author: Eenner, J.

text:
    No. 9651.
    The State of Louisiana vs. Dennis Boyd.
    Opinion based on conversations is no ground for challenge of a juror when the juror states that he can try the case according to the law and the evidence, taking the law from the court and the evidence from the sworn witnesses, and»do exact justice, regardless of such opinion.
    Where the defendant has attempted to impeach the testimony of witnesses for the State, the latter may suppoit the same by evidence character for veracity and integrity.
    When the term of the district court has been fixed and begun two weeks before the session of the Circuit Court, and the accused has been tried and convicted before the beginning of the latter term, and when, having no business, the Circuit Court does nob meet, tho district court violates no law in continuing its term for the purpose of disposing of motions for new trial, etc., and passing sentence on the convicted defendant.
    When a defendant has been once arraigned and lias pleaded to an indictment on a former •trial, re-arraignment is unnecessary, and if made, it is no objection that tbo caso baa been previously set for trial.
    APPEAL from the Second District Court, Parish of Bossier. Brew, J.
    If. J. Cunningham, Attorney General, J. A. W. Lowery, District Attorney, and M. C. Blstner, for the State, Appellee.
    Defendant unrepresented.
   The opinion of the Court was delivered by

Eenner, J.

The defendant, under sentence of death for murder, is unrepresented by counsel in this Court. We have, therefore, given to the charges of error presented on the face of the record, that close and careful scrutiny which the gravity of- his situation merits.

1. We find a bill of exceptions to the overruling by the judge of a challenge for cause of a juror on the ground of fixed opinion. After «o me statement as to an opinion formed by him from conversations with citizens living in the neighborhood of the occurrence, not profess-tag to have been witnesses however, the juror stated emphatically “ that he could go into the jury-box as a juror sworn to try this case ■according to the law and the evidence, taking the law from the court and the evidence from the witnesses under oath, and do exact justice between the State and defendant, regardless of any opinion on his mind at this time.”

Unless the judge disbelieved this statement, which he did not, there was no ground for challenge. State vs. Ford, 37 Ann. 443; State vs. McGee, 36 Ann. 206; State vs. Foster, Id., 877; State vs. DeRance, 34 Ann. 187; State vs. Dugay, 35 Ann. 327; Proffatt on Jury Trial, § 186.

2. The exception to tho ruling of the court in admitting testimony as to the character for truth and veracity of two of the State’s witnesses, is not good under the circumstances of this case, where tho judge states that on cross-examination of other witnesses, the counsel for defendant had attempted to impeach or invalidate their evidence. We think this brings the case within the rule laid down by Greenleaf. and supported by the weight of authority: “Where evidence of contradictory statement by a witness or.of other particular facts is offered by way of impeaching his veracity, his general character for truth being thus in some sort put in issue, it has been deemed reasonable to admit general evidence that he is a man of strict integrity and scrupulous regard for truth.” 1 Greenleaf Ev. § 469.

It would have been more satisfactory if the judge had stated, with greater peculiarity, the character of the previous attenij)t to impeach; but we must assume that it supported his ruling in absence of anything to show the contrary.

3. The objection to the legality of tho term of court on the ground that it conflicted with the term of the Circuit Court was untimely and untenable. The term had been called and opened two weeks prior to the beginning of the term of Circuit Court and accused had been tried and convicted. At the time when the Circuit Court should have opened, nothing remained but to dispose of motions in arrest or for new trial and to pass sentence. It was only at this time that the objection was raised. But, whatever objection might exist to the continued session of the court during a term of the Circuit Court, is disposed of by the fact that the latter court had no business and held no session. No conflict, therefore, arose, and neither Art. 99 of the Constitution or Act 7 of 1880 were violated.

4. The objection that he had not been arraigned before fixing of the case for trial, is disposed of by the fact that it was urged only after trial. Besides, he had been arraigned and had pleaded to the indictment on a former trial and re-arraignment was unnecessary. State vs. Johnson, 10 Ann. 456; see also State vs. Kane, 32 Ann. 999.

Other objections -to the regularity of the proceedings in drawing thevenire being urged for the first time on motion for new trial, are too late, and they have otherwise no merit. ■

After careful examination of all the points suggested by the record, we are satisfied- that no aid of counsel could have benefited defendant and he must submit to his fate.

Judgment affirmed.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 9561.
    Citizens’ Bank of Louisiana vs. N. M. Benachi.
    Defenses of ■want of consideration, extinguishment by remission, prematurity resulting from' inexpiration of extension of time granted, against a mortgage note sued on, are inconsistent and inadmissible.
    An injunction on those grounds, tlie evidence sustaining neither, is properly dissolved.
    An appeal from tbe judgment dissolving is frivolous, and damages are allowable.
    APPEAL from the Civil District Court for the Parish of Orleans-Houston, J.

      Menry 0. Miller for Plaintiff and Appellee.

      A. B. Philips for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

The defendant appeals from a judgment dissolving an injunction obtained by him, arresting executory process issued against real estate, mortgaged by him to secure the payment of the note sued on.

The grounds upon which the writ issued, as set forth in the original and supplemental petitions, are: want of consideration; extinguishment by remission; prematurity resulting from inexpiration of extension of time.

It suffices to say that not only are the defenses inconsistent, but that the record is barren of evidence in support of either.

The appellee has prayed for damages for a frivolous appeal, and is-entitled to recover same.

The claim bears eight per cent interest, and the debtor is to pay five per cent attorney’s fees: The claim is for $3,298. We -think one hundred dollars a reasonable allowance for such damages.

It is therefore ordered that the judgment appealed from be affirmed,, and that appellee recover further one hundred dollars for a frivolous-appeal and costs in both courts.


author: Poché, J.

text:
    No. 9698.
    The State ex rel. B. D. Wood & Bros. vs. Judge of Fourth City Court of New Orleans.
    In the exercise of its supervisory juTisdidion the Supreme Court cannot entertain a com* plaint against an inferior court, which practically involves the correctness of a judg* ment rendered hy said court, which had unquestioned jurisdiction ratione materia et persona over the cause, or the correctness of any oí its rulings in such a cause, when it appears that the rules of law and practice governing the triol of causes have been* observed.
    Such an attempt would be an unjustifiable assumption of jurisdiction and powers not granted-by the Constitution, or sanctioned by law or jurisprudence.
    PPLICATION for Certiorari and Prohibition.

      IT. Iienshaw and W. S. Benedict for the Relators.

      I. M. Gill for the Respondent.
   The opinion of the Court was delivered by

Poché, J.

The complaint of the relators is substantially that they are being harassed, through the instrumentality of the respondent judge by one James Sweeney who has of late sued them in said court on a series of illegal claims, which have been recognized and enforced by judgments in said court.

They allege that the said Sweeney, in order to avoid appeals from the judgments of the respondent judge, has maliciously and wickedly subdivided his illegal claim against them into fragments sufficiently small as to be unappealable, and for which he has brought a multiplicity of suits against them, which suits are swiftly clecided by the respondent judge in favor of said Sweeney; and that, although requested thereto, the judge has arbitrarily refused to order that several of said' suits then pending be consolidated, under which order, if made, they would have been enabled to bring said cases thus consolidated to some superior tribunal, where they could have obtained justice.

Hence they invoke relief under our supervisory jurisdiction.

They concede that the respondent’s court had jurisdiction in each of the suits brought against them ratione materice et personas, and the records of the suit in question, which have been sent up in obedience to our preliminary writ of certiorari, show that in each suit citation was duly issued and served on the defendants therein; that they joined issue by answer; that time was given for the preparation of their defense; that on the day fixed for trial they were heard by counsel; that their witnesses were also heard, and their testimony considered; that-judgment was rendered only after a legal trial; that their motion for a new trial was heard, considered and in due course overruled; in a word, that all the forms and requirements of law were observed and followed, and that the proceedings were all regular under every possible test of the laws applicable in the premises.

The complaint is thus reduced to the charge that the judge has decided these cases against the law and the evidence, and that, under our supervisory powers, we must have the legal authority, and that, under our constitutional prerogatives, it is our duty by some process, which is not even suggested, to relieve these relators from the effect of such iniquitous proceedings. The facts in this case develop no exceptional circumstances.

Such an attempt would simply involve us in an extraordinary proceeding looking- to the reversal of judgments which are avowedly unappealable in character, and emanating from a court over which we have no appellate jurisdiction.

It may be, as alleged by relators, that they have been unjustly condemned to pay sundry amounts which they do not legally owe, and that the respondent judge has erred in all his rulings against them, but, as he had jurisdiction in the premises, and as he has violated no rule of law in the manner of conducting the trials or in rendering his judgments, we would commit a still greater -wrong if we attempted to interfere in the matter without legal or constitutional warrants.

It appears to us that the evils which relators’ counsel so glowingly depict cannot be remedied by the judiciary department of the State government.

In the case of Berthoud, 34 Ann. 782, we said:

“It may very well be that this judgment is in flagrant violation of law, will work irreparable injury, and visit a great hardship on the corporation affected by it, but under our well defined jurisdiction we are powerless to relievo the relator, and have no more authority to revise that judgment than any other judgment in an unappealable case, falling, as this undoubtedly does, within the jurisdiction of the court which rendered the judgment.”

The line of demarcation is thus sharply defined between the cases to which our supervisory jurisdiction can extend, and those in which the judgments cannot be disturbed by us, so that we have no option but to decline our inteiference in the present controversy. State ex rel. Zuberbier and Behan vs. Judge, 33 Ann. 16; State ex rel. Valeton vs. Skinner, judge, 33 Ann. 255; State ex rel. Unbehagen vs. Nephler, J. P., 35 Ann. 365; Troegel vs. Judge, 35 Ann. 1164.

It is therefore ordered that the preliminary writs herein issued b0 recalled and cancelled, and that the writs of certiorari and prohibition herein prayed for be refused at the cost of relators.


author: Todd, J.

text:
    No. 9377.
    Mrs. Adele Bory vs. N. King Knox.
    An action to annul a judgment must be brought within a year of its rendition where the suit is based upon alleged frauds or ill-practices or within a year of the discovery of the same.
    Where a party is duly notified of such alleged frauds and ill practices orally or by writing as by means of a petition.duly served on him, and refuses to believe the oral coramuni* cation or to read the wiitten notice, ho will be bound, ho will be held to be duly notified iis if he had in fact taken thorough personal cognizance of the information imparted.
    PPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Sherburne, J.

      K. A. Gross for Plaintiff and Appellant:
    3.A mamed woman cannot be authorized by the judge to stand in judgment, Unless citation is served on «the husband, or an attempt to cite him. made, 24 Ann, 141; 9 Ann. 12; Duranton, Yol. 2, Ho. 446.
    2. She can be authorized by the judge of her domicile alone. 12 L. 71; 31 Ann. 174.
    3. Obligations, created by a manied woman duiing the community, presumed to bo for benefit of her husband or tho community. 7 Ann. 568; 14 Ann. 712.

      4. If she is .a public merchant, it must bo shown that they arise out of her business as such; 6 Ann. 56; especially when slie is not separate in jiropedy.
    5. She cannot waive protest without her husband's authorization. 10 L. 161.
    C. Decree of judge authorizing her to mortgage her property, cannot give validity to past transactions. 24 Ann. 89; 29 Ann. 123.
    7. A judgment absolutely null, lor want of partios competent to stand in judgment, is not protected by presciiption. 23 Ann, 98; 5 Ann. 218; 21 Ann. 663; 23 Aim. 336.

      White & Saunders and 2P. G. Zacharie on the same side.

      David JSÍ, Barrow and Knox <& Laycoclc for Defendant and Appellee :
    1. Where the ovidence shows a defendant had lull knowledge of all the facts of her transactions, on which a judgment is based, before rendition of the said judgment, and more than a year has elapsed, she cannot attack tho judgment for fraud.
    *2. Where the evidence shows tho defendant was in possession of all accounts, notes, etc., on which settlements had been made, on which a judgment had been obtained, and slie was pub on her inquiry by service on her of a petition of a creditor attacking said judgment for fraud, and sbo makes no investigation until a year after the judgment is ren-* dered, the action to annul is prescribed. 18 Ann. 280; 18 Ann.507; 8La.l01; 2 La. 180; 15 Ann. 273.
    3, Whore a uominal sale is attacked as simulated, and the nominal vendee set up the sale was intended as a security for the payment of a just debt, the actual contract will be enforced. 32 Ann. 94; Banner vs. Mangham, 31 Ann. 343.
   The opinion of tlie Court was delivered by

Todd, J.

This is a suit brought by Mrs. Adele Bory, the defendant in the case of N. King Knox vs. Mrs. Adele Bory, No. 383 on the docket of said court, to annul the judgment rendered in the case, being the same judgment attacked by Paul Bertrand in the suit just decided.

The grounds of nullity are identical in the two cases. They embrace alleged vices of form and proceedings, such as the want of legal authorization to defend said suit and the want of jurisdiction in the court which rendered the judgment; and alleged frauds and ill-practices in procuring the judgment, all of which were mentioned in the opinion delivered in the case of Bertrand vs. Knox et al. referred to.

Among other defenses to the suit, the plea of prescription of one year was interposed, which was sustained by the judge a quo and the suit dismissed.

The judgment sought to be annulled ,was rendered on the 18th of' November, 1882. This suit to annul it was filed on the 1st of March,. 1884, more than a year after its rendition. *

The plea of prescription is not applicable to the alleged vices of form and proceeding set up in the petition, since such prescription is no bar to the action of nullity on such ground.

There is, however, no merit in the contention with respect to those-alleged vices.

The husband of Mrs. Bory was absent in France when the suit was-instituted.'Mrs. Bory was a public merchant at the time, having a separate interest which she conducted alone.

The citation to her issued in suit 382 on the 2d of October, 1882, and the order of the judge authorizing her to defend the suit and stand in judgment bears the same date. This was sufficient in the absence of the husband. This order was indorsed on the petition and must be presumed to have been made before citation issued, and was doubtless copied with the petition that was served on Mrs. Bory. C. P. Art. 118, Brown, Syndic, vs. Ferguson, 4 La. 259.

Relative to the nullities resulting from alleged fraud and ill-practices, charged, and to which the plea of prescription is specially applicable, we have seen that the suit of nullity was instituted more than a year after the rendition of the judgment assailed.

The requirement of the law is that such suit must be brought within the year from the rendition of the judgment or the discovery of the frauds or ill-practices alleged. Mrs. Bory asserts that the suit was filed within a year after such discovery.

It is proved that Mrs. Bory was informed by Bertrand of the alleged frauds on which her action is based before his (Bertrand’s) revocatory action against the judgment was filed. She was also made a party to this suit of Bertrand vs. Knox, and in the petition all these alleged frauds and grounds of nullity are fully set forth, which she (Mrs. Bory) afterwardspidapted as her own, and that this petition was personally served on her. This was certainly notice to her. It matters not that-she did not believe Bertrand or did not read the petition..

If an opportunity is afforded to a party to know and to learn about a certain matter bearing on Ms interest and he fails or refuses to profit by it, if he closes Ms eyes to the notice spread before Mm and shuts Ms ears to oral information directly imparted to Mm, the law will hold him as bound by the same, and as fully notified as if he had taken thorough personal cognizance at the time of the information imparted and of the notice given. 6 Ann. 800; 18 Ann. 507; Story Eq. Jurisprudence, Sec. 887. We have given this point an attentive consideration, and we see no possible way or means by wliich Mrs. Bory can defeat this plea of prescription or avoid its effect.

This suit also embraced a demand in revendication to recover the property known as Last Chance in which she was successful, judgment in this regard being in her favor and properly so since the pretended transfer or sale to Knox was admitted to be a simulation.

It is to be noted that since this appeal has been pending, the defendant, Knox, has died and Ms legal representatives have been made parties.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be affirmed. Costs of the lower court to be paid by the defendant and of this Court by the plaintiff and appellant.


author: Manning, J. Todd, J.

text:
    No. 9595.
    The State of Louisiana vs. Edward Molisse.

      lies gestee aro events speakingfor themselves through the instinctive and spontaneous words and acts of participants, and not the words of the participants when narrating the events. The distinguishing characteristic of these declarations is that they must he necessary incidents of the criminal act or immediate concomitants of it, and that they are not due to calculated policy.
    'Timo does not absolutely and alone determine whether a statement is a part or not of the res gestee. 27o inflexible rule as to the length of the interval between the act of killing and the declaration of the victim can be formulated. The facts of each case must speak for themselves.
    If the declarations are unconsciously associated with and related to the homicidal deed, even though separated from it by a short time, tliey are evidence of the character of the deed and are a part of the res gestee.

    Where the deceased, ten minutes after he had been fatally shot, said to a witness, “if he had not been so willing to fight he would not have been shot by the defendant,” the statement is a part of the res gestee and should have gone to the jury.

      APPEAL from the Criminal District Court for the Parish of Orleans. Homan, J.

      M. J. Cunningham, Attorney General, and Lionel Adams, District. Attorney, for the State, Appellee.

      D. C. Moise, A. A. Ker and J. Luvigneaud for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

The defendant appeals from a sentence to five years” imprisonment at hard labour upon a conviction of manslaughter, and-presents but one question for our review.

He offered one McGruder as a witness to prove that the deceased,, ten minutes after he had been fatally shot, said to the witness “if he had not shewn himself so plucky and willing to fight he would never have been shot by the defendant.” The judge excluded the testimony because “it was not under the circumstances part of the res gestee and. was not said by the deceased under the sense of impending dissolution .”

“Bes gestee,” says Wharton, “are events speaking'for themselves through the instinctive words and acts of participants, not the words- and acts of the participants when narrating the events but what is said or done by participants under the immediate spur of the transaction,, because it is the transaction which then speaks. In such cases it is not. necessary to examine as witnesses the persons who, as participators in the transaction, thus instinctively spoke or acted. What they’' did or said is not hearsay; it is part of the transaction itself. And as long as the transaction continues, so long do acts and deeds emanating from it become a part of it, so that in describing it in a court of justice they can be detailed. The question is, is-the evidence offered that off the event speaking through participants, or that of observers (or partiepants) speaking about the event. In the first case, what was said can be introduced without calling those who said it; in the second case,, they must be called. Nor are there any limits of time w’itliin which the res gestee can be arbitrarily* confined. They vary in fact with each particular case. * * * As soon as we pass the line which distinguishes between the transaction talking of itself and talking as modifying the transaction, in other woids, as soon as we pass the line bctw’een the time of the transaction and the time that follows it-, we have no limits that can be imposed. If we are to receive declarations made ten minutes after a transaction, we must receive declarations, made ten years afterwards.” Whart. Cr. Ev., sec. 262.

This would exclude the testimony offered, but in the next section the author proceeds:

“The distinguishing feature of declarations of this class is that they should be the necessary incidents of the litigated act; necessary in tliisv sense, that they are part of the immediate concomitants or conditions of such act, and are not produced by the calculated policy of the actors. They need not be coincident as to time if they are generated by an excited feeling which extends without break or let-down from the moment of the event they illustrate. In other words, they must stand in immediate causal relations to the act and become part either of the action immediately producing it, or of action which it immediately produces. Incidents that are thus immediately and unconsciously associated with an act, whether such incidents are doings or declarations, become in this way evidence of the character of the act. Uuder the rule before us, evidence in homicide trials has been received of the exclamations of the defendant at the time of the attack; of the cries of the deceased and of others assaulted at the same time; of statements of the deceased, at the time or so soon afterwards as to preclude the hypothesis of concoction or premeditation, charging the defendant with the act.” Sec. 263.

And, under that, the testimony is admissible.

The rule is that time does not determine absolutely whether a statement is part or not of the res gestee, although it is a factor and an important factor in estimating whether it is, and therefore it is not correct to say that declarations made ten years after an event can as well be received as those made ten minutes after if. If the acts or declarations are unconsciously associated with and related to the homicidal deed, oven though separated from it by a short time, they are evidence of the character of the deed and a part of the res gestee. No inflexible rule as to the length of the interval between the act of killing and the act or declaration of the person killed can be formulated. In that matter the facts of each case stand alone and must speak for themselves. In each case the particular facts and incidents must be. considered as an independent group, and the judge must determine whether they fall within or without the operation of the rule. And this is what Greenleaf means when he says the trial judge must determine the admissibility of the evidence, and a large discretion is allowed him. He even says the ruling of the trial judge thereon is conclusive. Cr. Ev. sec. 108.

That is not so — certainly not under our uniform practice. His ruling:, is reviewable by this Court, or we should not now be considering it.

Tliere are several cases in tlie books that justify the contention of ■the defendant in this appeal.

In Massachusetts, the deceased wounded and bleeding ran from her room where the wound was inflicted to the room occupied by the witness in the same house but in the story above, and knocked at the door, crying murder. On being let in, the deceased asked the occupant of that room to go for a doctor and a priest, saying she was killed. This declaration was admitted, the court ruling that although there was such interval as to allow the deceased to go from her room up stairs to another, it was sufficiently soon after the occurrence to be a part of the res gestee. Com. v. McPike, 3 Cush. 181.

The English courts have ruled in like manner under resembling circumstances. Thus, a prisoner was charged with manslaughter in killing the deceased by driving a cabriolet over him. A person, who saw the cabriolet drive by but did not see the collision, went up to. the injured man immediately afterwards, attracted by a groan, when he made a statement to the witness of the manner in which he had been run over. It was held to be a part of the res gestee. Rex v. Foster, 6 C. & P. 325. In the same line see Thompson v. Trevanion, Skin. 402.

Aman was killed by a blow from a stick. A girl heard his cry and going to him asked what was the matter and he said he had been robbed by the man who had walked with him. This man was the party indicted for the murder, and the girl’s evidence was admitted. Reg. v. Lung, 6 Cox C. C. 477.

The witness in this case should have been permitted to testify. The statement of the deceased to him was soon enough after the homicidal act and sufficiently connected with it to be an immediate concomitant of it and not a statement proceeding from or suggested by a calculated policy, and was therefore a part of the res gestee.

But the State insists that even if it was admissible, it could not affect the verdict. The prosecution was for manslaughter and the conviction was of manslaughter. If the jury had heard the deceased’s statement that he would not have been shot if he had not been so willing to fight, it could not have reduced the verdict of manslaughter to one for a less offence.

It may be that the jury would so have found, but it is not for us to find so for them. The evidence should have gone to them. They alone have the right to weigh it.

It is therefore ordered and decreed that the sentence upon the prisoner and the verdict of the jury are set aside, and the case is remanded to the lower court for a new trial.

Todd, J., dissents.

Dissenting Opinion.

Todd, J.

I do not consider tlie declaration referred to a part of the res gestee, and even if it were, that it was of sufficient importance or significance as to have affected the conclusion reached by the jury.

I therefore dissent.


author: Fenner, J.

text:
    No. 9560.
    William Mackesy vs. Theodore Shultz et al.
    In a direct action to revoke a sale, containing the requisite averments and prayer for the revocatory action, and where the sale is alleged to be “simulated and fraudulent,” the judge is authorized to giant the relief if the evidence establishes either simulation or fraud, or both. Affirming Johnson vs. Mayer, 30 Ann. 1203.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      B. BeGrety and W. B. Lancaster for Plaintiff and Appellee.

      Gluts. 8. Bice for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

This action is brought by plaintiff, a judgment creditor of defendant Shultz, to annul and revoke a sale made by said Shultz to Ms co-defendant, Annie Kraemer, and to subject the property in the act of sale described to the satisfaction of his judgment.

The substantial allegations are that the sale was “simulated and fraudulentthat it was made with the purpose and intent of defrauding the creditors of Shultz, participated in by both parties with full knowledge of the total insolvency of Shultz; and the prayer is for judgment annulling and revoking said pretended and fraudulent sale, and subjecting the property to petitioner’s said judgment and for general relief.”

Under the general issue voluminous testimony was received without objection, the result of which, according to the opinion of the judge a quo, was to establish that the sale, even if not simulated, was clearly in fraud of creditors and subject to revocation on that ground, and he gave judgment accordingly.

Appellant contend» that the judgment should be reversed for error of law, on the ground that the petition presents exclusively an action “ en declaration ele simulation,” and that, under such issue, a judgment revoking the contract could not be rendered if, however, fraudulent, the contract was found to be real and not simulated.

We cannot sustain this position. Wo find in the petition every allegation essential to sustain the revocatory action proper and a prayer exactly appropriate to the relief authorized in such an action. If every word charging simulation were stricken from the petition, it would still retain all the elements of a revocatory action.

With that vigorous common sense characteristic of him, Judge Spencer, as the organ of the court, in a case quite similar to this, brushed away the technical quibbling upon which defenses of this kind rest, in the following pertinent language:

“When sales are attacked by a direct action, there is no reason why the paity may not demand relief from them by alleging simulation or fraud, or both. We are not disposed to hamper the remedies of creditors, who resort to direct actions by doubtful technicalities. In the class of cases now under consideration, the widest latitude should be given them, for they are necessarily to a great degree uninformed as to the precise relation existing between their debtor and his co-adjutors in wrong-doing — often they are compelled to strike in the dark. If the purchaser’s title is an honest one, it is better for him that the double test be applied in one instead of two suits. The prayer of plaintiff’s petition is broad enough to cover our decree, whether we hold the sale to be simulated or fraudulent.” Johnson vs. Mayer, 30 Ann. 1203.

If the object of the law be, not to screen, but to uncover, fraud, these utterances are in full consonance with its spirit, and as they commend themselves to our sense of justice as well as to our reason, we adopt and reiterate them.

The case of McAdam vs. Soria, 31 Ann. 864, differs vitally from the foregoing in two particulars, viz: 1st. It was not a direct action, but a seizure under fi. fa.; 2d. The pleadings did not contain the averments requisite to the revocatory action.

As the opinion did not profess to overrule or even refer to the case of Johnson vs. Mayer, so recently decided by the same court, we cannot give such effect to the dicta contained therein which are in apparent conflict, but must consider their application as restrained to the case in hand.

Under the doctrine of Johnson vs. Mayer, we consider the judge was fully authorized to grant the relief on the ground of either “simulation or fraud, or both.”

On the merits of the case, we rise from an attentive reading of the evidence with convictions entirely in harmony with those expressed by the judge a quo, and as we can add nothing to his masterly analysis, and no purpose would be aecomidished by its reproduction, we shall content ourselves with affirming the judgment.

Judgment affirmed.


text:
    No. 9599.
    The State of Louisiana vs. Ed. Scott.
    A motion in arrest of judgment is well founded when it is levelled at an indictment which charges that the accused “feloniously did shoot with a dangerous weapon with intent to commit murder.” Such indictment should have charged besides that the act had been done “wilfully and with malice aforethought.
    PPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Burgess, J.

      21. J. Cunningham, Attorney General, and L. JD. Beale, District Attorney, for the State, Appellee:
    The granting of a new trial, where the sole ground of the motion is that the verdict is contrary to the law and the evidence, is within the discretion of the lower court; and its action is not subject to review by this Court. Testimony that a prosecuting witness had told a different story out of court, from that sworn to hy him on trial, could legally he offered for no other purpose except to impeach said witness, and in order to give such testimony to the jury, the legal foundation must he laid to impeach.
    OhT MOTION IhT ARREST.
    “Under an indictment for shooting with intent to commit murder, it is unnecessary to charge specifically that the accused did wilfully, feloniously and of his malice aforethought” shoot, etc. It is pot defective where the words “feloniously and with intent to commit murder” are used.
    Those words are amply sufficient under the Statute. 36 Ann. 336. “In an indictment for an assault with intent to commit an offense, the same particularity is not necessary as is required in indictments for the commission of the offense itself.” Wharton’s Criminal Law, § 644; 37 Ann. 467-8.

      T. Jones’’Cross for Defendant and Appellant:
    The qualification of the intent as felonious merely, without the addition of wilfully and of malice aforethought, “covers only the crime of manslaughter, and does not describe the intent essential to constitute murder.” 36 Ann. 100.
   The opinion of the Court was delivered by

Bermudez, C. J.

The defendant was indicted for shooting with in-' tent to commit murder, found guilty and sentenced to two years at hard labor. He appeals.

The record contains a bill of .exception to the refusal of the judge to grant a new trial and a motion in arrest of judgment.

In the motion for a new trial complaint is made that important testimony was not given to the jury by reason of an error of the attorney for the defense, who had misunderstood the ruling of the judge touching its admission.

We deem it unnecessary to pass upon this ground of complaint, as we rest our conclusion on the other.

The -motion in arrest charges that the indictment is defective and illegal.

1. Because it does not contain the word “wilful.”

2. Because neither the shooting nor the intent is charged with having been done with malice aforethought.

The accused is prosecuted under Sect. 791, R. S., and charged with intent to commit, murder. The indictment expressly charges that the defendant “feloniously did shoot with a dangerous weapon with intent to commit murder”

The State claims that the case falls within the ruling in 36 Ann. 336, while counsel for the accused distinguishes between the cases to show that they do not clash.

Considering the rulings in 33 Ann. 922; 36 Ann. 100, and in 37 Ann. 776, and Sect. 1048 of the Revised Statutes, we regard that invoked by the State as merely constituting res judie,ata, and do not propose to repeat it.

We therefore conclude that the indictment is defective in not charging that the shooting was done also wilfully and with malice aforethought.

It is therefore ordered and decreed that the verdict and sentence be avoided, annulled and reversed, and that the indictment be quashed, the accused to remain in custody to await the further action of the District Court of the Parish of East Baton Rouge-


author: Poceié, J.

text:
    No. 9556.
    Carondelet Canal and Navigation Company and Bertrand Saloy vs. Otto Touché and Frederick Hollander.
    The dismissal of an injunction suit on an exception is equivalent in law to a judgment decreeing tlie injunction to have been wrongfully obtained.
    An action in damages following such a judgmen t, by the defendants in the injunction suit, involves but one question, and that is tbe quantum of damages to be allowed.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      M. I). Ogden and Blane & Butler for Plaintiffs and Appellees.
    A. A. Ker and J. lhimgneaud for Defendants and Appellants.
   The opinion of the Court was delivered by

Poceié, J.

This is an action for damages alleged to have been caused by a writ of injunction sued out against plaintiffs by the defendant, Touché, and decided to have been wrongfully obtained.

The demand is for the sum of two hundred and fifty dollars, amount of the iEijunction bond, against Touché as principal and against Hollander as surety in solido, and against Touché alone in the additional sum of $2,255 25 for actual costs and for exemplary damages.

Both defendants have appealed from a judgment against them in soliólo in the sum of two hundred and fifty dollars. Plaintiffs pray for an amendment so as to increase the judgment against Touché individually to the full amount of their demand against him.

Under the pleadings, no judgment in excess of $250 could possibly have been or be now rendered against the defendant, Hollander, the surety on the injunction bond; therefore, we have no authority to examine or revise the judgment rendered against him, and hence we cannot consider his appeal.

As to the principal defendant, the record shows that on exception his suit against the canal company was dismissed, and that as to the other defendant, Saloy, he was OE’dered to amend his pleadings within a reasonable time, failing in which his action against Saloy was also dismissed. . .

Under this condition of things, the legal conclusion is that the writ of injunction had been wrongfully obtained, and in the present controversy the only question to be discussed is the amount of damages sustained by the original defendants in injunction, plaintiffs herein. Barrimore vs. McFeely 32 Ann. 1179.

The record shows that plaintiffs paid the sum of $250 as counsel fees for their defense in the injunction proceedings; and this is the amount allowed as damages by the district judge.

We have searched in vain from the evidence any proof of additional damages caused to plaintiffs by the injunction; hence, we find no grounds or authority to justify the increased allowance prayed for by plaintiffs.

We do not feel disposed or even authorized to inflict exemplary damages on a party wbo conceived that he was legally entitled to the writ of injunction which he had applied for.

It is therefore ordered that the appeal of Frederick Hollander be dismissed at his cost, and that the judgment against Otto Touché be affirmed, with costs in both courts.


author: Manning, J.

text:
    No. 9611.
    The State of Louisiana vs. Charles Madlar alias Prussian Charley.
    Motions for appeal in criminal cases tried in Orleans parish, must be filed within ten days after sentence. The law regulating criminal appeals expressly prohibits granting them after ten days have elapsed from sentence.
    Appeals in criminal cases from Orleans must be made returnable within ten days after granting them.
    The law regulating appeals in criminal causes cannot be relaxed when its provisions are plain and its requirements absolute.
    APPEAL from the Criminal District Court for the Parish of Orleans. Balcer, J.

      M. J. Oumiinghwn, Attorney General, and Lionel Adams, District Attorney, for the State, Appellee.

      J. G. MaeMahon for Defendant and Appellant.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Manning, J.

Sentence was pronounced on the defendant on August 26, 1885. He appealed by motion on November 30th following.

Motions for appeal in criminal causes tried in Orleans parish must be filed within ten days after sentence. Acts 1878, p. 56.

Objection was made by the district attorney to the filing of the motion on the ground that it came too late, which the court overruled. It should have been sustained. The 3d section of the Act of 1878 expressly prohibits granting an appeal after ten days have elapsed.

The' appeal was granted November 30, 1885, returnable within ten days from that date. It was filed in this court December 14th. following.

Appeals in criminal causes must be made returnable within ten days after, granting them. This requirement was complied with by the judge but the appeal was not lodged here until after that time had elapsed.

The law regulating appeals in criminal causes cannot be relaxed by construction when its provisions are plain and its requirements absolute. The public has an interest in the administration of the criminal law, and in its interest as well as those of individuals rules' of practice must be adhered to. State vs. Jenkins, 36 Ann. 865.

The appeal is dismissed.


text:
    No. 9550.
    Simeon Belden vs. The Butchers’ Union Slaughter-house Company.
    Dismissal of a suit, on motion of defendant’s counsel, because of failure of plaintiff to furnish, bond for costs as required by an order of the court, does not constitute such voluntary abandonment by plaintiff as will defeat the operation of the suit to interrupt prescription.
    The charge that plaintiff had made a partial assignment of his claim to a third person, is not satisfactorily proved; and, besides, the defendant having received no notice of such transfer from the party, and not having assented to such division of its debts, is fully protected and has no interest in the question.
    The right of plaintiff to recover value of services rendered is recognized, and value fixed at 81500.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      Thos. J. Semines for Plaintiff and Appellee:
    1.No partial transfer by a creditor hinds the debtor, unless he assents thereto, and until such assen-t the partial transferee oannot sue. 8 La. 536; 3 R. 432.
    2.In such case the equitable interest of the partial transferee is like that of a dormant* partner represented by the original creditor. 9 Ann. 74.
    3.When one party wrongfully puts an end to the contract, the other can recover value of his services. 110 U. S. 345.

      JB. M. Forman for Defendant and Appellant:
    1.Where six distinct and separate causes of action are cumulated in one suit, plaintiff should state when each cause of action arose, and how much he claims on each cause of action C. P. 172.

      2.(a) A suit for attorney’s fees is prescribed in three years. C. C. 3538. (b) A previous suit not involving the same identical cause of action cannot interrupt prescription; (c) nor does a previous suit interrupt prescription when either abandoned or discontinued. C. C. 3519; Smith vs. Gibbon, 6 Ann. 684; Bell vs. Elliott, 8 Ann. 453; Denistonn vs. Rist, 9 Ann. 464 ; Elliott vs. Brown, 13 Ann. 579, (d) A suit filed in 1881, and bond for cost promptly ordered, which was never given and never brought to issue, and dismissed in 1884, is abandoned.
    3.A corporation can only contract with and employ counsel by its board'of directors, acting by resolution. Bright vs. Metairie Cemetery Association, 33 Ann. 58.
    4.All parties in interest must be made parties to the suit, and where a plaintiff has assigned his claims he can no longer prosecute in his own name without joining the assignee. * ’
    5.When tho original paper (a private writing) is not in the possession of, nor under the control of, the party offering it, parol evidence of its contents (and a fortiori an examined and certified copy) was admissible. Davidson vs. Davidson, 10 B, Monroe (Ky.), 115; Walter vs. Crabbs, 8 B. Monroe (Ky.), 11; Moody vs. Commonwealth, 4 Metcalf (Ky.),-1; Ralph vs. Brown, 3 Watts & Sergeant (Pa.), 395; Linday vs. Thomas, 26 Ga. 537; Shorter vs. Sheppard,» 33 Ala. 648; Brown vs. Wood, 19 Mo. 475; Lyncl. vs. Judd, 3 Day (Conn.), 499; Elannigan vs. Lerhert, Bright (Pa.), 611; 3 Allen (Mass.), 518; Riggs vs. Taylor, 9 Wheaton, 484; Hyde vs. Hepp, 11 R. 159 • Montgomery vs. Routh, 10 Ann. 316. fi. Where litigation has been brought on by an attorney’s bad advice, and his professional labors have been in no way beneficial, he is not entitled to recover.
   The opinion of the Court was delivered by

Fenner, J.

The plaintiff, an attorney at law, claims, in this action, compensation for professional services rendered to the defendant corporation in 1880 and 1881.

From a judgment against it for $3,000 the defendant appeals, and claims the reversal thereof on sundry grounds.

1st. It is urged that an exception to the vagueness and uncertainty of the petition was erroneously overruled. The plaintiff claimed a lump consideration for services in various distinct suits and proceediugs.

Considering'tliatfhe was employed as counsel of the company under a general retainer; that the object to be attained by the various services was the single one of maintaining defendant’s right to conduct its business in the'parish of Orleans; that this was the object and purpose of plaintiff’s employment, and the services were all subsidiary thereto, we think the plaintiff was justified in treating the whole as substantially one service and claiming a lump consideration therefor.

2d. The prescription of three years is urged in bar of plaintiff’s claim.

We consider the term of prescription to have begun at the date of plaintiff’s discharge, under the facts of this case, where it is shown that payment for the services was to he postponed until the company had succeeded, which had not yet occurred.

The discharge took place on March 28,1881, and this suit was brought only in January, 1885. But on the 29th of November, 1881, plaintiff brought a suit on the same cause of action and cited defendant therein, which suit continued pending until June, 1884, when it was dismissed on motion of defendant’s counsel by reason of plaintiff’s failure to comply with an order of the court requiring him to give bond for costs.

We cannot; consider plaintiff’s failure as such voluntary aba-ndoument^of the suit as is contemplated by C. C. 3519. The record shows that he obtained several extensions of the delay allowed him for furnishing'the bond, the last as late as the 5th of June, 1884, and it is faiteo presume he was unable to comply.

Prescription was suspended during the pendency of that suit, in so far at least as the causes of action now urged were embraced therein, The only one now presented, which was not then set up, is the service rendered in drafting defendant’s act of incorporation; and as this is only one of several services, and as the judgment is for only one-half ofJthe^aniount^ claimed, the latter may well stand, if otherwise sustained as to its amount.

3d. It is urged that plaintiff was never employed by defendant.

This plea is totally inconsistent with his frequent appearances in judicial proceedings, with the knowledge and co-operation of defendant’s officers, and with the formal resolution adopted by the board of directors on March 28, 1881, reciting that “Mr. Simeon Belden has neglected the proper prosecution of the business entrusted to him by this company, and he is hereby discharged as our attorney and no longer has any authorty to represent the company,” etc.

We take occasion to say that the record does not disclose such neglect as would deprive plaintiff of his right to compensation, at least for past services.

4th. Another defense is that plaintiff, under his own agreement, was only to be paid after the company had succeeded in establishing its business.

We find that this agreement was contingent upon his being continued in the employment of the company; and the latter, having discharged him, cannot claim its benefit, but must respond for the value of services rendered.

5th. It is charged that, prior to the suit, plaintiff had assigned his claim for these fees to one Armstrong, and hence could not stand in judgment.

An attempt was made to prove an assignment to the extent of $1000, but we think the evidence is entirely insufficient; but, at all events, the company having received no notice of such assignment, and having never consented to such a division of its debt, and having submitted the matter to the court, will be amply protected and has no concern in the question. See Miller vs. Brigot, 8 La. 536; King vs. Hazard, 5 N. S. 194; Kelson vs. Beaman, 6 La. 90.

6th. This leaves for our determination only the question of the quantum meruit of the services.

We have given attentive consideration to the nature and extent of the services as'exposed by the record, and conclude that their value has been over-estimated by the judge a quo. It is- true the questions involved were important, but the plaintiff’s services did not extend to the point of having them determined in favor of defendant. The suits with the Board of Health were unquestionably the result of bad advice and occasioned no benefit to the client.

The remaining suits were properly brought or defended, and the issues were framed therein in shape to provoke a determination of the momentous questions involved; and, in the meantime, to frustrate the efforts of die Crescent City Slaughter-house Company to enjoin them from erecting their works and preparing to do business.

In May, 1881, about a month after plaintiff’s discharge, this Court rendered its decisions removing every obstacle out of the way of defendant in the prosecution of its business. 33 Ann. 930, 934.

We have not omitted to notice that the last cited case does not figure as one of those for which the fees herein are claimed, but that does not affect our view of the case.

Although the Crescent City company afterwards obtained a new injunction in the Federal Court, that was dissolved by the Supreme Court of the United States, and defendant has recovered judgment for heavy damages on account of its wrongful issuance.

We considet that the services of defendant have contributed to the accomplishment of these results and that he is entitled to substantial compensation therefor.

Considering the importance of the questions, the number of the suits, the frequency and variety of the services, all of which must have occupied much of his time and study during the year and more, over which they extended, and yet with due regard to the drawbacks indicated, we have concluded to fix their value at fifteen hundred dollars, subject to the credit allowed thereon.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be amended by substituting fifteen hundred dollars for the three thousand dolíais therein allowed, and that, as thus amended, the same be now affirmed; appellee to pay cost of this appeal.


author: Pochb, J.

text:
    No. 9516.
    Henry Buddig vs. Henry Baldwin, Superintendent.
    The jurisdiction of this Court must bo tested by the pecuniary amount in dispute, as shown by the pleadings, and as appearing from the nature of the action, and not by the jurisdictional allegations, or by the affidavit of the appellant.
    The substantive allegations in the pleadings, not the alleged opinion of litigants, will be considered in all questions of jurisdiction.
    !No allegation and no affidavit can create an appealable amount of interest in a litigation which from its very nature and essence cannot involve a pecuniary amount in dispute equal to the lower limit of the jurisdiction of the Supreme Court.
    APPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

      Braughn, Huele, IHnlcelspiel & Hart for Plaintiff and Appellant.

      Farrar & Krutlsehnitt for Defendant and Appellee.
   The opinion of the Court was delivered by

Pochb, J.

This is an injunction suit, the chief object of which is to restrain the defendant, as superintendent of the New Canal and Basin, from removing from the banks of said canal, and storing elsewhere, a large quantity of lumber, about two million feet, at the expense of plaintiff, the owner thereof.

The gist of the complaint is the alleged unconstitutionality of Section 8 of Act No. 127 of 1880, which, in terms, authorizes and directs the proposed removal of the lumber by the superintendent.

Plaintiff has taken this appeal from a judgment which dissolved his injunction on motion, setting forth the reason that his petition did not disclose a sufficient cause of action to justify an injunction.

In his brief, appellee suggests our want of jurisdiction ratione material, and we find nothing in the records on which to refute his proposition.

As already stated, the petition in this case contains no moneyed demand, hence the only pecuniary matter in dispute is the cost of removing and storing the lumber; and it is not even intimated in the pleadings that such costs could in any emergency amount to a sum exceeding two thousand dollars.

The pleadings contain no allegation of any possible damages as a result of the alleged unconstitutional attempt of the superintendent to remove plaintiff’s pile of Limber.

Hence we are completely at a loss to conceive of the ground on which plaintiff can rest his allegation “ that the forced removal of said lumber as threatened would cause him irreparable injury” (?) “and pecuniary loss in a sum exceeding one thousand dollars;” and the record affords no safer foundation for his affidavit, setting forth a pecuniary interest in this suit exceeding two thousand dollars. In the absence of any allegation on which to base auy calculation of the pecuniary matter in dispute, wfe must say that plaintiff’s swearing appears very reckless and rather hazardous.

Wehave on more than one occasion said: “The real amount in dispute, exclusive of interest, whenever the same can be legally asceiv tamed from the pleadings and documents annexed, and not the allegations .of parties, is to be the test of our jurisdiction and shall be our rule in determining all such questions.” 32 Ann. 929, Wilkins vs. Gannt; 32 Ann. 1191, the case of Crean.

And when, later on, we were confronted by an affidavit intended to create a jurisdictional issue, but unsupported by substantive allegations disclosing an amount vesting this court with jurisdiction, we said: “No allegation and no affidavit can create an appealable amount of interest in a litigation which, from its very nature and essence, presents an issue involving no pecuniary gain or loss to the parties in the suit.” 34 Ann. 834, State ex rel. vs. Miscar.

The rule applies to cases like the present controversy, where it appears that, in a question of some legal importance, the only pecuniary amount possibly in dispute is a trifle when compared to the amount of the lower limit of our jurisdiction.

Wo are clearly without jurisdiction over the case; and it is plain that plaintiff has been mistaken in his choice of an appellate tribunal.

This appeal is therefore dismissed at appellant’s cost.

On Behearing.

A second examination of the question of jurisdiction in this case has confirmed our views as stated in our previous opinion.

As the petition contained no allegations on which the court could base a reasonable or possible calculation of the probable cost of removing the lumber in question, appellant now seeks to remedy the deficiency of his pleadings by alleging in Ms brief that such a removal would cost at least one dollar per thousand, and that the cost of storage must be added thereto, all of which is held out as a sufficient jurisdictional allegation.

But we understand the rule to require us to consider the record only in deciding a question of jurisdiction, and that no circumstances not covered by the pleadings can be invoked as an argument on such a question.

And we also understand the rule to require the appellant to show jurisdiction affirmatively. City vs. Apken, 36 Ann. 419.

The rule has been construed as denying the right of establishing jurisdiction by means of an amended petition containing allegations tending to present an amount within the jurisdiction of this Court, when not apparent in the original petition. March vs. McNeely, 36 Ann. 287.

In this case a strange feat is attempted by the appellant.

In the lower court he went to trial under a showing which restricted his pecuniary interest in the litigation to a sum exceeding one thousand dollars. But on appeal he was bewildered in the choice of an appellate tribunal; hence he sought by an affidavit to enlarge his pleadings, and, like the rolling snow-ball, his possible loss of one thousand dollars was increased to a sum in excess of two thousand dollars.

We would have been justified, in reason as well as in law, to have entirely ignored that affidavit on the ground that it conflicted with the only jurisdictional allegation contained in the pleadings. But even that affidavit, when fulLeffect is given to its meaning, was held and is insufficient to furnish any data on which our jurisdiction could he reasonably founded.

Hence, appellant has been driven by the necessities of his own case to resort to his brief as an attempted continuation of avowedly deficient pleadings, and we are now-expected to consider the storage of the lumber as one of the elements which contribute to our jurisdiction of the cause.

But his jurisdictional allegation, which is transcribed in our original opinion, contains no reference to storage or the probable cost thereof. Hence the element of pecuniary interest cannot now he considered in determining the question of jurisdiction.

If the freedom and latitude which this appellant claims in the matter of jurisdictional allegations were allowed to all litigants whose desire may be to bring their appeals to this Court, it is difficult to conceive of a case in which, by an after treatment, the pleadings would not he strained in order to create a jurisdiction not originally contemplated, and manifestly not justified by the nature of the demand or the essence of the case.

This Court must he, as it has always been, solicitous to maintain and preserve the constitutional right of appeal; hut it must he careful to restrict its powers as an appellate tribunal within constitutional limits.

We find no reason to justify a change of opinion in this case, which we had reopened with the sole view of giving an opportunity to appellant of arguing the question of jurisdiction, which had received no attention at his hands at the first hearing of the case.

It is therefore ordered that our previous decree remain undisturbed.


text:
    No. 9558.
    Alphonse Martin vs. City of New Orleans et als.
    Under Article 207 of the Constitution the capita), machinery and other property employed in the manufacture of articles of -wood is exempt from taxation, although the same be used as well for purposes -which would not entitle the owner to exemption, if he exclusively thus used it.
    In such case, such property is partly taxable and partly not, in proportion of its relative value as employed or used in each business.

      Principle applied to a sawmill and appurtenances employed to manufacture raw materials and articles of wood, but not extended to vessels used to convey timbers for saw mill purposes and wbicli is sold in the market and dressed in tbe articles of wood.
    A PPEAL from tlie Civil District Court for the Parish of Orleans. II Houston, J.

      Olías. 8- Rice for Plaintiff and Appellee.

      W. H. Rogers, City Attorney, and Blanc <& Butler for Defendants and Appellants.
   The opinion of the Court was delivered by

Bermudez, C. J.

The object of this proceeding is to annul the assessment madel of property owned by the plaintiff, and which he alleges is employed in the manufacture of articles of wood.

The defense is a denial of the exemption claimed.

From a judgment reducing the assessment from $42,675 to $17,170, i. e., by forty per cent, the defendant appeals.

The facts do not appear to be disputed.

One witness only was sworn, the plaintiff, and it is admitted that, if another witness was heard, he would testify to the same purpose.

It is established;by this testimony that, during the year 1884, plaintiff was engaged in the saw mill business, in which he had invested a capital represented by real estate, machinery, horses, vessels and active money.

It also shows that the vessels were employed in towing timber through rivers, lakes and bayous to this city, where it is sawed into planks and other raw lumber; part to be sold on the market and part to be converted by plaintiff into articles of wood, such as doors, sash aud blinds, boxes, lathes, necessary for the construction of buildings and putin shape and style ready for immediate use. Some fifteen hands were employed in this last business.

The relative value of the property employed in the saw mill business proper is sixty per cent, while that used in the manufacture of articles of wood is, forty per cent.

Article 207 of the Constitution, on which plaintiff relies, expressly exempts from taxation, during ten years from the adoption of the Constitution, “the capital, machinery, and other property employed in the manufacture of * * * furniture and other articles of wood * * * provided, that not less than five hands are employed in any one factory.”

In the case of Jones vs. Rainés, 35 Ann. 998, we had occasion to consider the meaning and purview of this article, an attempt being made to extend the immunity which it accords, so as to apply to saw-mills. We there held that, while it proposes to exempt some it did not all manufacturers; and that were to be considered as protected by its provision, only such as are specially' enumerated in it. We accordingly' decided that, as saw-mills did not enter into the contemplation of the framers of the organic law and had not been enumerated in the article, they could not be placed beyond the reach of the tax gatherer.

In the cases of City vs. LeBlanc and vs. Beck, 34 Ann. 596, we took pains to define who the manufacturers are, whom the previous article (206) exempts from license.

Applying the rulings in those cases to the present controversy, it is manifest that the property, of whatever nature, which is used in the saw mill business proper, that is, in the manufacture of law materials, namely: of lumber, not ready for use, as are furniture and other articles of wood,” is not exempt from taxation.

The case is different, however, as to the property' which is used for the manufacture of articles of wood, ready for use by the consumer.

The argument that the character of plaintiff’s business must be determined by its principal and not by its incidental features, though apparently plausible (surely ingenious), is not entitled as a test to much weight, either to ascertain the nature of plaintiff’s calling, avocation or pursuit; or to declare that of the property employed by him in his transactions.

It is clear that it was optional with the plaintiff to have used all the property in question exclusively, either in ihe manufacture of raw materials, or in that of articles of wood ready for use.

Tn the former case, the property representing a saw mill, preparing lumber to be dressed, would have been taxable in its entirety. In the latter, it would have been exempt from all taxation whatever.

It is, however, difficult to perceive, how and why, in the absence of any prohibitory clause in the Constitution, the plaintiff should not be recognized the right to employ that property to both uses.

Denying the plaintiff this important privilege would be to do violence to the Constitution by interpolating in it a restriction which, it does not appear, the framers of it intended to interpose.

The same article, in its first part, exempts from taxation “ all places of religious worship or burial, all charitable institutions, all buildings and property used exclusively for colleges,” etc.

The word exclusively is employed ex industria,, to limit the exemption, to property exclusively used for church, charitable and school purposes.

It was not inserted in the further part of the article, attending to property" employed in the manufacture of certain articles. Had the intention of the framers of the Constitution been to exempt only such property as would be exclusively employed in such manufacturing, they would have unequivocally expressed it j but they have remained perfectly reticent on that qualification. It does not, therefore, appertain to this Court to incorporate it in that provision; the less so, as in the case of Jones vs.tRains, it was formally announced that the object of the exemptions created by it was to encourage and foster the establishment of manufactures of the various articles daily needed by the people.

It does not, however, follow, that all tho property assessed is entitled to the exemption recognized by the district court.

It is impossible to conceive how the vessels employed to pi'oeure the timber, can be justly entitled to tbe immunity. They are used to bring tbe timber necessary for the saw mill which manufactures primarily the raw materials to be dressed.

They are not used directly for the purposes of the manufacture of articles of wood, ready for immediate use by the consumer.

As well might tbe plaiutiff claim, were be tbe owner of tlie lands from which the timber is felled, that such lands are likewise exempt, as they represen!, capital employed in the manufacture of articles of wood.

It is, therefore, ordered and decreed, that the judgment appealed from be amended by striking therefrom the words “ upon vessels to the extent of twenty-two hundred dollars ” and that thus amended the same be affirmed, plaintiff and appellee to pay costs of appeal.


text:
    No. 9559.
    Mrs. Seraphine Maspereau vs. City of New Orleans et als.

    Property must be assessed in tlio name of the tine owner. If assessed in any other name. tho assessment is defective and cannot be the basis of a legal tax sale,
    A woman divorced from her husband is in tbe same situation toward him as though no marriage had ever been contracted between them. Sho has the legal right to resume her original name, and property which she buys and whiclf is recoided under that name cannot he legally assessed against her under another name, not even under her former name as a married woman.

      A PPEAL from the Civil District Court for the Parish of Orleans Houston, J.

      Farrar Ós'JKruttschnitt for Plaintiff and Appellee.

      WSJI* Boyers, City Attorney, and JBlano c& JBuiler, for Defendants and Appellants.
   The opinion of the Court was delivered by

Poché, J.

The State tax collector and the city of New Orleans have taken this appeahfrom a judgment of the district court, annulling an adjudication at a tax sale of plaintiff’s property in November, 1884, for taxes assessed against said property for the years 1882 and 1883, and ordering' the cancellation^of the assessment of said property for the years’1882/1883 and 1884. The judgment also enjoined the tax collector from executing a deed to the property under the adjudication made'by him as aforesaid to the State of Louisiana.

The[grounds of plaintiff’s complaint were that the property had not been assessed in her name, and that she had never been served with the notices required'by law as necessary steps to a legal tax sale.

As the'appeal taken by the city of New Orleans involves no other question but the legality or binding effect of the assessment, and as the amount of taxes which may thereunder be eventually due to the city,)is far less than the lower limit of our jurisdiction, it follows that we have no jurisdiction over that branch of the case in which the city is interested, and that her appeal cannot be maintained.

The point presented by the. State tax collector’s appeal, involves the legality of his adjudication at a tax sale, of property which is shown to exceed in value the sum of two thousand dollars, and hence his appeal stands on a different basis.

The record shows that the property in suit was acquired by plaintiff by purchase on the 25th of July, 1881, and that'her titles were put of record in the proper office on tile same day.

It also • appears that plaintiff, who had been the wife of Ernest D’Aquin for five years, was divorced from him in June, 1875, from which time she had resumed her original name as shown in the title of this suit, that for the year 1882, the property was assessed in the name of S. Keiffer, her vendor, and for the year 1883, in tire name of Mrs. Ernest D’Aquin.

It requires no argument to show that the assessment of 1882 was an absolute nullity, and that it could not be the basis of a lawful tax sale. Lague vs. Boagni, 32 Ann. 912; Guidry vs. Broussard, 32 Ann, 924; Marin vs. Sheriff, 30 Ann. 293.

On the second point, involving tlie alleged illegality of the assessment of 1883, appellant’s counsel argue that plaintiff having, by marriage, become Mrs. Ernest D’Aquin, the assessment in that name was proper and legal, as that was and is her name until she legally acquires another.

But the Civil Code, Art. 159, says: The effects of a divorce shall not only be the same as are determined in the case of a separation from bed and board, but it shall also dissolve forever the bonds of matrimony between the parties, and place them in the same situation with respect to each other as if no marriage had ever been contracted between them.”

If no marriage had ever been contracted between Ernest D’Aquin and Seraphine Maspereau, the latter would never had been named or known as Mrs. Ernest D’Aquin, and hence it follows as one of the effects of.the divorce that she then ceased to be Mrs. Ernest D’Aquin, and that she had as perfect a right to contract in her original name, as she had to contract at all, without the slightest reference to her former husband.

And his name had no more connection with her purchases or other contracts than he could in his own rights have interfered therewith or controlled the same.

By means of a reference to the public archives, which it was his duty to do, the assessor would have seen that, after the 25th of July, 1881, property stood in the maiden name of plaintiff, and that it was in that identical name that she had accepted the authentic sale made to he) of that property. 30 Ann. 295, Marin vs. Sheriff et al.

An assessment made under such circumstances must be held as invalid. Hence we need not discuss thé third ground of alleged nullity invoked by plaintiff, touching the want of notice required by law.

Having concluded that the assessment of 1882 was illegal because it was made in the name of S. Keiffer, and that of 1883 untenable, as it was erroneously in the name of Mrs. Ernest D’Aquin, we must hold that no legal adjudication was made on the 14th of November, 1884, and hence the judgment appealed from is correct. .

It is, therefore, ordered, that the appeal of the city of New Orleans . be dismissed at her costs, and that the judgment against the State tax collector be affirmed with costs.


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    No. 9526.
    Joseph Oteri vs. Salvador Oteri.
    Held, that plaintiff was and. remained, one-fourtli ovner of ship “S. J. Oteri M until November 14,1883, at which date his interest terminated by his voluntary acceptance of the return of the price which he had paid for said interest.
    Held, that for the trips made by said ship prior to August 24,1883, when the firm of S. Oteri & Bro., was dissolved and terminated, he is entitled to accounting of profits on same basis as had been always customary in previous transactions.
    Held, that after 1he termination of the partnership, plaintiff’s interest in the mercantile ventures ot buying and selling fruit thereafter carried on by S. Oteri ceased; and that, as he could not be held for losses on such ventures, he cannot claim the profit. «His interest thereafter was confined to his share of the earnings of the vessel per se. As these have not been kept in such manner as to enable us to ascertain their actual value, and as this is the fault of defendant, plaintiff is allowed his share of a liberal charter-price of the ship during that period.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      J. P. Hornor and P. W. Baker for Plaintiff and Appellee.

      W. S. Benedict and J. W. Gwrley, Jr., for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

Prior to August 24, 1883, Salvador and Joseph Oteri were equal commercial partners under the style of S. Oteri & Bro., engaged in tlie fruit importing and commission business.

That partnership terminated on tiie 24th of August, 1883, as has been judicially determined by this Court. Oteri vs. Oteri, 37 Ann. 74.

In connection with their business they used a certain steamship named “ S. J. Oteri.”

The vessel was purchased while in course of construction in England, was completed for account of the purchaser and brought to this port. The purchase price, together with all expenses connected therewith and with her voyage hither, was paid with funds of the firm of Oteri & Bro., and was charged, on its books, one-half to Salvador, one-quarter to Joseph Oteri, and one-quarter to Salvador Pizzatti, a brother-in-law of Salvador Oteri; hut the vessel was registered in the name of Salvador Pizzatti, as sole owner.

After some profitless trips to Aspiuwal! and Jamaica, the vessel was transferred to the trade between this port and Spanish Honduras and the Bay Islands, and so continued to run np to the time of this suit. The business of the ship was not embraced in the partnership of Oteri & Bro., hut stood on a different basis.

The vessel was not used exclusively or mainly as a common carrier, though taking such freight outward as offered and carrying passengers both ways. But the main business was the purchase of cargoes of fruit in the Honduranean ports, bringing them to New Orleans and reselling them here either on the spot or by railroad shipments to interior markets.

The firm advanced all the expenses of the ship; furnished the funds for the purchase of the cargoes; and attended to all the business of receiving and re-selling them, for all of which it received a commission of five per -cent, which commission was shared equally between the partners, Salvador and Joseph Oteri.

After the net profits on each trip had been ascertained, including the profits on the purchase and sale of cargoes as well as the earnings of the ship proper, this net profit was passed to the credit of the parties on the books of the firm, in the proportion of one-half to Salvador Oteri, and one-quarter each to Joseph Oteri and S. Pizzatti.

Pizzatti, acted as master of the vessel, receiving a salary therefor, and also furnished his services in the purchasing of the cargo, for which his long experience in the trade gave him great advantages.

After the dissolution of the firm, Joseph Oteri ceased to have anything to do with the business. S. Oteri made all the advances for the purchase of cargoes and attended exclusively to their reception, handling and re-sale.

It appears that, while Salvador Oten and Pizzatiwere bosom friends Joseph Oteri was not on good terms with Pizzatti, and was not content with the arrangement under which the title to the whole vessel was left in the latter’s name, and he insisted on having something to represent his interest in the vessel and to secure him against any wrongful use or disposition of the vessel by Pizzatti.

The method resorted to was the execution of a note by Pizzatti for the sum of $34,250, the exact amount of the purchasé price paid by Joseph, which note was dated October 7, .1882, and matured in one year, without interest, and was secured by mortgage on the vessel.

When this note matured in October, 1883, Salvador Oteri, as agent of Pizzatti, tendered payment thereof, which Joseph declined to accept, denying that the note represented any debt clue to him, and claiming that he held it merely as security against any injury to his interest as owner in the vessel which still continued. He afterwards demanded an accounting of the earnings of the vessel, which being-refused and his interest therein disputed, he subsequently concluded, under advice of counsel, to accept the sum offered in payment of the note, under fear, as he alleges, that he might lose everything. Accordingly, on November 14, 1883, he received $34,250 and surrendered the note.

The object of the present suit is to recover:

1st. The sum of $25,000, which he alleges his interest in the ship worth in excess of the sum received by him as above set forth, and so received under restraint and fear occasioned by defendant’s unjust conduct.

2d. To recover his share of the profits and commissions on the various trips of the vessel made between June 13 and November 14, 1883.

I.

The claim to an additional value for his interest may be summarily disposed of. The evidence satisfies us that such additional value did not exist; and even if it did, he would be precluded from claiming it by his voluntary act in accepting the sum stipulated in the note, which he well knew was paid to him in full satisfaction of his interest in or upon the ship, whatever it might be, whether as creditor for the price or part owner. He so received it and the binding effect of his act is not destroyed by any circumstance sufficient to establish legal error, violence or fraud.

II.

We shall next dispose of several objections intérposed by defendant in bar of plaintiff’s right to claim an account of the earnings of the vessel.

1st. Defendant denies that plaintiff was ever a part-owner of the vessel and claims that Pizzatti was the sole owner, and that both S. & J. Oteri were mere creditors for the portions of the price respectively contributed by them.

The registry of the vessel and the act of mortgage in favor of plaintiff, considered by themselves and without explanation, would support this view; but we agree with the district judge that the evidence in the case makes it perfectly clear that the Oteris and Pizzatti were the real owners of the vessel; that the title was placed in Pizzatti’s name from considerations of convenience merely; and that the mortgage was intended solely to secure Joseph’s interest against any wrongful disposition or incumbrance of the vessel by the apparent owner.

It would be tedious and unprofitable to recount all the multitudinous facts and circumstances leading to this conclusion; but we may mention among them the mode in which the business of the vessel was conducted, both before and after the execution of the mortgage; the testimony of Stella, the confidential clerk of S. Oteri, who continually refers to the parties as joint owners; the testimony of Kelly showing that, when the vessel was brought out, he was consulted about having the title transferred to the names of the Oteris and Pizzatti, and then registering her in the name of Kelly as apparent owner; che petition filed in suit No. 7373, Civil District Court on December 26, 1882, (after the mortgage), wherein it is alleged that S. & J. Oteri and S. Pizzatti are “joint owners in certain proportions of the steamship S. J. Oteri”; and there are other facts equally conclusive. We, therefore, hold that Joseph Oteri was and remained a part owner of the vessel until the 14th of November, 1883, when he accepted payment for his interest.

2d. The pretended charter-party of August 13, 1883, whereby Pizzatti chartered the vessel to S. Oteri is too clumsy and transparent a'sham and device to deserve further notice.

3d. Under our view above indicated of the nature and object of the act of mortgage, it is clear that the principles of admiralty law quoted by defendant have no application. Those principles are, that when one part-owner objects to some proposed employment of the vessel, he may require from his co-owners a stipulation equal to the value of his interest, for the safe return of the ship or for the payment of such value, and in such case the dissentient owner is not bound for expenses or entitled to share in the gains of the voyage. Abbott on Ship. p. 127.

But here, Joseph Oteri did not object to the employment of the vessel, but on the contrary sanctioned and participated therein, and the mortgage had reference to entirely different purposes already pointed out.

III.

Let us now consider the rights of plaintiff under the accounting herein made of the earnings of the ship from June 13 to November 14, 1883.

There is no dispute about the liability of defendant for plaintiff’s share in the profits of trip No. 18, which ended July 27, said share being $3,486.07. The only opposition of defendant to this allowance is a claim to offset against it a debt due by defendant for repairs of another vessel called the “E. B. Ward” owned by them jointly; but as this item is involved in a suit for settlement of accounts of that vessel, it need not figure in this case.

Trip No. 19 terminated on August 13, and stands on the same basis with the former. The only ground for claiming any difference between them is the contention of defendant that the partnership of S. Oteri & Bro., terminated on August 1; but as that contention has been judicially determined against him and the termination fixed of date August 24, we consider the plaintiff entitled to settlement of this trip on the same basis with prior ones, and to recover Ms share of the profits $1861.84, and his half of the commissions, $398.57, in all $2260.41.

Trip No. 20 began during the existence of the firm, but ended only-two days after its termination, viz: on August 26. The venture is entitled to be considered as one of the firm, but the services in receiving and disposing of the cargo were rendered by S. Oteri alone. We think he will be sufficiently compensated for these extra services by allowing Mm the whole of the commissions and by awarding to plaintiff only Ms share of the profits, viz : $2005.17.

The remaining trips of the vessel stand upon a different footing.

After the termination of the partnership, defendant’s mandate to bind the plaintiff by mercantile transactions in the purchase and sale of fruit terminated. From that date this part of the business was conducted with the means and labor of defendant and at his exclusive risk, and as plaintiff could not have been held liable for losses incurred on such account, he is equally barred from claiming an interest -in the profits. It is no answer to say that defendant had in Ms hands ample means of plaintiff. The compensation for the retention of these means is interest. He had no right to embark them in commercial ventures and if he had done so and losses had resulted, could have claimed no exemption from liability on that account.

Plaintiff’s interest was confined to his proportion, as part qwner, of the earnings of the ship peo- se, including proper freights for the cargoes belonging to defendant. But the accounts of the vessel have been so kept that it is impossible to distinguish and ascertain the earnings of the vessel. We have, therefore, no alternative but to allow to plaintiff a reasonable compensation for the use of his share of the vessel. As it is defendant’s fault that the accounts were so kept as to entail the necessity of this method of settlement, we think plaintiff is entitled to a liberal allowance. After duly weighing the evidence on that point, we conclude that $2500 a month would not have been an excessive charter-price for the steamer-during this period, and we shall allow plaintiff his share of the sum for the period from August 26 until November 14, viz: two months and nineteen days, say one-fourth of $6583.27, or $1645.80.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be amended by reducing the amount allowed from $14,975.54 to $9,397.45, with legal interest on $3,486.07 from July 27, 1883, andón $2,260.41 from August 13, 1883, and on $2,005.17' from August 26, 1883, and on $1,645.80 (by average date of earnings) from October 5, 1883; and that, as thus amended, the said judgment be in all other respects affirmed, plaintiff and appellee to pay costs of appeal.


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    No. 9557.
    Joseph Oteri vs. Salvador Oteri, et al.
    When a part-owner of a vessel, suing for a partition and account, has prayed for a sale of the ship, he cannot on appeal complain of a decree of sale made in conformity to the prayer of his own petition never changed or amended.
    The principles upon which the decree herein is based are approved, and with collection of error, apparently clorioal, in allowance for commissions, is affirmod.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      J. P. Honor and P. W. Balcer for Plaintiff and Appellant.

      W. S. Benedict and J. "W. Gurley, Jr. for Defendants and Appiellees
   The opinion of the Court was delivered by

Fenner, J.

The plaintiff was one-fourth owner of the steamer E. B. Ward, the business of which was conducted by the firm of S. Oteri & Bro. up to the dissolution of that firm, and thereafter by S. Oteri, in much the same manner as was pursued with reference to the steamer S, J. Oteri, and detailed in the opinion just read in case No. 9526 of our docket.

Plaintiff brings the present suit against Ms co-owners, praying for a judicial sequestration of the vessel and for a decree ordering her to be sold, and for a partition of the proceeds, and also for an accounting to him for his share of the profits and earnings of the vessel from the 1st of August, 1888 to the date of the suit, July 3, 1884.

The order of judicial sequestration was granted by the court, and immediately afterwards, the defendants obtained an order of court authorizing them to release the sequestration on bond, which was executed.

The case was put at issue, and after the hearing of voluminous evidence, went to judgment in May, 1885.

The decree recognized the ownership of one-quarter of the vessel in Joseph Oteri and three-quarters thereof in Salvador Oten; ordered the vessel to be sold; fixed the earnings of the vessel daring the period involved at the sum of $17,018 49; but, owing to loss of evidence, was unable to fix the deductions to which the managing owner was entitled; and referred the matter to a notary for a completion of the partition and settlement of accounts; with directions to divide the proceeds of sale in the proportions above indicated; to charge Salvador Oteri with the aforesaid earnings, to be accounted for to his co-owner, reserving- his right, however, to establish the deductions to which he is entitled for disbursements for repairs and wages, and for lost time ; recognizing plaintiff’s claim for Ms share of the commissions on sale of cargo of a certain trip No. 80; and finallyreserving the rights of the parties to assert whatever claims they may have arising from the employment of the vessel during the pendency of the suit.

From this judgment the plaintiff has appealed.

He complains of the decree in the following particulars, viz:

1st. He objects to the order for the sale of the vessel, and claims that, in lieu thereof, the judge shoxild have fixed the value of the vessel as it stood at the date of his suit, and should have allowed him one-fourth of that value.

It is difficult to conceive of a more unfounded claim, since the judgment in that respect conforms strictly to the prayer of plaintiff’s own petition, which was never amended or changed.

If there is any liability on the part of defendant arising from deterioration in the value of the vessel during the pendency of legal proceedings or from her employment during that period, on which we intimate no opinion, such matters are not within the issues presented by the pleadings in this case, and were properly remitted to other proceedings under the reservation made in the decree.

2d. He complains of the method pursued by the judge in estimating the profits of the vessel.

The judge adopted the same principles which we have pursued in settling the accounts of the “S. J. Oteri” in the case No. 9526.

With reference to trip No. 80, which was made during the existence of the partnership, he allowed plaintiff his share of the whole profits, including those arising from the purchase and sale of the cargo; while, with regard to subsequent trips, he restricted him to a share in the earnings of the vessel itself ascertained by fixing a reasonable char-tor-value of the ship.

For the reasons given by us in the opinion just alluded to, and which are fully applicable, we approve his conclusions.

3d. He claims that -we should fix the deductions to which defendant is entitled, and the settlement of which was remitted to the notary.

As the judge’s opinion informs us that important evidence on these points was missing from the record, we do not see how he could have pursued a course different from that -which he adopted, or how we can convict him of error therein.

4th. He complains that the decree allows him only one-fourth, instead of one-half of the commissions on the sale of cargo of trip No. 80; and this complaint seems to be well founded.

The. judge, in Ins opinion, recognizes his right to one-half of said commissions, which were a perquisite of the firm in which he was an equal partner; but the judgment allows him on that account only $104 65, while the trip-book produced by defendant himself shows the total commissions to have been $418 60, of which plaintiff’s one-half would be $209 30. In this respect the judgment must be amended, and otherwise affirmed.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended by increasing the allowance made to defendant as Ms share of commissions from $104 65 to $209 30, and that, as thus amended, it be now affirmed, defendants and appellees to pay costs of appeal.


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    No. 9549.
    Succession of Kate Townsend vs. Troisville Sykes et al.
    To entitle a party to a removal to the United States Circuit Court, there must exist in the suit a separate and distinct cause of action, on which a sepai ate and distinct suit might properly have "been brought and complete relief afforded as to such cause of action, with all the parties on one side of that controversy citizens of different States from those on the other.
    To say the least, the case must he one capable of separation into parts, so that in one of the parts a controversy will he presented with citizens of one or more States on one side, and citizens of other States on the other, which can he fully determined without the presence of any of the other parties to the suit, as it has been begun.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      Breaux & Hall for Plaintiff and Appellant.

      A. J. Murphy for Defendant and Appellee.
   The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiff appeals from an order removing this cause to the United States Circuit Court for the Eastern District of Louisiana.

The action is brought to annul a conveyance of real estate by Troisville Sykes to bis mother, Mrs. Reuben B. Sykes, and is instituted against both parties; the former a citizen of Mississippi, the latter a citizen of Louisiana.

The,order of removal was obtained by Troisville Sykes.

There is but one controversy, the object of which is to determine the validity of the transfer of property to which the plaintiff succession claims title and which has apparently, but illegally it is claimed, passed from transferrer to transferee.

The ground of action is that the property was fraudulently disposed of by Sykes; that it had been bequeathed to Mm by Kate Townsend, she appointing him executor and universal legatee; that he was living with her in open concubinage and that he murdered her; that he fraud ulently accepted her succession, and without any authority attempted and pretended to transfer the property to his mother.

This suit had of necessity to be brought against the transferee, Mrs. Sykes, a citizen of this State, and had also to be levelled against Troisville Sykes, whose capacity to inherit and dispose of the property had been put at issue and who thus was an indispensable party, whom Mrs. Sykes otherwise would have been bound under the circumstances to call in warranty. C. P. 388.

Joining Troisville Sykes with Mrs. Sykes was not, therefore, an unnecessary proceeding.

The transfer attacked could not have been annulled and the transferee surely protected unless contradictorily with both parties, who thus became indispensable for a final determination of their differences in the present controversy.

The suit is one and indivisible. There exists in it no separate and distinct cause of action on which a separate and distinct suit might have, properly been brought and complete relief afforded as to such cause of action,' with all the parties on one side of the controversy citizens of different States from those on the other.

The case is not capable of separation into parts, so that in one of the parts a controversy be presented with citizens of one State on one side and citizens of another State on the other, which can be fully determined without the presence of the other party to the suit as it has been begun. Fraser vs. Janison, 106 U. S. 191; also, Removal Cases; 100 U. S. 457; 103 U. S. 336, 205; 104 U. S. 407; 110 U. S. 63; 112 U. S. 719.

The case presented by the record is not one over which the United States Circuit Court could validly entertain jurisdiction.

Under the above authorities, and those to which reference is made in 33 Ann. 520, 34 Ann. 292, 35 Ann. 36, and 36 Ann. 875, and under the rulings in those cases, the order of removal was erroneously granted.

It is therefore decreed that the order of removal appealed from be annulled and reversed, and that this cause be remanded to the lower court for further proceedings according to law.