correct the injury.” Livingston vs. Heerman, 9 M. 710.

Under the general issue, independently of other allegations, the court observes: ‘ ‘ The pleading is certainly very bad, but the attorneys mistaking compensation for payment does not change the substance of the defence.” Collins vs. Pellerin, 6 An. 36.

Courts look to the substance of the plea. Chom vs. Merrill, 9 An. 583.

“A major allegation may dispense with a minor allegation.” Bethemont vs. Davis, 8 M. 291; Sehiff vs. Wilson, 3 N. S. 91; Carpenter vs. Featherston, 15 An. 235.

The district judge has admitted the evidence.

The ruling is not without or beyond the object contemplated in requiring that notice shall be given to the opposite party.

Statement of the Facts Resumed.

The remainder of the facts are that two of the lots described in-plaintiff’s petition as subject to her mortgage were acquired from W. O. Lipscomb, May 29, 1872, by plaintiff’s husband, for $20,000 cash, and he assumed notes due by his vendor, Lipscomb, in favor of the latter’s vendor, amounting to $35,000. Lipscomb had purchased from Penn.

The third lot, also proceeded against', was bought by plaintiff’s husband from the same vendor, Lipscomb, on the same day, for $1890 cash, and $3670 in vendor’s notes assumed in favor of Penn’s vendor to the said Lipscomb.

The deeds of salé were duly recorded at the time. They contain the pact de non alienando. The credit portion of the price not having been paid, to enforce payment, proceedings via exeeutiva were taken in the Fourth District Court, on the 10th of February, 1874, by the holder of the unpaid note against the lot thirdly described in the plaintiff’s petition.

The notice of seizure, the advertisement, and the other proceedings were in due form, except the notice of demand served, which was signed by the sheriff, instead of the clerk as required. The property was kept under seizure until July 12, 1881, at which time it was sold for $5000 cash, to pay the mortgage debt. The sheriff’s deed was properly recorded and the mortgage inscription for plaintiff’s paraphernal claim now proceeded on by her was canceled and erased from the mortgage records on August 2, 1881.

In the Superior District Court of Orleans parish, another creditor, holder of vendor’s mortgage notes assumed by plaintiff’s husband on the 12th day of July, 1875, proceeded also via exeeutiva against the first and second lots.

The writ of seizure and sale issued July 13, 1875. The sheriff served all the notices required after the seizure and ail the required formalities were observed, except that, as with the seizure and sale of Lot 3, the notice of demand was signed by the sheriff and not by the clerk.

The property was under seizure until June 15, 1877, when it was adjudicated to the plaintiff in the executory proceedings, the New Orleans Savings Institution, for $16,670, being less than the amount due this creditor. In other words, the first lots were seized July 19, 1875, and the last, referred to above, in February, 1874. They were kept under seizure by the sheriff until the sale; the former was adjudicated by him to said creditor June 15, 1877, and the latter July 12, 1881.

In reference to the informality of the notice of demand and the prematurity of the seizure, the record discloses that in one of the said cases the notice of demand signed by the sheriff was served on the 14th day of July, 1875. The writ of seizure and sale issued on the 13th day of that month and year. The notice of seizure was = served July 19, 1875.

Plaintiff’s husband, O. H. Chase, went into bankruptcy in the United States District Court on April 2, 1877. He placed these properties on his schedule, also the notes proceeded on in the exec - utory process suit, Nos. 42,843 and 43,506.

The judgment is for defendant, from which the plaintiff appeals.

The plaintiff argues that these sales are nullities and do not affect • its rights because the notices of the demands were issued by the-sheriff, instead of by the clerk in said executory process; that the ■ writ was, as a consequence, a nullity, and the seizure of the property thereunder was likewise a nullity in each case.

The plaintiff’s further contention is that the bankrupt court acquired exclusive jurisdiction over the properties and that a sale-thereafter by executory process issued by a State court is null.

Plaintiff lastly urges against the said executory proceedings that a sale made after the Superior District Court had been abolished under writs issued by these respective courts prior to the law abolishing-them are null.

2. — Irregularity of the Notice of Demand.

Relative to the notice of demand and its issuance by the sheriff: ■

It has been held that it is an irregularity.

In Hart and Hebert vs. Pike, Brother & Co., 29 An. 262, the question was decided in an injunction suit. (The injunction issued prior to the sale.) The court sustained the injunction, but stated “ We-have lately held that where the notice was signed and served by the sheriff, he having the note in his hands at the time, it was not such an irregularity as would vitiate the sale.”

Daring the same session, a short time prior to the decision of this ease, this court held in Jouet vs. Mortimer, 29 An. 206, that “the signing by the sheriff of the notices of demand made on the defendant in executory proceedings is an irregularity which can only be availed of by the defendant by pleading before the sale of the mortgaged property.”

That the notice to the debtor is issued by the sheriff instead of by the clerk is not such an irregularity as to justify the annulling of the sale made under the proceedings. Sadler vs. Henderson, 35 An. 826.

In Billgery vs. Ferguson, 30 An. 85, the cases reported 29 An. 262. and 206 are referred to approvingly, and the court held that “ if such notice had been issued by the sheriff, and objection to it is formally made before any sale of the seized property has taken place the objection will be sustained.”

In Nash vs. Johnson, 9 R. 12, the court held in effect that the object of the law is notice and an opportunity to the defendant to protect his rights; the form of the notice is not material.

These decisions have settled the question. The informality is cured by the sale preceded by the required advertisement, notice of seizure and other formalities.

The act of an unauthorized official in giving the notice of demand is given effect to if the parties defendant do not choose to avail themselves, prior to the sale, of the irregularity.

With reference to prematurity in issuing the writ:

After the order of seizure and sale is signed a delay is accorded to the debtor from the date of service of demand before the issuing of the writ.

The ministerial act of the clerk in affixing his signature to the writ before the expiration of the delays can not operate to the prejudice of the defendant.

None of his rights are thereby affected.

After the sale in the proceedings in which the clerk has thus acted prematurely it offers no ground for its nullity.

A writ prematurely dated, not acted upon, which remains in the clerk’s possession, can not invalidate an acquired title.

3. — The Bankruptcy Proceedings.

Question arises in reference to sales made by the State courts after the declaration of bankruptcy under process which issued prior.

The plaintiff argues that they are null and void, and did not have the effect of canceling her mortgage.

As above stated the seizures were made prior to the surrender in bankruptcy, and the sale some time after.

The evidence discloses that two of the pieces of property described in the petition of the plaintiff were sold at the suit of the New Orleans Savings Institution vs. W. C. Lipscomb (the vendor to Chase) under an act importing a confession of judgment and containing the pact de non alienando.

Neither under the bankruptcy laws nor under the State insolvency laws does the property of the bankrupt, notwithstanding the pact de non alienando, pass to the assignee or syndic at the date of the declaration in bankruptcy or insolvency.

In so far as relates to foreclosure proceedings the vendee can ac•quire no rights therein nor make such transfer or assignment as will bind the creditor to proceed against the subsequent owners of the property.

In Avegno vs. Schmitt, 115 U. S. 293, that court held that the mortgagee may enforce his mortgage by proceeding against the mortgagor alone, notwithstanding the alienation of the property, and applied the rule to the alienation by confiscation — i. e.,the court decided that a decree confiscating real estate under the confiscation .act of July 17, 1862, did not prevent the mortgagee from closing his mortgage against the mortgagor alone.

The contractual stipulation securing the said pact is a right binding third persons.

A number of cases of this court are approvingly referred to and •quoted from in the opinion in the Avegno case, and it is held in clear terms that the mortgagee is not bound to proceed against the “third possessor.”

The assignee and those who become owners of property are without right to disseize a State court from its jurisdiction after seizure. The property was in gremio legis.

We do not rest our conclusion solely on the effects of the pact de non alienando, when process is directed against the mortgagor of property surrendered in bankruptcy by the third possessor, but rest it •also upon the further reason that the proceedings under which the property was sold passed title.

The third piece of property in the order of description in plaintiff’s petition was sold in proceedings via executiva directly against the mortgagor, Chase.

The stipulation de non alienando is not therefore involved as to the third lot.

The irregularity of the notice of demand is urged as similar to that ■affecting the sale of lots one and two. We can only add that the form of the notice of demand does not give rise to a question to set -aside and annul a sale.

The uniformity of the decisions upon the subject preclude any other •conclusion.

It is argued by the plaintiff that in matters of bankruptcy the United States District Court is vested with jurisdiction, although the property may be under seizure by process issued by a State court.

It does not appear of record that the mortgage creditors, under whose claims the properiy involved was sold, were parties to the proceedings or ever notified.

No plea was ever interposed, at any time before the sale, in the State courts.

The sheriff’s seizure dates before the commencement of proceedings in bankruptcy.

The assignee takes only the bankrupt’s interest in property. He has no control over the other interests which other parties, not parties to the proceedings, have therein.

He does not ipso facto become seized as trustee of every article of property in which the bankrupt has any interest or share. Bump on Bankruptcy, 7 E., p. 289; Goddard, Assignee, vs. Weaver, 1 Woods, p. 257; Switzer vs. Heims, 27 An. 25.

4. — Transfer of Writs of Seizure and Sale.

That the writs under which the property was sold ceased to have any legal effect is the last question argued.

The maxim of law that the court should amplify its remedies, without usurping jurisdiction, to apply its rules to the advancement of substantial justice,” is not without application.

The presumptions are always in favor of the court’s jurisdiction.” Am. and Eng. Ency., Vol 12, p. 305.

By Act 61 of 1877 the Superior District Oourt was abolished and its records in cases acted upon or still pending were transferred to the Third District Oourt, and the latter was vested with jurisdiction in the premises.

This court was charged with certain functions devolving upon the' Superior District Oourt, with jurisdiction in the premises,” which includes writs issued and the proceedings pending thereunder.

There is no manifest casus omissus; it was obviously the intention to transfer the causes pending in the Superior District Oourt to the Third District Oourt.

This court had jurisdiction of causes arising in the execution of writs.

They are part of the causes pending and inseparable from the judgments they were issued to execute.

They are accessory issues, and within the application of the principle cujus juris principale, ejusdem juris aoeessorium.

They were pending issues at the time before the Superior District Court, which passed to Third District Court, and from that court the proceedings of foreclosure of the mortgage on the property thirdly described, which was sold in 1881, were transferred to the present Civil District Court under the operation of Art. 261 of the Constitution.

The sheriff had the authority to execute the writs, as they remained valid under the different transfers made.

The plaintiff alleged that the defendant is a third possessor,” and as such made him a party defendant.

The action against a third possessor implies that he holds title to the property sufficient to defend against the demand that he should pay the debt or abandon the property.

He had the right to stand in judgment.

The effect of the judicial sale in the executory proceedings extinguished all mortgage claims remaining and subsequent to the ■claim under which the properties were sold.

Judgment affirmed at appellant’s costs.

Rehearing refused.


text:
    No. 11,179.
    The State ex rel. District Attorney vs. A. R. Moulin, Recorder.
    The recorders’ courts are “ examining courts/’ within the meaning of the statutes.
    Judges of the District Courts have the power to act as magistrates, to cause offenders to be arrested, and bound oyer or discharged.
    They do not do this as judges of the District Courts, nor as justices of the peace, but as magistrates authorized to perform these duties.
    The recorders have similar powers, as committing magistrates, inbailable cases.
    Under constitutional authority, the General Assembly “ may provide for police or magistrates’ courts.”
    Without restriction or limitation, the General Assembly has vested recorders with the authority of committing magistrates.
    It is held in a number of decisions that recorders can exercise the functions of committing magistrates.
    It should require very controlling considerations to induce any court to break down former decisions and lay again the foundation of the law.

      y^PPLICATION for Certiorari and Prohibition.

      Lionel Adams for the Relator.

      Evans & Dunn for the Respondent.
   The opinion of the court was delivered by

Breaux, J.

An affidavit was made before the recorder of the Second Recorder’s Court charging L. E. Roulet with murder.

The testimony of the witnesses was heard and reduced to writing.

The recorder continued the preliminary examination of the cause' to the 21st day of January, 1893.

On that day the Assistant District Attorney interposed a plea to the jurisdiction of that court, and alleged, substantially, that the complaint being for a capital offence the court’s functions were limited to the examination of the witnesses, and that the defendant should, after that examination, be committed to the Criminal District Court; that the recorder’s court was without jurisdiction to determine whether any or what grade of offence has been committed, or whether the defendant is or is not entitled to bail.

This plea was overruled.

Whereupon the relator applied to this court for a writ of certiorari commanding the recorder to send up a certified copy of the proceedings to the end that the jurisdiction of the recorder may be inquired into and determined, and also for a writ of prohibition commanding him to proceed no further, or show cause why the writ should not be made absolute. A rule nisi was issued.

The question as to the right of the recorder, under the authority of Act 209 of 1859, to admit accused parties to bail, in bailable cases, is the first at issue in this case.

The relator contends that this act of 1859 has been repealed by the Constitution of 1868; by Act 160 of 1868; by the Revised Statutes of 1870; by the Constitution of 1879, and by Act No. 20' of 1882, and Act 45 of 1886.

The Constitution of 1868 vested the judical powers in a Supreme Court, in District Courts, in parish courts and in justices of the peace, and ordained in another article that no judicial powers except as committing magistrate in criminal cases shall be conferred upon any other officers.

To the justices of the peace was left such criminal jurisdiction as should be provided for by law.”

At the first session of the Legislature which followed the adoption of that Constitution; Act 160 of 1868 was adopted.

It was an amendment of the act relative to criminal proceedings of 1855, and made it the duty of the justice of the peace, or committing magistrate, or judge before whom the accusation is brought, to receive the complaint and cause the accused to be arrested.

In capital cases, and in cases punishable by imprisonment in the penitentiary, the accused was to be brought before the district' judge of the district, or the parish judges of the parish, in which it was charged the offence had been committed; it was the duty of the judge sitting as a committing magistrate to examine the witnesses, against the accused on oath, and reduce their depositions to writing and to receive the voluntary declaration of the accused. If the case was within the jurisdiction of the justice of the peace, or committing magistrate, it devolved upon that officer to examine the witnesses and hold a preliminary examination. The line of division between the two jurisdictions, that of the justice of the peace or committing magistrate and of the district judge or parish judge, is clearly marked and well defined throughout the act.

The last clause left to the district and parish judges jurisdiction as committing magistrates in all cases. This act was copied bodily in the Revised Statutes of 1870, as Section 1079 of those statutes.

The Legislature, by Act 7, of 1870, entrusted recorders with the duties of ex-officio justices and conservators of the peace, and with the authority exercised by the recorders to that date.

They continued as previously authorized, with the additional title of ex-officio justice of'the peace, given in order to comply with the letter of the Constitution of 1868, restricting the delegation of judicial powers.

The Act 95 of 1873 repealed all laws establishing recorders’ courts and instituted instead four municipal police courts in the city with all the powers and duties vested in recorders and ex-officio justices of the peace at the time, and such other powers as -the city of New Orleans and the State of Louisiana may invest in said court hereinafter, in pursuance of law.”

The evident intention was to give them all the jurisdiction possible, under the limitations of that Constitution.

In 1877, the Legislature returned to the recorders’ courts and in the Act 731, E. S., vested them with the jurisdiction of municipal police courts, and of recorders’, as provided in the City Charter of that day.

It thus appears that in 1879, when the Constitution was adopted, recorders were vested with all the authority possible, under the ■Constitution of 1868.

And that authority continued to date, except in those respects, that changes, amendments or repeals have been made by the pres-

• ent organic law on the subject, and by the statutes adopted subsequently.

By Article 136 of the present Constitution the General Assembly • may provide for police or magistrates’courts. The justices of the peace are vested with criminal jurisdiction as committing magistrates, and with power to bail or discharge in cases not capital or necessarily punishable at hard labor. The district judges are by law committing magistrates in all cases. If Article 136, which reads: The General Assembly may provide for police or magistrates’ ■courts, but such courts shall not be vested with jurisdiction beyond the enforcement of municipal ordinances or as committing magistrates,” be controlled by a close interpretation of Article 126 ■of the Constitution, to-wit: They shall have universal jurisdiction as committing magistrates, and shall have power to bail or discharge in cases not capital or necessarily punishable at hard labor,” the former becomes meaningless and would be controlled by the latter intended to apply to justices of the peace.

It would not be possible to establish police or magistrates’ courts, not even in matter of the enforcement of municipal ordinances.

It has passed beyond question that the exercise of judicial power by the recorders of New Orleans is constitutional. State ex rel. Geale vs. Recorder, 30 An. 450.

No court of justice can be authorized so to construe an article to defeat its obvious end, when another interpretation accordant with the words and intention will give it effect; the maxim, TJt magisres valeat quam pereat, applies with special force. There are cases in which it is held that granting bail and the determining .the amount in which the parties shall be bound, are judicial acts.

A principle we are not under the necessity to question, further than to state that there are reputable authorities to the contrary: “ In the exercise of this jurisdiction the magistrate is deemed to act, not judicially, but ministerially; at least, he does not put forth judicial power, ’ within the meaning of the Court of the United States.” Bishop Crim., Proc., Vol. 1, p. 237.

By Act 20 of 1882, Sec. 45, police courts were established, to be known as recorders’ courts, and they are invested in one of the sections following with the jurisdiction of committing magistrates. This act repeals all prior laws conflicting or inconsistent with its provisions. It must be read as part of Section 1009 of the Revised Statutes, and as vesting the magistrate with all the powers of a committing magistrate, whether exercised by a justicejof the peace or a district judge. This act of 1882 has given to the recorders general powers as committing magistrates, and thereby modified Section 1010 of the Revised Statutes.

Finally, Act 45 of 1886 was adopted, making it the duty of the justices of the peace, or committing magistrates, and recorders of the city of New Orleans to take in writing the deposition and evidence of all material witnesses on behalf of the State, and when so requested by the accused, to write down the evidence of the witnesses for the defence, and in their discretion place witnesses under bond.

The depositions and bonds are returnable to the office of the clerk of court.

This act applies in all cases; (“When any person charged with “ having committed any offence,”) before committing magistrates, and is not irreconcilable with the duties devolving upon recorders in bailable eases. It is not limited to capital cases, but applies generally in all cases before “committing courts.”

We concede that Act 269 of 1859 is repealed. It was repealed by the repealing section of the Revised Statutes, which includes all laws contrary to or inconsistent with other statutes, and all laws or parts of laws on the same subject matter.

It being determined that the act of 1859 is inoperative and repealed, it eliminates from consideration all questions in reference to its effect or repeal.

The interpretation placed by as upon Section 1010 of the Revised Statutes and upon the Constitution of 1879, do nob restrict the functions of the committing magistrate to those of the justices of' the peace.

They are not in all respects similar. The jurisdiction of the-justices of the peac e is limited in express terms; a limitation under-the law which does not apply to other officers entrusted with duties of committing magistrates.

The word “magistrate” is a generic term designating a public officer. It is broad and not entirely definite in meaning.

An officer may be a magistrate and not a justice of the peace.

When the latter presides as an examining court he is restricted in-his jurisdiction.

When sitting as an examining court the district judge is a magistrate and has all the powers given to magistrates.

In all the laws to which we have referred as in force the duties of' the justice of the peace and of the district judge are clearly expressed.

“ There were anciently officers known as conservators of the peace, whose functions have since been incorporated into those of the justice of the peace.” Bishop, Yol. 1, p. 225.

In this State these functious have been incorporated into those of the justice of the peace (with certain limitations), recorders, and judges of the district and other courts. They are each committing magistrates.

The Constitution authorized the General Assembly to create polic e courts and vest them with powers of committing magistrates. The article delegating the power is not operative proprio vigore.

The law-making power in giving it judicial effect has given to recorders the authority to act as committing magistrates. The jurisdiction is not limited to that of justice of the peace in such cases. They were not given the limited powers of a justice of the peace, but of committing magistrates. Such was their authority under the-acts of 1870, 1873 and 1877.

The Legislature has not expressed the intention to limit'the authority in subsequent acts.

That office (the recorder’s) is made a part of the committing force of the State in all bailable cases.

This court has heretofore, in effect, held that recorders are vested in their respective districts with the duties of committing magistrates, such as are exercised by the justices of the peace in the parishes, and such as may devolve upon the district judges of the State. State ex rel. Sheehan vs. Judges, 32 An. 315; State vs. Corengh et al., 42 An. 416; State vs. Matrangas, 41 An. 1091.

In the first case the accused was charged with breaking and entering a dwelling house armed with a deadly weapon with intent to murder, an offence necessarily punishable by imprisonment in the penitentiary; the court held that a recorder of the city of New Orleans has full power to determine whether a prisoner arrested by his warrant under a criminal charge is or is not entitled to bail.

In the second case the accused was charged with embezzlement. After furnishing bond before the recorder’s court he became a fugitive from justice. The security on his bond defended on the ground of want of authority of the recorder to admit the accused to bail. The court decided that the recorder was fully authorized to take and acknowledge the bond.

In the last case referred to the court held that recorders are vested with the jurisdiction of committing magistrates. These decisions have entered into the body of precedents.

Though we would unhesitatingly acknowledge errors committed by ourseives or our predecessors, we will not lightly disturb ponclusions deliberately reached in order to give a more restricted meaning to the term “magistrate.” The law has been settled since many years. The stability of decisions is of the utmost importance.

The reason of Titus may, and frequently does, differ from the reasoning of Septimius. This is no good cause for a change.

It devolves upon the Legislature to correct errors. They have the power to make any needful change.

The ability and energy of the assistant district attorney, in this case, have given character and prominence to clearly defined issues, in oral and written argument.

It is ordered, adjudged and decreed that the rule nisi which issued in this case on the 21st day of January, 1893, be discharged, and relator’s demand for a writ of certiorari and prohibition be denied.


text:
    No. 11,185.
    The State of Louisiana ex rel. Emma Williams vs. Remy Klock, Criminal Sheriff.
    An information presented, which the court orders to be filed, is not of itself ground for writs of habeas corpus and certiorari, for she can only have the benefit of autre fois acquit by special plea entered in the court in which the information is pending,
    After the court will have ruled, the defendant will not be without remedy, if error be committed.
    The accused can not interpose the plea of autre fois acquit in an application for writs of habeas corpus and certiorcm'L

    The rule nisi is discharged and the application is denied.
    ^PPLIOATION for Certiorari and Habeas Corpus.

      Wm. L. Thompson for the Relator.

      Charles A. Butler, District Attorney, for the Respondent.
   The opinion of the court was delivered by

Breaux, J.

Emma Williams has applied to this court for writs of habeas corpus and certiorari, alleging that she was tried upon a charge of grand larceny on the 1st day of February, 1893, in Section A of the Criminal District Court for the parish of Orleans.

That a verdict of not guilty was rendered; that notwithstanding the verdict and her right to be released, she was recommitted to the parish prison to be again tried upon the same charge of grand larceny, of which she was found “not guilty.”

The sheriff, in his answer, avers that she is in custody under the authority of a capias of the court, regularly issued, which he exhibited.

The first information filed against the accused, in which she was charged with having stolen the property of Louisa Waters, is in the transcript, also extract from the minutes noting that the court a qua ruled that the ownership of the property alleged to have been stolen was not properly laid in the information, and that under the court’s instruction a verdict of not guilty was rendered.

In the second information filed the accused was charged with having stolen the property (described in the first information) from Harry H. Waters. The latter case was allotted to Division B.

Without having previously filed any plea whatever before the District Court the accused presented her petition to this court for writs of habeas corpu,s and certiorari.

There is no statement of facts or note of evidence.

The facts which may establish the correctness or the error of the lower court’s ruling are not before us.

Autre fois convict, autre fois acquit, are special pleas in bar, and the former is the plea whereby the accused may avail himself of a former acquittal.

A former acquittal for the same offence should be specially pleaded in the court having jurisdiction of the last prosecution.

If not pleaded it can not be proven under the general issue. It can not be supplied.

The plea, when there are no matters of fact at issue, should consist of averments of former indictment and of the record of acquittal.

On the trial of this plea proof that the defendant was acquitted, on an indictment free from error and in a court having jurisdiction, should be offered.

The writ of habeas corpus is not the proper remedy to try the issue autrefois aequit.

It, in effect, would divest the court of jurisdiction in which the last information was filed, without giving it an opportunity to decide a plea which must be interposed in order to be of any avail.

The court a qua has jurisdiction to pass upon the question raised.

The court has general jurisdiction of the subject matter, as jurisdiction of the person accused.

Conceding all that is alleged in relator’s petition, the- fact remains that we are called upon to act upon a question of autre fois acquit without plea pleaded in the court having original jurisdiction of the question. William Pitner vs. The State, 44 Texas, 878.

In this case it was decided that the writ of habeas corpus was not proper remedy to try the issue of autrefois aequit, and it was held that the proper remedy, if the accused was entitled to any, was by a special plea entered in the court in which the indictment was pending, under which the defendant was imprisoned.

This decision is approvingly referred to by Mr. Wharton in his work on Criminal Pleading and Practice, 9th Edition, p. 480.

The Commonwealth ex relatione Norton and others against Deacon & Sergent, and Rawle’s Report, p. 72.

In this case the court decided not to discharge prisoners on ahabeas corpus while an indictment is pending against them, in which they had been committed by a court of competent jurisdiction, on the ground that they had been tried on that indictment and acquitted on some of the counts, but no verdict given in the others.

The remedy, the court held, if erroneous, was by writ of error.

The grounds against allowing the writ of habeas corpus apply to certiorari, and in addition, ordinarily, that writ should not be granted when there exists a remedy by appeal. State ex rel. Weber vs. Skinner, 32 An. 1092.

It is therefore ordered, adjudged and decreed that the rule nisi which issued in the case be discharged, and the writs of eertiorari and habeas corpus denied, and that the petitioner be remanded to the custody of the sheriff.