text:
    No. 13,209.
    State of Louisiana vs. Julien Joseph, Sidney Joseph and Alexander Joseph.
    Syllabus.
    An accused can not assign as newly discovered testimony, the statements of persons whom he had summoned and who were present at the trial, but whom he had not interrogated on the trial.
    This is particularly true where it appears that he offered no testimony in his defense — relying upon the weakness of that offered by the State.
    ON APPEAL from the Nineteenth Judicial District Court for the Parish of St. Martin. Voorhies, J.

      M. J. Cunningham, Attorney General/ and James Simon, District Attorney, for Plaintiff, Appellee.

      J. E, Mouion for Defendants, Appellants.
    Submitted on briefs June 3, 1899.
    Opinion handed down June 12, 1899.
   The opinion of the court was delivered by

Watkins, J.

The defendants having been indicted for the crime of burglary and larceny, and found guilty as charged, prosecutes an appeal from said verdict and a sentence thereunder to thirteen months’ imprisonment in the penitentiary at hard labor — relying on a single bill of exceptions, which their counsel reserved to the ruling of the trial judge in refusing them a new trial.

The motion for a new trial rests upon the sole ground of newly discovered testimony.

The averments of the motion appear to be formal, and the affidavits of the parties nam'ed as the witnesses whose testimony has been discovered since the trial and verdict, 'are annexed to the motion and made a part of same.

It appears from the record that on the trial, no witnesses were introduced by the defendants — their reliance being upon the possible weakness or insufficiney of the testimony on behalf of the State.

For his ruling the trial judge assigned the following reasons, viz.:

“In this case the evidence is that the witnesses whose affidavits are “ annexed to this motion, had been summoned and were present dur- “ ing the trial.

“On the authority of the case of State vs. Charlet, 8 Rob., p. 529; “State vs. Morris, 27 Ann., 480; State vs. Woodworth, 28th Ann., 89, “ the motion for a new trial must be, and is overruled. See 37 Ann., I

We have examined those authorities but do not find in either of .them the ground of the trial judge’s opinion stated; .but it was distinctly announced in State vs. Dorsey, 42 Ann., 224.

We think the proposition of law, that an accused cannot assign as newly discovered testimony, statements of witnesses who had been summoned by him. and were present at the trial, but had not been interrogated by him, undoubtedly correct.

In our opinion the judge’s ruling was a proper one.

J udgment affirmed.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 13,222.
    Joseph Weil et als. vs. Emile Richaud, et als., in re.; II. Kenner et als. Applying for Certiorari or Writ of Review to the Court of Appeal, Fifth Circuit, State of Louisiana.
    Syllabus.
    Tlie suit was brought by plaintiff to recover possessiou of land and rents in • amount more than $2000. . '
    The suit was brought against heirs of age, as representatives of their mother’s succession, the debtor.
    The judge of the District Court decided that the defendants must be considered heirs as long as they have not renounced the succession, and condemned them to give up the property, and non suited the plaintiffs as to rental.
    The heirs appealed to the Court of Appeals and urged that they made no claim to the property, and therefore should not have been condemned to pay the i-ost.
    The view of the District Court regarding the facts, was different from defendants’ averments on appeal.
    The Court of Appeal properly held that it did not have jurisdiction and dismissed the case, that if any error had been committed, the appeal should have been taken to the Supreme Court, as the issues are not within the formers jurisdiction.

      H. Kenner for Petitioners.
    Opinion handed down June 12, 1899.
   The opinion of the court was delivered by ■

Breaux, J.

Relators aver that they are defendants in suit brought by Weil ef ah, against them as heirs of Mrs. Ella Renner, for the purpose of recovering possession of land and rents.

Mrs. Kenner, it was alleged by Weil et al., had sold the land in question to them, (plaintiffs, Weil et al.,) but had refused to give up. the possession. Because of relator’s refusal, plaintiffs (vendees) sued, to establish the ownership and right of possession they claimed.

Mrs. Kenner, the debtor, died in 1897. The relators are her children, of age.

Relators here, defendants in the suit to which we have just referred, answered that they did not claim title to the land; that they were not in possession, because the succession of their mother, Mrs. Kenner, had never been opened, nor had the children accepted the succession.

Relators aver that upon these issues the case was tried and judgment was rendered by the District Court, decreeing that defendants could not be held liable for the rents and revenues of the property, as they had not accepted the succession of their mother.

They aver that the court none the less decided that the heirs could be regarded as representatives of the late Mrs. Kenner for the purpose ■of deciding the question of title.

The court decided that plaintiffs had made' out their title, and,, therefore, to that extent, plaintiffs were entitled to judgment.

Relators felt aggrieved by this judgment, and alleging error, appealed.

In the Court of Appeal, appellees here, Weil et al., appeared and-moved to dismiss the appeal on two grounds:

1. That appellants had acquiesced in the judgment.

2. That the Fifth Circuit Court of Appeal wa£ without jurisdiction ratione materiae.

The opinion of the. Court of Appeal dismissing relators’ appeal sets forth that a demand for recognition of title to, and possession of, a plantation worth six thousand dollars, alleged, in the suit by Weil, to amount to $2,700, is the subject matter of the litigation.

In addition, in the District Court, the question of the renunciation of the heirs of their mother’s succession was considered.

The Court of Appeal found that the heirs did not seem to admit that the judgment of the lower corrrt on the main demand was against them.

The Court of Appeal held that the judgment on the main demand-was against them, as shown by the written reason of the District. J udge; and the court quotes the following from the written reason of the District Judge:

“But the plaintiffs who sued both for ownership and possession of the property, are entitled to exercise their right of action against the defendants. as presumptive heirs and sole representatives of their mother. Under Article 1014, R. C. 0., they are called to- the succession and seized thereof in right, and must be considered heirs as long-as they have not renounced the succession. The defendant, Richaud,. appearing to be in possession of the disputed lands, the plaintiffs to-the right of possession should have judgment against them.”

These, said the Court of Appeals, are the reasons of the judge a qua for giving judgment on the main demand against defendants and Richaud, and condemning them to pay costs.

“Nothing can relieve the appellants of these costs, except that they can show that the lower judge erred in considering them presumptive-heirs of their mother. If the lower judge erred, his error must be-corrected in the former, tBe District Court, wherein the main demand, belongs on an appeal.

“It is clear that we have no right (considering the amount involved^ to correct the ruling (if wrong) ; and until this ruling is set aside by competent appellate authority, the costs complained of must remain where the District judge has placed them;” extract from decision of. the Court of Appeals.

Wejhave not found any error in the dismissal of the appeal, particularly as it appears that the issues relate to property and claim larger in amount than six thousand dollars.

In the application here, relators urge an additional ground: That the heirs are not bound in solido, but jointly, and their combined interest cannot be taken to vest the court of jurisdiction. Even then,, wé are informed by the opinion of the Court of Appeals that the-amount involved as against each heir is greater than $3000, besides,, the suit was brought against those heirs as the representatives of their mother’s succession. They’ represent the entire estate and the whole-amount involved.

We have found no ground upon which to grant relief, and therefore we decline to issue the rule nisi applied for.

The application is denied.


text:
    No. 13,214.
    City of Shreveport vs. F. F. Robinson.
    Syllabus.
    A municipality has no power to adopt an ordinance to prevent one from operating a laundry, oil conditions different from others who use machinery In carrying on their business.
    N APPEAL from the First Judicial District Court for the Parish of Caddo. Land, J.

      E. 11. Randolph, City Attorney, for Plaintiff, Appellant.

      Wise. & Herndon and J. Henry Shepherd for Defendant and Appellee.
    Submitted on briefs June 2, 1899.
    Opinion handed down June 12, 1899.
   'The opinion of the court was delivered by

Breaux, J.

Plaintiff seeks to permanently enjoin the defendant from establishing and operating a laundry in a wooden building on his lot, not within the fire limits of the city of Shreveport.

The ordinance reads:

“An ordinance regulating laundries in the city of Shreveport, Da.’’

“Be it ordained that it shall be unlawful for any laundry to he established or operated within limits hounded by Commerce street on the north, Travis street on the west, the Y. S. & P. Ry. Co.’s tracks on the East, on the south by Wilson’s alley, Texas avenue and Christian street, to where Christian and Travis streets intersect, unless the laundry is operated within a stone or brick building.”

The other section of the ordinance sets forth the penalty for violating the ordinance.

The charter containing the delegation of power to the city of Shreveport-under which the ordinance was adopted, provides that the council shall see to the cleanliness and sanitary condition of the city; take measures for preventing and extinguishing conflagrations; and determine in what part of the city wooden buildings shall not he erected, and prevent persons from reconstructing’ in wood, old and decayed woden buildings in those parts of'the city, where it is lawful to build in brick, stone or metal. Act 158 of 1898.

Plaintiff’s counsel contends that the suit is not a suit to suppress a nuisance, but to determine whether or not the city council of Shreveport had the right to pass the ordinance. He affirms that it was passed in a legal way and is a valid ordinance so far as enactment goes, and that defendant is violating it, or is attempting to violate it.

That the ordinance does not prohibit the laundry business in any part of the city, but simply regulates it.

The defendant, on the other- hand, contends that the city council had no right to pass the ordinance, and avers that the ordinance is not in the interest of public health or safety, is unreasonable, oppressive and discriminates against a particular industry; and prays that the injunction he dissolved.

There was a trial in the District Court. The facts, as made evident by the record, are:

That there are a number of wooden buildings in the district, in which the defendant wishes to operate a laundry. There arc black.sniith shojis and other shops within its limits, in wooden buildings.

Defendant, as a witness, swore that he proposes to enclose the boiler and machinery of his laundry in a brick building and put a tin roof on it. The machinery is on the ground and has not yet been placed in position for work.

The injunction was dissolved, and from the judgment the plaintiff, city, appeals.

■ The defendant had bought the machinery for the laundry, and it •was already on the ground at the date the ordinance was passed. We infer that the members of the city council, in adopting the ordinance, ■were looking to the future, and that it was not the intention to hinder ■the owners of buildings, that were not within the fire limits, from turning their buildings to sonic account, on condition that the use was not a nuisance and not unsafe.

We do not understand that defendant’s proposed business is regarded as a nuisance. Tt has been decided in several eases that it is not a nuisance per se. If the. management he proper and due regard be given to sanitary rules, it is not unhealthy and it is not a nuisance.

“A public laundry is not a nuisance per se, and'cannot be made so by the legislative declaration of a city council.” In re Wah, 33 Fed., 623.

We have seen that the city disclaims that it is the intention to suppress this laundry; but it claims that the purpose was to put it in order; in other words, to regulate the concern.

An ordinance which would not affect a blacksmith, a carpenter or other mechanic using boilers and other machinery in some locality has the effect (in all probability never intended) of discriminating against an occupation and business, especially if it does not appear that the business in any manner endangers public health, under proper regulation, and does not give rise to greater risks from fires.

Now, as relates to regulating the laundry.

No attempt is made in that direction, save that it must be operated,if at all, in a brick or stone building.

We do not think it is customary or lawful to select a particular occupation or business in a locality and bring it within the range of a city ordinance establishing a “fire limit.” It may be, for all we know, that the city of Shreveport had power to extend the fire limit, (a question not before us); in that ease all owners of property would be sub-, jected to the same regulation regarding buildings of bricks arid wood, . and then all alike would be subject-to the rules adopted. But we are firm in our conviction that the city council is without power to adopt an ordinance to prohibit those carrying on a particular business, from using the buildings belonging to them prior to the adoption of the ordinance, if the occupation is not at all a nuisance and not more-dangerous than the machinery used by others in their business.

In ex parte Sing Lee, L. R. A., 24, 196, the Supreme Court of California said:

“The business of conducting a laundry is a lawful occupation; precisely as much so as is that of the carpenter, blacksmith, or merchant, and is not of itself, and irrespective of the manner in which it is conducted, offensive or dangerous to the health of those living within its vicinity; and no municipal corporation has the power to make the right to follow this business, at any place he may select for that purpose, dependent upon the will of any number of citizens or property owners within its limits, as is attempted in the ordinance under-review.”

We think for the same reason, that the business of conducting a-laundry cannot be singled out and tbe owner forced to conduct it in & brick building — tbe place not being within the “fire limits.”

An inoffensive business of the ordinary kind, such as mechanic’s .shop, carpenter’s bench, near which there may be a propelling force .and other similar works, is not subject to special and particular regulation.

Defendant’s business is classed as inoffensive when properly managed and conducted;

Ergo, it cannot be regulated by a municipal council to the extent of requiring that it shall carry on the business in a brick or .stone building, if it is not within the “fire limits” of the city.

“It is clear that the enforcing of the ordinance may obstruct defendant’s business, while others from whom the ordinance is withheld, may actually be benefitted by what is thus due to their neighbor.” Yick Wo vs. Hopkins, 118 U. S., 373.

The following from the opinion of the court a qua, meets with our approval:

“My conclusion is, that, considering that the laundry business is not per se, a nuisance, nor even a prima facie nuisance, and further considering that the use of a steam plant as a motor power in said business does not even partake of the character of a nuisance, and further considering that the city has no power to compel the defendant to erect a house of brick or stone on his premises, outside of the ’fire limits,’ as a condition precedent to his engaging in the laundry business, and further considering the right of the defendant to use his own property in a legitimate business enterprise as long as he does not injure the rights of others, the ordinance in question is not authorized by the city charter, and is therefore illegal and void in law.”

It is therefore ordered, adjudged and decreed that the judgment appealed from is affirmed.


text:
    No. 13,210.
    State of Louisiana vs. James Fuselier.
    Syllabus.
    i. Juey Commissioner. — An officer who accepts an appointment of jury commissioner is presumed to have resigned his former office, and therefore his acts as commissioner are not null.

      2. Inquietes phou the Juey. — Instructions or any information given to the Jury, if the case has been submitted to it for its verdict, not objected to at the time given, are. not grounds for reversal. The information asked for and given had no bearing on the case/
    S. (.'ounce's Dikceetion. — The trial court in its discretion judges of the necessity val non of discharging a jury.

      4. Jueies Not Unkeasonabi.y Detained. — The situation and restraint in which jurors are placed is exacted in the public interest, and do not afford grounds of themselves to set aside their verdict.
    ON APPEAL from the Nineteenth Judicial District Court for the Parish of St. Martin. Voorhies, J.

      M. J. Gunnmghc.m, Attorney Genera], and Jumas Simon, District Attorney, for Plaintiff and Appelleei

      J. Tl. Mouton for Defendant and Appellant.
    Submitted on briefs June 3, 1899.
    Opinion handed down June 12, 1899.
   The opinion of the court was delivered by

Breaux, J.

The defendant, Euselier, was charged witli having murdered Felix John, on the 17th day pf January, 1899, and was tried and found guilty of manslaughter.

From the sentence of the court to hard labor, he prosecutes this appeal.

Here, he invokes the grounds alleged by him in his motion to quash the indictment on the grounds set forth by him in his application fon a new trial.

The case comes to us on appeal on three bills of exception, in the-manner presented by the defence, and as met by the prosecution. We directly take up the questions reserved in the bill of exceptions taken to the overruling, by the court, of a motion to quash the general and special venire. One of the grounds taken in the bill was not argued in appellant’s brief, for the reason, doubtless, we think, that it was of no importance. The bill, in our judgment, brings up only one serious ground before the court. This ground was taken up by counsel and thoroughly and clearly argued in behalf of his- client. None the less, we gave consideration to the other ground taken, though not argued, and found that it was absolutey without merit. We pass it without comment.

1st. Now, with reference to the complaint argued and set forth in the bill of exceptions, as before stated; that two of the jury commissioners were, at the time of their appointment as members of the jury commission, members of the school board.

Counsel argues that the statute is absolutely prohibitive, and no one, in view of the prohibition, can be appointed jury commissioner and act in that capacity, who holds another office.

We have carefully reviewed the decisions upon the subject, and found that these decisions have not, heretofore, treated a statute as prohibitory, which directs that “no person holding any office under the State, or any parish or municipality therein, shall be competent to hold the office of jury commissioner,” (Act 99 of 1896, Section 3;) at any rate, not to the extent of deciding- that one holding- an office was absolutely incompetent even to accept the office, and if accepted by him, to render him incompetent by vitiating- his acts as commissioner. The act from which we quote will not bear that interpretation. To the words “shall not be competent,” the scope and importance has never been given for which defendant contends.

In State vs. Newhouse, 29 Ann., 826, under similar laws, the Supreme Court held, that one who accepts an office ceased to be a jury commissioner. It follows that his acts in the new office were not a nullity.

Tn State vs. Arata, 32nd Ann., 193, the Supreme Court held that a public officer accepting an office incompatible with that held by him at the time of his appointment, vacated the former.

State vs. Dellwood, 33 Ann., 1229, is quite a similar case to the one before us. The grounds were that two jury commissioners were office holders at the time of their appointment. The court said:

“Conceding for the sake of argument * * * that the office of jury commissioner in the country parishes, and, also, the other offices alleged to have been held by the parties here, were all 'offices’ incapable of being simultaneously held by the same person— we yet find one reason assigned by' the judge a quo * * * which must prevail, viz.: 'If the offices are inconsistent, the parties, by qualifying as commissioners, vacated their former offices.’ ”

In State vs. West, 33 Ann., 1261, it was held: “A public officer wacates the office held by him by accepting another office incompatible with the former.”

The same principle was sustained in State vs. Beaird et al., 34th Ann., 104; State vs. Nockum, 41 Ann., 689; State vs. Riley, 41 Ann., 698; State vs. Hall, 44th Ann., 976; State vs. Taylor, 44 Ann., 783.

In view of the foregoing, we sustain the ruling of the District Court.

2nd. We pass to a consideration of the second bill of exceptions, .grounded on the objection that the verdict of the jury was not a cool .and deliberate verdict, an objection, we think, that the court properly refused to sustain. The court incorporated the statement of the facts in the bill of exceptions, setting forth that there was no coersion or ■constraining influence brought to bear; that during the time the jury :remained in panel, they were brought into court at their request and ■given the instructions they asked (which were unimportant, and really had no bearing upon the case) ; and, as counsel was present, the course pursued by the court appeared to us to have been entirely regular and proper. In a direct case cited, infra, the trial judge had given him.self great concern about the necessity of the jury agreeing upon a verdict. The Supreme Court, in its opinion, said: “This is a matter within the discretion of the trial judge, and not one giving rise to an error affecting the results of the trial.” State vs. Green, 7 Ann., 520.

3rd. The third bill of exceptions was taken to the court’s ruling, refusing defendant’s motion for a new trial. The grounds are about the same as those set forth in the second bill of exceptions. The judge, in overruling the motion, said, that the jury were kept on the case from Tuesday to Thursday morning. “No eoerscion was used, no prolonged detention was threatened after the submission of the case.”

The objection urged, does not,-in our view, afford grounds to reverse the verdict.

4th. “It is well settled that the court has in itself to decide when to discharge the jury. ,The exercise of such discretion is not ordinarily subject to review.” Proffiat on “Jury Trial,” Sec. 482.

It would be different if pressure had been brought to produce an agreement. This was not the ease. We are not informed that they ■did not have “meat, drink and light,” and the usual attention due to jurors. The restraint to which jurors are Subject is in the interest of law and order. The service in view of its importance to the public, should be cheerfully performed, and does not afford grounds to set -aside a verdict, athough it may be required for a few days in an important case.

We have carefully reviewed the proceedings and found no grounds -of relief for the accused.

Judgment affirmed.


author: Breaux', J.

text:
    No. 13,192.
    Hibernia National Bank vs. Standard Guano Chemical and Manufacturing Co.
    Syllabus.
    T. Jurisdiction. — The District Court had jurisdiction to decree that a judgment pronounced on appeal was an absolute nullity.
    ■2. Not Res Adjudicata. — The judgment did not have the authority of a thing adjudged, if it was rendered by a court without jurisdiction.
    3. Court a qua. — After a case has been remanded for execution, in so far as relates to the question of its absolute nullity vel non, the court to which it is remanded has jurisdiction.
    ON APPEAL from the Third Judicial District Court for the Parish of Claiborne. Barksdale, J.

      John A. Fiichardson for Plaintiff, Appellant.

      J. IF. HoTbert and J. E. Moore for Defendant, Appellee.
    Argued and submitted May 31, 1899.
    Opinion handed down June 12, 1899.
   The opinion of the court was delivered by .

Breaux', J.

This is a suit to have decreed as void a judgment rendered by the Court of Appeals in favor of the defendant, the ■Standard Guano and Chemical Manufacturing Co.

This company brought suit to annul a mortgage given to secure a note for the sum of seven thousand dollars, on the ground that it was n simulation, and if it was not, then that it was given in fraud of •creditors.

The defendant in that suit, who is the plaintiff in the present action, interposed the prescription of one ye'ar in-bar of plaintiff’s action. This plea was referred by the court to the merits, and in its answer the defendant pleaded its good faith and claimed ownership of the property. ,

In the District Court the prayer of the Standard Guano Company was rejected, but on appeal by this company to the Court of Appeals, the judgment of the District Court was reversed, and the court decided that the note and mortgage claimed by plaintiff (whose right to the note and mortgage was recognized in the District Court), were-null and void for the reason that they wore simulated.

The following is copied from the opinion of the Court of Appeals:

“The assignors to plaintiff here and the plaintiff knew at the time, of the insolvency of Caldwell (the vendor), and of the simulated and fraudulent object and purpose existing between said parties in the making and execution of said deed and note, and the motives and purposes of said Flower, King and Putnam in making the transfer to the bank.”

“A proper disposition of the case, in our opinion, involves the consideration of three propositions:

“First: Is the plaintiff’s right of action as against the bank barred by the prescription of one year?

“Second : The purposes and motives of Caldwell and Flower, King and Putnam in the execution of the original mortgage, and under the state of facts exhibited by the record the right of plaintiff to recover.

“Third: The nature and character of the transaction between Flower, King and Putnam and the bank in the transfer of the mortgage note, and whether the same can be reached and remedied by the revocatory action.”

Taking the foregoing as a basis, the court decreed that transfer of the note from Flower, King’ and Putnam for the amount of seven thousand dollars to the Hibernia National Bank was simulated and absolutely null and void. (Italics ours).

Plaintiff in the suit before its avers that the judgment of the Court of Appeals is void, as the court had no jurisdiction of the question of simulation.

The defendant, the Standard Guano and Chemical Manufacturing Co., filed an exception, in which it alleged that plaintiff’s petition discloses no cause of action; that the District Court was without jurisdiction; and that action to annul must be brought in the court in which the judgment was rendered. It also pleaded estoppel, want of proper parties and res judicata.

After hearing this exception the District Court rejected the demand of plaintiff and dismissed its suit.

From the judgment plaintiff appealed.

1st. Jurisdiction of the District Court vel non is the only important issue. If that court had jurisdiction, all the other grounds set forth in the exception are without merit.

Defendant, The Standard Guano and Chemcal Manufacturing Company, concedes this and avers the exception: that the District Court had no jurisdiction to annul a judgment of the Court of Appeals, as practically the only exception filed. Wo do not hesitate to say if that court had jurisdiction all the other grounds set forth are as naught, in our opinion.

''Virile it is true (hat generally the judgment of an appellate court rendered on appeal from the District Court cannot be attacked in the District Court, a case may arise of absolute nullity, growing out of the complete absence of all jurisdiction, as made to appear on the face of the papers, which may be attacked before the court of the first instance. We concede that such cases are quite exceptional, and yet they may none the less arise. Tf (lie court exceeded its powers and passed upon a res manifestly not within its jurisdiction rations maieri/ie, the judgment can be attacked.

We do not understand, in this case, that admissions were made as to the amount or issues involved, or that the parties have estopped themselves, by their pleadings, from setting up an absolute nullity. If they have, that may be hereafter considered; just pow, we are dealing with the question whether a judgment on appeal rendered by a court without jurisdiction rations materias can he attacked before the court in which the judgment appealed from was rendered. We have already indicated, that, in our judgment, an affirmative answer is the correct answer.

Second: With reference to res judicata, it is true that courts will not reopen questions once settled and that the greatest importance is given to the authority of the tiling adjudged, unless it he manifest that the judgment is an absolute nullity upon the face of the papers. If the' court was without jurisdiction, no judgment at all was ren~ •dered.

The Code of Practice lays down the rule regarding the incompa•tency of a court without jurisdiction raiione materiae, as follows: “Where the judgment, though clothed with all the necessary formalities, has, nevertheless, been given by a judge incompetent to try tLe suit, owing to the amount,” etc., the judgment is absolutely null. A't. €06.

.We think that it is equally as conclusive that the absolute nullity may be passed upon in a tribunal of original jurisdiction, when *n .attempt is made to execute the judgment, and that it may also be passed upon in a direct action brought to have the absolute nullity •decreed.

Third: This action of nullity may properly be brought in the court .to which the case was remanded for execution, and which has charge of the execution of the judgment. It may well be held that the judgment becomes the judgment of the court.» qua after the case has been remanded, and no good reason suggests itself why it should not be subject to attack when it is manifest that the judgment is an absolute nullity.

It is therefore ordered, adjudged and decreed that the judgment appealed from in this case, be avoided, annulled and reversed; that the •case be reinstated on the docket and that the trial be proceeded with in accordance with the views before expressed. The cost of appeal to be paid by the defendant and appellee, and the cost of the District Court to abide the final determination of the suit.


text:
    No. 13,197.
    The Tutorship of the Minor Jesse H. Stansbrough. Application for Tutorship and Opposition Thereto.
    Syllabus.
    1. Action of the Family Meeting Annulled for Cause. — Authority is delegated to the courts to set aside the action of the family meeting and appoint a tutor, if the physical infirmities of the one recommended for the appointment prevent him from managing his own affairs and those of the minor.
    The physical infirmities of the applicant would prevent him from giving the proper care to a child of five years old.
    2, Judge's Authority to Appoint Maternal Grandfather. — The applicant for the tutorship, who was appointed, was also a grandfather of the minor; ' there was no necessity of calling another family meeting. The judge could, appoint without its action. (Wood vs. Brown, 10 La., 540.)
    ON APPEAL from the Seventh Judicial District Court fcr the Parish of Madison. Montgomery, J.

      )Vade Ii. Young for Applicant, Appellant.

      Snyder c6 Clinton and Snydc.r & Spencer, for Opponent, Appellee-
    Argued and submitted June 3, 1899.
    Opinion handed down June 12, 1899.
   The opinion of the court was delivered by

Breaux, J.

This is an appeal by James II. Stansbrough, the paternal grandfather, from the judgment rejecting the action of the family meeting, which had recommended him to be appointed tutor and appointing the maternal grandfather.

Appellant J. M. Stansbrough’s grounds for reversing the judgment are:

1. The judge had no authority to set aside the action of the family meeting and appoint a tutor.

2. There was no reason to exclude appellant from the tutorship.

The appellee, Rollins, in his application for the tutorship, gives as a reason for not qualifying, or previously seeking to qualify as tutor: “The property at the death of his son was heavily encumbered with debt, resulting from a litigation in which he (appellant) recovered the property for the minor son, and is now subject tó a mortgage which almost equals, he avers, if it does not exceed, the value of the property.

“The maternal relatives having become dissatisfied for that reason,, he (appellant) made application for the tutorship.”

The maternal grandfather, James D. Rollins, opposing the application of Stansbrough for the tutorship, urged that Mr. Stansbrough is incapacitated by his infirmities from managing his own affairs, and is thereby excluded from the tutorship under Article 302 of the Civil Code; that he suffers from an incurable disease — cancer on the face— is unable to walk, owing to an injury received about a year ago, and requires constant care, attention and nursing. Besides that, he has interests conflicting with those of the minor. In addition, that he is not an appellant in good faith, being unable to qualify, and that his qualifying, if Ire qualified, would result in preventing a proper administration.

Moreover, he (Rollins, appellee,) shows that he has had the custody and care of the minor, (who is now about five years old),' from his birth; that he is the proper person to be appointed to the minor, being the maternal grandfather; the paternal grandfather being incapacitated.

First: We will not dwell at length upon the infirmities of the sadly afflicted paternal grandfather, who is appellant here, or set forth in great detail why it is that he is physically unable to attend to the duties of a tutor. He is confined to his room, and most of the time to his bed.

It is satisfactorily shown, we think, that, while his mental faculties are entirely sound, he is physically unable to give that attention to the management of the minor’s estate which the present condition of the estate requires. He is seventy-two years of age. In his present condition he would be unable to give needful care to a child five years old.

The members of the family meeting who recommended his appointment, at least a majority of them, did not, when they were examined as witnesses on the trial of this case before the District Court, testify that he is capable of taking care of the minor and managing his affairs. They evidently thought that, by employing some one to assist him, the trust would be properly discharged. We think, if he is personally too infirm, the possibility of his employing help- would not obviate the objection raised.

“Those whose infirmities prevent them from managing their own affairs,” can not be tutors, is the clear provision of the Code. Article 302.

But this is not all; we have reviewed the evidence of record relating to the present condition of the minor’s affairs’. It shows that there are debts which require some attention. The property has been sold for taxes, and appellant himself after settlement, will owe a balance to his grandson.

“Those who are debtors to a minor are excluded from the tutorship, unless they discharge the debt prior to their appointment.” 0. 0., 302.

The foregoing is clearly expressed.

While the testimony of the appellant, (Stansbrough) impresses us ns being the testimony of an honorable old gentleman, who would not wrong anyone out of the value of anything, we feel convinced that in the present condition of his business, it is to the interest of all concerned that some settlement should be made, and that his indebtedness to this minor should not be increased.

Taken as a whole, we are confident that it will take active management to save something- for the minor, and for that reason particularly, we agree with the J udge of the District Court.

Having' arrived at the conclusion that the applicant is excluded by law, we think' it follows that the opponent in the' District Coi^rt and the appellee here should be retained as tutor.

Second: The judge had authority to set aside the action of the family meeting- and decree, if the evidence sustained that view, that the applicant was excluded by law.

If his position was correct, it remained only for him to appoint the other applicant.

The maternal grandfather was entitled to the tutorship, and there was no necessity for calling another family meeting. Wood vs. Brown, 10 La., 540.

For reasons assigned, we affirm the judgment of the District Court.


author: Bkeaüx, J. Monroe, J.

text:
    No. 13,138.
    William Brinkhaus vs. Alfred Pavy, Clerk, et al.; and S. Gumbel & Co. vs. M. P. Colomb. (Consolidated.)
    Syllabus.
    1. Novation. — Plaintiffs did not novate their claim by accepting a second mortgage, which included the balance due them on a first mortgage. They continued to hold possession of the notes secured by the first mortgage.
    2. The onus of proof was with the debtor to sustain the plea that they retained these notes without right. The proof fails to sustain the contention of defendant on this point.
    S. Imputation op Payment. — Plaintiffs stipulated in their mortgage that they would have the right to.impute payment as they chose. This stipulation is binding, but it did not enable plaintiffs to increase the amount due on the first note at the time the second mortgage was given.
    ON APPEAL from tho Eleventh Judicial District Court for the Parish of St. Laudry. I)vpre} J.

      E. D. Estilelie for Wm. Brinkhaus and M. P. Colomb, Appellees.

      Saunders & Miller and Kenneth Baillio for S. Gumbel & Co., Appellants.
    Argued and submitted May 1, 1899.
    Opinion handed down May 15, 1899.
    Rehearing refused, reasons assigned, June 12, 1899.
   The opinion of th,e court was delivered by

Bkeaüx, J.

Two creditors of the defendant, whose claims are secured as to their payment by mortgage, claim priority in rank over the property mortgaged, and in this suit the rank of these mortgages-is to be determined.

Gumbel & Co. were the commission merchants of the defendant for many years. They became the holders of promissory notes dated March 25th, 1892, representing thirty-six hundred dollars, bearing interest and signed by defendant Colomb, as maker, payable respectively in January and February, 1893, identified with an act of mortgage of the same date as the date of the notes.

Gumbel &■ Go. retained the right, expressed in the mortgage deed, of applying the net proceeds of defendant’s crop “and of all products shipped and of payments of money‘to the payment of any indebtedness which may now be due, or which may hereafter become due to the said mortgagees by the said mortgagor’s open account.”

In April of 1892, Wm. Brinkhaus took a mortgage on defendant’s property, i. e., the same property which was mortgaged to plaintiff (Gumbel & Co.) in March preceeding, as security for the payment of the sum of two thousand and thirty-one and 75-100 dollars, and interest.

The defendant, (Colomb,) on February 5th, 1894, executed another mortgage to plaintiffs (Gumbel & Co.) for the sum of twenty-one hundred dollar’s. The act of mortgage covered a lien on the crop for-that year-. The amount of the mortgage was payable on the 1st of January.

The first mortgage of plaintiffs (Gumbel & Co.) is first in rank, unless Brinkhause, who holds the second mortgage in order of date, sustains his position here that plaintiffs (Gumbel & Co.) have eonsented to a novation or have received payment of their first mortgage growing- out of the imputation of payment as’ made.

In one of their petitions plaintiffs (Gumbel & Go.) reserve their rights of action on their second mortgage and claim exclusively on; their first mortgage. In another of their pleadings they aver that the-note for $2,100 and the mortgage by which it is secured, are paid under the imputation of payment to be made by them.

The following is a narrative of the facts touching the question of novation and of imputation of payment:

In March, 1894, Colomb, the defendant, who resides at. some distance in the country, came to the city of New Orleans to make a settlement with plaintiffs (Gumbel & Go.), and to get them to make him a loan of money. to enable him to cultivate his crop. He asked plaintiffs to let him know the amount of his indebtedness. The-amount was about $1,100. ,

Here, thede fendant swore that plaintiffs (Gumbel & Go.) asked him to give them a mortgage for the balance he owed and for an advance-which they finally consented to make of one thousand dollars. Then-defendant (Colomb) executed a mortgage for twenty-one hundred' dollars. In this mortgage it was stipulated that Gumbel & Go. would havé the right at such time as they should choose to impute the proceeds of the mortgagor’s crop consigned by him to any debt then or-thereafter due by the mortgagor: A stipulation similar to that contained in the act of mortgage of the year 1892.

At this point the testimony greatly varies.

Colomb, the defendant, swore that plaintiff agreed to merge the old debt into the new and to accept the second mortgage in lieu of the first. He was examined as a witness on two different days. On the-first day he swore as follows:

Q. “On that day, did Mr. Gumbel ask you anything about- what mortgages were on your property ?” (This was the day on which the-mortgage was executed.)

A. “No, sir; if he did, I don’t recollect it.”

Q. “On the day that you had the conversation and executed the-mortgage before George C. Preot, did you notify Mr. Gumbel that William Brinkhaus had a mortgage on your property?”

A. “No, sir; I did not tell him.”

Q. “How long after that did Mr. Gumbel or any member of the firm ascertain that Mr. Brinkhaus had a mortgage on your property ?”

A. “That I cannot answer.”

On the second day he swore:

“He (Gumbel, Sr.) said to me that he did not care to make any advances to me because, he said, he had learned that I had given a mortgage on my property to Mr. Brinkhaus. Then I returned the next day with Mr. Moise. Then I said to him, ‘cannot you make me advances with which to make my crop?’ He said: ‘I don’t care much to do so.’ 1 said to him: ‘I expect, although I do owe Brinkhaus, to be able to make a crop to pay you.’ ”

This testimony is not consistent, and we, in consequence, arrived at the conclusion that plaintiffs knew nothing of the Brinldiaus mortgage. This is the only testimony regarding notice of a prior mortgage.

One of the firm of Gumbel & Co., on this subject, swore that the agreement was arrived at with the distinct understanding that the plaintiffs (Gumbel & Co.) would accept a mortgage of two thousand ,one hundred .dollars “which would rank the same as our previous •mortgage”' and that at the time nothing was said by defendant (Colomb) about a mortgage held by Brinldiaus, of which plaintiffs (Gumbel & Co.) had never heard.

The other member of plaintiff’s firm swore that at the time his firm took the mortgage of February, 1894, they were led to believe by defendant (Colomb) that it would be the mortgage first in rank, •.and that the act was signed with that understanding; but that much to their surprise, about a week afterwards they received a mortgage certificate showing that there was another mortgage anterior to their last mortgage.

With reference to the consideration for which this mortgage was .executed, this witness testified that the defendant (Colomb) owed -plaintiffs (Gumbel & Co.) about one thousand one hundred dollars, ■and with the one thousand dollars advanced at the time the last mortgage was executed, was the only amount due them.

He also swore that they agreed with defendant to grant him an additional amount of one thousand dollars, taking a note of twenty-one hundred dollars, provided the records, as they existed when they took the preceding notes, were clear.

This witness also testified: “Our agreement was 1o hold them until tlie recordation of the $2100 mortgage, to see whether the records were clear. If they were, we would return them; if they were not, we would hold them.”

It follows: though plaintiffs did consent to accept a second mortgage in lieu of the first, it was done without a full knowledge of the facts.

Had Bumbel & Co.’s second mortgage been first in rank as the first mortgage was, the notes, in our view, would have been extinguished.

A number of letters were introduced in evidence. In one of these letters the defendant (Oolomb) requested plaintiffs (Gumbel & Co.) to send him the notes identified with the first act of mortgage. Plaintiffs, in answer, stated to him that they had been recently notified by a certificate of mortgage that there was a mortgage prior to their last mortgage, and that, in consequence, they refused to return these notes.

It also appears that plaintiffs tendered an itemized account to the -defendant at different times, and each had a memorandum added, setting forth the mortgage notes held by plaintiffs against the defendant.

For instance, the account rendered March 15th, 1894, after showing balance on open account to credit of defendant of four thousand six hundred and seventy-oiie 84-100 dollars, has thq following subjoined:

“We hold your mortgage notes as follows:

“Due 1-4 January, 1893.....................$1,800 00

“Interest 8% maturity (1 year 70 days)...... 172 00 $1,972 00

“Due 15-18 February, 1893 ................. 1,800 00

“Interest S% maturity (1 year 25 days)...... 154 00 1,954 00

“Due 1-4 February, 1895, interest 8%, maturity 2,100 00

$6,026 00”

All the other statements rendered by plaintiffs to defendant are substantially the same. Colomb, the defendant, never in any manner objected to any of the statements at any time prior to 1897.

In April, 1895, plaintiffs wrote the following letter to the defendant:

“ill P. Oolomb:

“Dear Sir — As requested in your favor of the 7th inst., we enclose statement of your account showing a balance in your favo” of $4,671.15 to be accounted for. We are holding- your three mortgage-notes, two for $1,800 and one for $2,100, amounting' with interest ro date to $6,374.14. You therefore owe us net $1,702.73 at this date- and to be accounted for.” * * * * * * * * * *

(Signed by Plaintiffs.)

This corresponds to a cent with balance shown on open account as due by defendant, and amount due on notes held by plaintiffs and due by defendant.

The following is an excerpt from another letter written in 1896; “We enclose statement of your account showing that we are holding your mortgage notes with interest to date amounting to $7,055.47,. against which you have a credit balance of $5,571.86.”

Leaving a balance due to plaintiff of $1,483.61 as per the statements. This was the amount claimed in the original petition.

Plaintiffs subsequently amended their petition claiming that by error they at first claimed the amount just stated. Correcting the error, they alleged in a supplemental petition that the amount due was two thousand and three dollars.

That after imputing all of Colomb, defendant’s credits, there remained due by him on the two mortgage notes for eighteen hundred'dollars, the sum last stated; and plaintiffs averred that the mortgagor, defendant Colomb, had no right to the imputation of his credits, previously received, to the two notes of eighteen hundred dollars instead of to the credit of the note of two thousand one hundred dollars; that the right to impute credits was vested in the mortgagees by the contract of mortgage of February 5th, 1894, and that they could not be controlled in the exercise of their right of imputation by Colomb or any of his creditors.

The foregoing are in the main the issues of fact in the case.

The judge of the District Court rendered a judgment in favor of' defendant. Plaintiffs appeal.

We are not inclined to the opinion that plaintiffs intended to novate their claim for a mortgage second in rank as to its payment. True, the evidence on this point was contradictory, and plaintiffs were not quick in finding out the rank of mortgage in the mortgage office-of St. Landry parish. They also neglected or overlooked to have it stated in the second mortgage executed by defendant in their favor that they would complete the transaction and give up the notes they held, after the delivery to them of a certificate of mortgage disclosing the rank of the claims against the defendant.

For reasons not explained, they instructed the notary, who drew up the act of mortgage, after they had accepted the mortgage, to get a certificate of mortgage. They were surprised to learn from the certificate of mortgage, obtained by the notary in accordance with their direction, that a mortgage against Colomb primed their own, of which they swore they knew nothing.

We have examined the record closely; have weighed the evidence, and brought the work of examination on this point to a close, feeling confident that plaintiffs did not know at the time they accepted the mortgage that Brinkhaus had a mortgage which primed theirs.

This finds corroboration in some of the letters of plaintiffs to the ■defendant in which they state that "they will hold on to the first note because of the Brinkhaus mortgage.

After the receipt of these letters, but prior to the present litigation, the defendant (Oolomb) urged no complaint against plaintiffs (Gumbel & Co.) on the ground that they should have returned the first note.

On the contrary, after notice by plaintiffs that they would not surrender those notes, the defendant received the amount of one thousand dollars, secured by the second mortgage, and in one of his letters at least, he refers to the mortgages and notes which plaintiffs held as reason why they should aid him by letting him have money to cultivate and gather his crop.

The position of plaintiffs is also sustained by the fact that they are still in possession of these notes. This, we take it, indicated the intention of the parties. This court in similar cases has always given weight to the fact of possession of notes.

“Taking a note in renewal of one secured by mortgage is no novation when the first one is not given up.” Exchange & Banking Co. vs. Walden, 15th La., 431.

“The first note not having been surrendered to the creditor there was no novation.” Morgan et al. vs. Their Creditors, 1st La., 527; Coco vs. Lecour, 4th La., 512.

In a case recently decided this court said: “We do not think the notes were novated. Novation is not presumed. The notes were not ■surrendered:” citing a numbér of decisions. Zeigler vs. Creditors, 49th Ann., 163.

To the same effect was Holton & Winn vs. Hubbard & Co. et als., 49th Ann., 733.

We have taken up and considered the points of the learned counsel for Colornb.

The first, in the order in which they are presented, that the consideration of the last mortgage was greater than the first mortgage, and that if a subsequent contract includes other consideration in addition to the consideration of the first, the former, the new, supercedes the latter, and that novation takes place.

Of the decisions cited by defendant only the case of Gardner vs. Levancor, 26th Ann., 679, throws some light, as we think, upon the subject. We quote from the syllabus:

“The original notes of Levancor £ Co. to plaintiffs were given up to ihe former with ihe exception, perhaps:, of one of them not in the possession of the plaintiffs al ihe time. An exchange of notes tool;, place. Plaintiffs received the new notes executed in their favor by defendants in pursuance of an agreement entered into between the-parties. Novation was the result.”

The abo^e is an entirely different case from the one before us for decision, in that it was apparent that it was the intention of the parties to novate and substitute new notes, and the old notes were returned to the debtor, excepting one which the creditor did not hold and which therefore could not be affected by the transaction of the parties, and has therefore no bearing here.

True, there was other consideration than the old indebtedness, but that of itself does not give ground to sustain the plea of novation. We have found nothing directly in point in our jurisprudence. Consulting the French authorities we found the- following bearing' directly :

“NOVATION PAR CIIANGI31IENT D’OBJET."

“En d’autres termes, la novation n’existe qu’autaut qu’ellc resulte clairement des actes; il lie suffit pas aux parties, pour l’opcrer, cl’augmenter ou de diminuer la dette, de modifier le terme d’échéance ou les suretés primitivement données, ni meme de changer l’espéce do l’obligation; il faut que l’intention de faire novation soit exprimée par les parties ou que le second engagement soit necessairement incompatible avec le premier.” Fuzier Herman, Vol. 3, page 132, §36.

The foregoing sustains the view that it does not follow that, because a debt is increased, the second act operates as a novation of the first. We are inclined to give it weight for the reason that the articles of the French Code on the subject are similar to our own.

At this point of the ease our attention was arrested by defendant’s' (Colomb) contention that plaintiffs (Gumbel & Co.) could not prove the condition claimed by them by parol; that they should have' inserted the condition in the written act.

Upon examination we found the following in the note of evidence which, in our view, answers the objection.

Counsel for Rrinkhaus moved the court to strike out testimony of plaintiffs (Gumbel & Co.) going to show any understanding had between them and Colomb in relation to the return of one thousand eight hundred dollars, upon the ground that everything said at the' time was merged in the contract of mortgage, and that no parol eyideuce contradicting the recitals of the act could be received.

Counsel for S. Gumbel contended that their purpose in introducing the evidence was not to contradict the recitals of the act, but to rebut and contradict the testimony of the witness Colomb; that at the time and before the passage of the act it was understood between the firm of S. Gumbel & Co. and the witness that they would return him his one thousand eight hundred dollars notes, and show the condition upon which the return was to be made.

The facts being as set out here, the evidence was properly admitted.

This brings us to the question of imputation of payments. On that branch of the case defendant (Colomb) assails plaintiffs’ (Gumbel & Co..) pleadings, and charges that in both their original and amended petition, plaintiffs claim that Colomb owes them the balance due' them on the two notes of one thousand eight hundred dollars, plus the" twenty-0110 hundred dollars; that as to the last, they reserve their right of action by allegation to that effect.

There was some inconsistency in the pleadings, which, however, we do not think had the effect of imputing payments as claimed by Brinkhaus.

Gumbel■& Co. claimed the right to hold the two notes of one thousand eight hundred dollars each, to cover the advances made under the second mortgage and the amount of indebtedness of deféndant, Colomb, on the day that he executed this second mortgage. In this, in our view, there is error. The first notes could not be held and their proceeds placed to the credit of the second mortgage. One, as the issues are appreciated by us, is independent of the other". Plaintiffs’’ right to retain the notes, first in date, related back to the priór transactions, and not to those subsequent.

IVith reference to the amount due, the evidence discloses the following:

Question propounded to a member of the firm:

By the court: “I repeat the question.”

Q. “At the time he executed the $2,100 mortgage, viz., February, 1894, that was all he was owing you ?”

A. “That ivas all that he was owing us at the time. We applied the payments to that date.”

The amount referred to by the witness was one thousand one hundred dollars.

It is therefore ordered, adjudged and decreed, that the judgment .appealed from be annulled, avoided, reversed and set aside, as relates •to $1,100.

It is further ordered, adjudged and decreed that S. Gumbel & Co. 'have judgment against M. P. Colomb for the sum of one thousand one 'hundred dollars, with 8% interest, from February 4th, 1894, and 5% ■.attorney’s fee on the amount, as stipulated in the act of mortgage.’

The rights of mortgage in S. Gumbel & Co. are hereby recognized, and declared to exist on the property mortgaged to the extent of the amount before mentioned, in this decree, and for interest and attorney’s fees, as dating from February 4th, 1894.

To this extent only, the judgment appealed from is annulled.

With the foregoing exception, the judgment appealed from is affirmed. The costs of appeal are to be paid by appellees. ■ The costs of the lower court in case of Brinkhaus vs. Pavy, Clerk, et al., are to be paid by defendants out of the proceeds of the property mortgaged; and the costs in the case of S. Gumbel & Co. vs. M. P. Colomb are to be paid by M. P. Oolomb.

On Application for Reheapjno.

Monroe, J.

The application for rehearing on behalf of Brinkhaus and Colomb, is based upon two propositions, which have already been ■fully discussed, to-wit:

1. That-the acceptance, by Gumbel & Go. of the note and mortgage, for $2100, in February, 1894, operated, ipso facto, as a novation ofithe debt represented by the notes and mortgage of March, 1892, and that no parol evidence to the contrary should have been admitted.

2. That, from Gumbel & Co.’s petition, reserving their right to -sue upon the note of February, 1894, they must be considered as admitting that payments sufficient to extinguish them had been imputed to the notes of March, 1892, leaving due thereon only an amount represented by the note of February, 1894, secured by mortgage inferior in rank to that of Brinkhaus.

First. The parol evidence admitted shows that there was no intention to accept the note of February, 1894, secured by mortgage of inferior rank, as a substitute, foi- the debt represented by the note of February, 1894, was not entirely independent of that represented by the notes of March, 1892. As the matter stands, the effect of the , ■parol evidence, offered in behalf of Brinkhaus and Oolomb them■selves, is to'establish the fact that $1100 of the debt represented by the notes of March, 1892, is included in the $2100 for which the note ■of February, 1894, was given, and thus to preclude Gumbel & Co. from recovering that amount twice. The admission of the evidence, for the purpose and with the effect stated, necessarily involved an explanation of the circumstances under which the note for $2100 was given, and made it clear that Gumbel & Co. had no intention, in accepting said note, to surrender a good security for a bad one.

Second. In their answer to the suit filed by Brinkhaus, Gumbel & Co. say that they have imputed the balances shown to be due on Colomb’s open account to the payment of the $2100 note, of February, 1894, and they claim as still due them, on the $1800 notes of March, 1892, a balance of $2003, and interest, etc. In the suit filed by them, against Colomb, they claim, as due them on’the $1800 notes, áfter the allowance of all credits to which they are entitled, a balance of $1497.90, and interest, etc., for which they pray for judgment. They -say, also, in this petition, that they hold the note of $2100 and they ■reserve their right of action thereon. The learned counsel who represents Brinkhaus and Colomb insists that we should give to this reservation the effect of a judicial admission on the part of Gumbel & Co., that their whole remaining claim against Oolomb is represented by the $2100 note, secured by an inferior, and possibly worthless, mortgage, and should ignore the fact that the petition in which the reservation is made was filed for no other immediate purpose than to assert affirmatively, and enforce, a claim for $1497.90, on the $1800 notes, which were, and are, secured by first mortgage. We have found that the balance due on those notes is $1100, and that said balance is also included in, and covered by, the $2100 note; the “reservation”, therefore, applies to that note, after the deduction of said amount of $1100.

The pleadings of Gumbel & Co. are lacking' in perspeeuity and' frankness, but they are not fairly susceptible of the construction which is sought to be placed on them.

Rehearing refused.


author: Miller, J. Blanchard, J.

text:
    No. 12,902.
    Morgan's Louisiana and Texas Railroad and Steamship Company vs. Clarence C. Barton.
    Syllabus.
    (1) The plaintiff in expropriation is entitled to an appeal on the issue of the-value of the property when he claims the value is excessive, although the party seeking the expropriation has not paid into court the amount fixed by the commissioners, or jury, that payment not being the condition for the appeal.
    (2) The court again affirms the appropriate weight of the finding of the commissioners, or jury, but this court will review the finding when in the light of the testimony the same as to value is plainly excessive.
    (3) The title of a legislative act to incorporate “the railroad corporation, and define its powers” covers the power to construct and extend short branch-roads connecting the main line with parishes ad.iacent to the main line.
    (4) So the title including the power to expropriate, will be deemed to cover the method of expropriation prescribed by the statute.
    (5) The court construes the plaintiff’s charter (Acts 1877, Reg. Session, p. 137) to authorize the construction of branch roads on its main line from New Orleans.
    APPEAL from the Twentieth .Judicial District Court for the Parish of Assumption. Guión, J.

      Olay Knobloch (Denegre, Blair & Denegre of Counsel) for Plaintiff and Appellant.

      Beattie & Beatlie for Defendant and Appellee.
    Argued and submitted January 11, 1899.
    Opinion handed down February 6, 1899.
    Judgment amended and rehearing refused May 29, 1899.
   On tlie application for rehearing’ by Blanchard, J.

The opinion of the court was delivered By

Miller, J.

The plaintiff, seeking to expropriate defendant’s property, takes-this appeal from the judgment based on an award by the commissioners fixing the value of the land, at an amount the plaintiff claims is excessive.

The defendant moves to dismiss the appeal. He takes the ground that as the plaintiff is now under no obligation to pay for the land, the judgment merely fixing the value which ho has declined to pay, the conclusion of the argument is that the- decree here must leave it optional for the plaintiff whether or not to pay for the land, and hence it is urged we have no practical issue to determine, or as it is expressed we have only “a moot case”. The plaintiff’s demand is for the land on payment of its value. Ilis complaint is the denial of that demand, by reason of the requirement of the judgment that plaintiff shall pay more than the actual value. JLt seems to us that the right of plaintiff to appeal from this judgment, which if erroneous, as the company maintains, denies an expropriation secured by law, cannot be disputed. Revised Statutes, sections 1479, 1483, etc. Charter Company, Act 37 of 1877, Regular Session; Railroad vs. Barton, 43rd Ann., 176; Telegraph Co. vs. Railroad Co., 49th Ann., 1281. The motion to dismiss is denied.

Tlie defendant contends that under the, plaintiffs’ charter it has no. power to expropriate for the purpose assigned in the petition; the construction of a branch road. In support of this contention we are referred to tlie defendant’s charter entitled: “An act to incorporate tlie Morgan’s Louisiana and Texas Rail Road and Steamship Company,” etc. Acts of 1877, No. 37, Regular Session. Tt is claimed that the title does not express the objects of tbe act. We presume by this is intended that the title does not cover the authority to construct branch roads, nor to authorize the method of expropriation through the medium of the special tribunal directed by the charter. Sections 16, 17, et seq. Included in the title we find “to incorporate the Morgan’s Louisiana and Texas Railroad Company, * * * to define the powers of said company, to authorize the' expropriation of lands " * and to vest in said company all powers incidental and necessary for the building and maintenance of railroads to the States of Texas, North Louisiana and Arkansas.” When the act was passed, Oharles Morgan and his associates had already constructed part of the line proposed in the title of the act. The road, for the construction of which the plaintiff now seeks fhe land in controversy, is to be _ an extension of one of the connecting branch lines of the main road of the corporation. These branch lines, affording greater facilities to shippers of the produce of the parishes adjacent to the road, may well be deemed aids for the accomplishment of the objects of the corporation. The road owned by the individuals before the act of incorporation was constructed to afford railroad transportation for the produce of what are known as the sugar parishes through which the main line runs, and the branch road or its extension is now proposed for uniting the main line with an interior adjoining parish. Our jurisprudence has not favored that construction which exacts that mere incidents of the subject shall find expression in the title of the act. Our predecessors held, in a case presenting a similar question, that the authority to construct a short branch line was included in the purpose to incorporate the main road expressed in the title. We reach the same conclusion in respect to the title called in question in this case. Constitutions of 1868, Article 114; of 1879, Article 29; of 1898, Article 31; Succession of Lanzetti, 9th Ann., 329; Railroad vs. Wooten, 36th Ann., 441; Succession of Saloy; 44th Ann., 442; Municipality No. Three vs. Michoud, 6th Ann., 605. The argument also maintains that the charter itself gives no power to construct branch roads. The corporation was organized to maintain and operate the railroad already completed to Morgan City, and to continue the road from Morgan City to Texas. In the second paragraph of the fifth section of the act, we find the power given “to locate, construct, own, maintain and use such branch roads as the Directors may deem requisite.” The contention that this power is to be deemed applicable only to branches on the line fr.om Morgan City to Texas, and not to branch roads on the main line from New Orleans to Morgan City, is, we think, incapable of support. The argument directs our attention to the principle that enumerated powers given to a corporation are deemed prohibitive of other and distinct powers, and the argument also relies on the rule of construction that solves in favor of the public doubts arising on the interpretation of the power of a corporation. Minturn vs. Larue, 23rd Howard, p. 436; Thomas vs. Railroad Company, 101 U. S., 81. In cur view, however, the power to build or extend a short branch line as is proposed in this case, is not a distinct, and different power from those authorized by the act and its title; nor can we hold that the power under discussion given expressly by the fifth section, is susceptible of the doubt the argument supposes. The title gives the corporation the power to expropriate, the body of the act provides a method of expropriation. Section 17 et seq. The argument, in our opinion, is not successful in its insistence that the method of expropriation is not fairly covered by the power the title expresses.

We appreciate that in this class of cases the finding of the commissioners, residents, and property owners oí the vicinage of the property sought to be expropriated, is entitled to great weight. On the other hand, we must recognize that the right oi appeal from the judgment resting on their finding is secured to plaintiff by the Constitution and laws. Our jurisprudence according due weight to the award, equally affirms the power and duty of this court to give relief when the award is manifestly excessive. Revised Statutes, Sections 1479, 1483, et seq. Gay vs. N. O. Pacific Railway Co., 32nd Ann., 277; In the Matter of the Morgan R. R. and S. S. Co. Praying for Appointment of Commissioners, 32nd Ann., 374; Telegraph Co. vs. Railroad Co., 49th Ann., 1281.

The commissioners allowed as incidental damages, loss of crops, the cost of new bridges and the damage for changing headlands. The plaintiff contends against these items that the obligation is on the plaintiff exerting the right of expropriation to leave or place the property in condition the same as existed before the expropriation. Hence, it is contended the defendant is to be content with the obligation of plaintiff in this respect. This obligation of plaintiff is of general recognition, but we do not understand, therefore, that the defendant is not entitled to demand compensation in this suit for the damages .he sustains incident to the expropriation. The plaintiff’s suit was brought in the early summer of 1897. It may be that when the right is exercised under this judgment, there will be no crops on the land, or in any way affected by the expropriation. W e find no basis to sustain the award in this respect. The damage in respect to headlands, if we correctly appreciate, refers to the change that will be rendered in the turn rows or spaces at the end of each cut intersected by the railroad laid through defendant’s field. We can appreciate that other spaces or turn rows will have to be provided for those made useless. The amount awarded by the commissioners is two hundred and fifty dollars, embracing besides loss of crop, not at all certain to be sustaiued. We have no basis in the record to adjust the loss that may result from the substitution of headlands for those displaced, but will, however, reserve the defendant’s rights k, ,. The items for new bridges and removing old bridges, the commissioners 011 the testimony in the record have fixed at three hundred and thirty-nine dollars, which allowance we do not feel authorized to disturb.

On the question of the value of the land, eight 34-100 acres, the commissioners have allowed twenty-five hundred dollars, or three hundred dollars per acre. The defendant has put in the record the testimony of witnesses claimed to support the' allowance. Without disregarding this testimony, it is sufficient to say that the opinions of the witnesses do not seem to be based on any fact calculated to show the value of the land. It is the right of plaintiff to expropriate for the value of the land, and, of course, the judgment of competent parties based on facts within their knowledge or experience must have weight, but testimony from witnesses whose ideas of value appear to be controlled. by an aversion to railroads going through their property, or from an indisposition to sell at any price, naturally can exert little, if any influence on the question the court is called on to decide. We think we have indicated the character of defendant’s testimony. On the other hand the plaintiff has ifiaced before us the titles of defendant of recent date showing the price paid by him for the entire body of land of which the eight acres are part; the acts of sale of land in the same neighborhood, and of the same quality; the assessment of defendant’s property, and other testimony on this issue of value. We can understand that the value of high or ridge land in the defendant’s field is not to be adjusted by the price per acre obtained by dividing the total price by the entire acreage bought, embracing many acres of swamp or low land. But, if, suppose, the defendants’ purchase was only ridge or high land, the quantity of which is fixed by the tesimony, the fair inference is the price he would have paid would be less than that paid for all ridge as well as low land. On this line of examination we find the award gives an amount for the land in palpable excess of any value that can be deduced from the price paid plaintiff. Giving all possible weight, or rather restricting the testimony of the plaintiffs’ witnesses to its due influence, and giving, we think, necessary effect to the acts by which defendant purchased, the acts of sale of other land, the assessment of value, with due allowance for under assessment, and the other testimony in the record, we reach tíre conclusion that the award gives two-thirds more than the value of the land. We think this a plain case of an excessive award against which the appeal must give relief. We fix the value of the land at eight hundred and thirty-three 33-100 dollars.

It is therefore ordered, adjudged and decreed, that the judgment o£ the lower court be avoided and reversed, and it is now ordered, and decreed, that the land sought to be expropriated, to-wit, eight acres, he and is hereby adjudged to the plaintiffs on the payment hy plaintiffs of eleven hundred and thirty-nine dollars ($1,139,001, reserving plaintiff’s rights in respect to the damage, if any, for changes of headlands or loss of crops on existing headlands; the costs of appeal to be borne by defendant, those of the lower court to be paid by plaintiff.

On Application por Rehearing.

Blanchard, J.

It is again urged upon us that plaintiff company •could not appeal from the judgment complained of until it had deposited in court the amount of award of the commissioners. The ground of this contention is that until the sum of the award is deposited it remains optional with plaintiff company whether or not it will proceed further — no means being afforded of compelling Its acceptance and execution of the decree.

The statute of expropriation authorizes the plaintiff in a condemnation proceeding, to whom a judgment of expropriation is given and against whom an award is made of a sum ascertained and declared to he the value of the property taken for public purposes, and damages, to deposit such sum in court, take possession of the premises and proceed with the erection or construction of the work of public improvement, and this notwithstanding an appeal is taken. The reason for this manifestly is that the work may not be impeded by the delays incident to appeal. .But we do not understand that plaintiff is required to make this deposit before he may exercise the right of appeal. It may well be that the award for the property and damages may be so great as to defeat the public work in contemplation, that the plaintiff would be unable to proceed if held to the award, that it might become necessary because of the great cost to change the route of its line of road, etc. Because of his inability or unwillingness to pay the award is he to be deprived of his right of appeal to test its correctness?

Suppose the appellate court were to decline to interfere, holding the award reasonable ¿nd affirming the judgment, and on this plaintiff were to refuse to take the property and pay the price, in what way is defendant injured? He has resisted the expropriation and in this way he realizes the practical success of his efforts to- prevent the-taking of his property. The costs of the expropriation proceedings are required to be paid by plaintiff, and thus no loss arises to defendant. He is, therefore, without interest to complain that plaintiff may not, after all, taire the property. The motion to dismiss the appeal was properly denied.

The other grounds for rehearing are sufficiently covered by the argument of the oiDinion complained of, and need not be gone over again. Suffice it to say, that we see no sufficient reason for not adhering to our former conclusion in regard to same.

But an error of calculation made to the injury of defendant he is entitled to have corrected. The decision of the court awarded $339 as the value of bridge, etc., and $822.33 as the value, etc., of the land taken. These two sums aggregate $1,172.33, whereas the decree of the-court figured the same at $1,139.

An application for rehearing filed also herein by plaintiff calls attention to the necessity of remodeling the decree of the court in certain respects pointed out.

Without an argumentative statement of the same, we will redraft the decree so as to cover the points as far as we think it advisable to do so.

We think this a case where the owner should receive his just compensation clear of any expense of the proeedings, and, accordingly, costs of appeal must be added to the amount herein allowed. Lewis on Eminent Domain, Section 562. It would be different where the owner appealed and failed to secure an increase of award.

It is, therefore, ordered that the decree of this court herein be amended so as to read as follows:—

That the judgment appealed from be avoided and reversed, and it is now ordered and decreed that the tract or strip of land sued for belonging to defendant, C. 0. Barton, and more fully described as a strip of land seventy-five feet wide and four thousand, nine hundred and forty-two feet long, containing a superficial area of eight acres and thirty-four one hundredths of an acre and running through a certain plantation of said 0. 0. Barton, on the right bank of Bayou Lafourelie, and about three miles below the town of Napoleonville, in the parish of Assumption, bounded below or east by the lands of theOakly Planting Company and above or west by the lands of II, Areoneaux — the said strip of land extending from the npper to the lower levee boundaries of said -plantation of defendant Barton and being accurately shown in the blue print map marked “Exhibit A”' (in the record of this suit) between the points A and B thereon — ■ be- and the same is hereby vested in plaintiff, Morgan’s Louisiana and Texas Railroad and Steamship Company, on the deposit by said plaintiff of the sum of eleven hundred and seventy-two dollars and thirty-three cents, in the hank of Napoleonville to the credit of this judgment, free and clear of all mortgages, liens and other incumbrances recorded against or affecting the said property herein awarded to plaintiff — said sum so deposited to await the action of the court a qua in respect to the distribution thereof pursuant to the provisions-of Section 710 of the Revised Statutes of Louisiana.

It is further ordered, etc., that upon the deposit of the aforesaid sum in the Bank of Napoleonville, plaintiff’s right to take possession of the strip of land aforesaid and to proceed with the construction o£ its railroad at once attaches.

It is further ordered, etc., that defendant’s rights in respect to-' damages, if any, for changes of headlands and turn rows and also of crops on existing headlands and turn rows, or new ones to he formed, be reserved to him, not however to he construed as retarding the execution otherwise of this decree.

It is further ordered, etc., that the costs of both courts be taxed against plaintiff company.

Rehearing refused.

Monroe, J., takes no part, the case having been submitted prior to ■ his appointment as one. of the justices of this court.