author: Poché, J.

text:
    No. 8954.
    The State of Louisiana ex rel. W. S. Behan, Mayor, et al. vs. The Judges of the Civil District Court for the Parish of Orleans.
    “When the Supreme Court is not in session, an application for any of the remedial writs may bo entertained by the Chief Justice or any of the Associate Justices.
    A provisional order for any such writs thus issued by any one of the Justices is valid and binding, as though it had emanated from the Court.
    Such an order is not a,judgment; it is valid without the concurrence of the majority of the Judges, and need not be supported by reasons.
    The power to amove a corporate officer from his office for a reasonable and just cause, is one of the common law incidents of all corporations.
    The general rule is, that courts are without power or jurisdiction to impede by preliminary injunction the usual functions of a municipal corporation.
    A provision in a City Charter vesting the City Council with the power to try all impeachments of City Officers, the judgment only extending to removal and disqualification to hold any corporate office, is not unconstitutional as authorizing the exercise of judicial powers by a legislative or municipal body, but it is rather the exercise of a power necessary for its police and good administration.
    Courts are powerless to interfere by injunction with a municipal council in the exercise of that power. An injunction thus issued is a nullity, and will be vacated by prohibition.
    On Application for Writs of Certiorari, Mandamus and Prohibition.

      Gluts. F. Bucle, City Attorney, Wynne Rogers, Assistant City Attorney, and J. R. Beckwith for the Relators.

      J. Ward Gurley, Jr. and F. R. Farrar contra:

    i.
    Courts have the authority to enjoin all illegal acts. . :

    The power to impeach could not be bestowed upon the City Council. Constitution, Articles 14, 15, 80, 92, 196, 200 and 201; 31 An. 440; Cooley Const. Lim. 107, 211; People vs. Draper, 15N.Y.; 32 Au. 943 and 947 ; Story on Constitution, 796,797,800,802; 11 An.443 ; 6Bush, Ky. R. 1; 3 Metcalf’s R. 237; 28 An. 444; 19 Johnson, N. Y. 58.
    II.
    A suspensive appeal does not lie from an order granting an injunction. It is amatterofri"ht. C. P. 304 ; 29 An. 869, 796, 57 ; 30 An. 213. An improvident order granting a suspensive appeal, where none should have been granted, may bo rescinded. 32 An. 814; 33 An. 724 ■ 22 An. 35.
    III.
    The supervisory control over the Civil Distriot Court, and the power to issue thereto writs of Mandamus and Prohibition, is vested in the Supreme Court and not in a single Justice thereof. Constitution, Articles 89 and 90; C. P. 829, 841; 846 and 849.
   The opinion of the Court was delivered by

Poché, J.

This litigation grows out of the following facts:

On the 11th of September, 1883, the Council of the City of New Orleans preferred charges and specifications for gross neglect of, and refusal to perform, his duty, against B. T. Walshe, the City Treasurer.

The members of the Council then proceeded to organize themselves into a court' of impeachment for the trial of said corporate officer, conformably to the provisions of the City Charter. Secs. 58 et seq.

But their proceedings were interrupted by a writ of injunction issued by Division E of the Civil District Court, restraining the Council from proceeding in the investigation of the charges preferred against the Treasurer, and prohibiting the Mayor of the City and other persons from interfering with said Treasurer in the possession and fn the administration of his office.

The preliminary writ of injunction was granted at the instance of the Treasurer, and was predicated mainly on his allegation and on the District Judge’s opinion, that the provisions of the City Charter which authorize the removal of city officials by impeachment by the City Council were in direct violation of the Constitution.

The parties thus enjoined, who are the relators herein, then applied for, and obtained, an order of suspensive appeal from the mandate of injunction, Uie said order having been granted by another Judge of the Civil District Court, acting in the absence, and in the place, of the Judge of Division E. The latter Judge, on resuming charge of his court, entertained and maintained an application for the rescission of the order for a suspensive appeal, which was alleged and held to have been inadvertently granted. An application of the relators for an order of suspensive appeal from the rescinding order just referred to was then overruled by the Judge of the lower court, whereupon relators applied to this Court for relief from the Judge’s orders, alleged to be unwarranted in law and oppressive.

, Their prayer for a writ of certiorari was declined; and it cannot be entertained, for the plain reason that the case is appealable, this writ being available only in cases where the suit is to be decided in the last resort by the subordinate court. C. P. Art. 857.

Touching the other writs invoked the following orders were made:

1. A provisional writ of prohibition, restraining the respondent Judge from enforcing the injunction which he had issued.

2. An alternative writ of mandamus commanding him to grant the order of suspensive appeal prayed for by relators, with a proviso that this writ was to take effect only in case of the dissolution, after final hearing of the writ of prohibition.

3. That the Judge show cause, on the first Monday of November, 1883, why the writs provisionally granted should not be made peremptory.

First. The point raised by the respondent Judge in his return questions the validity of the order granted, on the ground that it was not issued by the Court, but was issued by only one of the Justices thereof, without consultation with any of the other Justices.”

The position of the respondent Judge, as a guidance for the conduct of their tribunal, in dealing with remedial writs is, that under the provisions of Articles,89 and 90 of the Constitution, the Court alone, or at least a majority Of the Justices concurring, could render a valid order for any of the remedial writs.

Article 89 provides that: “ The Supreme Court and each of the Judges thereof, shall have power to issue writs of habeas corpus, at the instance of all persons in actual custody in cases where it may have appellate jurisdiction.”

Article 90 reads: The Supreme Court shall have control and general supervision over all inferior courts. They shall have power to issue writs of certiorari, prohibition, mandamus, quo warranto, and other remedial writs.”

The two Articles must be construed in connection with the pre-existing provisions of the Code' of Practice touching the nature, definition and scope of the writs in question, and providing the mode of proceeding in the application, the issuing and the trial of the same.

These rules of practice recognize and treat of two distinct steps or phases in the disposition of these writs. The first step is a preliminary or provisional order under which the subordinate court complained of, is apprised of the proceeding instituted with a view to test the validity of its action in the matters set forth by the relator. The second step is the final disposition of the relief sought by the complainant, after considering the return made by the respondent Judge.

The first phase in the proceeding involves the exercise of a power provisional and preliminary in its.character, and, if not otherwise regulated, it is amply provided for by Art. 877 of the Code of Practice, which reads:

“ The Supreme Court, as well as other courts, possesses the powers which are necessary for the exercise of the jurisdiction given to it by law, in all the cases not expressly provided for by the present Code.”

The second or final act is the judgment of the court finally disposing of the controversy after full hearing of the parties, which judgment can be rendered only in open court, and cannot be rendered without the concurrence of three Judges. Const. Art. 85.

The order for a preliminary remedial writ is not a judgment or even an interlocutory decree : it adjudicates nothing, and confers no vested or irrevocable right. It is merely an incipient step towards a judicial investigation of the matters and complaints urged in the application) it can be modified or recalled by the authority whence it emanates.

To confound it with a judgment which adjudicates on, and disposes of an issue, and finally settles a controversy, and for which reasons must be adduced Under a constitutional requirement (Const. Art. 87) is a glaring fallacy repulsive to the legal mind.

, Hence it is, that these Articles of our Code of Practice have been uniformly construed as meaning that the action of the Supreme Court, or the concurrence of the majority of its Justices, is not essential to the validity of a provisional order for a remedial Writ; and that such a mandate has always been viewed in our jurisprudence in the light of an order entertaining the application, and directing that notice thereof be addressed to the party or parties complained of. The construction urged by the District Judge would strike with absolute nullity all such orders rendered otherwise than in open court.

Out of term time, during the vacation of the Court, the Justices have no power to meet as a Court,, or to make and issue orders and decrees as a Court. Hence it would follow, as a logical deduction from his reasoning, that during such time the remedial writs which have been incorporated in the Code of Practice and engrafted in the Constitution, in order to secure a more speedy administration of justice, would be paralyzed and temporarily obliterated, and that the wrongs which they were intended to correct would be without remedy. Such a conclusion is abhorrent to common sense, as well as to justice.

But should it be contended that the language of the Constitution, which must prevail over the provisions of the Code of Practice is peremptory in requiring the action of the Court, or the concurrence of the majority of the Justices for the purpose of issuing a valid preliminary remedial writ, the argument is answered by the plain text of the Articles 89 and 90, which, as conceded by the District Judge, must be construed together.

Article 89 unequivocally confers the power to each of the Judges to issue writs of habeas corpus in specified cases. Now, Article 90, after creating the supervisory jurisdiction of the Supreme Court, continues the delegation of special powers begun in Article 89, and is couched in the following significant language :

“They shall have power to issue writs of certiorari, prohibition, mandamus, quo warranto, etc.” The only grammatical construction which the sentence admits of, shows that the pronoun they refers to the subject: the Supreme Court and each of the Judges thereof,” in the preceding Article which treats of the same subject matter. Hence, it is apparent that the power conferred by the Articles of the Code of Practice is not only maintained in tlie Constitution, but on tbe contrary that, the power has been, ex industria enlarged.

Heretofore, tlie remedial writs could be issued in appoalable cases only. Now, under the newly created supervisory jurisdiction, they are available in cases where the judgment is final in the lower court.

Tlie construction which we give to the provisions of the Code of Practice, which regulate the remedial writs, is not only sustained on reason and principle, but it has its support in judicial authority. The point was made by another zealous litigant more than thirteen years ago, and it was settled in the same sense in the case of the State ex rel. Southern Bank vs. The Judge of the Eighth District Court of New Orleans.

' We quote the following language from that decision : “ When, in the progress of a suit, a necessity arises for the application of these writs, and the Supreme Court is not in session, ex necessitate rei, the Chief Justice or the Senior Justice present should grant the provisional order. Any other interpretation of the law would do violence to the clear intention of the law maker and to justice.” ,

The provisional order in this case was issued by the Senior Associate Justice, when the Court was not in session, and when he was the only Justice present in the State, and our conclusion is that the order emanates from a competent authority, then vested with the whole power of the Court pro Jiaevice, including the power of coercing obedience to its mandate in case of resistance or refractory conduct on the part of those to whom it was directed.

Second. The second question submitted by the respondent in his return involves the justification of his acts in the premises, and it presents for solution two distinct propositions:

1. The unconstitutionality of the legislation under which the Council proposed to accuse and try the City Treasurer, which was alleged and held to be a legal ground for the injunction granted.

2. That the subordinate courthad jurisdiction of tlie subject matter; that its ruling therein could be reviewed on appeal only, and that therefore the writ of prohibition could not apply.

The alleged unconstitutionality of the proceedings is liable to two sub-divisions: 1st, that in organizing a court of impeachment, the City Council was usurping judicial functions, in violation of Articles 14 and 15 of the State Constitution;. 2d, that the provisions of the City Charter on the subject of impeachment were violative of the Constitution, Articles 196 and 201, which had conferred to the judiciary department the sole power of removing municipal officers.

At the threshold of the discussion, we meet a question which overshadows the controversy, and that involves an examination of the power of the judiciary to interfere by injunction with the operations of a municipal corporation in the exercise of its administrative functions, and more particularly that of amotion of a corporate officer.

It is of the very essence of corporations that their only mode of acting is through their officers, whose acts are regulated by law, and by the acts of incorporation.

Now, as every illegal or wrongful act of a corporate officer, cannot always be reached by the slow process of judicial proceedings, which frequently afford no adequate relief in the premises, it follows, as a necessary consequence, that the removal of the recreant officer is the only protection of the corporate body against the recurrence of similar acts, and from the damages or injury resulting therefrom.

Without the power in the corporate body of removing such obstacles in the way of its operations, the wheel of the corporation would soon become so effectually clogged, that corporate life would be eventually paralyzed, if not completely extinguished.

Hence it is, that soon after the first institution of corporations, the judiciary was called upon to define the power of such bodies for self-purification and self-maintenance in connection with the acts of unfaithful officers. And from the very nature of things the problem was solved by applying the power of amotion. The remedy was at once prescribed and used, and under numerous decisions of the Courts of England and of our sister States, it has crystallized into the following well established doctrine : “ The power to amove a corporate officer from his office, for a reasonable and just cause, is one of the common law incidents of all corporations.” The right has been admitted in cases where the power had not been expressly delegated, either by general law, or by special statute. Dillon’s Municipal Corporations, Sec. 240.

In the early case of Rex vs. Richardson, 1 Burrows, 539, Lord Mansfield said, in speaking of this power: “ It is necessary to the good order and government of corporate bodies, that there should be such a power as much as the power to make by-laws.” Lord Coke says: there is a tacit condition annexed to the franchise which, if he breaks, he may be disfranchised.”

A similar ruling had been previously made in Lord Bruce’s case, 2 Strange Reports, 819, in which a contrary doctrine which had once prevailed was reversed. Rex vs. Liverpool, 2 Burr. 723; King vs. Lynn Regis, 1 Douglass’ Reports, 158; Osgood vs. Nelson, 5 English and Irish Appeals, 636.

In the case of Neall vs. Hill et ah, 16 California, 146, the Court, in recognizing this doctrine, extended it to the declaration that the power of removal of a corporate officer is vested exclusively in the corporation, subject to a revision of its action by the Courts after removal.

In the case of King vs. Richardson, 1 Burr., Lord Mansfield held, that in the abseuce of an express grant of authority, the corporation had the incidental power to make by-laws to remove officers for just cause.

In applying these principles to the case under discussion we find a corporation controlled by a charter recently enacted by the legislature under its general powers, and with the express authority of a constitutional provision conferring to the General Assembly full power and authority to cancel the pre-existiug Charter of the City of New Orleans, and to remit its inhabitants to another form of government, if necessary. Const. Art. 254.

And in the Charter enacted under this solemn sanction, we find that the inherent power of amotion of corporate officers by the corporation is expressly recognized in principle, and is unreservedly granted in fact.

In that legislation the corporation is not left to its own inherent powers to prescribe the mode of proceeding in such cases, or to define the causes of removal, but every needed detail is amply provided for, and the extent of corporate power and the path of corporate duty are clearly mapped out.

Hence, it appears clear to our minds that, in presenting charges against the City Treasurer, and in organizing for his trial, the City Council was proceeding to exercise a power not only inherent to its existence, but expressly delegated by law.

'■ We therefore hold, both on reason and on abundant authority, that lio court of justice had the legal power to interfere by preliminary injunction with the municipal council'in the exercise of that franchise, one of its plainest and most essential administrative functions. The legality or constitutionality of its proceedings in such cases is amenable to judicial action under proper showing, like all ordinances of the municipal corporation, after the exercise of municipal discretion but not before.

The general rule that courts cannot impede, by preliminary injunction, the usual functions of a municipal corporation, rests on the most solid foundation-, daily strengthened by judicial assistance, and is subject to very few exceptions, where, from the nature of the act to be performed, and of the consequent, inevitable and irreparable injury to public interest, the proposed action of the corporate body may be reached and controlled by the arm of the judiciary. Dillon on Municipal Corporations, Secs. 94 and 908; High on Injunctions, Secs. 783 and 795.

In asserting this doctrine, the present Court, in the case of Harrison vs. City of New Orleans, 33 An. 222, said : “ Municipal corporations are clothed with legislative powers, to be exercised according to their discretion, with reference to all subjects pertaining to their adminis-, trative functions. No injunction will lie to restrain a municipal corporation from passing or voting on any ordinance.” Slaughter House Co. vs. Police Jury of Jefferson, Opinion Book 53, p. 546,

The principle is conceded by respondent, iu so far as the act of the corporation subjected to the test is technically a legislative function, but he resists the application of the doctrine to the present controversy on the ground, which is his main reliance, that the Council, in organizing a court of impeachment, was assuming the performance of judicial functions.

The argument is untenable, its inevitable consequence would strip the corporation of its inherent power of amotion of corporate offieei'S for just cause; as any deliberation by the corporate body ofi the conduct of an officer, with a view to his removal if found unfaithful, would be equally amenable to the objection of judicial usurpation with the mode technically described in the City Charter as an impeaehmen t. Armed with that argument the simple police officer, charged with der-, eliction or neglect of duty, would successfully resist, by a preliminary injunction, any investigation- into his conduct and official behavior, by the City Council, or by a committee acting under its authority.

The power of amotion, as hereinabove demonstrated to be an incident of every corporation, necessarily implies an examination into the alleged causes of removal, and a concurrence of the required number of the members of the board clothed with the power of amotion, in order to effect a removal. »

: Respondent’s error consists iu confounding this deliberation and this conclusion on the subject of removal with a judicial function, as contra-distinguished with other deliberations had and other conclusions reached by the municipal council on matters pertaining to its administrative functions. ■

:■ The question has already .been subjected to judicial test, and has received the following interpretation: A provision in a city charter vesting the board of aldermen with the. sole power to try all impeachments of city officers, the judgment only extending to removal and disqualification to hold any corporate office under the charter, is not unconstitutional as authorizing the exercise of judicial powers by a legislative or municipal body, but it is rather the exercise of a power necessary for its police and good administration.” Dillon on Municipal Corporations, Secs. 200, 244; People vs. Bearfield, 35 Barbour N. Y. 254.

The learned author just quoted refers to a decision of our own Supreme Court, which is very aptly in point. State vs. Ramos, 10 An; 420. The opinion in that case is a complete refutation of respondent’s argument on this point, and unequivocally asserts the doctrine which we have just quoted.

„ The provision touching the limited effect of the impeachment, in the present Charter, reads: “Judgments in cases of impeachment shall not extend further than removal from office and disqualification from holding any office under the City Charter, etc.” Sec. 62 of Act 20 of 1882.

A strenuous attempt is made to establish a difference between that case and the present controversy, founded on the discrepancy on this subject, between the provisions of the Constitution of 1852 then in force, and those of the present Constitution. Art. 92 of the latter Contains a delegation of powers identically similar to those enumerated in Article 124 of the organic law of 1852,'on which the Court justified the power of impeachment conferred in the City Charter then in force:

Respondent further contends that the restriction in Article 197 of the present Constitution is not found in the Constitution of 1852, or in any previous Constitution of this State, aud seeks, for that reason, to avoid the effect of .the decision in the Ramos case. The provision reads: “The House of Representatives shall have the sole power of impeachment.” The argument is answered by the preceding considerations in this opinion, which go to show that the power delegated in the present City Charter is not the technical impeachment which the Constitution treats of, but is merely a definition of the causes of removal under the inherent power of amotion, and a prescription of the mode of proceeding in such matters.

The whole argument is completely demolished by the following reasoning on this matter of impeachment in the Ramos case: “We think that in this enactment the legislature only gave to the city gov* ernment such powers as are proper for its police and good administration, and that no Article of the Constitution was invaded thereby.” The corresponding provision on the subject, in the Constitution of 1852, is as follows: (Art. 85) “The power of impeachment shall be vested in the House of Representatives.” The great difference between the two provisions, so confidently invoked by respondent, is not easily discerned.

We, therefore, feel safe in concluding on this point, that the immunity of the City Council from judicial interference in the exercise of its inherent, as well as delegated power of amotion, is far from being one of the recognized exceptions to which we alluded above; but that it is one of the very functions which should be held free from such interference.

In the recent case of People ex. rel. Dougan vs. District Court of Lake County, in the Supreme Court of Colorado, (Law Reporter, October, No. 15) this principle was pointedly asserted and enforced. The City Council had been prohibited by the District Court from proceeding to try the City Solicitor on charges preferred against him, until further orders from that Court, when application was made for relief by prohibition in the Supreme Court.

That tribunal held : “ The examination of charges preferred against the City Solicitor, finding him guilty of malfeasance in office, and removing him therefrom by the City Council, was not the exercise of judicial power.” Hence, the Court held that the District Court had no jurisdiction to control the action of the City Council, and that this fact appeared sufficiently upon the face of the petition presented to it; and it follows that its order, directing the City Council to desist from further proceedings, was absolutely void.”

. We reach a similar conclusion concerning the injunction issued by the respondent Judge in our case; and we hold that the preliminary injunction, which paralyzed the administrative functions of the City Council of New Orleans, is an absolute nullity. High on Injunctions, Sec. 786; Pullman vs. Meyer, 54 Barb. N. Y.

It is worthy of note that in our case, no other relief was asked by the City Treasurer, but an injunction intended to screen him from a trial of the charges preferred against him, and from any interference with his possession of the office which he holds.

• This brings us to the consideration of respondent’s last proposition, that the wrong complained of by relators is at most an erroneous judgment, and does not justify the use of the writ of prohibition, which is intended by law only to test the jurisdiction vel non of the subordinate court.

In our opinion, the word jurisdiction implies something more than technical jurisdiction ratione materia et persona, as contended for by respondent. The term is defined, from its etymology and derivation, to mean “a speaking of justice or of-right.” Wells’Jurisdiction of Courts, p. 1.

It therefore implies the power or authority in law to grant the full relief prayed for; and it must, of necessity, imply the scope or power to reach and hold the persons or parties to be affected by the particular decree to be issued.

But it is fully demonstrated that a city council in the exercise of its inherent or delegated power of amotion of one of its officers is beyond the reach of the injunction process of courts.

Hence, it follows, that a writ thus issued is null and cannot be enforced, and that the proper remedy of the parties, against whom it is directed, is held to apply to a court of competent appellate or supervisory jurisdiction for relief by way of prohibition, in order to restrain the subordinate court from attempting to enforce avoid order, involving an illegal usurpation of authority and jurisdiction by the inferior tribunal.

In the case of the State ex rel. Liversey vs. Judge, 34 An. p. 741, this Court held that a writ of this nature, issued by a court having no power to grant such an injunction, is an absolute nullity, and that the condemnation of defendants for contempt of such writ, falls with the injunction the moment such nullity has been pronounced by this Court, and a writ of prohibition, being considered as the proper remedy, was issued in the premises. This doctrine is in perfect accord with the principle announced in the Colorado case just quoted.

. It has been held, and we endorse the ruling that, The province of the writ (of prohibition) is not necessarily confined to cases where the subordinate court is absolutely devoid of jurisdiction, but it also extends to cases where such tribunal, although rightfully entertaining such jurisdiction of the subject matter in controversy, has exceeded its legitimate powers.” High’s Extraordinary Legal Remedies, Sec. 781; Appo vs. People, 20 N. Y. Reports, 531; Sweet vs. Hulbert, 51 Barbour, 513.

We are therefore clear in our conviction that, in this case, the District Court has wrongfully exceeded the bounds of its jurisdiction, and that the proper and only efficient check is by the writ of prohibition.

This view of the controversy obviates the necessity of passing on the alleged unconstitutionality of the City Charter on the subject of impeachment, which will be disposed of whenever it comes up in a proper proceeding.

Under these conclusions, and under the terms of our provisional order, the writ of mandamus prayed for is stripped of all' practical effect, and it must therefore be ignored.

It is therefore ordered and decreed that the alternative writ of mandamus herein be dissolved; and that the provisional writ of prohibition issued herein be made peremptory at respondent’s costs.


source: Caselaw Access Project

author: . Todd, J.

license: Public Domain

text:
    No. 8214.
    Thomas J. Hickman et al. vs. Mary P. Dawson et al.
    A legal assessment is essential to the validity of a tax sale, and where that is wanting the sale will not he protected by the prescription of two, three and five years. Such sale, however, being made by competent authority, wbeie no nullityis patent on the face of th« deed, the purchaser cannot be held a purchaser in bad faith, but is entitled to be reimbursed the legal taxes paid, and for useful improvements. Previous decisions reaffirmed'.
    Parol evidence is inadmissible to prove the assessment and payment of a special tax, where it is not shown that there exists no written evidence of said facts.
    APPEAL from the Eleventh District Court, Parish of Natchitoches, Pierson, J.

      Chaplin, Drauguet <& Chaplin for Plaintiffs and Appellants, ■

      Watkins c£ Scarborough for Defendants and Appellants.
   The opinion of the Court was delivered by

. Todd, J.

This is a petitory action instituted by the plaintiffs, as . heirs of Mrs. M. E. Blanchard, for the recovery of fhe plantation described in their petition, situated in the Parish of Natchitoches, known as the Gaiennie plantation.

The defendants oppose to their demand a tax sale of the property, made in July, 1872, to Dr. Thomas H. Patterson, under whom they claim'.

There have been two trials of the case in the District Court, and this is the second appeal to this Court. In the first trial the District Judge excluded evidence impeaching the tax title referred to, and rendered judgment for the defendants. The judgment was reversed and the case remanded for another trial, this Court holding that the excluded evidence should have been admitted. On the second trial there was judgment decreeing plaintiffs owners-of the land, setting aside the tax sale, but allowing the defendants the value of the infprovements made on the property, and the legal taxes paid by Patterson at the time of the sale, and since by defendants during their possession. From this judgment both parties have appealed.

1. The property in controversy belonged to the succession of Marie Emma Blanchard when sold at tax sale at the date mentioned, and the plaintiffs are her legal heirs.

Many nullities were urged against the tax sale. It is only necessary to notice one of them.

Though the property belonged to the succession of Mrs. Marie Emma Blanchard, as stated, it was -never so assessed; In fact; it does not appear to have ever been assessed to lier whilst living, though she owned tlie property from 1860, having acquired it at probate sale of 3ier father’s estate. During her lifetime the plantation in question was assessed to Mrs. E. A. Blanchard, and was thus advertised tó be sold, though the tax collector’s deed stated that it was sold as the property of the estate of Mrs. E. A. Blanchard.

Under this state of facts it is manifest that such an assessment was equivalent to no assessment at all, and that the plantation in controversy, then the property of Mrs. Marie Emma Blanchard’s succession, was sold virtually without any assessment whatever. Stafford vs. Twitchell, 33 An. 526.

Such a sale is not protected by the prescription pleaded, by reason of this radical defect: the want of a legal assessment. This question of prescription was really determined when the case was before us on the first appeal, and this was in conformity to prior adjudications of this Court. 15 An. 15; 32 An. 912.

The defendants, however, charge that this omission to. assess the property against the true owner and the error in the name, was through tjie fault of the agents of Mrs. M. E. Blanchard,.and for this reason cannot be invoked to invalidate the sale; and cites the case of Lane vs. Succession of Mauh, 33 An. 587, in support of the proposition. i

It is sufficient reply to this to say, that the evidence in the record does not show the alleged agents were in any manner responsible, for the omission to assess to the true owner, or for any mistake or error in the name of the owner. There is no act proved on their part to establish such responsibility, and, in fact, we find no proof of any such agency, or of auy authority on the part of the alleged agents to represent Mrs. Blanchard in any respect or for any purpose whatever. •.

2. Whilst the tax sale must be held a nullity for the want of this essential requirement, yet the sale having been made by competent authority and it having been held by this Court in the first appeal, quoting the language of that decision, that the defects or elements of nullity charged against the tax deed are not patent on its face,” we conclude, in accordance with several adjudications of this Court on the same question, that the purchaser at the said sale was a possessor in good faith and entitled tobe reimbursed for useful improvements on the property, and legal taxes paid by him. Miller vs. Montague, 32 An. 1293; Guidry vs. Broussard, 32 An. 924; Stafford vs. Twitchell, 33 An. 520; Hopkins vs. Daunoy, 33 An. 1124; Eldridge vs. Tibbits, 5 An. 380; Wederstrandt vs. Freyhan, 34 An. 705.

. 3. As to improvements.

The question as to the value of the improvements on the property) under the conflicting testimony on the subject, we have found it no easy task to solve.

As stated, the Gaiennie Plantation, in controversy, was purchased by Mrs. Blanchard in 1860, at the sale of the property belonging to the succession of her father, for $51,000. The amount of her interest was $17,000, and for the residue of the price she gave her promissory notes to the co-heirs, which, after the war, in 1866, were reduced, but were never paid. She occupied the property for about one year and a half or two years, i'n Í862 and 1863, and then abandoned it, and never again occupied it up to her death. After she left the plantation it was exposed, during the late war, to the depredations of both armies. The buildings, fences, etc., were almost totally destroyed, so that at the termination of the war, the property was almost a complete wreck, and so remained, with the exception of a small enclosure and a few patches cultivated up to the tax sale. It was sold for the taxes of 1867, 1868, 1869, 1870 and 1871, and bought in by T. H. Patterson on the 6th July, 1872, for $4,218.80, under whom the present possessors, defendants, hold.

The improvements made on the property, after the purchase, were considerable and of a substantial character, consisting of a dwelling house', ginliouse, with steam engine and other fixtures, cabins, stables; about four miles of plank fencing, enclosing several hundred acres in cultivation.

These improvements were appraised by three persons, represented as being intelligent gentlemen of the neighborhood, planters and merchants, at $10,130.

We quote from the testimony of one of these witnesses, to give an idea of the character of the improvements, and the witness’ capacity and opportunities for estimating their value :

' I was aware of the condition of the place at the time of the tax sale. It was then in a very bad condition'. There was very little land fenced in, and the houses in a bad fix. There was no giuhouse or residence on the place j both had been destroyed. Hardly forty acres were under fence at that time. ' * * I know the condition of the place now. (* * We examined the bindings and improvements enumerated in the bill of particulars. * * Have lived in the neighborhood since 1853, being a merchant and planter. I have experience in business as merchant and planter, and am well acquainted with the value of-improvements and repairs, having had a great deal done on my own plantation. Have had improvements of a similar character made ói» my place, and make the estimates from my own knowledge and 'experience.”

The other appraisers, we gather from the evidence, were men of like experience, ancl possessed equal facilities for appraising the property. On the contrary, we find an estimate in the record by two workmen Who built some of the houses, of $4,381.50, which embraces the same improvements, less the ginhouse, machinery, etc., which were valued by the first named appraisers at $3,200.

' The Judge a quo, who had the case under advisement for some time,- and doubtless gave the.evidence the most thorough consideration and upon knowledge of the witnesses testifying before him in open court, afforded him an opportunity of weighing the evidence and forming a conclusion touching the value of the improvements which this Court does not possess, adopted the estimate made by the three witnesses first mentioned, deducting, therefrom .$800 for the ginhouse, which had been partially destroyed by a storm. We cannot say that the Judge erred in his conclusion. Qur own examination of the evidence rather confirms us in its correctness.

4. Taxes.

There is a wide difference between counsel of the parties respecting the amount of taxes due on the property before and subsequent.to the tax sale; and there is evidence in the record, documentary and oral, to sustain, to some extent, the respective opinions of each. We have the regular assessment rolls, the delinquent lists, and testimony of experts, none of them in exact accord aud making it difficult to arrive at a satisfactory conclusion. The discrepancy between the assessment rolls and the delinquent lists is owing to the fact that, in the former, some of the taxes are not carried out or extended in the roll, which is. done and appear on the latter.

WTith a view to ascertain the amount of the taxes for all these years, from 1867 to 1881, inclusive, an expert was appointed by the Judge, with consent of both parties, to compile and report a statement of the taxes from the evidence in the case. This expert had been in the tax collector’s office since 1868, and is the present tax collector. Another statement or compilation of the taxes appears in the record from another, party who, for many years, was the tax collector ordeputy tax-collector for the parish, and whose testimony on the subject was also, taken. We think both statements are properly in evidence, although’the right of one of them to appear in the record is questioned.

From these statements the conclusions of the Judge a quo are evidently largely drawn, but the aggregate reached by him is not as large as the total amount of the taxes shown by either statement referred to. All penalties and costs were wholly excluded from the Judge’s calculation, as appears from a memorandum of his opinion on file. He also reduced, the Parish tax for the year 1872 to 1876, inclusive, to conform to the State tax for those years under the decisions. 29 An. 1; 33 An. 490.

In reviewing the Judge’s statement on this point, we can detect but one error, and that was in relation to the special parish taxes for 1872 and 1873, aggregating for both years $1,469.70. There is no evidence whatever of any assessment of this tax, or any authority for its collection, except the testimony of the ex-tax collector, which was objected to on the ground that it was not the best evidence of the assessment and payment of the tax, which objection should have been sustained and the testimony on that point rejected. Cooley on Taxation, 28-45.

5. Rents.

There is much conflicting testimony respecting the value of the rents and revenues of the property. The Judge properly allowed the plaintiffs to recover the rent only from judicial demand. He fixed it at $750 per annum, for 1879 to 1882, inclusive, for the rent of the plantation on the left bank of the river, aggregating $3,750 for those years, and in addition thereto, $325, for two j'ears’ rent of the right bank. We think the estimate a liberal one, and of which the plaintiffs have no right to complain.

The Judge, also, vei’y properly allowed the plaintiffs a credit of $300 for old rails and brick on the place, used by the defendants.

This completes our review of all maters embraced in this appeal. On account of the voluminous record, and the great mass of unsatisfactory and conflicting testimony, an examination of the case has occupied much time, but it has been thorough aud exhaustive, and the conclusion we have reached, we believe, does substantial justice between the parties.

The judgment of the lower court allowed the defendants $11,364.58, on their reconventional demaud for improvements, taxes, etc., after giving the plaintiff credit for rents, etc, This balance should be reduced by $1,469.70, the amount of the special tax we find improperly charged against plaintiffs, as above stated, which should have been rejected as of non-suit, leaving the true balance against them, $9,894.88.

It is therefore ordered, adjudged aud decreed that the judgment of the District Court be amended by decreeing the balance due by plaintiffs on the reconventional demand to be nine thousand eight hundred and ninety-four dollars and eighty-eight cents, with legal interest from date of judgment of District Court, aud for the difference between this amount and that awarded by the judgment of the lower court, this difference being $1,469.70, the right of action is reserved, and the judgment, as thus amended, affirmed, defendants to pay costs of appeal.

Manning, J., takes no part.


author: Eenner, J.

text:
    No. 8048.
    R. F. Montgomery, Mrs. C. Gullifer, Subrogee, vs. G. H. Koester.
    The rule of our law, aa well as of the common law, is, that he, who owns and keeps a dangerous animal knowing it to be such, is bound, at his peril, to keep him up safe from hurting innocent persons, and if, for want of sufficient oare, the animal escape and do injury, the owner is liable.
    The scienter may be established by attendant circumstances withoutnecessity, in all cases, of proving prior cases of injury.
    APPEAL from the Eourfch District Court for the Parish of Orleans. Houston, J.
    Z>. £7. <& 1j. L. Lcibatt and A. Smith for Plaintiff and Appellee:
    1.The owner of a dog which inflicts a wound upon a person walking upon the public highway is responsible in damages for such injury (C. C. 2321); and this holds whether the injury resulted from the negligence of the owner himself or from, that of his agent or servant. O. C. 2316, 2317.
    . 2. Knowledge on the part of the owner of the dangerous character of the dogs is to be presumed from the fact that he kept the dogs chained in the day time and loosed fcheni at night; and from the fact that the dogs were kept to guard and protect his promises and property. Buckley vs. Leonard, 4 Denio,50Q; Sherman aud BedfieUL on Negligence, Section 191.
    3.The owner of an animal is bound so to keep him that he shall not commit injury. When, therefore, such an animal does damages the owner is liable, though it be shown that it never before evinced any fierceness. Besazzio vs. Harris, 1st Foster aud T. nisipirius, p. 92; 1 Com. (N.X.) 515; SBarb. (N. X.) 630; 38 Barb. (N. X.) 14; 14 Cal. 138; Addison on Torts, old ed., p. 135.
    4.In the assessment of damages not only the mental aud bodily suffering are to betaken into consideration, but also tho trouble and expense to which plaintiff has been subjected by the wrongful act of defendant It is proper to take iuto account, as part of the expenses, the reasonable fees of attorneys. 29 An. 218; 5 An. 5,21,22; Greenleaf Evidence, Yol. 2, p. 280. Sec. 267. '
    5.Defendant having gone into the trial of a cause on the merits, without having pleaded his exception, notwithstanding the fact that he had ample time subsequent to the notice of subrogation, the exception comes too late; and not having demanded a decision on tho exception, it is considered as waived and abandoned. 6 An. 533; 11 An. 689, etc.

      H. P. Dari for Defendant and Appellant:
    Exception.
    1. Defendant’s right to raise exceptions to the capacity, etc., of a subrogee who becomes such after issue joined with original plaintiff is not affected by that fact,
    2.An exception to tho want of authorization and right of a married woman to stand in judgment is peremptory, because it shows “a total want of legal right or authority to sue,” and it may be urged at any stage of the cause. 4 B. 174; 17 L. 236; 4 N. S. 437.
    3.The husband’s authorization to sue must be filed before proceeding to trial ou the merits,* or he must appear with her. 22 An. 204; 21 An. 576: 25 An. 193. It is sufficient that she be capable of standing in judgment when judgment is rendered. 2 B. 13; 4 L. 259 ; 10 An. 505; 26 An. 590,809; C. P. 320,£321. The statute is prohibitory and such an authorization filed subsequent to judgment is not sufficient. 15 An. 182, 303; 12 An. 147; 1 An. 260; C. C. 121, 124.
    4. Tbe wife (ber'busband living) cannot prosecute community claims. C. C. 2402; 10 An. 310 j 15 An. 119; 20 An. 532 ; 24 An. 521, 295.
    5. Personal actions of tbe wife are under the sole control of the husband. C. P. 107; 9 L. 350; 12 An. 333 • 29 An. 215.
    C. This Court will not permit litigants to question here titles whose validity they have maintained in the court a quo,.

    7. A judgment rendered in favor of a married woman unauthorised or incapacitated must bo reversed and the case remanded.
    Merits.
    1. Burden of proof is upon plaintiff in actions ex delicto and he must make his case certain ; a probable case will not satisfy the exigency of the law. 16 An. 121.
    2. Bogs are property under the laws of this State, and it is lawful to keep same, (Act 148 of 1858; R. S. 1201,) provided they be not public nuisances. City Ordinance, p. 142.
    3. Statements or conversations by or witb tbe wife should not be received foror against bim in an action against the husband.
    4. It being lawful to keep dogs, if tbe same are so kept witb extreme care, and, through no fault or negligence of defendant, they get out in the night timo and do injury, such inj ury is an acoidont, from which no liability results. Wait’s Actions and Defenses, 1, 160, and authorities there cited; Sbawban vs. Clarke, 24 An. 390.
    5. A dog is 'inmisuetce naturce, and tbe owner is responsible for injuries by it committed only when it is shown to be accustomed to injure persons or property to tbe knowledge of tbe owner. 1 Wait, Actions and Defenses, and authorities ; 1 Addison on Torts, 229; 2 Hilliard on Torts, 81, 82; 7 Ala. 171; 22 Ala. 571; 22 HI. 143; 21 Yfc. 378 ; 4 Denio, 127,177, 500 ; 13 Johnson, 339 ; 3 Keyes, (K. Y.) 269-70; 4 H. 363; 4 Carr. & Payne, 297; 19 Penn. 359. The same principle controlled Rome and Israel. Exodus SKI, 29-36“' Cooper’s Inst., Lib. IY, -Tit. IS. Yredonburg vs. Behan, 33 An. 634.
   On the Exception.

The opinion of the Court was delivered by

Eenner, J.

This is a personal action brought by Montgomery, in his own name and right,"against the defendant.

The latter had filed answer and the cause was at issue.

Thereafter a motion was filed, suggesting a transfer by Montgomery to. Mrs. G-ullifer, and an order was entered recognizing her as subrogee.

The-case was taken up for trial on 25th May, testimony taken on that and various subsequent days, to which the cause was continued, until 15th June, when defendant filed an exception to the effect that “Mrs. G-ullifer, subrogated, is a married woman and hath averred and proved no facts which warrant the Court in rendering judgment in her favor, and she is absolutely without capacity to stand in judgment. Wherefore, he prays that this exception be sustained, and plaintiff’s suit be dismissed with costs.”

’ Manifestly, this exception does not go to the dismissal of the suit, ■which was properly brought and at issue before the subrogation took place. The exception simply attacks the subrogation and the rights of the-subrogee thereunder. In absence of any interest proved, or even asserted in the defendant, the validity and effect of the subrogation seem to be matters between plaintiff and his subrogee, and not concerning the defendant. The suit proceeded in the name of the original plaintiff; the judgment, by its terms, is ‘‘in favor of plaintiff, Robt. E. Montgomery, Mrs Catherine G-ullifer, subrogated;” satis-' faction of the judgment will securely discharge the defendant, and he has no other interest in the matter.

The authorities quoted as to suits improperly brought in the name of the wife do not apply to such a case.

On the Merits.

The action is brought under Art. 2321, R. C. C., for damage caused by dogs belonging to defendant, in attacking and biting the plaintiff.

The facts are, that plaintiff, -while walking in the public street at night, on arriving opposite an alleyway opening into defendant’s premises, was attacked by two dogs and injured as charged.

The evidence satisfies us, as it did the Judge a quo, that the dogs ■which did the injury were defendant’s.

■ These were watchdogs kept by defendant for the protection of his premises, and#heir dangerous character and knowledge thereof by defendant may be inferred from their size, their actual conduct, the admitted purpose for which they were kept, and the very care exercised in their custody; for it appears from the testimony offered by defendant, that his practice was to chain up the dogs every morning at daylight and to loose them only at night.

We think this sufficient to charge him with the scienter. 1 Thompson on Negligence, p. 203, § 17 and cases there cited.

Defendant’s right to keep the dogs is not questioned. They were necessary and proper for the protection of his premises in their sitúa- ' tión on the outskirts of the City. If, while loosed at night, they had bitten a person trespassing, or even negligently coming, upon his ‘ premises, defendant would not have been liable. But plaintiff was wending his way homeward on a public highway when attacked, and' was not guilty of the slightest fault or contributory negligence,

■It'-was defendant’s clear duty in loosing his dogs at night, for his' own advantage and protection, to see to it that they should not escape' and injure innocent passers on the street, and to that end, to exercise the highest care.

How the dogs got out is not shown, but the evidence is that the gate ' opening from defendant’s premises on the alleyway was not locked, but was fastened with a simple latch which might be opened by any one from the inside or outside. The risk of the gate’s being opened and left open by careless or mischievous persons and the consequent escape of the dogs was one the'consequences of which must be borne by defendant and not by the innocent plaintiff.

The rule at common law is ancient and Well settled that one keeping a dangerous or mischievous animal, with knowledge of its propensities, must, at his peril, keep him up safe from doing hurt, for though he use his diligence to keep him up, if he escape and do harm, the owner is liable to answer in damages.” 1 Hale’s Pleas of the Crown, 430; May vs. Burdett, L. R. 9 Q. B. 112; Cox vs. Burbridge, L. R. 13, C.B. 438; Flecher vs. Rylands, L. R. 1 Exch. 265, (S. C.); Rylands vs. Flecher, L. R. 3 H. L. 230.

Our law certainly does not afford a more lenient rule.

The French Courts and Commentators, in applying Art. 1385 of the Napoleon Code, corresponding to our own Article 2321, enforce the same doctrine.

Marcadé, in his usual trenchant style, says : “ Of two things, one : either the owner has not taken all the precautions which prudence required, and is thus in fault; or the animal is so vicious that all imaginable precautions to prevent it from injuring are of no avail, in which case the owner is in fault merely by keeping such an animal.” Marcadé on Art. 1385, No. 1; 8 Demolombe, Traitó des Contrata, No. 654 ; 5 Larorabióre, on Art. 1335, No. 3; 3 Aubry et Rau, § 418, p. 559; 2 Arcollas, Droit Civil, p. 981.

The exceptions to the rule of the owner’s liability are cases of vis major, contributory fault or negligence on the part of the person injured and the like explained'by Demolombe, within none of which, however, is this case embraced. 8 Demolombe, No. 650.

The French authorities go to the further extent of holding that the character of the animal and the knowledge of its vicious propensities by the owner, are of no consequence in determining the liability of the .owner.

We have no occasion in this case to determine whether we should follow them to’that extent.

As we have shown, both the highest English and French authorities agree on the doctrine on' which we rest this case, and we feel safe in applying it.

Nothing remains but the quantum of damage allowed by the Judge a quo, viz: five hundred dollars. The evidence does not establish to our satisfaction that this allowance is so excessive as to justify us in disturbing it.

Judgment affirmed.


author: Manning, J.

text:
    No. 8664.
    A. Erman vs. Sun Mutual Insurance Company.
    A discrepancy, even if it be material, between the statements of the assured under oath in his proof of loss, and those made at the trial, does not constitute the false swearing that works a forfeiture of all claim under a policy of insurance ; nor does an over-statement of the value of the property work such forfeiture, fora great difference of opinion upon values may well co-exist with perfect honesty of all the persons differing. The assured may have sworn to what he believes to he true, but which nevertheless is false, and his policy would not thereby bo forfeited. To work such forfeiture, the assured mustkuowingly and intentionally, and therefore fraudulently have sworn with the intent to deceive the in* surer and get from him a value falsely put upon the property.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Brauglm, Bueh & Binhelsjyiel for Plaintiff and Appellant:
    1. If'there is a discrepancy between the statement of loss and the statement testified to at the trial, it does not thereby follow that the claimant has been guilty of fraud or false swearing, for the statements made in the proof of loss may have been honestly, though erroneously made. 14 Wal. 375; 3 Bis. 106 ¡ 4 Daly, 96 • 43 Barber, 400; 50 HI. 120.
    2. Swearing must not only be false, but it must be wilfully and knowingly done, with intent to cheat the Company. 43 Pa. 350.

      Beovy é Kruttsclmitt for Defendant; and Appellee.
   The opinion of the Court was delivered by

Manning, J.

The suit is for the recovery of $1,437.57, alleged damage to a stock of goods and house at Morgan City, occasioned by fire on April 2, 1881. Besides the general issue, the defendant pleads in bar the forfeiture of all claim under the policy by reason of fraud and false swearing.

The false swearing that works a forfeiture of all claims under a policy of insurance is not a discrepancy, even if it be material, between the statements of the assured under oath in his proof of loss, and those made at the trial; nor an over-statement of the value of the property, for a great difference of opinion upon values may well coexist with perfect honesty of all persons differing. The assured may have sworn to what he believed to be true, but which nevertheless was false, and his policy would not thereby be forfeited. He must knowingly and intentionally, and therefore fraudulently have sworn, with the intent to deceive the insurer and get from him a value falsely put upon the property. May on Insurance, $477; Ins. Co. vs. Werdes, 14 Wall. 382.

The policy was for $1,000 upon a wooden building and $3,000 upon the stock therein. The damage sworn to is $75 to the .building, and $1,362.57 to the goods.

The fire was extensive. Many buildings in the town were burnt to the ground, and others caught from flying sparks and burning shingles which a strong wind scattered hither and thither. The plaintiff’s store thus caught Are. The dry roof ignited in several spots. Water was thrown upon it from buckets. The persons who ascended to the roof, and who were chiefly instrumental in extinguishing the flames, were witnesses at the trial. The plaintiff was very energetic in assisting also. The building was saved with difficulty. “ The roof ■was, rapidly burning in several places,” said a witness; “the water thrown upon it ran down into the store and wet all the goods there, and ,a great deal of the stock was damaged in consequence.” Per contra, the man sent down by the insurance company as adjuster disbelieved the leakage from above, and flatly charges Erman with having wetted the goods himself, and thinks $100 the maximum of damage.

There is not a particle of testimony to substantiate this theory. When a town is on Are and the flames are spreading, and men are running pell-mell to buildings threatened or aflame, and mounting upon ladder and parapet with buckets to hurl their contents athwart the roof, they do not throw the water as gently as if they were laving a lady’s Angers. Against the theory that Erman wetted the goods on purpose to lay a claim for greater damage ought to be opposed his good character. Every one of his fellow townsmen who was examined was asked about his reiiutation for honesty and veracity, and they all concurred in saying it was as good as any man’s in that community; They must be a bad lot if he, who is as good as the best of them, could do such a villainous act as the defendant’s adjuster attributes to him. The proof of the plaiutiff’s good repute accumulated so fast that the defendant put a stop to further inquiry by putting on record the admission that his reputation for truth and veracity in the community in which he lives is good beyond doubt.

Yet it is argued that he has sworn falsely because he has three several times stated the sum now claimed is: 1, the amount of damages sustained by him; 2, the cost price of the goods damaged; 3, the value of the goods in their damaged state. Of course, that cannot be true, but it is apparent from the man’s verbiage that he does not speak with acquracy and is not an adept in the use of our tongue. Other witnesses testify to the damage, and it would not be just to disbelieve the plaintiff entirely and Ax upon him the stigma of deliberate perjury, because he cannot express himself with the lucidity and precision characteristic of the counsel who presses upon us this argument. His testimony does not read as if he were consciously falsifying. His blunders can be more justly attributed to other causes than that.

But lie does say that the item of $630 for clothing is the full value of the goods, and the damage done to them is seventy-five per cent., and as the other items are lumped with that to make the sum sued for, the damage to each of them must be in the same proportion. He admits having sold $150 worth of the damaged goods. We state the

figures thus i

Sum total of goods damaged...............................$1,362 57

Less 25 per cent..............................'............. 340 64'

$1,021 93

Sold...................................................... 150 00

$ 871 93

Add damage to building................................... 75 00

$ 946 93

which we find as the amount of his damages.

Therefore it is ordered and decreed that the judgment of the lower court is avoided and reversed, and that the plaintiff do have and recover of the defendant the sum of nine hundred and forty-six dollars and ninety-three cents, with five per cent, per annum interest thereon from June 15, 1881, and the costs of both Courts.


author: Bermudez, C. J.

text:
    No. 8605.
    J. O. Halphen vs. Zuberbier & Behan.
    The appeal taken by a defendant cast in a suit apparently appeal-able, will not be dismissed for want of jurisdiction by the appellate court. . . .
    Equity demands that he should not suffer from the inference which he was authorized to draw, in that regard, from the nature of the cause of action and prayer.
    A consignor is entitled to recover from his consignee the proceeds of shipments made to him, and which were passed, without his authority, to the credit of a third person.
    Damages will not be allowed such consignor for non-payment of his drafts, where no evidence is adduced in support of such claim.
    APPEAL from the Civil District Court, for the Parish of Orleans. Pissot, J.

      M. Voorhves for Plaintiff and Appellee.

      A. JB. Philips for Defendants and Appellants.
   The opinion of the Court was delivered by

Bermudez, C. J.


text:
    No. 8892.
    The State of Louisiana vs. Edward alias Valmore Rector.
    An objection made to the time of drawing the jury, without charging fraud or wrong, as required by Section 10 of Act 44 of 1877, oannot be considered.
    Tho authentication of the clerk to the copy of an indictment extends to the body of the instrument, and to the indorsement thereon, where both are in tho hands of the attesting deputy.
    Tho Statute, R. S. 992, does not expressly say: that the list of jurors to be served on the accused shall be attested by the clerk under his offioial signature. Where tho list issued and admitted to have been served, is a newspaper clipping, which bears the impress of the seal of the court, and which ends with the words: a true copy, followed by the printed name of the deputy clerk; where no complaint is made that the list is otherwise defective, where the list is truly an exact copy of the original, and where there is no injury shown, substantial compliance with the law cannot be denied.
    Tho looseness with which the documents were issued by the olerk is censurable.
    Oral testimony is admissible to prove the contents of a dying declaration, first proved to have been lost.
    APPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Sherburne, J.

      J. O. Egan, Attorney General, for the State, Appellee.
    Defendant unrepresented in this Court.
   The opinion of the Court was delivered by

Bermudez, C. J.

The defendant, indicted for murder and convicted, appeals from the sentence of death passed upon him.

The record contains three bills of exception.

The first relates to the time at which the jury was drawn.

The second refers to the irregularity of the copy of the indictment and the list of jurors served, and to the irrelevancy of oral testimony to prove the irregularity and to show service.

The third concerns the admission of oral testimony to prove the contents of the dying declaration.

I.

The complaint in the first bill is, that the jury was not drawn at least fifty days previous to the term of the court.

The bill does not allege that the objection charged that some fraud had been practiced, or some great wrong committed in the drawing and summoning of the jury, that would work an irreparable injury.”

This charge not having been made, and being essentially required by Sec. 10 of Act 44 of 1877, p. 58, the complaint cannot be considered. 33 An. 141; 34 An. 118.

II.

The document served on the prisoner, as a copy of tho indictment, accompanies the transcript. It is apparently a fac-simile of the original, of its face and indorsement, the printing in the former being repeated in both, and the writing transcribed with accuracy. It is certified by a deputy cleric, under the seal of the court, as a true copy. This certificate covers both the face and the indorsement, the original blanks in which are filled by the same hand.

The list of jurors served is also attached to the transcript. It is a clipping from a newspaper, on which the seal of the court is impressed and at the foot of which appear the words, a true copy, followed by the printed name of the same deputy clerk.

The provisions of the Statute are: Every person who shall be indicted for any capital crime, or any crime punishable with imprisonment at hard labor for seven years or upwards, shall have a copy of the indictment, and the list of the jury which are to pass on his trial, delivered to him at least two days before his trial.” R. S. 992.

The law does not expressly say, that the list of the jury to be served shall be certified by the clerk, under his official signature, as a true copy.

Substantial compliance with the requirement of the law cannot be denied, where the list was authenticated by the impress of the seal of the court, and served by the executive officer of the court; where no averment or complaint is made that such list is incomplete, defective, or incorrect in any other respect, and where a comparison of it with the original list shows that it is an exact copy, and where it does not appear that any injury was sustained. The accused was entitled to a list of the jurors, and such list was furnished him. 28 An. 631.

It is needless to pass upon the other part of the bill of exception, for the reasons, that we ignore the testimony aud evidence received and objected to as irrelevant by the accused; that the service of the indictment aud list of jurors are admitted by the objection itself, and that the regularity of the copies was the only matter really contested.

We feel constrained, however, to censure the looseness with which both the copy of the indictment aud the list of the jurors were issued by the clerk, through his deputy, for whose acts he is answerable. It seems to us, that documents of that importance should have been put in such unassailable form as would have successfully resisted all possible technical attacks as to authenticity. It is to be hoped that irregularities of such gravity as have been charged in the present instance, will in future be guarded against and not again occur.

III.

The last bill is to the admission of oral testimony to establish the contents of the paper containing the dying declaration of the deceased.

The loss of that document having first been established, and not being disputed, there was no other course to be pursued than to prove its contents by secondary evidence. Were oral testimony inadmissible in such a case, the suppression, loss, or destruction of such proof could easily often secure a verdict of acquittal, in a clear case .of felonious homicide. The rule in such cases is too well known and elementary to demand special reference to authorities. Waterman Cr. D. 297 ; Roscoe Cr. Ev. 8.

Convicted murderers cannot avert, on flimsy technicalities, the high pains and penalties inflicted by conservative laws, which they have wilfully provoked and brought upon themselves.

Judgment affirmed.


author: Fenner, J.

text:
    No. 8932.
    The State of Louisiana vs. Jerry Alexander.
    Mere temporary absence from the State, (luring the year prior to the service of a juror, if without the intention of changing citizenship or abandoning residence, will not destroy the qualifications of the juror.
    j^PPEAL from the Second District Court, Parish of Bienville. Drew',

      J. C. Egan, Attorney General, for the State, Appellee.

      D. M. Patterson for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The sole error assigned is the overruling of a motion to quash the indictment, on the ground that one of the grand jury finding the same did not possess the qualifications required by law, because not a citizen of the State and not a bona fide resident of the parish for one year next preceding his service as grand juror.

It appears that the grand juror objected to had, for more than a year, sojourned in the State of Texas, upon business of a temporary nature, but, as he declares, with no intention of changing his citizenship or abandoning his residence in Bienville Parish. Upon concluding the business, he returned to his home, where he had been for about eight months prior to his summons as grand juror.

We agree with the District Judge, that such temporary absence, under the circumstances and with the intentions disclosed, had no effect upon his citizenship, domicile, or upon his residence, in the sense in which that term is used in the Act No. 54 of 1880, prescribing qualifications of jurors.


text:
    No. 8935.
    The State ex rel. Alfred Montague vs. Louis Coquillon, Justice of the Peace in the Parish of St. Tammany.
    Under its supervisory jurisdiction, the Supreme Court will entertain a writ of certiorari against a justice of the peace, for the purpose of ascertaining the validity of his pro!ceedings in au unappealable case. If, on examination of the proceedings, it appears that the magistrate has rondored judgment against the relator ■without giving him a hearing according to law, the judgment thus rendered will be annulled and avoided.
    Under the provisions of Article 1084 C. P., either party is entitled to delay for the purpose of preparing his case, in a cause pending before a justioe of the peace, on the first fixing of a cause.
    Under Article 1085, if the parties fail to appear at the appointed time, and if they reside in the country, the justice of the peace must wait two hours before he can render a valid judgment in the premises.
    Application for writ of certiorari.

      P. 6. Riddell and J. A. Reid for the Relator.
    Defendant in propria persona.

   The opinion of the Court was delivered by

Poché, J.

This is au application for a writ of certiorari against the defendant, Justice of the Peace, who is alleged to have rendered judgment in an unappealable case against the relator, without allowing him a hearing as the law requires.

The relief sought by relator is predicated on our supervisory jurisdiction ; and in answer to a preliminary order the respondent has sent a certified copy of the proceedings in the premises.

From that record it appears that a suit was filed against the relator in respondent’s court, on the 31st of May, 1883, and that citation was served on him on the same day.

It further appears that the defendant in the suit was notified, on the 25th of May, that the trial of the case was fixed for the 4th of June following, and that witnesses were summoned on the 29th of May.

The record shows that the defendant appeared in court on the appointed day, and aslced for time to prepare an answer, and that his application was overruled, whereupon, he retired and sought the advice of counsel, by whom au answer was prepared and presented to the court in less than an hour after the time appointed for the trial. At this juncture relator was informed by the magistrate that his answer came too late; that the case had been tried, and that judgment had been rendered against him. This information was followed.by a formal notice of judgment served on the defendant on the same day, and the whole proceeding culminated in the seizure of relator’s property, notice of which was served on him on the 11th of June following.

Under the provisions of Article 1082 of our Code of Practice, the defendant had ten days to answer to the action, and that delay expired on the first of June. Hence, the notice of trial served on him on the 25th of May, and the subpoenas issued to witnesses on the 29th of the same month, before issue joined, and previous to the expiration of the legal delay granted to the defendant, could have no legal effect against him, and could not debar him of his legal right to answer to the action.

It, therefore, follows, that he was legally entitled, when he appeared ' before the court on the 4th of June, to a reasonable delay necessary to the preparation of his defence.

This right is specifically conferred by Article 1084 of the Code of Practice, which reads as follows:

“If both parties are ready to try the cause, the Judge may proceed to the hearing, otherwise the justice shall fix such a day and hour as he thinks proper, allowing sufficient time to the parties to summon their witnesses, if it be necessary.”

It is plain to our minds that, under the rulings of the respondent, the relator has been unjustly denied the legal right contemplated by the Article just quoted.

Even if it could be held that the case had been legally fixed for the 4th of June, and that, in refusing defendant’s application for delay in order to prepare his defence, the magistrate had exercised a sound and legal discretion, it would yet appear that his course in rendering judgment within an hour of the appointed time cannot be sustained iu law.

Article 1085 of the Code of Practice provides, that if the parties reside in the country, as is the case herein, and if they should fail to appear at the appointed time, the justice shall wait two hours, after which he shall proceed to dispose of the cause by a final judgment.

It cannot be contended for a moment that the appearance of the defendant for the exclusive purpose of applying for delay within which to prepare a defence, is such an appearance as that Article provides for. The appearance contemplated is where the two parties are before the court, either in person or by counsel, (Art. 1087) for the purpose of a trial of the cause.

Hence, in this case, after the defendant had refused to go to trial, and had withdrawn from the court, it was the bounden duty of the magistrate to have waited two hours before proceeding to the trial of the cause. Had he done so, the answer presented by the relator, within an hour later, would have been in time, and a legal trial might then have taken place. But by his hasty action, the magistrate stripped the defendant of his legal means of defence.

In either view of the case it is apparent that the course of the justice of the. peace is unwarranted by law, and that it has practically operated a denial of justice.

Hence, we conclude that the judgment rendered by him, under the circumstances hereinabove stated, is absolutely null and void.

It is, therefore, ordered and decreed that the judgment rendered by the respondent magistrate against the relator, on the 4th of June, 1883, be annulled and avoided, and that respondent be ordered to try the case anew, in conformity with the provisions of the law, and that the respondent pay the costs of these proceedings.


author: Todd, J.

text:
    No. 8931.
    The State of Louisiana vs. Linda Turner and Major Bright.
    Where a part of the charge of the «Judge to the jury is objected to, but it appears that the same has no bearing on the question of the guilt or innocence of the accused, and can in no maimer prejudice him, whether correct or not, it will not be considered by this Court as affording any ground of relief from the verdict and sentence.
    APPEAL from the Twenty-third District Court, Parish of Iberville. Pope, J.
    <7. 0. Egan, Attorney General, for the State, Appellee.
    Defendant unrepresented in this Court.
   The opinion of the Court was. delivered by

Todd, J.

The defendants were convicted of larceny, and appeal from a sentence of twelve months’ imprisonment at hard labor.

They rely solely upon an alleged error in the following portion of the charge of the Judge to the jury, to-wit:

That it is not necessary that a warrant should have been issued, in order that an arrest could be made. That any sheriff, constable, peace officer or even a private citizen can make an arrest when he sees the person arrested perpetrating a crime, or about to escape, with the understanding that he arrests a criminal, and not an innocent person.” The issue tried was whether the defendants had stolen the property charged in the indictment. We are at a loss to see what possible influence the charge in question could have had on the minds of the jury, touching the issue on trial, that is, the guilt or innocence of the accused. Besides, the Judge explains satisfactorily in the bill of exceptions why the above clause objected to was embodied in his charge. The appeal is wholly without merit.

Judgment affirmed.


text:
    No. 8944.
    The State ex rel. Allen & Syme vs. The Judge of the Twenty-Second Judicial District et al.
    Whore It appears from anterior proceedings, that the District Judge has sustained his juris» diction, it would be doing a vain thing to require the filing of an exception and its overruling, before considering an application for a prohibition. The rule in 39 An. 809 is not thereby infringed.
    The writ does not lie to prevent a District Judge from trying exceptions filed after tbe granting of a new trial.
    A judgment prematurely signed does not become final and produces no effecfc, where a motion for a new trial is seasonably made and subsequently granted.
    Such motion, in the country parishes, where first continued to another term by consent of parties, and next, from term to term, by the court, and which the mover has uniformly ~ endeavored to have tried, does not lapse at the close of either of the terms. It can be entertained and allowed by the Judge, where good cause is shown.
    The granting of such a motion for a new trial practically obliterates the premature signature of a judgment.
    13 An. 563; Estopinal vs. Zuñís, not reported, 0.33. 45, folio 34, and State ex rel. Wentz vs. Judge 5th Dist., 35 Am., affirmed.
    lPPLICATION for a Writ of Prohibition.

      J. K. Gaudet & Son and B. G. TJugué for tbe Relators.

      Sims & Boché, contra.

   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a prohibition to prevent tbe District Judge from trying a cause already decided by him, by judgment duly rendered and signed, and which, it is alleged, has become final and irrevocable, as concerns him. The District Judge returns that the judgment rendered never became final; that it was signed on the day on which it was rendered, but that, within three judicial days from such rendition, the cast defendant moved for a new trial; that this motion for a new trial was continued by consent to the next term ; that it was not then tried, but was continued by the court, from term to term, until, coming up according to previous assignment, it was argued, submitted and granted, and a new trial ordered.

The facts disclosed by the record are simply the following ¡

On the 5th of November, 1880, a judgment was rendered in favor of the plaintiffs in the case, the relators herein, and was signed on the spot.

On the 8th of November, 1880, within three judicial days after the rendition of the judgment, the defendant filed a motion for a new trial, which, on the last day of the term, was continued by consent of counsel till the next term, all rights being reserved, to prevent the judgment from becoming final.

At the subsequent term and the following ones, although fixed for trial, the motion was not tried. It was not until October 11th, 1882, that it was called for trial, counsel for plaintiffs in the cause, who are defendants in the rule, objecting on grounds stated in writing. The motion was then continued to the next day, when it was argued by counsel for the mover and taken under advisement by the court.

The court, on May 30th, 1883, rendered a decree maintaining the motion and granting the new trial asked;

■ On the 2d of October, 1883, the defendant in the case filed an exception of no cause of action, which, on his motion, was fixed for trial October 4th, two days later.

On the day previous to that fixed for the trial of the exception, i. e., the 3d of October, the original plaintiffs applied to this Court for a prohibition to prevent such trial, on the ground that the case, having been finally determined by a judgment regularly rendered and signed, had passed beyond the control of the District Court, which had no further jurisdiction over it.

It may be that, under the rule, (which declares that no writ of prohibition will issue, forbiddiug a lower court from proceeding in a case before it, of which it is claimed it has no jurisdiction, until an exception to its jurisdiction has been tried and overruled, 29 An. 806) the present application could be refused as premature; but, as it appears that the District Judge in this case is the same before whom the plaintiffs had appeared to object and to whom the ground of opposition, which is the same as that now urged, was submitted; that he has disregarded those objections and has fixed the exceptions for trial and has joined issue in this Court touching the finality of the judgment and the question of jurisdiction, we think that we are not derogating from the rule, in assuming that the District Judge has, after objection, maintained ,his jurisdiction. It appears to us that it would be, therefore, doing a vain thing to require the filing and overruling of an exception to his jurisdiction, before considering this application for a prohibition, which we will now proceed to do.

The relators contend that, in the country parishes, three things are necessary to enable a party to obtain a new trial: 1st, there must be good cause for it; 2d, the motion must be made in season; 3d, it must be determined before the adjournment of the court for the term at which the judgment was rendered.

There can be no doubt that, in all the parishes of the State, a new trial cannot be granted unless seasonably asked and good cause shown ; but is it true that, in country parishes, where the party cast has made his motion in time and has alleged good cause, he is not entitled to a new trial merely because the motion was not determined at the very term at which the judgment was rendered1?

The motion for a new trial in the case below was made in time, but it was not determined-at the term at which made. It was continued by consent of parties to the next term. At that term, and at all subsequent terms, the defendant cast, mover for a new trial, is shown to have been almost restless, insisting again and again on a trial of his motion ; but it appears that each time the trial of the motion was continued, by the court, from day to day and from term to term, until finally it was acted upon, notwithstanding the objections of the plaintiffs in the ease and defendants in the rule; the court finally allowing it and granting a new trial.

The' contention of the relators is that, as the motion was not determined at the term at which the judgment was rendered, the judgment, although prematurely signed, has become final and the motion for a new trial could not be tried thereafter. They invoke the Act of 1839 and Articles 546 and 558 of the Code of Practice and infer that, where the motion for a new trial is not determined at the same term at which the judgment was rendered, it lapses and the judgment becomes at once final.

The relators could not successfully invoke this rule, even if the law stood their construction, because they themselves consented to a continuance of a motion for a new trial to the next term and cannot be permitted to avail themselves of their- consent to the injury of the mover in the rule for a new trial.

It is remarkable that the Articles relied on do not prescribe any penalty, and that, owing to this omission, cannot be considered as being penal-or mandatory laws, enacted for the preservation of public order or good morals.

The court cannot supplement the law and enact penalties where the legislature has not deemed proper to append any.

The provisions invoked are merely directory to the Judge and designed to regulate the administration of his judicial powers or faculties and the discipline'of his court.

It is manifest that the judgment in the case under consideration having been signed on the same day that it was rendered, was prematurely signed and, under the consent of the parties, can, under no possible aspect, be considered as having sinee been regularly signed and as susceptible of defeating a motion for a new trial, 5 N. S. 244; 4 An. 561; 6 An. 251; 20 An. 168; 23 An. 110.

The cast defendant has done everything which the law required of him. He has filed a motion in due time, has set forth plausible grounds, which were subsequently considered sufficient to justify a new trial, and is in no way chargeable with laches.

He finds himself in the very same predicament that an appellant is in, who files within legal delay a petition and bond of appeal.

He is entitled to the action of the court on his motion for a new trial as much as the appellant is to an order of appeal on his demand for one.

Neither the one nor the other can be made to suffer where, by no fault of theirs, the new trial was not allowed at the same term, or the appeal granted before the legal delay for appealing had elapsed.

In the Gilmore case, 12 An. 562, this Court said in an analogous issue:

“ It was irregular to sign the judgment until the motion for a new trial was determined. * '* The neglect of a Judge to perform his duties ought not to prejudice the parties who had a right to be heard on the motion.”

In the case of Estopinal vs. Zunts, Opinion. Book 45, folio 23, in which a motion to dismiss was made, on the ground that the order for ■a suspensive appeal had been granted after the expiration of the legal delay, the Court denied the motion, saying:

“ The petition and bond were filed in time. The order of appeal appears not to have been signed until the 24th November (after the expiration of the legal delay) but this cannot prejudice the appellant’s rights. He filed his petition and his bond within the time required by law, and he cannot be made to suffer because the Judge did not sign the order of appeal at the time the petition and bond were presented.”

In the more recent case of ¡átate ex rel. Wentz vs. Judge Fifth Judicial District, ante, p. 873, this Court held, that a mandamus does not lie to compel a Judge to render judgment or to sign one which was tendered him by counsel, in accordance with the verdict of a jury, where there is a motion for a new trial, made at a previous term, pending and undecided and when the Judge proprio motu, at a subsequent term, has quashed the verdict and reinstated the case to be tried de novo.

The Court there said: “The Judge had no authority to sign the judgment without first disposing of the motion. * * He would, in doing so, have committed a wrong.”

The granting of the new trial practically obliterates the signature affixed to the judgment when rendered.

Those precedents can well apply to the present case, which clearly falls within tlieir purview.

We have taken unusual pains in the examination of the issue here raised, because of its importance and because its decision will settle a question of practice somewhat seriously mooted and which should be set at rest.

It is, therefore, ordered and decreed that the restraining order herein made be rescinded, and that the application for a prohibition be refused at the cost of relators.


text:
    No. 8996.
    The State ex rel. C. Cremonini vs. The Mayor of Baton Rouge.
    A suspensive appeal having been dismissed for insnfiioionoy of the transoript, the appellant is entitled to a devolutive appeal, if applied for within a year from the rendition of the judgment.
    APPLICATION for Writ of Mandamus,

      Knox & Laycoels for the Kelator.

      0. 0. Bird, City Attorney, for the Bespondont.
   The opinion of the Court was delivered by

Manning, J.

The relator’s suspensive appeal from a judgment of the respondent was dismissed for insufficiency of the transcript. Baton Bouge vs. Cremonini, 35 An. 367, He applied within the year for a devolutive appeal, which the Mayor, refused, aud having obtained an alternative writ of mandamus from this Court, now prays that the Mayor be peremptorily ordered to grant the appeal.

The answer shows for cause the former appeal and its dismissal, and chai’ges that the relator is attempting by this proceeding to add documents and evidence to the former transcript without having resorted to a certiorari to supply its deficiencies j and that he has prayed for an additional transcript to contain certified copies of the ordinances and resolutions of the town council relating to the subject matter.

The answer is insufficient. These are matters with which the Mayor lias no concern. If the transcript which the relator shall file here be imperfect, he aloue will suffer. The absence of the ordinances, etc,, which he now seeks to supply, caused the dismissal of his former appeal. The appeal he now prays is devolutive, and was asked in time. He is entitled to it.

Let a peremptory writ of mandamus issue as prayed.


author: Pocké, J.

text:
    No. 8910.
    The State of Louisiana vs. William Tolliver.
    If the appellant in a criminal case presents no bill of exception or assignment of errors, and if the record shows that the proceedings and the trial were regular and legal, the judgment of the lower court must be affirmed.
    APPEAL from the Twentieth District Court, Parish of Lafourche. Knobloeh, J.

      J. 0. Fgan, Attorney General, for the State, Appellee.
    Defendant unrepresented in this Court.
   The opinion of the Court was delivered by

Pocké, J.


author: Bermudez, C. J. Fenner, J.

text:
    No. 8818.
    William Garig et al. vs. Bush & Levert et al.
    The provisions of Art. 210 of the Constitution apply only to taxes thereafter to be levied.
    The validity of sales made under Act 107 of 1880, depends upon the validity of the sale or forfeiture under which the property is alleged to have passed to the State.
    In this case, the forfeiture to the State being held to be invalid for defective proceedings, the sale under Act 107 is annulled.
    APPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Sherburne, J.

      G. B. Favrot and L. B. Beale for Plaintiff and Appellee..

      Burgess & Burgess for Defendants and Appellants.
   The opinion of the Court was delivered by

Bermudez, C. J.

On the Rehearing the opinion of the Court was delivered by

Fenner, J.


text:
    No. 8950.
    The State ex rel. Mrs. M. Lewis vs. The Judge of the Second City Court of New Orleans.
    A City Judge lias jurisdiction in an ejectment proceeding, by landlord against tenant, and can determine whether the defendant holds or not under a lease at a price exceeding ope hundred dollars. 34 An. ■1142, reaffirmed.
    • When it is not shown that he has abused, his powers by arbitrarily usurping jurisdiction over the subject matter, a prohibition will not issue.
    APPLICATION for Writ of Prohibition.

      8. Belden & M. B. Flliott for the Relatrix.

      A. J. & O. Villeré for the Respondent.
   The opinion of the Court was delivered by

Bermudez, C. J.


text:
    No. 8942.
    R. and J. Holden vs. The Judge of the Second City Court of New Orleans.
    Under an application for prohibition, the Court will not inquire into the jurisdiction of a court to issue a writ of sequestration, when, prior to the application, the case has passed to final judgment, and the property which had been sequestered had been seized under a writ of fi. fa.

    When property claimed to be exempt from seizure has been seized under a fi. fa., the question of its exempt character is one of mixed law and fact, prpper for the court to pass on, and mere error in such determination, unless gross and wilful, will not furnish ground for prohibition.
    APPLICATION for Writs of Certiorari and Prohibition.

      F. T. Floranee, for the Relator.
    Defendant in propria persona.

   The opinion of the Court was delivered by

Fenner, J.