text:
    No. 8.
    John B. Durham vs. Julia Williams, Tutrix, et al.
    The judgment homologating a final Account of Executors and discharging them, is only res judicata as to the matters embraced in the Account. It is no bar to the claims of ored-itors or heirs which did not, in any manner, form the subject of it. Therefore, the Executors of the deceased husband not having liquidated the Community between him and his surviving wife, his heirs can make proof of his rights against that Community, in a partition suit brought by the assignee of the widow in community, to divide the common property.
    APPEAL from the First Judicial District Oourt, parish of Caddo. Taylor, J.
    Laud & Land for Plaintiff and Appellee:
    First — This case was remanded by the Supreme Court in order to enable the parties to ascertain, according to law, what was the residuary interest of Mrs. Williams in the community existing between her and B. F. Hollingsworth, deceased. 82 A. 162.
    Second — Plaintiff, the assignee of Mrs. Williams, then sued the executors of Hollingsworth for an account, in order to determine the residuary interest of the widow in community. The account was rendered, and was homologated contradictorily with the heirs. It showed that all the acknowledged community debts had been paid with funds in bank belonging to the deceased at the time of his death.
    Third — On the trial of this suit, defendants offered to prove that the community is indebted unto the separate estate of Hollingsworth. Such evidence was inadmissible, because the community had been administered and settled in the succession of the husband, and the judgment homologating the final account of the executors and discharging them from their trust was conclusive, as to all issues and questions raised by the suit for an account. 12 R. 216; 13 A. 143 ; 12 A. 222; 8 L. 234; 14 A. 763; 29 A. 624; 19 L. 318; 12 A. 197. The court erred in admitting the testimony offered.

      Fourth — The judgment of the court on the facts of the case is correct.
    Fifth — The court erred in permitting defendants, who are the heirs of B. F. Hollingsworth, to introduce testimony to show that the recitals contained in the authentic act of sale from Samuel Hollingsworth to B. F. Hollingsworth were not true, and that said act of sale was intended as a donation.
    Alesander & Blanchard for Defendant and Appellant:
    First — The community of acquets and gains under our law is nothing more or less than a partnership established by law. At its dissolution, by death or otherwise, it must be liquidated, and the respective interests of the partners settled jnst as in other partnerships. In this settlement the partnership or comniunity debts are first to be paid, then the amounts put or brought into the partnership or community by each partner or spouse are to be deducted and refunded to them, and the balance of the profits or accumulations, if any, is divided equally between them. O. 0. 2402, 2403, 2406, 2408, 2409 ; 6 A. 634 ; 9 A. 60 ; 12 A. 649 ; 14 A. 618, 726.
    Second — On the dissolution of the community the wife’s interest in the community property is residuary only, and she is not the owner of any specific piece of said property, nor of any specific interest in any part of it. There must be a settlement of the community. 17 L. 247 ; 7 R. 404 ; 2. A. 30 ; 25 A. 379 ; 26 A. 639; 31 A. 493; 32 A. 162.
    Third — The widow in community can not while the succession is still under administration, and before its debts are paid, and her residuary interest thus definitely ascertained, execute a valid mortgage on her undivided half of any specific property of the succession. 31 A. 493.
    Fourth — The administration of a succession by an executor or administrator does not involve a settlement of the community between the heirs of the deceased and the surviving widow. Administrators and the creditors, whom they represent, are only interested to the extent of seeing that the community debts are paid out of the community assets; after this the matter of settlement between the widow and heirs is a matter purely personal to themselves, and entirely foreign to the purpose for which such officers are appointed.
    Fifth — The closing of an administration by the filing and homologation of a final account by an executor or administrator-is not res adju-dicata as to any thing except as to what is embraced in such account, and can not possibly preclude the heirs from afterward suing for a settlement of the community.
   The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiff having acquired the undivided interest of the defendant in a piece of real estate, in the city of Shreveport, which he claimed to consist of one half thereof, and one sixth of the other half, and one fourth of one sixth of the same half (in other figures, to the 29-48ths of the same], brought this suit to effect a partition, contradictorily with his co-owners, the children of the defendant by a former marriage, namely: the heirs of B. E.. Hollingsworth. These have demurred by a general denial, but have claimed ownership to the 19-24ths •of the property.

The issues thus presented were first tried by the district court. "Dissatisfied with the judgment rendered, the plaintiff appealed and the late Supreme Court decided that the lot in question- was community property, and the plaintiff had acquired the proportion which he claimed, but considering that on the record before them, they could not undertake to fix what amounts, if any, were due by the community to the •separate estate of the deceased husband, the Court remanded the case, ,to have the rights of the parties, in this regard, settled. 32 A. 162.

In furtherance of that decree, the case was tried de novo, and judgment was rendered, recognizing the pretensions of the plaintiff as owner of the 29-43ths, and the defendants as owners of the remaining 19-48ths of the property, directing the sale thereof, and a distribution of its proceeds between the parties litigant, in the proportion of their respective interests so adjusted. The district judge did not feel authorized, under the evidence adduced, to admit the claims of the heirs and children of Hollingsworth, for sums which they claim were invested in the community by the deceased, out of funds said to have been advanced to him by his father and by his executors, and for other heirs, furnished by themselves, after his death, out of their individual funds. Erom that judgment, the defendants have appealed, asking only, that they be allowed those sums out of the proceeds to be realized by the partition sale.

The record shows that since, the case was remanded, the plaintiff in the rights of the widow, demanded that the executors of B. E. Hollings - worth be ordered to file a full, fair, and complete account of their administration of his estate, and that he procured a decree to that'effect.

Shortly afterward, the executors, in obedience to the order, presented a final account of their administration, accompanied by an explanatory petition, in which they declare, substantially, that the real -estate inventoried was not sold, but passed into the hands of Mrs. Hollingsworth, who had qualified as tutrix, and that the only funds which had come to their possession was the sum of $1942 31 found in bank, which they disbursed in settlement of debts due at the death of Hollingsworth, or shortly after, as shown upon the account accompanying the petition. They prayed that the filing of the account be advertised, and that the minors be cited through their legal representatives to show cause why the amount should not be homologated. The Court ■ordered the publication and the citation. At the subsequent instance o£ the executors, the amount was approved, and the applicants were discharged from their trust.

On the second trial of this case, the plaintiff introduced in evidence the petition for an account and .the proceedings following it, including the judgment of homologation.

The defendants offered all the evidence adduced by them on the previous trial, and besides, some testimony, the whole of which was objected to, but the Court having admitted the evidence, bills of exceptions were reserved. The object of the defendants was to establish the money claims of the estate of Hollingsworth and of his minors against the proceeds of sale of the lot in question, which has been adjudged to ■be community property.

The grounds upon which the evidence received was opposed, as set ■forth in the first bill, are substantially: first, that the same was inadmissible under the general issue; and, second, that the judgment of homolo-gation of the executors’ account is conclusive on the defendants, and sets at rest forever the matters which they now seek to agitate.

In the opinion delivered by our immediate predecessors, in this very case, on a bill taken to the admission of the same evidence, under •the same defense, the general issue, the Court held that the evidence was properly received to show a diminution of plaintiff’s right in or upon the property. If the evidence was admissible for that purpose, it necessarily must likewise be permitted to prove a diminution of his pretensions to the proceeds of sale, which, when realized, will represent the ■property, and to which all claims against it will attach. 82 A. 162. See, also, 10 A. 80.

The judgment of homologation is no bar to the admission of the •evidence. It cannot be considered as having the force of res judicata, for the plain reason, that the account upon which it was rendered, ■accompanied as it was by the explanatory petition of the executors, did not contemplate at all to liquidate either the succession or the community, but proposed merely to indicate in what manner the money inventoried, and which was the only asset which really had cqme to the hands of the executors, had been disposed of by them. It is conclusive only of such matters as are mentioned in it, and particularly of the •claims absorbing the funds accounted for. It does not affect, to any ■extent, subjects which it does not embrace. Creditors who have not been placed upon it, and have not opposed it, could no longer ask in the probate court to be placed upon it, as the executors have been discharged, and the heirs have been put in possession of the succession assets.

Over and above this, we do not find in the record that the heirs and children were directly notified of the rendition of the account. The only evidence to show notice was the newspaper advertisement. A citation was necessary to fasten upon the heirs the consequences of the homologation of the account. It is useless to quote authorities on this point.

The defendants next proposed to show by oral testimony, that, although in an act of sale, by their ancestor to their father, of the undivided fourth of a plantation in Bossier parish, it was stated that the purchase price was paid in ready money, still such was not the fact. To this offer the plaintiff objected on the ground that an authentic act, containing acknowledgments, cannot be impeached, contradicted, or explained by the parties to it, as such act makes full proof, for or against them, unless it be shown to be a forgery.

The testimony was allowed, and a bill was reserved. The plaintiff had not acquired the entire interest of Mrs. Hollingsworth in the community, but only in the Shreveport property, now sought to be partitioned. He had no interest to oppose the evidence offered, the object of which was only to show that the apparent sale was in reality a donation “ en avancement d’hoirie,” under the form of an onerous contract, and that the share so acquired did not form part of the community between the deceased and his wife.

The evidence shows that in the settlement of the succession of Samuel Hollingsworth this fourth interest was treated as a donation. 26 A. 545; 30 A. 966; C. C. 1900.

After considering the evidence, the lower court thought that the claims of the estate of B. E. Hollingsworth, and of his children, had not been sufficiently established, and did not allow them.

We have given that evidence our careful examination, and think that the defendants are entitled to relief.

In the opinion of our predecessors, it is said that “ evidence was adduced by the defendants, which renders it somewhat probable that the funds ($2250) used in the purchase of this lot were the separate property of the husband.” We not only endorse that view, but consider further, that the evidence adduced establishes with reasonable legal certainty that B. E. Hollingsworth has invested in that purchase part of a sum of money which his father had advanced him,' and that the buildings subsequently placed upon the lot were paid for out of the sum of $4000, which he had obtained from the executors of his father, shortly before he himself had departed this life. The evidence does not satisfy us that, if any amount remained due to the contractor for the improvements placed upon the land, it was paid out of money which accrued to the defendants from an insurance on their father’s life, made for the benefit of his widow and children. Their mother is liable to them for the use which she has made, or authorized to be made, of that sum.

The recognized claims of the defendant, as representing the estate of B. F. Hollingsworth, must be satisfied out of the proceeds of the property to be sold in partition, as a debt of the community; what shall remain thereafter will constitute the residue of the community, and will have to be distributed between the plaintiff in the rights of Mrs. Hollingsworth, now Mrs. Williams, and the defendants in,the rights of their deceased father, in the proportion of 29-48ths to the former, and of 19-48ths to the latter, to be divided among themper capita. C. C. 2402, 2409; 6 A. 634; 9 A. 60; 12 A. 549; 14 A. 618, 726; 17 L. 247; 7 B. 404; 2 A. 30; 25 A. 379; 26 A. 639; 31 A. 493 ; 32 A. 162.

The alienation of the surviving wife’s interest in the community, which is only residuary, cannot prejudice the rights of the creditors of that community. Although that interest vests at the dissolution of the community, it is subject to the claims of the creditors of the community. 31 A. 493; 32 A. 162.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court, in so far as it directs the partition and sale of the property in question, be affirmed, and that in other respects it be reversed, and, proceeding to render such judgment as should have been next rendered by the lower court,

It is ordered, adjudged, and decreed that out of the proceeds of the sale of said property the defendants be paid the sum of six thousand two hundred and fifty dollars, and that after satisfaction of said sum, the balance remaining be divided between the plaintiff and the defendants, in the proportion of twenty-nine forty-eighths (29-48ths) to the plaintiff, and of nineteen forty-eighths (19-48ths) to the defendants ratably; the costs of both courts to be borne by the litigants in the same proportion.

On Rehearing.

Further examination of the evidence in this case, as embodied in two transcripts; one of which only had not been submitted to us when we gave the matter our attention, and which has since been brought to our notice, induces us to alter our views, to some extent, favorably to the plaintiff.

The counsel for the plaintiff admits in his brief for a rehearing that the §1910 32 found in bank are part of the amount which Hollings-worth had obtained from the executor of his father shortly before his death; but he does not consider that it has the character of separate funds, as he deals with it as borrowed meney. We do not view the matter in the same light that the plaintiff does, but take it to be an advance on his share of inheritance. The executors could make no loan. We find that the whole. 14000 previously allowed should be reduced to $1650, which were actually paid out of said balance in bank to the contractor of the buildings on the lot in question.

The complaint that we allowed to the defendants five forty-eighths, accruing to the plaintiff, is not founded. The whole proceeds of sale of the property will be subjected to the satisfaction of the amounts invested in the community by Hollingsworth, whom the defendants now represent. The fallacy underlying it consists in the assumption that those amounts are to be satisfied only out of the share of Mrs. Hollingsworth, now owned by the plaintiff. If it were so, the complaint would be just and proper; but it is not so. The amounts are to be paid as well from that share as from that of the minors ; what shall thereafter remain will then have to be distributed pro rata, as indicated in our previous finding.

It is therefore ordered that the opinion and decree in this case be amended, so 'as to allow sixteen hundred and fifty dollars, $1650, in place of four thousand dollars, $4000, in addition to the twenty-two hundred and fifty dollars mentioned, and so that the total, recognized as due the defendant, be fixed at three thousand nine hundred dollars only, $3900; and that so modified the opinion and decree remain otherwise undisturbed, and that execution thereof follow.


source: Caselaw Access Project

author: Levy, J.

license: Public Domain

text:
    No. 16.
    Bolin P. Green vs. J. W. Reagan, Sheriff, et al.
    Judicial records cannot be impeached or contradicted by verbal evidence.
    A judgment can be validly rendered and signed out of term time, by consent of tbe parties. Morrison us- Citizens’ Bank et al., 27 An. 401, affirmed.
    Damages willnot be allowed on tbe dissolution of an Injunction, except where tbe execution of a monied judgment is enjoined.
    APPEAL from the Second Judicial District Court, parish of Webster Drew, J.

    C. E. McDonald, Land & Land, R. W. Turner and J. A. Snider, for Plaintiffs and Appellees.
    J. D. & J. T. Watkins for Defendants and Appellants.
   The opinion of the Court was delivered by •

Levy, J.

Barbara Beopple, the wife of Bolin P. Green, instituted a suit in the District Court of Webster parish for a separation from bed and board with her said husband, ior the dissolution of the community of acquets and gains, for recognition of her ownership of certain property claimed in the petition, and that certain property in the name of James B. Green be decreed to belong to the community between herself and husband, and for sale of the community property to effect a partition and for an injunction inhibiting defendant from disposing of the community or other property pending the suit.

Judgment was rendered in chambers, in the reason for which judgment it is stated, that the case “was by consent taken under advisement, judgment to be rendered in vacation.” The judgment thus rendered decreed a separation from bed and board, the dissolution of the community, perpetuating the injunction, partition by sale of the community property, and recognition of the property held in the name of James B. Green as belonging to the community, and directing the Clerk of the District Court of Webster parish to file the opinion and judgment, and give notice to the parties, and “allowing the parties thirty days for taking orders of appeal, as per agreement of parties.”

Under this judgment a writ, directing the sale of certain property in the possession of defendants (the plaintiffs herein), was issued .and delivered to the sheriff of Webster, who proceeded to advertise the same for sale. The plaintiffs herein, therefore, brought suit, enjoining the sheriff from proceeding further in the execution of the said writ, averring the nullity of the judgment in the suit of Barbara Beopple vs. Green, No. 195, on the ground that said judgment was rendered in chambers without obtaining the consent of the defendants in said suit, but in spite of their earnest remonstrances against it being so rendered, and praying for damages in the sum of five hundred dollars for wrongful seizure of their property. The injunction was issued. There was judgment perpetuating the injunction, annulling the judgment rendered in the case of Barbara Beopple vs. Bolin B. Green ec al., No. 195, District Court of Webster parish; Louisiana, releasing the property seized •and restoring it to the possession of the plaintiffs. From this j udgment the defendant, Barbara Beopple, has appealed.

The defendant filed a peremptory exception, alleging that the petition discovered no cause of action, which exception, from the record, •does not appear to have been passed upon by the court a qua.

In her answer, the defendant alleges the validity and legality of her judgment in the original suit, avers that the minutes' of the court and the judge’s entry on his docket and the words and tenure of the .judgment itself show that the judgment enjoined was lawfully rendered and signed, and that such court records cannot be impeached. 'She prays dissolution of the injunction, for damages, etc. Defendant .filed a bill of exceptions to the admissibility of parol evidence to-invalidate the judicial records in this case, the judge a quo having overruled the objection made by her counsel to the introduction and admission of such evidence, in the absence in the petition of allegations of fraud, error or violence.

The facts disclosed in the record in this case may be briefly stated thus:

On the 22d day of October, 1879, after the evidence in rebuttal, on the part of , the defendant in the original suit, had been closed, as also that of the plaintiff in rebuttal, the following entry was made by the district judge on his docket: “By consent, this case is taken under advisement and it is agreed, that, the judgment be rendered in vacation and notices thereof and thirty days given to either party to take orders of appeal.”

On the same day the following entry appears on the minutes of the court: “ By consent this case is taken under advisement, and it is agreed that the judgment shall be rendered in vacation, and notice thereof served, and thirty days given to each party to take orders of appeal.”

The decision rendered in the case of Taylor vs. Jones, 3 A. 631, is conclusive to our minds and the application of the sound legal principles therein laid down dispose of this case. There Chief Justice Eustis, as the organ of the Court, said : “ Considering the principle elementary, that no parol evidence can be received to impeach or contradict a record of judicial proceedings, it is out of place to cite authority in support of it. Where would be. the use of records if they were subject to be changed by the testimony of witnesses or dependent upon the 'treacherous memory of man ? “ De fide et officio judicis non recipitur ■quosstio; sed de scientia sive error sit juris sivefacli.”

We think the objection to the admission of parol evidence made by the defendant’s counsel in the lower court should have been sustained, and under this view we disregard the testimony of all the witnesses introduced by both parties. This testimony is exceedingly conflicting and after all shows the justice of the principle enunciated in the decision just quoted, that judicial records should not be dependent upon the “ treacherous memory of man.” ■ The petition in this suit does not allege fraud, error or violence, and upon the face of the minutes, judge’s docket and in the reasons for the judgment itself, the legality of the judgment rendered in chambers by consent fully appears. The minutes are the solemn evidence of the judicial acts performed in open court, they are read and signed in open court, and one of the principal objects in reading them is to give all parties an opportunity of having them corrected if any erroneous entries are contained in them. It does not appear that any objection to their correctness was made before they were signed. Parties in interest failed to avail themselves of the opportunity afforded them, and it would be subversive of the well grounded principles of our jurisprudence to allow what we regard as solemn judicial records to be attacked by parol evidence.

In the cases to which we are referréd, viz.: 21 A. 306, 23 A. 523, 26 A. 119, it does not appear that the judgments, signed during vacation, were based upon the consent of the parties. In Morrison vs. Citizens’ Bank et al., 27 A. 401, the Supreme Court held: “As to the rendition and signature of judgment out of term-time: It was agreed that the judge who tried the case should take it under advisement and render judgment and sign it after the court should have adjourned. The parties were competent to make the agreement, and the judgment having been rendered in conformity therewith is good. The cases of Simonds vs. Leovy, 21 A. 306, and Hernandez vs. James, 23 A. 483, are not authority for the defendants. In ¿neither of them had the judgment been rendered and signed in vacation by consent.”

This Court has repeatedly held that damages will not be allowed on the dissolution of injunctions, except in case where executions to enforce monied judgments are enjoined. There is not @uch a judgment in this case, and the defendant in injunction must therefore be remitted to her right to institute suit on the injunction bond.

It is, therefere, ordered, adjudged, and decreed that the judgment herein appealed from be annulled, avoided and reversed; and proceeding to render such judgment as should have been rendered in the lower court, it is ordered, adjudged and decreed that the injunction granted by the District Court for the parish of Webster in this case be dissolved; and the right of the defendant, appellee herein, to proceed against the principal and surety on the injunction bond is reserved to her. The costs of this appeal and of the lower court to be paid by the plaintiffs, appellees.


author: Poché, J.

text:
    No. 12.
    State of Louisiana ex rel. Solomon Wise vs. S. L. Taylor, Judge of the First Judicial District Court.
    The Judge of a District Court cannot he compelled hy Mandamus to issue an Order of Seizure and Sale. His refusal to do it can only be revised "by this Court on Appeal.
    j^PPLICATION for Writ of Mandamus.
    J. L. Hargrove and Looney & Elstner for the Relator.
   The opinion of the Court was delivered by

Poché, J.

Relator applies for a writ of mandamus to compel the judge to sign an order of seizure and sale, on a note secured by mortgage, with copy annexed in due form, presented to him by relator for executory process ; which order was refused by the judge for reasons which he gave in writing.

In answer to the alternative writ, the judge urges, among other reasons, against the application, that he cannot be compelled under the law, by mandamus, to grant the order and relief prayed for in relator’s petition; that having acted on said petition, his course in the premises, can be revised by this Court by an appeal only, and not by mandamusi

The mere statement of the ease is in itself a solution of the question involved. The writ of mandamus lies to compel the judge of an inferior court to perform any of the duties required of him by law, but not to compel him to grant an order, or render a judgment in a specific manner, when legal discretion is vested in him. He can be compelled by mandamus to render a decision,' but he cannot be dictated, by that writ what, or in what manner, he must decide.

Hence this Court has refused to compel a judge of an inferior court, by mandamus, to,grant a writ of injunction and of sequestration, holding that the injured party’s remedy was by an appeal from the judge’s refusal. 28 A. 905 ; 81 A. 794 ; 32 A. 549.

In the case of the State ex rel. W. P. Ames vs. the Judge of the Second District Court of New Orleans, not yet reported, we refused a writ of mandamus to compel the judge to homologate the proceedings of a family meeting, holding that we could not dictate to a judge the particular decision which he should render in any cause, and that his acts could only be reversed on appeal.

In this case, the judge has not refused to act or decide on the relief which was asked by the relator, but he decided that relator was not entitled to the order prayed for. By granting the mandamus asked at our hands, we would virtually decree that his decision was erroneous, and thus we would transcend our jurisdiction, as defined and limited by the Constitution. 17 A. 328.

It has been frequently held that an order of seizure and sale is a judgment to the extent of being appealable. It follows as a corollary to this proposition, that the refusal of such an order-must be a judgment to the extent of being subject to appeal, and therein lies the remedy of relator in this case.

It is therefore ordered that the peremptory mandamus prayed for is refused at relator’s cost.


author: Fenner, J. Todd, J.

text:
    No. 10.
    Thomas M. Gilmer vs. J. B. O’Neal, Sheriff, et al.
    By the provision of the Constitution of 1879 itself, (Art. 220), prior rights of homestead, arising under prior laws, are entirely unaffected hy said Constitution. Therefore, in cases of liomestead founded upon the law of 1865, this Court will construe and apply that law pre-eisely as if the Constitution of 1879 had never been adopted.
    A man, who was not residing on property, upon which he granted a special mortgage, cannot, hy subsequently residing on it, acquire a homestead right therein.
    A judicial declaration, made hy a party, that certain property did not belong to him, will estop'him from claiming ahomestead on it, when it is afterwards decreed that the property did belong to him, and that he was only screening it from his creditors by means of a simulated sale.
    Previous to the Constitution of 1879, the debtor had the right to waive his homestead. hTugent vs. Carruth, 32 An. 444, affirmed.
    A debtor, who does not judicially assort his claim to a homestead upon property, before his title is divested by a sheriff’s sale, loses Ms right thereto. Kuntz vs. Baehr, 28 An. 90, affirmed.

      I PPEAL from the Eighteenth Judicial District Court, parish of Bos-xjl sier. Turner, J.
    Land & Land for Plaintiff and Appellant :
    First — Laws in pari materia should be construed together in order to ascertain the meaning of the Legislature. R. C. C. 17 ; Succession of Herbert, 5 A. 121; Gayle vs. Williams, 7 L. 466; Rouamt vs. Hunt, 17 L. 407 ; Phelps vs. Riglitor, 9 R. 531. See, also, Dubreiul vs. Ronyan, N. S. 161; Gas Light Company vs. Nuttall, 19 L. 447 ; DeArmas’ Case, 10 M. 172; Bank of Louisiana vs. Parrar, 1 A. 54 ; Douglass vs. Craig, 2 A. 919.
    Second — The statutory homestead law of 1865, and the constitutional homestead law of 1879, are laws on the same subject-matter, and should be construed together. Revised Statutes of 1870, sections 1691,1692 ; Constitution of 1879, article 219.
    Third — These homestead laws are founded on the same considerations of public policy, and were made for the preservation of public order.
    Individuals cannot, by their conventions, derogate from the force of laws made for the preservation of public order or good morals. R. C. C. article 11; Mary L. Hardin vs. Wolf & Cerf, 29 A. 333.
    Eourth — The constitutional homestead law prohibits the debtor from mortgaging his homestead ; and prohibits him from renouncing or warring his homestead rights or exemptions. It also prohibits any court or ministerial officer of the State from enforcing any judgment, execution, or decree against the property set apart for a homestead, including such improvements as may be made thereon from time to time; provided, the property herein declared to be exempt shall not exceed in value two thousand dollars. Constitution of 1879, articles 220 and 222.
    Fifth — An obligation without a cause, or with a false or unlawful cause, can have no effect. R. C. C. 1893.
    The cause is unlawful when it is forbidden by law, when it is contrary to moral conduct or public order. R. C. C. 1895.
    Sixth — Any consent or agreement by a debtor to renounce or waive his homestead rights, or to mortgage his homestead, or that his homestead may be seized and sold under execution, is a prohibited contract without any effect,
    Seventh — Whatever is done in contravention of a prohibitory law is void, although the nullity be not formally directed. R. C. C. 12.
    A judgment rendered, or a judicial sale made, in violation of a prohibitory law, is a nullity so absolute that no action is necessary to set it aside. Galbraith vs. Snyder, 2 A. 492 ; Renshaw, Cammack & Co. vs. Imboden et al., 31 A. 661; Person vs. O’Neal, 32 A. 229.
    Eighth — The doctrine that a debtor who is unable to arrest by injunction the violation of a prohibitory law, in the seizure and sale of his homestead, is thereby divested of his homestead rights, and the saléis legal and valid,is contrary to the fundamental principles of jurisprudence, and the principles of natural justice and equity.
    Justinian defines jurisprudence to be the science of what is just and unjust. What could be more unjust than the seizure and sale of a debtor’s homestead in violation of law, when it was impossible for him to arrest the sale by judicial process ?
    L. M. Nutt and Wise & Herndon on the same side.
    J. D. Watkins for Defendants and Appellees.
   The opinion of the Court was delivered by

Fenner, J.

From the mass of facts and issues presented, we select the following as decisive of the case.

Gilmer, plaintiff herein, specially mortgaged to Hamilton & Co. his plantation, in Bossier parish, to secure a debt of $9974 11. This mortgage was executed on March 18,1872. At that date Gilmer was not living on this plantation, and had no homestead right therein. He subsequently established his residence there.

The debt and mortgage of Hamilton & Co. were duly assigned to Templeman, the defendant herein.

Thereafter, one Taylor, holder of a mortgage of anterior date, on the same property, brought suit and obtained judgment against Gilmer, upon which execution was issued, and the property seized and sold. It was adj udieated to W. W. Sebastian, son-in-law o£ Gilmei’, at a price which left nothing to be attributed to Templeman’s mortgage, and title was made to Sebastian, who entered into apparent ownership.

Templeman then brought suit against Gilmer, Taylor and Sebastian, asking judgment against Gilmer for his debt and recognizing his mortgage; averring that the title of Sebastian was a fraudulent simulation, the result of collusion between him and Gilmer, that Gilmer was the real purchaser, and that Sebastian was merely an interposed person holding title for Gilmer as the real owner, and asking for judgment declaring the property to belong to Gilmer, and to be subject to Temple-man’s mortgage. To this suit Gilmer filed answer, denying that he owned the property.

After trial on these issues, judgment was rendered in favor of Tem-pleman and against Gilmer and Sebastian, declaring the latter’s title to be the title of Gilmer, and the property to belong to Gilmer, condemning Gilmer to pay the amount due Templeman, and decreeing that his special mortgage be recognized and enforced, and that the property be seized and sold to pay and satisfy the same.

From this judgment no appeal was taken, and it is res judicata. We find it unnecessary to detail the proceedings had under the first execution which was issued on this judgment, and the unexecuted agreements in reference thereto.

In July, 1877, a second execution was issued, under -which the property was seized and advertised for sale on September 1st, 1877. On August 11th, an agreement in writing was made between Gilmer and P. B. Cash, who was the owner of a judgment of Lydia Watson against Gil-mer, enforcing a-mortgage against the same property, ranking that of Templeman, and who was also the assignee in pledge of Templeman’s judgment. By the terms of this writing, it was agreed that Cash should buy in the property at the execution sale, provided it did not bring more than the amount due on the judgments controlled by Cash, and that Gilmer should have the right to redeem the property by paying $2600 on the 1st of December, 1877, and certain other stipulated sums at subsequent dates therein fixed. It was further agreed that, in the mean time, Gilmer should be left in possession to manage and cultivate and gather crops, and to devote proceeds, after payment of necessary ■ expenses, to his payments under the agreement; and, finally, that if Gilmer failed to make the payments as agreed, he should “lose all right of redemption, and forfeit any payment he might have made.”

On the day of sale, a further written agreement was made between Gilmer, Cash and Templeman, and filed with the sheriff, by which it was stipulated that “all the land should be offered and sold at one time, and not in legal subdivisions.”

At the sale Gilmer handed the sheriff a written document, as follows : “ September 1st, 1877. Sir, I claim as a homestead 30 acres in north of H. W. J of N. W. J of section 17, and 30 acres, etc. (describing land,) signed: T. M. Gilmer.”

The property was sold and adjudicated to Cash, and the title passed to him without interference from Gilmer. Gilmer was left in possession, as agreed, and gathered and disposed of the crops, and a large portion of the proceeds thereof enured to his benefit.

He totally failed to make the payment of $2600 on the 1st of December, 1877, as required by his agreement, and, by the terms thereof, he thus forfeited absolutely his right of redemption, and the title of Cash became indefeasible. Thereafter Cash sold to Templeman, as he had a right to do.

On the 23d of January, 1878, Gilmer filed his petition in the present action, averring his homestead claim, alleging that Templeman and the sheriff, O’Neal, were proceeding to dispossess him thereof, to his irreparable injury, and prayed for an injunction and for judgment, maintaining his possession and ownership of said homestead.

From a judgment of the Court a qua rejecting his demand, Gilmer has taken this appeal.

His counsel strenuously contends that, since the passage of the Constitution of 1879, the homestead provisions therein contained are to be taken as an authoritative interpretation by the Constitutional Convention of the true meaning and scope of the prior homestead law of 1865; that the two laws, being in pari materia, must be construed together; and that the express provisions in the Constitution, declaring that the homestead shall not be susceptible of mortgage, prohibiting the waiver or renunciation of homestead rights, and forbidding any court or ministerial officer of the State from enforcing any judgment, execution or decree against property set apart for a homestead, must now be considered as engrafted by implication upon the law of 1865.

We can by no means assent to these propositions. It would be easy to show that, on general principles, they would be utterly confounded, but it is unnecessary to discuss them in that light, because the constitution itself expressly declares that “ rights to homesteads or exemptions under laws or contracts, or for debts, existing at the time of the adoption of this constitution, shall not be impaired, repealed, or affected by any provision of this Constitution.” Article 220. The effect of this plain provision is to leave prior rights, arising under prior laws, entirely unaffected by the constitution, and to be controlled by such laws as construed and applied by the courts; and as the right of Gilmer is founded exclusively on the homestead law of 1865, we must construe and apply that law precisely as if the Constitution of 1879 had never been adopted.

The following objections are, each and all of them, fatal to Gilmer’s claim,' viz.:

First. — In a case recently decided by us at Monroe, and not yet reported, we held that where a special mortgage was given, the mortgage and homestead rights must be governed by the state of facts existing at the date of the mortgage. There the debtor owned and mortgaged the undivided three fourths of an immovable, which, by reason of the indivisión, was not subject to the homestead claim. (26 A. 156; 28 A. 355; lb. 608.) He subsequently acquired the remaining fourth, and then claimed the homestead, which we denied. For the reasons given in that decision, we now hold that, inasmuch as, at the date of the Templeman mortgage, Gilmer did not reside on the property, he had no homestead right therein, the property came under the mortgage free therefrom, and he could not alter, diminish, and pro tanto, destroy the effect of the mortgage by subsequently moving on the property and claiming the ex post facto homestead.

Second. — When Templeman sought to enforce his mortgage on this property, Gilmer not only failed to set up his homestead right, but denied that he owned the property, and sought to cover it from the pursuit of his creditor under a fictitious and simulated title, which he had placed in the name of another. After the judgment of the court had laid bare and annulled this simulation, and had subjected the property to' the mortgage, and directed it to be sold to satisfy the same. Gilmer was estopped from contradicting the'judicial allegations of his answer in order to reap a new advantage therefrom, and the title which he had denied and covered up with a view of defeating his creditor, could not, though unmasked and established by the efforts of his creditor, be considered as such bona ficle title as was necessary to maintain the homestead claim.

Third. — We consider the agreement between Cash & Gilmer, under which he consented, beforehand and on valuable considerations, that Cash should purchase at the execution sale, had the double effect, first of a waiver and renunciation of his homestead claim, and, second, of giving to the execution sale the force and effect of a voluntary sale. We concur in the latest decision of this Court, establishing the right of the debtor to waive his homestead claim in a special property, and in favor of a special creditor, and we are perfectly clear that a man had the right to alienate his homestead by voluntary sale. Nugent vs. Carruth, 32 A. 444. On both grounds, therefore, his homestead right was destroyed.

Fourth. — If Gilmer had had a homestead right, it would have been lost by his failure to assert it judicially before his title was divested by actual sale, and notice to the sheriff has been rightly held to be no substitute for such judicial proceeding. Kuntz vs. Baehr, 28 A. 90. At the time when he first j udicially claimed the homestead, he had no title, bona fide, or other. The title had passed to Cash with Gilmer’s approval and consent. He had held under Cash, with nothing but a right of redemption, which he had forfeited. The title had passed from Cash to Templeman. If, after this double transfer, Gilmer could still be heard to assert the homestead claim, we see no reason why his right might not have encumbered the property indefinitely.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be affirmed, at cost of appellant.

ConcurRing Opinion.

Todd, J.

I concur in the decree just rendered, but place my concurrence solely and exclusively upon the second and fourth grounds assigned for the conclusion reached. I dissent from the other grounds stated in the opinion as reasons for the decree. I do not think the giving of a mortgage on the homestead by the debtor, debars him from claiming its exemption from seizure. Nor do I believe that the debtor could make a valid waiver of the exemption. In my judgment, such a renunciation is against public policy, and void; and in this respect, I adhere to the decision rendered by Mr. Justice Egan, as the organ of the Court, in the case of Hardin vs. Wolf & Cerf, 29 A. 333.

Mr. Justice Lew concurs in this opinion.


author: Bermudez, C. J.

text:
    No. 11.
    Succession of W. R. Cox. On Rule of Miss S. S. Cox.
    Succession property, seized uuclei* executory prooess, was sold by order of the Probate Court ponding an Injunction taken by tbe Administrator against tbe seizing creditor. Tbe purchaser at tbe probate sale deposited tbe price, by agreement, subject to tbe decision of tbe Injunction suit. That suit was decided in favor of tbe seizing creditor and tbe Probate sale declared null. ‘Whereupon tbe Administrator claimed to keep tbe price deposited by tbe evicted purchaser, in compensation for tbe rent and enjoyment of tbe property, on tbe ground that be was a purchaser in bad faith»

    Held, that this pretension is unwarranted, because tbe claim for rentis unliquidated and cannot be urged against a deposit 5 that tbe rent, if any is due, belongs to tbe seizing creditor ; and that tbe vendor, who failed to make a valid title to bis vendee, cannot treat him, in law or in equity, as a purchaser in bad faith.
    APPEAL from the First Judicial District Court, parish of Caddo. Taylor, J. -
    J. H. Shepherd and Land & Land for Plaintiff and Appellee.
    First — The claim of defendant in rule is not liquidated, and therefore cannot compensate that oí plaintiff, which is certain and admitted. 0. C. 2209; 9 A. 189.
    Second — Plaintiff claims a deposit entrusted to defendant by a confidential contract, and compensation is not permissible. 0. 0. 2956 ; 1 M. 847 ; 3 A. 514: 7 A. 53 ; 12 A. 257 ; 6 A. 40, 207.
    Third — Plaintiff is not liable for rents of the property purchased by her, except from the date the succession of Cox, her vendor, restores or tenders to her the price paid, which is a condition precedent. 3 M. 169.
    Fourth — If liable, as a trespasser, to pay rents, the same are due to the seizing creditor, who, if not paid by the sale of the property, may bring a direct action against the tenant. - 5 A. 300.
    Hicks & Hicks for Defendant and Appellant.
    First — The plaintiff held possession of immovable property of the succession in bad faith, and owes the fruits produced during her possession :
    1. Because she purchased and held possession of the property under a sale ordered by the Probate Court, during thependency of aninjunction, since dissolved, of the sale ordered by the District Court.
    2. Because she held possession of the property with full knowledge of the defects in the title. C. C. 501, 502, 503, 3451, 3453, 2301; 26 A. 733-4.
    3. Because she took and held possession of the property as purchaser under an order of sale granted by a court without jurisdiction. 6 R. 110, 111; see 32 A. 246.
    Second- — The fruits produced by the thing belong to its owner, and after his death, the administrator of his succession must account for them, unless they were gathered or produced while the thing was under seizure. The seizure made in the proceeding, Ho. 9760, was lost by the probate sale of the property seized, and delivery of possession of the property to the purchaser, Miss Cox, by the sheriff, as auctioneer, and the fruits produced, while the property was in her possession, can only be collected by the administrator: C. C. 501, 1147,1049,466 ; 23 A. 584 ; 7 A. 665 ; 11 A. 762 ; 6 R. 102-3; C. C. 466 ; C. P. 656, 658 ; 5 A. 302 ; 26 A. 360 ; 19 A. 521; 1 R. 542 ; 11 R. 182 ; 2 L. 280; 5 A. 300; C. C. 2669,2670.
    Third — The succession was the owner of the thing till it was adjudicated in the proceeding, No. 9760, and the administrator may collect the fruits produced by it if it were under seizure, no other person having attempted to collect them. C. P. 663 ; C. C. 491 ; 5 A. 300 ; 2 A. 925;

      Fourth — The fruits may be recovered by the plea in compensation. 31 A. 373-4. She must account for the fruits she might have made. 6 R. 467.
   The opinion of the Court was delivered by

Bermudez, C. J.

It appears from the pleadings and the evidence that after certain mortgaged real estate, belonging to this estate, had been ordered to be seized and sold by a District Court, and, after the sale ■thereof had been enjoined by the administrator, the Probate Court, on application made by the latter, ordered the sale of the same and other •property, composing the succession of the deceased.

At that sale the plaintiff in this proceeding became the adjudicatee of the real estate in question for $4000, which was, by consent, specially deposited to await the decision of the injunction suit and was not to be withdrawn without the formal consent of the adjudicatee.

Pending the appeal, an account was filed by the administrator in which this amount was placed to the credit of the succession. By consent, the taxes and the privileged debts due by the succession were paid out of ■this fund; $1874 of which only, still remain on deposit.

In the case of Lamorere vs. Succession of Cox, 32 A. 246, the Supreme Court held, that the injunction sued out by the administrator was unwarranted, and that the order of sale made by the Probate Court was -a nullity. The property, on being again offered for sale, was adjudicated to another person and the adjudicatee at the Probate sale was evicted ■from it.

The present proceeding was instituted to compel a return by the succession representatives, of the balance on hand, to this adjudicatee.

He resists the demand, claiming that the adjudicatee, being a pur•chaser in bad faith, ow u rents for the occupancy and enjoyment of the property and insists that the amount alleged to be thus due is chargeable to that fund.

A suit is now pending for the same purpose between the seizing creditor and the sheriff on one side, and the adjudicatee at the probate .-sale on the other.

It is clear that the resistance of the administrator is unwarranted, .not only because the amount claimed is unliquidated and not of equal dignity, and cannot be urged against a deposit, but specially, because if any rent be due, the succession representative has no standing in court -to claim the same. That right, if any such exist, can be exercised by the -unsatisfied seizing creditor only.

We have not been informed, and we are at a loss to conceive on what principle of law or justice a vendor, who has received and enjoyed and •who has failed to return the price of property assumed to be sold by him, to which he had made no valid title, and from which his vendee is after-wards judicially evicted contradictorily with him, can claim from the latter the value of the occupancy of the property, to which the title, made by him, was subsequently invalidated.

The authorities applicable to the views which we take of the case are ample and unquestionable. 9 A. 189 ; C. C.2956 ; 1M. 347; 3 A. 514; 7 A. 53 ; 12 A. 257; 32 A. 590 ; 6 R. 100 ; 3 M. 169.

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


author: Poohe, J.

text:
    No. 14.
    G. W. Warren vs. W. D. McDonald.
    Appeals in contested election cases are still returnable as provided for in Sections 40 and 1434 of the Revised Statutes of 1870, which do not conflict -with Act No. 45 of 1870. 0. C. Duson vs. O. M. Thompson, 32 An. 861. affirmed.
    Act No. 44 of 1877 is the only law of tbe State, under -which juries are now drawn, and it is for the Jury Commissioners, appointed under its provisions, to draw the juries by which contested election cases are tried.
    The general venire box being destroyed, it was legal for .the Jury Commissioners to draw a jury of talesmen for the trial of this case.
    The ballot-boxes having been destroyed, verbal evidence was nroperly admitted to show the number oí votes cast for Plaintiff and the number cast for Defendant.
    APPEAL from the Eighteenth Judicial District Court, parish of Webster. Turner, J.
    T. M. Port and John Young for Plaintiff and Appellant.
    The law does not require a vain or impossible thing.” 22 A. 33.
    •“ When the letter of the law leads to an absurd conclusion, the judge is bound to recede from it until he arrives at a reasonable conclusion.” 16 L. 268.
    Sec. 7 of Act 45, Ex. Ses. 1870, applies to cases arising under the writs of mandamus and quo warranto, and the act to prevent intrusion into office, and not .to contested election cases. 12 A. 825, 13 A. 175, 21 A. 289.
    The order of appeal is the act of the judge, and a mistake of a return day made by him can not be visited upon the appellant.” 31 A. 596.
    The plurality of votes legally cast elects the -candidate. The legal returns are the best evidence of the vote cast, but when lost or destroyed, or not made out, the evidence of those who held the election and those who witnessed or assisted in the count is good evidence to establish the result of the election.
    C. E. McDonald and J. D. Watkins for Defendant and Appellee.
   The opinion of the Court was delivered by

Poohe, J.

This is a contested election case, growing out of the general election held in this State on the second of December, 1879, at which plaintiff and defendant were competing candidates for the office of Clerk of the District Court of Webster parish.

From a verdict and judgment rendered against him, decreeing that there had been no legal election for that office and ordering a new election, plaintiff has taken a suspensive appeal, which defendant moves to dismiss, on the ground that as this case involves the right to office, the appeal should have been made returnable in ten days after the rendition of the judgment, which was signed on January 7th of the present year. That the provisions of Section 7 of Act No. 45, .of 1870, requiring that all appeals in cases involving the right to offioe be made returnable in ten days after judgment, do not apply to, or govern, contested election cases, in which appeals are to be regulated as in all other civil cases, is no longer an open question in our jurisprudence. The distinction between the two classes of cases was clearly drawn in the two leading cases of 12 A. 825 and 13 A. 175 ; it was subsequently re-affirmed by the late Court in the case of the State ex rel. Young vs. the Judge of the District Court of the parish of Concordia, decided in 1879, and not reported ; and it was finally adjudicated upon by ourselves in the case of C. C. Duson vs. C. M. Thompson, recently decided at Opelousas, and not yet reported.

In a contested election case, the right to office is not necessarily or exclusively involved, because the investigation is directed to the legality or illegality of the election, and may result in recognizing neither of the contestants as entitled to the office, and in ordering a new election, as illustrated by the verdict of the jury in this very case.

The motion to dismiss is therefore overruled

On the Merits.

Plaintiff alleges that he was elected Clerk of the District Court of Webster Parish, at the late general election, but that in compiling the vote of the parish the sheriff, as returning officer, returned but 635 votes in his favor, and 644 in favor of his opponent, when in truth and in fact he had received 736, and his opponent only 681 votes. That in making his return the sheriff had not included the votes cast at precinct No. 2 of ward No. 3 of said parish, for the reason that the election returns, tally-sheets and ballot-box of said precinct had been violently taken away from the commissioners, by a body of disguised and armed men on the night of the election.

That plaintiff had received at that precinct 101 votes, and his opponent only 37; and that said vote being counted would result in his election and in the defeat of his opponent; and he concludes by asking to be declared entitled to the office in contest.

For answer defendant admits that he was not elected to the office; but avers that, owing to many illegalities, irregularities, to'fraud and violence which had been perpetrated and practiced on that day in Webster parish there had not been a free and fair election ; and concludes by praying for a new election. He has not favored us with a brief on the merits of this cause.

A special term of court was held and a special jury was drawn for the trial of the cause. But before proceeding with the trial, defendant excepted to the venire as drawn for said trial, on the following grounds:

First. That the jury commissioners had no authority in law to draw such a jury.

Second. That one of the commissioners was not notified of the time of the drawing, and was not present!

Third. That fifty good and lawful jurors had not been drawn.

Fourth. That the jurors were not drawn from the general venire box, and jurors drawn to try this cause at the last sitting of the court were drawn for the present term.

The record shows that a jury, previously drawn in this case, had been set aside by the court on an exception filed to the drawing by the defendant, and a new venire ordered, to which venire the above exception was interposed. After hearing evidence the District Judge overruled the exception, and we think that his ruling was correct. Act 44 of 1877 provides the only mode of drawing juries in this State, and, by its repealing clause, amends section 1426 of the Revised Statutes, in so far as that section imposed the duty of drawing juries in contested election cases on the clerk, the sheriff and the recorder of mortgages. Under the same act, any of the duties of jury commissioners can be performed by a majority of them. The evidence also shows that the fifty jurors were drawn as the law directs, and explains why the jury commissioners did not draw the jury from the general venire box, because that very box had been destroyed by a mob on the night after the election, for which reason the commissioners made anew venire as directed by section 1426 of the Revised Statutes. There was no force in the exception, and it was properly overruled.

The evidence shows that the election was very quiet and peaceable all over the parish, and that all voters, who so desired, had been allowed freely to cast their votes as they chose. No violence or threats of a serious character had been used to deter any voter from casting his vote as a freeman and an independent citizen. That at every precinct the votes had been fairly counted, and legal returns made thereon, with the exception that in several precincts the commissioners had neglected or omitted to swear to their returns.

It appears irom the record that at precinct No. 2, ol the third ward of the parish, after the ballots had been counted, and the returns made and signed, and before the commissioners had time to deliver them to the proper authorities, a body of armed and disguised men took them in their possession and carried them away, and that they have never since been heard of.

Plaintiff then offered to prove, by the testimony of several witnesses, what number of votes had been cast at that precinct for his opponent and for himself.

Defendant objected to the introduction of this evidence, on the ground that the fact could only be proven, first, by the election returns, or the tally-sheets, or by the ballots, the loss of which had not been sufficiently accounted for nor advertised. His objection was properly overruled by the court.

"We find in the record an admission of the defendant that the returns, tally-sheets and ballots of that precinct had been forcibly taken from the proper authorities, and that “plaintiff was without power to produce them, and that they were not under his control.” This was manifestly .sufficient to justify the introduction of secondary evidence of the facts sought to be established. The fundamental rule of law governing elections in this and other States of the Union, is that the ballots cast, when not impeded by fraud and violence, should decide the elections, and that when primary evidence of the number of ballots cast cannot be procured, the courts must open the doors to any legal evidence tending to show the result, so as to give effect to the will of the citizen expressed at the ballot box. (29 A. 610 ; Cooley, Constitutional .Limitations, page 728.) The testimony' of numerous witnesses, who saw the votes counted at that precinct, and the returns made, shows beyond a reasonable doubt that the ballots cast were as follows : 101 for Warren and 37 for McDonald.

Adding this vote to the sheriff’s compilation, or return, forwarded to the Secretary of State, which showed 636 votes for Warren and 644 for McDonald, we have the following result: Warren, 736 ; McDonald, 681; or a majority of 55 for Warren.

In support of his allegations of fraud, illegal -voting, violence and intimidation, defendant introduced several witnesses, whose testimony fails to convince us that the result of the election was in 1 he slightest degree affected by such irregularities, or by a few angry words which passed between one of his supporters and two friends of his opponent.

It was shown that 37 persons voted on affidavits, and that one' disqualified person, a convict, had also voted. Without passing upon the legality of the act, in allowing persons, whose names are not on the poll book, to vote on their affidavit, and admitting that these 37 voters and the convict had all voted for plaintiff, and that these votes should have been rejected, it would yet leave him a majority of 17 votes.

We are, therefore, compelled to disagree with the jury in the conclusion which they reached in this ease, for, under the evidence, we are satisfied that the election was fair and legal, and that plaintiff was duly elected to the office which he claims. But on the question of costs we cannot apply the effect of Act No. 59, approved April 5th, 1880, to this case, which was decided before the passage of the law, and under the authority of the decision in the case of Duson vs. Thompson, and the authorities.therein quoted, we think that these costs must be borne by the parish of Webster.

It is therefore ordered, adjudged and decreed that the verdict of the jury be set aside, and that the judgment of the lower court be annulled, avoided and reversed; and it is further ordered and decreed that Gentry W. Warren was legally elected Clerk of the District Court of the parish of Webster, at the general election held in this State, on the 2d 'of December, 1879, and that the costs of this suit in both courts be paid by the parish of Webster.


author: Todd, J.

text:
    No. 15.
    Thomas J. Pickett et al. vs. Mattie G. Gilmer et al.
    Before the surety on the bond of the Administrator of a Succession can be made liable or sued, a breach in the condition of such a bond should have been judicially declared in a proper proceeding, conducted contradictorily 'with the principal, and the latter’s liability established by a judgment of acompetent Court.
    And in case of tbe death of the principal on the bond, and his succession is* insol vent, it is necessary that the insolvency should he established by the proper judicial proceedings.
    The plea of Lis pendens must prevail in a suit against the surety, when the issues it presents are pending in an Opposition to.the Account of the Administrator.
    A PPEAL from the Second Judicial District Court, parish of Bossier. Drew, J.
    J. D, Watkins for Plaintiff and Appellants.
    Land & Land for Defendants and Appellees.
    First — No suit shall be instituted against any surety on any appeal bond, nor on the bond of any administrator, tutor, curator, executor, or syndic, until the necessary steps have been taken to enforce payment against the principal. R. C. C., 3066 ; Acts of 1842, p. 303.
    Second — The steps necessary to be taken against the principal before any suit can be instituted against Ms surety, under .the decisions of this Court, are as follows: First, to obtain judgment against the principal; second, to issue execution against his property, and third, a return of nulla bona, in all cases if the principalis alive. If the principal is deceased, the first step to be taken, is to obtain a judgment on a settfement and homologation of his account, if administrator, or tutor, or, by a direct action against his succession ; and second, to show judicially the insolvency of his estate. Kemper vs. Splane, 4 A. 486 ; Wilson vs. Murrell, 6 R. 68 ; Phelps vs. Sawyer, 7 A. 557 ; Lovit vs. Castille, 13 A. 563; Alley vs. Hawthorn, 1 A. 121; Wells vs. Roach, 10 A. 543 ; Trimble vs. Bredita, 11 A. 271; Raulinson vs. Barbeson, 12 A. 630; Levois vs. Thibodeaux, 13 A. 264 ; Succession of Lynch, 14 A. 235.
    Third — The plaintiffs in this case have not taken the first necessary step to enforce payment against the principal. They have obtained no judgment against the principal nor against his succession.
    Fourth — The plaintiffs filed an opposition to the homologation of the account rendered by the principal in his lifetime, as administrator, in which they set up the claim, or a part of the claim on which this suit is instituted, but they abandoned that opposition, which still remains undisposed of by any judgment of the court.
    FiEth — The administrator of the succession of the principal accepted the claim of the plaintiffs, and placed it on a tableau of debts in his succession without prejudice to any of the rights of any party, or parties to certain suits or judicial proceedings then pending, to which suits the plaintiffs were parties; the principal and the surety on his bond were parties. This acceptance of the administrator was without any effect as to these parties litigant, and did not even interrupt prescription.
    Sixth — The acceptance of a claim by an administrator is not a .judgment against the heirs and creditors of the deceased, nor against other parties in interest, nor is the claim as to them liquidated by the acceptance, because it may be opposed and finally rejected. R. C. C. 1063,1064,1065,1066 ; C. P. 984, 985, 986, 987 ; Rheil vs. Morten, 29 A. 16; Succession of Poussin, 27 A. 296; Gaines vs. Hennen, 24 Howard, 553; Minor vs. Harding, 4 L. 382 ; Orr vs. Thomas, 3 A. 582 ; Bank of La. vs. Dejean, 12 R. 16.
    Seventh — When another action is pending, between the same parties, for the same object, and growing out of the same cause of action, the cause will be dismissed on the exception of Zis pendens. C. P. 335 ; Ingram vs. Richardson, 2. A. 839 ; Dick vs. Gilmer, 4 A. 520; Kline vs. Freret. 5 A. 494.
    J. A. Snider and Richard W. Turner on the same side.
   The opinion of the Court was delivered by

Todd, J.

Nathan Pickett died in the parish of Bossier in 1853. On the 6th of January, 1854, William Milton Pickett, his son, was appointed administrator of his succession, and on the same day executed his bond, as administrator, for one hundred and twelve thousand four hundred and fifty dollars, with J. B. Gilmer as surety.

On the 9th of December, 1857, the said Pickett, administrator, filed an account of his administration, which, on the 6th of February, 1858, was homologated, and on the 2d of December, 1859, he filed a second account, which was also homologated on the 4th of August, 1860.

On the 9th of July, 1866, the said administrator filed his third and last account. This account showed a balance in his favor of about twelve hundred dollars, but before the homologation of this account, in the month of August, 1866, he died.

Subsequently to the appointment of W. M. Pickett as administrator and the execution of his bond, J. B. Gilmer, the surety thereon, also died.

On the 4th of February, 1879, the plaintiffs, heirs of Nathan Pickett, instituted this suit against the defendants, the heirs of J. B. Gilmer, for one hnndred and four thousand and twenty-two dollars. The suit was brought on the bond executed by W. M. Pickett as administrator of the succession of Nathan Pickett, and the amount sued for was alleged to be the amount of the indebtedness of said Pickett, growing out of his acts, as administrator of the succession of Nathan Pickett, for which the defendants, as heirs of J. B. Gilmer, the surety, were alleged to be liable.

To this suit the defendants filed an exception substantially as follows :

First. It was denied that the proper steps had been taken to make the debt out of the principal of the bond, or the legal representatives of the principal, which was alleged to be a condition precedent' to any action against the surety, and that the suit was, therefore, premature.

Second. The plea of lis pendens was interposed against the action, based on certain oppositions and other proceedings in the Parish Court of Bossier parish, alleged to be still pending and undecided.

Third. A plea to the jurisdiction.

There was judgment sustaining the two first points of the exception relating to the pleas of prematurity and lis pendens and overruling the plea to the jurisdiction, and from this judgment the plaintiffs have appealed.

The plea to the jurisdiction seems to be virtually abandoned by the counsel for the defendants, and there is no force in it, and it therefore remains to us to consider the other two pleas embraced in the exception.

In support of these pleas — prematurity of the suit and lis pendens— the following facts are relied on, a recital of which becomes necessary:

After the death of W. M. Pickett, administrator of the succession of Nathan Pickett, in August, 1866, as stated, J. Pinckney Harris, on the 11th of September, 1867, was appointed administrator of his succession. After his appointment (on the 28th of March, 1868,) he commenced a proceeding by rule directed against the heirs of Nathan Pickett to cause the last account filed by the said W. M. Pickett, administrator, a short time previous to his death, to be homologated. This account, as before stated, showed a balance of about $1200 in favor of this administrator. About the same time that this proceeding by rule was commenced, the heirs of Nathan Pickett filed their opposition to the account. In this opposition they setup substantially the same claims against the deceased administrator as are contained in the suit before the court. This opposition was never tried.

About the same time that this proceeding was instituted, the heir3 of J. B. Gilmer brought suit in the District Court of Bossier against the heirs of Nathan Pickett, the object of which was to cause this same account of W. M. Pickett, administrator, to be homologated, and the bond given by him, with J. B. Gilmer as surety, to be cancelled.

We find from the record that no answer was filed by the defendants in this suit and no further proceedings taken in it.

The Act of 1842, p. 303, Section 6, which is embodied in and now-forms part of Art 3066 of R. C. C., declares:

“ No suit shall be instituted against any surety on any appeal bond, nor on the bond of any administrator, tutor, curator, executor or syndic until the necessary steps have been taken to enforce payment against the principal.”

The defendants contend that these necessary steps required by this statute have not been taken against the principal on this bond, the administrator of Nathan Pickett’s succession, or against his legal representatives, to warrant this suit against them as the representatives of J. B. Gil-mer. They contend that the liability of the administrator and the amount of his liability should first be'fixed by a judgment and the proper steps taken to enforce this judgment, or, in the event that the principal or his succession was insolvent, that this insolvency should be judicially declared before suit could be brought against his surety.

We find no judgment in the record against W. M. Pickett, administrator, nor against his heirs or legal representatives, but the counsel for the plaintiffs relies upon the acknowledgment made by J. Pinckney Harris, administrator of the succession of W. M. Pickett, of the claim which forms the basis of this suit, as equivalent to a judgment and sufficient to fix the liability of W. M. Pickett, administrator, and the amount of that liability. We find from the evidence, that after filing a rule against the heirs of Nathan Pickett to show cause why the last account of W. M. Pickett as administrator should not be homologated as above stated, Harris, administrator, filed a statement of debts due by the succession of W. M. Pickett on the 28th of September, 1871, in which statement of ■debts or tableau appears the following acceptance of Harris, administrator, to-wit:

“ A debt due the minors, Thomas G. Pickett, Alice G. Pickett, Kosi-esko Pickett, and Nathan Pickett, amounting to $104,022, one hundred and four thousand and twenty-two dollars, with the rank of legal mortgage, the rights of the parties being fixed at the date of the death of the tutor, Wm. Milton Pickett, it being anterior to the 1st January, A. D. 1868 ; but this claim is accepted without any prejudice to the rights of any party or parties in opposition filed in cases of S. W. Yance vs. Jas. A. Piokett et als., No. 1311, and of succession and heirs of Nathan Pickett, opposition to account of administrator and tutorship of W. M. Pickett, No. 1328.”

This tableau was homologated, and the following is the judgment of homologation:

" Succession of Wm. Milton Pickett'] 0ntaabPiSuat¿°debrtsh0m0l0SatÍ0n °f

In the above entitled cause, by reason of the law and the evidence, and by further reason of the publication of said tableau of debts for the time prescribed by law, and no opposition having been made thereto within the time prescribed by law, it is ordered, adjudged and decreed, that the tableau of debts filed by J. Pinckney Harris, administrator in the succession of W. M. Pickett, deceased on the 28th of September, A. D. 1871, be approved, homologated and made the judgment of the court except as to the item of one hundred and four thousand and tioenty-lwo-dollars, opposed by the administrator of Kerr, the opposition to said item continued ; and it is further ordered that the administrator of said succession pay said debts according to the privilege and rank assigned to ■and given said debts on the tableau of debts filed as aforesaid in said succession.

Done and signed in open Court, on this, the 13th day of November,, 1871.
[Signed] L. W. BAKER,
Parish Judge of Bossier Parish, Louisiana.”

The suit of S. W. Vance vs. Jas. A. Pickett, No. 1311, referred to in the foregoing acceptance, was the suit mentioned in which the heirs of J. B. Gilmer had sought to have the last account of W. M. Pickett, administrator of the succession of Nathan Pickett, homologated. It will be remembered that this account showed a balance in favor of Pickett, administrator, and against the succession of Nathan Pickett, of about $1200, and of course was in,direct opposition to and conflict with the claim asserted by the heirs of Nathan Pickett and accepted by Harris, administrator. By the account filed by Pickett, administrator, he sought to recover of the heirs of Nathan Pickett $1200, and it was this balance which the suit of Vance vs. Pickett, 1311, sought to have adjudged against the heirs of Nathan Pickett.

By the claim asserted in the tableau filed by Harris, administrator, the heirs of Nathan Pickett sought to recover of the succession of W. • M. Pickett $104,022. The acceptance of Harris, administrator, was made subject to this opposition thus existing against the claim. In other words, his acceptance of the claim was not absolute and unconditional, but recognized and continued the conflict between the opposing claims mentioned, and settled nothing.

The judgment of homologation by its terms approved the entire ■ tableau, except this large claim mentioned in favor of the heirs of Nathan Pickett, which was specially excepted, and the opposition to it made by Kerr, administrator, continued. This did not constitute a judgment in favor of the claim or a positive judicial recognition of it. It did not give any more effect to this judgment of homologation or diminish the effect of this opposition thus continued, that it was made by a party incapable of standing in judgment. The opposition existed and the judgment did not approve and homologate the claim, but expressly excluded it from approval.

There was, then, nothing in the acceptance of the administrator of W. M. Pickett’s succession, nor in the proceedings connected with the tableau of debts, and with the homologation of the same, that operated as a judgment against the succession of W. M. Pickett, deceased, or was equivalent thereto.

■ When we consider the character of the claim, the amount of the same, and that it was wholly unliquidated, we are aware of no authority in the administrator to make any acknowledgment of the same absolutely binding and conclusive on the succession, or that would justify a judgment on the same without the proper proof of its correctness.

Art. 985, C. P. provides : “ If the claim be liquidated, and be acknowledged by the curator or testamentary executor or administrator, he shall write on the evidence of the claim, or on the paper which he shall annex to it, a declaration signed by him, and stating that he has no objection to the payment of such claim; after which the bearer of such claim shall submit it to the j udge, that it may be ranked among the acknowledged debts of the succession.”

“ Art. 986: “ If the claim be not liquidated, or if the testamentary executor, curator or administrator have any objection to it, and conse-' quently refuses to approve it, the bearer of the evidence of such claim, whatever be its amount, may bring his action against the curator or administrator, in the ordinary manner, before the Court of Probate where the succession was opened, or before the District Court, according to the amount involved, and may obtain judgment in the same manner as in other cases.”

These articles, properly construed, seem to confine the authority of an administrator or executor touching the acknowledgment or acceptance of claims against successions to such as are liquidated, and to require all others unliquidated to be established by proof — and several decisions of this Court favor such a construction — 19 L. 441; 5 R. 270. The fact established by the record that this acknowledgment or acceptance of the claim in question against the succession represented by him was made by the administrator, Harris, after having'sought to effect the homologation of an account which was utterly inconsistent with the existence of such a claim, is not calculated to add to the force and effect of such action on the part of the administrator.

But was a judgment against the principal of this bond, or his succession, a necessary step before instituting suit against the surety or his legal representatives ?

The law in relation to judicial sureties, the nature and extent of their obligations, the mode and manner of fixing their liability, has been a subject of misconception and uncertainty resulting, in some degree, from decisions seemingly inharmonious, and it is important that it should be settled. ,

The condition of an administrator’s bond is, in substance, “ that the administrator will well and truly discharge the duties of his appointment according to law.” The obligation that the surety on such a bond assumes is that his principal will faithfully carry out and fulfill this condition of the bond, and should he fail to do so that he, the surety, will pay the losses or damages that may result from such failure.

When we reflect on the character and condition of such a bond, the true nature of the surety’s obligation, in connection with the positive requirement of the law to which we have referred, prescribing that all necessary steps should be taken against the principal of such bond before proceeding against the surety, and after a careful review of all the previous decisions of this Court on the subject, we are constrained to conclude that a breach in the condition of such a bond should be judicially declared in a proper proceeding conducted contradictorily with the principal, and his liability established by a judgment of a competent court, before the surety can be made liable or sued on such bond.

Wilson vs. Murrell, 6 R. 68.

Kemper vs. Splane, 4 A. 486.

Phelps vs. Sawyer, 7 A. 651.

Lobit vs. Castillo, 13 A. 563.

We have been referred to but one single case, rendered since the act of 1842 was passed, which conflicts in the least with these views — the case of the succession of James Lynch, 14 A. 235; and in that case the statement of the facts are so meagre that it does not appear with certainty that there was no judgment against the administrator before the suit was instituted against the surety. If such was the case, and it can be construed as countenancing the doctrine contended for by the plaintiff’s counsel, opposed, as we conceive it to be, to the letter and spirit of the laws on this subject, and the adjudications rendered therein, it is declared overruled.

It is, however, urged that when the principal of a judicial bond dies before any judgment is rendered against him, inasmuch as no execution can be taken out against his succession, and the course pursued prescribed by the articles of the Code to be taken against the principal, if living, to fix the liability of Ms surety, that therefore, in such a case, a judgment against the succession of the principal is not required to fix the liability of the surety; and we are referred particularly to the case of Alley vs. Hawthorne, 1 A. 122, as sustaining this position. This was a suit on an appeal bond, and it will be seen from an examination of the case that a judgment was rendered against the principal, although he had become a bankrupt before the rendition of such judgment; and we fully indorse the principle, asserted in that case, that when such judgment is rendered against the principal, who dies or becomes a bankrupt, and the insolvency of his estate is shown by the proper evidence, that the law does not require the creditor to await the settlement of such insolvent succession before bringing suit against the surety.

In case of the death of the principal we deem it necessary, however, that the insolvency of his succession should be established by the proper judicial proceedings.

The evidence fails to satisfy us that the necessary steps were taken against W. M. Pickett, or his succession, to authorize this suit against the heirs of Gilmer, his surety.

We are also satisfied that the issues presented by this suit could have been 'tried and determined in the opposition made by the heirs' of Nathan Pickett to the last account rendered by W. M. Pickett, administrator. As we have stated before, the claims on which that opposition was based were, substantially, the same as are embraced in this suit. Nor do we agree with plaintiff’s counsel that the issues raised in that proceeding could not have been legally determined because no administrator to succeed W. M. Pickett had been appointed to the succession of Nathan Pickett. The counsel himself states that this succession had been accepted by the heirs, who had made a partition of the property and, therefore, there was no necessity for the appointment of another administrator, since the heirs, -under these, circumstances, were the only-proper parties to represent in that proceeding the interest that, previous to their acceptance, had vested in the succession. So, too, in the suit No. 1811 of Vance et al. vs. Pickett et al., above mentioned, the issues tendered, as shown by the record, were substantially thatW. M. Pickett at the time of his death was not indebted to the succession of Nathan Pickett, nor was Gilmer, his surety, indebted, but that, on the contrary, the succession of Nathan Pickett was owing W. M. Pickett a balance on his account, and that the plaintiffs in that proceeding, the heirs of Gil-mer, were legally entitled to have cancelled the administrator’s bond upon which Pickett was principal and Gilmer surety. Here, then, was another suit in which all the matters in controversy in this case might have been'settled. The plaintiffs in that case, who are the defendants in this suit, by the character of the suit and allegations of their petition, directly tendered the issues and invited a trial of the same, being those involved in this case, the question in that or in this being of the liability of W. M. Pickett, administrator, to the succession and heirs of Nathan Pickett, and the amount and extent of that liability, if it existed. In that ease, still pending, all the claims that the plaintiffs are now seeking to prosecute in this suit might have been finally determined and enforced. In these facts and proceedings disclosed by the record, we do not find wanting any of the elements or requisites constituting the plea of Us pendens, and that plea, too, must be sustained.

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


text:
    No. 9.
    State of Louisiana vs. Frank Kane.
    The law does not require that a copy of the Indictment and a list of the jury, which are to-pass on the trial of the accused, should he delivered to him before arraignment. They should be delivered to him two entire days before trial, but not before the fixing of the case for trial. State vs. Holmes, 7 An. 567, affirmed. State vs. Chenier, 32 An. 103, overruled.
    $Tor is the District Attorney obliged to fix cases for trial, in the order in which they appear on the docket.
    The accused cannot refuse to go to trial on the grounds, that, on the list of the jurors served on him, some had been excused, somehadnot been summoned, and the names of two of them ■tfere not on the original venire•
    The accused cannot object to the manner in which talesmen are summoned by the Sheriff, after exhausting the regular panel, without showing improper conduct or partiality in the officer’s action, or injury resulting therefrom to the prisoner.
    PPEAL from the First Judicial District Court, parish of Caddo. Taylor, J.
    M. S. Crain, District Attorney, for the State, Appellee.

      Hicks & Hicks for Defendant and Appellant:
    The common law method of proceedings in the prosecution of crimes, offenses and misdemeanors has been adopted in this State, unless otherwise provided, and must be pursued step by step, or the law’s penalty cannot be imposed. R. S. 976; 1 Bishop on Crim. Pro. Secs. 80, 93.
    First — A copy of the indictment and a list of the jury must be served upon the accused, indicted for grand larceny, two entire days before the case can be set down for trial; that is before his arraignment, which precedes the setting the case. R. S. 992 ; Acts of 1874, p. 223, sec. 8 ; 4 Black Com. 351, 289,332 ; 1 Chitty’s Crim. Law, 414, 417.
    Second — Cases on the criminal docket must be called and set for trial, or be otherwise disposed of, in their order upon the docket. 1 Chitty’s Crim. Ldw, 484, 488 ; C. P. 145 ; Const, art. 7.
    Third — Service of a list of thirty jurors, two of whom were excused on account of urgent business and because of attendance on the court during a prior week of the term, through mistake, two not on the original venire, and others of the remaining jurors were either excused, not summoned, or not in attendance during the term, leaving only ten j urors in attendance upon the court, is not a compliance with the law, and the accused ought not to have been forced into trial, he having urged the objection to the jury list. 3 A. 52; 7 A. 285 } 11 A. 422; 8 A. 514; 10 A. 743 ; 14 A. 42 ; 30 A. 114 ; 32 A. 223; Acts of 1877; Spec. Sess. p. 55, secs. 1 and 2 ; 11 A. 81; 26 A. 422 ; 32 A. 224.
    Fourth — The defendant must be arraigned and plead to the indictment before the case can be called for trial. 4 Black. Com. 289, 322 ; 1 Chitty’s Crim. Law, 414, 417 ; 32 A. 104.
    Fifth — It is the duty of the judge to order tales jurors to be summoned from amongst the persons present in court, and others cannot be summoned till the bystanders have been exhausted; and if the judge refuses to so order, his error cannot be cured by the sheriff in summoning them. 3 Black. Com. 364-5 ; 4 Black. Com. 355 ; 23 A. 148 ; 26 A, 46-7.
    Sixth — For the above reasons, the court ought either to have granted a new trial, or to have arrested the judgment. This court will grant a new trial when there is a possibility that irregularities were committed in the proceedings calculated to influence the result of the trial unfavorably to the accused, though the judge was right in his several rulings. 30 A. 540.
   The opinion of the Court was delivered by

Levy, J.

Frank Kane was indicted, tried by jury and convicted of the crime of larceny, and sentenced to three years imprisonment at hard labor. From the judgment of the District Court the defendant has appealed.

On the 18th of September, 1880, the case was set for trial on the 22d of same month. The defendant objected to this order for the reasons as stated in his bill of exceptions, to wit: because a copy of the indictment and list of the jury had not been served upon him two entire days previous to the fixing of the case for trial. He also objected to fixing the case for trial, because the docket had not been called in regular consecutive order, and the cases preceding his on said docket had not been called and disposed of before his case was called and set for trial. These objections were overruled by the district judge, for the reasons that this case was fixed on Saturday, September 18th, 1880, for trial on the following Wednesday, September 22d, in accordance with the rule and practice of the said court, which rule is to set causes on every Saturday of the term, after the first week, for trial during the coming week,” and “ a copy of the venire and indictment were served on the accused on Friday, (Sept. 17th, 1880), before his case was fixed for trial, and no rule of law or of the court requires such service to be made before fixing the case for trial; ” and further, “ there is no rule of court or of law requiring the District Attorney to fix cases for trial in the order in which they appear on the docket.” We do not think the lower court erred in these rulings. Service of a copy of the indictment was made on the prisoner more than two entire days before his trial. The law requires: “every person who shall be indicted for any capital crime, or any crime punishable with imprisonment at hard labor for seven years or upward, shall have a copy of the indictment, and the list of the jury which are to pass on his trial, delivered to him at least two entire days before the trial.” Rev. Stat. $ 992. We do not regard it necessary that service of the copy of indictment and list of the jury shall be made two days before arraignment, and this is distinctly held in State vs. Holmes, 7 An. 567. It is true that the accused cannot be tried until arraigned, State vs. Epps, 27 A. 227, but he can be arraigned and not tried. The decision in 32 A. 104, is not sustained by the previous decisions of this Court, and the doctrine which we have just stated is based upon the uninterrupted rulings of the court for many years, which we are not disposed to disturb.

As to the objections to the list of thirty jurors served on the prisoner, because some of them had been excused, and some had not been summoned, and the names of two contained in the list served on him were not on the original venire, their names having been erased therefrom, one having been excused on a physician’s certificate, and one having left the State permanently after being summoned, we do not think they can prevail under the authorities to which we shall refer. In excusing jurors, the court is presumed to have done so on good and sufficient grounds. 32 A. 222. In State vs. Ross, 30 A. 1154, it is held : “ When the regular venire has been exhausted without completing the jury, it is the duty of the ju^lge, if the accused shall so request, to order the sheriff to call the absent members of the regular panel at the courthouse door before the summoning of talesmen to complete the jury.” In this case it does not appear that such request was made.

The non-attendance of some of the jurors summoned, and not excused, is not good cause for a refusal to go to trial. State vs. Johnson, 11 A. 422; State vs. Kennedy, Ib. 479. In State vs. Dubord, 2 A. 732, the Court said: “ A verdict will not be disturbed for a variance between the names of the jurors who tried the case, and those on the jury list.” In the case of State vs. Howell, 3 A. 52, cited by prisoner’s counsel, the Court, in a case somewhat similar to this, said: “ The inconvenience to which the prisoner may be subjected in the event of the failure of jurors to attend, from unforeseen causes, is one to which he must necessarily submit while deriving the benefits of the statute. It is one of those unavoidable evils which no legislative foresight can provide against, but can never be serious, the number of jurors selected at each drawing being limited. The object of the law will be fulfilled if the prisoner be furnished with a list which is complete at the time of its delivery.” In State vs. White, 7 An. 532, “an objection was urged on the part of the defendant, on account of the refusal to sustain his challenge to the jurors presented to him, because all of the jurors comprising the list that had been served on him were not present, some of them having been excused from attendance by the court. This Court held that there was no error in the ruling of the court a qua, overruling the objection, because the jurors had been excused for good and legal cause, or were absent without leave of the court, and under these circumstances, when no more jurors could be obtained from the regular panel or list of jurors, the court ordered talesmen to be summoned. See, also, 11 An. 422 ; 26 A. 46 ; 28 A. 631.

The prisoner also filed a bill of exceptions to the refusal of the judge a quo to instruct the sheriff to summon the bystanders as tales jurors, but did instruct him to “ summon forty capable and competent men to serve as tales jurors, and directed him to summon them wherever they could be found,” and, as stated in the bill of exceptions signed by the judge, “ under which instructions, the sheriff could, and did actually proceed to summon them in the court-room liable to jury duty.” No attempt has been made to show that bystanders were not summoned, nor that there was improper conduct or partiality shown by the sheriff in summoning the talesmen, or that any injury resulted to the prisoner. On the contrary, the bill itself shows that bystanders were actually summoned under the order, and we fail to discover any reason for complaint on the score of the manner in which the order of the court was executed by its officer. In the case of State vs. Bunger, 14 An. 464, the Court held : “ If the sheriff did not aet with impartiality toward the accused, that was a matter of fact which ought to have been submitted to the district judge, and which rested in his sound discretion.” Here the order given by the judge, while not confining the plaintiff to the summoning of bystanders, included them. Besides, non constat, and the bill does not set forth, that there were any bystanders in the court-room who were “capable and competent” and qualified to act as jurors. It would hardly be contended that none but bystanders could be summoned as talesmen.

The motion in arrest of judgment covered the points which have been herein discussed, and, in his assignment of errors filed, the prisoner sets forth, in addition to the reasons and causes covered by his bill of exceptions, that there was error in the lower court in overruling his motion for a continuance in arrest of judgment, and for a new trial. The motion for continuance was denied by the judge a quo in the exercise of the sound discretion which rests in him ; and this Court will not interfere in such a matter, unless the action of the lower court involves palpable injustice. The motion for continuance and affidavit supporting It do not, in our opinion, afford sufficient legal grounds for the continuance, and we do not think the judge a quo erred in his denial.

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