text:
    No. 13,185.
    The J. G. Wagner Company vs. City of Monroe.
    Syllabus.
    1. One not ready himself to contract in. reference to a matter as to which proposals had been invited, is not in a position to enforce a penalty against the. other party submitting the proposal, for not contracting.
    2. A penal clause in a contract is considered by the law in the nature of compensation for the damages which the creditor sustains by the non-execution of the principal obligation.
    3. But the penalty being stipulated merely to enforce the performance of the-principal obligation, it is not incurred, although the principal obligation be not performed, if there be a lawful excuse for its non-performance.
    APPEAL from the Fifth Judicial District, Parish of Ouachita— Potts, J.

      Munholland & Munholland for Plaintiff, Appellant.

      BtuVbs & Russell for Defendant, Appellee.
   The opinion of the court was delivered by

Blanchard, J.

The Oity of Monroe, situated upon the Ouachita river, desired a traffic bridge across that stream.

Being a navigable waterway of the United States it was necessary 16-obtain authority from Congress to bridge the river.

As the municipal limits of the town extended only to the middle of the stream, and the Parish of Ouachita had jurisdiction over the opposite shore, it was thought advisable to obtain the grant of authority from Congress in the name of the city and the parish.

Accordingly an act, bearing the title “An Act to authorize the Mayor and Oity Council of Monroe, and the Police Jury of OuachitaParish, La., to construct a bridge across the Ouachita river at Monroe”, was passed.

It granted permission to the City and Parish to construct the bridge- and am'ong other things provided! it should be located and built under and subject to such regulations for the security of the navigation of the river as the Secretary of War shall prescribe, and in order to secure this it required that the grantees should submit to that official, for his examination and approvál, the design and drawings of the proposed bridge, together with a map showing its location, the topography of the banks of the river in the vicinity thereof, the shore lines, the direction and strength of the current, the bed of the-river obtained from soundings, and such other information as might be required for a full and satisfactory understanding of the subject.

And it forbade the commencement of the work of construction until the location and plan of the bridge shall have been approved by the •Secretary of War.

In June 1897 the City of Monroe advertised for proposals for the construction of the bridge. The Malyor, who was also Chairman of the Bridge Committee, was to receive the bids, and the limit of time fixed for their reception was July 10th, afterwards extended to July 24th. It was required of each bidder to forward his certified check for $2500, which, it was stated, “shall be forfeited in case the party receiving the award fails to sign the contract within ten days from the time the award is made.”

The sub and superstructures of the bridge were to be constructed according to plans on file in the Mayor’s office.

Plaintiff company, on July 2, 1897, wired the Mayor to forward it full information regarding the bridge to be let and a copy of the plans on file.

The Mayor complied by sending printed instructions and information, and referred plaintiff to the City Engineer for official copies of the plans, drawings and specifications.

Plaintiff applied to the City Engineer for the latter and what purported to be official copies of the same were sent. Upon receipt thereof the company compiled estimates for the bridge and followed this by submitting a proposal to construct it for $49,933, payable in ten equal annual installments. It accompanied its bid with the required check -for $2500.

On July 26, 1897, the Mayor wired the company its bid was accepted, .-and the latter replied asking that the contract be mailed immediately for examination. Being advised that the contract could not be drawn until a representative of the company was sent to Monroe, one was dispatched.

He raised various objections, which, after much negotiation and con- ' sumption of time, failed of adjustment, and culminated, in the early part of October, in the declination on the part of the plaintiff company to execute a ‘contract predicated on the bid they had submitted.

Following this, defendant proceeded to collect, the amount of the certified- check and -placed the proceeds thereof in its general fund. This was without the knowledge or consent of plaintiff’, who, ascertaining that the City was again inviting bids for the same bridge, demanded the return of its cheek. It had- then already been collected by defendant and the latter made no reply.

, Later the City let a contract for the construction of the bridge to the Groton Bridge Company at the -price of -$88,000.

This suit is to recover the amount of the check so collected as. aforesaid.

One of the grounds upon which recovery is sought is that the City of Monroe, -in- attempting to make a contract with the plaintiff for a bridge over the Ouachita river, was acting ultra viresj that the legal right- or authority to undertake such work was not within its grant of corporate powers; and that the principal contract, or attempted contract, being void, the accessory thereto — the check drawn to insure its execution — being in the nature of a penal clause to inforce its performance, is likewise void, since the nullity of the-principal obligation involves that of the accessory. . • ■

Another ground is that at the time of the award of the contract to-plaintiff and the demand made upon it to sign the written instrument purporting to evidence the same, the City of Monroe had not secured the approval of the Secretary of War to the plans of the bridge as required by the act of Congress, and, therefore, the said City was not, itself, in a position to contract.

A third ground is that plaintiff’s bid was predicted upon certain plans and specifications (or copies thereof) sent to it, whereas the contract offered in response to - such bid was based upon other and materially different plans and specifications.

These grounds of action are elaborated in an original and amended petition.

The defense is that plaintiff is estopped from denying the City’s right or authority to make the contract, or to construct the bridge, for the reason that the company had recognized the right, authority and capacity of the Mayor and Town Council by submitting a bid and offering to construct the bridge, and on the further ground that the alleged 'incapacity and want of authority were not urged as a reason for plaintiff’s refusal to sign and execute the contract.

It is denied that the plans and specifications forwarded to plaintiff differed from those on file in the Mayor’s office, and it is averred that if any differences existed plaintiff was amply protected under its bid and by the terms of the plans and specifications, because of the fact that .the latter required plaintiff, in addition to their offer to do the work for a lump sum, to submit unit prices covering the prices of material, etc,, to meet changes that might be made during the progress ci the work, either for increase or reduction of quantity of work and character of materials used, and that plaintiff complied with this requirement by submitting such unit prices to meet such changes, etc.

It is denied that the plans for the superstructure of the bridge had not been approved by 'the Secretary of War when plaintiff’s agent came to. Monroe, and it is averred that the plans for both the superstructure and substructure had been approved by the War Department as early as the 2nd of July, 1897, which was previous to the time plaintiff was required to execute the contract. '' ’

These defenses aré elaborated in the answer filed and the City’s action, in enforcing- the penal clause of the contract by the collection of the $2500 cheek is sought tó be justified.

There was‘also filed, in bar of the demand for the'return' of that sum, the plea of prescription of one year.

Judgment below was in favor of defendant and this appeal followed.

In -the view wé take of the ease it is not found necessary to pass upon the question whether or not there was legal authority or capacity in the City of Monroe to contract for the Construction of a bridge across thd'Ouachita river.

Neither do we find it necessary to discuss or pass upon the question whether or not plaintiff is entitled to relief because of the alleged difference between the plans and specifications sent to- it and upon which its bid was predicated, and those on file in the Mayor’s office upon which the contract plaintiff was required to sign, was based.

We think-the case is with the plaintiff upon the other ground declared on, viz: — that at the time the bid was accepted and plaintiff’s representative came to Monroe for the purpose, of executing the formal contract for the construction of the bridge, the City of Monroe had not put itself in position to contract by securing- the final approval of the Secretary of War to the full plans for the proposed work, as required by the Act of Congress.

We find that it was not until the 18th of September, 1897, that the final plans for the work to be done in the Ouachita river, in connection with this bridge, were approved by the War Department, and that it was not until the 26th of September that the same was notified to plaintiff company.

This was two months after the acceptance by the City of plaintiff’s, bid for the construction of the bridge.

During these two months the water in the river was at a low stage, and it was the time when the work in the river and on its shores, in connection with the bridge could be done to the best advantage and at a cost greatly under what it could be done for when the river was up.

Plaintiff’s proposal for the bridge was upon a close margin and at a low price. When the Secretary of War finally approved the plans it was nearing the time -when the fall rains might be expected to set in, to be followed by a rise in the river and a full stage of water, during the Winter and Spring. These conditions were such as to greatly augment the price of the work and it was not reasonably to be expected that plaintiff would consent to be held to a proposal predicated upon a low stage of water, when, through no fault of its, the other party to the proposed business arrangement was not in a condition to contract legally until the greater part of the low-water season had passed.

Again, it is shown that during the two months aforesaid, culminating' in the final approval by the Secretary of War of the plans for the work, the prices of steel, required for the bridge, had largely increased over what they were when the bid of the plaintiff was accepted, and this constituted a material alteration in conditions entitling plaintiff to relief against the enforcement of the proposal it had submitted.

It also appears that after plaintiff’s bid was accepted and during the two months aforesaid, and for a considerable period of time following the date when the Secretary of War acted finally in the matter of the approval of the plans, yellow fever appeared and was prevalent in parts of the States of Louisiana and Mississippi, and a great scare in consequence thereof was upon the country, rigid quarantine regulations were adopted and enforced by cities and towns, including the City of Monroe, and by these means travel and traffic were retarded, transportation by rail and water impeded and an almost general stoppage of business and of prosecution of works of improvement and construction ensued. It is in evidence that owing to the fear of yellow fever it was impossible to secure men competent to do the bridge work to go to Monroe for the purpose.

In view of these circumstances, all post-dating the acceptance of the plaintiff’s bid and culminating before the City of Monroe was in a position to contract with reference to the bridge by reason of not having secured the final approval of the plans therefor by the Secretary of War, it cannot be expected that plaintiff could be held to the execution of the contract when on the 26th of September the Mayor of the City wired the company that “additional plans to the bridge have been received and approved by the Secretary of War. We are ready to sign contract. Let me hear from you.”

We do not agree with the ruling of the trial Judge excluding the evidence offered by plaintiff showing that the plans for the whole work to be done on and in the river in connection with the construction' of the bridge had not been approved by the Secretary of War. The reason for this ruling was irrelevancy and inadmissibility under the pleadings.

The letters, document and other evidence showing the want of full .and final approval of the plans by the Secretary of War at the time plaintiff’s bid was accepted and the contract tendered, were brought us by means of bills of exception seasonably taken to the adverse ruling, .and in this way the testimony is before us.

We think the same should have been received by the trial court. The petition makes the averment that the City was not in a position to •contract because it had not secured the approval of the War Department to the plans of the superstructure of the bridge.

Defendant-insists that the approval of the plans both for the super.structure and substructure had been secured before the submission of plaintiff’s proposal, and as showing this, refers to the action of the War Department taken on July 2, 1897.

Reference to this shows that the City of Monroe had submitted to •the Secretary of War for his examination and approval a design and •drawings and map of the location of the bridge in question, and that the 'Secretary of War had approved the same, but subject to conditions as follows: — “That the space from the rest pier above the Vicksburg, "Shreveport and Pacific Railroad bridge to the rest pier below this proposed bridge, on a line with the pivot pier of both, shall be inclosed by continuous crib-work, or other timber structure, extending above the 'line of highest water.”

“That, if deemed necessary by the Secretary of War, guide work •shall be built on either or both sides of the channel immediately above ¡and through the draws of said bridges; plans for which shall be submitted to and receive the approval of the Secretary of-*War before the superstructure of the proposed bridge is commenced.” .

This, then, was not a full and final approval of the plans for the bridge. Action of the War Department was favorable to the plans as far as submitted, but required other work to be done not shown by the plans submitted, and stipulated that this other work, called crib-work or protection work, must be done and that plans for same should be made and submitted for approval, and approved before the superstructure of the bridge was commenced. It is clear, then, that tiherd had been no such approval of the plans for the superstructure of the bridge by the War Department, prior to the acceptance of plaintiff’s bid, as authorized work to be commenced upon it. That it was probaSble, in due time, the plans for the further work required to be done in the river would be approved, cannot be admitted to have the effect of taking the case out. of the category of the City’s unpreparedness to contract at the time it signified its acceptance of plaintiff’s proposal.

Nor is this counteracted by the fact that the further and additional work required by the War Department to be done as set forth in its; conditional approval of the plans for the bridge submitted by the City, was not to be done by plaintiff — was not covered by its bid, nor to be-included in its contract. This -additional work was required to be done by the City — the builder of the bridge — and plans for it were to be-submitted and approved before the superstructure of the bridge could', even be commenced.

So that pilaintiff, in the allegation of its petition 'that defendant was not in a position to ’contract because not having secured the approval of the War Department for the erection of the superstructure, covered the case sufficiently to admit at{l legal evidence of the fact alleged.

Defendant had not secured the approval of the Department for the erection of the superstructure. What is pointed to as showing this; approval expressly forbade the erection of the superstructure, or its; commencement, until other and further plans for other and further work in the river in connection with the bridge, had been submitted and' approved.

Plaintiff was in ignorance of the fact that the War Department had not fully and finally acted when it submitted its bidt This being-so, it was not estopped to raise this objection to signing the contract when it añade the discovery, and we think the objection was seasonably-raised.

It follows from the foregoing that as the City of Monroe was not. itself ready to contract, it was not in the position to enforce a penalty against the plaintiff for not contracting. The exacting of tifie $2500 check from the plaintiff when its bid was submitted was in the nature of a penal clanse intended to enforce ai principal obligation.

A penal clause is defined by the Code (Art. 2117) to be a secondary obligation, entered into for the purpose of enforcing the performance-of a primary obligation. See also C. C. 2118.

It is considered' by the laiv in the nature of compensation for the; damages which the creditor sustains by the non-execution of the principal obligation. C. C. 2125.

But the penalty being stipulated merely to enforce the performance; of the principal obligation, it is not incurred, although the principal obligation be not performed, if there be a lawful excuse for its nonperformance. C. C. 2120; 22 La. Ann. 150; 36 La. Ann. 690; 13 La. Ann. 476; 35 La. Ann. 1182.

We have seen that plaintiff did have a lawful excuse for its nonperformance. It follows that the penalty was not incurred and defendant cannot retain the money it collected oñ the cheek deposited with, it.

Nor is the right to recover the same barred by the prescription of one-year. 37 La. Ann. 492; 30 La. Ann. 607.

Eor the foregoing reasons, it is ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now adjudged that the defendant, the City of Monroe, holds in its;, possession Two Thousand Five Hundred Dollars belonging to the-plaintiff company, and it is decreed that said plaintiff do have and’ recover of the defendant the said sum of Twq Thousand Eive Hundred-Dollars, with legal interest from judicial demand, and that the costs-of both courts be taxed against the defendant.

Rehearing refused.


source: Caselaw Access Project

author: Nicholls, C. J.

license: Public Domain

text:
    No. 13,493.
    Joseph Weill & Co., in Liquidation, vs. T. D. Kent et als.
    Syllabus.
    1. The privilege granted by Article 3217 of the Civil Code to secure the pay-merit of debts due for necessary supplies furnished to any farm or plantation, and debts due for money actually advanced and used for the purchase* ol necessary supplies and the payment oí necessary expenses for any farm or plantation on the crops of the year, and the proceeds thereof, is a privilege upon a movable, is so declared to be by the law granting it, and does not need to .be registered to make it effective. (Flower & King vs.v Skipwith, 45th Ann., 895 ; I-Iewitt vs. Williams, 47th Ann., 752.)
    3. The seizure and sale of a plantation with a crop thereon standing by the roots, at the instance of a creditor holding a special mortgage antedating a debt due for supplies furnished to cultivate the crop, does not cut off the privilege upon the crop.
    'The crop passes to the purchaser as part of the realty without personal liability on his part to the furnisher of supplies, but he takes it cam onere.

    He stands quoad the privilege in the shoes of the original owner, and as if the sale had not taken place.
    3. A suit brought via ordinaria by the furnisher of supplies, while the crop is still standing by the roots, against the parties to whom the supplies were furnished and the purchaser of the property, at the judicial sale, seeking contradictorily with those parties a personal judgment against the former, a recognition of his privilege on the crop, and the enforcement of the privilege, should not be dismissed on an exception of no cause of action by the purchaser of the property, on the ground that the crop should have been sequestered or attached.
    APPEAL from the Eighteenth J udicial District, Parish of Lafourche —Gaillouet, J.

      Beattie & Beattie for Plaintiffs, Appellants.

      Howell & Martin for Defendants, Appellees.
    Statement of the Case.
   The opinion of 'the court was delivered by

Nicholls, C. J.

The plaintiffs are appellants from a judgment of the District Court dismissing their demand upon exceptions filed by ■defendants that it disclosed no cause of action.

The petition alleged that from January 24th, 1899, to March 18th, 1899, both dates inclusive, they made advances of necessary supplies and'monies "for the purpose of planting and cultivating a crop of sugar cane, corn and hay on the Abby and Highland Plantations, situated in -this parish, and then owned jointly by Joseph Weill, a resident of the Parish of Orleans, and T. D. Kent, a resident of this Parish, composing the firm of Kent & Weill, said advances amounting, in the aggregate, to ten thousand, one hundred and sixty-six and 15-100 dollars. That in reduction of said amount had been paid one hunderd and thirty-five and 36-100 dollars, leaving thus due and unpaid on account of said adt'ances, ten thousand and thirty-one and 39-100 dollars, as all Avill be-more fully shown by a detailed account hereto attached and made a part hereof, and which said amount is now due.

That under the law, petitioners had a lien and privilege on all the sugar, molasses, corn and hay, raised and produced on said plantations, during the year 1899.

That the present owner of the said plantation was the Abby and Highland Planting and Manufacturing Company, Limited, said company having- its domicile in this parish and having bought sanie from Thomas Beary, a resident of this parish, who became the adjudicatee. and purchaser of one undivided half on June 17th, 1899, and of the other undivided half on July 1st, 1899, at sheriff’s sales in foreclosure-proceedings under executory process of said Beary against Joseph Weill and T. D. Kent, respectively.

That said company well knew, before its purchase of said plantations,, of the just and existing claim of petitioners as aforesaid, for advances, to said plantations, and especially did its president, Thomas Beary, and other officers and stockholders, have personal knowledge of same before-said purchase. And that said claim was recorded in the Parish of Lafourche, in the office of the clerk of this court, in the book provided for the registry of such privilege claims, before the purchase by said company of said plantations.

That Thomas Beary, the adjudicatee and purchaser at sheriff’s sale aforesaid, and the president of said company, well knew, before he became the purchaser and adjudicatee, as above set forth, of the existence and justness of petitioner’s aforesaid claim for advances on said plantations during the current year, and that-through himself and his agents and attorneys-at-law, he persuaded and induced your petitioners not to have said claim registered in the clerk’s office, of this parish, where the same had been sent and received by the clerk of this court, ex-officio recorder for registry prior to Juno 17th, 1899, the day of the first sale at which Beary became adjudicateei, persuading petitioners to Avithdraw same from the clerk.

That the same attorneys-at-laAV, who represented said Beary in this transaction, were the representatives at the time of all parties now constituting the stockholders of the said company, and were the advisers of said parties in the organization of said company, and in the transfer by said Beary to it of said plantations, and well knew all the time of the- ■ existence and justness of said claim. That at the time said Peary .became the adjudicatee and purchaser at the said sheriffs sales, he was .acting for himself as well as being the agent of the other persons con.•.stituting the stockholders of said company, the organization of said ■ company and the transfer to it of said plantations having been previously agreed upon by said Beary and said other stockholders in the ■•event Beary should become the adjudicatee at sheriffs sales, and that the said Beary in persuading petitioners not to register their, claim, as ..aforesaid, and to withdraw the account from the recorder’s office, acted for himself and for each of the prospective stockholders of said company, tb-wit: E. U. Morvant, Lawrence Keefe and C. P. Shaver.

Petitioners averred that the said partnership of Kent & Weill was -.thus justly and legally indebted to petitioners, the firm of Joseph Weill ■ é Company, in the sum of ten thousand and thirty-one and 39-100 -dollars, with eight per cent, per annum interest from March 18th, 1899, ..and that each of the members of the firm of Kent & Weill was indebted -.to petitioners for his virile proportion of said amount.

Petitioners averred their inability to furnish bond to sequester the .-.sugar and molasses and other products raised during this year on the aforesaid plantations, but they desiréd to preserve their _ privilege -¿hereon and to secure the payment of aforesaid advances.

The plaintiffs prayer was for citation upon Kent & Weill and the members thereof — the Abby and Highland Planting and Manufacturing Company, Limited, and Thomas Beary; that they have judgment ¿against Kent & Weill for ten thousand and thirty-one and 39-100 -dollars, with eight 1per cent, per annum interest thereon from March 18th, 1899, and against each member thereof for his virile share thereof, -and that said Abby and .Highland Planting and Manufacturing Com-pany, Limited, and the said Thomas Beary, individually, and as presi-dent of said company, be ordered to render full and faithful accounts of .-all the sugar and molasses and other products raised on said plantations • during the year 1899, and turn over the proceeds thereof to petitioners .to an amount sufficient to pay the aforesaid amount of advances with interest, or that in default of their doing this, petitioners have judgment against said Abby and Highland Planting and Manufacturing 'Company, Limited, and against Thomas Beary in solido for said- sum of -.ten thousand and thirty-one and 39-100 dollars with eight per cent, per ■annum interest thereon from March 18th 1899, and-recognizing the ^privilege of the advancer of. necessary supplies- and.monies on the said sugar and molasses and other products to secure the payment of said judgment, and for costs and for all general relief.

Opinion.

The privilege claimed by the plaintiff is that granted by Article 3211 of the Civil Code, in the following terms:

“The debts which are privileged on certain movables are the following:
7T * * * * * * * *
“The debts due for money actually advanced and used for the purchase of necessary supplies, and the payment of necessary expenses, for any farm or plantation on the crops of the year, and the proceeds thereof. * * * The privilege hereinbefore granted to the overseer, the laborers, the furnishers of supplies and the party advancing money to carry on any farm or plantation, shall be concurrent and shall not be divested by any prior mortgage whether conventional, legal or judicial, or by any seizure and sale of the land while the crop is on it.”

The litigation in this case has risen from the fact that the contract between the plaintiffs and Joseph Weill and T. D. Kent was not recorded when the property, for whose cultivation the money and supplies were furnished, was sold at judicial sale in enforcement of special mortgages resting upon the same in favor of Thomas Beary, one of the present defendants.

It is contended by the defendants that the privilege in question was (at least at the time of the sale) a privilege upon an immovable, as1 the crop upon the plantation was then standing by the roots and passed to the purchaser of the property as part of the realty, and, therefore, not being recorded, the property passed to the puchaser free from the privilege.

That under Article 186 of the Constitution “no mortgage or privilege on immovable property shall affect third persons, unless recorded or registered in the parish, where the property is situated, in the manner and within the time as is now prescribed by law, except privileges for expenses of last illness and privileges for taxes, State, parish or municipal; provided such tax liens, mortgages and privileges shall lapse in three years from the 31st of December in the year in which the taxes are levied and whether now or hereafter recorded.”

Plaintiffs, on the other hand, urge that the privilege in question was never otherwise than a privilege on a movable, and that at all events, even' though it might have been temporarily suspended, while the crop stood upon the roots, it would spring into active existence the moment it should be detached from the realty, and then affect both the crop itself and its proceeds.

It will be noticed that the law itself in creating the privileges under Article 3217 C. C. declared them to be privileges on particular movables, and this privilege for money and supplies certainly never struck the realty itself.

We have on two occasions (Flower & King vs. Skipwith, 45th Ann. 895, and Hewett vs. Williams, 47th Ann. 752) held that the privilege was one upon a movable, and- did not call for registry to make it effective.

The law respecting it is drawn with direct reference to the fact that crops might be considered sometimes as movables and sometimes as immovables, under varying circumstances, and with the reference to the relations of different parties towards them, for it does not exact registry and in express terms it malms a sale of the real estate under a pre-existing mortgage, leave the privilege in full force entirely unaffected by the sale, a departure from the results flowing from, the general law governing cases where real estate is sent to sale judicially upon which there exists at the time of sale, recorded (mortgages and privileges. C. P. 679, 683, 684, 685, 706; C. C. 3268.

The record in this case does not show for what price the property was sold, nor does it show how the price of adjudication was credited but we assume that it was placed in its entirety to the credit of the seizing mortgage creditor as if there was no privilege on the crop, leaving-the furnisher of supplies to obtain payment of his claim by personal judgment, against the parties with whom he contracted, and by recourse upon the crop upon which the law gave him a privilege.

It is within the power of the General Assembly to make such classification of things into movables and immovables, as it may think proper, to make lliem be one or the other at different times, to fix and determine the rights and obligations of parties touching them, in view of their shifting from one classification to the other, provided this should be done under circumstances such as not to impair the obligation of contracts.

Parties taking- rights after the Legislature should have acted upon the subject have to do so with reference to existing laws.

It will be observed that Article 133 of the Constitution does not prohibit the existence of a privilege upon an immovable without registry, but declares that unless the privilege be recorded or registered, it shall not affect third persons.

The Legislature has thought proper to declare that crops, whether standing by the roots or cut down; whether on land occupied by lessees, or on land in possession and cultivated by the owners themselves, should quoad the rights of the furnisher of supplies be held to be a movable, and the general public therefore have to frame their contracts from that standpoint.

There is no more stretch of legislative power in making a crop standing by the roots upon an owner’s land — held to be for some purposes and under some circumstances, a movable, than there is in making the crop of a lessee standing by the roots upon property of another person, a movable.

Houses, though declared by the code to be immovable by their nature (C. C. 464) are sometimes held to be movable, and things essentially movable in their nature are by the force and power of the law frequently made to become immobilized.

The law has guarded with great care the rights of all parties, and sought to make private interests and the public good concur. It was essentially necessary that the farmers and planters of this State should be able to obtain advances to cultivate their property, and to that end .be placed in position to offer proper security to parties so advancing. The plan adopted by the General Assembly by whcih the prior mortgage creditor could enforce his mortgage and receive his payment unaffected by the existence of the privilege on the crop, and the party holding the privilege on the crop maintain his rights unaffected by the sale does justice and equity to all as far as it can be effected. (Citizens’ Bank vs. Wiltz, 31 Ann. 245; Perkins vs. Webster, Sheriff, 31 Ann. 875).

The plaintiff does not assert a claim of (personal indebtedness against either Beary or the Abby and Highland Planting and Manufacturing Company, Limited. If either or both have come under obligations by reason of a privilege upon the crop, it is by reason of their voluntary act in becoming purchasers of the same cum, onore.

It was the duty of the sheriff in offering the property for sale, to give notice that the property was sold subject to all privileges and hypothecations of whatsoever kind they might be. (C. P. 679.) The public was bound to know that there might and probably would be a privilege upon the crop, and that though the purchaser of the property would take the crop as part of the realty, and would not come under any personal liability therefor, yet he none the less would take the crop cumonore.

Any one buying the property would do so fully advised of the situation.

The District Court was of the opinion that registry was not necessary to preserve plaintiff’s privilege, but sustained an exception of no-cause of action, upon the ground that the proper action was not resorted to. In his reasons for judgment, the district judge says:

“I understand that the crop, subject to this privilege, passes cum. onore with the plantation seized and sold, upon which it stands at the time of the adjudication. The privileged creditor has the same right to assert his privilege against the crop as if no adjudication had taken place. But he has no personal action against the adjudicatee, or his-assigns into whose hands the crop lawfully passes by the adjudication and mesne conveyance.
“ Indeed, the case of Howe vs. Whited & Gibbs, 21 Ann. 495-497, seems to relegate the privilege creditor to his pro -i<ata of the price of adjudication-to be ascertained by a separate appraisement of the crop from the plantation with which it passes. Inasmuch as the crap passes with the plantation under the adjudication, and the price of adjudication is based both -on the plantation and the crop hanging by the roots,, this would seem to be the most just and equitable rule of the case.
“ At any rate, it is clear to me that the only action of the privileged creditor1 against the adjudicatee and his assigns to enforce the privilege, is one essentially in rem. The present action is not in rem; the thing itself is not propeeded against, not brought in custodia legis. The action as determined by the prayer of the petition is a personal one agaihst the exceptors' to compel them to render á full and faithful account of all the sugar and molasses and other products raised on the-plantations in question, during the year 1899, and to turn the proceeds over to plaintiffs, to the amount of their claim,' and in default thereof that plaintiffs may have judgment against the exceptors for the full' amount of the indebtedness of Kent & Weill to plaintiffs.
“ Such an action I am decidedly of tlie’ opinion cannot, under the facts set forth, be maintained against' the exceptors'.” •

We understand from these expressions that had the plaintiff accompanied his demand'by a sequestration of the crop, under which sequestration it would have been, placed in the sheriff’s hands, the court would have held the action'to have been properly brought.

We do not see the necessity as between the parties to this litigation that the crop upon which the plaintiff claims a privilege should have been placed under a seizure or sequestration to have enabled the court to have passed upon their respective rights and obligations. That remedy might'have been a proper and an important one to have guarded plaintiff’s rights on the crop, or its pr-Qceeds’ as against adverse claims which might be advanced upon the same by creditors of the defendants, but there were no such parties before the court, and no issue of that character had! to be determined. The parties defendants resided within the jurisdiction of the court; the plantation and the crop were, also, within the jurisdiction apd the matters ini dispute such as fall within the cognizance of the District Court. (Truxillo vs. Delaune, 47 Ann. 14.)

Plaintiff had the undoubted right to bring a personal action against their debtors, Joseph Weill and T. D. Kent, and to claim a recognition' of the privilege which their claim carried upon the crop, aixd inasmuch as it, the latter, had passed into third hands subject to the same, it was necessary for the protection of plaintiff’s rights that his demand should have gone to judgment contradictorily with all the parties in interest. "

The suit was brought and citation issued while the crop was on the' plaxxtation still hanging by the roots and subject to the privilege, in the possession of the Abby syid Highland Planting and Manufacturing Company, Limited. The citation upon it as effectually bound the compaxxy itself from that time forward not to dispose of the crop to the prejudice of plaintiffs’ rights, as if it had been enjoined to that effect, even though assignees or purchasers of the crop from it, after that date, should have successfully urged as against the plaintiffs, that they took the crop free from the privilege.

In Welsh vs. Barrow, 3rd Ann. 133, where the plaintiff brought suit" for the recovery of wages as an overseer-, claiming a privilege on the proceeds of a crop received by the defendant, the owner of the planta- ' tion from which the crop was- sold, the court said “that the services were rendered, that they bore a privilege on the crop, that the crop waá sold and the proceeds were received by the defendant, is conceded. It is ’ urged for the defendant that by the salé of the crop by Barrow the privilege was extinguished under Article 3244?’

“ By Article 3184 (New Article 3217) the salary of the overseer for the year last past, is privileged on the product of the last crop, thus presupposing that the planter would not keep his crop, but sell it, and the privilege is affixed specifically on the proceeds. Such is the construction given to this article by the Stipreme Court in the cases cited, and in the Succession of Johnson Kennedy, Ax^pellant, 3 Robinson 216, the court held that this privilege on the last year’s crop may be exercised upon the proceeds, after the crop has been sent to market and sold.”

“If the proceeds were in a court of justice or in the hands of the defendant’s factor, the plaintiff would have his privilege over the other creditors, and we do not understand on what principle he can be deprived of it, when the proceeds are in the defendant’s pocket.” (See on this subject 7 Ann. 526.)

The privilege in the case at bar is one resting not only on the crop, but on its proceeds; the litigation here is not between contesting adverse creditors, but between the party entitled to a privilege against the person having still possession of the property subject to it, who under the law stands quoad the privileged creditor in the shoes of the original owner of the crop. ■

It would make no difference after service of citation on it whether the defendant company should sell the crop or not, for should it sell it, the proceeds in its hands (money) would be subject to plaintiffs’ present demand. (Hewett vs. Williams, 48 Ann. 591).

It may be that the-plaintiffs would not be entitled to call upon the defendant for an account and would be forced to make direct ’ affirmative allegations as to the amount of the crop which had been received by it, and establish the allegation by proof, and it may be when the case goes to trial defendants may defeat plaintiffs’ demand either from some weakness in their evidence, or some circumstance not now disclosed, or from some defensive fact which thfe defendants will then advance, but these are matters which will be determined on the trial, and we are now dealing exclusively with an exception of “no cause of action.” It may not be amiss for us to say that the case is not one calling for a separate appraisement of plantation and crop.

A mistake made by plaintiffs as to their remedy or their urging some relief in his demand that he is not entitled to, does not lead up necessarily to a dismissal of their action upon an exception of “no cause of action.” (See B. J. Wolf & Son vs. New Orleans Tailor Made Pants Company, recently decided).

If-plaintiffs had or have any privilege at all, it is one upon the crop and not upon the land; a privilege upon the crop, considered as an object separate and distinct from the realty.

It is a privilege supporting plaintiffs’ debt upon, not a portion of the crop, but upon the crop in its entirety for the payment of the privilege claim to its full extent, unless other established, concurrent or preference claims should force a reduction.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment of the District Court be and the same is hereby annulled, avoided and reversed; and it is now ordered, adjudged and decreed that the exception of no cause of action filed in the District Court and sustained by it, be and it is 'hereby dismissed, and the cause, so far as it has been* dismissed, be reinstated, and the cause remanded to the District Court for further proceedings according to law.

Rehearing refused.


author: Blanchard, J.

text:
    No. 13,395.
    Jesusa Canedo vs. New Orleans and Carrollton Railroad Company.
    Syllabus.
    1. Whore the evidence discloses that the electric street car which struck plaintiff was running at a moderate and safe rate of speed, was under the control of the motorneer, that he was sounding his warning gong, that he stopped the car in a brief space óf time and distance, and from the circumstances attending the accident, it is evident she ran into‘the car without paying any heed whatsoever to its approach, she can not recover.
    2. It is the duty of a person approaching a railway track to pause and look and listen and govern himself with prudence according as the situation demands.

      ^ PPEAL from the Civil District Court, Parish of Orleans — Bighlor,

      James T. Nix and John F. O. Waldo for Plaintiff, Appellee.

      Dart & Neman for Defendant, Appellant.
   The opinion of the court was delivered by

Blanchard, J.

Plaintiff, a young Spanish girl, seeks to hold defendant responsible in damages for injuries inflicted upon her by being struck by one of the street cars of the company.

' Allegations of fault, negligence and recklessness of the company and its agents, usual in- damage suits, are made.

Her injuries are described, the pain and suffering she underwent delineated, the medical and surgical treatment she received outlined, and the length of time she was laid up given.

It is also averred that her injuries are serious and permanent, her general health impaired, her nervous system disordered, arid her ability to earn a livelihood lessened. She lays her damages at $5,000.00, with $50.00 additional for medicines, etc.'

The defense ascribes the accident and injury which befell plaintiff to her own fault and gross contributory negligence.

The case was tried by jury, and a verdict of $500.00 returned in favor of plaintiff, two jurors of the panel dissenting.

Defendant appeals.

It is urged here that the verdict on its face bears evidence that it was not a deliberate conclusion reached on the evidence administered, but a sentimental verdict wrung from a sympathetic jury, and an intimation in argument ascribes this to the hypnotic influence exerted upon susceptible jurors by the presence before them of the comely young plaintiff.

This view, or part of it, seems to find corroboration in the observations of the trial judge denying the application for a new trial. He said: “I am more than doubtful whether a new trial should not be allowed. The amount of the verdict is very small. I am much of the opinion it was extorted from the sympathy of a jury making free with other people’s money.'' I may 'be' mistaken in this view, and it seems imprudent for a single individual, acting in a case of this kind, to disturb the finding of a jury of twelve men. It is, perhaps, wiser to let the matter rest in the better judgment of a larger as well as. a wiser body of judges.”

The evidence in the case, considered and weighed and balanced here, out of the presence of the plaintiff, fails utterly to impress the judicial mind with the same adequacy and force to make out a case for her with which it seems to have inspired.the jury when adduced before them in her presence.

The truth is, the plaintiff has no case. The accident and injury diich befell her cannot be attributed to negligence and recklessness on the part of either the motorneer or conductor of the car which struck her. We must acquit them of blame in this instance.

To her own want of ordinary care and prudence is due the misfortune which overtook her.

She was, at the time, a domestic in the service of a family living near -the scene of the accident. She was sent at dark on Christmas eve to a grocery, several blocks away, to make some purchases. She did the •errand and was returning home. Going, she had- crossed St. Charles -avenue, in the City of New Orleans, and returning, it was necessary to recross the same street.

Two lines of street railway traverse this street, both belonging to ■defendant corporation. ■ The line nearer the river is used for the downtown cars; the other for the up-town cars.

Returning towards her home, plaintiff’s course was in the direction of -the river. She, therefore, in crossing St. Charles avenue, approached -first the up-town track of defendant’s railway

As she neared the center of the street two cars were seen approaching •on this track. She paused to let them pass. They were about half •a block apart.

The rear one of these cars stopped where she was standing, or slackened its speed sufficiently, to permit a passenger to alight. He got off in close proximity to her. The ear then passed on up-town. One hundred and fifty feet away from where she stood this car passed another coming down on the other track. This down-town car was brilliantly lighted within, and its head-light was in full blaze.

It was impossible for plaintiff not to have seen it coming had she looked. It was impossible for her not to have heard its gong, which was sounding, had she listened.

It was her duty both to look and listen and to govern herself with prudence according as the situation demanded.

The gentleman, who had alighted from the up-town car, testifies he ■saw and heard the car, and yet he was behind her as they both approached the down-town track, intendingl to cross to the river side of St. Charles avenue.

This down-town car was traveling at a very moderate rate of speed— ■not over four miles an hour, much less than the rate of speed at which it was permitted to travel by the city ordinances.

Plaintiff had a basket on one arm and a jug in the other hand. Over her head was what is described as a “fascinator”' — a shawl or head-covering of crochet work. This must have obscured her vision of the •approaching car.

Her counsels theory is that it was the up-going car from which the gentleman had alighted, and the one ahead of it, which prevented her from seeing the.car coming down. But that could not have been -for the front, car had passed on up a block or more away, and the second one, the proof shows, was passed by the car coming down half way of the block, or one hundred and fifty feet away from where the accident occurred. •

Besides, if these up-town cars had obscured her vision of the track of the down-town car sufficiently to have prevented her from seeing the axiproach of the latter, the same would have been true of the gentleman who alighted from the up-town car at the point at which she was standing. Yet he both saw and-heard the car in time to avoid it, though he was following the plaintiff in, their course across .the.-street.

Asked on cross-examination: - “ Do .you know whether or not you were on the track when yqu were struck by the car,? ” -the plaintiff answered: “ As soon as I went to cross I was struck.- I had my foot over the iron rail.”

How quickly after stepping out .were you struck ? ” Answer: “ Very quickly:”

“Was it not instantly, as quick,,as<fhat — ;(as the snapping of a finger) ?” Answer: “It was as quick as that.”

This shows that the plaintiff stepped on the track just as the car reached the point where she intended .crossing.

- The. motorneer seeing hqr recklessness halloaed at her and took prompt action to check his car.

The gentleman crossing with her also gave a .warning cry, and this failing, he attempted to seize her to prevent the impending impact. But too late.

She was knocked down, dragged a little way before the car could be stopped, but not run over.

Her collar-bone and three ribs were broken and she -was otherwise bruised.

She was in the hospital for six weeks and suffered much.

. But she eventually recovered and was at the time of trial apparently well.

If she had any case at all, the verdict of*the jury was in its amount inadequate.

The evidence leaves no doubt upon the mind that the car which struck her was running at a moderate and safe rate of speed; was .under the: control of the motorneer; was stopped in a brief space of time and distance ; and from the manner in which -she was struck it is evident she? ran into the car without paying any heed whatsoever to its approach.

She cannot recover. Dieck vs. City Railroad, 51 La. Ann. 262; O’Rourke vs. Ry. Co., 51 La. Ann. 757; Farrar vs. Ry. Co., 52 La. Ann. 417.

It is, therefore, ordered and decreed that the verdict and judgment appealed from.be avoided and reversed and that plaintiff’s demand be¡ rejected with costs in both courts.

Watkins, J., takes no p&rt — absent on account of illness.


author: Breaux, J.

text:
    No. 13, 541.
    Furman L. Vicars vs. Cumberland Telephone and Telegraph Company.
    Syllabus.
    1. Under the orders of the foreman in charge of the construction of defendant, company’s line in the held, an accident happened to plaintiff who was not himself at fault.
    2. In bracing and straightening a cable pole, too much power, under the orders-of the foreman, was brought to bear upon it, causing it to break and defendant to fall.
    3. The employment of men to work under the foreman was virtually in the latter’s control. lie had employed the plaintiff. Held, That he was not the-fellow servant of the plaintiff.
    APPEAL from the First Judicial District Court, Parish of CaddoLand, J.

      Thatcher & Welsh and Wise & Herndon for Plaintiff, Appellee.

      Alexander <& Wilkinson for Defendant, Appellant.
   The opinion of the court was delivered by

Breaux, J.

The defendant company is appellant from a judgment obtained against it by plaintiff for damages arising from an injury suffered by him, plaintiff, in a fall from one of its telephone poles.

This'company is the owner of a telephone system connecting the city of Shreveport with its other lines.

This suit was brought to recover the sum of ten thousand dollars. The verdict of the jury allowed the plaintiff seventy-five hundred •dollars.

Plaintiff complains of the unfitness of the pole from which he fell, and charges the foreman with negligence and carelessness, which resulted in the breaking of the pole and his fall to the ground, the fracture of his arm, bruises and other injuries.

Plaintiff was the lineman of the defendant company, and was at the time of the accident employed in transferring wires from old poles to new ones, and from one side of a street to the other. There were five double .cross-arms on the guy post at or near the top of which the plaintiff was working. He was standing with one foot on the bottom cross-arm, and the other on the second cross-aim. The cross-arms were about eighteen inches apart and were set in the pole. It was a cable pole forty feet out of the ground, and six feet in the ground and measured at the. place at which it broke (not far from the top) nine by ten inches. Plaintiff was hammering the guy wire where it circles the pole to make it fit close and snug. It appears from the evidence that it is not always found necessary to have a man upon the pole to hammer it at the time the wire is being stretched, as was being done at the time of the accident. Erequently staples are used instead of sending up some one on the pole to hammer the wire encircling it. The morning that this pole broke, they had no staples. The pole in question, had been strung, in transferring the wires, as before mentioned, with thirty wires altogether. It was guyed with two guy wires, one in the opposite direction to the other, and both were fastened at or near the top cross arm. The guy wire on which plaintiff was at work was also fastened near the same place on this pole. One of the witnesses said, in answer to the question, “Where were the guy wires fastened at the time you were pulling?” “Close to the top. We had on two wires and were putting on a third when the pole broke.” We are informed that to guy a cable pole, one lineman climbs to where the wire circles the pole and hammers the guy wire in order to make it adhere closely to the pole. The other linemen, at the same time, on the. ground with blocks and tackle, pull the guy wire to make it tight and to give strength and steadiness to the pole. On this oecassion, the poles, instead of being the kind generally used, were of red cedar. This pole had a curve, or crook, in it, and the convex side of the curve was in the direction of the wire the linemen were making tight with block and tackle, as just stated. There' were three linemen working and pulling on the block and tackle for the purpose of putting on the guy wires when the break occurred.

The foreman under whose direction this working party was, was near by superintending. He was giving tbe signals when to pull and when to stop. He gave tbe signal to stop pulling, and immediately after, the pole suddenly broke. The foreman says: '“Just as soon as I threw up my hands (which is the signal to stop) the pole broke.” The foreman had charge of the construction gang, the men receiving their orders from him. There is a local manager of the company in Shreveport to whom this foreman reports and under whose direction he is. The break was at, or near the lower cross-arm, and by this break,- and as before stated, defendant was thrown to the ground. It appears that- there is a far greater strain on a pole when a double set of blocks is used than when a single set is employed. In the case here, the men, and the block and tackle they were pulling, were one hundred and forty feet (standing on the ground) away from the top of the pole. The power exerted by' the three men pulling- on a double rigged block- at that distance, taking up the slack, is very great.

The following will serve to illustrate the position of the parties at the ■moment of the accident. The wire was fastened near the top of the pole :at “D”, and the block and tackle were attached at point “A”.

The foreman as a witness, it is true, stated that he had no authority to discharge the men while -they were working within the limits of the city; also, that every night he had a talk with the manager about the work, and if he Was in need of more men he would inform him, and ■would be told by him to employ them.

It appears that'telephone .companies endeavor, as much as possible, to use the larger, stronger, and longer poles for cables, but, in this instance, the pole was not particularly long. The result shows that it was not strong enough to stand the .pressure.

In point of appearance it can scarcely be said to have been up to the standard of cable poles. One of the witnesses testified that it was bent and the other evidence is corroborative of that fact. The serious grounds of complaint are that this pole curved or was crooked nearly its entire lelngth. This, taken with the fact that an attempt was made to strengthen it somewhat and' give it steadiness by pulling it on the convex side of the curve, has much the appearance of imprudence. The power exerted by three men with a double block and tackle would,, ordinarily, be enough, we take it, to break .gven a straight and strong, pole shackled as this was.

In the oral argument at bar, it was said in behalf of the defense, that, it was not possible always to find straight boles of the required length to be used as cable poles. That is, doubtless, quite true. None the less, when it is not possible at the time needed to find such a pole, in applying the guy wires and in attempting to improve or lessen the curve, special care should be -taken not to bring too much power to bear, more especially if, as in this ease, there are no staples on the ground and it become-necessary to send up a lineman to hammer the wire tight and snug,, which encircles the pole, while the men on the ground are pulling to-make the entire wire as taut as possible, and to straighten the pole or bring it in line with other similar poles.

We are constrained by the facts to the conclusion that there was. negligence. Any one, although usually very careful and competent, may, for a moment, become indifferent,' or even negligent in the performance of his work. In this'instance, as is usual with those who have-much to do with work requiring more than usual attention,, there was, at least, a mistake in judgment (which a moment’s thought would have-avoided) in thus bringing so much weight to bear on a pole while someone was near its top carrying out the orders of the foreman. It is incumbent upon the principal to furnish proper material for the work-In case it be a pole and it be curved, and the desire is to straighten it a little, it becomes important to observe the rules imposed by proper prudence.- As relates to the plea of contributory negligence urged, we found nothing in the evidence to sustain it. He, plaintiff, was executing the work required, as we take it, by the company itself. There was only one way of carrying out the order of the foreman, and that way was being followed by the plaintiff at the time the accident happened. He was not left to select for himself the manner in which the work was to be executed, but was expected to go up the pole and to remain there as long as was necessary while the pole was being guyed.

Now, as to the question of fellow servant, the defendant contends that the foreman was the fellow servant of the plaintiff. The facts are that the foreman employed some men and discharged others, or, at least, they were discharged whenever he found it proper. We do not think, in view of all the facts, that this foreman was plaintiff’s fellow servant. It appears, we think, that the safety of the lineman when he was near the top was not sufficiently consulted by the one who was, as we take it, defendant’s vice-principal in the performance of this work.

The purchase given to a guy wire on a curved pole held in an opposite direction by another guy wire fastened lower on the pole, and the power brought to bear, as made evident by the diagram, were, it is reasonably certain, the cause of the accident for which defendant was held by the judgment of the court a qua, which judgment we think should be affirmed without any special reference to the question of fellow servant.

We will say, none the less, that in our view the foreman was in charge of the gang completely and was not the fellow servant of the workmen over whom he had power, as before mentioned.

Under our law, one is liable not only -for the damage which he occasions, but also for that which is caused by the acts of persons for whom he must answer. C. C. 2317. This, however, is to be understood with the following modification, “and employers are responsiblel for the damage occassioned by their overseers in the exercise of the functions in which they are employed.” It follows that the employer is responsible for the acts of his foreman under the circumstances of this case.

The physicians who attended plaintiff testify that his right arm was stiffened by the injury. That he had a fracture of the elbow joint, the fracture extending into the joint, one of the bones being perfectly dislocated. He also had a fracture of the nasal bone and a few bruises over the face. The physicians removed part of the nasal bone. He stayed in the hospital one or two days, and then returned to his house, but would return to the hospital for treatment during several weeks.

The physician says, “I can not say positively whether it will remain stiff, but the indications look toward a stiff joint. It will remain probably more or less stiff. He may regain a little more motion, but it looks like it will always be a stiff joint.” The weight of the testimony shows that the injury will be permanent. The arm, however, is not entirely disabled, and the extent of the permanent injury is not proven with any degree of certainty.

It only remains for us to assess the damages. We think that the amount allowed by the verdict was more than it should have been. The amount of twenty-five hundred dollars is the sum we deem proper to fix as sufficient amount for the injury suffered.

It is therefore ordered, adjudged and decreed that the judgment appealed from is amended by reducing the amount allowed from seventy-five hundred dollars to twenty-five hundred dollars, and, as amended, the judgment appealed from is affirmed at appellee’s costs.

Rehearing refused.


author: Nicholls, O. J.

text:
    No. 13,143.
    The State of Louisiana ex rel. Robert H. Marr, District Attorney, vs. R. B. Otero, Judge Second City Criminal Court.
    Syllabus.
    Prom a judgment rendered by the Criminal District Court of the Parish of Orleans in the exercise of its supervisory jurisdiction over an inferior Criminal District Court of the same Parish there can be no appeal prosecuted to the Supreme Court. (State esc rel. Sholars vs. Duggan, 51 Ann., 1482.)
    Where an order of mandamus, even if granted, could not be executed for the reason that at the time of its issuance there would be nothing then existing upon which it could be made to operate, the mandamus will be refused. (State esc rel. Eomain vs. Board of Supervisors of Election, 49 Ann., 578-579.)
    Courts will not decide abstract questions of law.
    To warrant their action there must be presented Some real right 'in actual con-testation.
    Market Co. vs. City of New Orleans, 47 Ann., 212.

      Construction Co. vs. Railroad Co., J/D Ann., /,,9.
    APPEAL from the Criminal District Court for the Parish of Orleans. Moise, J. ■

      Relator, Appellant, pro se.

      Lionel Adams for Respondent, Appellee.
   The opinion of the court was delivered by

Nicholls, O. J.

Appellant in this case filed a petition in the Criminal District Oourt, in which he averred that it had been made his duty as District Attorney, to conduct the prosecution of all criminal cases in the parish of Orleans. That in compliance with the duty, he had employed Thomas M. Gill, Jr., a licensed and practicing attorney-at-law, to appear for and on behalf of the State of Louisiana, and to conduct in his (relator’s) name, and in his stead, a certain criminal prosecution, entitled: “The State of Louisiana vs. Fred A. Smith,” then pending in the Second Oriminal Oourt. That the cause had been set for trial for the 28th of February, 1899; that the judge of the said Second Oriminal Oourt had notified relator that he would not allow the said Gill to appear in behalf óf the State, and conduct for and in the stead of the relator, said prosecution on said date, or any other. That said refusal was illegal, arbitrary and oppressive; that in order that said illegal refusal might be investigated and relator granted relief, it was necessary that writs of certiorari and mandamus issue, ordering the said judge to send up the record in said cause to the Oriminal District Court, and that a writ of mandamus issue directed to the said judge, ordering him to permit said Thomas M. Gill, Jr., to appear for, and in behalf of the State in said cause and to conduct same in the stead of relator. In view of these allegations he invoked the supervisory jurisdiction of the Oriminal District Court, conferred upon it by Article 139 of the Constitution of 1898, praying that the writs referred to, and for the purpose stated, isáue from said court directed to said Otero, judge.

The judge of the Second Oity Oriminal Oourt was ordered to show cause why said writs should not issue, and such orders be granted as prayed for, and he showed cause in obedience to such directions. On the trial of this rule the Oriminal District Oourt denied the application for the writ of’ mandamus, stating that the respondent judge had shown sufficient reason to justify' his conduct, and the District Attorney appealed to the Supreme Oourt.

Appellee moved to dismiss the appeal on the grounds:—

1st. That the supervisory jurisdiction conferred on the Oriminal District Court by Article 139 of the Constitution is exclusive and absolute.

2nd. That even if it be construed as concurrent with that vested in the Supreme Court by Article 94 of the Constitution, this supervisory jurisdiction when lawfully entertained could not be reviewed by appeal.

3rd. That the record establishes that the testimony heard on the trial of the mandamus proceeding had not and could not be incorporated into the transcript, as it was neither reduced to writing, nor otherwise preserved.

4th. That as shown by the certificate annexed to the motion to dismiss the appeal the court was asked to determine a mere moot issue, since by consent and under leave of the Criminal District Court, the prosecution out of which the mandamus proceedings arose had been tried and disposed of and was no longer pending in the Second City Criminal Court, and Thomas M. Gill, Jr., had been duly appointed and qualified as one of the Assistant District Attorneys, and in his said capacity was recognized as the constitutional representative of the District Attorney in all criminal proceedings before the Second City Criminal Court.-

The same question is presented here as was raised in State ex rel. D. M. Sholars vs. T. J. Duggan, Judge, on application of the relator therein for writs of mandamus and certiorari upon the judge of the First City Criminal Court, and was recently decided by us adversely to respondent’s right to appeal to this court from a judgment rendered by the Criminal District Court, in the exercise by the latter court of the supervisory jurisdiction conferred upon it over all inferior State and municipal criminal courts in the parish of Orleans by Article 139 of the Constitution.

The syllabus of that case reads as follows: “From a judgment rendered by the Criminal District Court for the parish of Orleans in the exercise of the supervisory jurisdiction over an inferior muniqipal criminal court of the same parish, there can be no appeal prosecuted to the Supreme Court, as such a right of appeal has not been accorded by the Constitution.”

Relator invoked the supervisory jurisdiction of the Criminal District Court and its decision on the question submitted to it by bim binds him, unless it be of a character such as could be reached by us in some method other than by appeal. Article 139 of the Constitution of 1898, fixing the jurisdiction of the Criminal District Court for the parish of Orleans, says: “Said court shall have general and supervisory jurisdiction over all inferior, State and municipal criminal courts in the parish of Orleans, and shall have authority to issue writs of habeas corpus in criminal and quasi criminal cases, and such other writs and orders as may be necessary or proper in aid of the jurisdiction conferred upon it.” The decision in that case controls the present one, and the motion to dismiss must, on the ground stated, be sustained.

Independently of this the evidence would go to show that the case of the State vs. Smith, in which it was sought to order the judge of the Second City Criminal Court to permit Thomas M. Gill, Jr., to appear as the representative of the District Attorney, to conduct the prosecution, has already been finally disposed of, and the order of mandamus, even if granted, could not be executed, as there would be nothing upon which it could be made to operate. Courts refuse to grant writs of mandamus when such a condition of facts is made to appear. (See State ex rel. Romain vs. Board of Supervisors of Election, 49th Ann., 578, 579.)

The desire of the appellant to have us pass upon the question raised in this case is obviously for the purpose of obtaining an expression of opinion or ruling of this court upon the abstract question whether the judge of the City Criminal Court was right or wrong in insisting that the attorney sent by the District Attorney to represent him before that court should be a regularly appointed assistant district attorney or not. This expression of opinion we must postpone giving, until made necessary for the settlement of actually existing claims and rights. (See Railroad Company vs. Construction Company, 49th Ann., 51.)

The motion to dismiss is sustained, and the appeal taken in this case is dismissed.


text:
    No. 13,174.
    State ex rel. W. H. Cayard, Antonio Raggio and Charles Raggio, Praying for Writ of Habeas Corpus.
    Syllabus.
    The merits of criminal cases in which defendants have been convicted cannot be considered on an application for a writ of habeas corpus.

      where defendants in a criminal prosecution raise in their defense questions of title to immovable property, the trial court may decide those questions, but such decision would be Anal only for the purposes of the prosecution and ■ would not bo res judicata in any civil cause between different claimants.

      John L. Kennedy for Relators.
    Respondent Judge pro se.

      M. J. Gunningham, Attorney General, and Minos T. Gordy, District Attorney, for the ’State of Louisiana in Opposition.
   The opinion of the court was delivered by

Nicholls, O. J.

Relators pray this court to order their release and 'discharge from the custody of the sheriff of the parish of Vermillion and invoke at our hands the granting of a writ of habeas corpus and all orders necessary in the premises, and general relief.

This prayer is based upon allegations that they had each of them entered on the 1st of March, 1898, under the provisions of the Act of "Congress, approved May 20th, 1882, commonly known as the “Homestead Act,” certain tracts of land, which they described. That the land embraced in their respective homestead entries was shown by the record of the Land Department of the United States, at the time said entries were made, to be a part of the public lands of the United States, hitherto undisposed of by the Government. That after initiating their said homestead entries they established residence on the land covered by their respective claims, within six months from the ■date of same, as required by the terms of the “Homestead Act.” That said Cayard’s house was built and his family and himself established residence therein during the month of June, 1898. That Antonio Raggio built his house and established residence therein together with his family, during the month of April, 1898; that Charles Raggio built his house and established his residence on his claim during the month of December, 1898. That after establishing their residences on their respective homestead claims as required by the Act of Congress under which their entries were made, they continued to reside thereon together with their families without molestation up to .April, 1899, when they were arrested under an indictment by the State grand jury in and for Vermillion parish, charging them with trespass committed upon the lands covered by their United States homestead entries. That they were arraigned and tried under the aforesaid charge before the Honorable Conrad DeBaillon, judge of the Seventeenth Judicial ,District Court for the parish of Vermillion, and convicted of the same, and were sentenced on- the 17th day of April, 1899, to pay a fine of fifty dollars ($50.00) each, or in default thereof, to serve six months in the Parish Prison. That being unable to pay the fine imposed, they were arrested by J. 0. Hebert, sheriff, of the parish of Vermillion, and incarcerated in the Parish Prison, and are now in the actual custody of said sheriff. That such imprisonment is illegal and unjust, being based on a judgment rendered by a court absolutely without jurisdiction over the subject matter and they are deprived of their liberty in contravention of the Constitution and Statutes of the United States. That no appeal lies from the verdict of the said court, by reason of the fine imposed, and they are forced to seek relief at the hands of this court.

The District Court was ordered to send up the records in the causes referred to in order that their validity might be ascertained and show cause why the relief prayed for should not be granted, and the sheriff to show, by what cause he held the said parties and to receive what the court should consider concerning them.

The sheriff returned that he held said parties under sentences imposed upon them by the Seventeenth Judicial- District Court for the parish of Vermillion for having- trespassed upon the lands of the individuals named in the indictments which he annexed, which indictments were preferred under Act 85 of-1890.

The District Judge made a return in which he denied that relators had been indicted, tried, convicted and sentenced for trespass upon lands belonging to the United States.

He averred that Charles Eaggio, one of the relators, was indicted, arraigned, tried, convicted and sentenced for trespass (if it could be so called), under Act 85 of 1890, on private lands of Oneziphore Thib-odeaux; that on the trial of said Eaggio, it was fully and conclusively shown that Thibodaux was the true and lawful owner of said land by authentic act translative of property which was duly recorded; that he acquired said property from the State of Louisiana; that the State of Louisiana acquired the land under the swamp land grant of 1849, from the United States; that said land was selected by the State of Louisiana in 1852, approved by the Commissioner of the General Land Office and confirmed April, 1857, by Congress to the State of Louisiana. He made similar returns as to Antonio Raggio and William H. Cayard, differing only as to the description and ownership of the properties upon which the said other parties were charged with having committed trespass.

lie further returned that the parties so holding the lands under the State and their authors had been in the actual public and private possession of their respective properties since the segregation of the same from the United States by the selection of the State and the transfer to them by the State and up to their forcible entry by the relators.

That all the proceedings leading to the convictions and sentences of the relators were regular and in strict accordance with law. That re-lators were attempting to have sentences, regular in all respects, overruled by proceedings by habeas corpus, on an assumed state of facts unsujiported by any evidence on their trial. That they seek bj'habeas corpus to have the lands upon which they have been convicted of having trespassed, declared to belong to the United States, upon no evidence except certificate of entry under the homestead laws, notwithstanding the decision of this court in 32 Ann., 882, Thibodaux vs. Broussard, involving the same issues, and judgment against their pretensions by the Seventeenth Judicial District Court for Vermillion parish, affirmed by the Court of Appeals, Third Circuit.

That the relators were duly indicted by the grand jury of the parish of Vermillion, upon said indictments they were regularly arraigned and pleaded not guilty; their cases were regularly fixed for trial and on the day so fixed they were regularly tried and they were found guilty as charged: That relators were assisted by counsel from the inception of the prosecutions to their end.

That said counsel were informed by the court in open session, in answer to a question raised by said counsel as to whether or not said cases were appealable, that the cases could be appealed, and cautioned to reserve and tender all bills of exception to the rulings of the court in the event of an adverse verdict; this their counsel failed to do.

That after relators had been convicted the court informed the counsel that they would be permitted to file bills of exception and the court would sign them, if they desired to appeal the eases. That on the day the sentence was pronounced the court again informed counsel that the court was not disposed to fine the relators more than the minimum fixed by law, unless they desired to appeal the cases; that the counsel informed the court that they had nothing to say further.

Further answering he returned that he was reliably informed and verily believed, and therefore returns, that counsel for relators wanted no appeal, hut desired that the relators he jailed in order to enable them to .apply for writs of habeas, corpus before the Federal Courts, and, failing them, before this court.

Further answering he averred that under Act of Congress of date March —, 1849, the State of Louisiana selected the whole of township Fourteen, South of Range Four East, T. 14, R. 4 E., vfhich selection was approved by the Commissioner of the General Land Office and confirmed by Congress in April, 185Y, and was so decided by this Honorable Court in 32 Ann., 882, Thibodeaux vs. Broussard.

OPINION.

Relators seek to bring before us on this aiiplication, the merits of the criminal cases in which they were tried and convicted. This cannot be done. They do not attack the regularity of the proceeding's in the District Court, but they do dispute the power and authority of that court to have permitted the cases to be taken up and disposed of under the issues raised.

In the brief in their behalf it is said: “We submit that relators have not been guilty of the violation of any statute of the State of Louisiana and that the judge of the Seventeenth Judicial District Court assumed an unwarranted jurisdiction in trying and convicting relators of criminal trespass on lands, the possession of which they had peaceably talien under the full warrant and relying upon the good faith of the United States Government.”

We understand their claim to be “that they respectively took possession of the properties, upon which they are charged to have committed trespass, under homestead entries authorized to be made by the local officers of the Land Department of the United States of lands appearing at the time the entries were made to be a part of the public lands of the United States then undisposed of. That such possession was taken in good faith and as they assert, not only under color of title but under an actual title or right of possession. That cases which exhibit conflicting claims to lands under color of title are not cases calling for prosecution under a criminal statute for trespass. That the 'State courts are without jurisdiction to pass upon and decide questions of title where an issue is raised that the land charged to have been trespassed upon still remains the property of- the United States. That that question has to be decided either by the Land Department or the courts of the United States. That the State courts have no jurisdiction over cases of trespass- on the public lands of the United States.” The conviction of the defendants by a jury for criminal trespass, followed by -the judgment of the District Court based thereon, carry with them in this collateral proceeding, independently •of any subsequent statement of facts by the judge, a legal presumption that all the facts necessary to have been shown on the trial of the criminal cases, against .relators to authorize .their conviction for that offense, were in fact shown. - .

The right of the Seventeenth Judicial District Court to have taken cognizance of the cause is beyond dispute. By Act No. 85 of 1890, it was enacted by the. General Asesmbly of Louisiana that “whoever shall take possession of any tract of land or any part thereof, or of any house or other tenement being the property of another, without any legal right so to do, and whose possession shall not have continued for one year without disturbance, * * * shall on conviction, be fined not less than fifty dollars, nor more than one thousand dollars, or imprisoned not less than ten days, nor more than six months,- or both at the discretion of the court.”

The grand jury of the parish of Vermillion returned indictments 'against these relators charging them with having violated the provisions of that statute.

The defendants pleaded “not guilty” and the case went to trial.

After verdict the defendants in different manners excepted to- the jurisdiction of the court on the ground stated, that the land in question had never been severed from the public domain of the United States; that the State court had no authority to try a person for trespass upon public lands of the United States.

The indictments did not charge the defendants with trespass upon the lands of the United States. Charles Raggio was charged wtih trespass upon the lands of Oneziphore Thibodaux — Antonio Raggio with trespass upon the lands of Desire Thibodaux, and Oayard with trespass upon the lands of Emile Thibodaux.

The cases having been placed at issue, were, necessarily, sent to trial for the purpose of ascertaining what the facts of the case were and fixing either the guilt or innocence of the accused. The mere fact that it was disclosed upon the trial that the defendants held homestead entry certificates from the local officers of the Land Office authorizing them to enter upon those particular lands, and that they had done so, under the authority of these certificates, and that there were conflicting claims advanced as to the ownership of the iwoperty, did not have the effect of ousting the jurisdiction of the District Court from the trial of a criminal prosecution based upon the violation of a statute of the State.

It would, by no manner of means, follow, that defendants could not be legally charged and legally convicted of trespass upon lands situated in Vermillion parish, because they held homestead-entry certificates for those lands from officers of the United States Government.

The situation of the land at the time of the entry may have been 'such with respect to their being then in the- possession of third parties claiming anterior rights of ownership and possession before, as not to justify them in taking- the law into their own hands and moving at once upon the property, to the prejudice of the rights of those parties, and in utterly ignoring- their claims and pretensions.

The verdict of the jury adverse to'tlie defendants, and the judgment of the court sustaining- the same, did not settle or pretend to settle the question of title between these defendants and the parties in actual possession of the land. That matter is as open to-day as it was before the trials were had. The question of title came up only collaterally and incidentally in those cases for the sole object of determining for the purpose of those particular cases the question of trespass. The judgments in the cases would not be res judicata in any éivil suit between the different claimants to the land, so as to determine the ownership of the same. The parties to the litigation would not be the same, nor would the cause of action be the same.

Defendants having in their defense in a criminal suit raised, collaterally, questions concerning the title and possession of the property, the jury and the court ex necessitate were bound to consider them, for they lay right across the path to a decision. 'They could not avoid them. They were bound to be disposed of, to reach a decision, one way or the other. The decision, however, when reached, was only a decision reached incidentally and collaterally — final it is true for the purpose of that particular suit, and the ultimate issue in that suit— but binding and effective no further than that — except possibly as rem ipsam in some other proceeding to show knowledge or motive or good faith, but not to settle a.nd dispose of the question of ownership.

We find nothing in this record which would justify action on our part under a writ of certiorari. The ease is not one under which we would have been authorized upon a writ of habeas corpus as a separate, distinct and independent writ to have discharged relators,-even if the facts were other than they are. Constitution of 1898, Article 93.

For the reasons assigned, relators’ application to this court for relief in the premises must he denied. The writs and orders heretofore given herein are set aside.

Rehearing refused, November 20th, 1899.

Breaux, J., recused himself in matter of the title to the land in question.