author: Bermudez, O. J.

text:
    No. 10,992.
    Louis Baron et al. vs. Jacob Baum, Administrator.
    Parties claiming to be the sole heirs of a deceased have no right to demand an account of the administration of the succession, although they attack a judgment homologating an account, where it appears that the party sued for the account has been discharged as administrator, and the order discharging him is not assailed, and the person to whom the x*esidue of the estate was paid, and who had been recognized as the sole heir of the deceased, is not made a party defendant. Courts notice judicially want of proper parties.
    APPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Buekner, J.

      Gross & Gross for Plaintiffs and Appellants:
    The heir is seized of the property of his De Cujus immediately on the opening of the succession. 15 L. 527; 7 R. 183; 12 R. 258; 2 An. 339.
    He is not affected by a final account unless he is cited. 11 R. 109; 16 An. 258. “ It is useless to quote authorities on this point.” Denham vs. Williams, 32 An. 972.
    Natural children can not be put in possession without citation on the heir. R. C- C. 926.

      Ex parte judgments may be collaterally questioned, when offered as the title in virtue of which property is claimed, and the rights of third pex'sons sought to be disturbed. 10 R. 193; 2 An. 724; 15 An. 187; 25 An. 86; Dalton vs. Wickliífe, 35 An. 359.
    Evidence in probate proceedings must be reduced to writing, and without it the judgment is null. 16 L. 197, 201; 17 L. 115; 3 An. 554; 4 An. 517.
    The administrator is bound to the heirs and is not protected by payment to a person not authorized to x*eceive. Verrot vs. Aubert, 6 L. 354.

      Kernan & Laycoelc for Defendant and Appellee:
    1. A judgment homologating an administrator’s final account and discharging him can not bo attacked collaterally nor treated as an absolute nullity. Fowler vs. Succession of Gordon, 24 An. 270.
    2. Even if such a judgment be not res acljudicata against one claiming as heir, it will nevertheless protect the administrator for a payment made in error. Baldwin vs. i.'arleton, 2 R. 56.
    3. A legitimated natural child is a legal heir and not an irregular successor; and is therefore seized of the succession of the father at the moment of his death. R. O. 0.199, et seq.

    4. A judgment determining personal status, though obtained expm'te, can not be collatei’ally attacked.
    5. The administrator is bound to deliver the residuum of the succession to the heir recognized by tbe court.
   The opinion of the court was delivered by

Bermudez, O. J.

This suit has for its object the rendition of an account by the defendant, as administrator.

It is brought by the plaintiffs, who aver themselves to be the legitimate collateral heirs of Pierre Baron.

They charge that the defendant has filed an account already, which has been homologated; but that the judgment approving it is a nullity, because they were not cited, as the law requires.

They contend that eventually they are entitled to recover from the defendant the amount of the inventory, $5457, should he fail to render a proper account to them.

They pray that he be cited, and that the judgment of homologation be annulled, and that he be ordered to account, and in default be held for the value of the property appraised in the inventory.

The defendant appeared, filing exception and an answer.

His main defences are: that the succession of Pierre Baron has been fully and finally administered upon by him; that its debts and liabilities have been satisfied, and that the residue has been paid over by him to Mrs. Gillingham, who had been previously recognized by judgment of the court as the sole heir of the deceased, and that he has been discharged from further responsibility as administrator, and his bond as such canceled.

It is to be noticed that this person, Mrs. Gillingham, was not made a party to this action.

After hearing, the lower court rejected the demand of plaintiffs, who pursue the present appeal.

The question presented is simply whether the plaintiffs can proceed solely against the defendant, and in the manner they have.

The controversy does not necessarily involve, at its present stage, the issue of heirship.

On the averment that they are the only heirs of the deceased, as •his brother and sisters, the plaintiffs seek the nullity of a judgment homologating an account, for want of citation to them, and demand the rendition of another account from the defendant as administrator.

The defendant denies that he is amenable, and contends that he has been discharged, and that if plaintiffs have any rights to the succession of Pierre Baron, which he has fully administered, they should bring their action against Mrs. Gillingham, who had claimed to be a legitimated child, and who was recognized by a judgment of court as the sole heir of the deceased in a proceeding in which Louis Baron, one of the plaintiffs, was a party and had raised the issue of heir-ship, and to whom he had turned over the residue of the succession.

The record in fact shows that an application for the administration was made by a person claiming to be the widow of Pierre Baron, and as such entitled to the tutorship of two minors born of them; that this demand was opposed by Mrs. Gillingham, who averred herself to be a legitimated child of the deceased, and by said Louis Baron, who averred himself to be the legitimate brother, and who denied that the applicant was the widow, and charged that Mrs. Gillingham was an adulterous bastard, who could not be and was not legitimated as claimed.

The case was heard and the court rendered judgment dismissing the petition of the alleged widow and the opposition of Louis Baron, on his own motion. It sustained the opposition of Mrs. Gillingham, appointing her administratrix, and recognizing her as the sole heir of Pierre Baron.

As she failed to qualify, Baum, the defendant, applied for the administration, and, after due publication, was appointed, taking the oath and furnishing the bond required by law.

He went on with the liquidation, sold the property and presented an account, distributing the funds among the creditors, which was homologated without notice to the plaintiffs, but with the declaration that the administrator shall pay over the balance to the heirs at law, without naming any one.

The record also shows that, upon production of the proper vouchers, one of which is a receipt of Mrs. Gillingham for the balance, the defendant was discharged and his bond canceled.

It may be, and it may not, that the plaintiffs are what they represent themselves, the brother and sisters of the deceased; that Mrs. Gillingham was an adulterous bastard, and not an heir; that the judgment of homologation attacked is a nullity; that another account ought to be rendered, the plaintiff cited; but, however this'may be, it is clear that the plaintiffs can not be listened, unless they attack the judgment recognizing Mrs. Gillingham as sole heir, making her, or her representives, party defendant, and also assail the order discharging the defendant, Baum, as administrator of the succession; neither of which the plaintiffs have done.

The court can not recognize the plaintiffs as sole heirs without annulling the judgment in favor of Mrs. Gillingham, and it can not do so unless she is called in to defend it. Neither can'it annul the judgment of homologation, and order another account without declaring that the defendant is still the administrator, and it can not do so unless the order discharging him is rescinded. Both stand until avoided and set aside.

Mrs. Gillingham, or her representative, is an essential party, having an interest in maintaining a judgment recognizing a status, and under which property has passed to her.

Courts must judicially notice want of necessary parties.

The judgment appealed from appears to have been rendered on the merits of the controversy. It does not refer to the exceptions, and merely states that “the law and the evidence being in'favor of the defendant and against the plaintiffs the demand is rejected with costs.”

If it were to remain as it reads, it might constitute res judicata, but it is not just that it should be considered as presently settling all the differences between the parties, as the plaintiffs, under its terms, might be said to have been decreed, under the issues, not to be the heirs of the deceased, when, in reality, they may be such, and in that capacity entitled to the residue of his estate, whatever it may be. A door should be left open to them for the revendication of their rights, if any, after proper averments and the making of a necessary and indispensable party.

It is therefore ordered and decreed that the judgment appealed from be amended, so as to read as a mere judgment of dismissal, as in case of non-suit, reserving to plaintiffs the right to renew the action on proper averments, and against the proper parties, and that thus amended, said judgment be affirmed, the costs of appeal to be paid by the appellee, and those of the lower court by the plaintiffs.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 10,994.
    The State ex rel. James W. Bothick et al. vs. H. N. Rightor, Judge, etc.
    Prohibition does not lie to test the jurisdiction oí one of the divisions of the Civd District Court for the parish of Orleans, to which a suit was allotted, when it is pretended that its object is tornm^Zproceedings heard before another division unless it clearly appears from the averments the prayer that such is its pur* pose, and the division to which allotted is devoid of competency rations persona et materice, and the complainant, after exhausting all means of relief, is left without any other remedy.

      Prohibition can not be substituted to an appeal to determine, in an appealable ease, whether the lower court, in the exercise of its legal discretion, has, after contradictory hearing, properly or improperly overruled an exception to its jurisdiction, whf n it is apparent that the court could render a judgment which might validly constitute res judicata, whichever way it goes.
    The party aggrieved is not left without remedy, and if error was committed to his prejudice can be relieved by appeal.
    ^^PPLICATION for Prohibition and Certiorari.

      Aug. Bernau for the Relator.

      J. 8. & J. T. Whitaker for the Respondent.
    The Supreme Courtwill not issue the writs of certiorari and prohibition in exercise of its supervisory power over inferior court except in cases of usurpation of jurisdiction or power. State ex rel. Martha Selles vs. Judge 21st Jad. Dist. Court, 33 An. 1284.
    The case being appealable, the relators have an adequate remedy by appeal, and are not entitled to the interposition of the prohibitive authority of this court. State ex rel. Rollett vs N. II. llightor, Judge, 32 An. 1182.
    Where it appears that the heirs, who arc of age. have accepted the succession and arc in possession of its property, such succession is closed. Woolfolk vs. Wool-folk, 30 An. 139.
    Probate and District Courts have concurrent jurisdiction in suits to divide community property between surviving spouse and heirs. 1 N. a. 370; 3 N. S. 172; 7 N. S. 470 ; 9 Da. 584; 17 Da. 238.
    An original suit not growing out of any previous suit can not be classed under Rule O, Sec. 10, of Civil District Court, and must be treated as an entirely new matter.
   The opinion of the court was delivered by

Bermudez, C. J.

This is an application for a prohibition and for a certiorari.

The relators contend that a suit has been brought before the Civil District Court, against them, having for its object to annul certain proceedings had in their mother’s succession, which has been finally wound up; that those proceedings were duly begun, continued and closed before Division A of said court; that the suit to annul them was allotted to Division D; that they have pleaded to the jurisdiction r>f the last division, contending that, as the suit grows out of the succession proceedings which they seek to annul, both under the rules of the Civil District Court adopted in furtherance of the constitutional provision, and under the law which gives exclusive jurisdiction to the court which rendered a judgment, to entertain and determine a suit to annul it, Division D was incompetent, and should have referred the action to Division A; that they have pleaded to the jurisdiction of Division D, but that their plea has been overruled and that their only remedy for relief is to apply to this court for a prohibition to arrest further proceedings in the suit before Division D, and they accordingly pray.

The District Judge presiding over the division to which the suit was allotted returns, substantially, that the action brought against the relators does not avowedly purport to be one to annul the succession proceedings, and that it is simply a suit by parties who claim to be the legal heirs of their mother (Catherine Connolly, who died in 1866), and who ask to be recognized as such contradictorily with their father, Thos. W. Bothick, who is an interdicted person, provided with a curator, and with certain parties named who pretend to be his legitimate children by another person (Annie J. Cunningham, who died in 1881) -; that he properly overruled the exception to the jurisdiction of his division, and that, if he has erred, the parties aggrieved can be relieved on appeal, the ease being appealable.

The averment that the suit against them by the relator is one in nullity of the proceeding in the settlement of their mother’s succession, is not apparent from the allegations and the prayer of the petition of the plaintiffs in the case. They do not even refer to them, and they could not ask for any specific decree, in the judgment on the merits, to annul them.

When the petition was filed and the question of the allotment of the case arose, it surely could not be ascertained from its face that its object was to annul any proceeding, orders and judgments before another division, and the allotment accordingly took place.

After the exception to the jurisdiction was filed and heard, the issue whether the suit was one to annul was to be determined by the judge of Division D, in the exercise of his judicial discretion. He considered the showing made as indicating that it was not a suit in nullity, that it was an original, independent action, which could be determined, regardless of the succession proceedings to which the plaintiffs were not parties and which were not, therefore, in their way, so as to require them to be annulled, to justify a recovery of the rights revendicated by them.

It may be, and it may not, that the district judge decided correctly. If he did, his judgment will stand; if he did not, it will be reversed; ■but the relators are not permitted to question its correctness on an application for a prohibition.

That remedy is not one of right. It is granted only in cases in which a court has no jurisdiction ratione persones et materies, and-where the complainant would not be entitled to adequate relief by appeal or otherwise. 82 An. 1182; 33 An. 923; 34 An. 782.

The suit brought against the relators and allotted to Division D is surely in itself one over the subject matter of which that division can pronounce a valid final judgment, whether in favor or against the relators, and which, when definitive, could be successfully set up as res jadieata.

Should the relators be aggrieved by the judgment to be rendered on the merits, they, would not be left without a remedy; they could appeal and have, if they are right, either the judgment overruling their exception or that against them on the merits reversed, and themselves quieted in their status and property.

It may be that the final judgment may go in their favor and against the plaintiffs in the suit, who may never .appeal, or it may be, if they do, that the judgment will be affirmed and the defendants quieted.

The relators can take nothing under the prayer for a certiorari. The question of jurisdiction, which might have arisen under it, has been disposed of, in considering that for a prohibition, and the proceedings in the suit before Division D are surely regular in point of form.

Their regularity is the only question which would, perhaps, at least, have received any attention in the present application.

It is therefore decreed that the restraining order made in limine herein be rescinded, and that the application be refused with costs, without prejudice to the rights of the relators as appellants in the case.


author: Bermudez, C. J. Bermudez, O. J.

text:
    No. 10,995.
    Mrs. Lavinia Gay vs. Amedee N. Hebert.
    Thomas B. Mary, Under Tutor, Intervenor and Third Opponent.
    Although a surviving husband, personally bound for the debts of the community, may after the dissolution thereof waive prescription, which has since accrued, thereon, still when he is the tutor of his minor children, born from his marriage with his deceased wife, he can not do so, to the prejudice of her succession, or to their injury so as to burden them therewith, and to prevent their legal mortgage duly recorded against him from ranking themortgage securing such debts.

      Such acknowledgmeiits may then be made before prescription has extinguished such debts, when they are made bona fide. They will, when so made, keep such debts alive, as well as the mortgage securing them, and bind the succession and the niinois, but not otherwise.
    The proceeds of property mortgaged can not be applied to the payment of the prescribed, though revived, debts, to the detriment of the succession and of the minors; but will go to extinguish only the debts not prescribed, secured by a mortgage ranking that of the minors.
    At the dissolution of the community by the death of the wife, her share therein rests in her heirs, as owners, cumonere, as effectually as it would have vested in her on a dissolution by judgment, subject to all legal and valid claims against it, and susceptible of divestiture in the enforcement of these claims.
    Neither the wife nor her'heirs can be relieved from the effect of the pact de non alienando, eont lined in an act of sale, retaining a privilege and mortgage on the propeí ly s< Id, to secure the unpaid price. Under such pact, the creditor is dispensed from the hypothecary action, and is entitled to ignore subsequent alienations and encumbrances, which by virtue of the terms of the law can not impair his previously acquired and vested rights, under duly recorded acts.
    Although the creditor possess such rights, the encumbered property may be transferred cum onerc and the transferee, in case of seizure and sale, to pay the secured debt, has a right to the residue of the price of adjudication, after payment of such debts.
    The privilege and mortgage securing a debt cease to exist when the debt secured is extinguished by prescription. The accessory follows the principal, which is an essential foundation for it.
    Waiter of the prescription does not revive the privilege and mortgage thus extinguished to the prejudice of subsequent recorded encumbrances, which then ascend and r.uik the extinct registries.
    Unliquidated claims of minors against their tutors cannot be satisfied, unless at the termination of the tutorship, but their mortgage securing such claims eventually mny be recognized in the meantime.
    Acts under private signature have no date as to third parties, unless the same are proved to have been executed on the same day, or at the same time, when they purport so to have been.
    Merely offering of such acts in evidence gives them, as to third persons, no other date than that of the day of offering.
    In a proper ease, in furtherance of the ends of justice, the court may proprio mota amend a previous decree, so as to leave a door open for the proof of the date of an act under private signature, which was not made by some oversight, and which to all appearances can be furnished.
    APPEAL from the Twenty-third District Court, Parish of Iberville* Talbot, J.

    W. B. So/nmerviUe for Plaintiff and Appellee:
    1. An order for executory process, and a sale thereunder, can not be successfully attacked by way of third opposition on the ground of prescription or payment of the debt. 0.1\ 738, 739 and 740; Livaudais vs. Livaudais.

      2. Community property may be seized, after the death oí the wife, for community debts, without making her heirs parties to the proceeding. Broussard vs. JTournet, 28 An. 623. Killelea vs. Barrett, 37 An. 886 and 26 An. 233. Oriol vs. Hordon, 38 An. 759.
    3. Surviving husband may waive prescription and confess judgment. Hawley vs. Crescent City Bank, 26 An. 230 and 391.

      Alex. Hébert for the Under Tutor and Appellant:
    An administrator or tutor can not waive prescription on a debt of the estate he administers, or against his minors. 4 An. 253,545,214,216; 11 An. 667 ; 21 An. 373,374; 9 An. 123; It. C. 0 , Arts. 340, 348.
    The surviving partner and tutor can not perform the acts he was permitted to do. during the existence of the community after its dissolution. The death of one of the spouses fixes the rights of each in the community. 29 An. 664 ; 32 An. 848; 42 An. 173; It C. C., Art. 2046.
    The contrary doctrine maintained for a time, down to 27 An. 634; but 29 An. 664; 32 An 848 ; 42 An. 180, are in harmony with former decisions. 7 L. 222 ; 9 L. 584; 1R. 149, 378; 10 R.18;3 An. 862.
    When the interest of the tutor is opposed to that of the minors, they must be represented by the under tutor. R. C. C„ Arts. 275,301; 23 An. 617.
    The heirs claim the nullity of the sale of their property under 0.1\, Art. 400; 8 An. 117; 23 An. 46.
   The opinion of the court was delivered by

Bermudez, C. J.

This litigation involves the rights of ownership of the minors represented by the third opponent, as their under tutor, to one undivided half of the property seized and adjudicated h'erein to the plaintiff, and also the mortgage rights which they assert on a like share of the same property belonging to their father and tutor who is the defendant, and which they claim are entitled to rank those contended for by the plaintiff and her succession, and which are said to exist no more.

It appears that on February 4, 1881, Hébert bought for $10,000 the undivided half of a plantation known as u JDunboyne,” part ($4500) cash, and part ($5500) on time, for which he issued five notes of that date, payable two at two years, and the others at three, four and five years, each for $1100. The act of sale contained the stipulation of the pact de non alienando, and was duly recorded July 23, following, and subsequently seasonably reinscribed.

In October of the same year his wife, Emiline Gallaugher, died, leaving several minor children as the issue of their marriage. Her succession was opened. An inventory was taken of the property comprising the community between them, which was appraised at upward of $14,000, an abstract; of which was properly recorded on December 10, 1881, and afterward reinscribed in time. Hébert was appointed tutor and qualified as such on the same day.

None of the notes having been paid and all being then due, Mrs. Lavinia Gay brought suit, via executiva, on the 9th of March, 1891, with the averment that on the 17th of January, 1890, Hébert had obtained from her an extension to 1895, which, owing to his failure to comply with the obligations taken, authorized the suit, the same proving an acknowledgment of full indebtedness, and evidenced by an authentic act attached to the petition along with a copy of the-deed of sale and the notes.

The fiat having issued, the undivided half purchased was seized and advertised. Previous to the day of sale, Mary, the under tutor of the minors, filed a third opposition, claiming, in their name, the ownership of one-half thereof free from plaintiff’s averred vendor’s privilege and mortgage, and a mortgage on the remaining half, ranking plaintiff’s pretensions. No injunction was asked to stop the sale, but, on the prayer, a restraining order was made arresting the proceeds.

The undivided half seized was adjudicated to the plaintiff for $7500. She joined issue by a general denial and an averment of ownership under the sheriff’s adjudication, praying for the dismissal of the opposition and for a recognition of her title.

There was judgment against the under tutor in favor of the succession of the plaintiff dissolving the restraining order touching the proceeds and reserving the rights of the minors against their father and tutor. Made a party, he failed to join issue, and no judgment was rendered as to him.

The under tutor appeals, and the administrator of the plaintiff’s succession joins, asking that the judgment be amended by recognizing the title 'of the estate to the undivided half.

The main contention of the under tutor on behalf of the minors is that, at the death of their mother, they inherited the one undivided half of the property seized, which formed part of the community which existed between her and their father, subject to all valid community debts against it; that at the date of the institution of this suit, the five notes were prescribed, as to their mother’s succession and themselves; that thereby the privilege and mortgage claimed by the plaintiff ceased to exist and to encumber the property to their prejudice, so that their share therein was cleared, and that the share of their father was likewise relieved, their legal and recorded mortgage against him, as their tutor, ascended and ranked the privilege and mortgage contended for by the plaintiff and her succession. The under tutor prays accordingly, asking, besides, a judgment against the tutor.

In answer, the administrator retorts that, at the date of the suit, not one of the notes was prescribed; that as to such which might have been so considered, the defendant had waived and interrupted prescription, and had formally acknowledged liability and indebtedness.

By reference to indorsements on the two notes which matured at two years, in 1888, it appears that, indeed, Hébert waived prescription and acknowledged indebtedness, and, by inspection of the act. of extension, it also appears that he did the same thing, or the equivalent, as to all the five notes.

The suit having been instituted on March 9, 1891, and the fifth note fallen due on the 4th of February, 1886, it is apparent that they were all prescribed on their faces, on February 4-7, 1891 — more than a month before the filing of the petition — unless the acknowledgment relied on had a contrary effect.

‘The waiver and acknowledgments on the notes at two years were made more than five years after they had matured, the acknowledgments and promises in the act of January 17, 1890, which referred to all the five notes, were made after the note at three years was prescribed ; but before those at four and five years had so become. Hence, they interrupted prescription as to these two only, but they revived the other three as ordinary notes, as the privilege and mortgage securing them died away, as to third persons, the moment they became prescribed. Accessorvum sequitur pi'incipale. R. O. O. 8285.

The consequence was that the legal mortgage of the minors, duly recorded on the 10th of December, 1881, in consequence of the lapse of the privilege and mortgage securing the three prescribed notes,, ascended and took precedence, and is entitled to a preference.

Nevertheless, Hébert had the right, before prescription had extinguished the last two matured notes, to acknowledge them, as he did,, in the extension act, and thus to interrupt prescription, and the privilege and mortgage securing them on the undivided half bought could be, and was maintained.

It was a community debt, and the acknowledgment was made bona fide and rightfully. He was unquestionably at the time owner of one-half of that half, or one-fourth of the whole, and the usufructuary of the remaining like share. The act of extension shows that he was dealt with in that capacity and thus implies an inheritance by the minors of their mother’s share, by her death. It was unnecessary for him to have acted avowedly as tutor of the minors in order to bind them by such acts, and to continue the debt as a community debt, secured in the same way that it was from the beginning.

The departure from the old jurisprudence for a while, in this respect, has been repudiated, and the powers of surviving husbands •continue shackled to a certain extent. |

There can be no doubt that, notwithstanding the pact de non ■alienando, the object of which was merely to dispense with the hypothecary action eventually to enforce judgment, but not to prevent the purchaser — although part of the price was unpaid and secured by privilege and mortgage on the property — from disposing of it by transfer or mortgage in subordination of the vendor’s claim, as long as valid, the property could pass from Hébert by a complete divestiture by him. Hence he could have surrendered it to his creditors; transmitted it by succession to his heirs; his wife, common in property with him, could, under the law, notwithstanding any adverse will on his part, have acquired half of it at the dissolution of the community by judgment, and have transmitted by her death to her heirs the same share therein (minors being always beneficiary heirs), as it actually happened in the present instance; but, of course, such transfer, as well by reason of the pact as of the law, and sheer justice and equity, could not pass title to the prejudice of the anterior vendor’s privilege and mortgage securing payment of his just debt. The ownership passed cum onere, vesting a defeasible title, susceptible of divestiture in case of non-payment of that claim, and by proceedings directed alone against the original purchaser, regardless of subsequent transfers or encumbrances, in whatever form, or under whatever circumstances made.

Hence it is, that, when the plaintiff brought this suit, she acted legally, clothed with the right of divesting Hébert and any subsequent owner or owners of the title in subjection of the undivided half of the plantation to the payment of what was due her, which happens to be only the amount of the two last mentioned notes, falling due on February 4-7, 1885, and February 4-7, 1886, as to ■which prescription was interrupted by acknowledgment and promise to pay on the extension notarial act of January 17, 1890, and which, on the day of the sheriff’s adjudication, amounted in capital and interest from date to a figure which it is unnecessary to state presently.

So that, when the undivided half of the property was adjudicated to Mrs. Gay, it passed absolutely bo her regardless of the inheritance of half thereof by the minors from their mother, who could not transmit to her heirs, by succession, more rights than she could have acquired on a dissolution of the community by judgment.

The undivided half having been adjudicated for $7500, the plaintiff is entitled to apply the same to the extinguishment, or payment of the two last matured notes in capital, interest and costs, absolutely, and to retain the balance of the price as accruing one-half unconditionally to the minors as representing their share of inheritance, and the other half to Hébert, subject to any claim which the minors may have against him, at the termination of the tutorship, upon an account properly rendered, contradictorily with all concerned; the whole ■of said balance so retained to remain secured by vendor’s privilege on said undivided half, and to bear legal interest from the date of the sheriff’s adjudication until legally deposited to be relieved from interest, or paid over to the tutor for account of the minors, and also for his own account, under suitable judicial proceedings to be had for the purpose.

It is therefore ordered and decreed that the judgment appealed from be reversed; and

It is now adjudged that the third opposition of the under tutor be sustained in part and dismissed in part, and that plaintiff’s reconventional demand there against be lilceioise sustained and dismissed; and, accordingly,

It is ordered, adjudged and decreed that the plaintiff or her succession be recognized as the absolute owner of the undivided half of the “Dunboyne” plantation herein seized and adjudicated to her;

It is further ordered, adjudged and decreed that the proceeds of the sale of said plantation, retained by the plaintiff, be distributed as follows, viz.: that the plaintiff apply as much thereof as may be necessary to pay herself the amdunt of the last two notes sued on, maturing in 1885 and 1886, as stated in the opinion, in capital, interest, attorney’s fees thereon and costs of suit, up to the day of adjudication, and retain the residue of the said proceeds, the same to accrue as follows: one-half thereof to the minors herein represented by the under tutor, and the remaining half to the defendant Hébert, subject to the rights of the minors against him at the termination of the tutorship; the same, while thus retained, to remain secured by vendor’s privilege on said undivided half of said “ Dunboyne ” plantation, and to bear legal interest, as stated in the opinion, until legally deposited, or paid over, as likewise therein mentioned;

It is further ordered, adjudged and decreed that the third opposition and the reconventional demand there against, in so far as not sustained, be dismissed, and that the rights of the minors against their tutor, not passed upon, be reserved for future action;

It is further ordered, adjudged and decreed that the plaintiff pay costs in the lower court, from the filing of the third opposition of the under tutor, and that plaintiff; and the third opponent pay, share alike, the costs of appeal.

per curiam.

Bermudez, O. J.

There appears on the note at three years an acknowledgment of indebtedness purporting to have been made on the 10th of January, 1889, before five years had run from the maturity; but the date at which it was made has not been proved.

The offering of the endorsement during the trial proved the genuineness of the writing, but did not establish its date. Writings under private signature, offered in evidence, have, as to third persons, no-other date than that at which they are thus offered.

The authentic act of acknowledgment was executed after the five years, and fixed the date of acknowledgment only as to the notes maturing in 1885 and 1886.

Justice will not permit that the note at three years, which is for part of the price of sale, be treated as prescribed, when it may not be so, and the absence of proof is an oversight.

The right to recover its amount, if prescription was truly interrupted, should be reserved and the decree shaped to that end. 42 An. 858.

It is therefore ordered that the previous decree be amended so as to reserve the right of the siiccession of plaintiff to prove the date of the acknowledgment on the note at three years, that a sufficient amount be retained from the price of adjudication to meet it and the two other notes, and that to that end the case be remanded, -with instructions to allow that note, if the acknowledgment is proved to have been made at the date that it purports to have been made, and that thus amended, the previous decree be confirmed and remain .undisturbed.


author: Watkins, J.

text:
    No. 10,967.
    Dennis Long vs. John E. Kee.
    1. ‘When in the course of a gwasipartnership settlement a sequestration is obtained of property mutually claimed by each one of the partners the strictness of the rule applicable to an equitable estoppel by conduct may be somewhat relaxed.
    2. If in such case the defendant sets up areconventional demand for propei'ty alleged to have been taken by the sheriff and not reported in his return, allegations should describe it with some degree of precision, in order that proof be admissible.
    3. "When qttasi trust relations exist between such parties, the burden of proof rests upon that party to whose care and fidelity the affairs of such quasi partnership were entrusted to make a fair and clear showing as to the basis of settlement.
    APPEAL from the Twenty-fifth District Court, Parish of Lafayette. Mouton, J. _

      Gus. A. Breaux and O. DeBaillon for Plaintiff and Appellant.

      Jos. A. Ohargois, Chas. D. Caffery and Julian Mouton for Defendant and'Appellee.
   On Motion to Dismiss Appeal.

The opinion of the court was delivered by

Watkins, J.

Defendant and appellee seeks to dismiss the plaintiff’s appeal on account of certain alleged imperfections in the appeal bond. To this motion appellant’s answer is, that it comes too late, having been filed more than three days after the filing of the transcript, and after the return day. This answer is good and disposes of the motion, as the transcript was filed on January, 20, 1892, subsequent to the return day, the 18th thereof, the motion to dismiss having been filed on the 25th of said month. Webb vs. Keller, 89 An. 55; St. Romes vs. Cotton Press Co., 31 An. 224; Holbrook vs. Holbrook, 32 An. 13; Succession of Charmbury, 34 An. 21; 2 An. 138; 3 An. 326; 4 An. 514; 6 An. 115; 11 An. 613; 12 An. 745; 22 An. 327; 23 An. 467; 21 An. 30.

The motion is, therefore, denied.

On the Merits.

When this case was under consideration last, the pleadings were analyzed, the respective positions of the parties stated, and many of the issues decided. 42 An. 899.

From our opinion it appears that the plaintiff and defendant entered into a contract on the 26th of February, 1886, in which, amongst other things, it was stipulated that the former furnished his plantation with all its ameliorations and equipments, and some live stock —of which a description is given — as passing with the place into the joint adventure; and other cattle which did not. Thereunder the defendant entered into possession, stipulating that he was to give his time and undivided attention to the supervision and management thereof, and to the care and protection of all the live stock; and, as a consideration for his services, he was to have the profit arising from the cultivation of the annual crops, and one-half the increase of the live stock.

Claiming the right to terminate the contract on account of defendant’s mismanagement, and retake possession of his property, the defendant resisting, plaintiff caused certain specified property to be sequestered judicially, and, in default of defendant exercising that right, gave bond therefor and took it into possession.

On the trial in the District Court, plaintiff’s sequestration was dissolved and defendant restored to possession of the plantation and property that was sequestered.

On appeal to this court the judgment rendered was reversed; many issues therein were decided, as above stated; the contract was held to have been legally terminated on the 31st of December, 1889, and plaintiff’-s right to possession recognized; and the cause remanded for the trial of three issues, viz.: (1) damages inflicted upon personal property; (2) defendant’s right of ownership of personal property claimed; (3) the adjustment of his claim to a share in the increase of the live stock — all of which are circumstantially set out in an extended answer and reconventional demand. With defendant’s demands thus reformed and restated, the case went back to the District Court and was again tried, the defendant, apparently, abandoning his claim for damages and only insisting on his other demands; that is to say, his demand for restitution of personal property and an interest in the live stock (a minutely detailed list of which is appended to his answer), the aggregate value of the former of which he places at $6275.85, and of the latter at $2550, the two aggregating $8625.85.

There was judgment commanding the plaintiff to make restitution to the defendant within thirty days after the finality of the decree,, of the following items and articles of property, or in the alternative to pay the various sums set opposite said items as the respective values thereof, viz.:

Five horses and three mules............................................................ $710 00
Blacksmith shop and tools.................................................................. 68 SO
Old buggies, etc................................................................................... 79 50
Poultry, pigs, etc............................................................................... 159 50
Vegetables, etc....,................................................................................ B0 00
Farming implements, etc................................................................ 863 75
One rice thresher.............................................................................. 250 00
Aggregating in value....................................................................$1,661 55

It further commands plaintiff to make restitution to defendant of one-half of the increase of horned cattle, the whole number of which is fixed at 161 head, thus entitling him to eighty and one-half head, and decreeing that in default of making restitution the plaintiff shall pay him therefor at the rate of $10 per head, or $800 for the whole number.

From this judgment which condemns the plaintiffs to surrender property, or to pay an alternate value of $2461.55, he prosecutes the present appeal.

Tt is of importance to mention that, after disposing of the foregoing property, the judgment decrees that “ all other property herein claimed by the parties to this suit * * belongs to Dennis Long.”

I.

The first question to be disposed of is the claim of the defendant to an interest in the-inorease of the horned cattle, which is stated in his answer and reconventional demand to be $2550 in value, but which the judgment fixes at $800, and which must be accepted as the-limit of his demand, inasmuch as he has not, in this court, requested an increased allowance.

As a basis of the judgment we quote the following therefrom, viz.:

It is ordered, adjudged and decreed that the amount of stock of horned cattle at the time of sequestration be and the same is hereby recognized at 430 head; and that the interest of J. E. Ker, defendant, in the increase thereof be and the same is fixed as follows, viz.:

First deduct cows...................................................................................... 156
Three years old...................................................................................... 85
Two years old............................................................................................. 27
One year old.............................................................................................. 28
Calves ......................................................................................................... 19
Oxen.......................................................................................................... 4
Aggregating.. 269
. 169 Leaving an increase of.....................................................................
Equal...............................................................................................430

In the preceding part of the judgment it is stated that there was .ascertained, from the evidence, to have been on hand at the date ■contract was entered into 269 head of horned cattle; and it is on that basis that the calculation is made.

In our former opinion it is stated, viz.:

“Now, in this case, the testimony of the defendant is that, at the .time of making the contract of 1886, he did not count the cattle and could not state the number. He took all the cattle on the place and was to have an interest in the increase. Of the calves that were branded in 1886, 1887 and 1888, he was unable to say how many survived.

“ It is quite unnecessary for us to examine or discuss any additional testimony on this branch of the case, as it is manifest that, under this admission, no settlement can be made at this time,” etc. 42 An., pp. 997, 998.

We had before us then, as we have now, the original agreement, which is authentic in form, which specifically declares that, with the plantation and its appurtenances and farm implements, the plaintiff furnished to the defendant “three mules for which (he) paid $375, Fly, Dolly and Queen;” and, also, that he “ further furnished live stock, cattle, sheeps, etc., at a cost of $4165,” in addition to seventeen head of Kentucky throrough-bred cattle, not covered by the agreement.

We had before us then, as we have now, the admission in defendant’s answer, that it was he who proposed to go into the stock business with the plaintiff on “the condition that (the latter) would furnish the money to buy the cattle, and he (defendant) was to be half ■owner thereof, and pay back to plaintiff one-half the money with interest;” and that this proposition .was accepted by the plaintiff, ■who “then advanced $4000, which was expended by defendant in the ■purchase of cattle.”

That this agreement was subsequently modified by the agreement -of February, 1886, “ whereby plaintiff became entire and sole owner ■<of the cattle and sheep,” etc., and that he had said live stock on 'the place at the time of the execution of the agreement of 1886, .■and same were kept there afterward, as well as such as have been -placed there since.

This admission in the defendant’s answer is confirmatory of the ■'truthfulness of the recital of the agreement as to the value of the ■live stock invested under the contract; and, as the judgment found there was on hand at date of sequestration 430 head of cattle, which, valued, as other cattle were, at $10 perhead, would have aggregated ■'$4300 in value, there would seem to be, practically, no increase for ■division — the difference between the cattle purchased and on hand in 1886, and those on hand in 1890. being only fourteen (14) ; and ■this difference is nearly offset by the thirteen (13) head of cattle the ■defendant confesses to have disposed of in violation of a stipulation of the agreement to the contrary, and the value of which he places -at $123.

The memorandum list appended to the plaintiff’s petition calls for <600 head of cattle, as on hand at date of contract, which-is readily explainable by taking as the initial point for the calculation a smaller price per head, say $7, which would produce the value of $4200, or a fraction above the value stated in the contract, viz.: $4165, and is possibly a more accurate estimate. But this would show a loss, of 200 head of cattle, or, at $7 a head, an aggregate diminution of $1400 .in the stock which was invested in the enterprise originally.

The judgment fixes the same number and value of the stock on hand as that stated in the sheriff’s return on the writ of sequestration; and the list appended to the defendant’s answer only shows the net increase to which he alleged himself entitled, i. e., 250 head of ■cattle.

An examination of the reasons which the judge assigns as the foundation of his decree, in this respect, simply discloses this statement, viz.:

“ As to the number of cattle furnished by Long, under contract of 1886, I conclude that at the time of the contract there were 238 head; bought from Sterne 7, from Torrence 14 and from Hawkins 10. making a total of 269.”

Then follows, immediately after this quoted paragraph, the tabulated statement and conclusion related above. The judge does not make any reference to the evidence of witnesses on which this conclusion is based, and a patient examination of the record has failed to disclose any. And if there was any such evidence, its reliability would be, evidently, problematical. The defendant was, on the last trial, as he was on the former trial, fully examined and cross-interrogated, without, in any material respect, bettering his ease; and, as plaintiff in reconvention, he, evidently, carries the burden of proof. It is our deliberate opinion that the judgment is in error, in this respect, and defendant’s demand, pro tanto, should be rejected.

II.

With regard to the defendant’s claim for personal property, or its value, the difficulties of solution appear to be greater than those in reference to the increase of stock. They arise from the fact that this is a quasi partnership statement of ordinary planting partners and stock raisers, of which the defendant had the exclusive use, control and management' — the plaintiff residing in the State of Kentucky, and possessing no information other than such as it pleased the defendant to disclose.

In our former opinion we held that the agreement between the parties, “ although styled a partnership, is a contract of hire of labor,” that “ the plaintiff had just grounds for his sequestration,” and had the legal right to put an end to the agreement as he did.

In that opinion defendant was treated as, in some sort, an unfaithful agent, who had abused the confidence and trust his lessor or principal had reposed in him, and upon the principles of equity he must be held to a strict accountability, and required to make clear proof of his demands.

This fact appears prominently at the opening of the discussion, viz.: that upon no theory has plaintiff been benefited by the transactions of many years, notwithstanding he was the owner of all the property, primarily, and furnished large sums of money to the defendant.

It is quite true that evidence of such advances of money was rejected by the district judge, on the ground that such proof did not correspond with any averments in the petition; but we are of opinion that his ruling was erroneous, and that plaintiff, occupying the position of defendant in reconvention, had the right to introduce such evidence in rebuttal of the defendant’s claim, without making any plea — replications not being permissible. This view is supported on the hypothesis of plaintiff’s counsel, that these moneys were invested in stock and personal property, of the kind mentioned in defendant’s reconventional demand, and should be carried into the calculation of the values for which he insists plaintiff is responsible; and it seems so manifestly just and reasonable that, to our minds, there is no escape from this conclusion.

This much having been premised, we will dispose of the contentions of the plaintiff, which are set up as a bar to the prosecution- of the defendant’s claim in reeonvention, viz.: (1) that the latter having pointed out to the sheriff the property for sequestration he is equitably estopped by conduct from subsequently asserting his ownership. of same; (2) that said defendant having, during the period of the contract, had the personal property assessed as that of the plaintiff, and upon his own affidavit, he is likewise estopped from making claim to it.

While under ordinary circumstances such considerations would have great weight, yet under the exceptional circumstances of this case they can not be deemed controlling; first, because the sheriff was furnished with a detailed list of the property intended for sequestration,, and a seizure of which was demanded, and it is likely enough [ that the defendant merely indicated where sueh property could be found, without intending to waive or abandon his right; second, because of the fact that defendant admitted the ownership of the plaintiff in the real estate and some of the stock and personal property, of which he was also part owner, he may have thought an assessment solely in the name of the plaintiff would suffice, and inflict no injury upon the State. Such an assessment can not have any real substantial bearing upon the rights of the parties, and we must decline to consider it as such in this case.

Plaintiff’s further contention is that no claim of property can be entertained and decided under a proper construction of the issue raised in defendant’s answer other than sueh as appertains to the property that was sequestered and made mention of in the sheriff’s return; and we think there is great force in this contention.

The plaintiff’s counsel was careful to make out a list of property he desired seized, and handed it to the sheriff; and that is the property he sequestered in part — -though he sequestered some additional property; but, in the answer there is a declaration to the effect that the sheriff did seize and actually take into his possession other property belonging to him of which no account is taken in the inventory and return, and for which he makes claim, because his contention is that when plaintiff gave bond and released the property from seizure, he took possession thereof and placed it in the hands of his agent, where it now is. But there is no list or description of the particular property referred to whereby it can be identified with any degree of certainty; and to hold an absentee landlord to a rigid accountability for large values predicated upon such an averment would be manifestly unjust. The kind and character of the property referred to is given in the judgment and referred to in a previous paragraph of this opinion.

We think it better to limit this decision to the property sequestered, reserving the rights of the defendant to make claim to any i:other property of which the plaintiff may be illegally possessed.

-Confining ourselves to an examination and comparison of the "items and amounts stated in the judgment, with those enumerated in the sheriff’s return, we find the following to be a just and proper settlement between the parties, to-wit:

That the following items of property listed in the judgment be reduced in value by the following amounts, viz.:

The mule Mary by................................................................................ $75 00
The mule Rook by................................................................................. 35 00
The mule Jane by................................................................................... 50 00
The mare Iiaty by................................................................................... 25 00
The mare Bello by............................................................................... 20 00
The mare Queen by............................................................................. 50 00
The horse Rondeau by.......................................................................... 75 00
The horse Iver by............................................................................... 10 00
Two horse carts by................................................................................ 20 00
Two buggies by..................................................................................... 10 00
-One lot oí chickens by.......................................................................... 6 70
-One lot o£ geese by.............................................................................. 3 80
Aggregate reduction o£............................................................... $380 50

That the following items of property be and the same are to be stricken from said list, viz.:

One duck at .................... $0 25
One saddle at................. 7 00
Rive sows with pig........ 15 00
One boar.......................... 15 00
Twenty-six head of hogs 78 00
Seven sugar coolers......... 28 00
Aggregating in value $173 25

These diminutions and reductions will operate a change of the alternate values of the articles specified, by the total sum of $380.50, anda deduction from the list of property which the judgment decrees to belong to the defendant, of the articles last enumerated, having an aggregate valuation of $173.25.

And as thus altered and amended the judgment should be affirmed.

It is therefore ordered and decreed that the judgment appealed from be amended in the following particulars, viz.:

(а) By eliminating altogether the claim and demand of the defendant for a share in the increase of the horned cattle, and therein estimated to be worth $800.

(б) By reducing the values of the various items of property listed above, by the amount of $380.50.

(c) By rejecting and disallowing the defendant’s claim to the ownership of other articles enumerated above, valued at $173.25.

And it is further ordered and decreed that, as thus amended, said judgment be affirmed at appellant’s cost — the right of defendant being reserved to claim any other property than such as was sequestered; and the right of plaintiff is, also, reserved to claim of defendant an account and settlement of moneys had and received.


author: Fenner, J.

text:
    No. 10,953.
    The State of Louisiana vs. Oscar Guillory.
    1. The competency of grand jurors is presumed, and those who attack it must show good cause of disqualification. A man who came to this country with his father, when a child, whose father, now dead, told him he was naturalized and voted as a citizen; who has himself exercised the rights of a citizen in the parish, without question for thirty years, is not to be declared disqualified because he can not produce his father’s naturalization papers, and owing to his father’s residence in several States, does not know where to find the judicial record thereof.
    2. * Objection to failure of judge to open a note of evidence on basis for introduction of a confession is disposed of by the State vs. McCarthy, this day rendered.’
    s. Other bills are without merit.
    APPEAL from the Thirteenth District Court, Parish of St. Landry, Lewis, J.

      W. H. Rogers, Attorney General, for the State, Appellee.

      E. P. Veazie and Laurent Dupré for Defendant and Appellant:
    One of tlie qualifications of a juror required in this State is that he shall be a citizen of the United States and of this State. Act44 of 1S77, Sec. 1; Act 54 of 1880, Sec. 1.
    A judgment naturalizing a foreign born citizen can not be proved by parol.
    The personal disqualification of a grand juror is good ground for motion to quash. State vs. McGee, 86 An. 207.
    The admissibility of a voluntary declaration is a blended question of law and fact reviewable by tlie Supreme Court, and the evidence touching the admissibility of a confession must be reduced to writing and appended to bill of exception in order that the appellate court may determine tlie question of admissibility only. 34 An. 147; 1st Greenleaf on Evidence, Sec. 223; Warton’s Crim. Kv., Sec. 689; IstBish. Crim. Procedure, Sec. 1220.
   The opinion of the court was delivered by

Fenner, J.

The first bill of exceptions is taken to the ruling of the judge in overruling a motion to quash the indictment based on the charge that a member of the grand jury who found the bill was incompetent by reason of alienage.

It appears that the juror objected to was born in Ireland and moved to this country with his parents many years ago, when only twelve years of age. He had been told by his father that he (the father) had been naturalized, and knew that his father was a voter in the State of Kentucky before his death. His father had lived in several States, and he did not know when or where he was naturalized, and had no proof thereof other than his father’s statement. The juror had lived in the parish for thirty years, had always considered himself as a citizen, and as such had voted and served on grand and petit juries without question.

No such question would probably have arisen in this ease but for the fact that the juror was. prosecuting a claim for homestead from the United States, in the course of which it became necessary for him to prove his citizenship, and having no copy of his father’s naturalization papers and not knowing when or where they were taken out he concluded his simplest course was to become naturalized himself, for which purpose he made application to the court and obtained his papers.

This occurred after he had been drawn on the venire, but nearly two months before he was empaneled or served as a grand juror.

There is no question that at the time when he was empaneled and served as a grand juror he was in every respect fully qualified, and we think the presumption is overwhelming (that he was qualified before the drawing.

A man who has come to this country with his parents, as a child, who has been told by his father that he was naturalized, and who has seen his father voting as a citizen, who has himself always exercised his rights, as a citizen in the same place for thirty years without question, is entitled to every presumption in favor of his citizenship, and is not to be declared disqualified because he can not produce his father’s naturalization papers, and, owing to his father’s having resided in several States, does not know ¡where to find the judicial record of them.

“ When grand jurors are duly drawn and appear upon the summons of the sheriff by virtue of his writ, they are presumed to be good and lawful men, in all respects legally qualified. It is only upon good cause shown by a party having the right to question the qualifications of the individual juror that he will be set aside for in competency.” Thompson & Merriam on Juries, No. 563; Weeks vs. State, 31 Miss. 490; Thayer vs. People, 2 Doug. 417; State vs. Haynes, 54 Iowa, 109; Minor vs. State, 63 Ga. 318.

We thing no such good cause is shown in this case, the evidence raising a strong presumption that the juror was qualified when he was drawn, and making it certain that he was qualified when he was empaneled and served.

The other bills have no merit.

One of them, based on the failure of the judge to take a, note of evidence as to the basis laid for admitting a confession of defendant, is covered by our decision rendered this day in State vs. McCarthy.

Another, based on refusal to admit evidence of prior threats in absence of any overt act at the-time, is disposed of by many authorities sustaining the judge’s action.

The rest need no mention.

Judgment affirmed.

On Application for Rehearing.

This application is based on the failure of the judge to incorporate in his sentence the provisions for commutation of term embodied in Act No. 12 of 1890.

We can take no notice of this alleged error because the record contains no reference to any application to, or action by, the judge on.the subject, and no assignment of such error, in any form, was made: before the actual decision of the cause.

If the applicant is entitled to relief, he must seek it elsewhere.

Rehearing refused.


author: McEnbry, J. •Eenner, J.

text:
    No. 10,985.
    The State of Louisiana vs. Richard A. Curtis et al.
    The defendants were prosecuted by information filed. It contained two counts* one for burglary and one for larceny. The verdict was guilty in manner and form as charged.
    In framing the information the district attorney in the allegations as to burglary made the proper recitals.
    In the count for larceny, he used the language proper in an indictment. On the-day he filed the information, he discovered the error, and under Sec. 1047, Revised Statutes, amended the same. Held, that the recitals in the information» were clerical errors, and the information could be properly amended. The verdict -was a general one and responsive to the information and was valid.
    When the information charges that four pairs of shoes, four pairs of pants were stolen, it is sufficient description of the property.
    Irregularities imputable to the jury commission can not be taken advantage of unless the injury is such as is described in Sec. 10 of Act 44 of 1877.
    Motions to set aside the venire must be filed on the first day of the term. When the indictment or information has been presented at a previous term, the objections to the venire at a subsequent term mustbe urged on the first day of the term* unless it is shown that the facts upon which the motion was based were of such a character that it was impossible for the defendant to know them until after the commencement of the term.
    On an application for a change of venue the defendantmustgivo notice of its filing in a reasonable time to the district attorney.
    In ruling on applications for change of venue the trial judge is vested with a certain discretion that will not be disturbed, unless his rulings are manifestly erroneous.
    APPEAL from the Thirteenth District Court for the Parish of Acadia. Lewis, J.

      W. H. Rogers, Attorney General, for the State, Appellee.

      Jos. A. Ghargois and EJ. P. Veazie- for Defendant and Appellant.
   The opinion of the court was delivered by

McEnbry, J.

The defendants were indicted for burglary, convicted and sentenced to hard labor for three years. They have appealed.

The defendants were prosecuted by information. In the information there are two counts, one for burglary and the other for “larceny. In the second count, the District Attorney in framing the information, probably using a blank form for the purpose, charges that the grand jurors aforesaid, under their oaths aforesaid, do further present,” etc. The District Attorney, on discovering the error on the same day, moved to amend the information so as to insert instead of the above words the proper allegations. The information was amended in accordance with the motion. The accused objected that the information purported to be an indictment and to change it as requested by the District Attorney was altering it in substance.

The grand jury never presented the indictment. The prosecution was by information. The error was purely clerical, and the court, under See. 1047, Revised Statutes, was authorized to permit the. amendment. The defendants further objected that the amended information served on them was not a correct copy of the indictment. If the original had been served it would have been sufficient, as the amendment was not one of substance but of form only.

The information contains two counts, for burglary and larceny j the first is properly charged.

The verdict was a general one of guilty in manner and form as charged in the information. This is sufficient to obviate the objection of defendants.

In the second, objection is made to the description of the offence charged.

It is alleged that the articles alleged to have been stolen were not described with sufficient particularity. They are particularized as four pairs of shoes, four pairs of pants, one lot of jewelry, one lot of shirts and cravats. The description is sufficient, as the articles stolen are in part described with as much certainty as it would be possible give by alleging the exact number of articles stolen.

The defendants complain of the denial of their applications for a change of venue.

The defendants neglected to give the notice required by Sec. 1025, Revised Statutes, to the District Attorney. In the matter of granting the application for a change of venue, the District Judge is vested with a latitude of discretion, and his rulings in these matters, like those in matters of continuance, will not be disturbed unless manifestly erroneous. The motion war demurred to, and during its consideration the counsel for the accused required the introduction of testimony on the motion. The fact that the motion was filed at a late day in the progress of the case, without notice to the District Attorney, and was taken up to be disposed of before any request was made for the introduction of testimony, leads us to believe, with the trial judge, that the motion was for delay.

The defendants moved to quash the venire because the general venire box was not kept locked, and the names of jurors drawn were not written on the slips by the clerk of the court.

These were irregularities imputable to the commissioners, ahd in order to serve the defendant it must be shown that he has suffered some injury or some fraud has been practised, as designated in Sec. 10 of the Act No. 44 of 1877. State vs. Willie Taylor, 43 An.; State vs. McCarthy, not yet reported.

In the same motion the additional reasons are assigned for quashing the venire drawn for the second week of the term, that some of the jury commissioners who drew the jury were disqualified to act, having accepted offices since their appointment as jury commissioners which vacated the latter.

We have held that when the accused was put on trial during the term the indictment was found, he could, after the first day of the term, file a motion to quash the venire. 41 An. 688.

The defendant was indicted November, 1891. This motion was filed January 19, 1892, at a subsequent term of the court, eight days after the commencement of the term. The case was fixed without objection for trial January 18, 1892, and on this day refixed for the 20th.

The defendants make oath that these facts as to the disqualifications of the jury commissioners have come to their knowledge since the 18th day of January, the day on which the case was fixed for trial.

The accused have failed to show these facts could not have been ascertained by them by diligent inquiry. They were all matter of record in tlie parish of Acadia, and conld have been easily ascertained.

The motion was filed too late.

Judgment affirmed.

On Application for Rehearing.

•Eenner, J.

The assignment of errors, filed herein before submission, was misplaced and not brought to our attention.

The error assigned in the failure of the judge a quo to comply, in his sentence, with the requirement of Section 2 of Act 112 of 1890, which requires the judge to state at time of sentence that it is subject to the commutation and diminution provided,” etc.

It does not appear that appellants called the judge’s attention to this matter in any way or made any application to him on the subject. Under such circumstances, we do not feel called upon to reverse the judgment. State vs. Benjamin, 7 An. 47; State vs. Romano, 37 An. 98; State vs. Johnson, 33 An. 889.

It is doubtful if the judge’s omission prejudices defendant’s right under the statute, and they will no doubt find means to secure its benefit.

Rehearing refused.


author: McEnery, J.

text:
    No. 10,952.
    The State of Louisiana vs. Luma McCarthy.
    The rulings of the trial judge in matters of continuance will not be interfered with, unless manifestly wrong, arbitrary and glaringly erroneous.
    The right of peremptory challenge is not the right to select, but to reject jurors.
    The objection to a jrror that he was a member of the grand jury which presented the indictment comes too late on motion for a new trial. The objection should have been urged when lie was examined on his voir dire.
    When the trial judge has heard the evidence and ruled on the admission of a confession made by defendant, he is not required to make a note of the evidence to be incoiporated in a bill, when the testimony of the witness is of such a character as not to influence his ruling on the points presented in the bill.
    When the indictment charges that the murder was committed “ on or about the 28th December, 1890,” the words “ on or about” are surplusage. The real date is that which is specifically charged.
    It is not suillcient to set aside the venire when the clerk of court employs an amanuensis, who acts directly under his supervision, to write the names of jurors on the slips of paper to go into the “ general venire” box. In such a case the amanuensis is not an intruder upon the deliberations of the jury commissioners.

      APPEAL from the Thirteenth District Court, Parish of St. Landry,, Lewis, J.

      W. O. Rogers, Attorney General, for the State, Appellee.

      E. P. Veazie for Defendant and Appellant.
   The opinion of the court was delivered by

McEnery, J.

The defendant was indicted for murder, convicted and sentenced to be hung, from which judgment he appeals.

There are in the record fourteen bills of exceptions.

The ruling of the district judge on the motions for continuance were largely within his discretion. From his statements appended to the several bills, we do not think that he abused the discretion vested in him. It will not be disturbed unless manifestly erroneous. State vs. Green, 43 An. 401; 36 An. 853; 37 An. 128; 33 An, 262; 39 An. 673.

The several bills to the rejection of jurors may be disposed of by stating that the obnoxious jurors did not serve cn the jury which tried the accused. State vs. Aarons, 43 An. 406; 43 An. 401; 42 An. 255; 41 An. 590; 39 An. 751, 931; 37 An. 443; 33 An. 1410; 8 An. 109.

The objection to a juror that he was a member of the grand jury, which found the bill, comes too late on amotion for a new trial. The objection should have been urged when the juror was sworn on his voir dire. State vs. Thomas, 35 An., p. 24.

Relying upon the doctrine in the Seiley case, 41 An., p. 143, the defendant took a bill of exceptions to the ruling of the trial judge refusing him the privilege of taking down certain statements of a witness relative to the confession of the defendant. This r equest was made after the witness had testified and the judge had ruled on the confession, admitting it to go to the jury:

The case is not similar to the Seiley case. There is no conflict as to the statements of the judge and the defendant’s counsel, as to what the witness had sworn to.

The trial judge emphatically states that the confession.was free and voluntary, and that “ there was not the slightest evidence to show that any inducements or threats were held out to the accused or to show that the accused was in a state of mania superinduced by intoxication.”

While adhering to the doctrine in the Seiley case, we are not disposed to so extend it as to absolutely interfere with the trial judge in matters addressed to his sound discretion, and to require him, after he had heard the evidence and ruled on the confession, to make a note of the testimony of a witness who did not state any fact relating to the matter complained of in the bill. The ruling on this bill applies to No. 11.

The motion in arrest of judgment alleges that the indictment is fatally defective in substance in charging the murder to have been committed on or about the 28th of December, 1890. The words “on or about ” are surplusage. The real date is that which is specified. Time is not the essence of the offence here charged, and the time therefore stated in the indictment is immaterial as to the exact date if it be charged before finding of indictment. Wharton, Sec. 267; State vs. Williams, 30 An. 843; State vs. Waters, 16 An. 401.

Bill No. 1 is presented with great force, and we have given the utmost consideration to the able argument of defendant’s counsel. The defendant on the first day of the term filed a motion to quash the indictment, charging that the jury commissioners in drawing the jury disregarded the provisions of Act 44 of 1877. The complaint is that one Raoul Pavy, a minor, who was sometimes employed in the" clerk’s office, wrote the names and residences of some of the jurors on the slips of paper Which were to be placed in the “ general venire” box. If this fact stood alone and unexplained, the case would be brought within the ruling of the State vs. Willie Taylor, 43 An. In this case we said: “ The clerk omitted to perform the duties specially assigned under the act, and the box was not of that kind provided with lock and key, as the law directs; but these are irregularities only, and it was not shown that they were done for the purpose of injuring the defendant, or with any fraudulent intent, or that some great wrong had been done him. It is essential to show these facts, in order to set aside the indictment for such irregularities as are alleged.”

We held in the case that the irregularities embraced within the meaning of Section 10 of the act, referred to those committed by the commission, and that when a person not a commissioner intruded himself upon their deliberations, and did acts which it was the duty of the commissioner to perform, these were not acts of the commissioner, but of one who had no authority to perform them, and therefore null and void.

The ruling of the trial judge may well stand without impugning the decision in the Taylor case. In the latter case there was nothing to explain or qualify the act of the third person, who performed the duty assigned to the clerk, and who, for aught that appears, acted, independently and without control or supervision. But here, the judge’s statement in the bill says, “the evidence shows that the writing of the names on the tickets was done under the immediate supervision and direction of the clerk and jury commissioners in the clerk’s office, and by an amanuensis in the regular employ of the clerk.” If, as thus appears, the writing was done under the eye and direction of the clerk, by one acting merely as his amanuensis, it would be extending strictness beyond reason to hold that the venire was thereby vitiated.

Under such a holding, if the clerk was temporarily disabled from writing by a wound or other injury to his hand, a venire could not be drawn, and the machinery of justice would be stopped.

In the Taylor case, we were careful to state that the omission of duties by the clerk, specially assigned to him under the act, were irregularities only, and embraced within the meaning of Section 10 of Act 44 of 1877. Proof, therefore, of injury and fraudulent intent must be proved in order to affect the venire.

In the ease at bar the amanuensis did not intrude himself upon the deliberations of the commission. He was present with full knowledge of the commissioners, and acted directly under the supervision and control of the commission, doing only an act which, in effect, was the act of the clerk of court. His act was, therefore, the act of the commissioners, and if irregular must be treated as an irregularity imputable to the commission.

Judgment affirmed.


author: Breaux, J.

text:
    No. 10,964.
    J. B. C. Graugnard vs. Lucius Forsyth, Jr.
    A party having entered into an agreement authorizing the sheriff to retain an amount, part of the proceeds of the sale of a plantation realized under executory process; not having alleged that the agreement had been violated; having introduced a copy of it in evidence without any limitation or restriction ; having proven certain facts by the agreement, which, had they not been proven, might have resulted in a loss, can not be relieved from its effects.
    The sheriff is directed to retain part of the amount agreed upon to await the result of a decision in another court.
    Although one of the parties to the stipulation may not be a party to the suit conducted in part, at least, for his benefit and in compliance with the agreement, he is bound by the proceedings and the result of the suit.
    APPEAL from the Twenty-second District Court for the Parish of St. James. Duffel, J.

      T. J. Semmes & Legendre and L. P. Edrington for Plaintiff and Appellee:
    C. C. 3274: No privilege shall have effect against third persons, unless recorded in the manner required by law. Act 45 of 1877, Regular Session, 30 An. 1007.
    Tilings which the owner of the land has placed on it for its service are immovable by destination, such as mills, kettles, vats and other machinery used in carrying on the plantation work. The utensils used for working distilleries, sugar refineries, are immovable by destination. O. C. 468; 38 An. 303; 23 An. 740; 22 An. 117; 3 An. 717.

      A conventional mortgage, when once established on an immovable, includes all the improvements it may afterward receive. ■ C. C. 3310.
    A mortgage is indivisible in its nature. C. C. 3282; Mareado, p. 355, vol. 10; Aubry &Rau, vol. 8, p. 413; Zacliariae, See. 2S9; Grenier 1, p. 179; Troplong III, p. 750; ■ Oour de Cassation, Dec. 14,1831; March 4, 1833; Dee. 21, 1844; Aug. 1847; Dallos 83, 1,125; 36,2, 101; Journal du Palais 1845, 1. 1, p. 98; 1846, t. II, p. 427; 1847, t. II, p. 621.
    The plea of discussion can not bo opposed to the privileged creditor, or to one who has a special hypothecation. C. C. 3403; O P. 73; C. N, 2171; 19 An. 181; 16 An. 195; 31 An. 789; 10 R. 45.
    A creditor, asking for the discussion of a debtor’s property, must tender a sum sufficient to effect it, and can not refer the seizing creditor to property of the debtor which is in litigation and which is mortgaged. C. P. 72; 7 An. 415; Pothier, vol. l, p. 560; Ü. 0.1933; 22 An. 416; 2 Woods, 87; 6 An. 87; 2 An. 168; 5 L. 126; 5 N. S. 96.
    A creditor can not sue to annul a contract made hefox'e the time his debt accrued unless he pi'oves his debtor intended to defraud his futxxre creditors.
    Among mortgage creditors the question of preference is determined by the order and date of inscription of their rights. C. C. 3397; Pothier, vol. 9, p. 458,
    In eoxnxnntative contracts, the failxxre or refusal of one party to comply, liberates the other. 10 U. 23; 6 U. 720.

      If a party refuse to comply with his part of the contract the other may decline his. 2 An. 957; 8 B. 157; 1 N. S. 625.
    Attorney’s fees stipulated in an act of mortgage are covered by the mortgage, and, in case of judicial proceedings,'are to be paid, as well as the capital of the debt, all being of equal ranlr and dignity. 37 An. 646; 41 An. 269.

      Sims & Poché for Opponents and Appellants.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff, on the 14th of January, 1891, bought four notes of the Citizens Bank, of $4037.25 each. He at the same time bought one note of $5378 from the Burbridge heirs, and four notes of $3000, all secured by mortgage on Pike’s Peak plantation, in the parish of St. James. The last four are also secured by special mortgage on the Burbridge plantation, in the parish of Plaquemines.

Plaintiff, on the 27th of January, 1891, obtained from the District Court of the parish of St. James a writ of seizure and sale, on the said mortgage notes, against Pike’s Peak plantation.

Afterward plaintiff obtained in the United States Circuit Court a writ of seizure and sale against the said Burbridge plantation, on the said four notes of $3000 each.

On the 6th day of March, 1891, as directed by the plaintiff, the sheriff discontinued all proceedings under the writ of seizure and sale issued in St. James parish on the said four notes of $3000 each, and continued with the seizure on the other notes.

A satisfaction of judgment was entered by plaintiff’s counsel, and payment of the five notes attached to plaintiff’s petition (the first notes before mentioned) was acknowledged, and the clerk was authorized to cancel the mortgage.

Pike’s Peak plantation was sold under the said writ on the 7th day of March, 1891, for $39,200, with the machinery in the sugar house, which was appraised and sold separately; it brought $41,325.

On the 5th day of March, 1891, the plaintiff and Pugh & Co., holders of an inferior mortgage', entered into an agreement setting forth that executory process had been obtained and Pike’s Peak plantation seized on nine promissory notes due by the defendant, being the notes before referred to; “that four of these notes were secured by mortgage and vendor’s privilege, as per act passed 23d January, 1889; that another was also secured by mortgage on the 26th January, 1889; and that four (of the said nine notes), dated November 18, 1885, were secured by mortgage and vendor’s privilege on the Burbridge plantation, as per act of sale of that date; that they were also secured by mortgage on Pike’s Peak plantation, under the 'before mentioned act of January 26, 1889.

“That since the said proceedings were instituted, executory process was issued on said four notes of $3000 each, before the Circuit Court of the United States, whereby the-said notes have been withdrawn from the operation of said writ of seizure and sale in the District ■Court of St. James.

“ That Pugh & Co. are mortgage creditors of the defendant in the ■-sum of $12,271.79,and interest and attorney’s fees, for which judgment has been obtained, as per said mortgage on Pike’s Peak plantation, ■dated May 1, 1890.

“That they had sued out, or were about to sue out, a third opposition in said District Court, claiming to be paid by preference over the plaintiff as holder of the said $3000 notes, bearing on said plantations, out of the proceeds of said Pike’s Peak plantation, and claiming, as to these (4) notes, that plaintiff is bound to discuss the said Burbridge plantation, and that an injunction might become necessary to protect their interest as mortgage creditors.”

After these preliminaries had been written, it was agreed that the sheriff should return the writ, quoad said notes and retain in his •hands, out of the proceeds of the sale of Pike’s Peak plantation (after paying plaintiff’s said four notes of $4031.25 each and the note for $5375, also interest, attorney’s fee and cost), a sum sufficient to pay and satisfy the judgment of Pugh & Co., and hold the amount subject to the decree of the court in said opposition.

It was also agreed that after the sale of the Burbridge plantation, under the writ in the Circuit Court of the United States, the plaintiff “ shall credit said writ with the proceeds of said sale, and that any balance due to said Graugnard, after exhausting the proceeds of said Burbridge plantation, shall be paid out of the proceeds of the said Pike’s Peak plantation by preference over Pugh & Co.; the intent and purpose of this agreement being to prevent litigation and the -arrest of the sale of Pike’s Peak plantation by injunction, which would inflict injury on all parties in interest, and it being also the interest hereof that while Graugnard authorizes and instructs the 'Sheriff to discontinue the writ in so far as the said four notes each for §3000 are concerned, he in no manner abandons his mortgage rights in Pike’s Peak plantation or the proceeds to satisfy any balance which may be dne him on said four notes of §3000, after the-sale of the Burbridge plantation.”

The sheriff, in accordance with agreement, paid to plaintiff the five notes and interest, from the proceeds of sale of Pike’s Peak plantation, but refused to pay the fee of plaintiff’s attorney of $1270, and retained the remainder of the proceeds.

The Burbridge plantation was sold in April, 1891, by the United States Marshal, and brought $7700; the taxes, commissions and costs of planting the crop were $2180; balance, $5514.

A. F. Slangerap, a creditor of the defendant, intervened in the United States Circuit Court in the case of G-raugnard vs. Forsyth and claimed the proceeds of the sale of the Burbridge plantation to an amount sufficient to satisfy his claim.

Four thousand dollars (§4000) were retained, subject to the further-orders of the court, leaving §1514, which were paid to plaintiff and properly credited.

Pugh & Co. filed their opposition on the 6th day of March, 1891,. and claimed the proceeds to which they laid claim in the said agreement.

Plaintiff denied their right to recover, and further alleged, in his answer, that should the court recognize their right, he was entitled, to be paid the sum of §11,500 out of the proceeds in the sheriff’s-hands, leaving §4000 to be paid after the determination of the case-before the United States court.

At the instance of the plaintiff’s counsel a rule was issued against the sheriff, to show cause why the fee stipulated in the act of mortgage should not be paid to them.

That officer, jn his answer, denied their rights.

The intervenors made themselves parties, and, answering, alleged that plaintiff, in rule, had no right to stand in judgment.

Other creditors hereafter named also intervened.

The District Court rendered judgment ordering the sheriff to pay plaintiff’s claim secured by mortgage, including attorney’s fees, by preference over all. opponents, from the §12,854.20 retained by him, subject to a credit of §1514, collected by the plaintiff from the proceeds of the sale of the Burbridge plantation, and decreed that the sum of §2125 be paid to H. Kohn, M. Schwartz & Co., and Taylor Bros., respectively, being due on amount secured by privileges recognized by the judgment, leaving an amount of more than $400 due plaintiff.

The claim of A. G-. Paynes, also an intervenor, was rejected.

Prom this judgment Pugh & Oo. are the only appellants.

Plaintiff chose to enter into an agreement, the purpose of which he declares was to avoid litigation.

He was to endeavor to secure an amount under the mortgage on Pike’s Peak plantation, which also attached to another plantation. The consideration for the agreement, on his part, is not made conclusively apparent by its terms, for under‘t the law he had the right to proceed with the foreclosure of his mortgage on Pike’s Peak plantation.

The want of consideration of this agreement is not alleged, nor its violation.

By reference to the record, it appears that the stipulation in question was of some use to plaintiff.

The plaintiff entered satisfaction of judgment and payment of five notes attached (the first notes described in the agreement), and authorized the clerk of court to cancel the mortgage, as before mentioned.

The stipulation to pay his fees, as contained in the agreement, dispenses with the necessity of passing upon the effect of this order to cancel, in so far as relates to this fee.

This payment having been agreed upon, it was properly ordered, in the judgment appealed from.

Without the agreement, that the plaintiff in argzwnent contends should be ignored, serious question as to the right to recover the fee of attorneys might have arisen.

The act was offered in evidence by the plaintiff, without restriction as to its effect. A party introducing himself evidence he might exclude must abide its effect. 1 N. S. 243; 33 An. 801. It was not offered to prove its nullity, for it was not alleged.

This agreement had the force of a contract, and can not be set aside upon grounds less than would warrant the rescission of a contract.

Plaintiff refers to several decisions in support of the propositions that ‘ ‘ if a party refuse to comply with his part of the contract, the other may decline his, and that in commutative contracts the failure or refusal of one party to comply liberates the other.”

It is not decided in any of the cases ref erred to that the contract is void to the extent that without issue as to its violation, a contract .admitted without any limitation can be disregarded.

In referring to one of these cases, the syllabus from the digest is ■correctly quoted as above.

But from the decision to which the syllabus refers we quote:

“ In synallagmatic contracts the refusal of either party to per■form his engagement entitles the other to his liberation." Chase vs. Turner, 10 L. 21, On proper issue in that last case the contract was ■annulled.

Although there has not been willingness and promptness on the part of said intervenors in complying with its terms, and the sheriff has been erroneously encouraged in retaining this fee, we will not regard the contract as null and treat it as void without an issue to that effect.

We quote the following from Thompson on Trials, p. 196, not as conclusive authority or as having a direct bearing on the subject, but as a reference somewhat in point:

“When several cases are pending in court depending upon the same facts or questions of law, it is competent to stipulate that only one shall be tried, and that the others shall abide the results of that one.” “ Such a stipulation is not merely an independent executory agreement, but it operates presently to affect the status of the case itself, and invests the plaintiff with rights in respect to its conduct which he otherwise would not have had, and of which neither the •opposite party nor the court can lawfully divest him.”

The amount of $4009, deposited with the marshal, is awaiting the decision of the United States Circuit Court.

We can not relieve plaintiff, as to this amount, from the effect of his agreement.

At the same time justice requires that intervenors should be equally 'bound.

In following the terms of the agreement they are met by the defence in the United States Circuit Court, that a mortgage creditor can not divide his mortgage so as to affect the rights of third per.sons. •

The question must be decided by the court before which it is pending.

The intervenors can not ignore, nor question the legality of proceedings to which they have consented, carried on contradictorily with the plaintiff, and raise issues which have been settled with him in a tribunal of their selection.

In making the agreement it necessarily gave some control of the proceedings to the mortgage creditor.

The intervenors can not abstain from all concern in the litigation and be heard to question the binding effect of the proceedings in the said Circuit Court.

When the decision will have been rendered, if adverse to plaintiff, he will have a right to the immediate payment of the $4000 retained by the sheriff.

If it be rendered in his favor, he will be entitled to all balance due-him, principal, interest on all principal due, costs, and balance which may be due on fee secured by mortgage.

The intervenors will have a right to the remainder.

Plaintiff in this court, in his answer to the appeal, asks that the judgment appealed from be amended and corrected, in so far as it recognizes the privileges claimed by Schwartz & Co., Taylor Bros., and Kahn Bros., and that these privileges be rejected.

All the parties are appellees, except Pugh & Co.

Plaintiff is an appellee, and can not as such have the judgment of his co-appellees amended.

If he desired to ha!ve the judgment amended as between him and his co-appellees, he should have appealed. Bowman vs. Kaufman, 30 An. 1021; Vance vs. Vance, 32 An. 186; Boissée vs. Dickson, 31 An. 742.

It is ordered, adjudged and decreed that the judgment appealed from be amended, by ordering the sheriff of the parish of St. James to retain four thousand dollars of the fund realized by the sale of Pike’s Peak plantation, to be paid to plaintiff if he be cast in the suit pending before the United States Circuit Court for the Eastern District of Louisiana, in the case of J. B. C. Graugnard vs. L. Forsyth, Jr., Aug. L. Slangerup, intervenor, No. 11,986, or, if rendered in his favor before said court, so much of said amount to be applied to the payment of the balance due said plaintiff Graugnard as may be necessary, and the remainder to be applied to the payment of Pugh & Co., intervenors, on their judgment.

After amendment as above judgment is affirmed at appellee’s costs.