author: Nicholls, C. J.

text:
    No. 11,193.
    Succession of Myra Clark Gaines.
    1. Neither the domicil nor the residence of Myra Clark Gaines was in Louisiana, In 1885 she was temporarily in the State, but her domicil at that time was in Kings county, in the State of New York.
    2. Ky her death her succession was immediately opened at her domicil, independently of her having property at that time in New York. Whether that succession as to its character was legal or testamentary was a question necessarily to be determined by the Probate Court of the domicil. The unity of the succession was not destroyed by the fact that portions of the property might be located in different jurisdictions in different States, and because, from motives of public policy, or the operation of local laws, property so situated might be partially or entirely withdrawn from the controi of the laws of the State of 'the domicil or subjected for the same reasons to special restrictions.

      3. The Probate Court of Kings county, New York, was unquestionably authorized to have presented to it an instrument purporting to be the last will and testament of the deceased, and, after due proceedings and inquiry had, to determine whether it was such last will and testament under the laws of the place of the domicil.
    Upon presentation to the Civil District Court of a duly authenticated record of the Probate Court of the domicil of a deceased person probating a certain instrument as the last will and testament of that person, and ordering its execution, it was the duty of that court also to recognize the instrument as such last will, notwithstanding the fact that the instrument had been once offered in the Civil District Court for probate, and as a matter of original probate the probate had been refused on the ground that it did not, as to form, comply with the laws of Louisiana. When the instrument was presented the second time the Civil District Court was not called on to deal directly with and on the instrument as a matter still in pais for the purpose of determining whether it was the last wiil and testament of the deceased; that question liad passed on to and been determined by the court competent and authorized to do so, and it was merged in the judgment of that court. A recognition of the will as such when presented under such circumstances was perfectly consistent with the correctness of the original decree of the Civil District Court refusing to probate it as an original question. A recognition of the instrument as the last will of the deceased will not necessarily carry with it an execution in Louisiana of all the provisions of the will. If there be any parties in this State creditors, or others who have legal right to contest its provisions, those rights will remain unaffected by the simple recognition as a fact that the instrument is the last wiil of the deceased. An ancillary succession haying been opened in this State, before property can be withdrawn from the hands of the administrator, proceedings contradictorily with him will have to be taken which will furnish ample opportunity to all parties leg illy interested to protect their rights.
    The fact that the decree of the X^robate Court of Kings county, New York, has been appealed from devolutively does not present any legal reason for not recognizing presently in Louisiana the decree.
    APPEAL fi’om the Civil Distinct Court for the Parish of Orleans. King, J.

      Richard DeOray and Browne & Choate for the Appellants:
    1. Personal property has no situs but that of the owner, and its transmission by contract, inheritance or will is controlled by the law of the domicil of said owner. Succession of Alice Packwood, 9 Ro. 443; Succession of McCandless, 3 An. 581; Peale vs. White, 7 An. 449; Atkinson vs. Rogers, 14 An. 633; Perin vs. Mc-Micken, 15 An. 155; Thomas vs. Morrisat, 76 Ga. 384; 2 Kent Com. 429; 4 Kent Com. 513; Wilkin vs. Ellett, 9 Wall. 740. And there is nothing in the statutes or juris prudence of Louisiana to the contrary. Article 491 of the Civil Code has no reference to the disposition of personal property situated in Louisiana and owned by parties domiciled in other States or foreign countries. Perin vs. Mc-Micken, 15 An., p. 155; Succession of McCandless, 8 An. 581; Succession of Franklin, 7 An. 395.

      2. The proceedings of the probate of a will in any State is a judicial proceeding under Art. 4, Sec. 1, of the Constitution of the United States, and when duly authenticated underact of Congress of the 26th May, 1790 — now Sec 905, 11. S. Rev. Stat. — is entitled to full faith and credit in every other State to which it may be brought. Succession of Thomas E. Bowles, 3 Rob. 34; Johnson vs. Runnels, 6 Mart. N. S., p.622; Balfour vs. Chew, 5 Mart. N. S., p. 519; Bright vs. White, S Missouri, 426; Robertson vs. Barton, 6 Monroe’s Ky. Reports; Haile vs. Hill, 13 Missouri, 618; Thomas vs. Morrisat, 76 Ga, 384; JDalrymple vs. Gamble, 68 Md. 523; Green vs. Sarmiento, 3 Wash. C. C. 21; and is to have the same force and effect in the State to which it may be brought, even though such judgment could not be there rendered, as it has in the State whence it is taken. Hampton vs. McConnell, 3 Wheaton, 234; Renaud vs. Abbott, 116 U. S. 277; Carpenter vs. Strange, 141U. S, 87; and the refusal to give said judicial proceedings such precise force and effect is a denial of a right secured under the Constitution and laws of the United States. Christmas vs. Russell, 5 Wall. 290; Green vs. VgABuskirk, 5 Wall. 307, and 7 Wall. 139; Insurance Co. vs. Harris, 97 U. S. 331, 336; Crescent City Co. vs. Butchers’ Union, 120 U. S. 141,146, 147; Carpenter vs. $trange, 141 U. S 87; Huntington vs. Attrill, 146 U. S. 657.
    3. Any statute or law or decision denying this effect is unconstitutional and void. Christmas vs. Russell, 5 Wall. 290.
    4. And when a will has been duly proved before a competent, judge of the place where it was received, the order of execution in Louisiana should be granted without any other form. Civil Code, Art. 1689; Succession of Bowles, 3 Rob. 34.
    5. The succession at the place of domicil of the deceased is the home or primary succession, and that at the place where property may be situated outside of the State of the home or primary succession is the ancillary succession. Story’s Conflict of Laws, Sec. 513; Stevens vs. Gaylord, 11 Mass. 262, 263; Succession of Milton Taylor, 28 An. 367, 372; Borer vs. Chapman, 119 U. S. 599.
    6. And it makes no difference which succession is opened first. Stevens vs. Gay-lord, 11 Mass. 262, 263.
    7. After the payment of cred tors, costs and charges, at the place of the ancillary succession, the residuum of the estate should be sent to the place of the primary or home succession for the payment of costs and charges there incurred, debts there due, and for distribution of the balance in accordance with the directions of the will or according to law. Story’s Conflict of Laws, Sec. 513; Gravelon vs. Richards, 13 La. 298, 299; Mourain vs. Poydras, 6 An. 152;’Wilkins vs, Ellett, 9 Wall. 741; Freeman on Judgments, Sec. 605a.

      Farrar, Jonas & Kruttsehnitt on the same side.

      Thomas J. Semmes and Bouse <& Grant for the Appellees:
    1. Only wills made in other States can be registered and executed here on the faith of a foreign probate — a will made in Louisiana must be probated here. C. C. 1688,1689; 8 N\ S. 585; 13La. 221; 17 La 4«6; 18 La. 570; 2 R. 443; 6 R. 236; 3 An. 579; 12 An. 399; 24 An. 386; 28 An. 57; 39 An 887; 32 An. 385.
    But a will made abroad need not be probated in the place where made. State ex rel. vs. Judge of Iberville, 8 N. S. 586.
    3. The common law rule that a will of personal property valid at the domicil of the testator is valid everywhere does not prevail in Louisiana. We have substituted in its place the lex regis actvm. C. C. 10,1596; 2 R. 25S; Sue. of Senae.

      •3. A will made in Louisiana lias no effect here until probated in our courts. Anbert vs. Aubert,6 An. 101; C. C. 1611; 5 An. 265,613; 10 La. 533.
    I. The Code of 1808 did not admit the registry and execution of a foreign will on the faith of a foreign probate; Articles 1688 and 1689 were introduced by the compilers of the Code of 1825.
    5. The probate of a will is in the nature of a proceeding in rem.

    ■6. The probate decree in New York being a decree in rem merely affects property within the State of New York and can not affect property, real or personal, situated elsewhere. And full faith is given to it when it is treated as a valid decree on property of the deceased administered in New York. 10 Grattan, 368; 138 Mass,121; 33 Grattan. 229; 32 Grattan, 666; 1 Pick. 535; 81 Ala. 125; 5 Rhode Island, 119 and 201; 127 U. S. 291; 7 Heiskell, 88.
    7. The State may prescribe the conditions on which property, real or personal, within its limits, shall pass to successors, and therefore to prescribe the probate and registry and execution of a foreign will as a condition upon which it is to take effect, and until the condition is complied with such will has no legal effect. 12 Wheat. 175; 9 Wheat. 570; 13 Pick. 8; 10 Gray, 163; 6 An. 637; 30 An. 887; 7 Heiskell, 88.
    8. An entire succession is an immovable, and such is the character of this action by the New York administrator against the heirs at law. O. C. 171; 11 An. 186; 10 An. 772; 11 An. 537.
    9. Personal property for purposes of administration has a situs, and especially a judgment, and particularly so far as testate successions in Louisiana are concerned, the fiction mobiMa personam sequuntur is not recognized because the law of domicil as to wills does not exist here. 5 Pet. 522; 109 U. S. 656; 133 U. S. 128; 111 U. S. 27; 5 Wallace, 312; 2 M. N. S., Olivier vs. Townes.
    10. The jurisdiction of the surrogate court may be inquired into, and if the facts on which it founded its jurisdiction do not really exist the decree is a nullity. Whitman vs. Thompson, 18 Wall. 157.
    II. Domicil is not established by a mere claim of residence in a certain place; the fact of residence must be combined with intention to make the place a permanent home. Sue. of Franklin, 7 An. 108-9; 16 La 596; 10 An. 268. •
   The opinion of the court was delivered by

Nicholls, C. J.

Mrs. Myra Clark Caines died in the city of New Orleans on the 9th of January, 1885.

On the 12th of January of the same year Mrs. Marie P. Evans presented for probate to the Civil District Court for the parish of Orleans what purported to be an olographic will of the deceased, dated New Orleans, January 8, 1885.

On the same day, what also purported to be a will of the deceased in the nuncupative form, under private signature, dated New Orleans, January 5, 1885, was presented for probate to the same court by W. H. Wilder and J. Y. Christmas, who were therein named as executors. They resisted the probate of the will of January 8, on the ground that it was a forgery.

The probate of the will of January 5 was resisted by Mrs. Evans, •on the ground that it had been superseded by a will subsequent in date and was defective in form.

These issues were presented and tried, resulting in a judgment, rendered February 21, 1885, which decreed that the instrument purporting to be an olographic will of Mrs. Gaines, dated January 8, 1885, was fraudulent and forged, and not entitled to probate, and that the nuncupative will of January 5,. 1885, was defective-in form, and therefore not entitled to probate, reserving however the right of the executors to propound the same for probate at Washington, D. 0., the domicil of the deceased.

On an appeal to this court, taken by Mrs. Evans, from that part of the judgment which declared the alleged will of January 8 to be a •forgery, the judgment of the District Court was affirmed.

No appeal was taken from the judgment refusing to probate the will of January 5, 1885.

The judgment having become final, the District Court appointed Mrs. Mattie L. Whitney tutrix of her minor children, who were grandchildren of the deceased, and appointed James Y. Christmas tutor of his minor children, they being grandchildren of Mrs. Gaines, and they in their said capacities administered the succession in Louisiana.

Subsequently James Y. Christmas died, and after a contest upon the administratorship the court appointed William Wallace Whitney, who had became of age, administrator of the succession in this State.

Subsequently to the refusal of the District Court to probate, as has been stated, the nuncupative will of January 5, it was taken to the .Surrogate’s Court for the county of Kings, in the city of Brooklyn, State of New York, and there offered for probate by W. H. Wilder, the surviving executor named in the will.

The probate was there opposed by Mrs. Marie P. Evans, who set up the forged will of January 8,1885. This'latter instrument was again rejected, and the nuncupative will of January 5,1885, was by a judgment rendered June 29, 1891, decreed to have been properly executed, conformably to the statutes of New York, to be genuine and valid, and to be the last will and testament of Myra Clark Gaines.

It was further decreed that at the time of the execution of said instrument Mrs. Gaines was in all respects competent to make the same, and was not under any restraint or undue influence.

The judgment further declared that William W. Whitney, Myra O. Whitney, Zulime Whitney, William W. Christmas, Rhoda B. Kennedy, James M. Christmas, all heirs and next of kin of Mrs. Gaines, had been made parties to and had made appearance in the proceeding — the minor, Zulime Whitney, appearing through her special guardian, William H. Ford.

An appeal, devolutive in character, and which is still pending in New York, was taken from this judgment by William W. Christmas and Rhoda B. Kennedy.

On the 4th August, 1892, the surrogate, declaring that a delay had been necessarily produced in granting letters testamentary or letters of administration on the estate of Mrs. Gaines, and that at the time of her death she was a resident of the county of Kings, by reason whereof the ordering and granting administration of all and singular the personal property, goods, chattels and credits whereof she died possessed appertained to his court, appointed William B. Davenport, public administrator in Kings county, temporary administrator of all the said personal property, goods, chattels and credits.

On the 11th December, 1892, William B. Davenport, as public administrator in Kings county, Brooklyn, New York, and temporary administrator of the personal property, goods, chattels and credits of Mrs. Myra Clark Gaines, filed a petition in the District Court for the parish of Orleans, to which he annexed a certified copy of the proceedings had before the surrogate in the matter of the probate of the will of Mrs. Gaines, and in which petition he alleged his appointment as above stated, and annexing copies of his letters of appointment he averred that, under the laws of New York, his powers under said appointment were the same as that of executor with seizin under the laws of Louisiana. He further alleged that Mrs. Gaines was at the time of her death and had for many years prior thereto been domiciled in said Kings county.

He prayed that the certified copy of the will be registered and ordered to be executed by the court.

Opposition to this demand was filed by Hattie L. Whitney, William W. Whitney, Zulime Whitney (now wife of--Somers), William W. Christmas, James M. Christmas and Rhoda B. Kennedy, wife of Charles A. Kennedy (the said opponents declaring themselves to be the sole heirs at law of Mrs. Gaines), and William W. Whitney, declaring himself to be and as appearing as administrator of the sue-cession of Mrs. Gaines, now under administration in the Civil District Court.

The grounds of this opposition were—

“ 1. Because William H. Wilder had on the 12th of January, 1885, propounded said alleged will to the Oivil District Court for the parish of Orleans, and prayed that the same be probated, and after due proceedings had and evidence adduced in support thereof, it was finally ordered, adjudged and decreed that said alleged will was not a valid will, and to it probate was refused, and it was further adjudged and decreed that said Myra Clark Gaines was at the time of the execution of said alleged will domiciled in the District of Columbia, and the right of proponent to apply to the proper court in said district for the probate of said will was reserved, all of which will more fully appear by the proceedings and judgment therein rendered the 27th day of February, 1885, and which judgment has not been appealed from, annulled or vacated, and remains in full force and effect.

“ 2. Because said Myra Clark Gaines did not die in the State of New York, was not domiciled therein, nor was a resident thereof at the time of her death, and had no property in said State, and said Surrogate’s Court of Kings county in said State was without jurisdiction to admit said alleged will to probate.

“ 3. Because the records of the proceedings in said Surrogate’s Court, upon the petition of said Wilder for the probate of said will, show that the decree admitting said will to probate has been appealed from, which appeal is still pending, and said decree is not a final one, which authorizes this court to order the registry and execution of said will.

“ 4. Because a will made in Louisiana and rejected by its courts can have no effect in Louisiana, although it may be admitted to probate elsewhere.”

After the opposition had been filed Edmund P. Gaines, of New York, Myra Clark Gaines Mazerat, John W. Harmon, of Mississippi, and George W. Benson, of Georgia, all legatees under the will sought to he probated, intervened in the proceedings, praying that the balance of the funds in the hands of William Wallace Whitney, administrator, after the payment of the debts, judgments, legal charges, and such claims as are now in process of adjustment in the courts sitting in Louisiana, be ordered paid over to William B. Davenport, temporary administrator of the estate of Myra Olark Gaines, in Kings county, New York.

The district judge on trial of the opposition sustained the same and refused the application of William B. Davenport, the temporary administrator, and rejected the will.

William B. Davenport has appealed, as have the intervenors, from the judgment.

The District Oourt considered that the will of Myra Olark Gaines dated January 5, 1885, having been made in Louisiana is governed iby the laws of Louisiana, and, having been already decreed invalid by that court because not made in the form prescribed by that law, it could not be taken to New York, the last domicil of the testator, probated there, and, having been received and made valid in New York by the laws of New York, brought back here for recognition and execution by it on property situated in this State and in possession of an officer of that court.

The district judge, in his opinion, says: “ The will was probated in New York because the city of Brooklyn, in the county of Kings, State of New York, was considered the last domicil of the deceased. It is proved in this case to be so by her own judicial admissions made in the courts of this State and in the Federal courts years prior and a few months before her death, and since her death conceded to be her domicil by her heirs and those administering her succession.

“The reservation in the judgment to propound the will at Washington, D. 0., the domicil of the deceased, is mere obiter dictum, as the place of the domicil was not at issue in that proceeding. It is simply a reservation to propound the will for probate at the last domicil of the deceased, wheresoever that might be.”

He further says:

“ This court has already determined that the will was not made in the form prescribed by our laws, and therefore under Art. 1595 was null and void. The fact that the deceased resided out of this State did not empower her to dispose of her property in this State in a manner different from that prescribed by the laws of this State. Art. 491' of the Oivil Oode declares that persons who reside out of the State can not dispose of the property they possess here in a manner different from that prescribed by its laws.”
“It is immaterial whether Myra Olark Gaines’ domicil was here or in New York. Her will is governed by the laws of Louisiana, the law of the place where it was made, not by the law of the domicil. It having been made in Louisiana no other law can be resorted to for the purpose of determining its validity as to form or effect so far as its operation on property in this State is concerned.”
“ The domicil of a testator as to the form and effect of a will is ignored by our law. It is the place where it is made and the property disposed of where situated that is recognized. * * * The decree of the Surrogate’s Court of Kings county, New York, merely declares that the will is a valid will in New York. It does not decree that it is valid everywhere. It is valid there, and whether admitted to probate here or not the action of this court can not alter its effect upon property there.”

In discussing the legal propositions submitted to us in this case, we hold as established beyond question as a fact, that at the time of the making of the will of January 5, 1885, and at the time of.her death, Mrs. Myra Clark Games’ domicil was in the city of Brooklyn, New York State, and that she was only temporarily in New Orleans at that time.

The first ground of opposition submitted by the appellees was, as we have seen, that the District Court for the parish of Orleans had,, on the 27th February, 1885, on the application of W. H. Wilder and James Y. Christmas to probate the will of the 5th of January, in which they were named executors, refused to do so and reserved their right to propound the same for probate at the city of Washington as the place of her domicil, and that this decree never having been appealed from, annulled or vacated, remained still in full force and effect.

The record does not show whether this particular contention, which is substantially a plea of res judicata,was interposed or not as an objection in the Surrogate’s Court. Whether it was so interposed or whether made for the first time in the last proceedings in Louisiana, it was in neither event well taken. The only question before the Civil District Court in 1885 was whether that court should, as a matter of original probate, probate the will, and that question was determined adversely to the probate solely because it did not conform as to form with the requirements of che laws of this State. Neither the correctness nor the force and effect of that judgment on the issue as so presented are contested nor will that judgment be affected ■ by a decree rendered in the present proceeding. It can stand perfectly consistently with the granting of the application we are now considering.

As regards the domicil of the testator that question was not an issue in the former proceeding, and the mention of her domicil (made in that portion of the decree reserving the executor the right to propound the will for probate elsewhere) as being in the city of Washington was uncalled for, bound no one, and was entirely surplusage.

The second objection was to the probate of the will by the surrogate on the ground of a want of jurisdiction in the Surrogate Oourt. This want of jurisdiction, which seems to have been once urged and then formally withdrawn in that court, is based upon the claim that Mrs. Gaines did not die in the State of New York, was not domiciled nor a resident thereof at the time of her death, and had no property in that State. We concur in opinion with the surrogate and the district judge that Mrs. Gaines’ domicil was in Kings county, New York, at the time of her death.

Her succession was instantly opened by the fact of her death at the place of her domicil. That result was totally independent of her having property at that time in the county of Kings, or in the State of New York. Whether when she died her succession was, as to its character, a legal or a testamentary one, was a question necessarily to be determined at the place of legal opening. When the succession opened it opened as a single and entire succession. The unity of the succession was not destroyed by the face that portions of the property might be located in different jurisdictions and in different States, and because from motives of public policy or the operation of local laws the property so situated might be withdrawn partially or entirely from the control of the laws of the State of the domicil, or subjected for the same reasons to special restrictions.

The language of this court in Burbank vs. Payne & Harrison, IV An. 15, that when a person dies leaving property in two or more countries his property in each State is considered as a separate succession for the purpose of administration, the payment of debts and the decision of the claims of parties asserting title thereto was never intended to convey the idea that the fictitious being or entity known as the “succession” was, from a legal standpoint, other than single and indivisible. The court was dealing, not with the succession itself, but with the effect of the laws of Louisiana upon property of that succession which chanced to be within the limits of this State.

The domicil of the deceased person being the place of the opening of the home or mother succession — the succession proper — the court of that domicil is unquestionably authorized to have presented to it an instrument purporting to be the last will and testament of the deceased, and after due proceeding and inquiry had, to determine whether it be such last will under the laws of the place of the domicil. In the matter before us the surrogate, in a proceeding to which the surviving executor and the legal heirs and next of kin of Mrs. Gaines were parties, had propounded before his court for probate the will of the 5th January, 1885, and, after hearing, pronounced it the last will and testament of Mrs. Gaines, probated it and ordered its execution. He did so in the clear exercise of his jurisdiction.

If a decree in Louisiana, could under any circumstances, have controlled the surrogate in his action, the particular decree relied on certainly did not do so, for it recognizes the right (if any such recognition were necessary) to a future probate at the .testator’s domicil, and did not attempt to close the door to subsequent action elsewhere. It expressly reserved that right.

The third objection was that the probate decree in New York could not be legally registered and acted upon here, for the reason that it was not a final decree, an appeal having been taken from the same. The appeal taken was not suspensive, and the evidence establishes that the effect of the decree as such was not interfered with by the appeal.

The fourth ground of opposition assigned, and which was sustained by the District Oourt, was that a will made in Louisiana and rejected by its courts could have no effect in Louisiana, although it may be admitted to probate elsewhere.”

In maintaining this ground of opposition, refusing the application and rejecting the will, we are of the opinion the judge erred.

His error was occasioned by taking into consideration for the purpose of reaching his conclusions, some subjects which were outside of and foreign to the restricted issue submitted to him.

The question before him was not whether the instrument purporting to be Mrs. Gaines’ will should be probated here as a matter of original probate. That had been once attempted in his court and failed, the court however properly recognizing the right of the parties in interest to propound it later for probate at the domicil. The parties in interest acted upon that suggestion. When the case-went a second time before the lower court, matters had advanced very greatly beyond the point where the first judgment left them.. When brought a second time before the Oivil District Court, the case-was presented under entirely different conditions from those which had existed before, the object of the demand being also essentially different. In the case at bar the court was not called on to deal directly with and on the instrument as a matter still in pais for the-purpose of determining whether it was really the last will and testament of the deceased. That ¡question had passed on to and been determined by a court competent and authorized to do so, and it was-merged in the judgment of that court.

What the court was asked to do was to- recognize and give effect, to the judgment itself, and as resulting from that judgment to recognize and give effect to the adjudication made on it that a particular-instrument, identified with and by the judgment, was really the last, will and testament of Mrs. Gaines, made and executed according to-the laws of the State in which she had her domicil at the time of its making and the time of her death.

What the application had in view was, not to obtain a decree giving effect to the various provisions of the will, and passing upon and-fixing the rights of parties under the will, but a decree which would recognize the instrument to be Mrs. Gaines’ will and give effect to it to the extent necessary to make it the basis of claims predicated upon it as such.

We are of the opinion that the court erred in giving to the application an intended scope greater than this, and in deciding at this stage of the proceeding, the will and its provisions to be inoperative in this State.

That issue did not legitimately arise on the application before us- and should be'left at large for the future. If there be any parties in this State, creditors or others, who have the legal right to contest the provisions of the will, those rights would have remained unaffected by simply recognizing as a fact what is unquestionably the-fact, that the instrument in question was the will of the deceased. Whether it will be operative or not in Louisiana is a different matter.

An ancillary administration of the succession of Mrs. Gaines has been opened in this State and an administrator has been appointed. Before property in Ms hands can be taken from him, proceedings contradictorily with him will have to be taken. That proceeding will furnish ample opportunities to all parties who may have interests injuriously and illegally affected by the will to protect them.

It by no means follows that because the instrument in question discloses uncontrovertibly the last wishes and desires of the deceased, and because we so recognize, that therefore those wishes and desires are to prevail if they come in conflict with the will of the people of this State as evidenced by statutes and decrees of the courts, but the existence of such illegal provisions must be shown in proper proceedings contradictorily with proper parties. The rights of persons claiming under the will can not be summarily disposed of by rejecting the present application. We are of the opinion that when the surrogate of Kings county rendered a decree in proceedings contradictorily taken between W. H. Wilder, as executor of the will, and the legal heirs and next of kin of Mrs. Gaines, holding that the instrument dated January 5, 1885, and purporting to be the last will and testament, was truly and legally such, that particular fact must be taken in this State as fixed by the judgment and given effect to in Louisiana as established.

This result of the judgment is not affected by the fact that the application in this case was made by the temporary administrator instead of the executor. The temporary administrator is legally acting in lieu of the executor.

The intervention of E. P. Gaines and others in the proceedings has no influence upon that question.

For the reasons herein assigned it is ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed, and it is now ordered, adjudged and decreed that the instrument dated New Orleans, January 5, 1885, purporting to be the last will and testament of Myra Olark Gaines, and probated as such by the Surrogate’s Court for the county of Kings, in the State of New York, on the 24th day of' June, 1891, be and it is hereby recognized as the last will and testament of Myra Olark Gaines. Costs to be paid by appellees.

Mr. Justice Parlange takes no part.


source: Caselaw Access Project

author: Nicholls, O. J.

license: Public Domain

text:
    No. 11,260.
    State ex rel Ashton Phelps and Page M. Baker vs. Judge of the Civil District Court for the Parish of Orleans.
    1- The Civil District Court for the parish of Orleans is a court of record of original general jurisdiction, and is not an “inferior court,” in the technical sénse of that term. It has the power and authority to punish for contempt of court, and though theproceedings in casos of constructive, differ from those in cases of actual contempt, the power of that court, under proper proceedings, extends to both.
    2. The general rule is that where a publication in a newspaper being read by jurors and attendants on the courts would have a tendency to interfere with the proper and unbiased administration of the laws in pending cases, it may be adjudged a contempt and accordingly punished.
    3. Where an article of that character has been published, the resulting liability or responsibility is not limited to a civil action for damages by the individuals who might he injured thereby. Irreparable injury not to he compensated in money would make such a limited remedy totally inadequate to meet the requirements of the situation and would ignore a consideration of the question as affecting public morals and public interests.

      L Where the Civil District Court has pending before it a matter within its jurisdiction and it is charged that a certain publication is of such a character as to render the publication a contempt of court, the article complained of is, on trial of the charge, presented to it as a piece of evidence in support of the charge, in connection with other testimony, and on the evidence, as a whole, the court acts. The subject matter being within the jurisdiction of the court, some publications being liable to be adjudged an abuse of the liberty of the press and some not, and the conclusions to be reached being dependent upon the evidence submitted, the Supreme Court will not go behind those conclusions and inquire into their correctness on that evidence, under writs of prohibition and certiorari.
    y^PPLICATIOlSr for Certiorari and Prohibition,

      Charles F. Buck for the Relators.
    Respondent in propria persona.
   The opinion of the court was delivered by

Nicholls, O. J.

The petition filed in this case is as follows:

i£ The petition of the State of Louisiana on the relation of Ashton Phelps and Page M. Baker, respectively president and chief editor of the Times-Democra't Publishing Company, which company is engaged in the business of printing, publishing and circulating a daily-newspaper known as the New Orleans Times-Democrat, devoted to-the dissemination of the current news of the day, respectfully shows: That on 20th March, 1893, in a suit now pending in the Honorable the Civil District Court for the parish of Orleans, Division C ’ thereof, presided over by Hon. F. A. Monroe, Judge, No. 35,549 of the docket of said Civil District Court, they and each of them were served with a paper or proceeding calling upon and ordering them to show cause, on March 21, 1893, at 11 o’clock A. m , why they should not comply with certain requests on them made or be punished for contempt,, a copy of which is herein embodied in full in the words following,, to-wit:
“ State of Louisiana.
“ Civil District Court for the Parish of Orleans.
“Thomas Egan, Jr., called in Warranty.
“ On motion of Lazarus, Moore &' Lemle, of counsel for PeterFabacher, plaintiff herein, of E. W. Huntington and Horace L. Dufour, of counsel for Bryant & Mathers, defendants, and of White, Parlange & Saunders, of counsel for Thomas Egan, called in warwanty — and on giving this court to be informed and to understand that there is now pending before this court in this division a cause as-above entitled wherein Peter Fabacher is plaintiff, Bryant & Mathers are defendants, and Thomas Egan is defendant called in warranty of said Bryant & Mathers; that issue was jomed in said cause upon the main demand and upon the call in warranty; that after issue so-joined said cause was in due course of procedure fixed for trial; that upon the prayer of the plaintiff it was to be tried by jury.
“And on further giving the court to be informed and to understand that said case was regularly called for trial on Thursday, March 16, 1893, and a jury duly empaneled and sworn to try the issues in said' case — that the trial of said case was continued until Friday, March 17, and testimony administered for and on behalf of plaintiff in support of his demand, and that there were two witnesses sworn on said trial, to-wit: Peter Fabacher, the plaintiff, and John Mahone, a witness for and on behalf of the plaintiff; that prior to the adjournment on March 17, the jury being allowed their liberty and freedom, they were instructed by the court to hold no converse with reference to 'the case or the issues therein, and were especially instructed and directed not to allow any one to discuss the case which they the jury held ; s jurors under consideration for a verdict.
“And on further giving the court to be informed and to understand that the case was only partially tried, that all the witnesses for the plaintiff had not been heard, that none had been called for the defendants, Bryant & Mathers, and none for Thomas Egan, called in warranty, and that the case was continued for further consideration ■by the court and the jury until Tuesday March 2 L, 1893, at 11 o’clock .A. m., when the jury were by said court directed to be present in court to hear the further testimony in the case and to pass upon the issues therein.
“And on giving the court to be further informed and to understand that a newspaper known as the Times-Democrat, and published by the Times-Democrab Publishing Company, of which Ashton Phelps is president and Page M. Baker is the manager, did on Sunday, March 19, 1893, publish or cause to be published and circulated ■throughout the city of New Orleans the daily issue of said paper, in which was contained a commentary or criticism upon the case now ■pending before this court and the jury, and to give their opinion for the public’s perusal, of the relative positions of the parties to this controversy, and their comments upon the testimony of the witnesses who had testified in said case, and that the effect of the said publication was to operate to the injury of all the parties to said case, and was a discussion of the case out of the hearing of the court, and had the effect of influencing the judgment of the jurors, who have been •sworn to try the issues upon the evidence as adduced in court and upon the law as given to them by the court.
“And on further giving the coart to be informed and to understand that the statements contained in said article are in many respects not true and not justified by any evidence received in the case.
“ And on further giving the court to be informed and to understand that if in the said comments upon the case depending before the court and the jury the said newspaper was acting upon its own motion, it was guilty of a breach of the license and privilege of the press; and if acting from other motives they should disclose to the court at whose suggestion or instance the said publication was made in order that justice may be done, and that there should be no miscarriage of justice in consequence of said publication; that by their acts and doings in the premises they have been guilty of a flagrant-breach of the decorum of this court and are in contempt thereof.
“It is ordered that the Times Publishing Company, through its, manager, Page M. Baker, and its president, Ashton Phelps, do show cause on Tuesday, March 21, 1893, at 11 o’clock A. M., in open court, why the said manager and president should not disclose to the court the party at whose instance the said publication was-made, and from whom the information was received, and whether the said publication was paid for, and if so, by whom; or in default thereof, why they should not stand committed for contempt of the authority of this court under the statutes and laws of the State of Louisiana in such cases made and provided.”

Relators now further aver that in obedience to said order of court they did then and there appear in open court as ordered, and to said proceedings filed the following answers and 'return, to-wit, (also-herein embodied in full) :

“ State op Louisiana.
“ Civil District Court for the Parish of Orleans.
“And now into this honorable court, through the undersigned attorney, come Ashton Phelps, president of the Times-Demoeral Publishing Company, and Page M. Baker, chief editor and manager thereof, and for return to the rule herein taken- upon them to show-cause why they and each of them should not make certain disclo - sures in reference to the publication of an article in the Times - Democrat, and be punished as in contempt therefor, show—
“ 1. This honorable court is'without jurisdiction and power in the-premises to inquire into the matters set forth in said rule by this proceeding and in this collateral manner and ■ especially that the-facts and allegations in said rule set forth and the suggestions submitted to this court thereon do not import upon their face a charge for contempt of court or present a state of facts on which the power of this court to punish for contempt of its authority or dignity might arise, and any attempt on the part of this honorable court to inflict punishment would involve an unwarranted assumption and usurpation of judicial power not conferred by the Constitution and laws of this State.
‘ ‘ 2. Reserving the foregoing exception to the jurisdiction and power ■ of the court in the premises, these appearers plead and aver that the ■article referred to made part of this answer as Exhibit ‘A’ was published in the usual course of the business of printing the daily newspaper known as ‘The New Orleans Times-Democrat,’ as an item of news and an account of judicial proceedings then and there had in open court, the right to do which is privileged and guaranteed to respondent under express provisions of the Constitution of this State, subject only to liability or responsibility in damages to any and all persons who might suffer pecuniary or other loss in consequence of said or any publication, and the attempt herein to invoke the power of the court to punish for contempt the publishers of said article is in direct violation of the freedom of the press guaranteed by the laws and Constitutions of the State and of the United States, ■and especially of Art. 4 of the Constitution of the State, which provides that no law shall be passed ‘to abridge the freedom of the press.’
“ 3. That for these reasons this proceeding is absolutely null and void and unconstitutional as beyond the power and jurisdiction of the court in the manner and form and for the purpose attempted and should be dismissed.
“And appearers pray accordingly to be discharged and all proceedings stayed and for general relief.”

Relators now further show that notwithstanding said plea of juris•dietion to the court and said special plea that the matter set forth in said rule could not be held to be a contempt of the orders or persons •or dignity of the court, and were not punishable as such; that any attempt to hold the publication of said article a contempt of court involved an unwarranted usurpation of power in violation of the laws and Constitution of the State as aforesaid, his Honor E. A. Monroe, presiding over said Division ‘ C, ’ Civil District Court, did entertain -said proceedings and proceeded to trial thereof, and has rendered judgment thereon, a certified copy of which, marked Exhibit ‘ B,’ is filed as part hereof, decreeing that said publication constitutes a ■contempt of his court, but holding under advisement what penalty he shall inflict therefor. Relators show for the reasons hereinabove set forth, and in said answer pleaded specially adopted as part of .relator’s petition, said entire proceeding is null, void and unconstitutional and all further action therein should be stayed, and said judge restrained and prohibited from further proceeding therein, and prohibited from inflicting the threatened penalty. Relators annex and mak^,part of this petition a certified copy of the rule, answer and judgment rendered therein embodied in Exhibit A and filed herewith.

“Relators show that they are without remedy except by means of the writs of certiorari and prohibition in the premises, to be issued by this honorable court in the just and constitutional exercise of its supervisory power over the judges of said Oivil District Oourt.

“ Wherefore, the subjoined affidavits considered, relators pray that writs of certiorari and prohibition issue herein, directed to the Hon.F. A. Monroe, judge presiding over Division ‘O’ of the Oivil District Court, parish of Orleans, commanding a record or transcript of all proceedings had, papers filed and action thereon, to be produced in this honorable court, in the matter of the proceedings for contempt, as in the foregoing petition set forth, against relators — that a writ of prohibition issue, and after due proceedings said writ be made peremptory and perpetual, and all proceedings under said rule for contempt had against these relators, as in the petition set forth, be declared absolutely'null and void and set aside, and all further proceedings thereunder perpetually stayed and prohibited; and relators pray that pending this proceeding a restraining order issue, staying and prohibiting all further orders and proceedings in the premises until the final determination of the cause.”

Accompanying the petition, as was stated therein, were copies of the article published in the Times-Democrat which gave rise to the proceedings (Exhibit “A”) and of the judge’s action taken at the hearing (Exhibit “B”). We insert the latter as part of the petition, but omit the former, as its consideration has become unnecessary under the conclusions reached by this court.

“Exhibit B.
Civil District Court for the Parish of Orleans.
■“Tuesday, the 21st day of March, 1893. Present, the Hon. Francis
A. Monroe, Judge.
“ In the matter of the rule herein taken upon the Times-Democrat Publishing Company, through its manager, Page M. Baker, and its president, Ashton Phelps, to show cause why said manager and president should not disclose to the court the party at whose instance a certain article which appeared in said Times-Democrat newspaper on Sunday, March 19, 1893, concerning the case in which said rule is taken and which is now on trial before a jury in this court, was published and from whom the information contained in said article was obtained, and whether said article was paid for, and if so by whom, or in default thereof why they, the defendants in rule, should not stand committed for contempt of this court; said defendants having appeared in person and through their counsel, and having made the disclosures asked for in said rule.
“ And the court having heard evidence and argument and being satisfied therefrom that said publication was the voluntary act of said Times-Democrat Publishing Company, for which said company and its officers are alone responsible, and the question being then submitted to the court by the counsel for the plaintiff and for the defendants respectively whether said company was guilty of contempt of court in publishing said article, and the court finding the law and the evidence to sustain the affirmative of this proposition and for the reasons orally assigned in open court, it is ordered that the Times-Democrat Publishing Company and Page M. Baker, manager of said company, be adjudged guilty of contempt of the authority of this court in authorizing, publishing and circulating in a newspaper published and circulated within the jurisdiction of this court an article the tendency and effect of which is necessarily to influence and forestall public opinion and the verdict of the jury on the case now being tried.
'‘And the court reserves its decision as to the penalty to be imposed for said contempt.”

Alternative writs having issued as prayed for, the judge of Division “ 0 ” filed a return or answer, in which he declared for cause why the writ of prohibition should not issue; ‘ that when the rule for contempt referred to in relators’ petition was called for trial the relators as defendants in said rule being personally present announced, either personally or through their counsel, their readiness to go to trial, as respondent supposed, upon the merits, and without objection that was heard by respondent to the form of proceeding; that the return to said rule was made orally, and the written return which now forms part of the record was filed by permission at a later date, and it was only after said rule had been disposed of, and upon inspecting said written return or a copy thereof, that respondent learned that said defendants objected to the form of the proceeding. Should it be the case that said objection was made at the trial, and upon-this point he wa® entirely willing to abide by the recollection of counsel for relators, then he averred now, as he would have ruled then, that the proceeding by rule was competent and proper, and upon this point he invoked the opinion of the court.” Further answering he averred “that the Civil District Court, of which he was the judge, was a court of record and of general jurisdiction, civil and probate; that said court was established by and derived its powers directly from the Constitution of the State, and that it became possessed, at the moment it was called into existence and without express grant, of such powers, with respect to questions of contempt, as might be necessary for the proper and effective exercise of the jurisdiction directly conferred upon it; that the Constitution conferred upon the Legislature by express grant, authority to limit the power of the courts to punish for contempt, but did not confer authority upon that branch of the government to divest the courts of such power, or even limit it to the extent of impairing the efficiency of the courts, nor had any such attempt been made. That no complaint was made that it was the intention of respondent to impose any penalty upon relators not authorized by statute, nor had he any intention to do so; that it was not claimed that the Civil District Court was without jurisdiction in the suit of Peter Fabacher vs. Bryant & Mathers for interfering with the trial of which relators had been adjudged guilty of contempt. That it was a civil action for the recovery of a sum of money exceeding 8100 between citizens of New Orleans, of which said court was fully seized of jurisdiction ratione materim and mtione personae, and said suit was in course of trial before a jury in said court; that the finding of said court, as contained in the judgment, sets forth that the defendants in rule were guilty of contempt in authorizing, publishing and circulating in a newspaper published and circulated within the jurisdiction of the court an article the tendency and effect of which was necessarily to influence and forestall public opinion, and the verdict of the jury in the case then being tried, viz.: the case of Fabacher vs. Bryant, and it was submitted on the authority of 35 An. 1194 and 1195, and 40 An. 434, that the Supreme Court should inquire no further. But should the court decide to pursue the inquiry, as suggested in relator’s petition, then it was submitted: (1) That the Civil District Court as a court of record and of general jurisdiction had the inherent power to punish all contempts, and that so far from attempting to limit such power to particular cases the Legislature had distinctly affirmed it with respect to all, and had limited only the penalty to be imposed. Code of Practice, Arts. 130 and 131.

(2) “That a publication in a newspaper, published and circulated within the jurisdiction of the court, calculated to prejudice mankind ’ and to influence the verdict of a jury in a cause pending before such court and jury was a contempt.”

Respondent next proceeded in his answer to argue in favor of the correctness of these two propositions.

It will be noticed that whilst relators were called into court to show cause why they should not disclose to the court the party at whose instance was made a certain publication, which had appeared in the Times-Democrat newspaper, and from whom the information therein contained was obtained, and whether the said publication was paid for, and if so by whom, or in default thereof to stand committed for contempt of the authority of the court, relators were declared by the court (in what is termed the judgment of the court) guilty of contempt “in authorizing, publishing and circulating in a newspaper published and circulated within the jurisdiction of the court an article the tendency and effect of which was necessarily to influence and forestall public opinion and the verdict of the jury in the case then being tried.”

It will be further noticed that the court declares that relators “had appeared in person and through their counsel had made the disclosures called for,” the logical result of which compliance on their part should have been their immediate discharge.

Instead of adhering to the issue apparently raised in their exception, that they could not be ruled into court for the purpose of creating and being punished for contempt for an act which they had not yet but which they might .possibly subsequently commit, in other words contending that the act charged must have preceded and not be one which would follow the issuing of the rule, relators appear to have acquiesced both in the right of the court to require the particular disclosures demanded and in its right to proceed in the manner which it did. Not only this — they have ignored the fact that the court has pronounced them guilty of contempt for an act separate, distinct and entirely different from that which was made the subject of possible complaint in the rule and they do not claim that on compliance with the requirements of the rule it should have been discharged.

The district judge in his judgment says that on trial of the rule the counsel for the plaintiffs and defendants respectively submitted to the court whether the Times-Democrat Publishing Company was or was not guilty of contempt in publishing the article, and finding that the law and the evidence sustained the affirmative of that proposition he adjudged the Times-Democrat Publishing Company, and Page M. Baker, manager of that company, guilty of contempt of the ■authority of his court in so doing.

Relators in their brief say “ they are the responsible agents for the Times-Democrat newspaper, and about to be punished for a contempt for publishing, pending trial, the article annexed to relators’ petition, which the respondent judge held to .be an act ‘interfering with the trial of the cause,’ and a publication tending to prejudice mankind in regard to judicial investigations pending before him, and •especially as tending to influence the verdict of a jury in a cause pending, and therefore a contempt of court, and punishable as such; that it was not contended or found that the article contained anything that is offensive per se or a libel, an insult, or any reflection ■on the court, its officers, the jury, or any person or instrumentality whatever called into action in the progress of the trial or the impartial administration of justice; that no objection was made or urged to the form of proceedings; that any wording or phraseology in the ‘ written return’ to ‘ the rule for contempt’ must be and were intended to be construed with reference to the substantial defence of want of jurisdiction and power in the premises to punish as for contempt the act as charged on the face of the papers. It is a plea to the jurisdiction and an exception of no cause of action. It is not intended to raise a question as to the manner in which the defendants were brought into court.”

They then proceed to argue what they claim to be the issues before this court, saying that ‘ ‘ the first and controlling issue in the case is the immunity claimed under the constitutional guarantee of the ‘ freedom of the press,’ and that the next suggests the inquiry of the limit of exclusive power of the trial court, or, in other words, what issues of law or fact will this court review or control under the supervisory power which it exercises by virtue of Article 90 of the Constitution in a contestation of this kind.”

It would appear that all parties in the lower court consented to look to the recitals which preceded the “ ordering ” part of the rule and not to the “ ordering” part itself as fixing the issues of the case, and that it was tried from that standpoint.

We greatly disapprove of this departure from the actual pleadings, in a matter in regard to which we are called upon to exercise our supervisory powers.

The actual contention of the respective parties become uncertain, and such consent proceedings almost always result in a looseness of practice difficult to be dealt with properly.

We understand the relators to have contended in the lower court, as they do here—

1. That under the Constitutional guarantees of the freedom of the press, the publishers of newspapers generally are secured from liability for contempt of court for articles published in them in the usual course of the business of printing the daily newspaper as an item of news giving an account of judicial proceedings had in open court, the right to do so being privileged and secured under express constitutional provisions in this State, subject only to liability or responsibility in damages to any and all persons who might suffer pecuniary or other loss in consequence of any publication.

2. That the Civil District Court, though created by the Constitution, is an “inferior court,” and as such has not at common law power to punish for a constructive contempt; that its power is limited to the cases embraced in Articles 130 and 131 of the Code of Practice, the first of which declares that “ all judges possess the power necessary for exercise of their respective jurisdictions though the same be not expressly given by law,” and the second that “ the judges of the Supreme, District, and Parish Courts have the power to punish all contempts of their authority by fine not exceeding fifty dollars and imprisonment for a period not exceeding ten days for each offence of that kind,” and that the power there conferred is limited to do that which is “necessary” for the exercise of the court’s jurisdiction.

3. That if a newspaper be liable for contempt for a publication, the matter published must be so direct in its intent and effect as to come within the class of contempts consisting of disobedience to or interference with orders or otherwise directly obstructing the court in the exercise of its functions; that if the publication embodies general comment only, without manifest intent to hinder or interfere, and especially without intent to interfere, with the trial in a particular manner, it does not constitute a contempt even at common law, and if it might be so held, it is in this State and country invested with immunity by constitutional provisions in regard to the freedom of the press; that the particular article in question was not of such a character as has just been described as furnishing a ground for and was not a contempt.

4. That the article in question not being of such a character, the District Court was without power or authority to declare or deal with it as such, and under our supervisory powers we are authorized through writs of prohibition and certiorari to review and undo the •action of the lower court in that respect as an absolute nullity.

We shall deal with the propositions submitted a little out of their order, taking the second one first, as it strikes at the power and authority and jurisdiction of the lower court.

The Civil District Court is a court of record of original general jurisdiction, and if a direct legislative grant from the Legislature were necessary in this State to confer upon it such powers as have been usually held to be inherent in all such courts it will be found in Art. 130 of the Code of Practice. That article pointedly recognizes and declares the existence in courts of all the powers necessary for the exercise of their respective jurisdictions, inherently and independently of express law, and by necessary implication it gives legislative sanction to the exercise of such powers, and the particular power of the District Courts to punish for contempt was (as if to place that matter beyond the possibility of dispute) specially mentioned in Art. 131. That article is general in its terms save as to the punishment to be inflicted, and is no limitation upon the article which precedes it except in that respect. Art. 130 recognizes the existence of all the powers necessary to the jurisdiction without attempting to define what such powers are or should be. The word “ jurisdiction” in the article is used in a broad not a restricted sense, and means everything necessary for the maintenance of rightful power and authority.

The statutes of the State are enacted not simply for the defining of rights and obligations, but for their protection and enforcement, and the very object of the organization of courts is through their instrumentality to make certain that justice should be administered by due process of law without denial or unnecessary delay, and with strict impartiality. The purpose of their creation would be crippled and defeated if they were to be unable of themselves, in cases pending within their jurisdiction, to guard the pure and unbiased administration of justice. It is no less the duty of the courts to see that the law be faithfully applied in cases before them than it is the duty of the executive to see that the laws should be generally executed. Brown in his work on Jurisdiction (Sec. 115a) says that “ the power-to punish for contempts is inherent in all courts, that its existence is essential to the preservation of order in judicial proceedings.” If this inherent power exists for the preservation of mere order, for-how much greater reason should it exist to pi’otect the fountains of justice from being poisoned and the courts themselves from being brought into contempt and disrepute.

The Supreme Court of Mississippi remarks on the power to fine- and imprison for contempt that “ from the earliest history of jurisprudence it has been regarded as a necesssary incident and attribute of a court, without which it could no more exist than without a judge. It is a power inherent in all courts of record and coexisting with them by the wise provisions of the common law. A court without the power effectually to protect itself against the assaults of the lawless, or to enforce its orders, judgments or decrees, would be a disgrace to the legislation and a stigma upon the age which invented it. In' this country all courts derive their authority from the people and hold it in trust for their security and benefit.” Wells on Jurisdiction, page 179; Watson vs. Williams, 36 Miss. 341.

In the correctness of these views we fully concur.

We are of the opinion that the Civil District Court a court of record having original general jurisdiction, is not an “ inferior court” in the technical sense of that term; that it has the power and authority to punish for contempts of court; that though the proceedings in matters of constructive differ from those of actual con-tempts, the power of the District Court under proper proceedings extends to both.

The claim of the relators that, under the constitutional guarantees of the freedom of the press, “ publishers of newspapers are secured from liability for punishment as for contempt of court for articles published in the usual course of the business of printing the daily newspaper as an item of ‘news giving an account of judicial proceedings had in open court, the right to do so being privileged and secured under express constitutional provisions in this State, subject only to liability or responsibility in damages to any and all persons who might suffer pecuniary or other loss in consequence of any publication,” is not true as a general proposition.

The general rule as stated by Wells (Wells on Jurisdiction, page 191) is that “ where a publication being read by jurors and attendants on the courts would have a tendency to interfere with the proper and unbiased administration of the law in pending cases it may be adjudged a contempt, and accordingly punished.”

Where an article of that character has been published it is a great mistake to suppose that the resulting liability or responsibility is limited to a civil action for damages by the individuals who might be prejudiced thereby. Irreparable injury not to be compensated by money would make such a limited remedy totally inadequate to meet the requirements of the situation. Such a contention ignores totally the consideration of the question as affecting the public morals and public interests.

Relators, themselves, in their brief, admit the incorrectness of the broad proposition advanced, forthey say: “that a contempt may be committed by publication, notwithstanding the guaranteed freedom’ of the press is conceded, but there must be somewhere a limit to the power of the courts in that regard, and as the limit must be found by determining the scope and significance of the constitutional provision, it can not be an arbitrary one, resting solely on the discretion of the particular judge in each case. There is a rule of limitation to be deduced; it is the function, the duty, the high privilege of the court of last resort to find and establish it.”

This statement is an abandonment of the claim that all publications of judicial proceedings in newspapers are privileged, viewed from the standpoint of “contempt proceedings,” and the substitution in lieu thereof of the contention that some publications are so privileged. If some be not so protected, it necessarily follows that when a particular article is charged as being of the latter kind the court to which such a question is submitted must examine and determine the character of the publication.

Such an examination would often carry with it the investigation of and application of facts to the particular case, and a denial of the correctness of the conclusions reached in the matter by the judge would not extend to a denial of the power to determine; this power would be admitted — the proper exercise of the power would be alone at issue.

The third and fourth contentions of the relators may be considered together. They claim that in this particular case the article published in the Times-Democrat which gave rise to these proceedings was not such an article as could be made the basis for a contempt of court, and that this being the case this court in the exercise of its supervisory powers can review the judgment of the District Court pronouncing otherwise — that it can and should set aside that judgment as being null and void.

That this court under some circumstances has the authority under its supervisory powers to review and annul under writs of prohibition and certiorari the action of a District Court in ordering the imprisonment of the publishers of a newspaper on a charge of contempt of his court is undoubted. The case of the State ex rel. Liversey vs. Judge, 34 An. 741, was of that character, but it was one differing radically from that before us. The question of the freedom and liberty of the press was there presented, but under an entirely different state of facts. The syllabus of the case concisely states the points raised and determined, as follows:

“By our bill of rights the ‘press’ is free from all censorship of what shall be published and entirely exempt from control in advance as to what shall appear in print. Courts in this State are therefore absolutely without authority to control in advance or to restrain by injunction the liberty enjoyed by the ‘ press ’ to publish even what may be of a libellous nature, the party injured having his remedy after the publication.
“ The court having no power to grant such an injunction it was an absolute nullity and the condemnation for contempt falls with the injunction the moment such nullity has been pronounced by this ■court, which has supervision in cases like the one at bar.”

The doctrine there stated was unquestionably correct, but the ■court was very careful to say in the body of its decision, “ We are to construe and give effect to our provision precisely as if it declared, in the language of the Oonstitution of Minnesota, ‘ the liberty of the press shall forever remain inviolate and all persons may freely speak, write and publish their sentiments on all subjects, being responsible for the abuse of such right.’ ”

It was precisely the abuse of the right which was charged in the present case against the defendants.

When that charge was made, the article complained of was presented to the court as a piece of evidence in the ease in connection with testimony adduced, and upon the evidence as a whole the court adjudged relators guilty. As the subject matter before the court was within its jurisdiction, as some publications were liable to be adjudged an abuse of the liberty of the press and some not — as the conclusions to be reached in the ease were dependent upon the evidence to be submitted and the case was so decided, this court is not to go behind the judgment and inquire into its correctness on that evidence.

Relators, in their brief, say of their exceptions: “ It is a plea to the jurisdiction and an exception of 1 no cause’ of action.”

The jurisdictional point was not well taken, and the ruling upon the exception of “no cause of action” is not reviewable.in this proceeding. State ex rel. Reid vs. Fournet, 45 An. State ex rel. Barthet vs. Houston, 40 An. 434. State ex rel. O’Malley vs. Judge, 35 An. 1197. State ex rel. Brown vs. Houston, 35 An. 1194.

For the reasons herein assigned it is hereby ordered, adjudged and decreed that the provisional writs issued herein be set aside and relators’ demand and application be rejected and dismissed at their costs.

Mr. Justice Parlange takes no part.

Rehearing refused.


author: Watkins, J.

text:
    No. 11,104.
    Alexander Garnier vs. Emile Bernard, alias Dumontier.
    In the absence of satisfactory and clear proof of malice and want of probable cause for the prosecution, no recovery can be had for indemnity — both being the essential ingredients of a malicious prosecution.
    Courts of justice will not inflict damages on a party who, in good faith, resorts to the law for tlie protection of his legal rights ratlierthan have recourse to arms.

      APPEAL from the Oivil District Court, Parish of Orleans. Voorhies, J.

      Hy. Ghiapella and Louque <& MeGloin for Plaintiff and Appellant:
    1. Revised Statutes of 1870, Sec. 818; Blass vs. Gregor & Wilson, 15 An. 421; 9 R. 387, 418; 9 An, 219; 1 Hennen, p. 823, No. 7; 824, No. 20.
    2. The use of criminal process to enforce a civil claim is an intolerable abuse, even where the claim exists. But if the claim be unfounded it shows a recklessness of the rights and character of others which amounts to malice. The wanton injury of an individual is in itself a malicious act, and where the criminal proceedings are shown entirely without cause no further malice need be proved. Oannell vs. Michel, 6 An. 577.
    3. In an action for damages for malicious prosecution, where the evidence shows that the defendant acted from motives of private interest, and without probable cause to support the prosecution, his action under the advice of counsel will not exempt him from liability. Glascock vs. Bridges, 15 An. 672; Block vs. Meyers & Bevy, 33 An. 776.
    4. A nolle x>rosequi, entered by the district attorney for the State, is a termination of the original process, sufficient to warrant the bringing of the suit for malicious prosecution. 36 Conn. 56; 47 N. J, B. 418; 45 Ind. 440; 133 Mass. 419.
    5. The committal by an examining magistrate is m.o,vQprima facie evidence of probable cause; it may be rebutted. 29 Gratt (Va.), 192; 75 Cal. 287; 22 W. Va. 234; 60 Tex. 438.
    6. Where all the facts are pleaded and proven this court can not be bound by the action of the committing magistrate, but will'consider the facts and adjudge for itself.
    . Begal advice to serve as defence in suclia case must be from counsel eminent and learned, 22 Fed. Rep. 227.
    It must be made to appear that the facts were all fairly disclosed. 33 An. 778; 57 Iowa, 107.
    The advice must not be palpably erroneous, or such as should not mislead a man of honest intentions. 22 Fed. Rep. 228; 37 An. 880.

      F. P. Poché and W. J. Waguespaek for Defendant and Appellee:
    1. To recover damages in a suit for malicious prosecution there must he clear proof of malice and want of probable cause on the part of the defendant in instituting the prosecution. 44 An. 194; 10 S. R. 865; 41 Au. 301; 41 An. 511; 33 An. 915.
    2. Probable cause is such a state of facts or eireumstanees as would create in the mind of aman of ordinary caution and prudence an honest and reasonable belief in the guilt of the party charged, and however innocent the plaintiff may have been of the crime charged, if the defendant shows that he had reasonable grounds for believing him guilty at the time the affidavit was made, there can he responsibility. 8 An. 12; 10 An. 587; 12 An. 333; 16 An. 3; 13 An. 274 ; 2 Greenl. Ev., Sec. 454.
    3. Advice of counsel sought and followed in good faith is proof of probable cause. 9 R. 421; 8 An. 12; 11 An. 290; 15 An. 422 ; 8 Otto, 127; 2 Greenl. Sec. 459.

      4. The mere commitment of the plaintiff to the Criminal District Court for trial after a preliminary examination by the recorder is conclusive evidence of probable cause, completely exonerating defendant. 15 Mass. 243; 4Munf. 462; 23 Atlantic R. 833; 29 W. N. C. 521; 46 Kan. 550.
    5. Courts can not inflict damages on a party for resorting in good faith to law for the protection of his rights rather than talcing the chances of a recourse to arms or tamely abandoning the field to a usurper. 44 An. 194; 10 S. R. 865; 15 la. 278; 12 An. 53; 11 An. 419; 33 An. 915.
   The opinion of the court was delivered by

Watkins, J.

This is an action in damages for a malicious prosecution — plaintiff’s demand being for |21C0, subdivided and apportioned as follows, viz.:

1. One thousand dollars actual damages suffered during the eleven months while the criminal prosecution was pending against him, by reason of mental anxiety and distress, humiliation, annoyance and mortification.

2. One thousand dollars punitory damages for the abuse of legal process without probable cause and with malice, in order to vex, harass and humiliate the plaintiff.

3. One hundred dollars paid and expended by the plaintiff for the defence of the aforesaid criminal proceeding.

The petition contains the essential averment of malice, want of probable cause, and the termination of the prosecution by a nolle prosequi duly entered; and the defendant’s answer is a general denial, coupled with a specific denial of there having been any element of malice in the aforesaid prosecution, and with the distinct averment that he had probable cause for having sworn out an affidavit against the plaintiff, and in procuring his arrest as he did, and hence plaintiff is not entitled to recover against him.

The case was tried by the judge, who rendered a judgment in favor of the defendant, and the plaintiff has appealed.

The facts necessary to be recited are the following, viz.:

The plaintiff and defendant owned and occupied — the latter through a tenant — adjoining properties situated on St. Bernard avenue, in the city of New Orleans, and in the rear of which a new street, to be styled New Orleans street, was contemplated and had been for many years in contemplation, though not formally opened or regularly established by dedication to public use or otherwise.

The defendant acquired the property he occupied, in 1871, by a title which made no mention of New Orleans street — the square or block in which same was situated having assigned St. Bernard avenue, Claiborne, Prosper and St. Bernard streets as its boundaries.

In anticipation of the opening of the contemplated street some of the adjacent proprietors built their rear fences in such wise as to leave sufficient space for a street, whilst others — and the defendant among the number — had refrained from doing so.

The plaintiff built in 1880, on his lot, a house having its front on what was contemplated to be New Orleans street, and its rear on St. Bernard avenue — that of defendant having been built with its front on St. Bernard avenue and its rear near the contemplated street, that is to say sixteen (16) feet and eleven (11) inches inside of the rear line of his lot, so as to leave enough space for the contemplated street when it should be opened.

But, in the meanwhile, he built his fence on the side of his lot adjoining the plaintiff, so as to enclose the space comprised within the said sixteen (16) feet, and jive (S') inches above mentioned, with a view to protect the rear portion of his lot from any appearance of a dedication to public use — leaving open a passage of about five or six feet in width only, so as to permit the passage of pedestrians, but to exclude cattle and vehicles.

Some years later the defendant, having discovered that people were attempting to pass their vehicles through the space he had left open for pedestrians, partly closed the same, leaving only a space of four feet. Thereupon the plaintiff repaired to the premises, and, without any warrant or process of law, demolished that portion of the fence the defendant had recently built. After taking legal advice in the premises the defendant made an affidavit before an officer of .the law, charging the plaintiff with having committed a trespass under the provisions of R. S., Sec. 818, and procured his arrest.

Acting under the advice of counsel the defendant rebuilt his fence, and again the plaintiff, notwithstanding his being under bond for his appearance to answer the aforesaid charge, broke down the entire fence, old as well as new, and within a few minutes after it had been re-established.

Again the defendant sought legal advice, and again made affidavit under said section of the statutes. Subsequently a preliminary examination was held before a recorder of the city, and upon hearing the evidence pro and con he committed him to the Criminal District Oourt. Subsequently the prosecuting attorney filed an information against the plaintiff, but ascertaining same to be defective he entered a nolle prosequi, for the purpose of recasting the bill. Thereafter the prosecution was renewed by the filing of another information— hence the plaintiff was twice arraigned. This second information was subsequently nolle prosequied likewise, and the plaintiff was not subsequently prosecuted.

Throughout all of these proceedings there is nothing to connect the defendant with them in anyway, or at'any time subsequent to the trial before the recorder. It does not appear that he in way influenced or procured the discontinuance of same.

On this state of facts we are of opinion that the case was correctly disposed of in the court below; for it is settled beyond any contro- • versy that, in order that the plaintiff may recover damages for a malicious prosecution, he should prove that the defendant’s motives were malicious and that the prosecution was instituted without probable cause.

The case of Girot vs. Graham, 41 An. 511, was quite a similar case, though not as strong a one for the plaintiff, same having arisen out of a controversy between the two proprietors of contiguous urban lots in the city of New Orleans on a portion of the dividing line between which no fence had been erected.

After giving the plaintiff notice, the defendant, with the assistance of a surveyor, was proceeding to establish an enclosure on what he had been informed was the dividing line, the plaintiff complaining that it encroached somewhat upon his line. Plaintiff then began to close the space the defendant had left open, but subsequently undertook to have it removed further off, to what he had been advised was the proper boundary. While the plaintiff’s force was thus engaged, the defendant appeared, remonstrated against the removal of the fence, and attempted to demolish it by force. Thereupon the defendant caused the plaintiff’s arrest and made an affidavit against him, and the plaintiff retaliated by making a counter affidavit, and on the trial both parties were discharged.

On this state of facts the opinion of the court says: ‘ ‘ The record fails to show malice and want of probable cause, which are essential ingredients in controversies of this kind, on the part of either party, who, under the circumstances, had authority to believe, in good faith, that he had the right to do what he had done — the plaintiff to remove the fence, the defendant to protest against the displacement and to invoke the law. It is the malice composed of bad feeling and the knowledge of having no just cause of action which create liability. Kearney vs. Holmes, 6 An. 373.

“Public interest and a proper administration of justice require that actions for a malicious prosecution should not be maintained without clear proof of malice and want of probable cause. Maloney vs. Doone, 15 La. 278; McCormick vs. Conway, 12 An. 53.”

The essential and distinguishing difference between this case and that of Girot’s case is, that Gamier did not seek or obtain legal advice relative to his right to remove the fence of Bernard, but, upon his own motion, demolished same. When the latter caused the former’s arrest he was, after due examination, committed, and was subsequently twice regularly indicted.

On the authority of that case, and the opinions that are therein cited, we feel bound to maintain the correctness of the judgment appealed from.

As this court properly observed in an old case: “ It would be of the worst example to punish this defendant for resorting to law for the protection of his rights rather than taking the chances of a resort to arms, or tamely abandoning the field to an usurper.” Lisk vs. Mathias, 11 An. 419. See also to the same effect, Godfrey vs. Soniat, 33 An. 915; Coleman vs. Insurance Co., 36 An. 92; and Deormond vs. St. Amand, 40 An. 374.

Judgment affirmed.