text:
    No. 1271.
    Howard Hoffpauir, President of and Representing the Police Jury of Vermilion Parish vs. Solomon Wise.
    The Supreme Court will notice ex proprio motu radical defects of pleadings in consequence; of which no final judgment could be rendered in the premises.
    Police juries like all other corporations created under the laws of Louisiana are artificia beings or persons who can act only in the mode prescribed by the law creating them. The president cannot stand in judgment for tbe police jury, without special authorization. Affirming Police Jury of Ouachita vs. Mayor and Council of Monroe, 38 Ann.
    APPEAL from the Third Ward Justice’s Court, Parish of Vermilion. Labauve, J.

      W. W. JEdwards for Plaintiff and Appellant :

      1. The title to Act No. 84 of the Acts of 1878, is sufficient to sustain all the provisions of the act, either under the Constitution of 1868 or 1879. State vs. Bott, 31 Ann. 663; 37 Ann. 191; Cooley on Const Lim. pp. 144 (marg.) and 145; Blumenthal vs. Huerter, Western Rep. vol. 1, p. G34 (Sup. Ct, of 111.); Slack vs Ray, 26 Ann. 675; Police Juiy vs. Colomb, 20 Ann. 198; New Orleans vs. R R. Co., 27 Ann. 415; State vs. Henry, 15 Ann. 297; Art. 86. Const. 1879; State vs. Natal, No. 9582, 38 Ann. —, (not yet reported. (
    2. If a portion of said Act No. 84 is unconstitutional and void, enough remains which is valid, and must be held good. See Cooley on Const. Lim. pp. 178 (marg.) and 180; 14 Ann. 7; 33 Ann. 783; 35 Ann. 1141.
    3. The Court will never hold a law to he unconstitutional, unless it is clearly so. 20 Aun. 587, 198.
    4. The prohibitions of the ordinance of the police jury sued on can be enforced without the aid of the latter portion of Sec. 1, Act 84. See R. S. 1870, sec. 2743,
    5. The Legislature can delegate to municipal corporations certain legislative power to regulate police, sanitary and tax matters, such as in the present instance are conferred on police juries by said Act No. 84. Cooley on Const. Lim. pp. (marg,) 118 and 211; Dillon Munic. Oorp. sec. 308; Minden vs. Silverstein, 36 Ann. 912; 35 Ann. 1010.
    6. Act 84 of 1878, and the ordinance thereunder, are not local, nor a “ regulation of trade.” State vs. Dalon, 35 Ann. 1141; Cooley, p. 588 (marg.).
    7. The charter of Abbeville, as to section 6, was repealed by implication, clearly so Iut as the present suit is concerned, by the third section of said Act 84 of 1878. See sec. 3, Act 84, and also sec. 2, 20 Ann. 140.

      T. P. CP Bryan and li. 8. Terry for Defendant and Appellee:
    Act 84 of 1878 is unconstitutional, because the object of the provision declaring violations of ordinances of the police juries shall be treated as misdemeanors, and prosecuted on information or indictment, is not mentioned in its title. 33 Ann. 981.
    It is unconstitutional, because that clause being vital to it, and unconstitutional, the balance of the act falls with it, and because of that unconstitutionality. Sedgwick on Construction, p. 413, note (a).
    Police jury ordinances passed pursuant to Act 84 arc for that reason void.
    Police juries can oxercise no p®wer not delegated to them. Dillon’s Municipal Corporations, §§ 89,141.
    The power of regulating the sale of iotoxicating liquors is restricted to the General Assembly by Constitntion of 1879, Art. 170. An act of the Assembly delegating the power is not an act of regulation, but is an abandonment of the power to regulate to another.
    The intention of Article 170 was that the Assembly might pass a general law, and to preclude all local laws.
    There is no act of the Assembly which purports to delegate such power to the police juries, except Act 84 of 1878, and Revised Statutes 2743, which acts are unconstitutional. The section of R. S. refers to liquors solely.
    Any such acts, if in existence, are unconstitutional, because in conflict with Article 46 of the State Constitution, which restricts the power to regulate trade, whether in exercise of the police or* any other power, to the General Assembly, and excludes it from delegating tbe power.
    Local laws of the General Assembly, or of the local authorities, are unequal and unjust in their operation, and are in conflict with the laws of the land and the Constitution of the State. 33 Ann. 985.
    By special ActlOS of 1850, the police jury of Vermilion is excluded from exercising any jurisdiction within the corporate limits of the town of Abbeville, and its ordinances are ineffective there. The act has not been repealed.
    All ordinances of police .juries not authorized by a legal delegation of power, are illegal and • . null.
   The opinion of the Court was delivered by

Poché, J.

Plaintiff, claiming to represent the police jury of Vermilion parish, brought this suit for the enforcement of an ordinance of the police jury prohibiting the sale of goods and merchandise on Sundays within the limits of that parish; and he prosecutes this appeal from a judgment declaring the ordinance sued upon to be null and void, and rejecting Ms demand.

The record discloses a fatal error in the pleadings which we are compelled to notice ex proprio motu.

In his petition plaintiff alleges that he herein sues “in the name of the police jury of Vermilion parish, for the use and benefit of the parish of Vermilion,” but he nowhere alleges that he was specially authorized to stand in judgment for the police jury, and naturally he made no attempt to introduce any proof of such authority.

The ordinance sought to be enforced is in the record and contains the following significant clause:

‘.‘JResolmed, further, That it shall be the duty of the district attorney to institute and prosecute suits'for the recovery of all fines that may be incurred by parties violating the provisions of this ordinance, and to turn over to’ the parish treasurer the balance of all fines collected thereunder, after deducting fifteen dollars as a compensation for his services in each case.”

Tt thus appears that, far from conferring on the president the authority to represent the parish in such suits, the police jury expressly, and in terms not to be mistaken, delegated that power to another and entirely distinct officer, who is entrusted with the additional power t.o receive all amounts which he may recover by suit, and to turn over the balance, after deduction of his compensation, to the treasurer.

It therefore follows that the receipt of no other officer would be satisfactory in law, and that no other officer could institute or prosecute such a suit in his own name for the use of the parish.

In the recent case of the Police Jury of the Parish of Ouachita vs. Mayor and City Council of Monroe, 38 Ann.—, (not yet reported,) we had occasion to consider a similar question, and we held in that case that, although the president had alleged a special authority from the corporation for the institution of the suit, his action could not be maintained in default of proof of the pretended authorization.

Under the guidance of the laws governing corporations and prescribing the mode in which they must act and operate, and under the authority of numerous adjudications of this and of other courts of last resort, we therein laid down the following rule, which is decisive of the point now tinder discussion :

Police juries, like all other corporations created under the laws of Louisiana, are artificial beings or persons who .can act only in the mode prescribed by the law creating them. No officer of a police jury can legally bind, or stand in judgment for, the corporation without special authorization.”

We repéat here, as we said there, that no law of this State confers on the president of a police jury the power or authority to stand in judgment for the corporation, or to legally bind it in any contract or proceeding, in the absence of a special authorization. In this feature of their corporate powers, police juries do not differ from other municipal or private corporations. Bright vs. Metairie Cemetery Association, 33 Ann. 58.

Wo therefore conclude that the police jury of the parish of Vermilion is not a party to this suit, and that a judgment in favor of the defendant would not and could not legally bind that corporation; and that all proceedings herein are nullities, including the appeal bond which was executed by the plaintiff in his alleged representative capacity.

The legal result of these considerations is the dismissal of plaintiff’s action as in case of non-suit, and the judgment appealed from must therefore be .am ended so as to conform to those views.

It is therefore ordered that the judgment of the court a qua be amended in so far as it absolutely rejects plaintiff’s demand; that said demand be rejected and the action dismissed as in case of non-suit, at the costs of plaintiff in the lower court, and at defendant’s costs on appeal.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 1276.
    Felix Mestayer vs. Sinson Corrigé.
    1. An ordinance of a municipal corporation, authorizing the exaction of certain rates, fees, charges and tariffs from each and every person selling articles within its corporate limits. but without the market-house or market-place; or person keeping a butcher’s stand. within the corporate limits, hut without the market-place, or market-house, for the purpose of raising revenue, is one exacting a “ tax” or “license ” for revenue, and same cannot he enforced as contributions sought to he raised by the exercise of the police power delegated to it.
    2. The taxing power of a municipality is its only power for obtaining revenue, by exactions levied on its citizens, and that power is limited to the ad valorem, or property tax, and the license tax; and any statute or munieipal ordinance authorizing a levy beyond the constitutional limitation is null and void.

      A PPEAL from the Twenty-first District Court, Parish of Iberia. xPL Gates, J.

      JR. 8. Perry for Plaintiff and Appellant:
    A charge or fee on sale of marketable commodities imposed by a municipal corporrtion for purposes of revenue, are not legal. If imposed under the police power, for police purposes, they are legal.
    The police power of the State, as to exclusively local matters and subject to the restrictions of constitutional limitations, may be delegated by the General Assembly to the local authorities.
    The markets are peculiarly an object for police regulation.
    Article 19 of the charter of New Iberia, adopted in 1886, pursuant to Act 110 of 1880, confers plenary power of supervision aud control of markets on the board of trustees.
    The right to collect a daily fee for each stall is maintainable. 34 Ann. 1051, et seq.

    The town ordinance of 10th August, 1885, expressly imposes a charge of twenty-five cents on each stall in the corporation market-house.
    Article 19 of the charter authorizes the board to permit outside stalls and stands, only on condition they shall pay same charges as are paid by stalls in the corporation market-house.
    By establishing a stall outside the corporation market, Courrégé has accepted t-liat condition and has agreed, tacitly, at any rate, to pay the charges legally imposed on stalls in that market. The case of Blaser, 36 Ann. 363, is not applicable.
    The collection of fees legally imposed by the board may he imposed by forfeitures and fines, which may he collected by ordinary suit, as is provided by ordinance of 10th August, 1885. 34 Ann. 1051.
    Article 19 of the charter conferred such authority on the board, 34 Ann. 1051; 30 Aun. 1003; 32 Ann. 1278; Dillon on Corporations, 3d edition, §§ 432, 433, et seq.

      T. 2). Foster and J®. Simon for Defendant and Appellee:
    1. Political corporations have no inherent power to levy a tax. They must derive this power by grant from the Legislature, and it must be expressly conferred. See Cooley on Taxation, pp, 208, 396, 408; Cooley on Const. Limitation, pp. 191, 201; 33 Aud. 833 ; Dillon on Corporations, vol. 2, secs. 605, 606; Ibid, vol, 1, p. 396.
    2. The right to make all needful regulations under the police power, give no right to tax for revenue. Dillon on Corporations, vol. 2, pp. 709, 710, sec. 609; 34 Ann. 1050.
    3. License laws are of two kinds. First, those for raising a revenue; second, those for police regulation. The first include the exercise of the power of taxation, and, in this State, those of every profession, trade or calling subject to pay a tax are graduated and governed by special laws, according to gross receipts. The second, viz: police powei, cannot exceed the costs of issuing the license and the costs of regulating the business. Cooley on Const. Law, p. 586; 31 Ann. 829; Acts of General Assembly, 1881.
    4. Political corporations cannot impose a greater license tax than is imposed for State purposes. Constitution 1879, art. 206; 34 Ann. 840.
    Nor can they impose a greater tax on property than the maximum limit allowed by the Constitution of the State. See Article 209 of State Constitution; 34 Ann. 840; 36 Ann. 363. .
    5. The police power cannot be used for the purpose of raising revenue. See Dillon on Municipal Corporations, 3d ed., §768; 34 Ann. 750,1052.
    6. To bring a charge, tariff or tax when levied within the scope of a police regulation, it must be shown that the amount thus levied is used exclusively for that purpose. 34 Ann. 1052; 36 Ann. 363.

      Tlie failure to do this establishes the charge, etc., to be a license tax for revenue, and if in excess of the license tax of the State it is unconstitutional and cannot be collected. In this case it is far in excess. See Ordinance of Board of Trustees, p. —; State Constitution, arts. 203, 206, 209; 34 Ann. 840; 36 Ann. 363.
    7. An exaction and charge of a specified and fixed amount in money for the daily privilege of pursuing a business useful and necessary to the community and in no shape dangerous or vicious, is to be taken as one made and levied for revenue and not a police regulation. 34 Ann. 750, 1050 j 36 Ann. 363-
    The amount charged and levied in the ordinance being so extortionate and exorbitant, is itself evidence of tbe purpose to raise a revenue, to say nothing of the facts which disclose beyond question the purpose to be to raise a revenue, and divests it of all semblance of police power. 31 Ann. 828; Dillon on Mun. Corp. sec. 361, note § 386.
    8. Such exorbitant and extortionate daily charges of specified amounts for every slaughtered animal is a license or tax, and is intended to raise a revenue, and in either instance is unconstitutional. 34 Ann, 1050; 36 Ann. 363.
    9. The police power of the town of New Iberia cannot be exercised beyond that granted by tbe Legislature in its charter. What the town pretends to do as a police regulation must have been clearly granted by the charter. 36 Ann. 363; 29 Ann. 21, 261; 32 Ann. 923, 1293; 34 Ann. 750, 1051; Cooley on Const. Limitation, 191, 387; Dillon on Mun, Corp., 3rd ed., 141; Cooley on Taxation, 408.
    10. When the power to exact money for police regulation is granted, it is more narrowly construed than that for revenue; and in all cases when it is granted it has always been restricted to a reasonable fee for issuing the “license.” The power to make police regulations for the government of markets, etc., does not carry with it and include the power to exact money and license fees. See Cooley on Taxation, 408; Dillon on Mun. Corp. 3d ed., §§ 361, 357 (2d ed., § 291); § 768 (2d ed., 609); 538, note 1; 350, note 361; 34 Ann. 1050.
    11. Political corporations have no right to enforce obedience to its ordinances unless that power has been expressly granted by tbe General Assembly, and no right to collect its revenues, whether taxes or license taxes, legal or illegal, by fine or imprisonment, unless that right is granted in its charter by the General Assembly. 6 Ann. 515; 34 Ann. 751; 37 Ann. —.
    12. In determining the constitutionality of a town ordinance, the active effect of it must be considered, rather than the mere reading. The evidence establishes its active effect, and in the instant case shows beyond doubt that its object is to raise a revenue and is unconstitutional; because, if a tax on property icis in excess of the maximum limit; if a license tax, it is in excess of that levied by the State of Louisiana, and hence unconstitutional. See Constitution of the State of Louisiana 1879, arts. 209, 206; Acts of General Assembly 1881 (extra session), No. 4; 36 Ann. 363.
    13. The case of the State of Louisiana vs. Louis Blaser, reported in 36 Ann. 363, identical with this case both in the law and facts.
    14. A charge of a specified amount for the privilege of keeping a market is a license or tax. 34 Ann. 1050,
   The opinion of the Court was delivered by

Watkins, J.

Defendant resists an ordinance of the town of Now Iberia, exacting certain rates, fees, charges and tariffs daily from each person selling the articles mentioned or keeping butcher or market stands, anywhere within the corporate Limits of that town, and whether within or without the market; and conferring the right to collect same as a franchise of the market-house upon the lessee of the same, who is given the right to bring’ suit before the mayor of the town or any jrrstice of the peace having jurisdiction for the collection of said daily rates and charges, and for the enforcement of the penalty of five dollars against such person as shall forfeit to the corporation or to the lessee of the corporation market-house “for each and every refusal to pay said rates, fees, tariffs and charges herein established when due,” etc.

These rates and charges are the following, viz:

1. From each and every butcher’s stand situated within the Main Market, and also from each and every butcher’s stand outside of said Main Market and within the corporate limits of said town.......................................$0 25

2. For each slaughtered beef................................ 00

3. For each slaughtered calf, provided the forequarters do not weigh over fifty pounds................................... 40

4. For each slaughtered calf, provided the forequarters do not weigh over fifty pounds.................................. 50

5. For each slaughtered hog weighing over one hundred pounds................................................. 50

6. For each slaughtered sheep............................... 30

# iff i * %■ -? '¡: d

I.

The plaintiff alleges himself to be the lessee of the corporation market-house in the town of New Iberia, pursuant to an ordinance passed by the board of trustees on the 10th of August, 1885, and that ho has complied with all the terms and conditions thereof, and that he, as such lessee, is entitled to collect all said charges and penalties as are either permitted or imposed by7 the corporation as rights and franchises of said market-house.

He shows that his lease began on the 1st of September, 1885, and will conclude or terminate on the 31st of August, 1886. He show's that the defendant, Simon Corrigé, “lias for several years past carried on the business of butcher within said corporate limits at a stand or market place outside of said corporation market-house, and that for the last tw7elve months he has kept his said stand on the southwest side of Main street, in the upper portion thereof, as he does” at this time, and is due him $371.80 for which he prays judgment.

Defendant denies the right of plaintiff to recover on the ground that the ordinance under which he sues as lessee “is unconstitutional, illegal and unwarranted in law, because the exactions and charges it imposes is a tax or license for revenue * * and it is violative of the Constitution and existing laws of tlie State * * * * and said pretended ordinance * * is unconstitutional and illegal, on the further ground that neither the law of the State nor the charter of the town of New Iberia gives the power and legal right to enforce the collection of its revenues by fine for violation of its ordinances, whenever it is attempted to collect a license or tax for revenue, which is the object of this illegal ordinance.”

The question propounded is whether the rates, charges and fees sought to be collected, and authorized by the statute and ordinance complained of were, in the nature of a tax or license, granted under the taxing power of the State; or constituted a contribution sought to be raised in the exercise of the police x>ower of the State, delegated by statute to the city of New Iberia.

The taxing power of the city of Now Iberia is its only power for obtaining revenue by exactions levied on its citizens, and that power is limited to the ad volorem or property tax and the license tax.

The Constitution declares that “no parish or municipal tax for all purposes whatsoever, shall exceed ten mills on the dollar of valuation, etc.” Constitution, art. 209.

It is obvious that if the statute or ordinance in question attempted or was intended to authorize a municipal tax beyond the constitutional limitation, to be either assessed or collected in the manner indicated, same would be undoubtedly unconstitutional and void. 36 Ann. 363, State vs. Louis Blaser; 34 Ann. 750, State vs. Patamia; 6 Ann. 515, Municipality No. 1 vs. Pauce.

II.

Can plaintiff’s right be recognized and enforced upon the theory that these rates and charges are contributions legally authorized by the State in the exercise of its police power ?

The Constitution provides that “the exercise of the police power of the State, shall never be abridged, etc.” Const. Art. 235.

It also provides that “the police juries of the several parishes, and the constituted authorities of all incorporated municipalities of the State, shall alone have the power of retaliating the slcmghtermg of cattle and other live stoclc within their respective limits, etc.” Const. Art. 248.

In 34 Ann. 1050, Delecambre vs. Clere, this Court had the question now before us under consideration and there held : “Whilst this section conferred authority incident to police powers to regulate private markets or the selling at private stands of meats, etc.,- and the right even to suppress the same and to impose fines and penalties to enforce its ordinances on the subject and punish their violation, it conferred no power to levy a tax, or license, or fee, tariff, or rate, as it is termed in this case, on butchers and other persons.

“There is a recognized distinction between the taxing power and the police power conferred on corporations. Licenses or taxes may be imposed on certain branches as a regulation under the exercise of the latter power, but it must plainly appear that they are imposed strictly and exclusively in aid of such power and not for the purpose of revenue. The rule is that mere police power, and the right to make needful regulations under it, gives no right to tax for revenue.”

In Dillon on Municipal Corporations, it is announced that tbo authority to establish and control markets is one of the police powers that may be exercised by municipalities. Sec. 93.

“The taxing power is to be distinguished from the police power. * * The power to license and regulate particular branches of business or matters is usually a police power; but when license, fees, or exactions are jplainly imposed for the sole or main purpose of revenue, they are in effect taxes.”

Again: “ Ordinarily the mere power to license or to subject to qiolice regulations, does not give the power to tax distinctly for revenue purposes ; but it may give the power when such appears from the nature of the subject matter and upon the whole charter or enactment, to have been the legislative intent, but not otherwise.” 2 Dillon, Municipal Corp., Sec. 609.

“ In harmony with the foregoing principles it has been held that, under the authority to license and regulate draymen, etc., a municipal corporation may, by ordinance, require a license to be first taken out, and charge a reasonable sum for issuing the same and keeping the necessary record, but cannot, by virtue of this authority, without more, levy a tax upon the occupation itself; and under the power to regulate, it may make proper police regulations as to the mode in which the employment shall be exercised.” Same, Sec. 292.

“So authority to a city to adopt rules and orders 'for the due regution of omnibuses, stages,’ etc., was held not to authorize the adoption of an ordinance requiring the payment of a tax or duty, on each carriage licensed, ranging from one to twenty dollars, according to the different kinds of carriages and stands occupied.

“This was regarded a» a direct tax upon the vehicle used or its owner, and not necessary to secure the objects of the above grant of power to the city.” Same, Sec. 293; 12 Wallace, 418, Ward vs. Maryland; 29 Ann. 261, Mayor vs. Gustave Roth; 32 Ann. 923, Board of Trustees of New Iberia vs. Migins; Cooley on Taxation, p. 387.

In Delecambre vs. Olere, this Court held that a charge of “twenty-five cents per day, termed a tariff or fee for keeping a private butcher’s stand within the corporate limits of said town,” was in that instance a license or tax imposed upon the calling or occupation of the defendant which was that of a butcher.

After a careful review of all the authorities cited and others at hand, we have reached the conclusion that all of the exactions demanded are within the terms “ tax ” and “ license,” and that same were manifestly intended by the mayor and trustees of the city of New Iberia to constitute a source of revenue under the apparent exercise of delegated police power, and that said statute and ordinance are unconstitutional, null and void to the extent of plaintiffs demands and that the judgment of the district court should be and the same is hereby affirmed.

This decree does not apply' to that part of the ordinance which authorizes the exaction of twenty-five cents “from each and every' butcher’s stand situated within the Main Market.”

Judgment affirmed.


text:
    No. 1277.
    James A. Kinder vs. David H. Lyons, Sheriff, et al.
    1. Under the amendment of Article 81 of the Constitution of 1879, this Court has appellate jurisdiction of suits involving rights to homesteads, irrespective of the value of the property alleged to be exempt.
    2. Homestead provisions of the Constitution of 1819 avail only those who register claims therefor, antecedent to contracting debts sought to be enforced against it.
    3. A judgment liquidates, but docs not cíente a debt. It recognizes existing, but confers no new or additional lights.
    4. Property exempted from seizure and sale, under the provisions of the homestead law of 1865, is predial and not urban.
    5. Laws conferring homestead rights must bo strictly construed.
    APPEAL from the Fourteenth District Court, Parish of Calcasieu. Bead, J.

      Geo. II. Wells é Son for Plaintiff and Appellee.

      G. A. Fournel for Defendaut and Appellant.
   On Motion to Dismiss Appeal.

The opinion of the Court was delivered by

Watkins, J.

Plaintiff requests us to dismiss this appeal on the ground that the amount in controversy is below the lower limit of the jurisdiction of this Court.

Plaintiff’s petition discloses his action to be one restraining the sheriff and seizing creditors from selling certain property he claims to have registered and set apart as a homestead and which he avers to be exempt from seizure, under the provisions of the act of the legislature of 1865 and Articles 219 and 220 of the Constitution of 1879 and Act 114 of 1880. I-Ie alleges that said property is worth $1,800, and that the illegal seizure thereof has caused him damage to the extent of $200 attorney’s fees and $350 general damages, the whole, exceeding $2,000 in amount.

The trial was by jury, and there was a general verdict in favor of the plaintiff, without damages, and the defendants, Marx & Kempner, plaintiffs in execution, appealed.

It is not “the amount in dispute,” but the matter in dispute, in such case, that gives this Court appellate jurisdiction. Under the amendment of Article 81 of Constitution of .1879, this Court has appellate jurisdiction of “suits involving the rights to homesteads.” Act No. 125 of 1882.

In a recent case this Court said of this amendment: “It is over such eases of homesteads alone, as are mentioned in the present, Constitution, that this Court has exclusive jurisdiction. 37 Ann. 109, State ex rel. Davidson vs. Judge.

The motion is refused.

On this Mxorits.

I.

The following is a statement of this case :

The plaintiff alleges in substance that he is the owner of a house and lot in the town of Lake Charles, occupied by himself and family; that he is the head of a family dependent upon him for support; that he has set apart and registered this house and lot as a homestead; that this property is exempt from seizure and sale under the law of 1865, Articles 219 and 220 of the Constitution of 1879, and Act No. 114 of 1880; that he registered his homestead June 15, 1882; and that the judgmfent under which the seizure was made was rendered after the registry and setting apart of said property as a homestead.

The defendants’ answer, coupled with an exception of no ca.use of action, is an express denial that plaintiff is entitled to the homestead exemption, in bar of defendant’s claim; they aver that the debts, for which the judgments sought to be executed were obtained, wero contracted previous to the adoption of the Constitution of 1879; that no rights of homestead or exemptions from seizure and sale, as against said debts, were vested in plaintiff by virtue of Articles 219 and 220 of the Constitution of 1879, or Act 114 of 1880 ; that the property seized is urban property and cannot be claimed as a homestead exemption under the Act of 1865 ; and that the plaintiff has no right of action either nnder the laws of 1865, the Constitution of 1S79, or Act 114 of 1880, because the registry of his pretended homestead could impair no previously acquired rights of the defendant’s seizing creditors to have said property seized and sold to satisfy just and legitimate debts previously contracted.

In the succession of Furniss, 34 Ann. 1013, this Court held : “Under the homestead provisions of the. Constitution of 1879, the exemptions therein provided only take effect from the date of registry, as provided by lawq and are inoperative against debts contracted prior to such registry.”

Parties invoking the protection of the homestead laws, which are in derogation of common rights and must be strictly construed, are required to prove that they come within both their spirit and letter. Galligan vs. Payne, 34 Ann. 1057, and authorities therein cited; 37 Ann. 263.

In Thomas vs. Guilbeau, 35 Ann. 927, this Court held: “Claims of homestead exemptions affecting debts and contracts which existed previous to the adoption of the Constitution of 1879, must be controlled by the legislation in force at the time the contract was entered into.” 34 Ann. 331, Poole vs. Cook; 32 Ann. 980, Gilmer vs. O’Neal.

In the case quoted from, the Court say: “ The debt which they seek to enforce was not created by the judgment of October, 1880, which conferred no new right, but merely recognized rights and obligations which were created by the Act * “ of June 26, 1877. Hence, the contract from which plaintiff’s obligation springs was made and entered into in 1877, and all homestead rights affecting the same must be governed by the laws then in force.” Page 929.

Plaintiff’s declaration of his homestead exemption of property involved in this controversy was filed for record, and recorded on the 15th of June, 1882.

The petition in the suit of Marx & Kempner vs. James A. Kinder, No. 598, recites that it was brought upon defendant’s promissory note for $247 50, bearing date October 17, 1877, and payable on the 1st of January, 1878, with interest from date, and the note is annexed; though judgment wms not signed until June 19, 1882.

The suit No. 599 was brought upon the joint note of Sam. Kinder and J. A. Kinder, for $431 51, bearing date September 30, 1877, and falling due on the 10th of January, 1878, and judgment was signed on the 18th of June 1882.

The facts of this case are quite similar to those presented in the case of Thomas vs. Guilbeau, and the same ruling is applicable”.

II.

It has been frequently decided by our predecessors that the property exempted from seizure and sale under section 1691 of the Revised Statutes of 1870, which embodies the provisions of the homestead law of 1865, is predial and not urban. 25 Ann. 219; Crilly vs. Sheriff; 26 Ann. 645, Hargrove vs. Flournoy; 28 Ann. 575, Roberts vs. Gordy.

Our conclusion is that plaintiff’s homestead, asserted under both the Act of 1865 and the Constitution of 1879, can. be sustained under neither.

It is therefore ordered, adjudged and decreed that the verdict of the jury and the judgment of the district court appealed from be avoided, annulled and reversed; and, proceeding to render such judgment as should have been pronounced, it is ordered, adjudged and decreed that the demands of the plaintiff be rejected, and that he be taxed with the costs of both courts, and that the seizing creditors, Marx & Kempner, be permitted to proceed with the seizure and sale of the property, sale of which was enjoined, and according to law.


author: Poché, J.

text:
    No. 1275.
    Succession of Zénon Elizé Thibodeaux. On Opposition to the Demand of Administration by Mozart Thibodeaux.
    There is no law to justify and no room or reason for the appointment of an administrator to a succession which owes no debts, and after the property has been put in the possession of the heirs who have accepted the same, thus winding up and finally settling' up the succession.
    If the existence of debts should be afterwards discovered, the creditors would have re course against the heirs, but not against the succession which has ceased to exist.
    PPEAL from the. Twenty-first District Court, Parish of St. Martin. Gates, J.

      Mouton & Martin for the Appellee.

      Felix Voorhies for the Appellant.
   The opinion of the Court was delivered by

Poché, J.

At the death of Zenon Elizé Thibodeaux, which- occurred in 1867, an inventory of the property left by him was taken and Paul E. Thibodeaux was appointed and qualified administrator of his succession.

In 1868, all the heirs of the deceased, including the administrator, effected among themselves a partition by authentic act of all the property depending upon said succession; and in 1881, the administrator died.

In 1885, Mozart Thibodeaux claiming to be an heir of the deceased, Z. E. Thibodeaux, filed an application for the appointment of administrator of the succession, alleging the necessity of such an administration and the death of the administrator Paul E. Thibodeaux.

His application was opposed by one of his co-heirs on the ground that the succession had been finally settled, the heirs, all of age, having been put in possession of their respective shares of the property thereof, there being no debts and there being consequently no succession to administer.

This appeal is prosecuted by the opponent from a judgment in favor of the applicant.

The record fully establishes the state of facts contended for by the opponent and appellant, and onr jurisprudence has firmly settled the rule that when the heirs of a succession, which owes no debts, have been placed in possession, as such, of the property left by the decedents there is an end of the succession which is wound up and settled, and thus ceases to exist — and that therefore there is no reason or room for an administrator.

If, after such an operation, any debts should be discovered, the recourse of creditors could not be exercised against the succession, which has no longer any existence, but against the heirs, who would thus become debtors for their virile shares of their ancestor’s debts. Sevier vs. Sargent, 25 Ann. 221; Succession of Walker, 32 Ann. 321; Succession of Hebert, 33 Ann. 1107; Succession of Baumgarden, 35 Ann. 675; same, 36 Ann. 46; Succession of Geddes, 36 Ann. 963; Succession of E. S. Powell, 38 Ann.-, not yet reported.

The applicant in this case has not even alleged the existence of any debts due by the succession, or any other legal conditions sufficient to justify his coveted appointment as administrator of a succession already wound up and fully settled.

The jxrdgmen.t of the district court is, therefore, manifestly erroneous, being stripped of all support either in reason or in law.

It is therefore ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed, that the opposition herein be sustained and that the application of Mozart Thibodeaux for the appointment of administrator of tiie succession of Zenon Elizé Thibodeaux be denied and rejected at his costs in both courts.


author: Todd, J. Watkins, J.

text:
    No. 1273.
    The State ex rel. Polycarp Fontenot vs. The Judge of the Thirteenth Judicial District Court, Parish of St. Landry.
    In appeal from a judgment rendered by a justice of the peace to a district court, where a motion is made to dismiss the same on the ground that the matter in dispute is under the lowest limit of the appellate jurisdiction of this court, the appellant should he permitted to offer evidence to maintain his appeal, unless his want of right to the appeal conclusively appears from the face of tbo papers.
    A PPLICATION for Certiorari.

      Lewis (& Brother, for the Relator.

      W. O. Perrault and K. Baillio, for the Respondent:
    1. Relator in a case like the one at bar, cannot in his petitiou introduce new allegations or facts not appearing in tho record. The court will disregard such new allegations, and decide the case on the face of the papers. 32 Ann. 1222 ; 33 Aim. 256.
    2. A petition for certiorari which fails to aver that the respondent judge arbitrarily and without cause refused to hear relator and his witnesses, is lacking in essential averment. and no relief can be granted him thereunder. 36 Ann. 481, 482.
    3. The answer or return of the respondent judge, in an application for a certiorari, being the official act of a sworn officer, is not required to be sworn. It is considered as being made under oath.
    4. Under the jurisprudence of this Slate, prior to the year 1879, the Supreme Court could only issue the writ of certiorari when invoked in aid of its appellate jurisdiction. 15 Ann. 120; 22 Ann. 459, 517; 16 Ann. 164; 25 Ann. 381; 30 Ann. 457; 31 Ann. 795.
    5. Appeals from magistrates’courts are carried directly to district courts. The only exception to this rule is where the legality or constitutionality of a municipal tax, toll or impost is put at issue, in which case only, the appeal is carried to the Supreme Court. Constitution of 1879, arts. Ill and 81.
    6. The Supreme Court will not exercise tho supervisory jurisdiction granted by art. 90, unless it affirmatively appears: 1st. That the lower judge was guilty of a clear usurpation of power not conferred by law. 2d. Where he has arbitrarily or without causo refused to perform some plain duty imposed upon him hy law, and which he had no discretion to refuse. 3d. Where relator has no adequate remedy in any other form of proceeding, Even in these cases, the Supreme Court will not revise the action or the judgment of the lower court on the merits, hut will only inquire into and revise their regularity and legality in point of form. 32 Ann. 549, 552; 33 Ann. 1201; 32 Ann. 1222; 33 Ann. 256, 255,15. A refusal to hear or receive evidence because inadmissible, does not fall within the purview of this supervisory power. 36 Ann. 481, 482.
    7. A judgment of a court wanting in jurisdiction rations matsrcet is null, and a clear action lies to annul it. O. P. 604, 606, par. 3. Such a judgment can be even collaterally assailed.
    8- Under art. 608 C. 1*., the nullity of a judgment may even be demanded on appeal, provided the nullity appears on the face of the papers. But such nullity must be demand ed. O. P. 608.
    9. Magistrates’ courts have no jurisdiction of a suit wherein “ the light of property " or, the “possession of an immovable ” is put at issue. C. P. 1068.
    10. Where an averment of jurisdiction is made, an appellate court will permit the proof of jurisdiction by affidavit or otherwise to be made. But it is not permissible to supply by affidavit, not only the proof, but the averment of jurisdiction on appeal. 30 Ann. 1138 ; 31 Ann. 856 ; 33 Ann. 1051; 2 Ann. 293; 8 Ann. 282, H. D. p. 18, No. 1. and cases cited.
    11. There is an obvious and manifest difference between the offer and the right to prove the value of the object in dispute, in the court of the first instance, and the right to do so in the appellate court. In the latter, the jurisdiction must he averred, and must appear from the face of the papers — and no evidence is admissible to supply its omission.
    12. In the case at bar tbe district judge having properly rejected the evidence offered to else out jurisdiction, the case was left as it was originally: with a demand by plaintiff for ten dollars damages. This amount being below the appellate jurisdiction of the district court, the appeal was properly dismissed. Const. 1879, art. 111.
   Tiie opinion of the Court was delivered by

Todd, J.

This is a certiorari proceeding.

The relator alleges in substance that he was sued before a justice of peace in the parish of St. Landry, to compel him to cut a certain levee and to pay ten dollars damages caused by the levee. That judgment was rendered by said justice as asked for, that is to pay ten dollars to the plaintiff in the suit, and cut the levee complained of; that he appealed from this judgment to the Honorable the District Court of tlie parish of St. Landry, the Hon. G. W. Hudspeth presiding; that in said court a motion was made to dismiss the appeal on the ground that the court was without jurisdiction to entertain the appeal for the reason that the matter in dispute was below the limit of its appellate jurisdiction; that thereupon the relator offered to introduce evidence to satisfy the judge touching the question of jurisdiction by proving the money value of the demand made and the right involved respecting the said levee, and the cutting of the same sought to he effected by the suit; that the judge refused to hear said evidence, and dismissed his appeal. The relator charges that this action of the judge was error, and he seeks to have it so declared, and at the same timo to compel the judge to hear his testimony offered on the trial of the motion to dismiss the appeal.

By the writ in question we can determine whether the judge erred in his refusal to hear evidence on the point in question.

In the reasons given by him for his ruling and for the dismissal of the appeal — which we find in the record — he seems to have concluded, from the face of the papers, that the only real matter in dispute was the teu dollars which the relator was condemned to pay by tlie judgment appealed from, and that, therefore, the question of jurisdiction was not open to evidence. Whether the court had jurisdiction to entertain the appeal is a question not now before us, hut only whether lie should have heard evidence touching the question raised by the motion to dismiss.

In this court, where similar questions are presented, unless it conclusively appears from the pleadings that the court is clearly without jurisdiction, it is permitted the appellant, for the purpose of determining the question of jurisdiction and the appealibility of the case, to submit affidavits respecting the amount involved or the value of the matter in dispute, which are always viewed and received by the court as properly before it for consideration.

We do not agree with the judge a quo that it conclusively appeared from the face of the papers presented in the appeal before him, that his court was without jurisdiction.

The suit before the justice was to compel the relator to cut his levee and to pay ten dollars damages caused by the levee.

It might well be that the most important and valuable interest of relator involved in the suit was the right to maintain and keep intact his levee, which it was the object of the suit to compel him to destroy. We do not pretend to say that this right was of value sufficient, together even with the ten dollars in dispute, to give jurisdiction to his court of the appeal, but we do think that the record presented a sufficient showing to authorize the appellant and relator to submit evidence of the value of his said interest with a view of maintaining his appeal. Thus concluding, we think it was error in the judge to refuse to hear this evidence, and error likewise to dismiss the appeal without or before hearing it.

The order of dismissal was, under this view of the matter, premature and unauthorized, and we think, under the provisions of the article of the C. P. above quoted, that the relator is entitled to the relief asked for.

It is therefore ordered, adjudged and decreed that the ruling of the respondent judge refusing to hear evidence touching the right of the relator to maintain and relating to the jurisdiction of the court to entertain the appeal, and respecting the value of the right, interest or matter in dispute in the controversy, be and the same is hereby corrected and the order dismissing the appeal set aside, and the appeal reinstated for the purpose of permitting the relator to submit or offer evidence on the points mentioned, and subject to the motion to dismiss the appeal, at the cost of respondent.

On Application for Rehearing.

I.

Watkins, J.

Respondent suggests that there is error in our judgmeat taxing him with the costs, and insists that'such a case as this is exceptional, and is not governed by the rule laid down in C. P. 549, to the effect that “in every case the costs shall be paid by the party cast, except when compensation has been allowed or real tenders made,” etc.

But the next article is still further to the purpose: “ The same rule shall be observed with regard to the party cast on incidental demands, whether they be dilatory or declinatory.”

Relator cites the case of Borgsteed vs. Black, 5 Ann. 753, as furnishing authority for the position that is assumed by him. That was a case involving an election contest, and consequently bears no analogy to the present action. The Court said that the party cast in that suit was not bound for the costs, for two reasons: 1st. That that suit was not an ordinary civil action, but one of public concern. 2d. That the statute on the subject of contested elections did not authorize it.

In State ex rel. Montague vs. Coquillon, justice of the peace in the parish of St. Tammany, 35 Ann. 1101, in which a writ of certiorari against respondent was applied for to this Court, on the allegation that he had rendered judgment in an unappealable case against the relator, without allowing him a hearing, as the law requires, and the following-decree was entered, viz: “It is therefore ordered, adjudged and decreed that the judgment rendered by the respondent magistrate against the relator, on the 4th June, 1883, be annulled and avoided, and that respondent be ordered to try the case anew, in conformity with the provisions of the law, and that the respondent pay the costs of these proceedings.”

We think this exception not well taken.

■ II.

Respondent further suggests that we have entertained relator’s petition for a writ of certiorari entirely independent of the supervisory power vested in this Court by the Constitution, article 90; and which relator does not invoke, and the judgment complained of did not cite.

He then suggestively enquires: “Can this Court (independently of the powers conferred by Article 90) grant any relief in an unappealable case, by writ of certiorari f”

Reference to C. P. 857 and 860, will satisfy respondent’s enquiry. But, if an5ffhiug necessary to relator’s adequate relief under them is wanting, Article 90 supplies the deficiency, and we will cite it now, in support of our complete jurisdiction.

On this we rely for a sufficient answer to the cases cited by the respondent, viz: 9 Ann. 522; 2 Ann. 979; 16 Ann. 164; 15 Ann. 120; 30 Ann. 457.

We do not understand that any set phraseology should be employed in relator’s petition to entitle Jiim to relief. It is quite sufficient that he has, in due form, made his grievances known to this Court, which is clothed by the Constitution with the supervisory power to examine and correct, and which has the undoubted authority to drawr legal inferences from a given state of facts, coupled with the duty to apply the remedy. The relief was not granted ex proprio mota, nor “ gratuitously extended,” to a case in which no such relief was invoked. We think this Court is perfectly competent to entertain jurisdiction of the writ of eertiora/ri, either alone or when coupled with mandamus.

III.

Respondent.further insists that relator has not presented a case entitling him to the relief demanded; or, in other words, that this Court should not order “the district judge to reopen the case of Deville vs. Fontenot, and order him to receive evidence which, after due hearing and ai'gument, he held inadmissible.”

Relator’s counsel places strong reliance upon State ex rel. Bright & Co. vs. The Judges, etc., 36 Ann. 481, and from which they quote this phrase, viz: “But that means an arbitrary refusal to hear any'witnesses at all, and not to the rejection of testimony as inadmissible.” That is to say, irrelevant to the issue.

lu that case the objection that was urged to the testimony was that “it had not been properly stamped.”

“ This mandate (certiorari) is only granted in cases where the suit is to be decided in the last resort, and when there lies no appeal, by means of which proceedings absolutely void might be set aside, as where the inferior judge has refused to hear the party or his witnesses,” etc. C. P. 857. .

What was the question before the district court, and involved in the suit of Deville vs. Fontenot, then on trial ? Its appellate jurisdiction of .that cause. What did the court decide? That it conclusively appeared from the face of the record that it had no jurisdiction rations material, and refused to hear any evidence going to show the money value .of the plaintiff’s dem.and and dismissed the suit. He did not reject the evidence for the reason that same was inadmissible and not pertinent to the issue; but for the reason that the issue was one upon which no evidence could be received at all.

IV. '

Relator had a perfect right to apply for the writ of certiorari and mandamus at one and the same time, or separately.

In our previous opinion and decree we granted relator no relief that was not strictly consonant with the writ of ceriiorwi alone. Montague’s case above cited is a complete precedent on this point.

V.

We have taken pains to express our views agaiu, and even more in detail than before, in order to fully relieve the minds of the respondent and his zealous counsel from the erroneous impression they seem to entertain that our previous opinion was rendered gratuitously, ex proprio motil and without deliberate consideration.

Rehearing refused.


text:
    No. 1278.
    Don Louis Jean Louis et al. vs. Therence Giroir et als.
    In a petitory action the description of the lands in suit, by sections and townships in reference to United States sui veys, is sufficient. That is certain which can be made certain
    A petition charging that the defendants are in joint possession of the lands in snit, is not amenable to tlie objection that it does not charge what portion of the several tracts sued for is in the separate possession of any of the defendants.
    APPEAL from the Twenty-fifth District Court, Parish of Lafayette. Bourges, judge ad hoe.

      Felix Yoorhies and F. Sinson for Plaintiffs and Appellants.

      M. F. Girard for Defendants and Appellees.
   The opinion of the Court was delivered by

Poché, J.

Plaintiffs, in a petitory action, prosecute this appeal from a judgment maintaining an exception that their petition is too vague and indefinite to put the defendants, thirteen in number, on their several defenses, in failing to allege what portion of the two tracts of land sued for was claimed from each or any of the defendants.

The trial judge held that the description of the lands was insufficient, and that the petition was defective for the additional reason that it failed to allege what definite portion of the land was occupied by each or any of the defendants.

Tiie insufficiency of the description of the lands had not been specifically set up by- the defendants, and in our opinion the judge committed a double error in resting his judgment thereon. The defendants had not complained of the description. But in point of fact the description is sufficient. The lands are described as: “Sections 93 and 94, in township 10 south, range 5 east, southwestern district of Louisiana, situated in the parish of Lafayette.”

By consulting the United States surveys the lands may be accurately located, and a greater precision is not required in a petitory action. That is certain which can be rendered certain. Lea vs. Terry, 15 Ann. 160.

As we read the petition, we understand that the defendants are sued jointly and that they are charged to be illegally in joint possession of the two tracts of land which are contiguous. If such be the charge intended to be made by plaintiffs, they surely could not be required to state otherwise or differently.

It may be, as suggested by defendants’ counsel, that their possession is several and not joint. But that defense cannot be considered in determining the alleged insufficiency and vagueness of xd&intiffs’ pleading's.

That ground is contained in another exception which defendants have interposed, but as that and other exceptions were not passed upon by the trial judge we are powerless to review them in the present appeal. In due time they may claim our attention. Harris vs. Pickett, 37 Ann. 747. We are limited to the disposition of the matters only which are brought up in each appeal.

To the extent of our examination we conclude that the views of the district judge are erroneous.

It is therefore ordered that the judgment appealed from be annulled, avoided and reversed; ¡hat the exception maintained be overruled, and that the case be remanded for further proceedings, costs of this appeal to be taxed to defendants and appellees, other costs to abide the final determination of the cause.


text:
    No. 1281.
    J. O. Halphen vs. U. A. Guilbeau and T. Lézair Broussard.
    1, Under the provisions of Act No. 40 of 1880, the judge of an adjoining district, who is called to try a cause, in which the presiding judge is recused, acts pro hae vice and in that court, and during the time he is thus engaged in the performance of duty, the presiding judge is displaced.
    2. The judge of an adjoining district thus appointed, has no authority to grant an order at chambers within his own judicial district, and in his capacity as judge of the latter, transferring the suit to an adjoiuing district. Such an act is a nullity.
    APPEAL from the Thirteenth District Court, Parish of St. Laudry. Hudspeth, J.

      G. H. Mouton, Jos. A. Breaux, Bd-ward Simon and F. F. Berrodin for Plaintiffs and Appellant:
    1. Nine months having elapsed — since the case had been transferred — a transfer was absolutely necessary under the terms of the law.
    2. Notice prior to transfer was not necessary. The law being mandatory had to be obeyed. It was thus obeyed in the case to which reference is made in the body of the brief. Comt and suitors accepted the transfer in said case and not a word was said about the necessity or the most remote propriety of such a notice.
    3. The order was granted at chambers in the case at bar. There was nothing illegal in that. Such an order can be granted at chambers under section 1936, !R. S.
    «1.- The judge to whom the case was transferred, had full authority in the premises until the nine months had elapsed; after that time, the court to whom transferred had full authority.
    5. The dismissal of an exception, the reversal of the judgment of dismissal and the reinstatement of the case by the Supreme Court, is nob a trial; the case has not been tried, and under Act 40 of 1880, it could bo transferred.
    0. The act of the judge in transferring a case “must not be interfered with, except in extreme cases of glaring wrong or of unbearable injustice.” Tontelieu etal vs. Conrad DeBaillon, Judge, et al — decision rendered not reported.

      PL. L. Garland, ft. 8. Perry and Felix Voorldes for Defendants and Appellees:
    A transfer under sec. 5 of Act No. 40 of 1880, is a change of venue, and must be governed by K. S. 3901 et seq.

    No transfer of a case can be made at chambers except in changes of venue, and contradictorily with all parties interested.
    No default can be entered before the court to which a case is transferred, unless opposing parties be notified of the transfer.
    An application to transfer, under Act No. 40 of 1880, addressed to the judge of the 25th District Court, the case pending before the Twenty-first District Court, is erroneously and improperly addressed, even though the judge of the Twenty-fifth District shall have been appointed, under recusation, to try the case. And an order of transfer signed under such an application by the judge of the Twenty-fifth District Court, and outside of the Twenty-first District, is null, and the whole proceeding is null.
    Section 5 of Act No. 40 does not arbitrarily, on expiration of nine months, divest original court of jurisdiction when a case is progressing and in which many issues have been disposed of.
    It does not require that the case shall have been finally tried within the nine months.
   On Motion to Dismiss Appeal.

Tlie opinion of the Court was delivered by

Watkins, J.

T. L. Broussard, one of defendants and appellees, moves to dismiss the plaintiff’s appeal, for the reason that, since the death of the defendant U. A. G-uilbeau, the contestee for the office in controversy, his daughter, Anita Gnilhoau, one of his heirs, has not been legally cited as appellee, by means of citation to the surviving widow of the said deceased, and as tutrix of the children of their marriage — as said Anita was united in marriage with Charles Delacroix on the 34th of January, 3886, antecedent to plaintiff’s petition for appeal on the 7th of May, 3876; and he charges this neglect to have been the plaintiff’s fault.

The citation of this heir, in our opinion, was an unnecessary formality, because she was not a necessary party to the appeal.

The gravamen of the dispute is the election vel non of plaintiff, to the office of sheriff of the parish of St. Martin in 1884. The heirs of defendant certainly acquired, by their ancestor’s death, no right to the office in controversy — whatever may be said with regard to the fees and emoluments thereof, an office is not a heritable right or property.

The defendant and appellee, T. L. Broussard, holds and claims the right to exercise the functions of sheriff, by virtue of an appointment of the Governor to fill a vacancy therein, which was occasioned by the death of the contestee, U. A. Guilbeau, who was theretofore returned elected.

He was duly cited and we think properly. In fact, he was a party to a previous appeal iu'this case—37 Ann. 730, Halphen vs. Guilbeau and Broussard.

Motion overruled.

On the Merits.

The origin and facts of this case are succinctly and fully stated in our previous opinion in 37 Ann. 730, Oscar Halphen vs. U. A. Guilbeau and T. L. Broussard, which was a suit to have reconstructed and reinstated the lost records therein, which right was recognized.

At the November term, 1884, Fred Gates, Judge of the Twenty-first Judicial District, on the suggestion of counsel for T. L. Broussard, entered an order of recusation and selected and designated Conrad DeBaillon, Judge of the Twenty-fifth Judicial District to try the same; and on the 4th of December, 1884, he was called upon to preside and proceeded with the trial thereof, and certain exceptions were filed. While same were under consideration, the court was adjourned from day to day upon the order of Judge Gates, so as not to interfere.

Thereafter various proceedings were taken in the suit — too numerous and conflicting for particular detail — which culminated in the dismissal of plaintiff’s suit, and the said appeal in February, 1885, was the sequel.

Subsequent to the decision of the issues raised in that appeal plaintiff, through counsel, applied for and obtained an order to be signed by C. DeBaillon, Judge of the Twenty-fifth Judicial District “at chambers at Lafayette, La., this 3d of September, A. D. 1885,” to the effect that, as nine months had elapsed since said suit was assigned to him for trial, that same “be and the same is hereby transferred to the Thirteenth Judicial District Court in and for the parish of St. Landry, the judge of which court is competent to try the same.”

In State ex rel. Fontelieu vs. Conrad DeBaillon, Judge, etc., 37 Ann. 392, this Court said : “Under Act No. 40 of 1880, which regulates the manner of trying recused cases, the recused judge is stripped of all control over the case, which is transferred, in its entirety, to the judge selected to try the same.

“If nine months elapse after recusation without a trial, the cause must then he transferred, to the district court of the nearest parish of an adjoining district, the judge of which is competent to try the cause.

The order must emanate from the judge first appointed to try the case, who alone has the legal authority to malee the seme.”

In State ex rel Gates vs. Beattie, Judge, 38 Ann.-, unreported, this Court recently held: “ In case of such transfer of the suit, the judge of the court to which the transfer is made, has as full and complete authority and jurisdiction over the same as if it had originated in that jurisdiction.”

The order transferring the case in this instance, did not emanate from the judge first appointed to try the case. It is perfectly true that Conrad DeBaillon, Judge of the Twenty-fifth Judicial District, had been called by Judge Gates to go into the Twenty-first Judicial District and trythe case. This he did. In so doing, it was by virtue of his authority to exercise the duties and perform the functions of judge in that court. While he thus exercised them, the judge of that district was fwncius oficio for the time being. This is fully illustrated by the fact that during the time Judge DeBaillon was engaged in the trial of the case, Judge Gates ceased to perform the functions of his office. The order purporting to transfer this cause from the parish of St. Martin, in the Twenty-first Judicial District, to the parish of St. Landry, in the Thirteenth Judicial District, executed by Conrad DeBaillon, Judge of the Twenty-fifth Judicial District, a.t his chambers, in Lafayette, La., was an absolute nullity, and wholly without, any effect in law, and did not operate the transfer of the suit thereto, and the judge of the Thirteenth Judicial District wras and is wholly without jurisdiction or authority over said cause, it never having been transferred from the parish of St. Martin, where it was filed.

J udgment affirmed.


text:
    No. 1274.
    Succession of Eugene Breaux—Opposition to Tableau and Account by Uranie Pelletier.
    1. The dowry is given to the husband for him to enjoy the same so long as the marriage shall last. R. C. C. 2347.
    "With respect to the effects of the dowry, the Imsband is subject to all the obligations of the usufructuary. R. C. C. 2365, 549, 594.
    If the dowry consist of immovables, or of movables not valued by the marriage contract, the husband or his heirs may be compelled to restore the same at the dissolution of the marriage. R. C. C, 2367.
    2. Atthe dissolution of the marriage all effects which both husband and wife reciprocally possess, are presumed common effects, or gains, unless it be satisfactorily shown which of such effects they brought in marriage or which have been given them separately, or which they have respectively inherited.
    3. In order to charge the community for separate account of the husband, the proof must show, with reasonable certainty, that his property, or money, has been used for the benefit of the community.
    APPEAL from the Twenty-first District Court, Parish of St. Martin. Gates, J.

      0. JEC. Mouton for Opponent and Appellee.

      Felix Voorhies and Mouton & Martin for the Administrator, Appellant. '
   The opinion of the Court was delivered by

Watkins, J.

Uranie Pelletier, tbe opponent, and Eugene Breaux, deceased, were married on the 20th of June, 1854. There was a marriage contract between tbe spouses, but it contained no stipulation that there should exist no community between them.

No children were born of their marriage. Uranie Pelletier survived the husband. At the date of Eugene Breaux’s marriage with opponent, he had nine children, born of a former marriage with Josephine Beguenand, and to whom lie was indebted in tbe sum of $1307.13, and which sum he paid them respectively, as they arrived at their majority, and during the existence of the community.

The opponent, Uranie Pelletier, accepted the community with benfit of inventory.

In the tableau of distribution and classification of the estate of Eug. Breaux, the administrator shows the active mass to be$5508.95 ; but also shows that same is in part composed of property belonging to the community, existing between deceased and opponent, and alleges the necessity of same being kept separate, with their charges respectively, in order that a fair distribution be made.

He then makes a statement of what the community is composed, viz: Cash on hand..............................................$ 890 00

Ledoux’s note............................................. 200 25

Numa Patin’s note......................................... 140 00

Land, No. 6 of tableau....................... 910 00

Cotton in seed (sold)....................................... 18 24

Corn in 9eed (sold).............................'........... 70 00

Total community assets...................$2,228 49

Of this, one-half belongs to opponent, add the other to the heirs of the deceased — he having died intestate — “after deduction is made of its debts and liabilities ” and which are enumerated as follows, viz :

1st. One-half of the law-charges and costs incurred in the settlement of the estate of deceased.

2d. One-half of the claims of the spouses against the community. These are designated as follows, after deducting costs ......$ 148 80

I.

Amount as per marriage contract.......................... 125 00

II.

“The personal property of Eugene Breaux, as per marriage contract above mentioned, consisted in part of horned cattle, horses, etc., which have been disposed of for the use and benefit of the community.......................... 850 00

III.

“Negro James mentioned in said marriage contract, was sold during their marriage, and shortly before the war * * This amount was employed for the benefit of the community to meet its liabilities and charges, during the four years the war lasted................................... 1200 00

IV.

“Money loaned by deceased to Widow Rosemond Pelletier and subsequently collected through sale of land to St. Pé, and which forms part of cash inventoried, and the mortgage note of Numa Patie represents the balance. That amount enured to the benefit of tire community, and the estate is its creditor for......................................... 1000 00

V.

“The estate is also a creditor of the community for a sum by deceased collected from the estate of his first wife, and employed for the benefit of the community.............. 2250 00

“Claims of spouses against the community aggregating...... 5425 00

“Of this, the individual claims of Eugene Breaux against the community aggregate.:................................ 5300 00

“The debts and charges absorbing the whole of the community * * and after deducting costs and the privilege claims, * * the balance of that community, i. e., $954, goes to the estate of Eugene Breaux, to be added to the active mass of that estate, etc.”

Uranie Pelletier opposed this tableau and classification on the following grounds, substantially, viz:

That, in addition to the sum the deceased used of the community funds, with which to make settlements with his children by a previous marriage, $1307.13, the active mass of the community is incorrectly stated to be $2228.40, and that same should be increased by the xn’eceding sum of $1307.13; and that there was sufficient money on hand at the death of deceased to have paid “all legitimate debts due by the community.”

She specially opposes the items carried on said tableau as claims of deceased, against the community, as illegal, viz:

The items of $850, $100, $1200, $2250, $5300.

Respondent and opponent specially denies that any of these items are debts or charges due by the community and prays for the rejection and disallowance of all of same and that the administrator be charged with the specified sum of $1307.13, and they be decreed the owners of one undivided one-lialf of the land described in item No. 6 on the tableau, and appraised as No 2 in the inventory of the deceased.

II.

The testimony shows that the plantation of Eugene Breaux was in ■a better condition in 1854, when he married Uranie Pelletier, than when he died in 1882. At that time he had a number of cattle, horses and mares, also three or four yoke of oxen and about fifty sheep. Home of the witnesses state that the plantation and improvements had diminished in value, at least one-fourth, between the da,te of the marriage in 1854, and his death in 1882 — a period of about thirty-two years.

Michel Breaux, a son of the deceased, who states his age to be twenty-seven years, says that the sheep were sold to Valery Ledoux; that ho delivered six cows to Arthur Patin, the agent of Uranie Pelletier, the opponent, to replace the cattle that she brought in marriage.

He further states that his father paid every one of the heirs — children of a former marriage — the amount coming to them, but he fails to state the source from which he derived the means — presumably from the community, of which he was the head and master.

Uranie Pelletier was one of the heirs of Henrietta Breaux, widow of Jean Pelletier. None of the lands inventoried in the succession of Eugene Breaux have been sold. The opponent in an authentic act, formally accepted the community with the benefit of inventory.

Aside from certain documentary evidence, this is in substance the whole of the administrator’s evidence in support of his tableau, and classification of the debts and charges against the community above enumerated.

From the homologated settlement made, in 1858, of the proceeds of the sale of the estate of Henrietta Breaux, widow of Jean Pelletier, it appears that opponent, as an heir, applied her interest, as an heir, to the payment of “ several purchases made by her husband * * as appears by the ¡voces verbal of sale, $1209.81.

Her share being, as above stated, $1158.35f, leaving a balance in favor of the succession of $51.45f.

III.

The judge a quo neld that all the items enumerated in the tableau as community, properly belonged to it, but omitted any discussion in regard to the item No. 6, same being land valued at $910, inasmuch as the same remained unsold. He treated the proceeds of the sale of movables made on the 1st of February, 1883, in the absence of countervailing proof, as assets of the community, $1223.95.

He also held the sum paid by the deceased in settlement of the amounts coming to the children of his first marriage, was presumably paid with community funds, and he should be charged on his account with $1307.13.

Making total amount of the active mass of the community,

not including the land remaining unsold.....................$3849.57

Less amount of community debts......................... 273.80

Leaving net amount of community....................... 3575.77

One-half to the widow................................... 1787.88

The account admits that the land indicated upon it as item No. 6, and valued at $910, is an asset of the community, and one-half interest therein belongs to opponent.

The rehearsal of the evidence we have given above clearly shows that the separate rights and claims of the deceased, Eugene Breaux, against the community, are not supported by proof, and same must be rejected aud disallowed.

For the sum of $1787.88, the court a qua gave opponent judgment against the estate of her deceased husband, as her undivided half interest in the community ; and the further sum of $125 by her brought into the community at the time of her marriage. This should have been deducted before división was made. He further ordered that the account filed by the administrator be rejected, and that he be ordered and required to file a new account in conformity with the particulars of said decree, and fully recognizing opponent’s ownership of one undivided half interest in land mentioned on tableau as No. 6, and No. 2 on the inventory, and appeared at $910.

IV.

“At the time, of the dissolution of the marriage all effects which both husband and wife reciprocally possess are presumed common effects, or gains, unless it be satisfactorily proved which of said effects they brought in marriage, or which have been given them separately, or which they have respectively inherited.” R. C. C. 2405.

Under the proof, indubitably the effects indicated are “common effects, or gains.” There is no evidence in the record to establish the claims of deceased against the community. The administrator failed to trace the separate property into t\xv> possession of the community, or to show that same was sold, or disposed of for its use and benefit. 30 Ann. 275, Denegre vs. Denegre. Succession of Melany Foreman, 38 Ann.—, unreported, and decisions therein referred to; 36 Ann. 605; 30 R. 181.

Judgment affirmed.


text:
    No. 1270.
    Charles Clerc vs. S. Boudreaux, Mayor, and Board of Trustees of the Town of New Iberia, and Felix Mestayer, Lessee. (Consolidated with) August Pascal vs. S. Boudreaux, Mayor, et als.
    A justice of the peace lias no jurisdiction ratione materice to entertain a suit, in which damages actually sniFered, amounting to $90 00, are demanded, and in which defendants are enjoined from claiming and collecting daily charges for the use of a market stall, and from closing same and keeping it closed, and from ever interfering with him in his business.” 37 Ann. 583, State ox rel. New Orleans vs. Judge; 33 Ann. 146, State ex rel. Fredricks vs. Skinner.
    PPEAL from the First Justice’s Court, Sixth Ward, Parish of Iberia. Duleus, J.

      E. Simon ancl T. J). Foster for Plaintiffs and Appellants:
    1. Justices ot the peace have jurisdiction in all matters except succession or probate matters, where the amount in dispute does not exceed one hundred dollars. See State Constitution, Art 125: Code of Practice, Art. 1064.
    2. They have jurisdiction for sums of money, whether debts, taxes or fines, provided they do not exceed one hundred dollars. O. P. Arts. 1063-1064.
    3. To determine jurisdiction rationematerice, the amount in dispute at the time the suit is filed must govern and control, and not future amounts that may or may not accrue. 0. P. Arts. 87, 88, 91; State Const., Art. 125.
    Courts cannot confer jurisdiction. C. P. Art. 92.

      Breaux & Benoudet for Defendants and Appellees:
    The plaintiffs pray to obtain a perpetual injunction to prevent the exerciso of a right exceeding in value one hundred dollars. The State ex rel N. O. Gas Light Co. vs. Judge et al. 37 Ann. 583.
    They desire to have a lease annulled — the rental is more than seventeen hundred dollars-— and to prevont the lessee of the corporation of New Iberia from collecting more than one hundred dollars each month during the existence of the lease.
    Plaintiffs do not allege that the specific rates and charges are not collectible for certain mpu tioned days, but they pray that the defendant corporation and others be forever enjoined from collecting any rates and charges during the extent of the lease. The lease attacked commences on 1st September, 1885, and will end August 31,1886.
    The plaintiffs seek the Court’s sanction not to pay these charges and thus to enable them to carry on business, paying more than one hundred dollars each month, without paying any charges or dues to the corporation.
    They — if defendant’s position be correct — have no right to carry on business without paying a license, hence the question of carrying on business is involved.
    Plaintiffs each claim ninety dollars. They put at issue the validity of the town charter and of the ordinances, and the right of the corporation to collect certain dues.
    In all these matters at issue the court a qua is without jurisdiction rationematerice.

   The opinion of the Court was delivered by

Watkins, J.

The cases are consolidated, and the plaintiffs’ appeal from the judgment of the justice of the peace maintaining the exception of no jurisdiction rationematerice filed by the defendant.

Plaintiff enjoined the town corporation of New Iberia., and Pelix Mestayer, lessee, from collecting a daily charge or tariff imposed upon them as butchers, and also from closing up their places of business, on the ground that the ordinance adopted August 10, 1885, under which the daily charge and tariff was imposed, was unconstitutional and illegal.

I.

The only question to be considered in determining the jurisdiction of the justice of the peace is “the amount in dispute.” Does the “amount in dispute * * exceed one hundred dollars, exclusive of interest?” Const. Art. 125.

The plaintiff, Clerc, alleges in his petition that he, as the keeper of a private market in the town of New Iberia, was required by the defendants to pay “certain charges on his business to the amount of twenty-five cents daily, for bis stall * * sixty cents and other charges daily for every slaughtered animal which he has for sale, etc.,” or upon his refusal so to do, his place of business was closed up without warrant of law.

He further alleges that “the action of said parties is unconstitutional and illegal * * and by said illegal acts referred to he has been damaged in the sum ot $90 * * and that they will daily enforce the pretended and illegal ordinance of the board of trustees, and that he will suffer an irreparable injury thereby unless restrained and enjoined i: * from interfering with his business.”

He prays an injunction against the mayor and lessee restraining them “and all other agents acting under them, from demanding and collecting daily the said pretended and illegal charges and taxes, and from closing and keeping closed his above mentioned premises, and from ever interfering with him in his business in anywise * * and that they be condemned to pay in solido the amount of $90, etc.”

Felix Mestayer, one of defendants, sets forth that he has “ leased the market-house of the corporation of New Iberia, with the right to collect all rates, charges and tariffs annexed thereto, as set forth in plaintiff’s petition, for twelve months, beginning on the 1st day of September, 1885, and ending 31st of August, 1886, for the price of $1,712 50, and particularly the right to collect the rates and charges mentioned from Charles Clerc, extending throughout the said lease,” etc.

He avers that, though the specific rates and charges are to be collected daily, he is enjoined from collecting same during the whole extent of, and at any time during the said lease, and the amount involved largely exceeds one hundred dollars; that the monthly rent, oi rate of said Charles Clerc, largely exceeds $100, and “the right to carry on said business without paying said license is involved ;” and plaintiff also claims $90 actually sustained.

He excepts that the justice of the peace was without jurisdiction ratione material to try this cause.

This suit was filed on the 1st/of September, 1885, at the incipiency of the lease.

The ease of Pascal vs. same defendant, involves the same issues. On the trial one witness testifies that he keeps a butcher’s stall in the New Iberia market-house, and that his “business exceeds $100 per month ; it amounts to $8 or $9 per day — gross sales,” though he does not know the amount of the business of Charles Clerc.

The plaintiff, Aug. Pascal, as a witness, states that he kept a stall outside of the market-house, and his daily sales of meat amounted to about $6, and exceeded $100 per month.

Felix Mestayer testified that Mr. Charles Clerc’s business is larger than that of J. Courrigé’s and August Pascal’s.

The plaintiff, in each of these consolidated suits, enjoins the defendants from demanding and collecting the daily rates and charges for the use of market stalls, and from closing same and keeping same closed, and “ from ever interfering with him in his business, in anywise, and demands the sum of $90 damages actually sustained.

The judgment of the court appealed from, dismissing the two suits for want of jurisdiction ratione materico, was unquestionably correct, and it is therefore affirmed, the plaintiff and appellant to pay cost of both courts.


text:
    No. 181.
    Lizzie Dickson vs. W. P. Ford, Clerk, et al.
    Parol testimony is admissible to show the real consideration of a contract evidenced by an authentic act, when the same is not expressed or described therein. The mortgagor who acknowledges an indebtedness as the foundation of the mortgage, when the act makes no mention of the source or origin of the debt, can have recourse to parol evidence to show the consideration of the debt or principal obligation, as a necessary step to establish the subsequent extinction or satisfaction of the debt.
    The reason of the rule is thau the evidence is admissible, not to vary or contradict the act, but to perfect it by supplementing omitted information.
    A party who allows his former attorney to give evidence of matters confided to him by the • client, without objection, will be presumed to have given his consent thereto, as pro. vided for in Article 2283, C. C,
    A PPEAL from the First District Court, Parish of Caddo, i. x Taylor, J.

      Wise <& Herndon for Plaintiff and Appellee.

      Land & Land for Curator ad hoe, and.<71 H. Shepherd for W. R. Bar-stow, Appellants:

      1. Authentic acts make full proof against the parties, not only of their agreement, hut also of what passed before the notary. Succession of Tete, 7 Ann. 95.
    2. In the absence ot a specific averment of error, fraud, ambiguity and the like, oral testimony is especially inadmissible to show that the consideration mentioned in an act of mortgage was not the true consideration. Such testimony necessarily varies and adds to the terms of the written instrument. Vial vs. Moel, 37 Ann. 203.
    3. Attorneys at law are prohibited from divulging confidential communications, without the consent of their client. C. C. 2283; 4 3ST. is. 361; 2 Ann. 923; 15 L. 88; 15 Ann. 553. The law being prohibitory, will be enforced by the court, though no formal bill be reserved. 23 Ann. 747; 24 Ann. 401; 26 Ann. 221.
    4. The filing of a reconventional demand interrupts prescription. Driggs vs, Morgan, 10 R.119.
   The opinion of the Court was delivered by

Poché, J.

Plaintiff sues for the cancellation of a special mortgage of $2,500, which she executed in January, 1881, in favor of W. R. Bar-stow, who is made a party hereto as well as his assignee, Wm. Thurman, the present holder of the mortgage, who is herein represented by a curator ad hoe.

Plaintiff avers that the sole purpose and the true consideration of the mortgage were to secure Barstow from any loss or damage which might have resulted from a release bond in a litigation then pending against her, which bond had been procured for her by Barstow on his personal responsibility, and that said litigation having been finally settled and the demand against her having been fully satisfied, the purpose of the mortgage no longer exists, and that it should be can-celled.

The defense is a general denial, coupled with the averment of the good faith of the transfer from Barstow to Thurman in August, 1885, with a plea of estoppel of plaintiff’s denial of an indebtedness acknowledged in an authentic act importing a confession of judgment, followed by a demand in reconvention for a judicial recognition and enforcement of the mortgage.

The defendants have appealed from a judgment in favor of plaintiff. The serious contention in the case involves the objection to' any parol evidence to show the alleged true consideration of the mortgage, on the ground of the familiar rule that such evidence cannot be admitted against or beyond what is contained in the acts. C. C 2276.

That rule has been the subject of countless adjudications from this Court, and it has been uniformly interpreted and construed so as to admit parol evidence to show error or fraud in the acts, or to show the real cause of the contract when the same is not fully expressed or described therein.

Such a construction was followed in very recent opinions of this Court as at present composed, but the earnestness with which defendants’ able counsel have urged the vigorous enforcement in this case of the general rule, as an inflexible bar against all attempts to abridge or modify the irresistible force and effect of authentic acts, has induced us to go once more over the whole field of discussion on this subject, and to review our whole jurisprudence on a point of more than ordinary importance and of great interest.

Our study of the question includes the consideration of a case so strikingly similar to the controversy in hand thatw.e herein transcribe in full the language used by Judge Martin as the organ of the Court in his statement of the salient points discussed in the case of Falcon vs. Boucherville, 1 Robinson, p. 337:

The defendant is appellant from a judgment perpetuating an injunction obtained to stay proceedings on an order of seizure and sale which he had procured, the judgment having been rendered on the ground of the absence of any consideration to support the defendant’s claim to the mortgage he sought to enforce. The authentic act, from which the confession of judgment is said to result, expresses only that the mortgagor has declared that he owes the mortgagee the sum of three hundred dollars, without stating the nature of the debt or the consideration from which it arises. The plaintiff alleges that the real consideration of the debt of $300 mentioned in the authentic act was the payment by the mortgagee of a judgment which Foley had obtained against the mortgagor for $96 and interests, and a compensation to the mortgagee for his services in a suit which he was to carry on for the mortgagor. * * * That the mortgagee has utterly neglected and refused to pay the said judgment * * * or to institute the suit aforesaid; whereby the consideration of the debt of $300 for which tlie mortgage was given has entirely failed. Our attention is first drawn to a bill of exceptions taken by the defendant to the admission of parol evidence to establish the nature of the consideration of the debt and its failure. It does not appear to us that the court erred. The plaintiff relied on the failure of the consideration, and as this consideration was not stated in the act, it became necessary to establish it by testimony, in order to prove its failure.”

The testimony was admitted and considered, and under its effects the mortgage was annulled.

Now, in the instant case, it appears from the act that the mortgagor only acknowledged an indebtedness of $2500 to the mortgagee, for which she executed her note payable in six months, and granted the mortgage, and the act contains no statement as to the nature or' origin of the debt. Defendants contend that sucli language necessarily and exclusively infers the existence of a past contracted indebtedness, and that nothing is open to explanation or discussion.

In this lies their principal error, for in this case as well as in the Falcon case, the consideration of the mortgagor’s indebtedness may have arisen from some other cause ; in the former case it was alleged to have arisen from obligation of the mortgagee to pay a judgment obtained against the mortgagor, and to render certain future services; in this case it is" averred to have arisen from the responsibility assumed and the risk incurred by the mortgagee in procuring a release bond for the mortgagor. Jurisprudence and the common experience of business men alike demonstrate that a past pecuniary indebtedness is not the exclusive source of an indebtedness sufficient to serve as a foundation for a mortgage.

Article 3292 of the Civil Code provides : “A mortgage may be given for an obligation which has not yet risen into existence; as when a man grants a mortgage by way of security for indorsements ■which another promises to make for him.”

The source of indebtedness used as an example in that article is of the essence of the source of indebtedness which plaintiff alleges as the foundation of the mortgage which she executed in favor of Barstow.

Hence we conclude that the silence of the act touching the origin of the obligation which the mortgage was intended to secure, left the door open to parol evidence to supplement the omitted information as a necessary step to show the subsequent failure, or more properly, the contingent future extinction of the consideration of the mortgage. It is elementary that when the obligation secured by the mortgage becomes extinguished by any legal mode, the mortgage itself ceases to exist. In the textual language of the Code (art. 3285), “in all cases when the principal debt is extinguished the mortgage itself disappears with it.”

The legal and true purport of the proffered parol evidence, as we understand from the record, is not to vary or contradict any of the recitals of the authentic act, not to disprove the existence of a mortgage as contemplated therein or created thereby, not to establish the nonexistence of the consideration or of the principal debt which is therein stipulated as the foundation of the mortgage resulting therefrom, but simply to establish the true and covenanted source or origin of the principal debt or obligation sought to be secured, not as a means of defeating the legal force and effect of the mortgage resulting from the contract, but merely to establish the subsequent extinction of the indebtedness acknowledged by the mortgagor, the true source of which was not set forth or recited in the act, as a means of extinguishing the mortgage as the obligation accessory thereto.

To that end and under that restriction the proffered parol evidence was legally admissible, and in that light we have considered it.

The reason or the philosophy of the rule which, as an exception, flows logically from the very terms of the general rule, is that parol evidence, in such cases, is admitted, not against or beyond what is contained in the acts, as a contradiction of the clear recital, or legal meaning of the stipulations contained therein, but on the contrary, to give effect to the contract arising therefrom, by supplementing necessary, information omitted therefrom, or to ascertain the true intent of the parties when the same is not clearly expressed or described therein.

As thus understood and construed, the rule is not amenable to the charge that it tends to destroy or impair the sanctity or binding force of authentic acts, but on the contrary, it tends directly to enhance the validity and efficacy of such acts, by substituting light for darkness, certainty for obscurity, and truth for error.

It is under the sense of such a duty that this court has so uniformly sanctioned the rule, and has applied in the following cases, which we have selected from a multitude of adjudications in similar controversies: Berard vs. Berard, 2 La. 3; Broussard vs. Subrique, 4 La. 350; Palangue vs. Guesnon, 15 La. 311; Williams vs. Vance, 2 Ann. 909; Roberts vs. Boulat, 9 Ann. 29; Laramia vs. Courrégé, 13 Ann. 25; Fleming et al. vs. Scott et al., 26 Ann. 545; Cole vs. Smith, 29 Ann. 551; Jackson vs. Miller, 32 Ann. 432; Levy vs. Ward, 33 Ann. 1033; Vignie vs. Brady, 35 Ann. 560; Armstrong vs. Armstrong, 36 Ann. 551; Bellock vs. Gibert, 36 Ann. 565.

We therefore find no error in the ruling of the district judge, as complained of in defendant’s bill of exceptions.

In our examination of the evidence in the record we are met by an objection of defendant’s counsel to the consideration of the testimony of W. II. Wise, one of the present counsel of plaintiff, on the ground that he was at the date of the act, the agent or attorney of Barstow, for the purpose of accepting the mortgage, and that he is prohibited by law from giving evidence of anything that has been confided to him by his client.

Without expressing any opinion as to whether Mr. Wise was in that transaction the attorney or counsel of Barstow, or whether the subject-matter of his testimony involves the disclosure of confidential communications, within the meaning of the law invoked agaiust him (C. C., art. 2283), we find from the record that no objection was made below to his testimony by Barstow or his counsel, but that on the contrary, he was cross-examined, without any reservation or explanation, touching the instructions received by him from Barstow in connection with the mortgage in question.

The argument that the law is absolutely prohibitory, and that this court must exproprio motn discard any testimony given below in violation thereof, even in the absence of any objection, is not sound, and is not sanctioned by the text of the article.

Unlike the prohibition contained in article 2278 of the Code, touching the absolute and unqualified exclusion of parol testimony to prove certain facts, art. 2283 contains a very material qualification to the prohibition, namely, that the attorney shall not give such evidence without the consent of such client.” As no objection was urged by the client or his present counsel at the trial below, the consent of the client must be presumed, and the evidence thus becomes legal and admissible. In such cases the client will not be allowed to take his chances of testimony of his former attorney, if the same be favorable to his cause, and to subsequently repudiate the same if he is frustrated in his expectations.

After a thorough examination of the evidence, we reach the conclusion that it is overwhelmingly in support of all the necessary allegations of plaintiff’s petition, and that Thurman, the assignee, who acquired the note long after its maturity, is subject to all the equities which could and do affect the original mortgagee.

Judgment affirmed.