text:
    No. 803.
    State of Louisiana v. Louis Allemand, et als.
    An indictment charging that defendants received the property stolen with a felonious intent knowing the same to have “been stolen at the time, is in sufficient conformity with the statute.
    It is a rule of court, long since established, that unless personal service has been made upon a witness, no attachment to compel his attendance will be granted.
    ÜTo postponement or continuance will be granted unless accompanied by proof of due dili. gence.
    APPEAL from the Eighth Judicial District Court, parish of St. Landry. Morgan, J. Criminal case.

      G. W. Hudspeth, District Attorney, appellee. B. A. Martel, P. Perrodin, G. H. Wells, for defendants and appellants.
   Ludeling, C. J.

The defendants were convicted and sentenced for having feloniously received stolen goods, etc.; and they have appealed.

During the course of the trial they took bills of exceptions to the rulings ■of the judge; and in this oourt they have made the following assignment •of errors, to wit': That the indictment does not charge them with the •commission of any crime or offense known to the laws of the State; ‘That the motion in arrest of judgment, based on the objection above stated, was improperly refused; that their motion for delay to procure the attendance of witnesses was incorrectly refused ; that the sentence •of judgment was erroneous, because it avers that defendants were found guilty upon an indictment charging them with receiving stolen property, knowing the same to have been feloniously stolen, etc., whereas the indictment did not so charge, and it was absolutely necessary that said indictment should have so charged in order to sustain any conviction or sentence thereunder.

The first, second and fourth grounds of the assignment of errors are-substantially the same — that the indictment was fatally defective in not stating that the defendants received the property feloniously taken on stolen. The charge in the indictment is, that defendants unlawfully and feloniously did receive and buy a cow. of a red color,” etc.; “ they, the said Charles Allemand, Louis Allemand, and Joseph Allemand,. then and there, well knowing that the aforesaid cow had been taken, stolen, carried away and killed, contrary to the form of the statute,’” etc. The object of an indictment is to a Ivise the party accused of the charge against him, to enable him to prepare his defense, and to enable him to plead autrefois acquit or convict in any subsequent proceedings against him for the same offense.

In the second count of the indictment, under which they were convicted, they are charged with the crime of having feloniously received stolen property, knowing the same to have been stolen.

It is true, as contended for by defendant’s counsel, that an indictment,, under a statute, ought with certainty and precision to charge the defendant to have committed the acts under the circumstances and with the intention mentioned in the statute. This, we think, has been done-in this case. It charges that defendants received the property, with a felonious intention, knowing the same to have .been stolen at the time.

The ingredients of the crime, to wit: the act, the circumstances and intent constituting it, are stated; that is, the act of receiving the stolen property with a felonious intent, and with -a knowledge that the same hud been stoleD. This, we deem, was all that was necessary. We do not think that any useful purpose could have been subserved ■ by the use of the tautology contended for by defendant’s counsel, in charging that the accused feloniously received property feloniously stolen, knowing it to have been feloniously stolen. Nor do we think the jurisprudence of this State requires it. See 24 An. 494.

The ruling of the court refusing an attachment for the witness Gomez, was correct-. The judge a quo assigned the following reasons in the bill of exceptions: “ That it was a rule of court long since established that unless personal service had been made upon a witness, no attachment to compel his attendance would be granted by the court; that the defendant, in common with all other parties against whom indictments had been found, or informations filed at previous terms of court, had been warned from the bench, and by proclamation of the sheriff seven days previously, that their cases would be called for trial on the following Monday, and that no postponement or continuance would be granted, unless accompanied by proof of due-diligence ; that when such announcement was made, due diligence should have prompted them to have made examination as to whether their witnesses were properly summoned, and in default of their attendance when summoned, to have caused attachments to issue returnable on the day indicated for trial, and to have had subpenas issued for such as had not been properly summoned. Neither of which precautions was taken by defendants, and accordingly they had failed to-exercise due diligence. Aud the judge a quo further assigned as reason, for refusing the delay that the witness was a neighbor of the accused, and with ordinary diligence defendants could have had him present, and that, in his opinion, the application was for delay only. We think the reasons of .the judge good. 1 G-reenieaf, p. 451, §§ 315, 319.

Another bill of exceptions was taken to the refusal of the judge a quo to grant a temporary postponement of the trial of the case, or for ' alias (new) compulsory process against the witnesses Octave Gary and Nicholas Gary. The reasons of the judge a quo, stated in the bill of exceptions, are, because, at a preceding term of the court, holden in January, 1873, the defendants had, on their own motion, obtained a continuance, and had taken out compulsory process to compel the attendance of the witnesses named in this bill of exceptions ; that said processes were made returnable on the first day of the next term of court, to wit: twenty-eighth April following; that the judge then warned the accused that they must use due diligence to have their witnesses present at the next term, and be ready for trial; that at the April term of the court, on the first Monday of the month, the judge a quo announced from i3:-„ bench, and caused the aunouncement to be made by the sheriff that all causes in which indictments had been found, or information filed at preceding terms of the court, were fixed for trial on the following Monday, and that all such accused must be ready for trial, or show legal cause for a continuance ; and on the day thus fixed for the trial, when the case was called for trial, the aforesaid application for a postponement of the case and for new process was made.

We agree with our learned brother of the District Court that the defendants had not used due diligence, and that the application should have been refused.

We have not been able to discover any error in the rulings of the District Court.

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


source: Caselaw Access Project

author: Ludeling, C. J.

license: Public Domain

text:
    No. 827.
    John I. Adams & Co. v. Pannell Scott, et al.
    A joint obligor can be cited at the domicile of liis co-obligor.
    from the Eighth Judicial District Court, parish of St. Landry. King, J.

      Lewis & Bro.. for plaintiffs and appellants.

      Henry L. Garland, for defendants and appellees.
   Ludeling, C. J.

The defendants are ordinary partners, and were sued on an open account for supplies furnished to carry on their plantation. Pannell Scott, one of the defendants, excepted to the jurisdiction of the court on the ground that he did not reside in the parish.

As a joint obligor, he could be sued at the domicile of his co-obligor. “ When the defendants are joint obligors, they may be cited at the domicile of any one of them.” C. P., art. 165.

It is therefore ordered, that the judgment of the lower court be reversed; that the exception be overruled; and that the case be remanded to be .proceeded with according to law. It is further ordered, that the appellees gay costs of appeal.


text:
    No. 826.
    Louisa Adeline Neilson v. William H. Neilson.
    ’The defense tbat the note sued on was given in settlement of tlie claim of the plaintiff against defendant as tutor, when no account had been rendered by defendant to the court, can not bo sustained.
    The provision of the Code, which requires a tutor to render an account ten days previous to entering into any agreements with his ward, is intended for the protection of the ward, and he alone can take advantage of its disregard.
    The tutor can not take advantage of his failure to comply with the law.
    The allegation that the note was given for two slaves purchased at the tutor’s sale of the minor’s property, cannot be listened to in a court of justice. The tutor can not, in his own defense, be permitted to urge his own dereliction of duty and violation of the laws of his country. Besides, it'is in evidence that the price of the slaves was not the consideration of the note sued on.
    'The execution of the note for the amount ascertained to be due by the tutor did not change the character of the debt. It fixed the amount due and the period when it should be exigible, but it did not extinguish the legal mortgage which the law gave to secure the rights of the ward. Novation is never presumed.
    APPEAL from the Eighth Judicial District Court, parish of St. Laudry. Adolphe Bailey, acting judge.

      Moore & Morgan, for
    plaintiff and appellee. Leivis <& Bro., for defendant and appellant.
   Ludeling, C. J.

This suit is based upon a promissory note for :$2540 70, with eight per cent, interest from the fourteenth of December, 1863, secured by .a legal mortgage.

The deiense is, that the note was given in settlement of the claim of the plaintiff against defendant as tutor, when no account had been 'rendered by defendant to the court; that the note was given for slaves; ■that the mortgage .had -been extinguished by novation.

We will pass over the apparent contradiction of the defenses, and consider them separately.

First — The provision of the Code, which requires a tutor to render an account ten days previous to entering into any agreements with his ward, is intended for the protection of the ward, and he alone can take advantage of its disregard. C. C., art. 355. So that even if the execution of the note sued on, given for the balance due by him as shown by his account rendered to the ward, could be considered as coming within the terms of the article of the Civil Code, still the tutor could ■not take advantage of his failure to comply with the law.

Second — It is alleged that the tutor purchased the slaves at the tutor’s sale of the minor’s property. He can not be listened to, in a court of justice, when urging his own dereliction of duty and violation of the laws of his country. Besides, the proces verbal shows that James Dickey was the purchaser of the slaves, and the settlement between the tutor and the ward shows that defendant acknowledged he had received the price of the property sold. Whether the price of the slaves was paid by Dickey or himself, is immaterial to the plaintiff. Under either hypothesis, the price of the slaves was not the consideration of the note sued on.

Third — No agreement to novate the debt, due by the tutor, has been proved. The execution of the note for the amount ascertained to be due by him did not change the character of the debt; it fixed the amount due and the period when it should be exigible, but did not extinguish the legal mortgage, which the law gave to secure the rights of the ward. Novation is never presumed. C. C. 2190.

It is therefore ordered and adjudged that the judgment of the court a qua be affirmed, with costs of appeal.

Behearing relused.


author: Morgan, J.

text:
    No. 825.
    Robert H. Littell et al. v. Henrietta Wackerhagen.
    A vendor can not contest liis own acts. On the contrary, he is hound to warrant their legality.
    If the defendant in this case had title to the whole of the property she caused to he sold, her title was divested hy tho sale which she provoked, and the interest she acquired in it as one of the purchasers thereof is only the interest of a coproprietor. This interest is joint, and her right to the possession, use and enjoyment thereof is also joint, not exclu-
    APPEAL from the Eighth Judicial District Court, parish of St. Landry King, J.

      Bailey & Esiillette, Henry B. Garland, for plaintiffs and appellees. Bewis & Bro., for defendant and appellant.
   Morgan, J.

In the suit of Henrietta Wackerhagen v. Augustus W. Littell et als. Robert H. Littell, Joseph Block and Henrietta Wackerliagen purchased certain lands, mules, and other property, belonging to the defendants in execution. The purchase was made in the interest of one undivided third to each of the purchasers.

Subsequent to the sale, Mrs. Wackerliagen got possession of the mules,, carts, etc., which were sold under the execution issued in the case above mentioned, and proposed to remove them. She has been injoined.

Answering the petition oí'injunction, she sets up title in herself to the property of which she claims to be the owner, under title from her son, which she alleges she acquired from him, anterior to the sheriff’s, sale. But, it seems to us, she forgets that the property was sold under execution issued by herself, and that she not only stood by and saw the property, which she now claims as her own, sold, but that she caused the sale thereof. In this sense she is a vendor, and can not contest her own acts. On the contrary, she is bound to warrant their legality. If she had title to the whole of the property sold, her title was divested by the sale which she provoked, and her interest in it now, she being, one of the purchasers thereof, is only the interest of a coproprietor. This interest is joint, and her right to the possession, use and enjoyment thereof is also joint, not exclusive. Therefore, the judgment perpetuating the injunction which prohibits her from removing it from the property to which it was affixed by destination, and exercising absolute-control over, and possession of it, is correct.

Judgment affirmed.


text:
    No. 812.
    L. Grevenberg v. D. Borel.
    It is not proving title to lands by parol, when the sole object of the testimony is to provewkere wood was cut, whether on the plaintiff’s or defendant’s lands, and such testimony should have been received in this case.
    The verdict and judgment in favor of defendant is erroneous. The plaintiff having failed, to make out his suit, the evidence only justified anon-suit.
    from the Third Judicial District Court, parish of Iberia. Train, J. Jury trial.

      J. A. Breaux, for plaintiff and appellant. Berry <& Delahoussaye, for deiendant and appellee.
   Ludeling, C. J.

This is a suit for damages resulting from an alleged trespass upon the lands of the plaintiff. There was a verdict of the jury and judgment in favor of the defendant, and the plaintiff has appealed.

Several bills of exceptions were taken on the trial; but the view we have taken of this case renders it necessary to notice only one of them, to.wit: that taken to the ruling of the judge rejecting a part of the testimony of Druilhet, taken by commission, in another suit, but which the parties to this suit agreed might be used as if taken in this case, subject to all legal objections to the substance of the evidence. The reason for rejecting the testimony was, that the word defendant,” in the testimony, referred to the defendant in the suit in which the testimony was taken. Conceding this to be true, that was no reason for rejecting the testimony.

The further reason, that it was proving title to lands by parol, was also erroneous.

The sole object of the testimony was to prove where the wood was cut, whether on the plaintiff’s or defendant’s lands, and it should have been received.

The verdict and judgment, in favor of the defendant, are clearly erroneous; for, if the plaintiff failed to make out his case, the evidence only justified a judgment of non-suit.

But the testimony of Druilhet is to the effect that forty cords of wood were cut by defendant on plaintiff’s lands; and if the evidence had been before the jury, it is probable the verdict would have been different.

We think, however, that the ends of justice will be subserved by remanding the case to be tried de novo. We deem it proper to state that the only questions to be decided in this case are: whether or not the wood was cut upon the plaintiff’s lands? and what was the value of the wood before it was cut ?

It is, therefore, ordered and adjudged that the judgment of the lower court be reversed; that the verdict of the jury be set aside; and that the case be remanded to be tried in conformity to the views above expressed. It is further ordered, that the appellee pay costs of this appeal.


author: Wyly, J.

text:
    No. 806.
    Clara Miguez et al. v. Delahoussaye et al.
    A judgment ordering the sale of succession property to pay an unliquidated claim against the heirs, is a mere nullity.
    A judgment ordering the partition of succession property is invalid, when one of the heirs has not been a party to the suit.
    APPEAL from the Parish Court, parish of St. Martin. Fournei J.

      J. A. Breaux, for plaintiffs and appellees. De Blanc & Fournet, for defendants and appellants.
   Wyly, J.

On twenty-sixth September, 1871, Francisco Segura obtained judgment against the heirs of his wife ordering a partition of the community property, and ordering a sufficient amount thereof to be sold to pay a claim of $5000 set up by him.

On eleventh December, 1871, an order was issued to sell certain property to satisfy said claim of $5000.

The plaintiff opposed the sale, and injoined the auctioneer from making it, on the grounds that the court was without jurisdiction ration# material, and that this claim of $5000 was unliquidated, was not established by a judgment, and, therefore, the court could not legally order the sale of succession property to pay it. The petition also alleges that Ulger David, one of the heirs, was not a party to said judgments.

Tiie prayer of the petitioners is that said judgments be annulled, and the injunction be perpetuated. And from the judgment in favor of the plaintiffs the defendant Francisco Segura has appealed.

We think the court did not err. The judgment ordering the sale of the property to pay the unliquidated claim of Francisco Segura was a mere nullity.

The judgment ordering the partition was invalid, because one of the heirs, the petitioner, Ulger David, was not a party to the proceeding.

Whether the plaintiffs, who are heirs, have given a sufficient bond and made the necessary affidavit to authorize the injunction which they obtained, is immaterial.

The conservatory order of injunction may have issued improperly, but this can not defeat the action of nullity and third opposition now before the court on its merits.

It is therefore ordered that the judgment herein be affirmed, with costs.


author: Taliaferro, J.

text:
    No.-.
    State of Louisiana v. Henry L. Garland.
    To use abusive language towards a member of the court and eoramit an assault upon his person during a recess, and in the court room, under the pretext of resenting what he had said or done when on the bench, is a contempt of court.
    An answer by the defendant to the rule to show cause why he should not be punished, which is substantially a justification of his act, must be regarded as an aggravation of the contempt.
    ON the trial of this rule for contempt of court,

      G. W. Hudspeth, Dis-
    trict Attorney for the Eighth Judicial District, appeared for the State, and H. L. Garland, for himself.
   Taliaferro, J.

The District Attorney of the Third Judicial District took a rule against the defendant to show cause why he should not be punished for a contempt of court charged to have been committed by him on the thirteenth of June, 1873, in the following manner : That immediately after vacating the bench for a recess (the court not having adjourned) the defendant approached John T. Ludeling, the Chief Justice, using towards him abusive and vituperative language, and at the same time made a violent assault upon his person. To the rule the defendant filed the following answer :

To the Honorable Judges of tbe Supreme Court of Louisiana, holding sessions at Opelousas:

In answer to the rule taken upon me to show cause why I should not be punished for contempt of your honorable court, I respectfully aver that, by the words spoken to and acts done towards the Hon. John T. Ludeling, during the recess of your session on yesterday, I intended no disrespect of, or eontempt for, the tribunal over which you preside.

That the words spoken to and my conduct towards him were not said and done directly in the presence or hearing of the court during the sitting of the same, and can not, therefore, be construed or taken to be a contempt of your honorable court.

After thus meeting the issue tendered to me by your honorable-court, I beg leave to state that in rising on yesterday morning from my seat, when Judge Ludeling was reading the decision in the case No. —, entitled John I. Adams & Co. v. Pannell Scott et al., my intention was only to call the attention of the court to the fact that the case had been submitted on briefs to be filed on that morning, that I had filed my briefs within the time granted, and that as they were upon, the clerk’s desk and had not been taken by him to your honors, the decision was being rendered without giving me a hearing.

I further beg leave to state that, in thus rising from my seat to give opportunity to the. court to recall the circumstances of the case, I was-acting only for the interest of my client, and not with any intention to violate the rule (unknown to the bar of this district) that the court could not be interrupted in any manner or for any cause while reading its decisions.

And I further beg leave to state that upon this occasion I was rudely and harshly treated by Judge Ludeling.

That I considered his conduct towards me in the light of a personal injury, and as such resented it, without intending any contempt of your honorable court. Respectfully submitted,

HENRY L. GARLAND.

The facts of the case are that, on the morning of the day set forth lathe rule, while the Chief Justice was reading an opinion of the court, the defendant, who is an attorney-at-law, rose and said he desired to> call the attention of the court to a decision which had just been rendered. The Chief Justice said to him that he must not interrupt the-court while' opinions were being read. Garland continued to address-the court, when the Chief Justice directed him to take his seat. He did so, but rose again soon after and addressed the court, whereupon the Chief Justice ordered a fine of ten dollars to be imposed upon him for a contempt of court. A short time after the court took a recess. No adjournment was made. The judges descended from the bench. While the Chief Justice was standing in the court room, having been stopped on Lis way to the door by a member of the bar, Garland approached him, while all the members of the court were in the room, and, after a short conversation regarding the conduct of the Chief Justice toward him, and in the presence of one at least of the members of the court, the other members of the court having left the room, and in the presence of the officers of the court, many members of the bar and a number of citizens, used abusive language toward and committed a violent assault upon him.

The answer being substantially a justification of the act, we regard .•it as an aggravation of the contempt.

It is therefore ordered that a fine of one hundred dollars be and the .same is hereby imposed upon the said Henry L. Garland, and that he 'be imprisoned twenty-iour hours in the public jail of the parish and ¿pay the costs of these proceedings.


text:
    No. 817.
    Succession of Antoine Romero. Opposition of S. Romero et als.
    "Where the administrator and the opponent to the tableau of distribution by said administrator have filed a written agreement to have the judgment dismissing the opposition reversed, and to reinstate the opposition, and to remand the case to be tried on its merits;
    Held — That this can not be done without the consent of all the parties interested, several of whom are not before the court, and that the case must be continued to have the creditors on the tableau cited according to law.
    APPEAL from the Parish Court of the parish of St. Martin. Handy,

    J.

      E. Simon, for opponent and appellant. DeBlanc and Perry, administrator and appellee.
   Ludeling, C. J.

The administrator of the estate filed an account and tableau of distribution, to which several oppositions were filed. On the day fixed for the trial, the opponents failed to be present, and their oppositions were dismissed on motion of the administrator-.

S. Romero then a'-plied for a devolutive appeal, by petition. The creditors on the tableau were not cited, and one of them has moved to dismiss the appeal for want of citation. The fault in not citing the creditors is not attributable to the appellant, but to the clerk; it is not a cause for dismissing the appeal.

The administrator and the appellant have filed a written agreement to have the judgment dismissing S. Romero’s opposition ■ reversed, to reinstate the opposition, and to remand the case to be tried on the merits. This we can not do without the consent of all the parties interested — several of whom are not now before this court.

It is therefore ordered that the case be continued to have the creditors on the tableau cited according to law.

Rehearing refused.


author: Ludeling, C. J. Wyly, J.

text:
    No. 809.
    Succession of Alexander Melançon. Opposition of Eulalie Latiolais.
    "Where a widow, in necessitous circumstances, opposes the administrator’s account of a deceased husband’s estate, claiming that she is entitled to one thousand dollars under the homestead act, and it appears that the children own more than one thousand dollars in their own right, the widow does not come within the provisions of the statute.
    APPEAL from the Parish Court of the parish of St. Martin. Four-net, J.

      F. Voorhies and F. Simon, for opponent and appellee. Z. F. Fournet, for the administrator and appellant.
   Ludeling, C. J.

Alexander Melanson was twice married. By his

first marriage he had six children; by his second he did not have any children. The estate of the father is indebted to the children in the sum of $2751 55, and there are funds in the hands of the administrator to pay the debts.

The widow is in necessitous circumstances, and she opposed the administrator’s account, claiming that she is entitled to one thousand •dollars under the homestead act.

The statute provides that “a sum, which, added to the amount of property owned by them (the widow and children), or either of them, in their own right, will make up the sum of one thousand dollars,” shall be given to the widow and children.

As the children own more than one thousand dollars in their own right, the widow does not come within the provisions of the statute. Stewart v. Stewart, 13 An. 398; 15 An. 527.

It is therefore ordered that the judgment of the lower court be reversed, and that .the opposition to the account be dismissed with costs in both courts.

Wyly, J.

I concur only on the authority of Stewart v. Stewart, 13 An. 398.


text:
    No. 378.
    The State of Louisiana v. Anderson Jackson and others.
    Where a motion for a new trial and one in arrest of judgment were predicated upon the hypothesis that only forty-six jurors were drawn on the panel:
    Held — That inasmuch as no objection was made to the jury until after conviction, the refusal of the judge a quo to grant a new trial or to arrest the judgment was correct, even if the facts were as supposed. One can not take the chances of a verdict in his favor, and alter conviction object to the jury.
    APPEAL from the Fourteenth Judicial District Court, parish of Ouchita. Bay, J.

      W. W. Farmer, District Attorney, for the State, appellee. J. F. Strother and B. J. Caldwell, for defendants and appellants.
   Ludeling, C. J.

The defendant, Anderson Jackson, having been convicted and sentenced “for setting at liberty, by force and without due authority, a person in custody for an offense not capital,” has, appealed, after having unsuccessfully attempted to obtain a new trial and to arrest the judgment.

Both motions are predicated upon the hypothesis that only forty-six; jurors were drawn on the panel. This is a question of fact. No bill'' of exceptions having been taken to the ruling of the judge, this court has not the power to examine the question of fact. Art. 74 of Conati-. tution.

'But, inasmuch as no objection was made to the jury until after conviction, the refusal of the judge a quo to grant a new trial or to arrest 'the judgment was correct, even if the facts were as supposed. One •can not take the chances of a verdict in his favor, and after conviction •object to the jury 7 An. 284; 8 An. 515.

It is therefore ordered that the judgment of the District Court be -affirmed, with costs of appeal.


author: Wyly, J. Taliaferro, J., Ludeling, C. J., Taliaferro, J.

text:
    No. 314.
    Thomas Naughton v. B. H. Dinkgrave et als.
    An order of seizure and sale should not he injoined for insufficiency of the evidence upon which it was rendered. The remedy is an appeal. This is undoubtedly so, where a judgment is sought to be revised on that ground.
    In this case a devolutive, instead of a suspensivo, appeal was taken, and, while the court helow had lost jurisdiction of the case by reason of the appeal, the appellant obtained an injunction to restrain tbe execution of the judgment on the ground of the insufficiency of the proof on which the order of seizure and sale had been rendered.
    "Whether, or not, the evidence was sufficient, was a question for this court to decide in revising the appeal from the order of seizure and sale, and which the district judge h ad no right to determine in an injunction proceeding.
    ’The plaintiff had no right to use the remedy of injunction in connection with his devolutivo appeal, for the purpose of gaining the advantage of a suspensi ve appeal. There is neither law nor precedent for it.
    A district judge can not revise his decrees, by an injunction, on the ground of the insufficiency of proof. A new trial and an action of nullity are the only modes by which he can revise his judgments.
    APPEAL from the Fourteenth Judicial District Court, parish of Ouachita. Bay, J.

      Stubbs & Oobb, for plaintiff and appellant. Morrison & Farmer, for defendant and appellee.
   Wyly, J.

An order of seizure and sale should not be injoined, as in this case, for insufficiency of the evidence upon which it was rendered. The remedy is an appeal. This is undoubtedly so where a judgment is sought to he revised on that ground. No one will contend that insufficiency of proof is a good ground to injoin a judgment. Why should it be in regard to an order of seizure and sale 1 The law has not so provided.

Where a judgment has been rendered by default, the defendant has ten days after service of the notice of judgment to take a suspensive appeal, and twelve months for a devolutive one. Where an order of seizure and sale has been rendered the defendant has likewise ten days after service of the notice thereof' to take a suspensive appeal, and twelve months for a devolutive one.

Why should there be some remedy in the latter case that there is pot in the former ?

We see no necessity for it. In both cases the parties whose interests are affected have ample time to take either a suspensive or devolutive •appeal. If they desire the writ of execution arrested pending the appeal, they can have it by giving suitable bond, and such security as <4he law requires.

Why should the same judge who decided the evidence sufficient, and issued the flat, grant an injunction and restrain it on the ground that the evidence that he had just pronounced sufficient, is insufficient 9

In the case before us, the plaintiff chose to take a devolutive appeal, although he had ample time to take a suspensive one. While he was appellant, and after the court below had lost jurisdiction of the •case by reason of the appeal, he obtained this injunction to restrain the execution of the judgment on the same ground, to wit: the insufficiency of the proof upon which the order of seizure and sale .was rendered.

Whether or not the evidence was sufficient was a question for this court to decide in revising the appeal from the order of seizure and sale. It was a question, which, in our opinion, the District Judge had not right to determine in an injunction proceeding. The plaintiff had no right to use the remedy of injunction in connection with his devolutive appeal for the purpose of gaining the advantage of a suspensive appeal.

To get a suspensive appeal the law requires a bond exceeding by one-half the amount of the debt. In coupling an injunction with a devolutive appeal the plaintiff only gave bond for damages, which can not exceed one-fourth the amount of the debt. Thus, by this extraordinary procedure, the plaintiff has succeeded in appealing from the order, and suspending its execution in the meantime, he has gained practically all the advantages of a suspensive appeal, and has incurred only one-fourth the responsibility thereof. Such a practice should not be sanctioned by the court; there is neither law nor precedent for it. If the appellant desires execution suspended, he must take a suspensive appeal, as the law requires. He can not accomplish the object by combining an injunction with a devolutive appeal. The District Judge can not revise his decrees by an injunction on the ground of the insufficiency of proof. A new trial and an action of nullity are the only modes by which he can revise his judgments. This court may do so by appeal.

For the reasons stated, it is therefore ordered that the judgment herein be affirmed with costs.

Taliaferro, J.,

concurring. The plaintiff in this case sued out an injunction to restrain the sheriff from selling, under two orders of seizure* and sale, certain property in Monroe belonging to the plaintiff. The ground .set up for obtaining this injunction is, that the orders of seizure and sale were rendered upon insufficient evidence; having been granted without authentic proof of the transfer, by endorsement of the payee, of the notes secured by the mortgage which the defendant was-seeking to enforce. A motion was filed to dissolve the injunction.on-several grounds, to wit:

First — -That the affidavit does not state the facts, which, according to his belief, render an injunction necessary to protect his rights ; nor does the affiant swear that the facts stated in his petition render an injunction necessary.

Second — That the bonds given are not made payable to the defendant* as prescribed by law, but are made payable to the clerk.

Third — That the only ground for injunction set out in the petition is, that the evidence on which the orders of seizure and sale were granted is insufficient — which can not be ground for injunction, but is matter on which to base an appeal, and the plaintiff has taken devolutive appeals from the orders of seizure and sale, which he has, since the date of his said appeals, herein injoined.

Fourth — That the ground of injunction, just stated, is set up in the appeals to the Supreme Court from the aforesaid orders of seizure and sale, and, being thus lis pendens, can not be set up again in this injunction.

The motion to dissolve was sustained by the court below, and the injunction was dissolved at plaintiff’s costs — the court rendering judgr ment in solido against the plaintiff and his sureties, in favor of the-defendant for the sum of six hundred and eighty dollars, one-half' thereof as special damages, and the other half as general damages on> the amounts injoined. Prom this judgment the plaintiff has appealed.

The appellee prays that the judgment be amended by granting him twenty per cent, as general damages on the amount injoined, and that,, in other respects, the judgment be affirmed.

The ground set up for obtaining the injunction is precisely the same-as that on which the appeals were taken. The question arises, was, it necessary to the preservation of his rights, or his protection against a wrong, that the plaintiff should resort to the equitable remedy of" injunction ? He took a devolutive appeal from the order directing the-seizure and sale of his property. There is no reason shown why he-did not take a suspensive appeal. He was entitled to either a devolutive or a suspensive appeal. But it is argued that the plaintiff has-the right to use any or all the remedies conceded by law to a person, for the protection of his rights; that in this case he could take a, devolutive, instead of a suspensive appeal, if he thought proper; and, if the defendant proceeded to execute the order, he might resort to an. injunction to suspend the sal© until the matter in controversy should, be determined on appeal.

In reasoning upon this question, I look to the rights of all the parties concerned. The creditor, seeking to enforce his claims against his debtor, has rights as well as the debtor. The creditor has the (right to have payment of his debts enforced without unreasonable delay. If the debtor has several remedies of defense, it does not follow that he is, in every case, compelled by necessity to resort to them all. If, in a given case, the use of one remedy is amply sufficient to secure the rights of a party, is there reason or equity in permitting him to involve his adversary in needless expense and trouble by using all his remedies? It would be no denial of the right of injunction to say that its exercise has proper limits.

Whilst, therefore, I concede that cases might arise in which a litigant would be justifiable in resorting to injunction in cases like the present, yet I hold that the resort to it should in cases of questionable right be restricted to instances where it it is clearly shown that circumstances rendered it necessary. But it may be said that the sale of the plaintiff’s property, under au illegal order, would be a wrong which the law provides him with a remedy to avoid. The law also provides him with the remedy by suspensive appeal to effect the same purpose. That there was auy impediment in the way of Ins exercising that right, I am not authorized to infer from auything in the record.

Without assenting to the reasons given in the opinion of the majority of the court, I concur in the conclusion that the judgment of the lower court should be affirmed.

We think the judgment of the lower court correct. The ground set up for obtaining the injunction is precisely the same as that on which the appeals were taken. All the relief he could obtain by the injunction proceeding was obtainable by appeal. By taking a suspensive, in place of a devolutive appeal, he might have obviated the sale until the appeal was decided. The law discountenances a multiplicity of suits. The case is clearly one of Its pendens. The matter of controversy was the same and before the same tribunal — between the same parties and for the same cause of action. Code of Practice, article 335 ; 1 An. 46; 4 An. 530 ; 21 An. 639.

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

Ludeling, C. J.,

dissenting. This is an injunction to prohibit the sheriff from proceeding with the execution of two writs of seizure and sale obtained by Henry Burns against Thomas Naughton.

The ground of injunction is substantially that the note for the debt secured by the mortgage is in favor of J. Prank Pargoud, and it is indorsed by him in blank, sous seing privé, and not by authentic act, and that the order of the judge under which the writs were issued was» unauthorized by law and null and void.

A motion was filed to dissolve the injunction, for four reasons :

First — Because the affidavit is defective.

Second — Because the bond is defective.

Third — Because of lis pendens, an appeal from the order having been taken to this court.

Fourth — Because the only ground for injunction alleged is, that the evidence on which the orders of seizure and sale were granted is-insufficient, “which can not be ground for injunction, but is a matter-on which to base an appeal, and tile plaintiff has taken a devolutiveappeal before suing out this injunction.”

The first two grounds in the motion are not good, if, notwithstanding the defective bond and affidavit, it appears that the plaintiff would be entitled to a new injunction.

The plea of lis pendens is also unfounded. C. P. 335. In order that the plea should be good, it should appear that the suit is between the same parties for the same object, growiug out of the same cause of action, and before another court of concurrent jurisdiction. If it be-true, as contended for by the defendant, that the suit in this court involves the same issues and between the same parties as those in this case, it would seem to be an additional reason to authorize the injunction.

In Johnston v. Hickey this court said: “In this case the plaintiff' obtained an injunction against an order of seizure and sale, which was about to issue against his property at the instance of the defendant. The petition for the injunction has reference to a suit pending between these parties in relation to part of the same contract on which the-order of seizure is claimed in the present case, and reference is made to the answer in that suit to ascertain some of the facts relied on to obtain the injunction in the present, etc. * * * For the purpose-

of deciding on a motion to dissolve an injunction, the facts alleged in the petition on which it is obtained are taken as true, but afterwards may be controverted in an answer on the merits, if such motion does-not prevail. We are of opinion that the facts in the present case ought to have been considered by the court below as sufficient to sustain the injunction until the cause could be heard and determined on its merits.” 4 La. 285. In that case it had been urged that “ no-injunction can issue to restrain executory process, unless for one of the reasons assigned in C. P., Arts. 738, 739.” But this court thought otherwise then.

And this brings me to the consideration of the last, and, as it seems, the chief reason for refusing the injunction, to wit: that having taken a devolutive appeal from the order of seizure, the want of authentic evidence to authorize the fiat is no ground for an injunction.

It has been argued that the question presented by the allegations of the petition for injunction is, whether or not the insufficiency of evidence to authorize a judgment can be made a cause for an injunction.

In my judgment that is not the question. The question is one of' power or authority in the judge to act at all. The judge has no-authority to grant an order for executory process on any other than authentic evidence. 7 M. 239, Day v. Fristoe; 1 An. 323; 4 An. 152;. 5 An. 124, Yates v. Phipps; 10 M. 223; 3 N. S. 315; 7 N. S. 515; 12 R. 238; 2 An. 491; 1 R. 407. If, therefore, he act without authority, his. act is a nullity, from which no civil effects or rights can arise. “ When the creditor is in possession of such an act, he may proceed against the debtor or his heirs, by causing the property subject to the privilege or mortgage to be seized and sold on a simple petition, and without previous citation of the debtor,” etc. C. P. 734.

The decree ordering a seizure and sale is so far a judgment that an appeal will lie from it; but itds not a judgment in the true legal sense-of the term, and possesses none of its features. It issues without citation; it decides on no issue; nor does it adjudicate to the party obtaining it any right in addition to those secured in his notarial act.

16 La. 254; 3 An. 253. If the judge had inadvertently granted an order of seizure and sale on an act under private signature, or a judgment in chambers on an ordinary confession of judgment, I imagine no one would affirm that such an order or judgment was not an utter nullity. In my judgment the case at bar is not materially different.

The rule that an injunction will not be granted to arrest a fi. fa. for-causes existing anterior to the judgment does not apply to orders of seizure and sale, and this has been recognized by this court in numerous cases. In Chambliss v. Atchison, 2 An., an order of seizure and \ sale was injomed, and a motion was made to dissolve the injunction.. This court said: “Among the specific grounds relied on in argument by the counsel for Atchison, in support of the judgment appealed from, so far as it perpetuates the injunction, the following are deemed material :

“First — Chambliss could not legally obtain an order of seizure on the outstanding notes of Niebert, the stipulation of the defendant to pay those notes only conferring upon him an equitable action to enforce payment.

“Second — The power ot attorney to Lacoste, which is one of the documents on which the order of seizure issued, is a private statute. Act 8.

“Third — The certificates and affidavit of the justice to prove demand from the original debtor are private acts, not under seal as required by the statute of Mississippi.

“Fourth — The copies of the statutes of Mississippi, adduced to shew the capacity of justices of the peace to act as notaries and to prove the rate of interest on the notes, are not authentic in the meaning of Arts. '.732 and 733 of the Code of Practicó.

“Fifth — The identity of the notes is not shown. They were not paraphed by the notary. The mortgage to Niebert describes those ■that were given as drawn in favor of Bass, and his name is not on those which the plaintiff has produced.”

The facts assumed in these grounds are apparent on the face of the record, and force upon us the conclusion that the order was granted ■upon evidence not authentic.

It is contended that none of those grounds but the first were set forth in the petition praying for the injunction, and that the others ■can not be noticed here. The authorities relied upon in support of that position do not, in our opinion, establish it. “When executory process is prayed for on an act said to import a confession of judgment, the judge must examine and decide whether the instrument unites all the requisites of the law necessary to authorize this summary proceeding; so far it is a judgment, and an appeal lies from it, as from all •■other orders of court that might work an irreparable injury.” And ■the court perpetuated the injunction. 2 An. 491; 3 An. 150; 10 R. 70.

■Did the fact that Naughton had taken a devolutive appeal deprive him of the right to injoin the sale attempted to be made under’ an illegal order? I am aware of no law which would deprive him of this right, and I can imagine no good reason for it. It is said he might ■have suspended the effect of the order by taking a suspensive appeal. ■Supposing he could not take a suspensive appeal, for the want of a security willing to sign such a bond — an hypothesis by no means' .improbable — is this court to deprive him of another remedy afforded him by law to protect his property from an illegal seizure and sale? I think not.

But the law gave him the right to take a suspensive or devolutive appeal. He chose the latter — no doubt believing that it was enough ■to call the attention of the parties to the fatal defect in their proceedings to stop it. But the defendant chose to try to enforce his illegal order, noth withstanding the appeal, and I am at a loss to imagine why the plaintiff should not be permitted to avert the wrong attempted to •be inflicted upon him by iujoining the illegal writs.

This court decided recently on the appeal taken from the order of seizure, under which the writs injoined in this case issued, that the order oi seizure and sale was wrongfully issued; that the ground of plaintiff’s injunction was good, and yet he is mulct in twenty per •cent, damages for seeking to avert a wrong — for trying to prevent trespass upon his property.

For the foregoing reasons I dissent from the opinion of the court..

On Rehearing.

Taliaferro, J.

A rehearing was granted in this case only on the ■subject oí damages. A review of the case in regard to that question induces us to think that general damages alone should be allowed.

It is accordingly now ordered that the judgment of the lower court, so far as it condemns the plaintiff in injunction and his sureties in solido to pay the defendant three hundred and forty dollars as special damages, be annulled and set aside; and that in all other respects the judgment be affirmed, the defendant in injunction paying costs of this appeal.

The Chief Justice adhering to the views expressed in his dissenting ■opinion in this case.


text:
    No. 410.
    C. H. Morrison v. A. F. Flournoy & Co.
    Where tlie debt and contract on which a judgment was obtained existed prior to the Constitution of 1868, article 132 of that instrument is not applicable, and, therefore, the judgment does not fall within the provisions of the act Ho. 40, approved ^February 24,1869.
    Article 132 of the Constitution is not self-acting, and can only have effect in the manner provided by statute.
    When there was no law authorizing the Sheriff to advertise and sell, as he did, the cotton plantation of the plaintiff under the judgment of the defendants, in lots of from ten to fifty acres, disregarding the plaintiff’s notice that he desired it sold in block and not according to the advertisement; and where, in defense of his act, the Sheriff contended that, before the day-of sale, he had notified the plaintiff to inform him whether he desired the property thus advertised to be sold in lots or in block, and that plaintiff, having refused to give any instructions, had no cause to complain;
    Held — Tiiat in forced sales the forms of law must be strictly complied with, and that, in this case, the defect in the Sheriff’s proceedings could not be cured in the manner attempted by him.
    Property advertised to be sold in lots of from ten to fifty acres could not be legally sold in block, and the plaintiff, at this stage of the proceedings, was not bound to give any directions to the Sheriff, or to give any consent as to the manner of selling Ms property.
    He had the right to require a legal advertisement, and was not bound to waive it l>y giving instructions to the Sheriff concerning the sale.
    APPEAL from th© Fourteenth Judicial District Court, parish of Ouachita. Ray, J.

      Morrison & Farmer, for plaintiff and appellee. R. G. Cobb, for deiendauts and appellants.
   Wyly, J.

'Pilis case is correctly stated by the counsel of the plaintiff, and is as follows:

Tlie defendant held a judgment against the plaiutiff; sued out a fieri facias, and seized a cotton plantation belonging to plaintiff in injunction.

The Sheriff advertised the property for sale, to be sold in lots of not less than ten nor more than fifty acres.

This sale was injoined on ti:3 ground, among others, that the defendant in execution had notified the Sheriff that he wished the property-sold in block; that the (contract) debt on which the judgment was. obtained existed previous to the adoption of the Constitution of 1868. Article 132 did not for that reason apply.

After the injunction had been issued and served, and while it was pending, the plaintiff in execution returned the fi. fa., and sued out an alias writ.

On this second execution the sheriff relevied upon the same property. As soon as this last seizure was made, defendant in execution served a notice on the Sheriff that he desired the property sold in, block.

Notwithstanding this notice, the former injunction, and the law, the Sheriff proceeded to advertise the property for sale again, to be sold in lots, as in the first instance.

The defendant in execution then sued out the present injunction, averring that it was illegal, irregular, and harassing for defendants in injunction to return the first execution, and to proceed in the execution of the second in the manner they had been restrained from doing under the first, until the issues made by the injunction then pending had been disposed of;

That it was the wish of defendant in execution to have his property sold, if at all, in block; that it had on it a standing crop, and to sell it in lots would be greatly to the damage of petitioner;

That the law authorized him to have it sold in block; the debt and contract on which the judgment was obtained existed prior to the Constitution of 1868; therefore article 132 was not applicable.

Defendants answered by admitting the seizure and advertisement of the property to be sold in lots, as alleged, but averred the correctness and legality of the proceedings.

The court perpetuated the injunction, and defendants have appealed.

The contract on which the judgment was based existed before the constitution of 1868. Therefore this judgment does not fall within the provisions of the act No. 40, approved February 24, 1869.

In Bowie v. Lott, 24 An. 214, this court held that article 132 of the constitution, which provides that “all lands sold in pursuance of decrees of courts shall be divided in tracts of from ten to fifty acres,” is not self-acting, and can only have effect in the manner and to the effect provided by statute. There are other decisions to the same effect.

There was, therefore, no law authorizing the sheriff to advertise and sell the cotton plantation of the plaintiff under the judgment of the defendants in lots of from ten to fifty acres, the plaintiff having notified him that he desired it sold in block.

But tlie defendants contend, that before the day of sale the sheriff: notified the plaintiff to inform him whether he desired the property sold in lots or in block, and the plaintiff having refused to give any instructions, has no cause to complain.

In forced sales the forms of law must be strictly complied with.

The sheriff in this case had advertised the property to be sold in lots of from ten to fifty acres, notwithstanding the plaintiff notified him he desired it sold in block.

This defect could not be cured in the manner attempted by the sheriff. Property advertised to be sold in lots of from ten to fifty acres, could not be legally sold in block. The plaintiff, at this stage of the proceedings, was not bound to give any directions to the sheriff, or to give any consent as to the manner of selling his property.

He had the right to require a legal advertisement, and he was not bound to waive it by giving instructions to the sheriff concerning the sale.

Judgment affirmed.


author: Ludbling-, C. J.

text:
    No. 415.
    The State of Louisiana v. Zack. McFarland.
    Where certain persons, to wit: Morrison and Pickens, pretended, the one as clerk and the other as sheriff of the parish of Caddo, to hold tbeir offices and to exercise the functions thereof under what they called the “McEnery government,” in opposition to the authority of the United States and the laws and decisions of the courts of this State;
    Held — That it would seem to he absurd to require an argument to show that parties occupying such positions can not be regarded as de facto officers of the government whose authority they contemn.
    There can not be, at the same time and in the same State, two valid State governments, with two sets of officers.
    No. 41 of the acts of the Legislature, session of 1873, forbids persons occupying the position therein described from performing any official act, and also prohibits all officers of the State from recognizing them or giving effect to their acts.

      u Whatever is done in contravention of a prohibitory law is void, although the nullity he hot formally directed.” C. C. art. 12.
    Every official act of Morrison and Pickens is, therefore, null and void, if they he in the category of persons declared to he usurpers in the first section of act No. 41 of 1873, and there is no doubt that they are in said category. • .
    They do not hold office by virtue of any title. They never were declared elected by the Board of Returning Officers at the general election of November, 1872, neither have they been legally commissioned.
    The documents called commissions, which they hold, purporting to have been issued on tlie fourth of December, 1872, are absolute nullities, having been issued in violation of law.
    No one claiming an office by election in November, 1872, could have been commissioned except by acting Governor Pinchback or by Governor Kellogg, inasmuch as Governor Warmofch was suspended by being impeached by the House of Representatives before the promulgation of the returns of the election by the Returning Board, and his trial was discontinued in consequence only of the expiration of his term of office.
    No one shall exercise the functions of an elective office by virtue of an election unless he has been declared elected according to existing laws; and in oases where the law requires the officers to be commissioned, until such commission shall have been issued. Neither of ‘ these prerequisites was observed in this- case.

      • The acts of Morrison and Pickens in assuming to act as the sheriff and clerk of Caddo after the promulgation of the law aforesaid, ware in flagrant violation and contravention of its statutory provisions. Such acts are crimes, and consequently can have no legal effect. • Those who themselves have violated the law by recognizing such protended officers, must suffer the consequences of their disobedience.
    The act Fo. 41 of 1873 does not divost vested rights. The pretended commissions of Morrison and Pickens were mere nullities..
    jt is not retroactive; it is not ex post facto in its operations; because it professedly provides only for the future. It can not, therefore, he ex post facto.

    It does not encroach upon the powers and duties of the judiciary. It declares certain acts, which were in themselves WTong and in violation of law and civil order before the passage of the statute, to he crimes if done after the passage of tlie law. There is no question ' that the subject is one over which the Legislature has jurisdiction.
    It is not material to decide whether or not the act Fo. 41 of 1873 conflicted with the intrusion office act, and took from the courts cases that were pending under it, for the General Assembly has complete power over the subject of contests for office. It determines the mode by which these questions may be decided, and the courts have no jurisdiction over fcheic discretion.
    To maintain, as was strenuously urged in the case, that because Morrison and Pickens have ¿aot been prosecuted and convicted of their crimes, this court can not decide on the
    s validity ol‘ their acts, is an absurdity.
    It is not necessary to convict a thief of larceny in order to enable the court to decide that the title given by him of the stolen property was an absolute nullity, oven in a suit to which the thief is not a party.
    The pretended official acts of Morrison and Pickens are nullities, and therefore the bond which is the basis of this suit, as well as the proceedings had in the case while Morrison and Pickens were pretending to act as clerk and sheriff, are null and void.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Looney, J.

      W. N. Wise, District Attorney, for plaintiff and appellee. Nutt <& Leonard, J. M. Lauton, for defendant and appellant.
   Ludbling-, C. J.

Zack. McFarland was indicted tor murder at the term of the Tenth District Court, in Caddo parish, held in January, 1873. He was admitted to bail by the presiding judge. Upon the failure of McFarland to appear according to the terms of his bond, judgment was rendeied against him and his b ndsmen. The sureties filed a motion to set aside the judgment nisi. It alleges that there is no indictment against McFarland to which he can be legally compelled to answer; that no legal warrant issued against him; that he waR not arrested, and that the bond was not taken by any one legally authorized to take the same, and is, therefore, null and void; that the indictment was not found by a legal grand jury, and that even though the indictment be held to be valid (which is denied), still said McFarland can not be compelled to appear before this court at the present term, because the law prohibits him and all others, especially officers oí the State, from recognizing in any manner usurpers in office, and because the offices of Clerk of said court and Sheriff of said parish are now usurped by S. M. Morrison and J. W. Pickens, pretending to act without authority of an election declared by the Keturning Board constituted by law, and without commissions from the Governor of the State.

It .further alleges that said “Morrison and Pickens have openly adhered to, recognized, sr.-d .attempted to maintain the usurping gov-eminent known as the McEnery Government; that they are usurpers, illegally assuming or pretending to be public officers, without any. shadow or color of right, in defiance of law; and that all their acts, as such, being subversive of the government and in contravention of prohibitory laws, are absolutely null and void.” The motion further represents that the Returning Board, constituted by law, has legally declared U. B. Holloway, Clerk, and A. Flournoy, Sheriff, of Caddo parish; that the Governor of the State commissioned them as such-officers, and that they were duly qualified to act,- long anterior to the date on which said indictment was filed, and that they were the only persons entitled in any manner to discharge the functions of their respective offices. It alleges that the Judge had no right to order Pickens to take the bond, and the said Pickens was without authority to take the bond, being forbidden by law from doing so, and that the bond is utterly null and void. It is further alleged that no judgment could have been rendered on said bond, or any other action taken thereon at that term of the court, because the offices of Clerk and Sherifi were violently usurped, and the lawful Clerk and Sheriff were prevented from discharging the duties of their offices by said Morrison and Pickens.

The motion was overruled, judgment was sigued, and the sureties have appealed.

It is evident that, if the allegations made in the motion be true, the motion should have been maintained, as there can be no judicial proceedings in the District Court without a clerk and sheriff; and the allegations substantially amount to this, that, practically, the District Court of Caddo parish had neither of those officers acting when the proceedings in this case were had.

It is necessary, therefore, to decide whether or not S. M. Morrison and J. W. Pickens were, respectively, Clerk and Sheriff of Caddo parish during the time when the aforesaid proceedings occurred.

It appears that U. B. Holloway and A. Flournoy, Jr., were respectively declared elected to the offices of Clerk and Sheriff of Caddo parish by the Board of Returning Officers, and that they were duly commissioned as such, on tho twenty-sixth day of December, 1872, by Acting Governor Pinchback. It is admitted that they qualified according to law.

It appears also that S. M. Morrison received what purports to be a commission, signed by Governor Warmoth, bearing the date of fourth December, 1872, although it was not received until twenty-third December, 1872. It is admitted he took the oath ol office and gave bond. The same statement of facts is applicable to J. W. Pickens.

It appears that said Morrison and Pickens obtained possession of the buildings and records of the offices of clerk and sheriff, and that Iloh loway and Flournoy have been asserting their rights to their offices since the date of their commissions.

S. M. Morrison was examined asa witness in this case. He says that he has heretofore recognized the McEnery government of the State of Louisiana, and continues so to do. My commission from Governor Warmoth as clerk was received on twenty-third December, 1872, and 1 qualified under it the same day.” His bond is not in this record, although it was offered in evidence. But it is in another record before this court. It is executed in favor of the Governor of the State of Louisiana,” without designating who is Governor of the State.

It is admitted that J. W. Pickens would make the same statements as those made by Morrison in his testimony.

It is manifest from the foregoing statement of facts that S. M. Morrison and J. W. Pickens are pretending to hold their offices, and to exercise the functions thereof, under what they call “the McEnery government,” in opposition to the authority of the United States, and the laws and decisions of the courts of this State.

It would seem to be absurd to require an argument to show that parties oocupying such positions can not be regarded as defacto officers of the government, whose authority they contemn.

The Supreme Court of the United States held the following language in the case of Luther v. Borden : “ If it should be decided that the charter government had no legal existence during the period of time above mentioned — it it had been annulled by the adoption of the opposii g government — then the laws passed by its Legislature during that time were nullities, its taxes wrongfully collected, and the judgments and sentences of its courts in civil and criminal cases null and void, and the officers who carried their decisions into operation answerable as trespassers, if not, in some cases, as criminals.” 7 How. 39.

It has, however, been strenuously contended that because the said Morrison and Pickens were in possession of the offices, in the manner already stated, they were de facto officers, and tlieir acts can not be attacked collaterally, and their right to said offices can not be inquired into in this collateral way; and many authorities have been cited to sho\V that the acts of a de facto officer can not be questioned in a collateral manner. A question which, at this late day, it is unnecessary to refer to authorities to support. But that argument is a complete petitio prineipii. It assumes for granted the very question at issue, to wit: were those persons de facto officers? The quotation from the opinion of the Supreme Court, above made, negatives that position— so does common sense. There can not be, at the same time and in the same State, two valid State governments, wijk two sets of officers. That Flournoy, who was declared elected by the Returning Board, and who was commissioned by Acting Governor Pinchback, and who qualified according to law, was Sheriff of Caddo parish at the date when McFarland was pretended to be arrested, the fourteenth of March, 1873, will not be disputed by any unbiased lawyer. An arrest by Flournoy, on that day, would unquestionably have been legal. If Pickens also was Sheriff, there were then two Sheriffs of Caddo. The proposition is absurd.

It is notorious that in the winter and spring of 1873, in certain localities of this State, the adherents of Colonel McEnery were in a position to obstruct the administration of justice by preventing those whom the Returning Board of elections had declared elected from exercising the functions of their offices, except with great danger of civil commotion. The General Assembly, then in session, passed, in the interest of public order and of the peace of society, the act No. 41. The title of the act unequivocally indicates the intention of the lawgiver — it is “an act declaring it a crime to usurp a public office, and providing the punishment for such offense; providing that if any public officer shall adhere to or recognize any usurper, his office shall be forfeited and considered abandoned, and directing and regulating legal proceedings to have such abandonment and forfeiture declared; authorizing the Governor to declare such forfeiture and abandonment in certain cases, and to remove such officers, and to fill the vacancies so made by ■appointment.”

The first section of the act declares “ that if any person shall ■assume or pretend to be an officer of the State — executive, judicial or ■legislative — without authority of an election declared by the Returning Board, or without authority of a commission from the Governor of the State, in case the laws require such officer to be commissioned, such person so illegally assuming or pretending to be a public officer •shall be deemed a usurper. If any such usurper shall attempt to ■exercise the lunctions of a prrblic officer, and shall interfere with any public officer in the discharge of his duties, such usurper so interfering •shall be deemed to be guilty of a crime, and upon conviction may be ' fined or imprisoned, at the discretion of the court, or both.” 1 The •second section declares that “ if any prrblic officer shall give adhesion to, or in any manner recognize, the authority of any person who may be usurping a publice office, within contemplation of this law, such public officer so giving adhesion to or recognizing such usurper shall be deemed to have forfeited and abandoned the public office held by him, under the constitution, the laws, and the government of the State.”

Whether the penalties denounced against officers oí the State who may recognize the authority of persons declared to be usurpers by the statutes can be enforced or not, it is not material to determine now.

It is sufficient, for the purposes of this case, to know that the law forbids persons, occupying the position aforesaid, from performing any official act; and also prohibits all officers of the State from recognizing them or giving effect to their acts.

“Whatever is done in contravention of a prohibitory law, is void,, although the nullity be not formally directed.” C. C., art. 12.

Every official act of S. M. Morrison and J. W. Pickins is, therefore,, null and void, if they be in the category of persons declared to be usurpers in the first section of act No. 41 of 1873.

They do not hold office by virtue of any title having color of authority. They claim to have been elected at the general election of November, 1872. They never were declared elected by the board of returning officers, neither have they been commissioned. The-documents called commissions, purporting to have been issued by Governor Warmoth on the fourth of December, 1872, are absolutenullities, having been issued in violation of law. This we had occasion to decide in the case of Collin v. Knoblock, and in other cases-decided at the last term of this Court, at New Orleans.

We will notice, judicially, that no one claiming an office by election in November, 1872, could have been commissioned, except by acting-Governor Pinehback or by Governor Kellogg, inasmuch as Governor Warmoth was suspended by being impeached by the House of Representatives before the promulgation of the returns of the election by the Returning Board, and that his trial was discontinued in consequence-of the expiration of his term of office.

These facts form a part of the history of this State. It was impossible, therefore, for him to have issued commissions while he was suspended from discharging the duties of his office.

But it is hardly necessary to consider the commissions, even if they can be regarded as commissions, inasmuch as the law No. 41 declares-that no one, by virtue of an election, shall exercise the functions of fhe office until “ declared elected by the Returning Board constituted by law. The obvious meaning of the words “if any person shall assume or pretend to be an officer of the State, executive, judicial or legislative, without authority of an election declared by the Returning-Board constituted by law, or without authority of a commission from the Governor of the State, in case the law requires such officer to be-commissioned;” is, that no one shall exercise the iunctions of an elective office, by virtue of an election, unless he has been declared elected according to existing laws; and in cases where the law requires the officer to be commissioned, until such commission shall have been issued.

In the case of Morrison and Pickens it was necessary that they should have been declared elected by the Returning Board and commissioned according to law.

Neither of those prerequisites was done in the case of Morrison and Pickens; and their acts, in assuming to act as the sheriff and clerk of Caddo parish after the promulgation of the law, are in flagrant violation and contravention of statute No. 41. Such acts are crimes under the provisions of the statute, and consequently can have no legal effect; and those who themselves have violated the law by recognizing such pretended officers, must suffer the consequences of their disobedience.

Is the law constitutional? The objections urged against the law in argument were that it divested vested rights; that it is retroactive and ex post facto in its operations, and that it encroaches upon the powers and duties of the judiciary.

There is no force in the objections urged.

No one has, or ever had, a right to take possession of an office, except in the manner and under the conditions stipulated by law. Not having been declared elected by the officers whose province it was, under the law, to determine that question, and never having been commissioned according to law, Morrison and Pickens were usurpers before the passage of act No. 41. They had neither a vested right to the offices, nor any other irind of right thereto, as it does not appear that they contested the election; and they had no title under which they could nave contested for the office under the intrusion into office act — their pretended commissions being mere nullities. Bonner u. Lynch, 25 An.

The law is not retroactive — it professedly provides only for the future. It can not, therefore, be ex post facto.

Neither does the statute trench upon the jurisdiction of the judiciary. It declares certain acts, which were in themselves wrong and in violation of law and civil order before the passage of the statute, to be crimes if done after the passage of the law.

That the subject was one over which the Legislature had jurisdiction can not be questioned seriously. It was to punish those who were conspiring against the Government by preventing the installation of its officers duly declared to be elected and commissioned. Any government which would fail to do that would be pusillanimous and unworthy the respect of a free poople. If the effect of the passage of the statute be to drive those usurpers from the offices which they unlawfully retained from the legal officers, the law will have accomplished its object without any violation of right or of the constitution. It was urged, also, that this law conflicted with the intrusion into-office act, and took from the courts cases that were pending under it. It is not material to decide whether it did so or not, for the General Assembly has complete power over the subject of contests for office. It determines the mode by which those questions may be decided, and the courts have uo jurisdiction over their discretion. Bonner v. Lynch, Cooley’s Const. Lim. 174.

It was also strenuously argued that until Morrison and Pickens had been prosecuted and convicted of their crimes, the courts could not •collaterally decide that they were usurpers under the statute. Thus, in this case, according to that view, the sureties on the bond upon which judgment is asked can not allege and show that there exists no obligation against them, inasmuch as the indictment, the warrant, the arrest, ■and the bond given in the case of The State v. McFarland, were absolute nullities and without effect, in consequence of the fact that Morrison, who pretended to act as clerk of the court in which said proceedings were had, and Pickens, who pretended to act as sheriff in said proceedings, were usurpers, and were acting in defiance of act No. 41, because Morrison and Pickens have not been convicted of their crimes; that is, that we can not decide the very matter at issue, to wit: Are ■the acts of Morrison and Pickens nullities, or are they valid? The proposition is absurd.

It is not necessary to convict a thief of laveeny in order to enable dhe court to decide that the title given by him of the stolen property was •an absolute nullity, even in a suit to which the thief is not a party.

We think the statute No. 41 of the General Assembly of 1873 is, so far as applicable to this case, valid and obligatory upon all citizens. The pretended official acts of S. M. Morrison and ,1. W. Pickens are nullities, and therefore the bond, which is the basis of this suit, as well ■as all the proceedings had in the case while Morrison and Pickens ■were pretending to act as clerk and sheriff, are null and void.

It is therefore ordered and adjudged that the judgment and proceedings in this case be declared null and void, and that the proceedings ■be dismissed.


author: Taliaferro,

text:
    No. 408.
    Duncan Kennedy, Jr., et als. v. Robert C. Rust et als.
    A having made a surrender in bankruptcy and become a discharged bankrupt, whose property was sold by his assignee, a suit could not bo instituted against him on certain mortgage notes reposing on said property; he was no longer a party in interest, and could not bo represented in the case by the curator ad hoc appointed lor that purpose and upon whom citation was served. Such proceedings were more nullities. There was then no citation, and prescription took effect against the notes upon which the judgment was predicated.
    The plea of prescription filed in this court by defendant against plaintiffs, who allege the nullity of the judgment he relies upon, is not well taken. The plaintiffs, in pursuit of their rights, finding themselves opposed by what purports to bo a superior mortgage to theirs, have the right to attack it and show its nullity.
    APPEAL from the Fourteenth Judicial District Court, parish of Ouachita. Bay, J.

      Morrison <& Farmer, tor plaintiffs and appellees. Frank. P. Stubbs, for defendant and appellant.
   Taliaferro,

J. Three several creditors having judicial mortgages, join together to enforce their several mortgages against a tract of land and plantation in the parish of Ouachita, owned by the defendant, Robert C. Rust, and in his possession. The property thus proceeded against by the hypothecary action was formerly owned by Albert Rust, who died in April, 1872, in the State of Arkansas, his proper residence, ¡and who never resided or had a domicile in Louisiana. Albert Rust, in 1868, became a bankrupt in the United States District Court for the Eastern District of Arkansas. Hi's property, among which was his tract of land and plantation in Ouachita, which these plaintiffs are proceeding against, was sold by his assignee in bankruptcy, subject to the mortgages and incumbrances upon it. The Ouachita land was purchased by one Charles B. Moore, who subsequently sold it to the present defendant, Robert C. Rust.

In April, 1861, Albert Rust, residing in Arkansas, being indebted to James Brander, of New Orleans, in the sum of $12,099, executed four several notes in favor of Brander, making in the aggregate the said sum of $12,099, each of the notes bearing interest from its maturity, two of them maturing first of February, 1862, and the other two on the first of February, 1863. To secure the payment of these notes, Rust executed a mortgage, before a notary in New Orleans, on the Ouachita plantation. This mortgage contains the pact de non alienando, expressly stipulating that “ the mortgageor consents and agrees that any and all legal proceedings for the recovery of the amount of said notes, or any part thereof, and for the foreclosure of this mortgage, may be instituted and carried to final judgment and execution in any of the district courts of New Orleans, renouncing the benefit of any and all laws providing that defendants can only be sued or proceeded against before the judge of the parish or district wherein they reside or have their domicile.”

In November, 1869, W. A. Johnson, of New Orleans, having become owner of the unpaid notes of Rust to Brander, and also of the mortgage securing them, brought suit in the Seventh District Court of New Orleans to enforce the mortgage, although Rust had made a surrender in bankruptcy and received his discharge. Treating Rust as an absentee, and as still in possession of the property, he caused M. A. Foute, an attorney at law, to be appointed curator ad hoe, and had the citation and a copy of the petition served upon him in that capacity. A judgment was rendered in favor of the holder of the notes recognizing the debt and mortgage, and making the same executory. This judgment was rendered on second of January, 1870. Execution was issued directed to the sheriff of Ouachita, and the mortgaged property was seized in Mareh, 1870, and advertised for sale, but the sale was injoined by Robert C. Rust, administrator of A. Rust. In May follow■ing, John M. Sandidge became subrogated to the rights of Johnson by notarial act. Sandidge may be regarded as the real defendant in this case.

The three creditors of Albert Eust, who are proceeding, as we have seen, by hypothecary action against the property in question, alleging; that the sum claimed, by virtue of this mortgage claim of Sandidge, exceeds the value of the property, and, if enforced, would deprive' them of receiving any portion of the proceeds of the property mortgaged, combine with their hypothecary action a prayer that the judgment of the Seventh District Court of New Orleans be annulled, and the mortgage of Sandidge canceled. They allege:

First — That the Seventh District Court of New Orleans, which' rendered the judgment, was without jurisdiction either of the person or mortgaged property.

Second — That neither the property mortgaged nor the mortgageor were properly represented by the appointment and service of M. AFoufe as curator ad hoe.

Third — That the notes which formed the basis of the judgment of Johnson and Sandidge were prescribed at the inception of the suit.

Fourth — That Albert Eust at the time of the waiver of prescription on the notes, was insolvent and therefore incapacitated from making any acknowledgment or waiver to the prejudice of other creditors.

The judgment of the lower court recognized the three several judicial mortgages, and ordered the property mortgaged to be sold and the proceeds applied to the payment of these mortgages respectively. The judgment further decreed that the special mortgage of Eust to Brander, to whose title Sandidge is subrogated, be canceled from the mortgage records of the parish of Ouachita, so far as it affects the said judicial mortgages. From this judgment the defendant, Sandidge, has appealed.

We think the plea of prescription must be fatal to the defendant’s claim in this case. At the time of the institution of the suit by Johnson, in the Seventh District Court of New Orleans, against Albert Eust, the latter was a discharged bankrupt. He had made a surrender-in bankruptcy, the property in controversy had been sold by the assignee. Eust was no longer a party in interest. He could not be represented in this case by the curator ad hoc appointed for that purpose, and upon whom the citation was served. The appointment of a curator ad hoe and the citation served upon him were simply nullities. There was then no citation, and prescription took effect against the notes upon which the judgment is predicated.

The contested question as to the waiver of prescription it becomes unnecessary to consider. If prescription had not accrued at the time-the waiver was made it became complete from and after that time.

The plea of prescription filed in this court by defendant against plaintiffs’ action is not well taken. The plaintiffs, in pursuit of their rights, find themselves opposed b> what purports to be a superior mortgage right to theirs, had the right to attack it and show its nullity.

It is therefore ordered that the judgment of the District. Court be affirmed with costs.


text:
    No. 404.
    David Pipes, Sr., v. Woodruff Norsworthy. B. H. Norsworthy, Intervenor.
    The defendant in this suit has no interest in disputing the ownership of the judicial mortgage obtained against Parks, which is sought to be enforced by plaintiff on land which defendant holds under said Parks. If it should be discharged by him, the discharge would protect him against Morgan & Todd, the alleged transferees, who, byappear.ng as counsel for plaintiff and signing the petition alleging his ownership of the judgment, would be estopped from disputing his title; or if defendant’s land should be subjected to the mortgage resulting from said judgment, no controversy could arise hereafter in relation to it at the suit of Morgan & Todd, the alleged transierrees.
    Besides, if, as alleged by defendant, the pretended transfer of the judgment was a nullity, because it was the sale of a litigious right, the title of it remains in the plaintiff, and of course he has the right to its enforcement.
    As to the plea of prescription, this defense was unsuccessfully made by Parks, the judgment debtor, and as the judgment was rendered before defendant bought the land from Parks and before his adverse interest accrued, he was not in any manner injured by it The judgment becoming final for Parks, is also conclusive against defendant.
    It is those creditors, whose claims exist at the time an improper judgment is rendered, that have cause to complain, because they only are injured by it. The third possessor of mortgaged property certainly occupies no better position than a creditor.
    The allegation that Parks never owned the land in question, and therefore that the mortgage never took effect upon it, works fatally against the defendant, who raised this objection. If Parks, the author of defendant’s title, never owned the land, it follows that defendant does not own it and can not be injured by this suit. Bepudiating the title or Parks, ho repudiates his own, and put-j himself out of court.
    APPEAL from the Fourteenth Judicial District Court, parish of Morehouse. Bay, J.

      JD. O. Morgan, Todd & Brigham, for plaintiff and. appellant. Newton & Hall, O. F. Bunn and B. Q. Gobi), ior defendant and appellee.
   Wyly, J.

In July, 1866, the plaintiff, David Pipes, obtained judgment ior $7810 20 against William A. Parks, who took an appeal to this court, and who went into bankruptcy peuding that appeal. Brigham & Morgan bought the judgment of the plaintiff pending the appeal, which was afterwards dismissed by consent of parties, E. E. Norton, the assignee, acting therein in behalf of Parks.

This judgment had been duly recorded before Parks became a bankrupt, and of course, it became a judicial mortgage on his property.

William A. Parks was the administrator of the succession of his father, Levi Parks, and was also a beneficiary heir. At probate sale he purchased the plantation which belonged to his father’s succession. He subsequently sold one undivided third of said plantation to the-defendant, Woodruff Norsworthy, and the other two-thirds to Brigham and Gale. Norsworthy afterwards acquired Gale’s part of the land, making him the owner of two-thirds of the plantation. Brigham went into bankruptcy and surrendered his third interest in the plantation. The plaintiff now brings this hypothecary action to' subject the two-thirds of the plantation owned by the defendant to-his judicial mortgage which was attached to the plantation when it was owned by William A. Parks, the author of defendant’s title.

Tile issues presented by the pleadings are as follow :

First — That Pipes was not the owner of the judgment or mortgage sought to be enforced, and the suit could not be instituted in his name.

Second — -That one-half of the debt on which the judgment was based was extinguished by prescription.

Third — That the judgment had been sold to Morgan & Brigham, attorneys at law, pending the appeal, and it was the sale of a litigious right, and therefore null.

Fourth — That William A. Parks was never the owner of the land in: question, consequently the judicial mortgage ne'ver took effect on the land.

Fifth — That one-third of the mortgage was extinguished by confusion, by virtue of Brigham having been one-third owner of the plantation, and at the same time one-half owner of the judgment or judicial mortgage.

It appears that Brigham’s interest in the judgment sought to be enforced was transferred to R.- B. Todd, an attorney at law. And it appears that this hypothecary action was brought in the name of the plaintiff, the original owner of the debt, and the plaintiff in the suit which[resulted in the judgment now sought to be enforced on the land of the defendant. Notwithstanding the transfer of the judgment, Morgan & Todd, by appearing as counsel for the plaintiff, and signing the petition alleging his ownership of the judgment, would be estopped from disputing his title; and it is proved that the plaintiff authorized this suit to be brought. What interest has the defendant in disputing the ownership of the judgment? If it should be discharged by him, the discharge would protect him against Morgan- & Todd, the alleged tranferrees, or if the land should now be subjected to that mortgage, no controversy could arise hereafter in relation to it at the suit of Morgan & Todd. It is not pretended that the alleged transfer of the judgment in any manner prevents the defendant from making such defenses as he could make without it.

Besides assuming his third ground of defense to be true (and he certainly can not object to this assumption), the pretended transfer of the judgment was a nullity, because it was the sale of a litigious-right. Therefore, if the truth of the third ground be conceded, which is that the transfer of the judgment was a nullity, there is not the least difficulty in disposing of the first ground, because, as the transfer to Morgan & Todd was a nullity, the title of the judgment remains in the plaintiff, and, of course, he has the right to enforce his own judgment.

As to the objection that one-half of the debt on which the judgment was based was extinguished by prescription, we will remark that that defense was unsuccessfully made by Parks, the judgment debtor, and, of course, the judgment became final and conclusive against him. As this judgment was rendered before the defendant bought the land' from Parks, and before his adverse interest accrued, he was not defrauded or in any manner injured by it, even though it were without consideration and prescribed. It is creditors whose claims exist at the time an improper judgment is rendered that have cause to complain, because they only are injured by it. The defendant, the third possessor of mortgaged property, certainly occupies no better position than a creditor. Besides, the judgment can not be attacked collaterally. As to the objection that William A. Parks never owned the land in question, and therefore the mortgage never took effect upon it, we will remark that setting up title under Parks, the defendant isestopped from disputing with the plaintiff on this point. If Parks, the author of his title, never owned this laud, the defendant does not own it and can not be injured by this suit; he has no cause to complain, because, when he repudiates Parks’ title, he repudiates his own.. This argument puts him out of court, because deriving possession and title from Parks, when he repudiates or disclaims these he has no further interest in the contest. Disowning Parks’ possession and. Parks’ title, which alone give him an interest in this case, the defendant has no more right to contest with the plaintiff about the land in question than any other citizen of the parish of Morehouse.

As to the fifth ground, to wit: that one-third of the mortgage was-extinguished by confusion, because Brigham owned one-third of the plantation, and at the same time owned one-half the 'j'ndgment, we-will remark there is no force in it. Brigham owned half of the judgment, it is true, but he never occupied for a moment the position both of creditor and debtor for any part of said judgment. It is true, he owned one-third of the plantation in controversy, which he surrendered in bankruptcy, and which is not embraced in this litigation.

As to that share of the land, of course, there was confusion as to one-half the amount of the mortgage. That is, the judgment was, in no manner, reduced, but its effect as a mortgage ceased to the extent of one-half on that part of the land purchased by Brigham. No part of the judgment was paid. If Brigham had bought the whole tract,. instead of one-third, of course it would have been relieved of the mortgage by confusion; but this would not release the judgment as a mortgage to its full amount on any other lands owned by Parks at the time of the registry of said judgment.

As to the plea of discusssion, no money was tendered by the defendant to carry it on; besides, Parks had gone in bankruptcy, and the property being in the jurisdiction of the bankrupt court, could not be discussed by process of the court a qua.

It is therefore ordered that the judgment herein in favor of the defendant be annulled ; and it is now ordered that there be judgment for the plaintiff recognizing Ms judicial mortgage herein on the land in controversy, and ordering it to be sold according to law to pay the judgment, interest and costs set up by the plaintiff herein ; and it is further ordered that the plaintiff recover judgment against the defend.ant for costs of this proceeding in both courts.

Rehearing refused.