text:
    No. 9256.
    Succession of Kate Townsend. On Rule to Eject Mollie Johnson.
    The powers of a probate court over property claimed as belonging to a succession under administration are purely jurisdictional in their character. They do not authorize the judge, on his own motion, to deal directly with the property. He can neither make nor revoke titles or leases, of his own accord. His powers must he set in motion by a j>roper litigant in due form of proceeding; and, when they affect the adverse rights or possession of third persons not connected with the succession, the ordinary action hy petition and citation must be resorted to.
    Even a trespasser is protected in his possession until his trespass is established by due proof at the demand of one who shows some better right in himself, in a proper suit. He cannot be ousted on a proceeding by rule—still less by an ex-parta order of court.
    A PPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

      J. Ad. Hosier, Attorney of absent heirs.

      (7eo. L. Bright for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

On April 24, 1884, the judge of division B, Civil District Court, of his own motion, entered the following order: “It is ordered by the court that Mollie Johnson do show cause on Friday, 2nd of May, 1884, why she should not be ejected from the premises No. 40 Basin street, the property of this succession, on the ground that she is a trespasser on said premises,.and on the ground that she is carrying on a lewd commerce in the said promises, to the reproach and disgrace of the administration of justice, the said premises being under the control and jurisdiction of this Court. It is further ordered that the counsel for absent heirs and the public administrator summon the necessary witnesses.”

The defendant in rule, Mollie Johnson, appeared by counsel, and excepted :

1. To the authority of the judge of his own motion, to institute such a proceeding against her.

2. To the form of the proceeding by rule.

3. To the power of the judge to try and determine an issue in which he was himself the sole actor. She further filed answer denying generally the facts set forth in the rule; alleging that she had long prior thereto leased the property from Leon Lamothe, the possessor and apparent owner of the property under a public authentic title, for one year, beginning on December 15, 1883, and ending on December 14, 1884, and in compliance with the terms of the lease, had furnished him her negotiable promissory notes for the entire term, and, had been in possession under said lease,' and could not be lawfully ejected therefrom in such a proceeding. 1

The judge overruled the exceptions, tried the rule on the merits, and rendered judgment making the same absolute and ordering the civil sheriff to eject Mollie Johnson from the premises.

Prom this judgment the present appeal is taken.

The proceeding is certainly anomalous and extraordinary.

The evidence received on the trial disclosed : That Troisville Sykes, who was the testamentary executor of the will of Kate Townsend, was also appointed by said will her sole heir and universal legatee; that he had executed an authentic act of unconditional acceptance of the inheritance; that he had sold this property, No. 40 Basin street, to Leon Lamothe, by authentic act and for valuable consideration ; that Lamothe had entered into possession under the sale; that he had leased the property to Mollie Johnson for a year as heretofore stated; that she had entered into possession under said lease, had paid the rent for several months, and had her negotiable notes outstanding for the future rents.

The pivotal allegations of the rule are:

1. That the house, No. 40 Basin street, is the' property of the succession of Townsend.

2. That Mollie Johnson is a trespasser thereon.

To maintain these allegations, it is necessary to determine: That the acceptance of the succession by Sykes, is a nullity, in the absence of Sykes; that the sale from Sykes to Lamothe is a nullity, in the absence of Lamothe; that the lease from Lamothe to Mollie Johnson is a nullity, in like absence of Lamothe; to determine these questions in a proceeding by rule; to determine them in a rule taken by the judge himself, who is to pass upon the truth of allegations which he alone has made, and on issues in which he is himself the actor.

Such proceedings do not present the due process of law ” contemplated by the Constitution.

By his zeal for morality and eagerness to protect the rights of possible claimants to this succession, the judge has been carried away into a misapprehension of his powers and duties.

The judicial function does not involve the offices of a detective or a prosecutor. Justice sits with attentive ears, but, she speaks only when appealed to, and to those alone who invoke her aid. She is not a Cassandra babbling her oracles in the general ear, but, rather like the priestess Pythia, she sits demurely in her sacred temple and opens her x>rescient lips only to those who seek her there, and, with due observance, implore her speech.

Whatever be the powers of a probate judge over property belonging to a succession under administration in his court, they are purely jurisdictional in their character. They do not authorize him, of his own motion, to deal directly with the property. He can neither make nor revoke titles or leases. His powers must be duly set in motion by a proper litigant in due form of pleading; and when they affect the adverse rights or possession of third persons not connected with the succession, the requirements of the ordinary action by petition and citation must be complied with.

Even a trespasser is protected in Ms possession until his trespass is established by due proof at the demand of one who shows some better right in himself in a suit regularly brought. To all others, “possideo quia possideo ” is a sufficient answer. He cannot be ousted under a proceeding by rule, still less by an ex parte order of court.

See generally on these subjects as to power of probate courts: Montamat vs. Deban, 2 N. S. 392; Casanoon vs. Acosta, 1 La. 183; Lesassier vs. Lesassier, 35 La. 55; Lavigne vs. Chalambert, 11 La. 18; Hemken vs. Ludowig, 12 Rob. 188; as to proceedings against trespassers, Sassman vs. Aimé, 9 O. S. 257; De Armas vs. Mayor, 5 La. 183 ; Heistand vs. Forsyth, 12 Rob. 372; Patin vs. Blaise, 19 La. 400; Thomas vs. Turnley, 3 Rob. 206; as to proceeding by rule, Fischel vs. Mercier, 32 Ann. 704, and authorities there cited.

It is therefore ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed, and, that there be judgment in favor of Mollie Johnson, defendant in the rule to eject, discharging said rule, costs in the lower court and those of this appeal to be paid by the succession of Kate Townsend.

On Application nor Rehearing.

We have attentively considered this application, which recapitulates with great force the various particular circumstances which, in the opinion of the district judge, made this case an exceptional one, and induced him to interfere in the manner condemned by us.

We did not, and do not, consider that these circumstances could avail in law to support the proceeding; yet we are conscious that the omission of all allusion to them in our original opinion tends to expose the course of the district judge to a censure which it did not deserve, and which we were far from intending to cast upon it.

We do not deem it necessary now to repeat these circumstances; but, in justice to the judge, we have pleasure in saying that they were of a character to lend a strong color of reason and justice to Ms proceeding and calculated to influence the judgment of a magistrate. It was only under the stress of our own conviction, that particular cases must submit to universal principles and that “hard cases are apt to make bad law,” that we felt compelled to reverse the judgment.

Rehearing refused.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 9324.
    The State ex. rel. John T. Moore, Jr. & Co. vs. The Judge of the Twenty-Second Judicial District.
    As a rule, injunctions should not "be dissolved, unless contradictorily. The rule, however, admits in extreme cases, of some exceptions.
    "Where an injunction, granted to prevent an act the commission of which would inflict irreparable injury, is dissolved, at chambers, ex parte and on bond, notice of such dissolu tion should be given to the plaintiff in injunction.
    In the absence of such notice of dissolution, the plaintiff is entitled to a suspensive appeal-from the dissolving order, if the same be asked within ten days after knowledge is acquired of the existence of such order.
    A suspensive appeal lies from such order, where the act enjoined was the sale of succession property, as such sale might cause irremediable wrong.
    A PPLICATION for Mandamus.

      Pobt. 6-. Pugné for the Relators,

      Simes & Poehe contra.

   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a mondatrms to compel the granting of a suspensive appeal from an ex parte order dissolving an injunction on bond.

The injunction was issued on the 14th of November, 1884, to arrest the sale of the undivided share of a deceased in certain property, to take place in furtherance of an order procured by the succession representative .

Subsequently, on November '19th, the injunction was dissolved at chambers, exporte, on bond, on petition of the executrix, without any previous notice to the plaintiff in injunction.

The relator swears that he became aware of this dissolution only on the 18th of December through his counsel who had discovered it the day previous only.

On the 22nd of December following, the relator applied to the district’judge for a suspensive appeal from the dissolving order, offering a proper bond, but the district judge declined to allow the relief on the ground that the application was made too late, that is, more than ten days, nay, more than a month, after the granting of the order.

Two questions are thus presented :

1. Whether the application was made in time.

2. If so, whether the appeal asked lies from the dissolving order.

T.

It is well established that, as a rule, notice to dissolve an injunction should be given to the party who obtained the writ, although in extreme oases, the judge, in his discretion, may dissolve, at chambers and ex parte. 31 Ann., 171; 31 Ann., 983; 29 Ann., 362; 34 Ann., 391, 99.

If, then, notice be required before the motion to dissolve is acted on, it is logical to infer that it is indispensable after the injunction has been dissolved, without such notice, ex parte, for whatever reason.

What was said in 31 Ann., 171, cited, regarding the anterior, may well be repeated concerning the posterior notice: “ Every principle of law aud judicial procedure, as well as every consideration of common justice, requires such notice.”

In the absence of such information, knowledge of the ex parte dissolution, if deemed equivalent to notice, can only serve, at best, to compute, as an initial point, the time within which the suspensive appeal can be asked.

The law dispenses with notification of the rendition of final judgments, in appealable cases, only where the defendant was personally-cited or joined issue. Act 1876, No. 24, p. 50.

There is no reason why notice of the rendition of an ex parte decree, permissive of the commission of an act which may entail irreparable injury, should not be required to be given. Where notice has been given of the application to dissolve an injunction, notice of the decree rendered in open court, dissolving the same, would not be necessary.

The application for the suspensive appeal in this case, having been made within ten days after knowledge was acquired of the rendition of the dissolving order, must be deemed as made in due time.

II.

It is settled that an order of sale of succession property, or even of other property, can be suspensively appealed from, as the execution of it might inflict irreparable injury, 22 Ann., 200. See also 31 Ann., 823; 7 R., 232. The reason is, that the sale of the property might place it in hands, from which the reversal of the judgment below could not wrest it, and that such sale, if made at a sacrifice, may pi ove ruinous to parties concerned.

An injunction may well, as a remedy, be substituted to such appeal. Where one is granted and is subsequently dissolved, it is impossible to conceive of any plausible reason why a suspensive appeal should not lie from the dissolving order, specially when rendered ex parte, in as much as in the absence of such appeal, the sale might cause an irreparable wrong.

In the case of State ex rel. Dardenne vs. Judge, 28 Ann., 889, it was expressly held, that a suspensive appeal lies from an order dissolving on bond an injunction issued to prevent an irreparable injury. The mcmdamus there asked was allowed, to coerce the granting of such appeal.

Of course, we formally abstain from expressing any opinion on the merits of the injunction, arresting the sale of the undivided interest of the deceased in the property. The issue thereby presented is not and cannot be legitimately raised in this case, in which the only question submitted is one of practice: whether an application for a suspensive appeal is in time from an ex parte order dissolving an injunction, allowed to prevent an irreparable injury, when the application for is made within ten days after discovery of .the rendition of the order, where no notice had been given, either of the intention to dissolve, or of the actual rendition of the dissolving order. The relator is entitled to the relief sought.

It is therefore ordered and decreed that the alternative mandamus herein issued be made peremptory.


text:
    No. 9294.
    The State ex rel. Mrs. O. C. Race et al. vs. Judges of Court of Appeals for the Fourth Circuit.

      CertiorcM'i issues only to test tlie validity of proceedings,‘and not the correctness of .judgments rendered by courts of competent jurisdiction. It serves to pass upon questions of form and not of substance. ■

    Since the adoption of the Constitutional .amendments ^of Article 81, fixing the jurisdiction of this Court, all the powers .of this -Odurt, over causes decided by it, 'in which the matter in dispute does not exceed $2000, have been transferred to and now vest in, Courts of Appeals, by whom they can be exercised in proper .cases, as effectually as they could have been by this Court, previous to the amendment.
    This Court is impotent to afford the relief'-now sought.
    A PPLICATION for Certiorari.

      Merrielc, Foster & Merrielc for the Relators.

      Chas. MeVea and Sami'l J. Powell for the Respondents.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is a formal application for a certiorari, for the avowed purpose of inquiring into the validity of certain decrees of the court of appeals and of annulling the same, as also of amending tile decree of the district court brought up for review on appeal to that court.

The complaint is, that in a suit brought before the District Court for the recovery of less than $2000, by the relators against the representatives of Mrs. Widow William Silliman, to render executory against them, a judgment of this Court against her, the District Cour allowed the claim in part only, and, that on appeal by the heirs to the Circuit Court for the Fourth Circuit, the relators as appellees had prayed for an amendment, allowing the whole amount claimed, but the appellate court reversed the judgment appealed from, rendering-judgment for the defendants, the heirs of Mrs. Silliman, with costs in both courts.

The relators charge that the amount claimed by them and which the Circuit Court declined to allow, is due and recoverable under a judgment of this Court, against fyljrs. Silliman and that the suit, therefor, was instituted to render that judgment executory against her heirs.

The respondent judges answer that they had jurisdiction over the cause, that after due proceedings and consideration of the merits of the controversy, they rendered a judgment which, in their opinion, is warranted by the evidence and the law.

We are at a loss to perceive how we can afford the relators the relief which they ash.

The writ of certiorari issues to ascertain the validity of proceedings before an inferior tribunal, which may be annulled, either if they are irregular, violative of the forms prescribed by law, or if the court had no authority to sanction them.

It cannot be invoked to justify an inquiry into the intrinsic correctness of judgments of a lower court, where the proceedings have been conducted in due form and the court had jurisdiction over the subject matter submitted and determined.

In the present instance, the form of the proceedings in the case decided has not been attacked, and the jurisdiction of the Court of Appeals is undisputed. The gravamen of the complaint is the incorrectness of the judgment on appeal.

The proceedings appear regular, and both the appellants and the appellees have acquiesced in the jurisdiction of the appellate court, the former by appealing to it, the latter by invoking its powers for an increase of the judgment appealed from. State ex rel. Insurance Co. vs. Judges, 36 Ann., 317, and authorities there cited.

If it were true'as averred by the relators, that tlie suit, for the recovery of the amount claimed, which is less than $2000, was brought to render executory against the heirs of Mrs. Silliman, a judgment of this Court against her, it need only be observed, that since the adoption and promulgation of the Constitutional amendment, which now lixes the jurisdiction of this Court, all the powers of this Court over causes decided by it, in which the matter in dispute does not exceed $2000, have been transferred to and now vest in courts of appeals, by whom they can be exercised in proper cases to the same extent that they could have been by this Court, previous, to the adoption of the Constitutional amendment. State ex rel. Lecomte vs. Judge, Manning’s U. C. pp. 445-6.

With the exercise of such unquestionable and unquestioned powers, we have no right or disposition to interfere.

The complaint that one of the respondents should have recused himself, is not presented by the pleadings and comes too late. It could not be considered under the form of the application.

It is, therefore, ordered, that the application for a certiorari heroin be refused with costs.

Rehearing refused.

Todd, J., takes no part.


author: Manning, J.

text:
    No. 9255.
    W. P. Smith vs. Thomas R. Brady.
    When a sal© under executory process is attacked for nullity of tlie mortgage under which it was provoked, the adjudicatee of the property must be made a party to the proceedings.
    In a contest between rival judgment or mortgage creditors who assert their rank and precedence over the seizing creditor by means of third oppositions claiming distribution o f* the proceeds of sale, and one of them attacks the mortgage as null and extinguished without making the adjudicatee a party, the judgment of distribution will be vacated as in case of nonsuit.
    A PPEAL from the Civil District Court for tlie Parish of Orleans. /~\ Lazarus, J.

      J. E. Wallace for the Appellant.

      Jos. Timony for the Aiipellee.
   The opinion of the Court was delivered by

Manning, J.

The plaintiff sued out executory process upon a mortgage given by the defendant in October 1873 to secure a note for two thousand dollars payable in one year. This note had been paid by the defendant after its maturity and was re-issued and was paid a second time, and Anally was delivered by him to the plaintiff in 1876 in payment of certain indebtedness.

But meanwhile Mary Hughes had obtained a judgment against the defendant and had issued a fi fa upon it in January 1875 which had been levied upon the property mortgaged as above set forth. The plaintiff therefore obtained possession of the note after it had been paid by the maker and after another had acquired rights upon the property mortgaged. Eveu if he acquired it in good faith, it is very clear that Brady could not re-issue a mortgage note after its payment by himself to the prejudice of others who, while the note was in his possession, had established an encumbrance upon the property by judgment and levy of execution.

Another judgment creditor of Brady, one Massie, also claims rights adverse and superior to both Smith and Mrs. Hughes.

The contention in its present form is over the proceeds of sale of the mortgaged property. Smith’s order of seizure and sale was.executed and the property realized $4,750.00 leaving a surplus of 1,236.63 after paying the costs and Smith’s claim, a sum insufficient to pay either Massie or Mrs. Hughes.

The lower judge held the sale legal and sustained both Massie and Mrs. Hughes in their oppositions to the proposed distribution of the fund, giving the latter the preference or precedence'in rank. Massie alone appealed, and contends now as he did below that the mortgage held by Smith is extinguished and the executory proceedings for its enforcement are null.

We think he is right but we decline so to decree because the adjudicatee is not a party to the pleadings before us, and he has a right to be heard.

The only present solution to the matter open to us is to vacate the judgment below as in case of non-suit, leaving the parties to take such proceedings as will present the issues in a form susceptible of adjudication of the rights of all those who are interested.

It is therefore ordered that the judgment of the lower court is avoided and reversed without prejudice to the rights of any of the parties hereto or of others interested, and that the plaintiff pay the costs of appeal.

Rehearing refused.


author: Fenner, J.

text:
    No. 9300.
    The State of Louisiana vs. George Asberry.
    An information charging a threat to burn an entire town, with a malicious intent to destroy the dwelling-houses, stores, etc., of all the property holders of said town, is not defective under Act 64 of 1884, on the grounds that it does not name any person against whose property the threat was made or against whom the malice existed. The information conformed to the facts charged. The malice and threat were not directed against any par* ticular individual, but, against an entire community. It would be useless and unreasonable^ to require the settingforth of the names of all the property owners. T$e crime consisted in the threat to burn the buildings, etc., of another or of others, with the malicious intent to destroy their property.
    The charge of the judge that “the evidence is short, clear and to the point and leaves not much room for doubt,” is a clear violation of the letter and spirit of Section 991 of the Revised Statutes, and necessitates the remanding of the case.
    PPEAL Iberia. from the Twenty-first District Court for the Parish Gates, J. of

      C. T£. Mouton, District Attorney, for the State, Appellee.

      B. 8. Berry and L. 0. Haelcer for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

Two points are presented for review:

1. The overruling of a motion to quash the information.

Defendant was prosecuted under Act No. 64 of 1884, which provided that, if any person shall, in any manner or by any means, maliciously threaten to wound, maim, kill, murder or inflict any bodily harm on another or shall threaten maliciously to burn, or destroy or damage his or her building or other property with malicious intent, etc.”

The information charged that the defendant “ did unlawfully, feloniously and maliciously threaten to burn the dwelling-houses, stores and other buildings situated within the limits of the town of Iberia, etc., said dwelling-houses, stores and other buildings belonging-to and being'then and there occupied by citizens and other persons residing within the limits of said town, with the malicious intent then and there to destroy said dwelling-houses, etc., belonging to said citizens and other persons residing- in and using said buildings, etc.”

The defect urged is that the information does not name any person against -whose property the threat was made, nor allege malice or malicious intent against any particular individual named.

We find no merit in the motion. The words “his or her" used in the statute, taken in connection with the preceding phrase, are merely substitutes for the words of another ” and the offense denounced is the threatening to maliciously to burn, destroy or damage the building or other property of another, with malicious iutent, etc.”

• We consider the terms of the statute broad enough to cover a threat to burn up an entire town; that malice against all the inhabitants or property owners is sufficient; and, that the descriptio persona/nvm, whose property was threatened and against whom the malice was charged, is all that the law requires. It would not have been sufficient or proper to have named particular individuals, because the malice and threat were not so directed, but were general against all the property owners without distinction ; and, it would have been useless and unreasonable to attempt an enumeration of all the property owners of the town.

The judge did not err in overruling the motion to quash.

2. The other exception is leveled against the charge of the judge wherein he said to the jury: “ The evidence in this case is short, clear and to the point and does not leave much room for doubt.”

In the case of the State vs. Roger, 7 Ann., 382, decided in 1852, this Court held that, in charging the jury, the judge had the right to comment on the facts and to express to them his own opinion touching the truth or weight of the evidence. This decision was promptly followed by the act of 1853, entitled, “ an act to restrict the charge of the judge in every criminal case, to an opinion on the)law,” the substance of which act is continued and embodied in Sec. 991 of the Revised Statutes, providing that: “ In charging the jury in criminal cases, the judge must limit himself to giving them a hnowledge of the lam applicable to the case. In doing so, he shall abstain from stating or recapitulating the evidence so as to influence their decision on the facts. He shall not state or repeat to the jury the testimony of any witness; nor shall he give any opinion as to what facts have been proved or disproved.”

The charge of the judge objected to here directly violates the first clause of the above section, because it entirely passes the limit prescribed. This might be sufficient; but, we are equally clear that it violates the spirit and intention of the whole law. It is vain to say that the judge did not expressly say on which side the evidence was clear and such as to leave little room for doubt. It would not be difficult for the jury to determine in favor of which side the judge’s opinion was intended to operate. Moreover, to say that the evidence' is clear and leaves not much room for doubt,” attacks directly the defendant’s privilege of having the benefit of reasonable doubts. -

The charge is indefensible and necessitates a remanding of the case.

It is, therefore ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed, the verdict be set aside, and the case be remanded to the lower court to be there proceeded with according to law.


text:
    No. 9301.
    Succession of Joseph Mausberg.
    The appeal taken by an administratrix, in her official capacity, from a judgment against her individually, striking out from tho aecount preseated by her an item in hor favor indi vidually, will be dismissed.
    The appeal should have been taken and the bond furnished by hor in her individual capacity.
    The rule does not always apply to executors who, unlike administrators, stand sometimes in a different position. 32 Ann. 890, Payne vs. Dejean, affirmed.
    ■ A PPEAL from the Civil' District Court for the Parish of Orleans. I.jl. Houston, J.

      J. 8. Adcvms for the Appellant.

      JBcvyne & Benecjre and JE. JE. Xoise, contra.

   The opinion of the Court was delivered by.

Bermudez, C. J.

This is an appeal hv the administratrix from a. judgment against herself individually and her minor children.

To the account, presented and which allowed them the residue, $679 16, after payment of privileged claims, opposition was made by creditors, which was sustained and the allowance was stricken out.

On the trial the claims of the opponents were judicially admitted to be due and the controversy was, therefore, restricted to the allowance to the widow and minors.

The appeal was taken by the administratrix, in her official capacity, not in her individual name, or as tutrix of her children.

The judgment which disallows the claim of the widow and children, is one against the former individually and in favor of tho succession, represented, insolvent as it is, by its creditors,

It is settled that in such a case the appeal cannot be made by the administrator in his official capacity, hut must be taken in his individual name. Payne vs. Dejean, 32 Ann. 889, 891; 1 R. 275; 5 Ann. 140, and other authorities cited in first case.

The rulings in 33 Ann. 1317 and 35 Ann. 127, were made in cases of api>eals by executors and under different circumstances. They have no bearing upon this controversy. Neither has that in the succession of Baumgarden, recently decided, which was likewise made on an appeal by executors and under a different state of facts.

If the appeal were viewed as being only from the judgment allowing the claim of the opponents which had been judicially admitted, it could not be entertained. C. P. 567.

It is, therefore, ordered and decreed that the appeal herein he dismissed at the cost of the widow in her individual capacity.


text:
    No. 9343.
    Aurore Blanchard vs. Henry Baillieux.
    Article 138 of tlio Civil Code relative to separation from beil and Tjoard, remains in force and was not repealed "by Act 76 of 1870 and Act 122 of extra session of 1870.
    APPEAL trorn the Twentieth District- Court, Parish of Lafourche. . Beattie, J.

      Knpbloeh, Moore & Badewux for Plaintiff and Appellant.
    Defendant and Appellee unrepresented.
   The opinion of the Court was delivered by

Fenner, J.

This is a suit for separation from bed and board. It comes upon a statement of facts made by the judge a quo establishing habitual drunkenness, cruelty, blows, and the most outrageous conduct on the part of the defendant husband towards his innocent wife, rendering their living together insupportable, and making it, as the judge himself says, intolerable that the “ children, some of them young girls, should be made the witnesses of such conduct and the auditors of such language.”

From the foregoing it might be supposed that this was an appeal from a judgment in favor of plaintiff. Strange to say, we find it to be an appeal by the wronged wife from a judgment rejecting her demand.

The district judge, evidently unaware of our repeated decisions, to the contrary, 32 Ann. 1174, 35 Ann. 872, assigns, as reasons for his judgment, that Art. 138 of the Civil Code was repealed by Act No. 76 of 1870, which was itself repealed by Act 122 of 1877, Ex. Sess., and that Louisiana is left without any laws as to separation from bed and board.

The effect of such a construction would be to obliterate a whole title of the Code, and leave the State equally without any law on the subject of divorce; for, with Art. 138 blotted out, even Art. 139 is ineffective and meaningless, and the remaining articles of Title V are superlatively senseless.

It would be impossible for any one to suppose that such was the legislative intent, and, even under the most technical construction, no such effect can be attributed to the acts referred to.

Act 76 of 1870 contained no repealing clause; it contained nothing-inconsistent with Art. 138; it did not, in any manner, restrict its provisions ; it simply added to, and enlarged the causes of separation mentioned in the Article. Therefore, it did not, expressly or by implication, repeal Art. 138.

The form of the act was simply an attempted compliance with the requirements of Art. 115 of the Constitution of 1868.

The obvious intent and true legal effect of Act. 122 of 1877 was merely to destroy and remove the additions and enlarg ementa to Art 138, which had been made by the amending Act of 1870, and to leave the Article as it stood before the passage of the amendment.

Common sense and practical judgment support this conservative construction; and to the purely technical and verbal arguments, will ob oppose it, we say: “ Nimia subtilitas in jure reprobatin'et tali s certitudo certitudinem eonfmidit.

Impelled by the adverse opinion of the district judge, we have thus reviewed the grounds of our former decisions, and find abundant reason to adhere to them. We trust they will be henceforth accepted as definitive on this vexed question.

It is, therefore, ordered, adjudged, and decreed that tlie judgment appealed from, be annulled, avoided and reversed ; and it is now ordered, adjudged, and decreed that plaintiff do have and recover against defendant, Henry Bailleux, decreeing a separation from bed and board between tlie said plaintiff, Mrs. Aurore Blanchard, wife, and Henry Bailleux, husband. And it is further ordered, adjudged, and decreed, that tlie care and custody of the following named minors, issue of the marriage between said plaintiff and defendant, viz: Henri Bailleux, Louis Bailleux, Marguerite Bailleux, Marie Bailleux, Leontine Bailleux, and Rosina Bailleux, be and are hereby awarded to said plaintiff, and it is further ordered, that defendant pay costs of the lower court and of this appeal.

Judgment reversed.


text:
    No. 9269.
    The State of Louisiana vs. James Clark.
    Continuances aro peculiarly within the legal discretion of the trial judge in criminal oases. Refusals to grant them will not he interfered with, unless in cases of flagrant error, or gross abuse of power. The onus rests upon the accused to show the same affirmatively.
    An affidavit for a continuance, on the ground of the absence of a material witness, necessary to prove assault by the deceased on a described person, and to establish self-defence, is insufficient, where the accused docs not at least, by his own sworn declaration, identify himself with such person.

      A PPEAL from the Criminal District Court for the Parish of Orleans. / A. Roman, J.

      iU. J. Ckumingham, Attorney General, for the State, Appellee.

      Wm. R. Whitaker and W. L. Evans for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

The defendant was prosecuted for murder, convicted of manslaughter, and sentenced to twenty years a,t hard labor. Prom the verdict and judgment thereon he appeals, claiming as the only ground of complaint, that the district judge erred in refusing him the eontinirance asked by him, when the case was called, which is based on the absence of an alleged material witness. The motion is supported by an affidavit to the ruling of the judge; a bill was taken to which the motion and affidavit are attached as parts.

There is no doubt that if the affidavit was sufficient and bona fide, and worthy of credence, under the surrounding circumstances, the accused would have beeu entitled to a postponement of his trial; but the district judge has assigned as reasons, that he did not believe most of the facts sworn to; that the motion was made for delay, and that proper steps-had not been taken by the defense to procure the attendance of the witness.

In criminal trials, continuances are left, in a much greater degree than in other ^matters, to the sound discretion of the trial judge, so much so, that the appellate court will not interfere unless a flagrant error, or abuse of power has been committed. This is so for the reasons, that he is better able to know and to determine, whether the motion is a device resorted to for delay, and that there are many things which transpire under the eye, and in the presence of the judge, which do not •come up with the transcript.

Due diligence must be shown to have been used. Diligence is a matter of fact, upon which the judge’s opinion is, if not conclusive, surely presumptively correct. The appellate court will not go counter to it, unless the record shows that the judge was wrong. The owns is on the defendant then to show affirmatively that the judge grossly erred.

The mere declaration in the affidavit, that the diligence was used, does not conclude the judge. It may so happen, and probably it did occur in this case, that the judge had before him the proof that due diligence was not used, as alleged.

In the present instance, the judge distinctly states that proper steps had not been taken to secure the attendance of the witness, and the accused has failed to establish specifically what steps had actually been taken. lie should have done so.

The man was here a fortnight before the trial, which the prisoner knew -was to come on, and yet he neglected to have the witness detained-He could have had him recognized and even put under bond to appear on the day of trial.

The accused swore that it was only on the day preceding that of the trial, that ho learned that the witness was absent. He should have sworn that he did not know that the witness intended to leave the jurisdiction of the court.

Ts it credible that a prisoner about to be tried for his life would not compel an important witness to give recognizance to attend the trial and thus secure his testimony, if the witness was truly material Í All that enters into the question of the diligence.

Besides, the affidavit appears to be seriously deficient. It does nol show pointedly that the testimony of the witness was indispensable. It should have set forth that the meeting and affray, to which it alludes between the two men, Kellar, the deceased, and the “small mcmn mentioned, was connected with the fatal occurrence between the deceased and the accused. It should have been clear that this meeting was part of the res gestee and that the “ small man ” referred to was the prisoner at the bar.

It may be that the accused did not know whether the absent witness could, or not, prove his identity; but this ignorance of the fact would only relieve the defendant from swearing to it; surely he should, as the fact, if true, was to his own knowledge, have, by his oath, connected the “small man ” with himself. He has not done so.

The accused was xirosecnted, as stated, for murder, convicted of manslaughter, and inflicted the highest penalty authorized by law. There was not made oven a motion for a new trial. He appears to have had a fair trial.

We cannot say that the district judge erred in refusing the continuance.

Judgment affirmed.

Rehearing refused.

Tonn J. takes no part.


author: Poché, J.

text:
    No. 9385.
    Sallie C. Day and Husband vs. New Orleans Pacific Railway Company.
    Under a consolidation of two railroad companies, the corporation thus formed is alone re sponsible for all damages resulting from acts committed or works made since the act of consolidation, although the road bed alleged to have caused the damages claimed, was the property of, and had been begun by, one of the companies which went into consolidation.
    Hence the Hew Orleans Pacific Railway Company cannot he held in damages alleged to have resulted from works made by tbe consolidated company, after the 20th. of June, 1881, a which time it was merged into the Texas and Pacific Railway Compan y.
    A PPEAL from the Twelfth District Court, Parish of Rapides. Blachmcm, J.

      White & Thornton for Plaintiff and Appellant.

      Kenna/rd, Hotve & Prentiss, and Mosehj & Poster for Defendant and Appellee.
   The opinion of the Court was delivered by

Poché, J.

Defendant is sued for $5000 damages alleged to have been caused by the construction of its road bed on plaintiff’s plantation, the drainage of which was impeded by the stopping and filling up of necessary ditches and natural drains, causing damages in the amount claimed, during the years 1882 and 1883.

Among other defences, the corporation pleaded by way of exception:

1. That said corporation was consolidated with, and merged into the Texas and Pacific Railway Company, under date of June 20, 1881, since which time the works complained of were made by the latter company, which alone could he lield liable in damages therefor.

2. The prescription of one, two,, three, four, and five years, in case that any damages could he attributed to the defendant company.

Plaintiff appeals from a judgment, maintaining said exceptions, and non-suiting plaintiff.

The record shows the alleged transfer of the defendant’s road and franchises to the Texas and Pacific Railway Company, under date of June 20, 1881, and that under the act of consolidation, the defendant company reserved its separate corporate existence for certain specific purposes therein stipulated. It also appears from the record that from the date .aforesaid, the road begun by the defendant has been completed and has been continuously used and operated by the Texas and Pacific Railway Company. Under such a showing, the solution of the only question presented by this appeal is stripped of all difficulty. Plaintiffs own evidence shows that the road-bed on her plantation was-bogun as far back as the year 1875, but that the work was abandoned before the gaps or springs, which had been left for the running of the waters, had been closed, as was subsequently done by the “Texas and Pacific.” That the work was resumed under the control of the latter company, after the month of June 1881, and was completed in the year 1882, when the road went into operation.

The evidence shows beyond a doubt, that no impediment was, or could be, caused to the drainage on plaintiff’s plantation, through or by the works begun by this defendant, or before the closing up of the gaps or openings which had been left on her plantation under the defendant’s directions. In the case of Hotard et al. vs. the Texas and Pacific Railway Company, 36 Ann. 450, we held that company responsible, because the acts complained of, and resulting in damages to plaintiff, had been committed since the act of consolidation above referred to. It follows as a corollary from the proposition therein established, that in all similar cases the same company is alone liable.

Hence we are driven to the conclusion that in the instant case, the defendant company cannot be held liable for damages resulting from acts committed by its successor, whiclr, as a corporation, is as distinct from the defendant as the two companies were from each other previous to the act of consolidation, and that, therefore, planitiff has sued the wrong defendant.

We note the argument which her counsel draw from Articles 230 and 246 of the Constitution. But we fail to perceive its application to the issue which now concerns us.

Article 236 provides that: “No foreign corporation shall do any business in this State without having one or more known places of business and an authorized agent or agents in the State, upon whom process may be served.” Article 246 roads: “ If any railroad company, organized under the laws of the State, shall consolidate, by sale or otherwise, with any railroad company organized under the laws of any other State, or of the United States, the same shall not thereby become a foreign corporation, but the courts of this State shall retain jurisdiction in all matters which majr arise, as if said consolidation had not taken place.”

The text of the two articles shows of itself that the purport of neither article has any bearing on the fundamental question of liability or responsibility in the premises, but that both have reference exclusively to the mode or manner of judicially determining such responsibility, when shown or claimed to exist under other legal or constitutional provisions. The argnment that the Texas .and Pacific Railway, as now organized, is a foreign company, is answered by Art. 246, which provides that the corporation formed by means of a consolidation does not become a foreign company. To the complaint that the Texas and Pacific Railway Company has no known agent or agents in this State, upon whom process could be served, we answer that the case of iiotard hereinabove referred to, strongly suggests that plaintiff and her counsel must be in error.

The views which we have taken of the first ground of defendant’s exception obviate the necessity of discussing the second ground which involves the question of prescription.

Resting our conclusions exclusively on the first exception, we find no error in the decree of the district judge.

Judgment affirmed.


author: Todd, J.

text:
    No. 9395.
    Louis Lemunier vs. Martha McCearly and Husband.
    "Where a marriage is dissolved by divorce, the custody of the child or children of the marriage is retained by the party obtaining the divorce, and it is not necessary that such custody should be specially awarded by the judgment.
    And, where the wife obtains the divorce, she does not forfeit such custody by marrying again without being continued in she same by the advice of a family meeting.
    A tutor or tutrix cannot be appointed to a minor child when both parents are living, though the marriage be dissolved by divorce.
    A judgment rendered in chambers in a habeas corpus proceeding, instituted by the father of the child after divorce, directed against the mother obtaining the divorce, making her care of the child conditional, cannot be invoked as res adjuclicata in a subsequent suit where additional issues are involved, when it appears that no cause for the restitution of her authority over or care of the child anv longer exists.
    APPEAL from the Ninth District Court for the Parish of Concordia. Young, J.

      J. V. Luce and Steele & Garrett for Plaintiff and Appellee.

      James G. Leach for Defendant and Appellant.
   The opinion of the Court was delivered by

On Motion to Dismiss.

Todd, J.

This motion is on the ground that the appeal is taken by Mrs. McCearly alone without, the authorization of her husband in the court.

Both husband and wife were joined in the suit, and jointly answered in the lower court. The. wife, has appealed.

In the case of Hill & Co., vs. Trippelt and wife, 10 Ann., 554, exactly similar in the respects mentioned to the present one, it was held, (quoting): “ That the defendants having been both joined in this suit by plaintiffs and appellees, and having both appeared and defended the same, the authorization of the husband to the wife to take the appeal (which was by motion) must be inferred.”

We think this ruling correct, and the motion to dismiss is therefore denied.

On the Merits.

The plaintiff and the defendant Martha E. Hornsby, now Mrs. McCearly, were united in marriage September 13, 1870.

There was issue of this marriage one daughter, born July 14, 1871.

The parties were separated from bed and board by a decree rendered 23rd September, 1872, which was followed by decree of divorce of date 21st November, 1873, both judgments' in the suit of the wife and in her favor.

In May, 1880, the defendant contracted a second marriage with her present husband, A. J. McCearly.

The child born of the first marriage has remained with her mother or in her custody, and been maintained by her since her divorce.

The plaintiff on the 13th of September, 1883, instituted the present suit, the object of which is to have his daughter restored to his possession and tutelage.

He bases his action substantially on the following charges:

That the wife has contracted a second marriage without being'Continued in the tutorship of the child by the advice of a family meeting, that she and her husband are without means to support the child, being burdened with two other children born of their marriage; that they are not proper custodians of the child; that her education is being neglected as well as her moral and religious training; that the defendant and her husband are engaged in keeping a retail store and grocery, where whiskey is sold, and which is patronized by negroes of the lowest class, and that the child at times is required to deal out whiskey to the customers.

The defendant in her answer denies generally and specially all the allegations of the petition, at least as respects the charges therein preferred of neglect or improper rearing of the child, and further pleads a certain judgment rendered in July, 1880, as res aclgudieata aginst plaintiff’s demand in the present suit.

There ivas judgment awarding tile defendant temporarily ” or for the present ” the custody and tutelage of the child, upon condition that the plaintiff should be permitted to see the child at all times without let or hindrance, and reserving to the plaintiff in the event that this condition was violated, to demand a modification or amendment of tlie judgment and condemning the defendant to pay costs of suit. From this judgment she appeals, and the plaintiff asks an amendment of the judgment, granting in full the prayer of his petition touching the restoration of the child to his care and custody.

' A critical examination of the evidence satisfies us that the plaintiff’s charges presented in his petition are not sustained, and are in fact disproved, respecting the alleged neglect of the child and the want of means on the part of her mother to support her.

It is shown that the child has been tenderly cared for, and for nearly five years has been attending an excellent school, the R. E. Lee Female College, at Summit, Miss., and is well advanced in her studies; that she is supplied with everything suitable to her age and condition; and boards with a lady relative of the defendant’s present husband, who gives every attention to her comforts and moral or religious training, and where she is visited twice a year by her mother.

In all this time she 'has only been at her house in Louisiana a few weeks, for sufficient reasons assigned by her mother, unnecessary here to repeat; and the charge that she has ever been required to do any improper service in the store or grocery, is entirely disproved.

The alleged forfeiture of the tutorship of the child by the mother on account of her second marriage, is not argued by plaintiff’s counsel, and is presumed to be abandoned. The question of tutorship does not properly arise in this ease.

Tiie prohibition against the wife retaining the tutorship, where she marries again, without being continued therein, by the advice of a family meeting, applies to cases whore the marriage has been dissolved by the deatli of the husband. Where both parents are living, the tutorship proper cannot be conferred on either parent. Acostu vs. Rolin, 7 N. S. 387; Carlléteau vs. Ingouf, 14 Ann., 623.

It is true, that the amendment to the Code now part of Art. 157, declares that in all cases of divorce, the minor children shall be placed under the tutorship of that party who shall have obtained the divorce ; ” but the word tutorship ” as there used, means evidently tutelage or control and is not attended with the legal effects that result from tutorship by nature or from appointment of the judge.

Prom the above conclusions of law and fact announced, we might at once determine the case in favor of the defendant, Mrs. McCearley, by simply declaring the legal effect of the clause in Art. 157, C. C., above quoted, entitling her, without being so expressed in the judgment of divorce in her favor, to the care, control and tutelage of her child, hut for the plea of res adjudicaba set up by defendant, and which seems to be relied on by both parties to the suit as favoring their respective demands.

This plea is founded in a habeas corpus proceeding, prosecuted by the plaintiff in 1880, to obtain the custody of the child.

The judgment therein, which was rendered in chambers, awarded the temporary possession and control of the child to the defendant, but reserved the right to the plaintiff to visit her at will.

The plaintiff contends that the effect of that judgment, by denying the permanent custody of the child to the defendant adjudged that the mother’s possession and control of it should be only temporary and contemplated that ultimately the child. should be restored to him.

The defendant’s contention is, that the words “temporary or for the present” were'mere surplusage, and gave the mother the control of the child during her entire minority. It is necessary that we should give our construction of the judgment—conceding that such a judgment rendered in such a proceeding and in chambers, could serve as a basis for the plea in question—upon which we express no opinion.

Its effect is to be determined by the condition of matters existing at that time, and the charges then advanced by the plaintiff, in support of Ms pretensions.

It determined who, at that time, was entitled to the care and control of the child, under the state of facts then existing, and the charges then made. Some three years elapsed from the date of that judgment to the institution of the present suit, and the circumstances of the parties had in the mean time changed. For instance, the child at the date of the first proceeding, had not been sent to school, and this fact gave some color to the charge made by plaintiff against defendant of neglect in this important respect, and this might have been the cause that influenced the judge to place the restriction mentioned, on the right of the mother, respecting the custody of the child.

In the present suit other or additional grounds than those contained in his former proceeding, are set up as supporting his pretensions, and other and different issues thus raised. For instance, he alleges the forfeiture of the mother’s right to the child by her second marriage ; her having other children to support; the surrounding the child with evil influences and degrading associations, and compelling her to render vile services in the defendant’s business. So that, in whatever light we may view the two proceedings, we cannot well construe the first judgment as decisive of matters that had then no existence, and of issues that had then not arisen.

We find that the causes that might have then induced a limitation of the power and right of the mother over her child and which resulted from her judgment of divorce, no longer exist. The child as before stated, has been properly maintained and tenderly cared for, and afforded exceptional advantages of education for her mother’s means and condition in life.

The former judgment invoked, denied the plaintiff the custody of the child, whilst it restricted the right of the defendant to a temporary care and control of the child.

The restriction in that judgment, whether right or wrong, could not and did not, compel a like restriction in the judgment now before us under different conditions and state of facts, as we have shown, and whilst we may recognize it as res adjudicata as to the .matters and issues there existing, it can have no legal effect upon those now shown in the instant case. For, as stated, we think there is no cause for any limitation or restrictions over the rights of the defendant, touching the care and control of her child.

The legal operation of her judgment gave her the tutelage and care of the child, and we find no grounds for disturbing or impairing the effect of that judgment, and such effect must continue during the minority of the child, unless a just or legal cause arises for abridging or divesting the right of the mother in the premises.

It is therefore ordered, adjudged and decreed, that the judgment of the lower court, so far as it rejects the demand of the plaintiff be affirmed, and so far as it declares the defendant’s possession, control and tutelage of the child Blanche E. Lemunier, temporary and conditional, it be reversed, and it is now ordered, adjudged and decreed, that the said defendant, Martha E. McCearly, be and she is hereby declared to be entitled to the custody, control and tutelage of said child. The plaintiff to pay costs of both courts.