author: Wtly, J.

text:
    No. 534.
    S. S. Heard v. B. P. Patton.
    It has often been held that a defendant appearing to except to the citation, can not at the same time urge any matter of defense.
    The court a qua did not err in rejecting the document offered by defendant to show that the plaintiff was a bankrupt, and therefore not entitled to enforce certain judgments on which his suit is based, because the instrument was from the United States District Court of another State, and was not authenticated according to the act of Congress.
    The defendant was without interest to contest with plaintiff, when he set up that the entries of his lands, against which the hypothecary action of the plaintiff is instituted, had been canceled, and said lands belonged to the United States. This defense puts him out of court.
    The defendant’s discharge in bankruptcy relieved him from personal liability, but it did not remove the mortgage which plaintiff had previously acquired on the lands. "When the defendant, subsequent to his discharge, bought the lands which he had surrendered subject to the liens existing thereon, they remained liable to the hypothecary action which plaintiff has brought against them.
    APPEAL from the Fourteenth Judicial District Court, parish of Morehouse. Bay, J.

      Todd c6 Brigham, for plaintiff and appellee. S. (í. Parsons, for defendant and appellant,
   Wtly, J.

This is a hypothecary action to enforce the judgments described in the petition against the lands therein described. •

The court decreed the lands of defendant liable for two judgments for nine hundred dollars each, subject to the credits stated in the judgment.

The defendant appeals.

Defendant excepted to the service, but as the exception contained a plea amounting to an answer, it will not be noticed. It has often been held that a defendant appearing to except to the citation can not at the same time urge any matter of defense.

The court did not err in rejecting the document offered by defendant to show that plaintiff was a bankrupt, and therefore not entitled to enforce said judgments,' because the instrument was from the United States District Court of another State, and it was not authenticated according to the act of Congress. 11 R. 417.

The defendant was without interest to contest with plaintiff when he set up that the entries of his lands had been canceled, and they belonged to the United States. This defense puts him out of court. The defense that the consideration of the notes was slaves does not apply to the two judgments enforced by the decree of the judge a quo against lands in question, the notes upon which said judgments were basOT having no such consideration.

The defendant’s discharge in bankruptcy relieved him from personal liability, but it did not remove the mortgage which plaintiff had previously acquired on these lands. When the defendant, subsequent to his discharge, bought the lands which he had surrendered, subject to the liens existing thereon, they remained liable to the hypothecary action which plaintiff has brought against them.

On the whole the defense is without a foundation.

Judgment affirmed.


source: Caselaw Access Project

author: Morgan, J. Ludeling, C. J.,

license: Public Domain

text:
    No. -.
    The Citizens’ Bank of Louisiana v. The Board of Liquidation.
    Appeals from the Superior District Court of New Orleans are returnable at New Orleans. That court, therefore, was without authority to make this appeal returnable at Moñroe. Consent can not give jurisdiction, neither can consent change the law which designates the place where appeals shall be returnable.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      A. Pitot and G. L. Hall, for plaintiff and appellant. A. P. Field, Attorney General, and J. Q. A. Fellows, for defendant and appellee.
   Morgan, J.

Plaintiffs have appealed from a judgment of the Superior District Court of New Orleans. The case is not one which, by law, is returnable at any point where this court may be in session at the time a judgment complained of is rendered.

Appeals from the Superior District Court of New Orleans are returnable at New Orleans. That court, therefore, was without authority to make the appeal returnable here. Consent can not give jurisdiction. Neither can consent change the law which designates the place where appeals shall be returnable.

Of our own motion, therefore, it is ordered, adjudged and decreed that this record be stricken from the docket, reserving to the plaintiff the right to file the same in New Orleans.

Ludeling, C. J.,

dissenting. I dissent, because the nature of the case is such that it should be disposed of speedily. See adt of 1875 amending funding bill.


author: Morgan, J.

text:
    No. 527.
    The Mayor and Selectmen of the Town of Homer v. John B. Blackburn.
    The mayor and selectmen of the town of Homer could not do any thing which they were not authorized to do by the statute from which they derived their powers, and this statute expressly prohibited them from imprisoning any person for any period beyond the time necessary for the offender to become sober, or until he should desist from violence. Therefore the ordinance which extends the imprisonment to ten days is illegal, and when the mayor sentenced the defendant to an indefinite imprisonment, that is, until he paid a certain fine, his judgment was doubly wrong, for it condemned under an illegal ordinance, and went much farther than the ordinance itself permits.
    As the act of the Legislature under which the ordinance under consideration was enacted, was passed in 1874, its constitutionality must be tested by the constitution of 1868. Constructing together articles 73, 89, 94 of that constitution, it follows that the ordinance under which this action is brought, is illegal and unconstitutional, so far as it permits the mayor of Homer to imprison the defendant as he did, but not so far as it allows him to impose the fine which he fixed.
    APPEAL from the Mayor’s court of Homer, parish of Claiborne.

      J. & J. W. Young, T. O. Egan, for defendant and appellant. David M. OalUhan, for plaintiffs and appellees.
   Morgan, J.

The defendant, for an illegal violation of a municipal ordinance of the town of Hoiner, was fined twenty-five dollars, and ordered to be imprisoned until he paid the fine.

The ordinance authorized the judgment, and the ordinance was perhaps authorized by the statute which conferred certain powers upon the mayor and selectmen.

But the Legislature had no power to confer judicial authority upon these parties. That power is fixed by the constitution, and the Legist lature can neither take from nor add to it. In this sense the first act passed in 1850, violated article 62 of the constitution of 1845; and the supplement thereof violated articles 78, 71 and 82 of the constitution of 1852.

Plaintiffs contend that article 94 of the constitution of 1868, coni fers this power, and therefore the defect of the' former Legislature is cured. But we do not see how an act of the Legislature which violates an article of the constitution of 1852 can become constitutional because authorized by the constitution of 1868.

The constitutionality of a law must be tested by the constitution which was in force when the law was passed.

It is therefore ordered, adjudged and decreed that the judgment appealed from' be avoided, annulled and reversed, and that there be judgment in favor of the defendant with costs in both courts.

On Rehearing:

The fifth section of the act approved twenty-first March, 1874, p. 207, confers upon the mayor of the town of Homer all the powers and duties of a justice of the peace for all civil and criminal matters originating within the limits of the corporation.

The same section gives to the mayor and selectmen the power to pass by-laws and ordinances not inconsistent with the laws and constitution of the United States and of this State, as they may deem proper, in relation to the good government, improvement and police regulation of the town, in all respects and particulars whatsoever, to impose such fines and penalties for a breach of their by-laws and ordinances as they may deem proper, not to exceed the sum of twenty dive dollars for any single offense, receivable before the mayor or any justice of the peace of the ward, under precisely such process, evidence and showing as other debts are recoverable, and no ordinance or bylaws shall be passed or enacted by the corporate authorities of said town of Homer imposing or locking any person up in any calaboose or jail for non-payment of a fine; provided, that any drunken or disorderly person disturbing the peace and refusing to be quiet or to leave the corporate limits of the town instantly, may, at the discretion of the mayor, be sent to the parish jail or town calaboose and locked up uutil he shall have become sober and quiet, when he may be fined in such sum as the mayor may deem just and proper, not to exceed the sum of twenty-five dollars, as hereinbefore provided for, which sum shall be collectible in the mode and manner already specified.

On the fifteenth August, 1871, the Mayor and selectmen of the town of Homer passed an ordinance by which it was declared that any person who shall be guilty of loud and boisterous cursing and swearing or using obscene language in any place of public resort, or upon the public streets of Homer, or who shall be guilty of any riotous conduct calculated to disturb the peace and quiet of the town or any citizen thereof, or who shall be guilty of fighting, unless in self-defense, upon conviction thereof shall pay not less than five nor more than twenty-five dollars, or be imprisoned in the parish jail or town lockup not more than ten days, or both, at the discretion of the court.”

The defendant was proceeded against for having violated this ordinance, and he was ordered by the mayor to pay a fine of twenty-five dollars and costs, and in default of payment to be imprisoned until the same was paid.

From this judgment he appeals. It is apparent from a mere reading of the statute under which the ordinance was framed that the mayor and selectmen exceeded their powers. They could not do anything which they were not authorized to do by the statute from which they derived their powers, and this statute expressly prohibited them from imprisoning any person for any period beyond the time necessary for the offender to become sober, or until he should desist from violence. Here the period of imprisonment imposed by the mayor was absolutely without limit. If he did not pay the fine in twenty years he would, under the judgment, remain in jail for twenty years. In this the judgment violates the' ordinance itself, which limits imprisonment to ten days. The judgment therefore is doubly wrong, for it condems under an illegal ordinance, and goes much further than the ordinance itself permits.

As the act of the Legislature, under which the ordinance under consideration was enacted was passed in 1874, its constitutionality must be tested by the constitution of 1868. If article 73 of that constitution, which provides that the judicial power shall be vested in a Supreme Court, in district courts, in parish courts, and in justices of the peace, and the eighty-ninth article which declares that “justices of the peace shall be elected by the electors of each parish in the manner to be provided by the General Assembly,” stood alone, the question might arise as to the power of the Legislature to confer judicial ■power upon the mayor of a town.

But article 94 of the constitution provides that “ no judicial powers, except as committing magistrates in criminal cases, shall be conferred on any officers other than those mentioned in this title, except such as may be necessary in towns and cities, and the judicial powers of such officers shall not extend further than the cognizance of cases arising under the police regulations of town and cities in the State. Therefore, where it is necessary to confer judicial powers upon others besides those designated in the constitution, in towns and cities, with regard to cases under the police regulations of the towns and cities, the Legislature has the authority to confer the power. And as the law before us refers to officers of a town, and regards the police regulations of that town, it follows that our former judgment is partly right, and partly wrong. It is right when it declares that the ordinance under which this action is brought, in so far as it permits the mayor of Homer to imprison the defendant for an indefinite period, is illegal and unconstitutional. It is wrong when it declares that that portion of the ordinance which allows the mayor to impose a fine upon the defendant is illegal and unconstitutional.

It is therefore ordered, adjudged and decreed that our former judgment in this case be set aside. And it is now ordered, adjudged and decreed that the judgment in so far as it orders the defendant to be imprisoned until the judgment rendered against him and the costs are paid, be avoided, annulled and reversed; and that so far as it imposes a fine of twenty-five dollars and costs upon the defendant, it be affirmed, defendant paying the costs in the court below, plaintiff those of this appeal.


text:
    No. 567.
    Succession of W. H. Gayle. Opposition of G. King and others to final account of Administratrix.
    The motion to dismiss the appeal because there is no day fixed for the return of the appeal, can not prevail. The appeal is made “ returnable to the Supreme Court of the State oí Louisiana at its next term, commencing in the city of Monroe on the first Monday oí July, 1875.” This was fixing the day with sufficient certainty.
    After a wife has obtained a separation of property from hor husband, and has executed it, and has assumed the administration of her estate, it would be a fraud upon the public to permit her to acquire a legal mortgage upon the property of the husband, acquired v him subsequent to the iudsment of senaration. bv allowing bim to manage her rwcvn.' by him subsequent to the judgment of separation, by allowing him to manage her prop-1 erfcy and spend her money. He must be presumed to have acted as her agent, and as i such he owes her an account of his administration, but his acta create no mortgage on^ his estate.
    Mrs. Gayle, tbe administratrix, having occupied a house which was the separate property of her husband, and which belonged to bis succession, must be charged with the rent as any third person would be.1
    Neither by separate or combined action can the administratrix and attorney of the succession impose an onerous charge upon an estate by the employment of counsel, when the estate is already provided with a competent legal adviser. If the administratrix chooses to employ additional counsel, sbe must pay him out of her own funds.
    In matters of opposition to succession accounts all the parties are plaintiffs and defendants, and each opponent must mate out his case by proper and sufficient proof.
    The reinscriptiou of a mortgage after the peremption, subsequent to the death of the mortgager, does not affect the property of the succession with a mortgage.
    The opposition to the failure of the administratrix to the account for amount oí notes given for the purchase of property sold on the Stevens plantation, must be maintained. The proposition that the balance due Mrs. Stevens for rent exceeds the amount of these notes, is inadmissible. The notes were given for property belonging to the succession. It was the duty of the administratrix to collect them, and to place the proceeds on her account, leaviug it to the partios in interest to claim their right of preference over tbe proceeds.
    APPEAL (rom the Parish Court, parish of Ouachita. Balter, J.

      Cobb (& G-uriby, John Bay, for administratrix and appellee. B. W. & B. Richardson, Morrison & Fcvrmer, Robert J. Oalchoell, for opponents and appellants.
   Morgan, J.

Appellee moves to dismiss the appeal on several grounds:

First — Because there is no day fixed for the return day of the appeal. .The-appeal is made “returnable to the Supreme Court of the State of Louisiana at its next term, commencing in the city of Monroe on the first Monday of July, 1875.” Monroe is the place where, by law, the case under consideration is returnable, and tbe first Monday in July is the day upon which appeals returnable there are to be filed. When, therefore, the parish judge ordered the appeal to be returned here on the first Monday of July, 1875, he with sufficient certainty fixed the day upon which it was to be returned, and he fixed it properly.

Second — The evidence missing, if it be missing, would not affect tbe decision.

On the Merits.

Swan opposes the account filed by the administratrix. He prays to be placed thereon as a judgment creditor for $4050, with interest. He prays that the following items be stricken therefrom :

1. Claim of the administratrix............................$1,287 74
2. Fee allowed to Garrett, attorney...............'......... 500 00
3. Fee allowed to Garrett & Garrett....................... 500 00
4. Printing bill ior briefs.................................. 98 50
5. Printing for the estate.................................. 188 25

S. H. Kennedy & Co. represent themselves to be judgment creditors, with a recognized privilege against the estate of Gayle, in the sum of $7261 31, with eight per cent, interest thereon on $6000 from December 1, 1867.

Schlessinger, in his own right and as executor of F. S. Schlessinger, claims to be a judgment creditor in the sum of $5416 21, with eight per cent, interest from November 25, 1867, with a recognized privilege.

Gottleib King claims to be a creditor for the sum of $852 43, with eight per cent, interest from .first February, 1872. He was cosurety with the deceased. Judgment was rendered against him for the whole amount, which he paid; $852 47 is the half of the debt.

Together, Kennedy & Co., Schlessinger and King, charge that the administratrix is liable.

First — For lands in the parish of Morehouse, which were sold for $153.

Second — Lands in the parish of Carroll, sold for $203; besides other lands, the value of which is not given.

Third — For lands not accounted for in the parish of Richland, appraised at $900.

Fourth — For a house and lot in Monroe, sold for $5505, whereas she only charges herself with $5456 50.

Fifth — For the difference between $110 50 and $72, proceeds of personal property.

Sixth — For accrued interest collected on the notes given at the credit sale of personal and movable property sold on eleventh January, 1868.

Seventh — For rent of house in Monroe, occupied by her for five years at $75 per month, the house and lot having been Gayle’s individual property.

Fighth — They deny that the item $694 69, for city, parish and State taxes, is a privileged claim, and they further say that this question is res judicata.

Ninth — They oppose the item of $188 25 for printing as exorbitant.

Tenth — They oppose the item of $98 50 for printiug briefs, denying that it is a legal charge against the estate, and if it be they deny that any privilege exists therefor.

Fleventh — They oppose the additional item of $300, allowed to John Ray for professional services.

Twelfth — They oppose the reservation of $100 for future costs.

Thirteenth — They oppose the two items, $500 each, allowed to Isaiah Garrett, and to Garrett & Garrett, and deny that they are entitled to any privilege.

Fourteenth — They oppose the charge of $297 77,' commissions of administratrix, upon the ground that she has been grossly negligent and regardless of her duties, etc. '

Fifteenth — They oppose her claim of $4287 74, as a fraudulent device to shield the property of her late, husband from the pursuit of his creditors.

Sixteenth — And to the last item they oppose the prescription of three, five and ten years.

N. King Knox is a judgment creditor for $800, the judgment operating as a judicial mortgage from sixteenth April, 1867, with legal interest from first January, 1860. He claims that his mortgage is superior to all others except Gottleib King and J. L. Hunsicker’s, and that he is entitled to be paid out of the proceeds of the real estate belonging to the succession, in preference to all others. He opposes the mortgage claimed by Mrs. Gayle, and adopts the oppositions made to the account by Swan, King, and others.-

He opposes Swan’s claim as a mortgage and privilege debt, except from the date of its second inscription, the same not having been rein-scribed within ten years from its first inscription.

Mrs. Mary Hunsicker, widow in community óf J. L. Hunsicker, and as such administering his estate, and Ida V. Hunsicker, heir of J. L. Hunsicker, represents that J. L. Hunsicker is a judgment creditor for $75, with eight per cent, interest from first January, 1861, which operated as a judicial mortgage on Gayle’s estate from the twentieth April, 1866.

They claim preference over all other mortgage creditors except Gottleib King, but say their mortgage is concurrent with his.

They adopt the oppositions of King, Sloan and -other opponents. They oppose the claim of Sloan as a mortgage, except from its second inscription.

Let us first consider the oppositions that are made by all the creditors to the item of $4287 74, which the administratrix claims. It results from moneys received by her husband, the proceeds of property belonging to her.

She was a judgment creditor of her husband. This judgment she executed. The community which had existed between them was dissolved. She then purchased property in her own name. This property she sold, and the husband received the proceeds, amounting to the sum claimed. She sets up a mortgage upon her husband’s property to secure the return of this amount. We are called upon to determine whether her pretensions are well founded. And here she claims that her judgment of separation can not be attacked collaterally ; that the time for attacking it has passed; and as the creditors who are now opposing her only became creditors after her mortgage attached, they can not complain, as it did them no injury.

The answer to this is: First, that it is not necessary to determine whether her judgment of separation of property was or not valid •, and second, that the question is not whether her mortgage is superior to theirs, but whether she has any mortgage at all independent of her judgment of separation.

In our opinion, after a wife has obtained a separation of property from her husband, and has executed it, and has assumed the administration of her estate, it would be a fraud upon the public to permit her to acquire a legal mortgage upon the property of the husband acquired by him subsequent to the judgment of separation, by permitting him to manage her property and spend her money. He must be presumed to have acted as her agent, and as such owes her an account of his administration, but his acts create no mortgage on his estate. The fact that she has recorded the evidence of her claim does not give her a mortgage. It is the character of the recorded claim which constitutes the mortgage, and not the mere recording of the claim.

She is, however, an ordinary creditor for the amount received by her husband subsequent to her execution of the judgment which she obtained against him. The charges that her acts in this regard were a sham and a fraud, are not established. The oppositions are not sustained.

The next serious question raised by the oppositions is the amount which opponents say the administratrix should charge herself with for rent of a house which she occupied. This house belonged to the succession of her husband. It was his separate estate. It must be considered as much an independent piece of property as any other property which belonged to the estate upon which she was administering. If she choose to occupy it, she is chargeable with the rent thereof, just as any third person would be. It was not her property, and she can not use it without being made to pay for it. She occupied the house for five years. It is admitted that fifty dollars per month would have been an average rent for the house. She therefore owes the succession $3000, with which her account must be charged.

The opposition to the fees paid, or proposed to be paid, to Isaiah Garrett $500, and to Garrett & Garrett $500, must be maintained.

The estate was represented in court by competent counsel. It was the duty of this counsel to appear for the succession in all matters in which it was interested. He is paid for the performance of this duty. If he chooses to delegate his power to a brother attorney, he must pay him. If the administratrix chooses to employ additional counsel, she must pay him. Neither by separate or combined action can the administratrix and attorney of the succession impose an onerous charge upon an estate by the employment of counsel when the estate is already provided with a competent legal adviser.

The difference between the amounts charged against herself for sales of certain property sold and the amounts which she received, forming items No. 1, 2 and 5 of the oppositions, is small, and occurs from the fact that she deducted from the gross proceeds the costs and gave only the net results of the sales. The opposition to these items must be dismissed.

No. 3 — The laud in Richland, for the value of which the administratrix is sought to be made liable, does not appear to have been sold. If it belongs to the succession it is still an asset, and the administratrix is not responsible for its value until it shall have been sold. This opposition must be dismissed.

No. 4 — The difference between the apparent price of the house and land sold in Monroe and the sum accounted for is explained by the fact that a portion of the land sold belouged to another party. Deduction being made for the value of the property thus erroneously sold, and the amount accounted for, is correct. This opposition is dismissed.

No. 6 — We are not informed what interest the administratrix received on account of accrued interest collected on the notes given in payment of property sold, and therefore can not say that she should be charged with any.

No. 7 — This item of opposition has been passed upon.

No; 8 — The taxes are upon property in different parishes, and those due are a privilege upon the lands which are liable to taxes ip the parishes. The opposition which complains that the whole of the taxes due are privileged on all the property must be maintained.

No. 9 — The opposition to this item, which is for printing, is dismissed. It is a privilege charge against the estate.

No. 10 — The same may be said of this item.

No. 11 — The opposition to the allowance of $300 to John Ray, attorney, for services to the succession, is dismissed. The amount awarded to him in the succession is reasonable.

No. 12 — The opposition to $100 reserved for future costs is dismissed.

No. 13 — The opposition to the fee allowed I. Garrett aud Garrett & Garrett has already been passed upon.

No. 14 — The opposition to the administratrix’s claim for commissions is dismissed. We do not discover that she has done anything which should deprive her of them.

No. 15 — The opposition to the claim of the administratrix for $4287 74, claimed to be due by her husband, has been passed upon.

No. 16 — The plea of prescription to the claim set up by the administratrix for $4287 74, it is not necessary to consider in view of the decision upon the opposition to her claim.

The matters set up in the supplemental opposition of Swan have been disposed of by one witness in the oppositions heretofore considered.

Up to this point all the opponents have been attacking the administratrix’s account. Now they turn upon each other, and each deny, in a great measure, the verity or priority of the claims advanced by the other. Combinedly they attack Swan’s pretensions. Swan claims to be a creditor, with mortgage superior to all others, in the sum of $4050, with interest. His mortgage is denied.

In support of his claim he has offered in evidence a judgment of the district court for the parish of Ouachita, decreeing him to be a creditor of the succession in the amount which he claims to be due. No answer has been made to this demand by the administratrix. None was necessary. Swan is an actor in his own behalf. In matters of opposition to succession accounts, all the parties are plaintiffs and defendants, and each opponent must make out his case by proper and sufficient proof. Now the judgment upon which Swan relies, as regards the mortgage, is against him; for it recognizes him only as an ordinary creditor, and expressly denies his right of mortgage upon the ground that it had not been reinscribed within ten years from its first inscription. This judgment was rendered on the nineteenth September, 1872. It has never been reversed or appealed from, that we can discover. It is therefore conclusive against him. There is another ground which is fatal to his pretensions. It is this : It is not denied that when reinscribed the mortgage had perempted. Now at the date of the reinscription Gayle was dead. The reinscription of a mortgage after peremption, subsequent to the death of the mortgager, does not affect the property of his succession with a mortgage. This renders it unnecessary for us to examine the bill of exceptions taken by him to the admission of certain evidence regarding the erasure of the mortgage. If we ruled out this testimony, his own evidence shows that he has no mortgage.

The supplemental opposition of Schlessinger & Co; and Kennedy & Co. to the failure of the administratrix to account for $2175, amount of notes given for the purchase of property sold on the Stevens’ plantation, must be maintained. In the brief it is claimed that the balance due Mrs. Stevens for rent exceeds the amount of these notes. But this proposition is inadmissible. The notes were given for property belonging to the succession,. It was the duty of the administratrix to collect them, and to place the proceeds on her account, leaving it to the parties in interest to claim their right of preference over the proceeds.

Gottleib King was bound with Gayle for a debt due by Richardson. King, under judgment, which was recorded on April 13, 1866, paid the debt. Gayle then became his debtor for the half thereof, and he was subrogated of right to the common judgment creditor against Gayle. The amount due is $852 43 with eight per cent, interest from first February, 1872.

N. H. Knox is a creditor for $800, with eight per cent, interest from first January, 1860, with judicial mortgage from sixteenth April, 1867.

The Hunsickers are judgment creditors for $75, with interest at eight per cent, from January 1, 1861, with judicial mortgage from twentieth April, 1866.

Kennedy & Co. and Schlessinger & Co., the amount of whose claims are not disputed, assert no privilege or mortgage upon the proceeds of real estate, but rely upon the rejection of claims alleged to have been erroneously paid as privileged claims'by the administratrix and their opposition in common with other creditors to the account, which, if sustained, will give them an additional pro rata as ordinary creditors in proportion to the amount fixed on their respective claims.

They are special privileged creditors on the crops raised, respectively, upon the Stevens and McGuire places, recognized as such by judgment of this court, and their pretensions in regard to these matters are not congested.

Kennedy & Co.’s claim is $7201, with eight per cent, interest on $6000 from seventeenth December, 1867. Schlessinger & Co.’s claim is $5416 21 with eight per cent, interest from twenty-fifth November, 1867.

It is therefore ordered, adjudged and decreed that the judgment of the parish court be amended as follows ;

It is ordered that the account of the administratrix be charged, first, with the rent of house occupied by her, $3000; second, with the proceeds of sale of property on the Stevens’ place, $2175.

It is further ordered that the oppositions to the following items charged as privileges and mortgages upon the property of the estate be maintained, and that they be disallowed: First, the item claimed by the administratrix on account of her alleged legal mortgage, $4287 74 ; second, the item allowed to I. Garrett, $500; third, the item allowed to Garrett & Garrett, $500.

It is further ordered that the following oppositions to items charged on the account as privileged debts, to wit: Printing briefs, $98; printing for the succession, $188 25; John Ray, attorney for succession, $300; to amount reserved for future costs, $100, be dismissed. That the opposition to the privilege claim for taxes, in so far as the entire estate is held to pay the entire tax, is maintained — the taxes in each parish to form a separate privilege against the proceeds of the property returned in each parish against which it is claimed.

It is further ordered, adjudged and decreed that the oppositions claiming amounts alleged to be due on lands sold in the parishes of Carroll, Morehouse and Ouachita, he dismissed. The oppositions to amount of accrued interest received by the administratrix an notes given in payment of property, is dismissed.

It is further ordered that the opposition to the commissions of the administratrix be dismissed.

It is further ordered that the opposition of Swan be maintained in so far as to place him on the account as an ordinary creditor for the amount claimed by him $6080, with interest as claimed, and that it be dismissed upon his claim to a right of mortgage.

It is further ordered that the opposition of Mr. and Mrs. Hunsicker be maintained, and that they be placed on the tableau as creditors, with mortgage on the real estate belonging to the succession, and to be paid out of the proceeds thereof, for seventy-five dollars, with interest at eight per cent, from first January, 1861. That the opposition of N. King Knox be maintained, and that he be placed on the tableau as a judgment creditor in the sum of $800 with interest at eight per cent, from first January, 1860, with judicial mortgage upon the real estate of the succession, and to be paid out of the proceeds thereof.

It is further ordered that the opposition of Gottleib King be maintained, and that he be placed on the tableau as a judgment creditor for $852 43, with eight per cent, interest from first February, 1872, with judicial mortgage upon the real estate of the succession or the proceeds of the sale thereof, his judgment to rank from the thirteenth April, 1866.

It is further ordered that the judgments of King and Hunsicker be paid concurrently and prior to the other judgment creditors.

It is further ordered, adjudged and decreed that the opposition of Kennedy & Co. be maintained, and that they be placed on the tableau as creditors of the succession in the sum of $7261 31, with interest on $6000 from first December, 1867, with privilege on the proceeds of crop made on the Island plantation, the property of Mrs. Mary Stevens, and that as to the balance of their claim they be paid pro rata with the ordinary creditors.

It is further ordered that the opposition of Schlessinger in his own name and as the representative of the late commercial house of Schlessinger & Co. be maintained, and that he be placed on the tableau in his capacities aforesaid as a creditor of the succession in the sum of $5416 21, with privilege on the proceeds of the crops grown on the McGuire plantation, and that for the balance of their claim they be paid pro rata with the ordinary creditors.

It is ordered that Mrs. Mary J, Gayle be recognized as a mortgage creditor for the amount remaining due on her judgment of separation of property to rank as stated in the judgment, and that for the balance of her claim, as it appears on the tableau, she* be recognized as an ordinary creditor, to be paid pro rata with the other ordinary creditors of the estate; and as thus amended the account of the administratrix be approved and homologated, and the funds distributed accordingly.

Ludeling, C. J.,

dissenting. I dissent from the views of the majority of the court, on the following points:

First — I do not think the administratrix is chargeable for the rental-of property of the succession, which was not rented. The fact that she occupied the dwelling house, in which the deceased lived when he died, till its sale, does not change the rule that an administrator is not bound to lease the property of an estate.

Second — The fees of I. Garrett and of Garrett & Garrett, should be allowed as a credit to the administratrix. They were for services in suits against the succession. The services were necessary; they were rendered. I know of no law that requires an administrator to engage the services of only one attorney, during the course of the administration, nor do I believe that such would, in all cases, be to the interest of a succession.

In other respects I concur in the conclusions reached by the court.

Rehearing refused.


author: Wyly, J.

text:
    No. 546.
    Levy & Sugar v. Cowan & Mayo and Mayo & Hodge. Collins, Knox et al. garnishees.
    Against a succession a writ oí fieri facias can not issue, nor can a seizure thereunder be made by garnishment process.
    The specific credits of a partnership, as in this case, can not be seized under execution against one of the partners, or the surviving partner. The entire interest of a partner may be seized and sold, but no specific asset, credit or property of the partnership is liable to seizure under execution against one of the partners.
    The appellant who shows title to the property in dispute can make any objection necessary to protect his interest.
    from the Fourteenth Judicial District Court, parish of Morehouse. Bay, J.

      Newton & Hall, for plaintiffs and appellees. Todd & Brigham, for garnishees and appellants.
   Wyly, J.

Plaintiffs, judgment creditors of defendants, issued execution on their judgment in the Fourth District Court, parish of Orleans, and they seized by garnishment process certain credits of said firms in the hands of the garnishees herein. Long before this execution issued Mayo, one of the partners in defendants’ firm, died and all his assets, notes and accounts and the assets, notes and accounts of these firms were sold by order of the Second District Court, parish of Orleans, the court having jurisdiction of Mayo’s succession, and T. H. Higginbotham purchased the same. He intervened in the court below and moved to set aside plaintiffs’ seizure on several grounds, the most important being :

First — As Mayo was dead and his succession in charge of the Second District Court no valid execution could issue.

Second — No valid seizure can be made of a particular asset, note or account belonging- to a partnership on an execution directed against one of the partners or the surviving partner.

From the judgment against certain of the parties garnishee Higginbotham has appealed. The record shows that he purchased the property in dispute at the sale ordered by the Second District Court, and he asserts his right' as owner of property exceeding in value five hundred dollars.

The motion to dismiss his appeal for want of an appealable interest is denied.

On the merits, the case is clearly with the appellant. Against a succession a writ of fieri facias can not issue, nor can a seizure thereunder be made by garnishment process. The specific credits of a partneiship, as in this case, can not be seized under execution against one of the partners or the surviving partner. The entire interest of a partner may be seized and sold, but no specific asset, credit or property of the partnership is liable to seizure under execution against one of the partners. Therefore, the seizure, so far as relates to Mayo, is void, because his succession is not liable to seizure under fieri facias so far as it.relates to his surviving partners, the things seized belonging to the said firms, the property in the hands of the garnishees herein was not liable to seizure by plaintiffs. The appellant who shows title to the property in dispute can make any objection necessary to protect his interest.

It is therefore ordered that the judgment herein be annulled, and it is decreed that plaintiffs take nothing by their seizure, and their garnishment proceedings herein be set aside at their costs in both courts.


author: Taliaferro, J.

text:
    No. 549.
    Annie Alexander and Husband v. B. Silbernagel et al.
    It seems settled by our jurisprudence that where no law authorizes the execution of a judicial bond, no torce can be given to it. The order of the judge authorizing the intervenors in this case to release property tinder sequestration by executing a bond, gives no validity to tlie bond, because there is no law authorizing intervenors to release property under sequestration by furnishing bond.
    APPEAL from the Fourteenth Judicial District Court, parish of Morehouse. Hay, J. Jury trial.

      S. G. Parsons, for plaintiff and appellee. Todd & Brigham, for defendants and appellants.
   Taliaferro, J.

It was seen by the statement of facts in the decree in the case of Annie Alexander and husband v. J. G-. Felton, .et al., H. Tully & Co., and Silbernagel, Starnsey & Co., intervenors, just read, that Silbernagel, Starnsey & Co., intervenors in that case, released under bond in the sum of $1300, the estimated value of one-third of the crop of cotton and corn, the product of the crop of the year 1867, on the Wells plantation, the entire crop being under sequestration at the suit of plaintiff against Felton and others, lessees.

In this case, the plaintiff brings suit against Silbernagel, Starnsey & Co., on the aforesaid bond of release..

The defendants excepted mainly on the ground that the bond sued upon is null and void because it was not executed in conformity with law, and there being no law authorizing intervenors to execute bonds for the release of property sequestered, the plaintiff can not recover on the bond sued upon. The exception was referred to the merits. Defendants subsequently filed their answer, setting up various grounds of defense.

The plaintiff had judgment for .$1090, with interest, and the defendants have appealed.

It becomes unnecessary from the decision to be rendered in this case to examine the bills of exception found in the record. The exception to the validity of the bond must be sustained. It seems settled by our jurisprudence that where no law authorizes the execution of a judicial bond no force can be given to it. The order of the judge authorizing the intervenors in this case to release property under sequestration by executing a bond, gives no validity to the bond because there is no law authorizing intervenors to release property under sequestration by furnishing bond. In the case of Danson v. Morton & Williamson, 22 An. 535, where an intervenor had given bond to release an attachment (and the same principle applies to sequestration), this court said: “Without a law authorizing the release of property under attachment, on the bond of an intervenor, it can not fairly be said, that such a bond is a judicial bond, which must be construed with reference to the law in pursuance of which it was given.” See case of Benham and others v. Collins, sheriff, et al. 23 An. 222, and cases there cited.

It is therefore ordered that the judgment appealed from be annulled, avoided and reversed. It is further ordered that this case be dismissed at plaintiff’s costs.


text:
    No. 552.
    Walker & Vaught v. G. W. Kimbrough, Administrator, et al.
    The plaintiff's sue to annul a probate sale on the ground of fraud and collusion between tlie administrator and the purchasers to sacrifice tlie property and evade the pursuit of tlie creditors of the succession.
    The exception that a ratification of the sale by plaintiffs resulted from the filing by them of a third opposition, and claiming the proceeds, is well taken. The purchasers bought no doubt under what probably appeared to them regular proceedings and apparently in good faith. They should be protected.
    The objection that the land was not divided into lots and sold in lots, as prescribed by law, is without much torce. Ho survey was made, but the lots were sufficiently designated by means of the map of the official United States survey and sold in portions easily ascertainable. Ho such illegality thereby arose as to work nullity of the sale
    APPEAL from the Fourteenth J udieial District Court, parish of More-house. Bay J.

      Todd & Brigham, for plaintiffs and appellants. O. T. Dunn, D. O. Morgan, for defendants and appellees.
   Taliaferro, J.

The plaintiffs sue to annul a probate sale. They allege fraud and collusion between the administrators and the purchasers to sacrifice the property and evade the pursuit of the creditors of the succession. They allege that a second appraisement of the property was illegally obtained for the purpose of having the property appraised at a low valuation, and that advantage was taken of the time of the year when money in the country is usually scarce to have the sale made and of a place for making it where there would be but few bidders and but little opposition. Walker & Yaught were creditors of Ward. During his life time they proceeded by executory process to enforce a mortgage which they claimed to have against certain lands of their debtor. Ward enjoined the proceeding, and during the pendency of the injunction died, and the suit was continued by Ms administrator. The judgment of the district court dissolved the injunction, but this judgment was reversed on appeal. A suit via ordinaria was then brought to enforce the mortgage debt. There was judgment rendered ordering the sale of the land. Under this decree the land was seized, but subsequent-to the seizure it was determined on appeal that there was no mortgage. Before, however, this decision was rendered the land was advertised Tor sale by the administrator under an order purporting’ to have been obtained by him in 1869, but which had been suspended by injunction. Walker & Yaught got out a third opposition and claimed the proceeds of the land. The sale was made, but after the decree of the appellate court that no mortgage existed, the third opposition was dismissed and the proceedings seem to have been discontinued. It seems that in March, 1871, an order of sale of the property was rendered on application of the administrator by the probate court of the parish of Morehouse, and that a sale was made under this order by the sheriff. It is this sale, which on the grounds before alleged, the plaintiffs seek to annul. Nearly two years having elapsed since the first inventory was made, and that having been destroyed by the burning of the parish records, the administrator obtained an order for a new inventory and appraisement which was made in July, 1871.

The defendants filed an exception to the jurisdiction of the district court, in which this suit was brought, as to that part of the action which seeks to attack the judgment of the probate court ordering the sale of the land; that plaintiffs were parties to that judgment, and that.more than twelve months having elapsed without an appeal being taken from it, it has become res_ adjudicata; that plaintiffs ratified the sale by filing, previous to the sale, a third opposition claiming the proceeds of the land, and that they were thereby estopped from attacking the sale. 3 An. 648; 2 An. 454.

But the plaintiffs contend that the irregularities of which they complain occurred after they had filed their opposition and before the sale. The opposition was filed on the third July, 1871, the inventory made on the seventh of that month, and the first sale on the tenth of the month.

The purchasers except further that they have paid the price of adjudication as shown by the proces verbal of the sale in evidence, and that the purchase price nor any part thereof has been paid or tendered to them by the plaintiffs or any other person.

We are not induced to believe the plaintiffs have made out their case. The exception that a ratification of the sale by plaintiffs resulted from the filing by them of a third opposition, and claiming the proceeds, we think is well taken.

We see no illegality under the facts shown of the procurement of a second inventory and appraisement. The reduced price at which the lands were appraised at the last inventory, compared with their valuation by the first inventory taken two years before, may have resulted from the great falling off in value of real estate in this country. We have examined the evidence with considerable care, and although a few circumstances are shown that might excite some suspicion as to the entire fairness of the transaction, still we find nothing that establishes clearly and satisfactorily collusion and fraud, and especially on the part of the purchasers. They bought no doubt under what probably appeared to them regular proceedings and apparently in good faith j they should be protected.

The objection that the land was not divided into lots and sold in lots, as prescribed by law is, we think, without much force. No survey was made, but the lots were sufficiently designated by means of the map of the official United States survey and sold in portions easily ascertainable. No such illegality thereby arose as to work nullity of the sale.

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


author: Ludeling, C. J.

text:
    540.
    Succession of George W. Rawls—Opposition to Tableau of Debts.
    Tlie privilege conferred on the widow in necessitous circumstances is superior to all other privileges, except those of the vendor, and those to secure the payment of expenses incurred in selling the property.
    * APPEAL from the Parish Court, parish of Webster. Franks, J. J.

    XX 3D. Watkins, for administratrix and appellee. L. B. Watkins, for opponent and appellant.
   Ludeling, C. J.

The insolvent succession of George W. Rawls was opened in the parish of Webster, his surviving wife administered the estate and filed a tableau of debts, on which she placed herself as a privileged creditor for $1000, under the widow’s homestead act of 1852, No. 255,

Her claim is opposed on the grounds that at the time Rawls died he did not reside in Louisiana; that one of the creditors has a privilege on the buildings for materials furnished.

The evidence shows that Rawls had resided in Louisiana many years' and up to within about three months before his death; that he left the State, probably with the intention of abandoning his wife, and that he died in St. Louis shortly after this. The wife always resided in Louisiana, where she was married; nor is it shown that Rawls ever acquired a domicile any where else.

The privilege conferred on the widow in necessitous circumstances is superior to all other privileges, except those of the vendor and those to secure the payment of expenses incurred in selling the property. C. C. 3252.

The motion to dismiss the appeal for want of a bond, in-favor of the clerk, because the same person is clerk of the district court, is frivolous.

It is ordered that the judgment of the parish court be affirmed with costs of appeal.


author: Ludelin©, C. J.

text:
    No. 533.
    L. H. Gardner & Co. v. J. D. Maxwell.
    One holding a note as collateral security or as a pledge, to the extent of his debt, is the own er of the obligation for all practical purposes. It is not shown, in this case, that the debt to be secured is less than the amount of the note, even if it had been shown that plaintiffs held it as a pledge.
    The note being negotiable and having been acquired before maturity by the plaintiffs, the equities between the original parties can not be noticed in this suit. "When one of the parties must bear a loss, lie who has made it possible must suffer.
    In this instance, the mortgage is accessory to a principal obligation which it is designed to strengthen, and of which it is to secure the obligation; and it follows the principal obligation, like a shadow follows its substance.
    A mortgage may be given for an obligation which lias not yet risen into existence, and the provision of law which says “that the right of mortgage, in this case, shall only be realized in so fhr as the promise shall be carried into effect by the person making it,” applies only to cases between the parties to the contract, or in which the principal obligation is not negotiable. •
    APPEAL from tlie Fourteenth Judicial District Court, parish of Morehouse. Bay, 3. Jury trial.

      8. <?. Parsons, for plaintiffs and appellants. I). O. Morgan, Newton & Ball, for defendant and appellee.
   Ludelin©, C. J.

The plaintiffs are the indorsees of a note for $5000, which they allege they acquired before maturity, in good faith and in due course of business, and they sue the maker thereof for its amount.

The defense is that the note was executed in favor of F. W. Miehoux, for supplies advanced and to be advanced, to defendant; that the. advances amount to $1154 12, and that the balance of the note is without consideration. The note is secured by a mortgage and is paraphed m varietur by the recorder. The case was tried by a jury, who rendered a verdict in favor of plaintiffs for $1094 12, without a mortgage, and plaintiffs appealed.

It is contended that the plaintiffs are only the pledgees of the note and not the owners thereof. One holding a note as collateral security or as a pledge, to the extent of his debt, is the owner of the obligation for all practical purposes. It is not shown, in this case, that the debt to be secured is less than the amount of the note, even if it had been shown that plaintiffs held it as a pledge.

The note, being negotiable and having been acquired before maturity by the plaintiffs, the equities between the original parties can not be noticed in this suit. Where one of two parties must bear a loss, he who has made the loss possible, must suffer. The mortgage is accessory to a principal obligation, which it is designed to strengthen, and of which it is to secure the execution. C. C. 3284. ADd it follows, the principal obligation, like a shadow follows its substance.

The defendant admits the rule, that equities between the parties can not be urged against an innocent purchaser of commercial paper, acquired before maturity ; but he says that rule does not apply in such a case as this, because the note is paraphed ne varietur by the notary, and that charged him with notice, and that the act of mortgage, in Morehouse parish, showed that the note was for advances made and to be made. If this were true, it would result that mortgage notes or bonds are not negotiable; that the security, which is intended to give them value in the commercial world, destroyed their negotiability. The statement of the proposition shows its fallacy. The Civil Code declares that “a mortgage may be given for an obligation, which has not yet risen into existence.” Art. 3292; 10 B. 383. And 3293, which says “ the right of mortgage, in this case, shall only be realized in so far as the promise shall be carried into effect by the person making it,” applies to cases between the parties to the contract, or in which the principal obligation is not negotiable.

Tim plaintiffs, however, have only asked to have the mortgage recognized to the extent of $3664 12, with interest from first May, 1873.

It is therefore ordered and adjudged that the judgment of the district court be annulled, that the verdict be set aside, and that there be judgment in favor of the plaintiffs and against the defendant for five thousand dollars, with eight per cent, interest per annum from the first of December, 1873, and costs of both courts; and that the mortgage referí ed to in the petition on the property therein described be recognized and made executory to the amount of $3664 12, with eight per cent, per annum interest from first May, 1873.


text:
    No. 575.
    Robertine Green v. The Baptist Church of Shreveport.
    In this petitory action plaintiff claims that her posthumous birth destroyed her father’s will; that the executor became thereby incapable to act; and that the sale made by him, as such, conveyed no title to the purchaser, who subsequently transferred it to the defendant.

      Prima, facie,, the title acquired by the first purchaser was a good one. The property had been sold under an order of a eompetént court, made at the instance of one apparently authorized to apply for it. Purchasers are not bound, at their peril, to inquire, when property is advertised for sale by an executor,, whether any thing has occurred, outside of court, to destroy the will under which he is acting.
    Besides, the succession of plaintiff’s father being insolvent, and tbe property which she now-claims having "been applied, as was proper, to the payment of his debts, it is not seen how she has been injured by the sale of which she complains.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Looney, J.

      Fuqua, GalWham and Seay, for plaintiff and appellant. Nutt & Leonard, for defendant and appellee.
   Morgan, J.

Plaintiff’s father, Robert Green, died in October, 1854. He constituted his wife Lizzie H. Green, his universal legatee, and appointed John J. Green his testamentary executor, who qualified as such. The property now in contest formed part of his succession.

In February, 1855, the plaintiff was born. She is the issue of the marriage of Robert Green and Lizzie H. Green. At the time of her father’s death she was “ en ventre sa mere.'1'1

In June, 1856, the lots in question were sold. The sale was provoked by the executor. It was made under an order of court, and by auction.

Plaintiff claims that her birth destroyed her father’s will; that the executor bécarne thereby without power to act, and that the sale made by him conveyed no title.

It is in evidence that Robert Green died insolvent. It is admitted that the proceeds of the property went toward the payment of his debts.

Frima facie, the title acquired by the first purchaser was a good one. The property had been sold under an order of a competent court, made at the instance of one apparently authorized to apply for it. The records of the country showed that the executor was exercising the functions of his office at the time he asked for the order of sale. Purchasers are not bound, at their peril, to inquire, when property is advertised for sale by an executor, whether any thing has occurred outside of court; to destroy the will under which he is acting.

Besides, her father’s succession being insolvent, and the property which she now claims having been applied, as was proper, to the payment of his debts, we do not see how she has been injured by the sale of which she complains.

The moral of her position is that the purchasers of her father’s property shall pay his debts, and the property itself be returned to her. To this we can not assent.

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

Ludeling, C. J.,

dissenting. This is a petitory action by the heir of Robert Green. The defense is'that the defendant holds the property by mesne conveyances from the purchaser at a probate sale of the succession of Robert Green.

The sale was provoked and made by one who acted as the executor of the last will of Robert Green. At the time of the sale, the will, which appointed him executor, had been destroyed by the birth of a legitimate child of the testator subsequent to its date. “The testament falls by the birth of legitimate children of the testator posterior to its date,” C. C. 1705. After the birth of the child there was no testament, and consequently no executor of Robert Green, deceased. And all the acts of said pretended executor were absolutely null. 2 R. 258 ; 3 An. 271; 8 An. 378; 6 How. 550.

Suppose a mere intermeddler, representing himself to be executor, had obtained an order to sell succession property and had made the sale ; could it be seriously pretended that such as ale could be held to be valid? I imagine not.

It is contended, however, that John J. Green was acting under an appointment recognized by a court under an order of sale granted by a court of competent jurisdiction, and that therefore the sale was valid. The will having ceased to have validity after the birth of the child, ipso faeto, all who dealt with him, were bound to inquire, if he filled the office legally. Otherwise the provisions of article 1705 is meaningless. J. J. Green had no right to ask for the order, and the court erred in making it, and it was without power or jurisdiction to authorize him, a stranger to the estate, to make the sale. The order itself was a nullity. “ Quod, nullum est, nullum, effeetumproduciV’

The rule that a purchaser at a judicial sale is protected by the judgment of a court, has this extent only, that the innocent purchaser is protected from irregularities which precede the judgment. 23 An. 446. It has no application to this case, for the plaintiff does not complain of mere want of formalities preceding the order of sale; but of the order itself as null and void. The complaint is that succession property, the heir to which was a minor, was sold under an order granted when both the succession and the minor were unrepresented, and at the instance of a total stranger to the succession. There is no exception in this case that the minor has not offered to return the price of the property which may have gone to pay the debts of the succession; and therefore I think there should be judgment in her favor for the land, and a writ of possession to issue only, when she reimbursed to defendant the portion of the price which went to pay the debts of the succession. For the foregoing reasons I dissent.

Rehearing refused.


text:
    No. 586.
    R. H. Lindsay v. W. A. Wright.
    This is an action of boundary. The judge a quo erred in receiving the report of the surveyors, which was not made in conformity to haw Revised Code, 834.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Looney, J.

      Nutt & Leonard, for plaintiff and appellee. Land & Taylor, for defendant and appellants
   Wyly, J.

This is an action of boundary. The defendant prayed for a survey and the court commissioned Watts, Levenwortli, and Par sons, surveyors, to make the survey. Their reports were objected to and a new survey was ordered. The court directed surveyors Melvin, DeVoe, and Crain to make a survey, and in the order required them “to give due notice to the parties in writing of the time and place when the survey will be made by you, and you will call upon them for their title deeds and make due return,” etc.

At the trial defendant excepted to the reports of these surveyors, because the process verbal of the survey does not show that the parties in interest were notified in writing of the time and place of making the survey. The judgment of the court was based on the report of surveyors Melvin and DeVoe, and from it the defendant appeals.

The report of these surveyors _should not have been received. Whenever any surveyor is called on- to fix the limits between adjacent estates, it is his duty to notify in writing the owners interested therein to be present at the work, if they think proper, and to inform them of the day and hour when he will proceed to fix the limits; and he is bound in his process verbal to make mention of the notice he may thus have given of the names of the parties notified and of the date of the notice. * * * Revised Code, 834.

It is therefore ordered that the judgment herein be set aside, and it is decreed that this case be remanded for new trial, and to be proceeded in according to the views herein expressed, appellee paying costs of appeal.


author: Ludeling, C. J. Wy-ly, J.,

text:
    No. 554.
    G. W. Kimbrough, Administrator, v. Walker and Vaught and R. B. Todd.
    .An injunction, which was subsequently dissolved, was obtained in the parish court of the parish of Morehouse, by Walker and Vaught, and an injunction, bond for $500 given, with R. B. Todd as security. This suit is to make both principals and surety responsible in damages for the injunction wrongfully taken, without regard to the amount specified in the bond.
    As to Walker and Vaught, the principals, the plea to the jurisdiction of the court was properly maintained. They must be sued at their domicile, which is New Orleans.
    As to the security, who resides in the parish, the plea to the jurisdiction ratione materice is not tenable. It is the demand which must test the jurisdiction, and the demand in this case is over $7000, the plaintiff contending that the liability of the security is not limited to the bond.
    The plea of res judicata is not tenable, because in the cases cited and in which it is alleged that the cause of action now presented had been pleaded, nothing was said in regard to damages, as that question was not properly at issue.
    APPEAL from the Fourteenth Judicial District Court, parish of Morehouse. Bay, J.

      G. T. Bunn, for plaintiff and appellant. Todd & Brigham, for defendants and appellees.
   Ludeling, C. J.

This is a suit for seven thousand two hundred and sixty-two dollars, for damages for the wrongful suing out of an injunction by Walker and Vaught, residents of New Orleans, in 1869, to prevent the sale of property belonging to the succession of W. R. Ward.

The injunction was obtained in the parish court, and an injunction bond for $500 was given with R. B. Todd as security. This suit is to make both principals and surety responsible for said damages, without regard to the amount specified in the bond.

The defendant'pleaded to the jurisdiction of the court ratione persona as to the principals, and ratione materia as to the security. They further pleaded res judicata. These pleas were sustained, and the plaintiff has appealed.

As to Walker and Vaught, the plea to the jurisdiction of the court was properly maintained. They must be sued at their domicile.

As to the surety, the plea is not tenable; it is the demand which must test the jurisdiction of the court ratione materia. The demand in this case is over $7000, the plaintiff contending that the liability of the surety for damages is not limited to the bond. It is evident that this question, thus raised, could never be decided if the plea be good, for no court would have original jurisdiction in the matter, if the district court has not.

The plea of res judicata is not tenable.

Nothing was said in regard to damages in the cases in which the injunctions were dissolved, because the question of damages was not properly at issue in said cases. 1 Rob. 142; 9 An. 303.

It is therefore ordered that the judgment of the district court be reversed, and that there be judgment dismissing the plaintiff’s demand against Walker and Vaught, for want of jurisdiction of the court a qua, with costs; and that the case be remanded to the court of the first instance, to be proceeded with according to law against the defendant Robert B. Todd, the appellee Todd to pay the costs of appeal.

Wy-ly, J.,

dissenting. Walker and Vaught, alleging that they were mortgage creditors of the succession of W. R. Ward, and were proceeding to foreclose their mortgage in the district court, enjoined the sale of the mortgaged property ordered by the parish court on fifteenth December, 1869, R. B. Todd being their surety on the injunction bond for five hundred dollars. It was subsequently determined by this court on the trial of said injunction, that they were not mortgage creditors, but ordinary creditors of said succession; that they had no right to enforce the mortgage set up by them, and the injunction was dissolved, nothing being said in the decree in reference to damages which were claimed in that suit. Plaintiff^ the administrator of the succession of Ward, now sues for $7500 damages, which he alleges the succession incurred on account of the wrongful issuing of said injunction, said damages consisting of $500 attorney’s fees and $7000 loss sustained by said succession in the depreciation of the value of the mortgaged property pending the injunction, which suspended the sale thereof from December, 1869, till August, 1871.

Plaintiff, in his brief, bases his action for damages on the injunction bond, and contends that although said bond is only for five hundred dollars, the surety is liable in solido with his principals for whatever damages plaintiff has sustained on account of said injunction. I agree with the majority of the court that the suit must be dismissed as to Walker and Vaught, citizens of New Orleans, for want of jurisdiction ratione persona. They must be sued before their own judge. C. P. 162. But I differ with the majority of the court in regard to the jurisdiction of the court a qua as to Todd, the surety on the injunction bond. As to him, I-think the district court was without jurisdiction rations materia, his obligation on the bond (the matter in dispute) being less than $500.

The plaintiff can not be serious in alleging that the surety on an injunction bond is liable beyond the amount thereof in a suit based, as he contends in his brief, on the bond. Indeed, the bond .evidences the only obligation of Todd, the surety, and it alone gives any cause of action against him. Without the bond Todd was a stranger to the suit which caused the damages of which plaintiff complains. Here then is a suit based on a bond for $500, and the plaintiff proposes to give the district court jurisdiction by a simple allegation that Todd, the surety, owes him on said bond $7500. The demand beyond $500 is purely fictitious, and ought to be entitled to no more weight than a like allegation would have in a suit based on a note for $500.

It will not be pretended that if Mr. Todd were sued upon a note for $500 the attorney for plaintiff could give the district court jurisdiction by simply alleging that he owed on said note $7500, or any other sum in excess of what appeared on the note itself. But it is gravely argued that as plaintiff claims that Todd owes him on the $500 bond $7500, the parish court was without jurisdiction to determine that question, that is, whether he owes on the bond more than the amount thereof. The same might with equal apparent seriousness be said of a suit on a note for $500 where the plaintiff would claim $7500. In my opinion the argument is frivolous. It was impossible to give the district court jurisdiction of a suit against a surety on a bond for $500, simply because ingenious counsel in framing the petition assert that he owes on said bond more than ten times the amount thereof, or $7500. Courts deal with substances not shadows — realities, not fictions. I think the jurisdiction of the court, as fixed in the constitution, should not be altered by such a shallow device. I therefore dissent.

Rehearing refused.


text:
    No. 528.
    The Mayor and Selectmen of the Town of Homer v. T. S. Merritt et als.
    The plea that the securities are not bound because their principal was not legally collector, and because much of the money collected as licenses and fines had not been legally assessed, can not be maintained.
    These questions can not be raised in this collateral manner. It is a fact that the principal on the bond did act as collector, at least under color of authority, and that he did collect the licenses and fines imposed by those who were acting under color of authority. He must account for the moneys collected by him, even though unduly collected, and the sureties bound themselves to do so if he did not.
    There is no merit in the defense that the sureties are bound only for such moneys as the principal collected during the first month of the term of his office, as he was required by law to make monthly settlements. It is evident that a violation of duty by the principal, can be no excuse for the sureties, who are bound for the consequences of all violations of his duties.
    APPEAL from the Eleventh Judicial District Court, parish of Claiborne. Trimble, J. Jury trial.

      JEgan á Hayes, for plaintiffs and appellees. J. & J. W. Young, for defendants and appellants.
   Ludeling, C. J.

The plaintiffs sue the principal and his sureties on a bond given as collector of the town of Homer, the principal having embezzled the moneys collected by him.

The principal defenses are, that the securities are not bound for licenses and fines collected by their principal, which were illegally-assessed; and that their principal was not legally elected collector, etc.

The case was tried by a jury, who rendered a verdict for the plaintiffs, and judgment was rendered in accordance with said verdict. Defendants have appealed.

There are bills of exceptions in the record which, however, it is not necessary to notice in this opinion more particularly, as they practically present the questions presented by their answer, to wit: that the securities are not bound, because their principal was not legally collector, and because much of the moneys collected as licenses and fines, had not been legally assessed.

These questions can not be raised in this collateral manner. It is a fact that the principal on the bond did act as collector, at least, under color of authority; and that he did collect the licenses and fines imposed by those who were acting under color of authority; he must account for the moneys collected by him even though unduly collected, and the sureties bound themselves to do so, if he did not. Nor is there any merit in the defense that they are bound only for such moneys as the principal collected during the first month of the term of his office, as he was required by law to make monthly settlements. It is evident that a violation of duty by the principal, can be no excuse for the sureties, who are bound for the consequences of all violations of his duties.

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


text:
    No. 526.
    State of Louisiana ex rel. Jacob A. Meyer v. Joshua Van Tromp.
    This is a contest for the office of recorder of the parish, of West Feliciana. The vacancy having occurred when the Senate was not in. session, the nomination to fill the same was properly made at the called session which was the “next session'* after the vacancy occurred. To fill this vacancy the Governor had the power to nominate whom he pleased, and this without regard to any appointment he nad made during the recess.
    APPEAL from the Seventh Judicial District' Court, parish of West Feliciana. Séwes, J. Jury trial.

      W. W. Lealce, district attorney ad hoc, 8. J. Powell, for relator and appellant. Farrar & Montgomery, for defendant and appellee.
   Morgan, J.

When the Senate was in recess, a vacancy occurred in the office of recorder of the parish of West Feliciana. Van Tromp was appointed to fill it. The Governor afterward convened the Legislature in extra session.

At this session he nominated J. C. Meyer for the office. The nomination was confirmed, and a commission was issued to him.

Van Tromp claims that the appointment of Meyer was illegal, and refuses to give him up the office.

The vacancy having occurred when the Senate was not in session, the nomination to fill the same was properly made at the called session, which was the “next session ” after the vacancy occurred. To fill this vacancy the Governor had the power to nominate whom he pleased, and this without regard to any appointment he might have made during the recess.

The nomination by the Governor of the plaintiff, his confirmation by the Senate, and the possession of his commission, entitles him to the office which he claims.

The views thus expressed, renders it unnecessary to examine the bills of exceptions, which are in the record.

It is therefore ordered, adjudged and decreed that the judgment of the district court be avoided, annulled and reversed, and that there be judgment in favor of the plaintiff decreeing him to be entitled to the office of recorder of the parish of West Feliciana, and that he be put in possession thereof, in conformity with the prayer of his petition, and that the injunction prayed for by the plaintiff and as against the said defendant be made perpetual, defendant to pay the costs in both courts.


text:
    No. 582.
    C. W. Keeting v. Arthur, Stone & Co.
    The judgment of the lower court, predicated upon the ground that the proceedings in bankruptcy in relation to plaintiff in injunction are still pending, and that execution on the defendant’s judgment can not legally issue until the final judgment of the bankrupt oourt decreeing a discharge of the bankrupt, or not, bo rendered, is correct.
    The defendants made themselves parties to the bankrupt proceedings, opposing the discharge of the plaintiff, and the matter remains undocided in the bankrupt court. He has the right to have the execution suspended until the final aotion of said court.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Looney,-3.

      Duncan & Moncure, for plaintiff and appellee. Land & Taylor, for defendants and appellants.
   Taliaferro, J.

The plaintiff enjoins the execution of a judgment rendered against the firm of McVean, Thompson & Keeting, of which he was a member. The grounds are stated to be :

First — That tne debt on which the judgment was rendered was contracted before bis marriage and tbe property seized and about to be sold to satisfy the judgment is community property, and can not be subjected to the payment of his debts contracted anterior to his marriage.

Second — That on the thirteenth of May, 1868, the plaintiff made a surrender in bankruptcy and was adjudged a bankrupt by the proper court — that the proceedings in bankruptcy are still pending and undecided and operate a stay or suspension of all further legal proceedings against him and his property pending these in the bankrupt court.

The defendants moved to dissolve the injunction on the following grounds :

First — That the lots and property seized, although acquired after marriage, are liable to seizure and sale for the debts of the husband contracted anterior to the existence of the community.

Second — Because if plaintiff were adjudged a bankrupt before judgment was rendered against him in favor of Arthur, Stone & Co. plaintiff should have pleaded his bankruptcy as a bar before judgment was rendered against him; and having failed so to plead, he can not by means of injunction set up a defense or exception which he could have pleaded before judgment.

Third — Because plaintiff’s petition on its face discloses no cause of action.

On the trial of this motion the injunction was sustained on both the grounds upon which it was based, and the motion was overruled. The defendants then answered to the merits, and the case was tried on the same issues presented on the trial of the rule, and with the same result, except that the court, on the trial on the merits, did not pass upon the first-ground of the injunction, and consequently only maintained the injunction until the final judgment and decree of the bankrupt court shall be rendered, reserving to both parties all their legal rights and remedies under the pleadings.

The defendants have appealed.

In this court the plaintiff prays an amendment of the judgment so as to render the injunction perpetual, and to allow him damages for an illegal seizure of his property as prayed for in his original petition.

We deem it unnecessary to pass upon the question raised by the first ground stated as cause for the injunction. The judgment of the lower court predicated upon the second ground, namely, that the proceedings in bankruptcy are still pending, and that execution on the defendants’ judgment can not legally issue until the final judgment of the bankrupt court decreeing a discharge of the bankrupt or not be rendered, we think correct.

In the case of G-allagher v. Michel, 26 An. 41, it was held that, as plaintiff did not set up his discharge in bankruptcy as a defense before judgment, he could not afterward make it cause for injunction. It is argued that if a discharge in bankruptcy must be pleaded before judgment, so ought also a mere adjudication which operates merely a stay of proceedings. In the case of Gallagher a discharge was decreed before final judgment in the State court, and he might have pleaded that discharge.

In the case at bar no discharge has yet been decreed, and therefore the plaintiff could not plead a discharge before judgment. If he ultimately obtains a discharge, it will operate a release from the debt for which the defendants have obtained a judgment against the plaintiff, and upon which they have issued the execution enjoined by him. These defendants made themselves parties to the bankrupt proceedings, opposing the discharge of the plaintiff, and the matter remains undecided in the bankrupt court as to whether the plaintiff will be discharged or not. He has the right to have the execution suspended until the final action of the bankrupt court. Mosby v. Steele, 7 Ala. 229 j James on Bankruptcy, pp. 98 and 99.

It is therefore ordered that the judgment of the district court be affirmed with c'sts.


text:
    No. 520.
    The State of Louisiana v. Alcee Harris and Toney Nellum.
    Alcee Harris and Toney Helium were indicted for murder. Ho severance was asked by either of the defendants. On the trial evidence of confession by Helium was offered against him, not objected to and received. The position taken by Alcee Harris that it involves her in the crime, that it was hearsay, and therefore not admissible, can not be maintained. The evidence was only offered against Helium and admitted as to him. It was not, under the instructions of the judge, used against Alcee Harris. Hence she can not complain. It must be presumed that the jury followed the instructions of the judge.
    Both defendants moved for a new trial, which was refused. As no question of law is presented in either of these motions, this court can not consider the legality of the judge’s rulings upon them.
    The word willful is not sacramental, and its omission in the indictment does not vitiate that instrument. Defendants are charged with having feloniously murdered the deceased. The felonious murdering was necessarily a willful act. Whether it was willful and felonious were questions of fact which it was the province of the jury to decide.
    APPEAL from the Fourteenth Judicial District Court, parish of Ouachita. Bay, J. Criminal case.

      O. T. Bunn, district attorney, for plaintiff and appellee. Bdbert J. Gold-well, for defendants and appellants.
   Morgan, J.

The accused were indicted and found guilty of the murder of Henry Harris. They were sentenced to be hung, and have appealed to us.

On the trial Alcee Harris objected to the introduction of the testimony of T. MeEnery, a witness on the part of the State, who swore that Nellum had confessed to the murder of the deceased, his confession involving- her in the crime. No severance was asked by either of the defendants. The testimony of MeEnery was not objected to by Nellum. Alcee contends that, as to her, it was hearsay, and therefore inadmissible. This evidence was only offered and received as against Nellum, and as to him it was admissible. She also contends that the evidence was inadmissible because MeEnery, to whom the confession was made, had no authority to arrest and detain Nellum, MeEnery being a private citizen, clothed with no authority.

As this testimouy was not used against her, under the instructions of the district judge, she can not complain. She urges that it had an effect upon the jury. But we must presume that the jury followed the instructions of the court, and that her conviction resulted from evidence other than McEnery’s.

They both moved for a new trial, on the ground that the verdict of the jury was contrary to law and the evidence. The new trial was refused. As no question of law is presented in either of these motions, we can not consider the legality of the judge’s rulings upon them. Both defendants then moved for an arrest of judgment. They aver that the indictment is fatally defective, inasmuch as it reads : “ And him (Henry Harris) they, Alcee Harris and Toney Nellum, did feloniously, and of their malice aforethought, kill and murder then and there; when in fact and in law the indictment should contain, and the State should have alleged and inserted a count that the parties to the indictment did feloniously, willfully, and of their malice aforethought, kill and murder the deceased. In simple phrase, they contend that the word willful is not to be found in the indictment; that this word is sacramental, and that being omitted the indictment is worthless.

We can not assent to their proposition. They are charged with having feloniously murdered the deceased. The felonious murdering was necessarily a willful act. The word willful is not sacramental in an indictment for murder. If the killing had not been willful, it would not have been murder; if it had not been felonious, it would not have been murder. Whether it was willful and felonious, were questions of fact which it was the province of the jury to decide, without deciding which against them, they could not have been convicted.

The district judge has not erred in his rulings in this case, and the law must take its course.

Judgment affirmed.

Rehearing refused.


text:
    No. 522.
    Succession of Everett Miller—Contestation in regard to administration and oppositions to the account filed by the Public Administrator.
    The law establishing the office of public administrator did not repeal the clause of the article of the Civil Codo, giving the wife, under certain contingencies, the right to administer the succession of her husband. The succession of Miller is not of that class of vacant successions which the law authorizes the public administrator to administer oirtute ojjicii.

    The judgment of the court below is erroneous in allowing commissions to the public administrator. Ho was wholly without right to administer the estate, and ho knew it. His pretension that he was appointed to administer provisionally, does not help his case. The provisional appointment was improperly made.
    The provisional appointment of the public administrator to administer an estate applies only to cases of contestation between third parties, not to cases where the public administrator himself is a contestant, and especially whore he puts up that contestation for his own profit.
    Whatever charges have been incurred for inventory, appraisement and proceedings to put the opponent, Mrs. Miller, in possession, are to be at the cost of the succession, but not the costs incurred by her opposition to the public administrator’s claim to administer the estate.
    APPEAL from the Parish Court, parish of Ouachita. Baker, J.

      Robert J. Oalchvell, for public administrator, appellant. S. D. MoEnery, for Mrs. Miller, opponent and appellant. John H. Dink-grave, for absent heirs, appellants.
   Taliaferro, J.

This case presents a very unseemly controversy, •brought on by the mistaken course pursued by the public administrator of the parish in assuming in that capacity the administration of the estate. Everett Miller died in Monroe on the ninth of October, 1874, leaving a wife, who was entitled to the administration of his succession, Civil Code, article —.

Tlie law establishing the office of public administrator did not repeal the clause of that article giving the wife, under certain contingencies, the right to administer the succession of her husband. The succession of Miller is not of that class of vacant successions which the law authorizes the public administrator to administer virbwte officii.

The facts seem to be that, only two or three days after tlie decease of Miller, an attorney, acting on behalf of tlie widow, was awaiting tlie arrival of the parish judge at his office in order to present her petition for the administration, when the public administrator, aware of this fact, anticipated her application by posting out to the residence of the judge, some four miles out of town, and procured an order for the administration.

Mrs. Miller filed an opposition, praying to be put in possession under article 930 R. C. This opposition was sustained by the parish judge, and au order rendered that the effects of the succession be put into her possession upon the filing by her of the required bond. The bond was furnished, but the putting into possession was not carried into effect.

The testimony of certain parties residing at a distance, was taken under commission, for the purpose of establishing that there were heirs of Miller entitled to the estate. These parties afterward appeared and opposed the delivery of the succession to Mrs. Miller, and prayed to be recognized as the heirs of Miller and placed in possession of the estate. A counsel of absent heirs was appointed.

On the same day that the opposition of Mrs. Miller was filed, the judge appointed the public administrator to administer provisionally until the rights of the respective claimants should be finally determined.

An order was obtained upon application of the widow, that the acting administrator file an account. Under this order he filed an account nearly every item of which was opposed by her. The effort made to establish heirship in any of the parties from abroad, proved a failure.

It came out that Miller, the deceased, wás illegitimate. The relationship of the persons claiming his succession, one the uncle and the other an aunt, could not sustain their pretensions to the inheritance of his succession. The surviving wife was left without competitors for the heirship, and was properly decreed entitled to the property. The debts of the deceased, it seems were few and unimportant.

Judgment was rendered on the opposition to the account, apd the application of Boyer and Caroline Nestley to be recognized as heirs of the deceased. The application of these parties was dismissed at their costs. The account was homologated in all its parts, except that the amount on which the percentage allowed as commissions was reduced to $2457, instead of allowing it on the whole amount of the succession. The administrator was authorized to retain $L22 85 for his commissions ; also $100 to pay attorney’s lees for the succession, and to retain the sum stated in the account to pay clerk’s costs. The costs of Mrs. Miller’s opposition and those accruing on the homologation of the final account, to be borne by the succession. The decree finally ordered, that in default of delivering to Mrs. Miller the property within ten days, a writ of possession issue.

From this judgment both parties appealed.

The judgment is erroneous in allowing commissions to the public administrator, and in allowing the sum of one hundred dollars for attorney’s fees. The public administrator was wholly without right to administer the estate. He knew that the deceased had left a wife, and he was in hot haste to procure an order granting him the administration before her application for it could be presented, and which he knew was already prepared and about to be presented. His pretension that he was appointed to administer provisionally, does not help his ease. The provisional appointment was improperly made. The provisional appointment of the public administrator to administer an estate, applies only to cases of contestation between third parties— not to cases where the public administrator himself is a contestant, and especially where he gets up that contestation for his own profit. If this were otherwise, the public administrator could not be prevented from clutching every succession that opens within the range of his authority. By setting up his claim to administer and invoking opposition, he would get the provisional administration and claim his commissions, and thus he might levy a kind of tribute upon every succession that opened within the limits of the parish in which he exercises his functions.

The pertinacity with which the public administrator in this case has held possession of the succession after an order was rendered for the delivery of it to the opponent, and after she had furnished the required bond, is anything but commendable. His pretense being that he had the right to retain it until he was paid the commissions he charges, not one cent of which-he is entitled to, has no force.

Whatever charges have been incurred for inventory, appraisement, and proceedings to put the opponent, Mrs. Miller, in possession, are to be at the cost of the succession ; but not the costs incurred by her opposition to the public administrator’s claim to administer the estate. The charge of three dollars for photographing the deceased to be rejected. By his own showing the public administrator has collected rents due the estate to the amount of $77. And it appears that he has paid out of the funds of the succession for taxes due by the estate $24 20. Insurance on buildings $20, and $5 for grave digging. These chai’ges were properly allowed as charges against the succession. But we do not find the data sufficiently explicit to determine with certainty the amount of funds that came into his'hands belonging to the succession, nor the amount he paid that inured to the benefit of the succession. We conclude, however, that the latter were covered by the former and that the estate owes him nothing.

It is therefore ordered that the judgment of the parish court, so far as it rejects the claims of Christian Boyer and Caroline Nestly to be recognized as the heirs of Everett Miller, deceased, and rejects the claim of $75 fee for counsel for absent heirs, be affirmed, and. in all other respects that it be annulled, avoided and reversed. It is further ordered that the costs incurred in procuring the appointment of the public administrator to administer the estate, and all costs incurred by and growing out of the contestation for the administration be paid by the public administrator. There is reserved to him the right to claim from the succession or the heir in possession any sum which may be found owing to him, if any, for money advanced or paid by him, and which inured to the benefit of the succession; the right being reciprocally reserved to Mrs. Miller, or the succession, to require him to account for all funds belonging to the succession received by him. It is lastly ordered that a writ of possession issue, and the sheriff is ordered to proceed forthwith under the same to put into the possession of Charlotte Temple Miller, surviving wife and heir of Everett Miller, deceased, all the property of every kind belonging to his succession.