author: Breaux, J.

text:
    No. 10,826.
    G. Gast vs. Board of Assessors et al.
    1. A manufacturer of wire furniture is not exempt from taxation under Article 207 of the Constitution.
    2. Where the court exempts the manufacturer of furniture “and other articles” of wood, the words quoted relate to and qualify the antecedent “furniture.”
    3. A limiting clause is generally to be restrained to the last preceding antecedent, and not to be extended to what follows it, unless clearly so intended.
    4. Statutes conferring exemptions should be strictly construed. This is emphasized by jurisprudence, in cases requiring the construction of exempting clauses. Doubt is fatal. Plausible hesitation warrants an adverse finding. 42 An. 1102.

      This court having heretofore held “that the manufacturer of furniture and other articles of wood, convey an idea of similarity in the subject contemplated,” the onus being with plaintiff.
    Held: That the right of the exemption is not established.
    PPEAL from the Civil District Court, Parish of Orleans. Monroe, J.

      Moise & Cahn and A. L. Tissot for Plaintiff and Appellee.

      Henry Renshaw, Assistant City Attorney, Carleton Hunt, City Attorney, and Wynne Rogers, Attorney for Tax Collector, for Defendants and Appellants.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff, a manufacturer of wire furniture, claims exemption from taxation under Art. 207 of the Constitution.

He is assessed for $6000.

Eleven-twelfths of the property is used in the manufacture of wire furniture and the remainder is used in carrying on business not ■exempt from taxation.

All the facts necessary for exemption are shown; if the manufacturer of furniture of wire is such a manufacturer of furniture as ■exempts him from taxation.

The District Court ordered the cancellation of the assessment in ■excess of $500.

The sole question for our decision is whether, in so far as relates to furniture, the exemption is limited to wooden furniture?

The article under which the exemption is claimed reads:

There shall also be exempt from taxation and license, for a period of twenty years from the adoption of the Constitution of 1879, the capital, machinery and other property employed in the manufacture of textile fabric, leather, shoes, harness, saddlery, hats, flour machinery, agricultural implements, manufacture of ice, fertilizers and chemicals, and furniture and other articles of wood, marble or stone, soap, stationery, ink and paper, boat building and chocolate, provided that not less than five hands are employed in any one factory.”

The furniture of which plaintiff is manufacturer is made of wire, •such as chairs, lounges, baths, beds, etc.

The authorities representing the defendant State, contend that' wire furniture is not within the exemption contemplated.

On the part of the plaintiff it is contended, that at the time of the adoption of the law, it was well known that furniture was made from other material than wood; that it can be and was made of iron, brass, wire; that in interpreting this law the court must be guided by the rule that generic terms cover every species, unless the term in its extent is specially limited.

That if it was the intention of the makers of the law to confine the meaning of the generic term and place a limitation on its scope, they would have used words to do so, and not left to presumption what might with’a phrase have been made certain.

The District Judge, for whose judgment we entertain high regard, in his opinion, states, “that the first impression which one derives upon reading this article is probably, that in so far as the exemption is intended to be extended to furniture, it is indefinite, and limited by the adjective wood ’ which follows, and hence, that only furniture manufactured of that particular article or substance is within the meaning of the language.”

That a more careful consideration of the subject led him to the conclusion that the first impression is an erroneous one, and that the main adjective “wood,” as well as those which follow it, limit or modify, not the word furniture, but the phrase “ and other articles,” which succeed it, and that furniture, no matter of what substance, is exempt, whilst with respect to “ all other articles ” they must be of some one or the other of the substances designated in order to enjoy such exemption.

We will affirm the first impression of the court, for after careful consideration we are led to accept it as. correct.

The question is not free from difficulty; the meaning is doubtful.

The exemption is stated, by the word furniture, but immediately after follow the words “ and other articles of wood.”

If it be a qualifying phrase, it applies to furniture..

“ And other articles of wood” convey the meaning that the exempted property is of that material. The word “articles” connotes furniture as well as other property.

By “ other,” furniture is qualified.

The word “other” must relate to the preceding or last antecedent, unless it is clearly evident, from the nature of things, that it is-not a qualifying term.

It is urged, with some force, that, had the law-making authority intended to limit the exemption, as contended by the defendants,, they would have used the qualifying adjective wooden, and would., have exempted “wooden furniture.”

The word wooden was not used asa qualifying adjective just preceding furniture.

But, immediately succeeding, we have furniture “ and other articles of wood.”.

The-question is propounded by plaintiff’s counsel:

“ Manufacturers of shoes are exempt. The Constitution reads,, ‘leather, shoes, harness and saddlery.’
“ If the manufacturer of_ a cloth shoe was before the court, would' the court hold that only shoes manufactured of leather came within-the meaning of the law?”

The question propounded does not suggest any difficulty, ancf answers itself in the negative.

If, instead, the exempting clause were to read, “shoes and other articles of leather,” the manufacturer of cloth shoes would not be exempt.

' If “ other ” does not qualify furniture, it serves no purpose.

In so far as relates to articles of wood, marble, stone, and other materials, if intended to qualify them, it is used idly; and signifies nothing: '

The second rule of interpretation “is to- give all doubtful words or expression that sense which makes them produce some effect.”' Potter’s Dwarris, p. 186. ■

In the construction of a statute, a limiting clause is to be restrained to the last antecedent, unless the subject matter requires a different construction. David Cushing and Another vs. Paul B. Herrick, 9th Gray, 382.

In the pending case we have not discovered that the subject matter requires a different construction.

“ General words are not to be extended to what follows, unless clearly so intended.” Axon vs. Doland, 2 Daly, 66.

The range of argument suggests the importance of stating that our conclusion relates to furniture of wire.

We do not decide that “ other articles ” limits the exemption to •furniture.

This matter received consideration in the cases of Martin vs. City of New Orleans, 38 An. 397, and is not before the court.

We decide that furniture “and other articles of wood.” must be of wood in so far as relates to the qualifying word, and their immediate antecedent.

The well known and universally prevailing principle of interpretation, that statutes comprising exemptions should be strictly construed, is specially emphasized in the jurisprudence of this State.

“ In such case doubt is fatal.”

“ Plausible hesitation warrants an adverse finding.” 42 An. 1102; 41 An. 998; 42 An. 1121; 34 An. 958.

In the case of Jones et al. vs. Ranies, it was held: “It is worthy ■of note that in the enumeration, each kind of manufacture is treated as a distinct and separate subject, and all are separated from each other by a comma, except the manufacture of furniture and 1 other articles of wood,’ which are not thus separated, and thus convey an idea of similarity in the subjects contemplated or provided for.”

From the case of Carre vs. City, 41 An. 999, we extract:

“ The articles of wood mentioned in the article of the Constitution •are therefore those which like furniture,” etc.

The article of the Constitution.

The words “ furniture and other articles of wood.”

The application of the rules-of construction and the decisions of ■courts have forced on us the conclusion that the plaintiff is not exempt from the payment of taxes.

It is, therefore, ordered and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now decreed that there be judgment in favor of defendants, denying plaintiff’s claim to exemption and maintaining the validity of the assessment in its ■entirety.

That the plaintiff pay the costs of both courts


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 10,932.
    The State of Louisiana vs. Jack Chambers.
    1. Newly discovered evidence, the only effect of which is to impeach the credit of a witness, is no ground for new trial.
    2. Surprise can furnish no ground for new trial, when no complaint was made or relief asked on that ground when it arose in the course of the trial.

      APPEAL from the Twelfth District Court, Parish of Grant. Coco, J.

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

      Hunter & Hunter and W. C. Roberts for Defendant and Appellant.
   The opinion of the court was delivered by

Fenner, J.

The record presents two bills of exception, one taken to the refusal of a motion for new trial, and the other to certain actions of the judge in the course of the argument.

The first bill excepts to the overruling of two of the grounds set forth in the motion. One ground was that the defendant and his. counsel were surprised by the course of the prosecution in entering a nolle pros, as to one Jennie Jones, who had been indicted as an accessory to the crime, and in using her as a witness for the State. The judge a quo, in the statement of his reasons, aptly says: “The accused can not be permitted to take the chances of an acquittal, and then set up surprise after trial. He might have secured a continuance or a delay of the trial, if he had urged his reasons at the time the nolle pros, was entered, and the State’s attorney had expressed his intention to use her as a witness. He was then fully informed of the action of the State, and he should have complained there, if he felt aggrieved.” This is sufficient and conclusive.

The other ground was that of newly discovered evidence. It appears on the face of the motion that the evidence had no purpose or effect other than to impeach the testimony of a witness for the State. The well-established general rule is that such evidence is not ground for new trial, and the facts of this case suggest no reason for making an exception in its favor. State vs. Burt, 41 An. 787; also 38 An. 608, id. 364, id. 361; 36 An. 46, id. 9; 34 An. 446; 32 An. 1227.

The second bill excepts to certain statements and ruling of the judge in the course of the trial.

It is sufficient to say that under the full statement appended by the judge to the bill, the exception is left without a shadow of force or merit.

Judgment affirmed.


text:
    No. 10,849.
    Succession of Jacob Schwenck, Mrs. Wilhelmina C. Rauschkolb, Widow and Natural Tutrix, vs. J. O. Rosenstream, Dative Tutor.
    1. The judgment of the District Court on the provisional account is fully sustained by the evidence.
    2. The evidence entirely rebuts and disproves the charge of undue influence as a . ground for annulling the decedent’s will.
    3. Debts due by the deceased husband as head of the community of acquets and gains by a first marriage, and paid out of the earnings of the community under a second marriage, must, in a settlement between them, be charged to the first and credited to the second community.

      i. The evidence sustains the adjustment made by the judge of the accounts between the two communities.

      5. The allowance made for the revenues of the separate property of the minors, making no deduction for their expenses, is, at least, as much as they are entitled to. The question as to whether their expenses should be deducted is referred to, but appellee asks no amendment.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Henry P. Dart for the Executrix, Appellee.

      James B. Rosser, Jr., for'Defendant and Appellant.
   The opinion of the court was delivered by

Fenner, J.

Jacob Schwenck was married thrice. His first wife died without chidren, and that marriage may be eliminated in this ■case.

He then married Christina Seibel, who died in January, 1880, leaving three children, issue of the marriage, who are represented by P. O. Rosenstream as their dative tutor.

In February, 1882, Schwenck married Wilhelmina O. Rauschkolb, by whom he left two children. He died on January 22, 1889, leaving a nuncupative will, executed on his death bed, by which he constituted his wife his sole executrix, gave her the usufruct of all of his property and the whole disposable portion in full ownership.

This record presents three contests, which, though originally distinct suits, were covered by pne judgment, and are practically consolidated. These are:

(1) An action by the minor children of the decedent’s previous marriage to annul his will; (2), an opposition on their behalf to the provisional account filed by the widow and testamentary executrix of'said will; and (8), a partition suit instituted against the minors of the previous marriage by the said second wife individually, and as executrix and tutrix of the two minor children, issue of her marriage with decedent.

I.

In the suit to annul the will, several grounds were urged, all of which are abandoned in this court except one, viz.: a charge of undue influence exercised over the mind of the testator by Charles L. Rauschkolb, a brother to the wife, who was present in the room and one of the witnesses to the will. This may be disposed of very briefly. Waiving all questions of law, the evidence in the case, of witnesses introduced by the assailant of the will in his own behalf, conclusively negatives and annihilates the charge.

II.

All the grounds of opposition to the account of the executrix are abandoned except to three items of bills put on the account as paid by her, and which opponent claims are not proved. We have examined the testimony, and find them fully proved.

III.

Without undertaking a tedious statement of all the complicated issues involved in the partition suit, we shall confine ourselves to disposing of the particular objections to the judgment below, which are urged by appellant in this court. *

The most important questions arise in the settlement of the accounts between the first and second community. The widow claims that the first coihmunity was, at the date of its dissolution, insolvent, and owed a large amount of debts, which were paid after the origin of the second community, and out of the earnings thereof. ‘This is strongly disputed by the tutor of the minors of the first community. It appears that the decedent’s business, before and after his last marriage, was the keeping of a bar-room and restaurant, which was his only source of income. The tutor shows that business was at least as profitable, and probably more profitable, before than after his second marriage, and he suggests the intrinsic improbability that the business should have left the decedent insolvent and largely in debt at the date of his last marriage, while the-same business, in the years between that and his death, enabled him; to pay off all these debts, and besides, to make considerable outside-investments. .

Impressed with this suggestion, we have made a very critical examination of the evidence in the case, but we can find nothing to-justify us in disturbing the finding of the District Judge, who sustained the contention of the widow.

It is incontestably proved that the decedent did owe large debts at the date of his last marriage, and there is not a word of evidence to show or indicate that he had any funds on hand with which to pay them, or any property than that which remained at his death, and which was partly encumbered by the debts referred to. These debts were undoubtedly paid off during the last marriage, and in absence-of any evidence to the contrary, as well as in proper consideration of positive evidence to that effect, we are bound to hold, as did the District Judge, that the payments were made with community funds.

Neither the widow nor the court was bound to explain what became of the earnings of the prosperous business conducted by Schwenck prior tó his last marriage. It is very certain that they did not prevent him from incurring large debts.

Nor are the accumulations from the business during the last community, employed in paying off prior debts and in some investments, of no great amount, intrinsically improbable or unreasonable.

The business during the existence of this community, extending over a period of seven years, is proved to have been profitable,, averaging a gross income of about $35 per day or nearly $13,000 per annum. It was closely and economically managed, with the active co-operation of the wife, who was an intelligent and hard working woman, and the net profits were large. If the net results were so much more favorable' after, than prior to, the marriage, it will not be the first time that the assistance of an intelligent, industrious and saving wife, especially in that rank of life, has changed the financial condition of the husband from one of embarrassment to one of prosperity.

Appellant further disputes the proof of payment as to several items, viz.:

1. The Bultman debt. This debt was evidenced by a mortgage note for $6000, and had been contracted prior to ‘the last marriage. It had not been paid at the date of the marriage. It was paid off during the marriage. The only question is as to the amount paid during the marriage. The books of Jacob Schwenek, kept in his own handwriting, show the dates and amounts of the various payments, running from- May 31, 1882, to July 6, 1886, when the final payment was made. A. F. Bultman, the son of Mrs. Bultman, who held the note, attended to these collections from a certain period in 1884, and he renders an account of payments made, beginning November 19, 1884, which substantially corresponds with Schwenck’s books. The prior payments had been made to Mrs. Bultman, who kept no memorandum of them, and could throw no light on the dates and amounts of payments. The presumption is overwhelming that Schwenek’s entries are correct, and it is confirmed by all the evidence. We pay no attention to the trifling inconsistencies in Bultman’s evidence, much dwelt on by appellant. They amount to nothing. His own statement shows that he knew nothing about payments prior to 1884, and his reference to them in his testimony obviously arose from a mere confusion as to dates.

2. The Dutrey debt. It is clearly shown that the debt existed and was paid in 1884. It was evidenced by a note for $500, which had been destroyed, and nobody could prove its date. But the holder accepted the face of the note without interest, and Schwenek told his wife at the time that he was glad enough to get that, as the note was prescribed. Of course, if there was any question as to prescription, the date must have been prior to the marriage. We are satisfied, besides, that if the debt had been contracted during the marriage, Mrs. Schwenek would have known it.

3. The debt due to the mother of Schwenek. He undoubtedly owed her the full amount claimed as capital at the date of the last marriage. The debt has been satisfied in principal and interest. Although the mother’s recollection of the actual amount paid is confused, she does not dispute that she accepted the payments in full settlement of the debt, and proclaims her perfect confidence in the integrity of her son. A memorandum book is produced, in Schwenck’s handwriting, showing dates and amounts of expenditures for her account, and payments made, which went to the extinguishment of the debt.

We will not waste further time in discussing evidence as to other items. We consider that all allowed by the judge are satisfactorily proved. We consider that appellant has no cause to complain of the allowance made by the judge for the revenues of the separate property of the minors, without any deduction on account of their expenses. Had appellee claimed an amendment in this matter, grave questions would have been presented. See Handy vs. Parkison, 10 An. 98; Mercier vs. Oanonge, 12 Rob. 385.

The case of the Succession of Applegate, 39 An. 403, refers to the last quoted case, and differences the case then before us in particulars which do not exist in this case.

On the whole, we think justice has been done.

Judgment affirmed.


author: Watkins, J.

text:
    No. 10,824.
    H. & C. Newman vs. James E. Irwin.
    1. In order to maintain and enforce an assignment of a credit, or incorporeal right, in respect to third persons, due proof must be made, not only of tlie transfer, but of notification haying been given to the debtor of such transfer haying been made, antecedent to any third person having acquired rights thereon.
    2. A judgment is the highest evidence of a debt, and the title merges in the judgment. A judgment neither creates, adds to, nor detracts from a debt. It only declares its existence, fixes its amount, and secures to the creditor the means of enforcing it. A judgment on a promissory'note extinguishes its negotiability. It is thereafter only transferable as other credits are.
    8. One who charges the simulation, or other illegality, in the consideration of the transfer of a promissory note, is held bound to make clear proof of his allegations, as in all other cases of contract. Such proof does not go to the validity of the cause, on consideration of tlie note, as between the maker and payee.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

    White, Parlange & Saunders for Plaintiffs and Appellees.

      Fergus Kernan, contra.
   The opinion of the court was delivered by

Watkins, J.

When this case was last before us, the averments of defendant’s answer were carefully stated, the interlocutory decree rendered therein by the District Judge, refusing an injunction, .reversed, and the cause remanded for further proceedings. Newman vs. Erwin, 42 An. 720.

Recurring thereto, it appears that there are but two questions for decision, and they are: (1) the extinguishment vel non of the notes proceeded upon, by compensation prior to plaintiffs’ acquisition of them; and (2) the simulation of plaintiffs’ title to 'the notes themselves.

The defendant, as maker of the notes sued on, does not gainsay .plaintiffs’ title to them, but the intervenor does.

The theory on which the defendant insists that compensation was •accomplished is, that on the 2d of October, 1889, he purchased and acquired an undivided interest, or share, in a certain' judgment, which was rendered by a competent court in the city of St. Louis, State of Missouri, in a suit styled and entitled Bank of Oommerce of St. Louis vs. Katz & Mayer, upon the defendant’s promissory note •of §10,000. Bank vs. Mayer, 42 An. 1033.

That the interest thus purchased was that of the bank against Albert Mayer, one of the members of the defendant firm, who is .alleged to have been the owner of the notes in suit • pending at the time of this transfer and assignment, and was effected thereby.

That the plaintiffs assumed to purchase said notes of Albert Mayer, subsequently to said transfer, torwit: the 9th of October, 1889, whereas, in truth and fact, said notes had no existence at that time, having become extinguished by compensation antecedently, as stated above.

That, in the aforesaid acquisition of said undivided interest in said judgment, the defendant transferred and assigned to the said bank the property mortgaged, as an equivalent therefor; and, by this means, the “defendant expected to extinguish, by compensation, his mortgage notes to Mayer, discharge the mortgage from the property he had transferred to the bank, and thus secure to it an unineum.bered title.” 42 An. 722.

The question presented to us at the threshold of the discussion, and one of serious and vital import to the defendant, is whether or not he really and legally accomplished and perfected his alleged acquisition of an interest in the judgment which the bank held against Mayer. To this question all others are subsidiary. It is needless to . .discuss the divisibility of a judgment without the judgment debtor’s consent, if, in point of law, there has never been a transfer of the judgment at all,; and much the same may be said of other questions in the case.

True it is, that in our former opinion, it is stated that it was alleged in the answer that the defendant acquired by purchase from the bank an interest in the judgment it held against Mayer for a larger suni, “ with due notice to him of the transferbut, in the course of the argument of defendant’s counsel, the admission was made that such a notice was not a fact — there being in the transcript no proof of any such notice having been given to Mayer.

The contention of the defendant is, that he gave to the bank a title to the mortgaged property, in consideration of its transfer of an interest in the judgment it held against Katz & Mayer to him. He does not profess to have paid the price in money, but he claims to have given land in payment of the purchase price.

Under our law a giving in payment is an act by which a debtor gives a thing to his creditor, who is willing to receive it in payment of the sum due. R. C. C. 2655.

This transaction evidently was a giving in payment to the bank, and the bank, in consideration of this giving in payment, assumed to transfer to Erwin an interest in its judgment.

The law further declares that it is perfect only when followed by delivery. R. C. C. 2656.

That in the transfer of credits, the delivery takes place between the transferrer and the transferee, by the giving of the title (R. C. C. 2642), but the transferee of a credit is only possessed, as regards third persons, after notice has been given or accepted by the debtor, that the transfer has taken place. R. O. O. 2643.

These principles of law were examined in Bernard, Administrator, vs. Bank, 43 An. 50, and applied to a credit in bank, for which a check was drawn, but notice of same not having been given to the bank officers, during the lifetime of the drawer, the check holder was held without right to recover. The drawing of the check was deemed to be a giving in payment of a debt due the check holder, the effect of which was confined to them; the credit in bank being unaffected without notice to the bank, and the maker having in the meanwhile died, the contract lapsed, and the credit passed to the succession of the maker.

This credit in bank was deemed to be a chose in action, and controlled by tjie provisions of R. C. C. 2642.

In the instant case, the thing wjiich the defendant claims to have acquired by the transfer of the bank to him, is a judgment — or an interest in a judgment. A judgment is also a credit, a chose in action, an incorporeal right, and like the credit, it can not be negotiated otherwise than by assignment and due notice to the judgment debtor.

A judgment is the highest evidence of a debt, and the title merges in the judgment. So when a judgment is had upon a note, the latter is merged in the former, from which only by its reversal or recision can it be severed. * * * The debtor can not then plead against the claim, thus merged in the judgment, any prescription but that which bars the latter.” 1 Hennen’s Digest, p. 926, No. 6, and authorities.

“A judgment neither creates, adds to, nor detracts from, a debt. It only declares its existence, fixes its amount, and secures to the creditor the means of enforcing its payment.” Id. No. 8, and authorities.

It matters not that suit was brought and judgment rendered upon negotiable promissory notes. As the title to the debt merged in the judgment, its negotiability, as commercial paper, ceased; and not the precepts of the lex mereatoria, but those of the Civil Code, apply to its transfer and assignment.

This being the case, the bank’s assignment to Erwin of an interest in the judgment was unavailing, without notice thereof to Albert Mayer, the judgment debtor, antecedent to his transfer of the notes in controversy to the plaintiffs. The question of the compensability of the notes and judgment need not be discussed, as it could only arise after the perfection of the assignment.

In respect to the intervenor’s complaint of the bona fides of the plaintiffs’ purchase of the notes from Albert Mayer, little need be said. Inasmuch as plaintiffs do not contend that they acquired them before their maturity, they are in their hands, confessedly, subject to all offsets and equities existing between the maker and payee. But no such equities or offsets are urged or proved. The only doubt or distrust the allegation or evidence of the intervenor purports to throw upon the transaction, is in relation to the price plaintiffs paid therefor. That does not appertain to the cause, or consideration of the notes themselves. They are unquestioned and unquestionable.

In respect to the consideration paid by the plaintiffs, the evidence leaves no doubt in our mind as to its reality and genuineness.

Judgment affirmed.


text:
    No. 10,868.
    Mrs. Mary Reynolds, wife, etc., vs. Wm. H. Reynolds et al.
    1. Tlie right of co-owners of property to demand a partition thereof is absolute and where the co-ownership is admitted, appeal does not lie from a simple decree of partition.
    2. When, besides admitting co-ownership, the parties have consented to the method and terms of partition fixed in the decree, they have nothing left subject to appeal.
    A PPEAL from the Civil District Court, Parish of Orleans. Y 4^- Rightor, J.

      Joseph Brewer, G. L. Hall and Farrar, Jonas & Kruttsehnitt for Plaintiffs and Appellees.

      A. L. Tissot and E. J. Méral for Defendants- and Appellants..
   The opinion of the court was delivered by

Fenner, J.

The motion is based on two grounds, viz-. :■

1. That the judgments are interlocutory, and not, in their nature-,, appealable.

2. That they were rendered by consent of appellants.

The record discloses a simple suit for partition, by one owner against her eo-owners, of certain designated property held in common between them. The answers of defendants admit the fact of eo-ownership, and two of them being minors, their tutor prayed that, in case of a decree for partition by licitation or sale, the right be reserved to a family meeting on behalf of his wards, to advise as to terms and conditions of sale.

A decree of partition by licitation was rendered, reserving the-fixing of the terms and conditions until after the convocation of a family meeting in behalf of the minors. After the rendition of this decree, the minors were duly emancipated, and thereupon a rule was taken on defendants to show cause why the terms of sale should not be fixed by the court. On this rule judgment was rendered, which recites that it was made “ upon the consent of all parties given, ore tenus, in open court,” and which orders that the sale “ be made for cash to the highest bidder, and the judgment on this rule do stand as supplementary to the said, judgment and decree- of March 19, 1891.”

From the two judgments the defendants appeal.

What standing have they in this court? Plaintiff’s co-ownership being admitted, her right to demand a partition was absolute. O. O. 1289. It was long since held that appeal did not iie from a simple decree of partition between co-owners. Stokes vs. Stokes, 6 Mart. N. S. 850.

If the case involved a controversy as to the fact of co-ownership, or as to the mode of partition, possibly, under some circumstances, appeal might lie. But where, as in this case, the co-ownership is admitted, and when the method and terms ar.e settled by consent of all, it seems very clear there can be no room for appeal.

The appellants have favored us with no defence of their position, and we see none.

Appeal dismissed.


text:
    No. 10,882.
    State ex rel. Widow Catherine Baker vs. Judge of Second Recorder’s Court.
    1. It not appearing that a pending prosecution of the relatrix for a violation of a city ordinance is the same offense as that with which slic stands charged under a previous affidavit, made under the same ordinance, the Recorder had jurisdiction thereof to try and determine the same, notwithstanding the relatrix has appealed suspensively from a judgment and sentence under said previous charge.
    2. It is unquestionably settled, that, until a plea to the jurisdiction of a court has been made and overruled, an application for a writ of prohibition can not be entertained.
    y^PPLICATION for Prohibition and Certiorari.

      James C. Walker for Relatrix.

      Henry Benshaw, Assistant City Attorney, and Carleton Hunt, City Attorney, for Respondent.
   The opinion of the court was delivered by

Watkins, J.

The purport of relatrix’s complaint is that, on the 9th of August, 1891, she was arrested on- the complaint of one W. G. Sielhorst, with wilfully and maliciously and unlawfully keeping an assignation house at No. 836 Dauphine street, between Esplanade and Kerlerec, in the City of New Orleans, in violation of Section 8 of City Ordinance 4434, C. S., the complaint being that on the date named, before and after, she was thus unlawfully engaged and employed.

Subsequently, to-wit, on the 10th of September, relatrix was put upon her trial, and convicted, and sentenced to pay a fine, or to be imprisoned, in default of making payment thereof.

In answer to this complaint in the Recorder’s court, the relatrix, inter alios, set up as a defense, that her arrest and detention were “ without due process of law,” and said court “ without jurisdiction to inquire into the subject matter of said affidavit,” and coupled therewith a special and general denial.

Prom the sentence and decree therein pronounced, the relatrix appealed and gave bond according to law.

That, notwithstanding her said appeal, she has been again arrested on the self-same charge of violating same ordinance, upon the affidavit of same complainant, and of keeping an assignation house at the self-same municipal number; which affidavit was made and filed in same Recorder’s court, on the 8th of October, 1891, during the pendency of her perfected appeal aforesaid.

Her averment is, that “ the matter and fact set forth in the affidavit first mentioned, and the matter and fact set forth in the second affidavit, and severally mentioned, are one and the same matter and fact, and not divers and different matters and facts.”

It is on this hypothesis that relatrix avers that the Recorder exceeded the bounds of his jurisdiction — he having no authority to take cognizance, and try and determine the subsequent charge and complaint, during the pendency of her suspensive appeal from the final judgment and decree rendered upon said former judgment and decree.

Certiorari was intended to bring up the records of the Recorder’s Court for inspection.

The respondent returns that it is not a fact that the relatrix was arrested and held to bail upon an affidavit charging her with the same offence, and based upon identically the same fact (which) is set forth in the affidavit first referred to. He avers that she was arrested on the second affidavit for an infraction of said ordinance, committed subsequent to the date set forth in the first affidavit. He further avers that the eleventh section of the city ordinance in question provides that each day any person shall continue to violate the provisions of the same it shall constitute a separate offence. He-further avers that in the second affidavit she was charged with such, a new and separate offence, committed on a date different and subsequent to that one first charged against her.

On this ground respondent claims the right to exercise jurisdiction, and prays that the writs be denied. He further pleads'and avers that no plea to the jurisdiction was ever tendered in his court, and that said last named cause has not been tried and disposed of.

Reference to the eleventh section of said ordinance discloses the correctness of the respondent’s averment “that each day any person shall continue to violate the provisions (thereof) shall constitute1 a separate offence;” and in our opinion that provision is conclusively against the complaint of the relatrix.

The first affidavit was made on the 9th of August, and the latter on the 8th of October, 1889, two months intervening. There is no room for doubt of there having been two different and distinct charges preferred against the relatrix; and of the respondent’s jurisdiction in the premises we entertain no doubt; and it was not questioned by plea in his court before this suit was filed. State ex rel. Hug vs. Recorder, 39 An. 507, is precisely in point.

In addition to this it has been repeatedly held by this court that, “until after a plea to the jurisdiction has been made and overruled an application for a writ of prohibition can not be entertained.” State ex. rel. Railroad Company vs. Judge, 37 An. 843; State ex rel. Girardy vs. State, 38 An. 569; State ex rel. Shakspeare vs. Judge, 40 An. 607; State ex rel. LeBlane vs. Judge, 40 An. 908.

It is therefore ordered that the prayer of the relatrix be refused,, and said writs denied, at her cost.


text:
    No. 10,709.
    S. Vidalat vs. City of New Orleans.
    1. It is settled beyond dispute that the distance of six squares, within which no private market can legally be established, must be computed by taking the far side of the streets around the public markets, and walking six Squares the nearest way. This has been the rule since 1880, and during the term of the plaintiff’s contract in 1884-86.

      :2. In case a farmer of the market revenues of the city of New Orleans seeks to recover damages on account of losses he has sustained by reason of competition with private markets illegally established within prohibited limits, it is his.duty to make clear and satisfactory proof of the existence of such interfering establishments in the mode required by law.
    •3. The city authorities must be held to a reasonable and proper discharge of duties devolving upon it by its ordinances and the law; but it can not be mulcted in damages for violation of its contract, upon other than reasonably clear proof of dereliction of duty.
    4. Such a case is one sounding in damages ex contractu, entitling plaintiff to reimbursement of loss actually sustained and the profit of which he has been deprived — that is, such as may reasonably be supposed to have entered into the contemplation of the parties at the time of the contract.
    -5. In the interpretation of the contract power of a municipal corporation, much the same tests must be applied as those which are applicable to private corporations and individuals.
    '6. Such inconveniences as fairly result from the making of needed public imrovements must be submitted to by all citizens of incorporated towns^and cities, without compensation, each individual citizen being supposed to be recompensed by the enhancement of the general welfare and good of the community.
    7 It is only in cases where there has been an unreasonable or unnecessary delay on the part of the city or the contractor, whereby injury has been inflicted on such a lessee, that actionable injury results.
    PPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      T. J. Semmes & Legendre, Leonard, Marks & Bruenn and Frank N, Butler for Plaintiffs and Appellees:
    a. The city of New Orleans, having leased the right to collect the revenues of the public markets to Vidalat &0o., was bound to maitanin the markets in a condition to serve the purpose for which the right to collect such revenues was leased. It could not, therefore, lawfully do any act to diminish such revenues during the existence of the lease. Civil Code, Art. 2692.
    :2. The city of New Orleans having, in terms, expressly contracted to enforce the laws and ordinances relative to public and private markets, for the benefit of the market lessee, was required to close all private markets opened in contravention of such laws and ordinances, and, in default of so doing, became liable to plaintiff for the loss of revenue sustained thereby. La liosa vs. The Mayor et als., 4 La. 24; Griffon vs. Mayor et als., 5 N. S. 279: Guillotte vs. New Orleans, 12 An. 480; City of New Orleans vs. Heirs of Guillotte, 12 An. 819.
    •3. The city of New Orleans having, by the express stipulations of the lease, provided that the entire area covered by the market houses, including the sidewalks bordering the same, and the portions of the streets spanned and covered by the market house roofs and aprons, should be devoted to market purposes, is bound to make good to the lessee the revenues lost by the city’s arbitrary ejectment of all persons who were using such sidewalks and streets spanned >by the market houses, for market purposes.

      4. The city is also liable to the lessee for the revenues of which he was unlawfully deprived, by the city’s destruction of the banquette on the Poydras street side of the Pilie market, in July, 1885; and by the said banquette being left in an impassable condition continuously from that date until the end of the lease, when it is established that it could have been repaired, at any time, in two weeks.

      Carleton Hunt, City Attorney, for Defendant and Appellant:
    The measure of damages is the amount of loss the plaintiff has sustained, and the profit of which he has been deprived, with the qualifications stated in Article 1934, R. O. C.
    To recover damages, plaintiff must make his claim certain — to make it only proba ble is not enough. 17 An. 239.
    The city of New Orleans is not responsible for the misfeasance or negligence, or the omissions of duty, of subordinate officers or agents employed in the public service. 8 Wend. 403-422 ; 9 Wheat. 720-723; Story on Agency, Sec. 319, p. 412
    :Sucli reasonable and necessary disarrangements as are the consequences of improvements to the city can not give rise to suits for damages. 2 Dillon on Municipal Corporations, fourth edition, sections 990,991.
   The opinion of the court was delivered by

Watkins, J.

As assignee, S. Vidalat, the plaintiff, claims of the •city of New Orleans $100,000, on the averment that, by the acts and •omissions of her officers and agents, his assignor, S. Vidalat & Co., suffered, during the term of its lease of the public markets, a diminuition of profits to that extent.

This demand is founded on three different causes of action, of ■similar import, viz.:

1. His claim is that, for an alleged diminution of market revenues, arising from competition with the private markets, which, as lessor, the city had failed to suppress and prevent, as she was, in duty and in law, obligated to do, he is entitled to demand and recover $75,000.

2. That for and on account of eviction from certain spaces adjacent to certain of the market places he had sustained loss of custom •and revenues aggregating $10,000; and—

3. That, on account of the banquette on the south side of Poydras street, in the immediate vicinity of the Bilie market, being torn up .and left in an impassable condition for many months, through the fault and negligence of the defendant, and whereby access to the markets on that side was prevented, he had sustained a loss of ¡$15,000 — and for which last two items he is, likewise, entitled to ■demand and receive the additional sum of $25,000.

Plaintiff’s claim is that, in October, 1884, Vidalat & Oo. purchased at public auction the right or privilege of using and operating the public markets of the city for the period of twenty-six months, for a consideration of $421,000, payable in monthly installments of $16,-200, and under said contract — which was one of lease — the company acquired a right to all the market revenues derivable therefrom,, under then existing laws and city ordinances then in force.

His further averment is, that all such laws and ordinances entered into and formed part of the contract; and that the city, also, bound itself by a special covenant to maintain and enforce such laws and ordinances for its lessee’s protection against unlawful interference with its rights and privileges by private market people, and by all lawful means at its command.

On the trial there was a verdict in plaintiff’s favor for' $7500, without any specification of the particular demand, on account of which this allowance was made; and, after an unsuccessful effort, on the-part of the defendant, to obtain a new trial, judgment was rendered accordingly, and it has appealed. In this court the plaintiff filed an-answer to the appeal, and prayed for the judgment to be so amended as to allow him $85,000.

I.

With reference to the first item of damages claimed, the following appears to be a fair summary of facts, viz.:

That by the official map and other testimony, it is estimated that there were established and in operation during the contract of Vidalat & Co., 200 or 300 private markets. The purport of the testimony'on this subject is that the distance or radius of six squares-is indicated on a map by a series of circles, having radii of 2100 feet, measured on an air line from the respective market-houses— each corner being taken as the centre of a circle, and the line indicating its circumference that of the limit within which private markets were excluded.

Within the limits of these different circles, as indicated on the map, plaintiff’s witnesses undertake to locate various prohibited private market-houses, by taking streets and their municipal numbers as their guide, and estimating their distances, respectively, from the public markets, by what they -suppose to be 2100 feet.

On this theory, lists of such private market-houses have been elaborately prepared and filed in evidence.

There was hut one witness who professed to have taken actual measurements, as appertaining to the lists; but cross-interrogation revealed the fact that the list he referred to was prepared in 1885-6, during the Vidalat lease, and that the measurements were made ■only two months previous to the trial in May, 1890.

The lessee gave due notice to the proper city authorities of the existence of these private markets, and demanded their suppression.’ The city made some efforts to abate them, but with, practically, little success. There were some affidavits made against parties offending the private market ordinances, and some arrests were made, but no convictions secured. There seemed to have been considerable opposition to the enforcement of the law. To this effect is the testimony of the Mayor, of that time, his private secretary, police officers, and the City Attorney.

On this subject, the latter says:

“ I have not my docket here; but the private market cases occupied a good deal of my time. There was a good deal of opposition to them. They went to the Supreme Court several times.
“Q. I want to know whether you tried to close up the private markets?
“ A. I did all I was called upon to do. * * * My associate attorney took them to the recorder’s courts, and he attended to those cases; and, if I mistake not, S. P. Blanc, (who) was the attorney for Vidalat & Oo., was associated with me in those cases, etc.
fk * # * * % ?{s
f “ The private market men were particularly litigous, and one decision did not seem to have the effect of a final judgment.”

On the score of losses sustained on account of these private markets, the proof is desultory and suppositious. It shows, substantially, that for the period between 1859 and 1868, the market revenues were farmed out for §400,000 per annum, and since the termination of Vidalat’s lease, in 1886, they have been adjudicated for about §375,000 per annum.

There have been constantly in force since 1868, statutes and city ordinances permitting private markets, and their regulation has been constantly attended with similar difficulties to those which appear to have beset the Vidalat company.

The proof tends to show that during its lease there were many stalls vacant, and that the profits were greatly less than seemed to-have been contemplated.

In the lease there is a stipulation to the effect that all city ordinances relating to market leases then in force, whereby it was provided that private markets might be established in any portion of the city not within a radius of sis squares of any public market, and whereby it was made the duty of the chief of police to prevent any private market being established within the prohibited limits, were-to form parts of the contract, and the city, as lessor, undertook to-maintain and enforce such ordinances by all lawful means.

Taken all in all, this testimony falls short of its purpose, and fails, to make out a case for damages against the city on this score, and, for several reasons.

(a) In the first place, the modus operandi of establishing the-localities in which private markets were situated, was entirely incorrect and unsatisfactory.

This clearly appears from the testimony of the city surveyor, a portion of which we quote, as follows, viz.: ,

“Q. What is the difference between the radius-map (in evidence), and the distance or measurement used by the Supreme Court?
“ A. This, by the Supreme Court, is in a walking distanc.e of sis: blocks.
“Q. Then the map is not a correct guide as to the prohibited markets?
A. No, sir.
“ Q. This list of private markets, that you made at the request of Yidalat & Co., * * which are supposed to be within the prohibited distance, were made with reference to the radius?
“A. Yes, sir.
“ Q. But that is not the list used by the Supreme Court,, is it?
“A. No, sir.
“ Q. * * This list that is introduced here, prepared by order of Yidalat &Co., was prepared according to this 2100 feet map?
“ A. Yes, sir.
“ Q,. And this 2100 feet map is not a map by which the-distance is to be ascertained?
“A. No, sir,” etc.

Reference to decisions of this court in private market cases show , this testimony to be entirely correct. State vs. Schmidt,. 41 An. 27;: State vs. Barthe, 41 An. 46.

In the former case it was established, by the testimony of the City Attorney of 1880, that the map in question was made under his. instructions, and as a part of Ordinance No. 4798, of which he was. author; and that the distance of six squares was, in contemplation thereof, to be computed “ by taking the far side of the streets around, the market and walking six squares the nearest way.”

This has been the rule to which this court has adhered ever since. Thai rule was inaugurated under the city administration preceding-that under which 'Vidalat & Co. farmed the markets, and it was not. changed subsequently. The duty was plainly imposed on the plaintiff, at the trial in May, 1890, to have produced such evidence as-would have rendered hts right clear to recover so large a sum as that demanded against the city on this account. This duty he did not. discharge. In so far as the testimony of the single witness,, who testified that he had made actual measurements of the distances,, is concerned, but little importance can be given to it, because it is manifestly unreliable, it not being pretended that the identical private-markets in existence in 1885-6, when the lists were made,, had been continued, in the same localities, to January, 1890, when the measurements were taken. And it is evident that actual measurements, made in 1890, on the hypothesis that the list made in 1885 was still correct, are unreliable, and such data is of very doubtful character. It is quite unreasonable to suppose that any witness could, with any sort of accuracy, have remembered the identity and localities of 2.00 or 300 private market-houses for such a length of time.

(6) In the second place, there is nothing to show that the city authorities were wilfully and flagrantly neglectful of the lessee’s contract rights in this particular, or indisposed to perform their duties.

Some efforts were exerted in this direction,, but difficulties were-presented which seemed hard to overcome.

The contention of plaintiff’s counsel is, that the city, having leased the public markets to the plaintiff’s assignor,, was bound to maintain them in a condition to subserve the purposes of the lessee, and could not lawfully do any act to diminish the revenues thereof during its-existence, and the city, having expressly contracted to enforce the-laws and ordinances relative to private markets for the benefit of. .the plaintiff as market lessee, was required to close all private markets opened in contravention thereof, and in default of so doing ,it became liable in damages.

As applicable to this theory, the case of LaRosa vs. The Mayor, 4 .La. 24, is cited and relied upon. In that case the city adjudicated to the plaintiff the exclusive right of vending oysters at designated stands, and prohibited the sale of oysters at all other places, and the plaintiff was awarded damages against the city in consequence of its failure to enforce the prohibition of its ordinances. But, in the plaintiff’s case, now under consideration, the right acquired to, the revenues of the public markets was necessarily subordinated to the laws and ordinances specially authorizing the establishment of private markets elsewhere, in any part of the city not within prohibited .limits.

The element of uncertainty in this case is the failure of the evidence to show that the private market houses were within prohibited limits, for in the absence of such proof they were presumably authorized.

The claim of plaintiff is one sounding in damages ex contractu, and he is only entitled to be reimbursed the loss he has sustained under his contract, and the profit of which he has been deprived; that is, “ such damages as were contemplated or may reasonably be supposed to have entered into the contemplation of the parties at the time of the contract.” R. C. C. 19S4.

Plaintiff’s evidence leaves our minds in doubt of his contract having been' violated by the city, and if, for the sake of argument, this were conceded to have been made plain, this is not otherwise shown to be a case for the allowance of damages.

In the interpretation of the contract powers and duties of a municipal corporation, much the same tests must be applied as those which are applicable to private corporations and individuals. 2 Dillon’s Munic. Corp., Sec. 935, 3d Ed.; Walling vs. Mayor, 5 An. 660; Arrowsmith vs. Gordon, 3 An. 105; Smith vs. Thulton, 17 An. 240; Gobet vs. Municipality, 11 An. 300; McCord vs. Railway Co., 3 An. 285; Virgus vs. Eorshu, 9 An. 294.

II.

With regard to plaintiff’s eviction from certain spaces adjacent to .certain of the market-houses, and the consequent loss of custom he •sustained thereby, through the unlawful act of the city, in our opinion a case for damages is not made on the law and evidence.

Plaintiff’s lease was made and confirmed, subject to all existing laws and ordinances relating to market leases generally, and among them was ordinance No. 479, O. S., Section 25 of which particularly 'describes the locus in quo to be leased, as follows, viz.:

“ That the entire areas covered by the several market-houses, including the sidewalks bordering the same, and that portion of certain streets spanned and covered by said market-houses, and, also, .certain squares oí neutral ground fronting St'. Mary’s Market, are understood to be devoted to market purposes, except, houfever, a free and unincumbered passage-way on all the said sidewalks bordering the said markets, which passage-way shall be kept free from obstruction.”

And for the evident purpose of reenforcing this descriptive enunciation of said ordinance, the provisions of Section 32 declare “that it shall be unlawful for any person to occupy any portion of the sidewalks or pavements bordering any of the public markets of the city by depositing for sale or other purposes any articles whatsoever calculated to obstruct the free passage thereof by pedestrians, orto erect, or to continue if already erected, in or over the sidewalks or'pavements, any awning, shed, bench or partition, - * * without permission of the ■ commissioner,” etc.

During the course of the trial the judge a quo limited and restricted plaintiff’s evidence to the requirements of the ordinance, and excluded all other. In this he was evidently correct, and the result was that'the evidence failed to show any illegal evictions by the city authorities.

From the evidence, it appears that quite a number of persons who, in 1884 and 1885, occupied portions of open space in front of the French market, and vended their wares and merchandise, such as coffee, soda water and cigars, under awnings stretched overhead, were displaced and removed by the city authorities about the first of the year 1886, and were never permitted to re-occupy same thereafter. But these stands were not kept under the aprons of the market, but on the sidewalks or pavements adjacent to the market house, and formed obstructions to the free use of same, within the terms and plain meaning of said ordinance, and were removable.

Surely plaintiff has no well-founded claim for damages against the city on account of loss of custom, or diminution of' revenues, on this; account.

III.

This claim of §15,000 damages because access to the Pilie market on the Poydras street side was temporarily obstructed, on account of the banquette adjacent to the market house being torn up during some two or three months, while the street was undergoing repair, is wholly without any foundation.

The proof shows that the Barber Asphalt Paving Company had undertaken a contract to lay that portion of Poydras street in the vicinity of1'the Pilie market, with sheet asphalt, and that for that purpose the banquette adjacent was unavoidably torn up, or necessarily obstructed.

While it is true that this condition of' things was suffered to continue much longer than seemed necessary fbr a speedy and energetic accomplishment of the work, yet we can not detect anything in the evidence that would justify us in the belief that either the city or the paving company were grossly negligent of their obligations, or wilfully did the plaintiff an injury. And it is well established by authority, that such inconveniences as may fairly and legitimately result from the making of needed public improvements, must be submitted to by all citizens of incorporated towns and cities, without compensation; each individual citizen being supposed to be recompensed by the enhancement of the general welfare of the community. ' 2 Dillon’s Mun. Oorp., 4th Ed., See. 990.

In contracting for such public street improvement, the defendant evidently acted within the scope of its contracting power. Barber Asphalt Paving Company vs. Gogreve, 41 An. 251, Sec. 7, Art 20 of 1882.

This is clearly a case of damum absque injuria in this respect.

On the whole, we arise from a very careful examination of the record, and a study of authorities applicable, with the conviction that the plaintiff is entitled to no damages, against the city; and that the verdict of the jury and the judgment thereon based should be reversed in toto.

It is, therefore, ordered and decreed that the judgment appealed from be annulled and reversed, and it is now ordered and decreed that there be judgment rejecting plaintiff’s demands at his cost in both courts.


author: McEnery, J.

text:
    No. 10,897.
    The State of Louisiana vs. Willie Taylor.
    A motion made at the same term of court in which the indictment was found* before arraignment, to quash the indictment for irregularities in drawing the jury, is seasonably made. In such a case the defendant could not file a motion on the first day of the term.
    Defects in the drawing of the jury can not be taken advantage of, unless it appears that some fraud had been practiced, or some great wrong committed, in the drawing and summoning of the jury, that would work a great and irreparable injury to the defendant. Section 10, Act 77 of 1877.
    This act refers to and embraces the irregularities committed by the commission When a person not a jury commissioner intrudes upon their deliberations, anil takes part in them, this will vitiate the proceedings, and the venire drawn shouldbe set aside.
    APPEAL from the Twenty-fifth District Court, Parish of Lafayette* Mouton, J.

      W. H. Rogers, Attorney General, for the State, Appellant..
    Jos. A. Chargois, Win. Campbell, Croio Girard, and L. J Tanseyt for Defendant and Appellee.
   The opinion of the court was delivered by

McEnery, J.

The defendant was indicted for murder, and the indictment was returned and filed in court on the 8th October, 1891* On the nest day, October 9, the defendant was called for arraignment. His counsel objected and asked for time in order to file a plea for the defence, if necessary. The motion was overruled. On the 14th of October he filed a motion to quash the indictment for irregularities in the drawing of the jury, which presented the indictment.

For some of the irregularities alleged the indictment was quashed*

The State has appealed.

The Attorney General urges that the motion was filed too late, and ought to have been filed in accordance with Section 11 of Act 44 of 18VV, on the first day of the term.

In the case of State vs. Sterling, 41 An. 680, we held that the State did not require impossibilities. The jury was drawn after the first day of the term, and the indictment presented, at the same term of ■court. It was, therefore, impossible for the accused to file his objection to the irregularity of drawing of the jury on the first day of ■the term. He asked for time to prepare for his defence, when arraigned on the day following the finding of the indictment. The motion was overruled.

The judge assigned as his reasons therefor • that, if after examining the indictment, the defendant desired to file any plea, he would permit him to withdraw his plea to the arraignment.

The motion to quash was filed on the 14th October, of the same term, only six days after the defendant was indicted.

He has brought himself within the exception, which relieved him •'from filing his plea on the first day of the term. He filed the plea ¡seasonably, as the defect did not appear upon the face of the papers ,.or proceedings, and could only have been discovered after the first ■day of term. If indicted at the same term of the court for which the jury is drawn, the defendant can, before arraignment at the ■same term, file his objection to the. irregularity in the drawing of the jury. State vs. Williams, 30 An. 1028; State vs. Vance, 31 An. 398; State vs. Bradley, 32 An. 402; State vs. Thompson, 32 An. 879; State vs. Conway, 35 An. 350; State vs. Strickland, 41 An. 514; State vs. Sterling, 41 An. 679.

In Section 10 of Act 44 of 1877, it is provided that no defect, or irregularity, in the drawing of the jury, or the summoning of it, shall be sufficient cause to set aside the venire, unless it appear that some fraud has been practiced, or some great wrong committed in the drawing of and the summoning of the jury.

There were gross irregularities in drawing the jury. The clerk ■omitted to perform the duties specially assigned to him under the act, and the box was not of that kind, provided .with lock and key, as the law directs.

But these were irregularities only, and it is not shown' that they were done for the purpose of injuring the defendant, cr 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.

The irregularities, however, embraced within the meaning of Section 10 of Act 44 of 1877, refer to those committed by the jury commissioners. Where a person not a commissioner intrudes him.self upon their deliberations and does acts which it is their duty to perform, these acts are not those of the commissioners, but of one who has no authority to perform them, and are absolutely null and void.

The record discloses the fact that one Gustave Lacoste was permitted to participate in the proceedings of the jury commission, and the name of one of the jurors was not written by any member of the commission, but by him.

It is the duty of the clerk or a member of the jury commission to-perform the official acts in the drawing of the jury assigned to him by Act 44 of 1877, and we again reiterate what we said in relation to> his duties, in the ease of State vs. Conway, 35 An. 350.

Judgment affirmed.


text:
    No. 10,907.
    The State of Louisiana vs. Dominique Clavery.
    SYLLABUS.
    Same as in the case oí State vs. Willie Taylor.
    Same District Court and same Counsel as in preceding-case..
   McEnery, J.

The questions submitted in this case- are- identical with those in the case of State of Louisiana vs. Willie-Taylor, just decided.

For the reasons assigned in that case, the judgment in1 this is affirmed.


text:
    No. 10,885.
    Widow Caire et al. vs. Judge of Twenty third District Court.
    When the application for an injunction does not show a. prima facie right to the samej a mandamus will not issue to compel a district judge to issue the writ.
    As long as the judgment homologating the final account of an.administeator exists of record and unrevoked, it operates as a closing of the succession, and is a bar to further mortuary proceedings, which can only be had after the setting aside the same.
    When a succession has been settled and the administrator discharged, and- propertyplaeed in possession of the widow and heirs^acreditor whqappears sub^ sequenty must pursue them each for his share-

      ^REPLICATION for Mandamus.

      Cross & Cross for the Relator.
    Respondent in propria persona.

   The opinion of the court was delivered by

McEnery, J.

This is an application for a mandamus to compel the respondent judge to issue a writ of injunction, which he declined to do, on the face of the papers.

The only question presented in the application is, does the petition for the injunction disclose a prima facie right to the injunction; If so, the relator is entitled to the relief demanded. Crescent City Live Stock Company vs. Larrieux, 30 An. 798; Beebe vs. Guinault, 29 An. 795.

The facts set forth in the petition are, that the Widow Oaire administered, by proper appointment, the succession of her husband, that she filed her final account, “ in good faith and under the advice of counsel, all parties believing that the interests of the heirs were fully protected. But that said account was homologated without the heirs being parties, and the minor children were not represented, she never having qualified as tutrix to her minor children. That she was absolutely solvent at the time; the account showed all the debts paid.; and the property was, therefore, turned over to her as usufructuary, all of the same being community property.”

The petition further shows that Antoine Caire was the holder of certain notes on which the deceased Jacques Oaire, the late husband of Widow Oaire, was the indorser. These notes did not appear in the first account, as they were not due, and no opposition to the final account was made by the holder of the notes. Mrs. Oaire went into commercial business, failed, went into insolvency, and Antoine Caire was recognized as a mortgage creditor of the community which existed between Mrs. Oaire and her husband Jacques Oaire. Judgment was rendered against her, and execution issued, seizing the community property which had been mortgaged to secure the debt. We must presume that the judgment was rendered contradictorily with the widow and heirs, in the proceedings to enforce the mortgage, as the petition is silent on this point.

Erom these facts, the following reasons for the issuing of the injunction are urged:

1. That the judgment does not support a writ of fi. fa., as it merely recognizes a mortgage on succession property.

2. That said Widow Oaire surrendered her usufruct in said property, which has been sold, and the same is in possession of purchasers. That thoúgh relators believe said sale to be null and void, the description of the said property is so vague that bidders will have no notice of the special property offered for sale, and such indefinite description would be injurious to the heirs.

3. That said heirs have accepted the succession of their father Jacques Oaire, under benefit of inventory, and that the liquidation ■of the debts can go on only by an administration of the property of the succession. That the judgment homologating the final account of the administratrix, and turning the property over to her as usufructuary, did not discharge her as administratrix until the debts of the succession were paid, and that the judgment of the honorable •court, recognizing said mortgage, can only be executed under the probate jurisdiction.

The relators, in their petition for the injunction, refer to the judgment in the insolvent proceedings of Mrs. Caire, in which Antoine Caire intervened. The case was appealed to the Circuit Court of Appeals. The return of the respondent judge shows that the judgment rendered was under ordinary proceedings, by said Antoine Caire, against all parties in interest, each for his virile share. A fi. fa., then, was the proper writ to issue under the judgment.

On the second cause alleged for the injunction it is unnecessary to ■comment, as the disposition of the usufruct by the widow' can in no way influence the execution of the judgment, and the alleged wrongful description of the property can not be injurious to the heirs.

On the third point urged, the petition shows that the succession of Jacques Caire had been administered, the administratrix discharged, and .the property was turned over to her as widow in community.

When the suit of Antoine Caire was instituted, there was no succession in existence. It had been settled and passed out of existence. The widow was in possession of the property for herself and minor heirs. As long as the judgment homologating the final account of an administratrix exists of record and unrevoked, it operates as a closing of the succession, and is a bar to further mortuary proceedings, which can only be had after the setting aside of the same. Beauregard, Curator, vs. Lampton, 33 An. 828; Succession of Thibodeaux, 38 An. 716; Augustine vs. Avilla, 29 An. 837.

After the widow and heirs had been placed in possession of the property, each became liable for his share, and the debts of the deceased Jacques Caire became the debt's of the heirs. Succession of Danford and Remi, 25 An. 56.

The only remedy left to the creditor Antoine Caire was to sue the widow and heirs, as the succession had been closed and the property mortgaged to secure his debt was in their possession.

The petition for the injunction does not disclose a prima facie right to the same.

It is therefore ordered that the relief prayed for by relators be denied, and the rule granted herein be discharged at their costs.


text:
    No. 10,833.
    Estate of John H. Maginnis vs. New Orleans Cotton Exchange Mutual Aid Association.
    In a mutual aid association a particular method of notice of assessments falling due having been agreed upon and made a part of the charter, is binding on all members.
    It being also provided that, when a.member neglects or refuses to pay any assessment, he shall be suspended and treated as no longer a member; in case of death, during the period of such suspension, the holder of the benefit certificate can not recover, unless the association is estopped by its own acts, or has waived the effects of the suspension.
    The assessed had failed to pay the assessment within the time specified, and it remained unpaid at the time of his death.
    There can be no recovery under his certificate.

      Voorhies, J. PPEAL from the Civil District Court, Parish of Orleans.

      W. S. Benedict for Plaintiff and Appellee.

      Bayne, Denegre & Bayne for. Defendant and Appellant:
    Article V. of the charter of defendant corporation providing that if a member fail to pay assessments within ten days after notification, as therein provided, he shall be suspended, and that if he die while delinquent, he forfeits all claim upon the association, and John H. Maginnis having died while delinquent, his executor can not recover.

      The charter of a mutual benefit association constitutes the contract between the-members thereof, and its provisions have the force of law between them.
    Sickness, even if proven, is no defence. Madeira vs Merchants’ Exchange Mutual Benefit Society, 16 Federal Reporter, 75; Hawkshaw vs. Supreme Lodge Knights of Honor, 24 Central Law Journal, 129; New York Life Insurance Company vs. Statham et als., 9317. S. 31; Voe vs. Benefit Association, 63 Maryland, 86; McMurray vs. Supreme Lodge, IS Central Law Journal, 373; Benevolent Society vs. Baldwin, 86 Illinois, 479.
   The opinion of the court was delivered by

Breaux, J.

The defendant company, organized as a mntua llife insurance association, is composed of members of the Cotton Exchange-who chose to become nhembers. The holder of a benefit certificate is entitled, at the death of the assured, to receive an amount equal to the total assessment levied on each surviving member. One of the articles of the charter provides that, upon proof of the death of a. member, each surviving member shall, within. ten days, pay the sum of §10, and that any member not paying shall be suspended and treated as not being on the roll of membership, and in case of his death the holder of the benefit certificate shall be without right against the association. Upon payment of dues within thirty days; the suspension to cease. Only the board of directors, after the expiration, have authority to reinstate a member who has defaulted in paying assessments.

The members are notified of an assessment by posting in the rooms, of the Exchange.

One of the members died on the 6th June, 1889. Notice of the assessment was posted as required, and in addition, two postal cards, were mailed to and received by J. H. Maginnis. The assured, J. H. Maginnis, died at Ocean Springs on the 4th of July, 1889.

The executor of his estate, about ten days after his death, offered to pay the assessment. The defendant refused to receive it.

The debtor may be put in default by the terms of the contract. C. C. 1911.

The defendant contends that the member was in default, and that, the terms of the charter operated an immediate suspension.

The default is proven, payment not having been made in compliance with the charter.

When considering whether there was suspension, the thought, occurs that in a voluntary association, in which the initiation, notices, payment of dues, assessments, suspension and reinstatement are governed by its laws, each member is bound to comply with the obligations he assumes.

When a charter contains an article suspending a member for the non-payment of an assessment, it is conclusive and binding.

This regulation of the defendant company is self-operative and takes effect after notice, unless it is estopped or has waived the suspension.

In Gunther vs. Mutual Aid Association, 40 An. 777, this court held that the article respecting suspension is self-enforcing, and that ■ a member is suspended upon the non-payment of assessment, after notice and delay.

The decision was for plaintiff. The court in that case:

“There is not the slightest ground for attributing the failure to pay the assessment to any other cause than the want of notice.”

There was suspension of the member, but the association was estopped by its fault in matter of notice of assessment.

If the defendant company voluntarily caused the late member, Maginnis, to believe that the members were not bound by the notice posted on the wall, to pay within ten days after the posting, or that the first postal card mailed to him was a waiver of the suspension, or that the second card, notifying him that the assessment was due, gave right to postponment of payments, the plaintiff should recover.

If, on the other hand, the first notice is binding on the members of the Ootton Exchange, who are members of the association having free access to its room of meeting, and if the postal cards were issued ex gratia, the defendant company is not estopped from pleading the suspension and claiming its effect.

The deceased was a member at the time the charter was amended, and, as a member of the association, consented that posting should be sufficient notice.

As a member of the Ootton Exchange he had ample opportunity to see the notice.

Its inefficiency is not proven.

The postal cards were not misleading.

The notice posted on the wall notified the member that assessment 82 was due and payable on or before the 17th day of June, 1889.

Precisely the same notice was given by postal card. In the second postal he was only informed that his assessment was due on the 17th of that month.

On the 4th of July he had not complied — at the time of his death.

Some ten days afterward the executor of his estate offered to pay the amount. It was then no longer ■ possible to comply with the regulation of the association. It was an agreement in due form, binding on all the members, that in case of death during suspension the right to recover on a certificate was lost. We are only enforcing a condition the members have made a law unto themselves.

The suspension and notice was complete before death, and nothing in the nature of a waiver to avoid the effect of the suspension is shciwn.

It is therefore ordered, adjudged and decreed that the judgment appealed from be set aside, annulled and reversed, and it is now ordered, adjudged and decreed that the demand of plaintiff be rejected, with costs of both courts.


text:
    No. 10,831.
    Michael Hackett vs. His Creditors.
    An appeal from an interlocutory order accepting the surrender made by an insolvent debtor will not interrupt tlie ten days’ time in which an opposition to the meeting of creditors is allowed.
    PPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Aug. Bernau for Appellee.

      W. S. Benedict for Appellant.
   The opinion of the court was delivered by

McEnery, J.

The appeal was dismissed on the ground that the ■order accepting the surrender was not a definitive judgment; that is, was a mere interlocutory order, the execution of which could not cause an irreparable injury; that it did not belong to that class of .judgments which could be stayed by an appeal.

After the appeal was dismissed, the complaining creditor instituted proceedings to set aside the interlocutory order accepting the surrender of the insolvent.

The appeal from the interlocutory order in the case of Haokett vs. His Creditors, referred to and reported, 43 An. 124, did not have the effect of staying the proceedings. Hence, the ten days’ time prescribed by Section 1802, Revised Statutes, was not interrupted by the appeal.

The complaining creditor, The ■ Ullman Goldsborough Company, having filed its opposition after the ten days prescribed by Section 1802, within which time an opposition to the meeting of creditors is allowed, its opposition must be dismissed.

Judgment affirmed.