author: Wyly, J. Howell, J. Morgan, J. Ludeling, C. J., Morgan, J. Wyly, J.,

text:
    No. 3692.
    New Orleans, Mobile and Chattanooga Railroad Company v. The City of New Orleans et als.
    A thorough examination of the question has led this court to the conclusion that the State has the power to grant to a railroad company the right of way through a street in the city of New Orleans.
    Appeal from the Eighth District Court, parish of Orleans. Dibble, J.

      J. A. Campbell and J. B. Kusiis, for plaintiff and appellee. George 8. Daeey and W. W. King, for the city of New Orleans, appellant. Lea, Kinney & Miller, for Pontchartrain Railroad Company, appellant. Leovy, Monroe & Miles Taylor, for Morgan et als.
   Wyly, J.

This controversy arises out of the acts of the nineteenth March, 1868, seventeenth February, 1869, and twenty-first February, 1870, granting to the New Orleans, Mobile and Chattanooga Railroad Company, for passenger and freight depots a space of ground, equal to about four squares; on the batture or levee in front of the city of New Orleans, between -Calliope and Canal streets, and also granting the right to lay tracks and occupy as a railroad a strip of land extending down the levee to Elysian Fields street, and out said, street to Claiborne street, and beyond it.

The plaintiffs took possession and injoiued the city of New Orleans and other parties from interfering with them in any manner. The city denied the validity of the grant; on the ground that the State had no right, title or interest in the property; and alleged that the batture and street in question belong to it, and that the State could not make the divestiture, or deprive New Orleans and its inhabitants of the use of said public place and highway, without the exercise of the right of eminent domain. And this respondent further says : “ That the construction of the New Orleans, Mobile and Chattanooga Railroad by the route contemplated through the city, and the running therein passenger and freight trains, propelled by steam engines or locomotives, and the enjoyment of the grant and the privileges set forth and contained in the several acts referred to, will prevent the use of the batture and Elysian Fields street as a locus publicus and a highway; will destroy the dedication thereof to the public; and will give the plaintiffs the exclusive use of property which belongs to and is needed by New Orleans and its inhabitants.”

The court maintained the demand of the plaintiffs and perpetuated the injunction. The city of New Orleans appeals. By consent of parties the issue, as to the Pontchartrain Railroad Company, joined as codefendants herein, is reserved from the present decision, and as to them the case is indefinitely continued. The question is : had the? General Assembly the right to grant to the New Orleans, Mobile and Chattanooga Eailroad Company, for passenger and freight depots and tracks, the property in controversy 1

If the fee or title to the soil belonged to the State, and its use, as public places, ceased to be necessary, of course the State, as the proprietor, could make the grant. But it is shown that the State had no title whatever to the property, and it is proved beyond question that its use is necessary for the public. The title of the city to this property is as clear and well established as the title of any political corporation can be to common property, or property dedicated to public use. That portion of the batture given for depots between Calliope and Canal streets was undoubtedly the property of Livingston and the other riparian proprietors who conveyed it to New Orleans, and dedicated it to public use in the act of donation or compromise of 1820. This cession and dedication was recognized and approved by the Legislature.

The batture in front of the old city was reserved for and dedicated to public use when the city was laid out in 1724; and since that time it has been used as a levee or quay. If the fee or title to the soil remained in the sovereignty of France, it passed to the United States by the cession, because France ceded forever and in full sovereignty the territory of Louisiana, with all its rights and appurtenances. The ground in question, therefore, passed to the United States if it was public property, and it was not transferred to the State of Louisiana when it was admitted into the Union, because the convention which foimed the constitution acceded to the terms upon which Congress admitted the State into the Union, and by an ordinance forever renounced all right or title to the waste or unappropriated lands. This was expressly decided in the case of De Arm ns, 5 La. 207. In a controversy between New Orleans and the United States in relation to the ground in question, it was decided in 1886 by the highest tribunal of the land that the United States was without title. 10 Peters 662.

That Elysian Fields street was conveyed to New Orleans and dedicated to public use by Bernard Maiigny, and has been occupied as a public highway since 1805, is not disputed.

It is shown that the occupation of these public olaces by the plaintiffs and the running thereon of passenger and freight trains, propelled by locomotives, prevent the use and enjoyment of them by the public, and to a great extent defeat the object of their dedication. The street and quays in question were not granted to New Orleans and dedicated to public use, to be owned and occupied by the Chattanooga Eailroad.

The witness Captain Leathers says: “I am engaged in the steamboat business, commanding steamer Natchez. I have been engaged in the business above thirty-five years. During the last thirty years have been making- weekly landings at the port of New Orleans, discharging ■cargoes of cotton principally. I am very familiar with the river business which is now being done, and which has been done for many years past on the levee of this city. From the wood-work or wharves back to the houses that line the levee, say from Calliope down to Canal street, there is scarcely room enough to do the river business, by which I mean the business of receiving and "shipping freight by the river Mississippi.

“ I am very familiar with the levee, from Canal down to Jackson Square, which is between St. Peter and St. Ann streets. There is not more than enough of levee between Canal street and Jackson Square, and the houses that front the river and the river itself, to do the business which is now carried on by steamboats and sea going vessels.

“I am familiar with the tracks of the Chattanooga Railroad as now laid, say from Calliope street down to Jackson Square. The effect of the Chattanooga Railroad, with its passenger and freight trains and many tracks, is to leave the ships and steamboats without one-third room enough to do their business. The passing to and fro of those trains, and carrying on the business of the road, would, in my opinion, have the effect of giving to the road almost, if not entirely, the exclusive use of the hatture or levee. There is constantly through the day, and all hours of the day, a large number of horses and mules engaged in transporting the river freight, to and from the levee, to the steamboats and ships and seagoing vessels; and I think the passing of the locomotive up and down the levee, would seriously, interfere with the teams and drivers; there are frequently instances of those animals being frightened and running away and endangering their lives, as also the lives of others. I have seen the cars stopped at the front oí my boat several times, entirely blockading my gangway and stopping my hands from putting out freight during that time. The road has left no room scarcely between the track and the boats. I am not the only one that has been subjected to this kind of inconvenience; there have been several boats and many of them. As the business of the road increases, the river business will be subjected to a corresponding increase of inconvenience, amounting almost to an entire deprivation of the use of the levee. The river business is now almost entirely blocked up from Jackson Square to Customhouse street, and from there nearly ruined by the railroad up as far as St. Joseph street, where the Chattanooga road comes to the river and occupies the entire front. To my knowledge the business of the river has been so obstructed by the use of the batture by the Chattanooga Railroad Company, that cargoes of cotton at Vicksburg have been shipped to Savannah, and many owners have shipped their cotton to other ports, which otherwise would have come to New Orleans. In my opinion, one-half of the sugar crop will go up the river and not land here on that account. The use of the batture by the road, as laid down, is tantamount to a monopoly of the batture.”

The testimony of this witness is corroborated by that of a number of other witnesses, and, indeed, the truth thereof is not controverted.

If a political corporation can be the owner of property, of which there can be no doubt, it alone can exercise the right of disposition over its property 5 because, the right of disposition is an essential element of perfect ownership.

If the State can grant the property of New Orleans, as attempted in the case before us, New Orleans would cease to be the owner of its own property; because, it is the owner who has the exclusive right freely to dispose of his property.

Undoubtedly the State can exercise the right of eminent domain and take for public purposes the property of political corporations, as well as the property of individuals, upon paying the owners the value of the property so taken. But, that is not the controversy here. The question is, can the State give the property of New Orleans to the Chattanooga Railroad Company ? We think not.

But it is contended that as the grounds in controversy were dedicated to public use, therefore, they are a part of the public domain of the State which can be alienated by it. This is a fallacy. The fee or title was never in the State; therefore, these public places form no part of the public domain of the State. And, as we have said, the State can not grant what it does not own.

The property of the city dedicated to public use is as much its property as any that it may acquire. Indeed, the streets, walks and quays are more useful and essential to the city and its inhabitants than any other property, and they are inalienable by the State. “ There can be no difference in principle between ground dedicated as a quay to public use, and the streets and alleys of a town, and as to the streets it may be asked whether the King could rightfully have granted them. This will not be pretended by any one. And it is believed that the public right to a common, is equally beyond the power of the sovereign to grant, unless he disposes of it under the power to appropriate property to national use, and then compensation must be paid.” New Orleans v. United States, 10 Peters 662.

“ The inhabitants of a town can not be deprived of their streets, as the streets are essential to the enjoyment of their property. In other words, by closing the streets the value of the buildings of the town would be greatly reduced, if not entirely destroyed. And if ground, dedicated to public use, which adds to the beauty, the health, the convenience, and the value of town property, be arbitrarily appropriated by the sovereign to other purposes, is not the value of the property which has been bought and sold in reference to it, greatly impaired t The value may not be reduced to the same ruinous extent, as it would be to close the streets, but the difference is only in the degree of the injury, and not in the principle involved.” 10 Peters 662

If the State could grant part of the quays and street in question for depots and railroad tracks, it could grant the whole ; it could grant all the streets and public places, and entirely deprive the city of access to the river and virtually make its inhabitants prisoners in their own houses. The grant to the plaintiffs differs from this only in the degree of the injury, not in the principle involved. If the State could make the grant it can authorize, the inclosure of the tracks, as it did’the space given for the depots, and this would virtually close the port of New Orleans, because the inclosure of the tracks, extending along almost the entire front, would cut off communication with the river and destroy the commerce of the city. But it is urged that the State can dispose of the property of New Orleans, because it granted it corporate powers and can, at will, modify or abolish the charter. It is true the powers of government delegated to the city may be revoked and its charter abolished; but it by no meaus follows that the property of the corporation would pass thereby to the State.

“ In respect to public or municipal corporations (says Mr. Kent), which exist only for public purposes, as counties, cities and towns, the Legislature, under proper limitations, have the right to change, modify, enlarge, restrain, or destroy them, securing, however, the property for the use of those for whom it was purchased.” 2 Kent 305. Notwithstanding the power oí the Legislature over the city of New Orleans its property is protected like that of any other person. Story on the Constitution, sections 1393, 1399 ; 2 Peters 380, 412, 413, 627, 657; 6 Crunch 67, 134 ; 4 Hill 144 ; 3 Dallas 386; 8 Wend. 85 ; 18 Wendall 56, 61, 63; Cooley on Limitations 487; 21 Penn. 147; 7 Wal. 289 ; 9 Cranch 292 ; 5 Paige 147; 11 Wend. 151; People ex rel. Failing v. Commissioners of town of Palatine, 53 Barbour and 3 American Law Times Reports, page 6; Constitution, art. 110; Constitution of United States, art. 1, section 10.

In Dartmouth College v. Woodward, 4 Wheaton, Justice Story says: “It may also be said that corporations, such as towns, cities and counties, may in many respects be subject to legislative control. But it will hardly be contended, in respect to such corporations, that the legislative power is so transcendent that it may, at its will, take away the private property of the corporation, or change the uses of its private funds, acquired under the public faith. Can the Legislature confiscate to its own use the private funds which a municipal corporation holds under its charter, without any default or consent of the corpora-tors'? If a municipal corporation be capable of holding devises and legacies to charitable uses, as many municipal corporations are, does the Legislature, under our forms of limited government, possess the authority to seize upon these funds, and appropriate them to other uses, at its own arbitrary pleasure, against the will of the donors and the donees1? From the very nature of our government the public faith is pledged the other way. * * * The truth is, the government has no power to make a grant, even of its own funds, when given to a private person or a corporation for special uses.”

Tbe Legislature certainly has no greater power than the sovereigns of Prance and Spain had in reference to the batture or levee in question. And the Supreme Court of the United States held in the case in 10 Peters referred to, where a part of the identical property was in controversy, that “the public right to the common was beyond the power of the sovereign to grant.” New Orleans or its inhabitants had, therefore, a right to the levee or quay which could not be defeated, and it was “beyond the power of the sovereign to grant” this property to any one, long before Louisiana became a State, and long before there was a grant of corporate power to the city. The right to use the batture as a public place, therefore, exists independently of the delegation of corporate power, and the modifying or withdrawing thereof can in no manner affect it. So, therefore, whether the State recall the power of government delegated to the city or not is immaterial. The right of the inhabitants can not be defeated, because the proof shows that the levee is absolutely necessary to public use, and the occupation thereof by the plaintiffs impairs and greatly defeats the object of its dedication.

When a locus publicus becomes unnecessary for public use, of course the State can change the destination; it then becomes property in commerce, belonging to and subject to the will or disposition of the owner, whose rights were in abeyance pending the existence of the charge or servitude. But without the consent of the donors and the donees, as in the case before ns, the State can not take property dedicated to one purpose and apply it to another. It can not take the batture granted to New Orleans for a quay, and to be used for the commerce of the river, and give it or any part of it to the Chattanooga Railroad. As the State was utterly without title, the grant to the plaintiffs conlerred no right whatever to the property.

It is useless to argue that the grant to the railroad only gives a temporary use of the ground, and that it is subject to be recalled by the. State. If the State had the right to make thegrant, the plaintiffs have the perpetual use of the property which is equivalent to ownership, and the State can not recall or in any manner defeat it, because of the provision of the Federal Constitution prohibiting a State from impairing the obligations of a contract.

It is also absurd to argue that the grant is only the exercise of administrative power over these public places. A grant which confers exclusive use in perpetuity, and subjects the thing granted, to such debts and incumbrances as the grantees may see fit to impose, can not fairly be called the exercise of merely administrative power over a locus puMicus.

The grant virtually changes the destination and passes the title (if the State had any to pass), because it puts the property in commerce and subjects it to the exclusive control and disposition of the plaintiffs; makes it, as the common pledge of their creditors, liable to seizure under execution. Here then, a considerable part of a locuspublicus, proved to be essential to the existing object of the dedication, is granted to a private corporation in perpetuity; can be sold, mortgaged and otherwise subjected to their debts, and yet it is gravely argued that this is not a change of destination and a grant of the fee, but is only a mode of regulating or administering a locus piMicus, which the State cf^n rightfully exercise. The proposition is too absurd to require serious argument to refute it.

After carefulty examining the record and considering the authorities and sible printed arguments presented by the eminent counsel engaged in this litigation, we have come to the conclusion that plaintiffs must fail in their demand, for two reasons, either of which seems to be fatal to their pretensions:

First — Because the Legislature could not change the destination of these public places, bring them into commerce and subject them to the disposition of the plaintiff's, while the object of the dedication continues, and it is proved that these public places are now essential to the uses for which they were dedicated to the public.

Second — Because, if the State could have changed the destination, it could not lmve granted the property, because the moment the charge or servitude in favor, of the public is removed, the property stands subject to the will and disposition of its owner, the city of New Orleans; and like all other property in commerce it can only be disposed of by the owner. As the State was not the owner the plaintiffs acquired no title by the grant.

Much has been said of State sovereignty and of the power of the State over the city, but we can not in this controversy adjust the matter or determine the limits of this power, because the State is not a party; and because the solution of the question is not necessary in this case. The State has simply passed, by the grant, whatever title it had to the plaintiffs; and this suit is simply a controversy for property between persons holding by different grants. In order, therefore, for the plaintiffs to recover, they must show a title superior to the titles of those who granted the property to New Orleans and dedicated it to public use. So, therefore, whether the public places in controversy can be administered by the State or the city, is a question that does .not concern the plaintiffs. When it is ascertained, as we have, that they acquired no title by the grant, their cause of complaint is ended.

It is therefore ordered that the judgment herein be annulled and the injunction be dissolved; and it is now ordered that there be judgment for the city of New Orleans, and that its prayer, in reconvention for an injunction be granted, and it is ordered that the plaintiffs be restrained and inhibited from occupying the property in controversy. It is further ordered that plaintiffs pay costs of both courts.

Howell, J.

The plaintiffs’ counsel states the question in this case thus: “Has the State the power to make the grants of authority to the plaintiffs to lay tracks, construct depots and to occupy the batture for the purposes set forth in the acts of the Legislature relative to the corporation ?”

I think the Legislature may grant such authority as to “public places;” but, in my opinion, a portion of the batture embraced in the grants has been reduced to the ownership of the city of New Orleans, and as to such portion the authority of the State is no greater than as to any other property held in private ownership, so long as the municipal corporation exists.

I therefore concur in maintaining the injunction in favor of the city only as to the property or squares shown to belong to it; but in other respects I think the judgment of the lower court should be affirmed.

Morgan, J.

I concur in the conclusions arrived at in the opinion pronounced by Mr. Justice Wyly, and reserve the right to place the grounds of my concurrence in a separate opinion.

Ludeling, C. J.,

dissenting. The opinion of my associates in this case is, according to my understanding, so diametrically opposed to the jurisprudence of this State, and most of the other States of this Union, that I am compelled to dissent from it.

The question involved in this case is simply whether or not the Legislature can control the public quay or levee of the city of New Orleans without the consent of the city. To show that this is the question for decision, I quote from the brief of the counsel for the city:

“BATTURE ABOVE CANAL STREET.

“The King of France, prior to the year 1763, granted to the Order of Jesuits, for a plantation, certain property lying on the Mississippi river, above Canal street, having thirty-two'arpents front on the Mississippi, and running back to a depth of about fifty arpents; and for the same purpose he granted to various other persons property lying above the aforesaid thirty-two arpents. In 1763, the Jesuit plantation was confiscated by the French government, divided and sold. The first subdivision above Canal street, thus sold, contained, say seven arpents, face cm fieme; and five other subdivisions of five arpents each were sold in like manner. One Bertrand Gravier acquired the first subdivision about 1788; the second, lying immediately above Gravier, was acquired by Delord Sarpy, the dividing line between the Gravier and Delord Sarpy claims being now designated by Delord street. Gravier, in 1788, divided his property into squares and lots, and annexed them to the city as suburb Ste. Marie. Sarpy converted his property from rural into urban in 1806. At that time the ‘big road,’ now Tchoupitonlas street, formed the division between the lots of ground and the batture in front thereof, which was then used by the public as a loeus publicas.

“Edward Livingston and others, claiming, as riparian proprietors, to be the owners of the entire alluvion or batture in front of the aforesaid suburb of Ste. Marie, and the accretion to become attached to the same, by a certain act between themselves and the city of New Orleans, bearing date on or about the twentieth day of September, 1820, dedicated the aforesaid batture and future accretion to public use, and to the purposes of business and commerce, and upon the express understanding and condition that the same should thereafter remain and continue a loeus pubUeus, out of commerce, and not affected by any adverse claim or grant which might be set up.

“Under, and from the time of the dedication above referred to, that portion of the batture on and over which the New Orleans, Mobile and Chattanooga Railroad Company claim to construct their buildings and to run their road, with certain exceptions, which will be shown hereafter, remained open for use as a public place, until the rights of the public to the same were interfered with by the said company.

“ BATTURE BELOW CANAL STREET.

“ On the sixth day of September, 1717, a charter was granted by the King of France to a corporation styled the “ Western Company and under the auspices of that company, the ground where the old city of New Orleans now stands, was selected, as a place for the principal settlement of the province, and the foundation of the city was laid. Iu 1724 and 1728, all the batture lying in front of the, old city of New Orleans was laid off as a quay ; and thus and otherwise, was dedicated as a locus publicáis, and as common property, to the use of which, all of' Jhe inhabitants of the city of New Orleans, and even strangers, became entitled.

“elysian fields street.

“ All that portion of ground or real estate claimed by the plaintiff, and over which they seek to run their road, extending from the point of intersection of the batture lying in front of the old city of New Orleans, with Elysian Fields street, back to the point where the last mentioned street intersects with Claiborne street was dedicated by private individuals, by ordinances of the said city of New Orleans, and otherwise, as parts of a public street or highway, and for the convenience and use of inhabitants of the said city and others; and the same has been possessed, used and enjoyed, as a street highway or public place, for more than thirty years before the commencement of the present suit.”

The interference of the New Orleans, Mobile and Chattanooga Railroad Company complained of was authorized by an act of the General Assembly of Louisiana, which act the defendant alleges is unconstitutional because it divests vested rights, and authorizes the taking of private property without just compensation. It is manifest, therefore, if the General Assembly has the right to control the use of this public place, nay, even to change its destination, the interference of this company is not unlawful. As early as 1848 this court held, in Delabigarre v. The Second Municipality of New Orleans, that “ the sovereign alone has the right to change the destination of public places. Under the state of facts presented by the record, the attempt of the defendants to change the destination of the ground was a glaring usurpation of power, from which no legal effects could result.” The usurpation spoken of in that case was the passage of a resolution by the municipality ordering a portion of the batture to be sold.

In Parish v. Municipality et al.; this court said : “ We have already stated that-the conditions appended to the nominal gift of the batture amounted to a dedication of it to the public, to be used as an open space, and had no other object. The defendants might, for purposes of public utility, thus deprive the city of the right of alienating the batture, or of erecting buildings upon it. But, as we held in the case of the State of Louisiana v. The Executors of McDonogh et al., such a stipulation was at all times under the control of the Legislature, who could modify the effects of it and change the destination of the property, whenever such a change became of public advantage. Its power - to change the destination of it was expressly recognized by us in the case of Delabigarre v. Second Municipality, 3 An. 330. The power of the Legislature to change the destination of public places had been previously recognized in the ease of De Armas v. The Mayor et als., 5 La. 174 and 194; the Mayor et als. v. Hopkins, 13 La. 351; New Orleans v. United States, 10 Peters 733 ; Municipality No. 2 v. New Orleans Cotton Press, 18 La. 122. These cases were nil argued by the ablest counsel at the bar, and the opinions of the court were prepared with uncommon care. In two of them, Judge Martin dissented on other-points, but the court was, in all the cases, unanimous in recognizing the power of the Legislature to change the des'ination of the quay and of the batture iu front of the citv of New Orleans.

“After so many solemn adjudications the defendants do not appear-to have had any serious claims which they could compromise. So that, while the act of 1820 was a compromise, under the form of a donation, the act, executed in 1851, would seem to be a donation, under the form of a compromise. The plaintiffs acquired no rights under that act, the gift not being intended for them. The act passed by the Legislature in 1850 has been adduced by the defendants in support of some undefined right. It is our duty to give full effect to that act, so far as it changes the destination of a portion of the batture and authorizes the sale of it. But we deem it also our duty to disregard, as an assumption of judicial power unauthorized by the constitution, whatever in it may be considered as recognizing in the defendants any legal rights under the compromise, after the change of destination of the property.” 8 An. 149.

What is this batture, levee or locus publicus, upon which the defendant has built its railroad tracks and depots, under the authorization of the Legislature? It is a-public place, which combines the public purposes of a landing for steamboats and vessels, a place for the temporary deposit and keeping of goods, a place for the arrival and departure of travelers and their baggage, and a public highway for vehicles employed principally in the transportation of articles of commerce. It is a public thing, according to the definition of the Code. “ Common property, to the use of which all the inhabitants of a city or other place, even strangers, are entitled in common, such as streets, the public walks, the quays.” C. C 458. Wherever the public is concerned, the State is not without an interest, and may consequently legislate upon the subject. In this case, however, the Legislature has not changed the destination of the property, and the grants or privileges conferred upon the railroad company are for the convenience and benefit of the public. The testimony of witnesses has been referred to to show that the use of the batture by the railroad company will be injurious to the commerce of this city. In my judgment, this testimony only proves that the witnesses are about a quarter of a century behind, the age in which they live.

The defendant is a municipal corporation, which is defined to be “an investing the people of a place with a local government thereof.” Such corporations are created and exist for the public advantage; they can exercise only such powers as are conferred upon them by the Legislature, which may be withdrawn from them by the Legislature at will, unless restrained by the constitution. There is no restraint'on this power of the Legislature in the constitution of this State. The Legislature might take away the right of the city to legislate in any manner in regard to this batture. In the Fifth Annual our predecessors said: “The government of cities and towns, like that ot the police juries of parishes, forms one of the subdivisions of the internal administration of the State, and is absolutely under the control of the Legislative.” 661. Judge Dillon, in his work on municipal corporations, says : “With the exception of certain constitutional limitations, presently to be noticed, the power of the legislature over such corporations is supreme and transcendent; it may change, divide, and even abolish, at pleasure, as it deems the public good require.” Page 70 et seq.j 3 Wend. 1325; Cooley on Constitutional Limitations, p. 191-2; 14 An. 406; 12 An. 515.

Municipal corporations are mere instruments or agents of the State government; consequently, if the city of New Orleans had actually purchased the batture it could npt control it as a private individual could his property. “ Being a mere agency of the government, it is evident that the municipality can not itself have that complete and absolute control and power of disposition of its property, which is possessed by individuals over their own. For it can hold and own property only for corporate purposes, and these purposes are liable at any time to be so modified by legislation as to render the property no longer available.” Cooley C. L. p. 235.

At page 88 of-his work Judge Dillon says: “The Legislature, as trustee for the general public, has full control over the public property and the subordinate rights of municipal corporations. Accordingly it may authorize a railroad company to occupy the streets in a city without its consent and without payment. See Clinton v. Railroad Company, 24 Iowa 455 ; People v. Kerr, 27 N. Y. 188; Railroad Company v. Applegate, 8 Dana 289; Wager v. Railroad Company, 25 N. Y. 526, 533; Pratzman v. Railroad Company, 9 Ind. 467; 13 Ind. 353, 551; Moses v. Railroad Company, 21 Ill. 522; Cooley on Con. Lim. 555, 556; 17 N. J. Eq. 75; 17 Barb. 494; 47 Pa. State 325, 35 Cal. 325. See also Redfield on Railways, page 259 vol. I. He says: “ The fee of the streets of a city, when it lias been acquired by the municipality under the right of eminent domain, becomes a public trust for general public purposes, and is under the unqualified control of the Legislature; and any legislative appropriation of id to a public use, is not to be regarded as the appropriation of private property so as to require compensation to the city or municipality to render it constitutional.”

I think the judgment of the district court should be affirmed.

On Rehearing.

Morgan, J.

The sole question presented in this case is, has the State the power to grant to a railroad company the right of way through a street in this city ?

A thorough examination of this question has led us to the conclusion that it has.

It is therefore ordered adjudged and decreed that the judgment heretofore rendered by us be avoided, annulled and set aside, and it is now ordered adjudged and decreed, that the judgment of the district court be affirmed with costs.

Wyly, J.,

dissenting. The State can grant the right of way to a railroad company; but the company can only get the land necessary for the tracks and depots by expropriation or purchase.

I had occasion to express my views on the main question involved in the case in the opinion of the court, delivered on the nineteenth of May, 1873.

I therefore dissent in this case.

Taliaferro, J. I concur in the dissenting opinion of Mr. Justice Wyly.


source: Caselaw Access Project

author: Wyly, J.

license: Public Domain

text:
    No. 3391.
    Guyol & Montegut v. Duggan & Guyol and Patton & Duggan.
    It appears that Duggan & Guyol, against whom a personal judgment is sought, and whose cotton was sequestered, reside in tlie parish of East Baton Rouge. The Fourth District Court, parish of Orleans, whose proceedings are now under revision, was without jurisdiction to try this case.
    This court, of its own motion, will notice the want of jurisdiction of the court a qua.

    Appeal from the Fourth District Court, parish of Orleans. Théard, J.

      Bandolph, Singleton. & Browne, lor plaintiffs and appellees. Bea, Finney & Miller, for defendants and intervenors.
   Wyly, J.

The plaintiffs sued the defendants, Duggan & Guyol, for $3522 67, and sequestered thirty-six bales of cotton belonging to them, on the ground that they have the furnisher of supplies’ privilege thereon.

The court gave judgment in favor of the plaintiffs for seven-twelfths of the thirty-six bales sequestered, or their proceeds in.the hands of Patton & Duggan, amounting to the sum of 12136 63.

From this judgment the delendants appeal.

It appears that Duggan & Guyol, against whom a personal judgment is sought and whose cotton was sequestered, reside in the parish of East Baton Rouge. The Fourth District Court, parish of Orleans, whose proceedings are now under revision, was without jurisdiction to try this case. Of our own motion we will notice the want of jurisdiction of the court a qua.

It is therefore ordered that the judgment appealed from be set aside, and it is now ordered that this suit be dismissed at plaintiffs’ costs in both courts.


author: Ludeling, C. J. Ludeling, C. J.

text:
    No. 5191.
    John Hughes and Wife v. Charles F. Caruthers. Mrs. Ann M. Hennen, Third Opponent.
    The motion to dismiss must be overruled. The bond being for the amount fixed by the judge a quo is therefore sufficient to maintain the appeal.
    The lessor can not seize movables, belonging to a third person, which have been removed from the leased premises within fifteen days before the seizure. It is the property of the lessee alone which can be seized under such circumstances.
    Appeal from the Fifth District Court, parish of Orleans. Oullom, J.

      Eornor & Benedict, for plaintiffs and appellees. B, B. Forman, for defendant and appellant.
   On Motion to Dismiss.

Ludeling, C. J.

A motion to dismiss this appeal has been made on the ground that the amount of the bond is insufficient. The bond is for the amount fixed by the judge. It is therefore sufficient to maintain the appeal.

The motion is refused.

On the Merits.

Ludeling, C. J.

The only question involved in this case is the right of the lessor to seize movables belonging to a third person, which have been removed from the leased premises within fifteen days before the seizure. He can not. C. C., art. 2709. It is the property of the lessee alone which can be seized under such circumstances.

It is therefore ordered and adjudged that the judgment of the lower court against the third opponent be annulled, and that there be judgment in favor of the third opponent, setting aside the provisional seizure of her property for costs in both courts.

Rehearing refused.


author: Morgan, J.

text:
    No. 5182.
    Job Smith v. William Durbridge. Crescent City Live Stock Landing and Slaughterhouse Company, garnishee.
    That the Crescent City Live Stock Landing and Slaughterhouse Company, garnishee, being an incorporated company, is subject only to the jurisdiction of the Superior District Court, and can not be brought into the Fifth District Court, may be true as regards original process, but it does not hold when the company is made garnishee. The court which rendered the judgment out of which the garnishment process springs, necessarily has jurisdiction over the party made garnishee.
    The objection that Durbridge, the defendant, having sued the garnishee for the same subject matter in the Sixth District Court, no other court could obtain jurisdiction by service of citation or garnishment process, can not be maintained. The plaintiff is not hound by any proceedings to which he was not a party, and as he was not a party to the suit referred to. the decision in that case, whatever it may be, can not affect his rights.
    Appeal from the Fifth District Court, parish of Orleans. Oullom, J.

      T. A. JBartlette, for plaintiff and appellee. Semmes & Mott, for Crescent City Live Stock Landing and Slaughterhouse Company, garnishee, appellant. Hays & New, for civil sheriff.
   Morgan, J.

Plaintiff had judgment against the defendant for #8583, with interest and costs. He issued fieri facias and made the Crescent City Live Stock Landing and Slaughterhouse Company garnishees. The company answered that defendant was the owner of eighty shares of their capital stock, for which he held a certificate. These shares were seized and sold by the sheriff. The shares stood in the name of the defendant on the books of the company-when they were sold. The sheriff ruled the company into court to show cause why the shares should not be transferred to Moore, Janney & Hyams, the purchasers. The rule was made absolute and the company appeal.

The first error assigned is that the garnishee, being an incorporated company, is subject only to the jurisdiction of the Superior District Court of this city, and can not be brought into the Fifth District Court. This may be true as regards original process, but it does not hold when the company is made garnishee. The. court which rendered the judgment out of which the garnishee process springs, necessarily has jurisdiction over the party made garnishee.

The second objection is that Durbridge, the defendant, having sued the garnishee for the same subject matter in the Sixth District Court, no other court could obtain jurisdiction by service of citation or garnishment process. The answer to this is that the plaintiff is not bound by any proceedings to which be was not a party, and as he was not a party to the suit referred to, the decision in that case, whatever it may be, can not affect Ms rights.

Other grounds are stated in the brief of garnishees, but they are not 'contained in the pleadings, and we can not notice them.

Judgment affirmed.


text:
    No. 5045.
    Octave Reggio, Curator, v. Blanchin & Giraud.
    In the order of seizure and sale sued out against the defendants, who are third possessors of the mortgaged property, there are two fatal defects:

      Mrst — Tno mortgageor is not made party.

      Second — The mortgage does not contain the nonalienation clause.
    The plaintiff has mistaken his remedy. It is in a hypothecary action.
    Appeal from (lie Fourth District Court, parish of Orleans. Lynch, J.

      Sambolá & Lucros, for plaintiff and appellee. E. E. McOaleb, for defendants and appellants.
   Wyly, J.

This is an order of seizure and sale sued out against the

defendants, who are third possessors of the mortgaged property. There are two fatal delects:

FWsi — The mortgageor is not made party.

Second — The’mortgage does not contain the nonalienation clause.

The plaintiff has mistaken his remedy. It is in a hypothecary action. C. P., articles 68, 69 and 70.

It is therefore ordered that the judgment appealed from be annulled, and that petitioner be dismissed with costs.


author: Taliaferro, J.

text:
    No. 3389.
    Michael Duncan v. Mary Duncan.
    The plaintiff in this case claims title to a certain piece of property, and alleges that the defendant is about tó take forcible possession of said property, wherefore he prays that she be injoined from doing so. The defendant admits that the property described in the petition was conveyed to plaintiff by a notarial act, but specially avers that, although the said act ostensibly shows title in plaintiff to the whole of said property, yet that she is in truth the owner of one-half of it, forming a distinót tenement, and pleads her right to the possession of it.
    The defendant introduced in evidence the written act of transfer from plaintiff to herself, in which plaintiff declares : “ Said house stands in my name, but I have no interest in the same. It belongs to my sister, Mary Duncan.” The execution of this act was proved before a notary public and duly registered.
    ' This written act was clearly admissible, and certain letters and parol evidence were also properly admitted to show that the plaintiff, for a length of time, during the absence of defendant in Europe, recognized her right to the property she claims, by acting as her agent and collecting and remitting to her moneys collected from time to time for the rent of that property; and also to define the property and describe its locality.
    The written instrument in the nature of á counter letter, not denied by the plaintiff, nor in any manner impugned by him, is an effectual bar against the plaintiff’s pretensions to ownership of the property.
    Appeal from the Eighth District Court, parish of Orleans. Libble, J.

      l-candolph, Singleton & Browne, for plaintiff and appellant. M.. A. Looley, for defendant and appellee.
   Taliaferro, J.

The plaintiff proceeded by injunction to restrain and prohibit the defendant from disturbing and annoying one of his tenants by suing him for the rent of certain property, which the plaintiff asserts title to, and the rent of which he is entitled to. He alleges the defendant is about to take forcible possession of the property in question and he prays that she be injoined from so doing.

The defendant puts in a general denial. She admits that the property described in the petition was conveyed to plaintiff by notarial act before William Christy, as set forth in the petition, but she specially avers that although the said act ostensibly shows title in the plaintiff to the whole of the said property, yet that she is in truth the owner of the one-half of it, to wit: The half occupied by one John Blois, the alleged tenant of the plaintiff, and comprised within the lines seventeen feet one inch and two lines front on Prytania street, and one hundred and ten feet ten inches in depth, together with all the buildings and improvements thereon; and she pleads her right to and ownership of the said property and her right to the possession of it. She introduced in evidence, in support of her right to the property she claims, the following act:

“ Know all men by these presents that T, Michael Duncan, of the city of New Orleans, hereby transfer to my sister, Mary Duncan, also living in the city of New Orleans, a certain frame house and lot with all its appurtenances, situated on Camp or Prytania street, and known as the third house from Calliope street. Said house stands in my name but I have no interest in the same; it belongs to my said sister, Mary Duncan.

“ M. DUNCAN.”

“ Witness: Edward Duncau.”

The execution of this act was proved before a notary on June 18, 1870, and duly registered. The defendant prays a dissolution of the injunction and for one thousand dollars damages. The court below rendered judgment in favor of defendant, dissolving the injunction with five hundred dollars damages. The plaintiff has appealed.

Several bills of exceptions were taken on the part of the plaintiff. One to the written act signed by the plaintiff, before referred to, recognizing the right of the defendant to the property claimed by her, and to the introduction of parol evidence, going to show sayings and doings of the plaintiff, to establish title in the defendant. To the introduction by defendant of various letters of the plaintiff recognizing the defendant’s title to the property, a bill of exceptions was reserved. The written act was clearly admissible, and the letters and parol evidence were properly admitted to show that the plaintiff, for a length of time during the absence of the defendant in Europe, recognized her right to the property she claims, by acting as her agent and collecting .and remitting to her moneys collected from time to time for the rent of that property, and also to define the property and describe its locality.

The defense is, we think, fully made out. The written instrument, in the nature of a counter letter, not denied by the plaintiff nor in any manner impugned by him, is an effectual bar against the plaintiff’s pretensions to ownership of the property. We find no sufficient ground for increasing the damages as prayed for on part of the defendant.

It is therefore ordered that the judgment of the district court be affirmed with costs.

Mr. Justice Morgan took no part in this decision.


author: Howell, J.

text:
    No. 5212.
    Succession of E. Cordeviolle v. John Dawson. Marie Louise Rent v. The Same. Mrs. Elizabeth Martin v. The Same. (Consolidated.)
    In 1835, the marriage contract between Mrs. Elizabeth Martin and John Dawson, which, it is claimed, contains a “ constitution of dowry” was recorded in the book of donations in the office of the recorder of mortgages in Eew Orleans, and it is contended that this preserved the registry of the wife’s mortgage on the property of her husband, and gives her the preference to the proceeds of his property over the other plaintiffs and contestants before this court.
    Article 1541, Codb of 1825, is invoked. It provides that: “ "When the donation comprehends property that may be legally mortgaged, the act of donation, as well as the act of acceptance, whether the acceptance be made by the same or a separate aot, must be registered within the time prescribed for the registry of mortgages, on a separate book for that purpose, by the register of mortgages, which book shall be open to the inspection of all parties requiring it.”
    The object of this article is not to give notice of the wife’s mortgage upon her husband’s property for the protection of her dotal or other rights, but to operate as notice of the property donated, its status, and the inability of the donor, probably, or his creditors, to in any manner affect said property. It relates only to the property embraced in the act of donation, its title and character.
    The wife’s mortgage, as to her husband’s property, existed without the registry, but when the system of this class of mortgages was changed, registry became necessary, and some of the modes prescribed for the registry of the various kinds of mortgages was essential. The registry of the marriage contract, in this instance, not being one of the modes prescribed, is not a compliance with the law on the subject. It did not operate or preserve a mortgage before the first of January, 1870, and there is no law giving it such effect since that date.
    Because the function of the mortgage office and its records is to preserve mortgages, it does not follow that the direction to record an act of donation in a book of donations (conceding the marriage contract in this instance to be a donation), created and preserved a mortgage in favor of the donee — the wife. Mortgages, to be preserved and effective, as to third parties, must be registered in the book and in the manner prescribed by the law for that purpose. This was not done in this case.
    Appeal from the Sixth District Court, parish of Orleans. Saucier, J.

      Charles Lauque, for plaintiff and appellee. JE. H. McCaleh, for Mrs. E. Martin, wife of John Dawson, appellant.
   Howell, J.

The main question in these cases is one of registry. In 1835 the marriage contract between Mrs. Elizabeth Martin and J ohn Dawson, which, it is claimed, contains a “ constitution of dowry,” was recorded in the book of Donations ” in the office of the Recorder of Mortgages in New Orleans, and this, it is contended, preserved the registry of the wife’s mortgage on the property of her husband, and gives her the preference to the proceeds of his property over the other plaintiffs and contestants before us.

It is argued in her behalf that her mortgage existed under the Code of 1825 without registry, and that having registered the marriage contract, as already stated, the law as it now exists is complied with. In support of this article 1541, Code of 1825, is invoked. It prescribes that: When the donation comprehends property that may be legally mortgaged, the act of donation, as well as the act of acceptance, whether the acceptance be made by the same or a separate act, must be registered within the time prescribed for the registry of mortgages, in a separate book kept for that purpose by the register of mortgages, which book shall be open to the inspection of all parties requiring it.” The object of this article is not to give notice of the wife’s mortgages upon her husband’s property for the protection of her dotal or other rights; but as notice of the donation of the property donated, its status and the inability of the donor, probably, or his creditors to in any manner affect said property. It' relates solely to the property embraced in the act of donation — its title and character. As said by the wife’s counsel, her mortgage existed, as to her husband’s property, without the registry ; but when the system of this class of mortgages was changed, registry became necessary and some one of the modes prescribed for the registry of the various kinds of mortgages was essential. The registry of the marriage contract, in this instance, not being one of the modes prescribed, is not a compliance with the law on the subject. It did not operate or preserve a mortgage before first January, 1870, and there is no law giving it such effect since that date.

In the case of Bank of New Orleans v. Toledano & Taylor, 20 An. 571, we had occasion to express the opinion that a similar registry under the article was intended to give effect to the donation as to third persons. And we do not now think that, because the function of the mortgage office and its records is, as agreed by counsel, to preserve mortgages, therefore the direction to record an act of donation in a book of donations (conceding the marriage contract in this instance to be a donation), created and preserved a mortgage in favor of the donee — the wife. Mortgages, to be preserved and effective as to third persons, must be registered in the book and in the manner specially prescribed by the law for that purpose. Nor do we say that a “rerecordation ” is necessary since the adoption of the present constitution, if a valid one was made prior to that date. We do not think the recording of the marriage contract in this case was a compliance with the law relative to the registry of mortgages, so as to affect third persons.

This renders it unnecessary to pass on other questions presented in the two appeals.

Judgment affirmed.


text:
    No. 5004.
    James M. Lewis v. Fairbanks & Gilman and D. & J. D. Edwards.
    Wlier© the indorsers on a promissory note are sued, it is not necessary, when they had filed only a general denial, to prove their signature, the note having been received without objection.
    Appeal from the Sixth District Court, parish of Orleans. Saucier, J.

      Olarlee, Bayne & Benshaw, for plaintiff and appellee. Bornor <& Benedict, for defendant and appellant.
   Morgan, J.

The note sued on is in the following words:

“$2207 44. New Orleans, October 18, 1873.

Thirty daj-s after date we promise to pay to the order of Daniel & J. D. Edwards twenty-two hundred and seven dollars and forty-four cents, value received, with interest at the rate of eight per cent, per annum from maturity till paid.

(Signed) “FAIRBANKS & GILMAN.”

Indorsed: Daniel & James D. Edwards.

All the parties to the note were sued, and judgment asked against them in solido. Daniel & James D. Edwards pleaded the general issue. On the trial the note sued on was offered in evidence and received without objection. Judgment was rendered as prayed for. D. & J. D. Edwards appeal. The error assigned is that the indorsement of the Edwards was not proved. Their answer being a general denial, and the note having been offered in evidence and received without objec-' tion, it was noi, necessary to prove their signature. The case of Blum v. Sallis, 24 An. 118, relied on by appellants, does not apply. There the attempt was to confirm a judgment by default, plaintiff claiming title to the note by reason of the indorsement thereon. The suit was not against the indorser. The indorsement was plaintiffs’ title. It was under this state of facts that the court held that the case should be remanded in order to prove the indorsement. Here it is the indorsers who are sued, and we repeat it was not necessary, when they had filed pnly a general denial, to prove their signature, the note having been received without objection. The appeal was intended for delay.

Judgment affirmed, with ten per cent, damages for a frivolous appeal.


text:
    No. 5200.
    State of Louisiana, ex rel. D. A. Weber, v. C. L. Fisher.
    The authority of the Governor to remove a tax collector and appoint a successor, has been expressly recognized by this court in the cases of Dougherty and of Dayrus, 25 An. ÜSTo reasons can be seen for reversing these decisions.
    Appeal from the Seventh Judicial District Court, parish of West Feliciana. Heioes, J.
    Jury trial. Farrar <& Montgomery, Olivier O. Provosty, district attorney, for relator and appellant. Wiclcliffe <& Powell, for defendant and appellee.
   Wyly, J.

This is a controversy, under the intrusion law, for the office of tax collector for the parish of West Feliciana. The defendant was tax collector during the year 1873, and he held the office until February, 1874, when he was removed by the Governor and the relator appointed in his place. The authority of the Governor to remove a tax collector and appoint a successor, has been expressly recognized by this court in the cases of Dougherty and Dayrus, 25 An.

While those decisions stand, and we see no reason to reverse them, the defense set up in this case can not be maintained.

It is therefore ordered that the judgment herein in favor of the defendant be annulled, and it is now ordered that there be judgment in favor of the plaintiff, decreeing the defendant to be unlawfully holding the office of tax collector and restraining him from further proceeding therein, and also recognizing D. A. Weber as the lawful tax collector, entitled to the office and all the papers, documents and appurtenancts thereto belonging. It is further Ordered that the defendant pay costs of both courts.


text:
    No. 3407.
    M. H. Meyer v. A. Frederick.
    Tbe defendant removed to the city of jSTew Orleans a certain sawmill, engine and other fixtures, from mortgaged premises on which they stood. DTor which removal lie is sued in damages by the plaintiff, who claims that he holds on the tract of land to which they were attached a vendor’s privilege and special mortgage. The removal was effected under the written authority of one of the owners of the property. Some time afterwards, said sawmill, engine and fixtures were purchased by the defendant, who had removed them in the manner above stated.
    At the time of the sale to defendant, said objects were movable property and in no way affected by the mortgage.
    The fact that defendant was employed by the owner to remove the property, created no legal obligation against him in favor of the mortgage creditor, nor did his purchase of it subsequently have that effect.
    Appeal from the Fourth District Court, parish of Orleans. Théard, J.

      M. Qrivot, for plaintiff and appellant. O. F. Schmidt & Seghers, for defendant and appellee.
   Wyly, J.

The plaintiff sues for $2115 damages, on the ground that he sustained loss to that amount by the illegal act of the defendant in tearing down a sawmill and moving off and selling it with the engine, fixtures etc., from a tract of land to which1 they were attached and upon which he held a vendor’s privilege and special mortgage; that without the sawmill the land is valueless, and that the damage sustained is equal to the amount of the mortgage. The court rejected the demand and the plaintiff appeals.

The defendant removed the sawmill and fixtures from the mortgaged premises to this city under a written authority from George Warner, one of the owners of the property. When he bought it from Warner, some time afterwards, it was movable property, and in no manner affected by the mortgage. The fact that he was employed by the owner to remove the property created no legal obligation against him in favor of the mortgage creditor; nor did his purchase of it subsequently have that effect.

Judgment affirmed.


text:
    No. 3465.
    State of Louisiana v. John C. Blohm et als.
    This is an action against an auctioneer and his surety on his bond for duties on sales.
    The surety' should hardly be heard to make such a defense as the one set up in this case— which is, that the bond was not legal at the time of the defalcation alleged against the principal, because said principal had not taken out the license and the oath required by law.
    Considering that the principal is proved to have acted as auctioneer and made repeated settlements under oath, as required by law, with the Auditor, showing the amount claimed to be due the State, it is to be presumed, as against the surety, that he complied in other respects with the law.
    The prescription of one and two years, based on the act of 1869, p. 45, second section, does not apply. This statute is not understood to release sureties from any liability existing at the date of its passage.
    Appeal from the Fifth District Court, parish of Orleans. Léaumont, J.

      Hornor & Benedict, for plaintiff and appellee. Hays & New, for defendant and appellant.
   Howell, J.

The State sued Blohm, as auctioneer, for duties on sales made by him, and joined the sureties on his bond. Judgment was rendered for the State, and Oberheuser, one of the sureties, appealed.

His defense is, first, that the bond is not legal, because at the date of the defalcation he had not taken out the license, nor taken the oath required by law. Tiiis is a defense which the surety should hardly be heard to make as to his principal. But as the principal is shown to have acted as auctioneer and made regular settlements under oath, as required by law, with the Auditor, showing the amount claimed to be due the State, we will presume, as against the surety, that he complied in other respects with the law.

The next defense is the prescription of one and two years, based on the act of 1869, p. 45, the second section of which provides: “That within twenty days after the passage of this act, in the parish of Orleans, * * * all auctioneers’ bonds at present in force shall be deemed to expire, and the sureties thereon shall not be liable on any such bond for any act of the principal on said bond, after the date of their expiration, as provided by this act.”

The act which fixed the liability of the defendants in this case was committed in 1868, and we understand the last clause of the above statute to refer to the acts of the principals occurring after the date fixed for the expiration of the bonds, and not to release sureties from liability existing at the date of the passage of the statute. The principal on this bond was indebted to the State at the date of the above statute, and its language does not convey the idea that the surety on his bond was thereby released.

Judgment affirmed.


author: Howelb, J.

text:
    No. 4818.
    Succession of Tobias Drum. On opposition of C. F. Berens.
    The judge a quo erred in allowing tlie widow, testamentary executrix in this succession, the homestead of $1000 in addition to two sums: $215, value of furniture, and $140, rent, received by her. Whether the furniture belonged to the widow or not, its value, according to the law, must be deducted from tlie homestead allowance. The rent also should have been deducted.
    from the Second District Court, parish of Orleans.

      Tlssot, J. JH. Ser mudes, for appellant. Cotton & Levy, for appellee.
   Howelb, J.

The widow and testamentary executrix of the deceased, filed an account of her administration, to which these parties made opposition. Judgment was rendered dismissing the oppositions of two of the opponents, sustaining that of the third, in part, by striking out some items on the account and reducing others, from which the said opponent C. P. Berens appealed.

The.first point made by him is, that the judge a quo erred in allowing the widow the homestead of $1000 in addition to two sums: $215, value of furniture, and $140 rent, received by her. His position is correct. Whether the furniture belonged to the widow or not, its value, according to the law, must be deducted from the homestead allowance. The rent also should have been deducted.

The other points made by him are not sustained by the law and evidence.

It is therefore ordered, that the judgment appealed from be amended by deducting from the homestead allowance of $1000, the sum of $355, consisting of $215, value of furniture, and $140 rent, received by the widow, and as thus amended, the judgment be affirmed. Costs to be paid by the succession.


text:
    No. 3316.
    Fritz Huppenbauer v. Louis Durlin.
    "Wlien a reconventional demand has "been filed, tlie plaintiff is "bound to take notice of its trial and of all adverse defenses set up in tlie cause wkicli he himself has commenced against his adversary.
    In this case a jury was prayed for hy defendant. The case was tried without a jury. $To hill of exceptions was taken hy plaintiff to the trial, and no opposition to the trial withouta jury was made hy either party. Under such circumstances, this court will presume that a trial hy jury was waived.
    Appeal from the Sixth District Court, parish of Orleans. Oooley, J.

      Wench é JSufft, for plaintiff and appellant. W. H. Sogers, Samuel S. Blanc, for defendant and appellee.
   Taliaferro, J.

The plaintiff brings this action to annul a contract of lease entered into between himself and the defendant in November 1866. The case was commenced in the District Court of the Parish of Jefferson. After a protracted delay and a loss of a part of the record, it was at length transferred to and reinstated in the Sixth District Court. The answer is a general denial, and the defendant sets up are-conventional demand against the plaintiff of five thousand dollars.

The judgment of the lower court dismissed the plaintiff’s claim and awarded judgment in favor of tlie defendant on his reconventional demand for $2036, with interest, from which the plaintiff appealed. The appeal was devolutive and an execution issued. The plaintiff thereupon injoinedthe sale of his property seized under the execution, and prayed that the judgment upon which it issued be declared null and void. After the appeal was taken, it was set aside on rule in the lower court on the ground of the insufficiency of the surety on the appeal bond. In this court, on motion, the appeal was dismissed on the same ground. 23 An. p. 739. The defendant pleads res judicata, and offers in this court the record of the injunction suit, No. 3336, to show that in that case as in the one at bar the same grounds of defense are relied upon and that the plaintiff was pursuing two modes of revision at .the same time, one by appeal and the other by action of nullity. The plaintiff objects that this record can not be received in evidence in this court as it makes no part of the record in the case now before this court on appeal. It is not necessary to pass upon this objection as it appears that the plaintiff relies mainly upon the ground that the case was tried in the court below, without the proper notice to him of the trial, and that the trial took place without a jury which had been prayed for and allowed by the court. The facts seem to be that the plaintiff himself had caused the case to be transferred to the Sixth District Court. He was in that court at his own instance. It appears that the case was fixed for trial by the clerk and called up for trial on the seventeenth of November, 1870. The plaintiff is presumed to have been in court by liimself or counsel and to have had notice of the proceedings in the case. 1 Rob. 275; 10 An. 766. When a reconventional demand has been filed, plaintiff is bound to take notice of its trial and of all adverse defenses set up in the cause which he himself has commenced against his adversary. 13 An. 395. In this case a jury was prayed for by the defendant. The case was tried without a jury. No bill of exceptions was taken by the plaintiff to the trial and no opposition to the trial without a jury was made by either party. In such a case this court will presume that a trial by jury was waived. 8 An. 376.

We think the judgment of the lower court has not done injustice to the plaintiff.

The defendant asks an amendment of the judgment by increasing it to the sum of five thousand dollars, but this we are not satisfied he is entitled to.

It is therefore, ordered and decreed that the judgment of the District Court be affirmed with costs.


author: Morgan, J. Howell, J.

text:
    No. 4897.
    Mrs. A. E. Deblanc v. F. Levasseur et al.
    Judgment having been rendered against both defendants in this suit by an heir against her tutor, who was also administrator, and his surety on the two bonds, the surety alone appealed. The tutor and administrator being an appellee, the prayer of the plaintiff, the other appellee, to amend the judgment against him, can not be entertained.
    The question, raised onthemerits, that the plaintiff, being a married woman, was not authorized by her husband to bring this suit, must be considered as settled between the parties by the decision on the motion to dismiss the appeal, which was made on the ground of want of proper parties — the husband not having been joined in the petition of appeal. The suit having been commenced by the wife, assisted by her husband, citation of appeal to her was sufficient.
    The judgment referred to as an estoppel against plaintiff’s action, did not impose upon her the condition to claim certain pieces of property in kind, to which she might be entitled, but reserved her right to the proceeds in case she failed to recover said property. She has alleged and shown that the title of the purchasers was maintained in several suits she instituted. She therefore can exercise her second right.
    The objection that the security can not be sued for the proceeds, no step having been previously taken to fix the liability of the principal, is not well founded.
    This objection was not made in the lower court, but the surety adopted and joined in the defense made by the principal, and, on trial, the plaintiff showed by the returns of nulla \bona on one or two fieri facias for small sums, that further process against the principal would be unavailing.
    The tutor states that he obtained the individual consent of persons who had composed a family meeting on a previous occasion, to make use of the capital of the minor’s estate as he did. This is not justifiable, and, according to our law and jurisprudence, can not be allowed in favor of a tutor and surety.
    Appeal from the Second District Court, parish of Orleans. Tissot, J.

      Charles Louque, M. L. IAvaudais, for plaintiff and appellee. B. Oambray, Alphonse Oanonge, for defendant and appellant.
   On Motion to Dismiss.

Morgan, J.

This action was instituted by a married woman, assisted and authorized by her husband. Prom the judgment rendered against them, the defendants appealed by petition. Mrs. Deblanc alone is cited.

The motion is now made to dismiss the appeal on the ground of want of proper parties — the husband not having been joined in the petition of appeal. The suit having been commenced by the wife, assisted by her husband, citation of appeal to her was sufficient.

The motion to dismiss is therefore denied.

On the Merits.

Howell, J.

This is a suit by an heir against her tutor, who was also administrator, and his surety on the two bonds.

On an opposition to an account in the lower court, the plaintiff obtained a judgment against the administrator for $462 22 and interest, with a reservation of her right to claim from him the proceeds of certain properties sold by him, in case she failed to recover the said properties in kind from the several purchasers. She instituted suits against those parties, and the title of one of them having been maintained, she abandoned those actions and instituted this for the proceeds. Judgment having been rendered against both defendants, the surety, Levasseur, alone appealed. The tutor and administrator being an appellee, the prayer of the plaintiff, the other appellee, to amend the judgment as to him, can not be entertained.

First — The first point made by the appellant, the surety, is that the plaintiff, a married woman, was not authorized by her husband to bring this suit.

This question we must consider as settled between these parties by the motion to dismiss his appeal, which was decided in his favor.

Second — The plaintiff is estopped from prosecuting this suit against P. 0. Peyroux, the tutor and administrator not having yet fulfilled the conditions imposed upon her by a former judgment to claim in kind the properties.

The judgment referred to did not impose on her the condition to claim the properties, but reserved her right to the proceeds in case she failed to recover the property. She alleged and has shown that the title of the purchasers was maintained. She therefore can exercise her reserved right.

Third — The security can not yet' be sued for the proceeds of the sales, no step having been previously taken to fix the liability of the principal.

This objection was not made in the lower court, but the surety adopted and joined in the defense made by the principal, and on the trial the plaintiff showed by the returns of nulla bona on one or two fieri facias for small sums that further process against the principal will be unavailing.

Fourth — Further credits should be allowed the surety.

The judge a quo allowed credits for the proceeds of a'certain property relinquished by the plaintiff, and of two pieces for which she compromised with the respective purchasers, taking from each a specific sum. In this there was no error. He also allowed the appellant a deduction of $833 13, being the plaintiff’s proportion of a sum expended by the tutor for the minors under his charge. Of this she complained, and says that if lie made such expenditure it was taken from the capital, and was not authorized. In this she is correct.

The tutor states that he obtained the individual consent of persons, who had composed a family meeting on a previous occasion, to make use of the capital of the minors’ estate as he did. This is not justifiable, and, according to our law and jurisprudence, can not be allowed in favor of a tutor and surety. This item of $833 13 was improperly allowed.

The judge seems to have overlooked a credit for $21 10 given by plaintiff in her petition.

The amount for which the surety is shown to be liable is made up as follows:

Amount of judgment on opposition...................... $462 22

One-seventh of proceeds of sale, $13,685 41............. 1,955 06

credit. $2,417 28

Amount admitted in petition..........•......... $21 10

One-seventh of proceeds of property as compromised by plaintiff, $4880 02.................. 697 14— $718 24

$1,699 04

It is therefore ordered that the judgment appealed from be amended by increasing the amount thereof, as to defendant F. Lavasseur, from $1371 91 to $1699 04 against said Levasseur, as thus amended it be affirmed with costs.

Rehearing refused.


text:
    No. 5122.
    State of Louisiana v. Sam Johnson.
    The continuance of a cause comes within the sound legal discretion of the judge, and the facts upon which he proceeds in the exercise of that discretion do not come within the review of this court.
    Appeal from the Seventh Judicial District Court, parish of Pointe Coupee. Hemes, J.
    Criminal case. Olivier Provosty, District Attorney, for the State, appellee. FI. Phillips, for defendant and appellant.
   Taliaferro, J.

The defendant, convicted of the crime of murder, appeals from a judgment sentencing him to hard labor in tiie penitentiary for life, in conformity with the verdict of a jury. The case is presented by two bills of exceptions. Each of these was taken to the ruling of the court refusing the defendant’s applications for a continuance of the case. The continuance ot a cause comes within the sound legal discretion of the judge, and the facts upou which he proceeds in the exercise of that discretion do not come' under the review of this court. It is therefore ordered that the judgment appealed from be affirmed.


text:
    No. 4739.
    Higgins & Maurer v. J. C. Wilner.
    The thing leased being destroyed in part by fire, the defendant had the right, under article 2697 of the Revised Code, either to demand a diminution of the price, or a revocation of the lease. He preferred the latter. Xn according to the defendant the exercise of a plain legal right, the court below committed no error.
    Appeal from the Fourth District Court, parish or Orleans. Lynch, J.

      Ootton & Levy, for plaintiffs and appellants. Lacey & Butler, for defendant and appellee.
   Wyly, J.

On the seventeenth August, 1871, the plaintiffs leased to the defendant a cotton pickery, on Tchoupitonlas street, for twelve months, at one hundred and twenty-five dollars per month, evidenced by notes of the defendant. On the seventeenth April, 1872, the leased premises were in part destroyed by fire, and on the twenty-fourth day of the same month the defendant notified the plaintiffs of the fire, and after tendering eighty-three dollars and sixty-three cents, the balance of rent due at that date, demanded a revocation of the lease and the return of the notes.

This proposition was refused and the plaintiffs brought this suit to collect the rent. The defendant set up his demand for the annulment of the lease, and prayed in recon ven tiou that plaintiffs be required to return to him the five outstanding rent notes. There was judgment for the defendant and the plaintiffs appeal.

We see no error in the judgment. The thing leased was destroyed in part by fire, and the defendant had the right, under article 2697, of the Revised Code, either to demand a diminution of the price or a revocation of the lease. He preferred the latter. In according the defendant the exercise of a plain legal right, the court below committed no error. Penn v. Kearny, 21 An. 21.

Judgment affirmed.


author: Ludeling, C. J. Wyxy, J.,

text:
    No. 5084.
    Fleming & Baldwin v. Scott and Ida Watson. Matilda J. Bowie et als. v. The same. (Consolidated.)
    It is objected tbat parol evidence should not have been received to prove the, actual boundaries of Hollywood plantation, because, in the old records of the parish, in which Hollywood is referred to, the lands constituting that placo aro described, aud to receive parol evidence to vary or contradict these records is prohibited. This is an error. The boundaries or limits of Hollywood might be changed at will by its owner, if he also owned the adjoining tracts of land, and the evidence received was to show tbat the boundaries of Hollywood plantation, as well known in 1868,1869, were different from what they had been eighteen or twenty years before.
    The act of sale shows that the Hollywood plantation was sold as a soparate and distinct thing, as a field inclosed, with known and well defined limits, and the evidence was to establish said limits. That is certain, which can he made certain.
    It is also objected tbat a partition of real estate can not be established by parol, and therefore, that testimony to show that the field had been actually divided and taken into the possession of the heirs, should not have been received. Ho valid force can be given to this objection.
    There is ■written proof, by authentic acts, that the partition had been made. The testimony was to prove the fact of the actual division of the field and of the possession by one of the parties of his third share under said partition. The evidence was properly received.
    It was further objected that parol evidence should not have been received to prove an error in the description of the lands sold to Fleming & Baldwin. If that be true, it would be unfortunate indeed, for there could hardly he any other mode to prove a wrong description.
    This is not an attempt to prove, by parol, a sale of immovable property, nor to contradict a valid existing instrument, but to show that, by accident or negligence, the instrument in question has not been made the actual depository of the intention of the contracting parties. JiJco necessitate rei, parol evidence should be received.
    It is on this ground that testimony is let in to prove fraud in every kind of transaction. Cases of error are sometimes kindred to those of fraud, and should be governed by the same rules. Is it not an actual fraud to claim an undue benefit and advantage from a mere mistake, contrary to the real intention of the parties to the contract?
    The evidence shows that there was an error in the description of the property in the deed to Fleming & Baldwin to the extent that it conflicts with Hollywood plantation. The other plaintiffs are concluded by their own renunciation and ratification on record, and which they can not now oppose.
    Appeal from the Thirteenth Judicial District Court, parish of Tensas. Sough, J.

      T. P. Farrar, W. B. Spencer, A. N. Ogden, for plaintiffs and appellees. J. Aroni and T. B. Clinton, for defendants and appellants.
   Ludeling, C. J.

This litigation was commenced by Fleming & Baldwin suing for a partition of a part of the Hollywood plantation. Matilda J. Bowie et als. also filed a suit against defendants and prayed for a partition and for the fixing of the boundaries between their estates. Fleming & Baldwin then intervened in said suit and joined in the prayer of petitioners. The object of these suits is to fix the boundaries of the lands belonging to the parties to the suits.

The facts, which give rise to the controversy, are as follows : Fleming & Baldwin, transferees of an obligation made by John Ruth and wife, in favor of the Bank of Louisiana, instituted suit thereon against the heirs of Ruth and obtained judgment against them. To secure said debt a mortgage existed on the Looustland plantation, and also' on a part of what is now Hollywood plantation. Prom this judgment the heirs of Ruth appealed, and pending the appeal the parties compromised their differences. Fleming & Baldwin agreed to buy the Looustland plantation for $32,850, fifteen thousand dollars cash and the balance to be credited on their judgment against the heirs in full satisfaction thereof. And the heirs of Ruth, being of age, consented to the sale and settlement of said judgment.

Scott and Ida Watson had a judgment against John K. Ruth, one of the heirs of John and Ann S. Ruth, with a judicial mortgage upon the-interest of said John K. Ruth in all the lands of said succession. They also compromised with him by taking from him the “ northwestern third ” of Hollywood plantation, which said John K. Ruth was then in possession of under a partition, made between the heirs of Ruth, all of age, on the first of January, 1868, long anterior to the sale to Fleming & Baldwin.

The sale to Scott and Ida Watson was made on the twenty-ninth of October, 1869, and the sale to Fleming & Baldwin was made on the first of November, 1869. Both deeds were passed before the same recorder in the parish of Tensas, and thus were recorded on the second of November, 1869.

During many years before the partition and sales above mentioned were made, John Ruth was the owner of several plantations, three of which were the Cypress Grove, Hollywood and Looustland plantations. The latter two are the subiects of this litigation. The first is mentioned only because it forms the boundary of the Hollywood plantion on one side. After Mr. Ruth had acquired these estates it seems he changed the boundaries of the Looustland and Hollywood plantations. The Hollywood plantation was the “ home place ” of Mr. Ruth,, and from the evidence in the record it appears that for nearly a fifth of a century it had fixed and well defined boundaries. This plantation was separated from the Cypress Grove at first by a fence, afterwards by a levee, upon which a hedge was planted; from the Looustland it was separated by the Hempfield lane. The places were worked and managed by different laborers and managers as distinct plantations.. The Hollywood plantation contained 9000 acres of land, 1800 acres whereof were cultivated. What constituted Hollywood plantation was well-known in the community, and its boundaries and limits were established,^beyond controversy, by a number of witnesses. It was this estate, the Hollywood plantation, which was partitioned in January, 1869, among the heirs of Ruth, and of which John K. Ruth received the “ northwestern third,” being that part thereof fronting on Lake St. Joseph and adjoining Cypress Grove plantation,” etc.

The .testimony shows that the heirs went into possession of their portions of the lands; that John K. Ruth took actual possession of tfie third of the cleared land, “ being that part fronting on Lake St. Joseph and adjoining Cypress Grove plantation,” with the assent of all the heirs, and that he sold and delivered the same to Scott and Ida Watson, as already stated; that his said vendees had been in the quiet possession thereof a considerable time before any pretensions were set up against them by the plaintiffs. It further appears that, before the purchase of Fleming & Baldwin, they were informed that the Locust-land plantation only contained about seven hundred acres of cleared land, and that when they bought they must have believed that was the quantity of cleared land they were buying; that they took possession of that quantity and set up no pretension or claim to any part of Hollywood until nearlv two years after their purchase. These contemporaneous acts of the parties show how they interpreted the partition and acts of sale between themselves.

It is objected that parol evidence should not have been received to prove the actual boundaries of Hollywood plantation, because, on the old records of the parish, in which Hollywood is referred to, the lands constituting that place are described, and to receive parol evidence to vary or contradict those records is prohibited. This is an error. The boundaries or limits of Hollywood might be changed at will by its owner, if he also owned the adjoining tracts of land; and the evidence received was to show that the boundaries of Hollywood plantation as well known in 1868 and 1869, were different from what they had been eighteen or twenty years before. The act of sale shows that the Hollywood plantation was sold as a separate and distinct thing, as a field inclosed, with known and well defined limits, and the evidence was to-establish said limits. That is certain, which can be made certain.

It was also objected that a partition of real estate can not be established by parol, and, therefore, that testimony to show that the field had been actually divided and taken into the possession of the heirs, should not have been received. There is written proof that the partition had been made. John K. Ruth, in his act of sale to Scott and Ida Watson, so declares, and the renunciation of his co-heirs of their rights to the said third of Hollywood, and their ratification of said sale to Scott and Ida Watson, declares and recognizes the said partition. The testimony was to prove the fact of the actual division of the field and of the possession of John EL. Ruth of his third, under said partition. We think the evidence was properly received. It was further objected that parol evidence should not have been. received to prove an error in the description of the lands sold to Fleming & Baldwin. If that be true, it would be unfortunate indeed, for there cpuld hardly be any other mode to prove a wrong description.

“This is not an attempt to prove, by parol, a sale of immovable property, nor to contradict a valid existing instrument, but to show that by accident or negligence the instrument in question has not been made the actual depository of the intention and meaning of the contracting parties.” Hx necessitate rei, parol evidence should be received. It is on this ground that testimony is let in to prove fraud in every ' kind of transaction. Cases of error are sometimes kindred to those of fraud and should be governed by the same rules. Is it not an actual fraud to claim an undue benefit and advantage irom a mere mistake, contrary to the real intention of the parties to the contract 9 2 La. 3 ; 4 An. 441; 9 An. 29; 15 La. 311 ; 4 Starkie Ev. 10 and 18.

The evidence shows that there was an error in the description of the property in the deed to Fleming & Baldwin to the extent that it conflicts with Hollywood plantation. The other plaintiffs are concluded by their renunciation and ratification made in the deed of sale from John K. Ruth to Scott and Ida Watson.

It is therefore ordered and adjudged that the judgment of the lower •court be annulled, and that there be judgment in favor of the defendants, rejecting the plaintiffs’ and intervenors’ demands, with costs in both courts. It is further ordered that defendants be quieted and maintained in their possession of the northwestern third part of the Hollywood plantation.

Wyxy, J.,

dissenting. I dissent in this ease, and reserve the right to file my reasons hereafter.

Rehearing refused.


text:
    No. 5290.
    State ex rel. L. B. Claiborne v. Charles Parlange.
    The relator, in tliis case, was duly elected or appointed to tlie office lie claims on tlie second ol’ December, 1872, in the only manner then known to the law. The act of the Legislature of March 9,1874, changing the mode of appointment can not be construed so as to make it retroactive. It must be understood to apply to parishes where appointments to that office had not been made by the police juries, or where vacancies existed.
    Tn this instance the office of district attorney pro tempore had been filled and the incumbent's term of office had not expired. The act of March 9,1874, does not abolish the office of district attorney pro tempore, but only alters the mode of appointing to that office.
    Appeal from the Seventh Judicial District Court, parish of Point Coupee. Hewes, J;

      T. 0. Provo sty, District Attorney. Yoist <& Haralson, Barrow & Pope and A. YoorMes, for relator and appellant. Hd. Phillips and Oharles Parlange, m propria persona, defendant and appellee.
   Taliaferro, J.

This action is brought under, the intrusion law. The relator alleges that he was duly elected and appointed by the police jury of the parish of Point Coupee on the second-day of December, 1872, district attorney pro tempore for the said parish of Point Coupee. He complains that the defendant has intruded into and usurps said office, and claims the right to perform the duties and-receive the salary and emoluments of said office to the annoyance and injury of the relator. He prays judgment recognizing him as the legal district attorney pro tempore of said parish, and that defendant be injoined from exercising any of the functions, or discharing any of the-duties of the said office. The defendant filed a peremptory exception to the relator’s right to stand in judgment, and denies that he has any interest whatever in the subject matter, and that relator shows any cáuse of action.

There was judgment in favor of the defendant and the plaintiff has appealed. By his exception the defendant admits the allegations of the petition ; but he rests his defense upon the act of the Legislature of the ninth of March, 1874; which repeals those sections of the Revised Statutes providing for the appointment of district attorneys pro tempore for the parishes by the police juries, and provides for the appointment of those officers by the Governor. The defendant urges that by the enactment of that law the relator became functus officio. But the relator argues that the act of 1874 does not repeal the act of 1868, establishing the office of district attorney pro tempore, and having been appointed under that act by the police jury, as directed by law, his tenure of. office is not affected by the change made in the manner of appointing. The relator further contends that the act of ninth of March, 1874, is void according to article 114 of the State constitution, as it does not declare its object in the title.

We think the position assumed by the relator that the change made in the manner of appointing district attorneys pro tempore for the parishes does not affect appointments previously made in the manner directed by law. The relator was duly elected or appointed to the office he. claims on the second of December, 1872, in the only manner then known to the law. The act of the Legislature of ninth March, 1874, changing the mode of appointment can not be construed so as to make it retroactive. It provides, “ that immediately after the passage of this act there shall be appointed a district attorney pro tempore, etc., by the Governor with the advice and consent.of the Senate,” etc. But this act must be understood to apply to parishes where appointments to that office had not been made by the police juries, or where vacancies existed.

In this case the office of district attorney pro tempore had been filled and the incumbent’s term of office has not expired. The act of March 9, 1874, does not abolish the office of district attorney pro tempore, but only alters the mode of appointing to that office. See case of State v. Kreider, 21 An. 482, and the case of the Returning Board and other oases subsequently decided. We think the judgment erroneous.

' It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed. It is further ordered that there be judgment in favor of the relator and against the defendant; that the relator, L. B. Claiborne, be and he is hereby recognized as the district attorney pro tempore for the parish of Point Coupee, entitled to hold and discharge the duties and to receive the profits and emoluments by law appertaining to the same. It is further ordered that the claims set up to said office by the defendant be rejected, the defendant and appellee paying costs in both courts.


text:
    No. 5219.
    State ex rel. Van Norden v. The Judge of the Superior District Court.
    On the trial of a rule, contradictorily with the parties in interest, to show cause why a writ of injunction should not be granted to restrain a sale as prayed for by relator, the judge a quo rendered an interlocutory order refusing the injunction and declined to grant an appeal from said order. In this the judge erred.
    The order complained of was certainly an interlocutory order working thq relator an irreparable injury. His property was about to be sold for the debt of another; ho was entitled to an injunction to protect Jiis right of property, having made affidavit and tendered bond according to law. These sworn averments must be taken as true for the purposes •of this inquiry. The relator has the right to have the judgment revised. Upon examining the evidence this court may find that the judge erred, and that an injunction should issue.
    The right of appeal is a constitutional right, and it should be jealously guarded by this court.

      APPLICATIOÑ for a writ ‘of mandamus directed to J. Bawhins, 1JL Judge of the Superior District Court, parish of Orleans.

      Lacey & Butler, Bice & Whitalcer, William B. Bunt, for relator. Respondent, in propria persona.

   Wyly, J.

The State having seized, under its judgment against the Mississippi and Mexican Gulf Ship Canal Compauy, certain property, the relator filed a third opposition on the ground that he is the owner thereof, and making the affidavit and tendering bond according to law, ihe prayed for a writ of injunction to restrain the sale. The court granted a rule to show cause, and at the trial thereof, contradictorily with the parties in interest, rendered an interlocutory order refusing the injunction. The relator sought to appeal but the court refused him this right, whereupon he instituted this mandamus proceeding.

The order complained of was certainly an interlocutory order working the relator an irreparable injury. His property was about to be sold for the debt of another. He was entitled to an injunction to protect his right of property, having made affidavit and tendered bond •according to law. These sworn averments must be taken as true for the purposes of this inquiry.

It is contended, however, that after hearing the parties the judge has decided the relator is not entitled to the writ. That judgment the xelator has the right to have revised. Upon examining the evidence we may find that the judge erred and that an injunction should issue. The right of appeal is a constitutional right and it should be. jealously guarded by the court.

It is therefore ordered that the mandamus herein be made peremptory.