text:
    No. 6664
    State ex rel James L. Cole vs. Judge of the Fifth Judicial District.
    An interlocutory decree, rescinding a former order of the court made at its preceding term, which inflicts no irreparable injury on the complainant, can. not be separately appealed from. It must come up when' the ease is appealed on the merits.
    Injury to a party is irreparable, when the final judgment on appeal can not place him where he stood before the interlocutory decree complained of was rendered.
    Delay, increased labor, and expense, do not make up a ease of irreparable injury.
    j^PPLICATION for writs of mandamus and prohibition.

      George Wailes and Barrow & Pope, for relator.
    Respondent, for himself.
   The opinion of the court was delivered by

Spencer, J.

L. Grand & Co. instituted two suits against relator, Cole, in the district court of Iberville.

Relator, on the first of August, 1876, filed a motion to have Grand & Co. produce certain books, bills, vouchers, etc., supporting said motion by his oath that he expected to prove by said books, etc., that “the note sued upon is a partnership asset, so far as the same has any existence ; that same was given in error and was obtained by fraud and by concealing the true state of the accounts of said partnership ; that the errors in the same are so large as to show that no portion of said note was given for a valuable consideration, no part of the amount being due to the said partnership or to said L. Grand & Co.” This motion was granted, and served on L. Grand, ordering the books tó be produced on the eighth of August, 1876.

Grand & Co. failed to comply, and on the seventeenth of August relator moved to have the facts stated in his affidavit taken as confessed, which motion was duly served and set down for trial. On the eighteenth of August this motion to take for • confessed was tried, and on the twenty-fourth of August the court sustained it and ordered that the facts which relator had sworn to as provable by said books be taken as-confessed. Grand & Co. moved for a rehearing of this motion, which was overruled.

At a subsequent term of the court (in April, 1877,) (the defendant herein, Charles McVea, having been in the meanwhile elected judge thereof), Grand & Co. filed a motion to rescind the said order taking the said facts for confessed, as also to rescind another order which had been rendered, appointing experts and a surveyor, to determine and report upon a partition in kind, demanded by the relator of certain partnership property.

This motion to rescind was sustained, and the order appointing the experts, and the order taking for confessed, were rescinded and set aside. The relator thereupon asked for a suspensive appeal from these orders-of rescission, as they were of a character to work him an irreparable injury. The court refused the appeal, and relator applies for a writ of mandamus, and of prohibition against further proceedings, until said appeal is heard.

Two questions are raised and elaborately discussed. First, as to the power and competency of the judge to revise or rescind interlocutory orders and decrees made in a cause at a previous term ; second, as to whether these orders of rescission are such as work or may work relator an irreparable injury.

The first of these questions seems to us identical with the one, whether an order overruling a plea of res adjudícala can be appealed from. It is manifest that it can not, for the simple reason that if the plea is good the party may obtain relief on the final appeal. If the judge was without power to try the motion to rescind, by reason of the matters involved being of the nature of the thing adjudged, the question can be presented to this court, when the case comes here for final hearing. The rule is that where a party can get relief from the consequences of an interlocutory order, when the case comes to this court upon its merits, no appeal will lie from such order. We conclude, therefore, that the question as-to the power and authority of the judge to rescind the orders in question can not be reviewed by this court until the case is here on final appeal, and until then we can express no opinion upon the subject.

Second — Are the orders rescinding the interlocutory orders of the previous term of a nature to work relator an irreparable injury, and therefore appealable ? This is the sole question.

One of the orders rescinded directed that certain facts sworn to by relator be taken for confessed. The other directed the appointment 'of certain persons as experts to determine and report upon the practicability of a partition in kind of certain property.

Relator contends that these orders of rescission may and will work him an irreparable injury, because—

First — These facts stood in the record, not only proved but confessed, and could not therefore be.-controverted. The order of .rescission destroyed this evidence for relator.

Second — He will be put to useless expenses and costs, and delays in producing and introducing evidence of said confessed facts.

Third — The witnessess by whom the books, etc., might be established, if false or changed entries are produced, or if said books aje now suppressed, may no longer exist or be within reach of relator, and thus he be deprived of proof, etc.

We think the correct doctrine on this subject is stated by this court in Hyde vs. Jenkins, 6 La. 427, to the effect that, to entitle a party to an appeal from an interlocutory judgment, it is unnecessary that the injury be absolutely irreparable. It suffices if it be such as would be irreparable by the final judgment. If this final decree can .not replace the party in the advantageous position which he occupied before the interlocutory .judgment, the injury is irreparable.

Testing the relator’s claims by these rules, we think they are not tenable, because—

First — This court on the final hearing of this cause, can and will give the relator the benefit of the imputed confessions, if the order therefor was properly and legally taken. The rescinding order does not destroy the evidence, if illegally rendered, or impair the right to offer it on the trial of the cause. Its legality can be questioned on the final hearing, and this is true of the order as to the experts.

Second — The fact that an interlocutory order may occcasion some delay, and additional labor and expense, is not surely a sufficient ground for an appeal. If so there would be no end of appeals. The overruling a plea to the jurisdiction, or a plea of res adjudicatei, or the granting an order of continuance, or a commission to take testimony, and many other orders and decrees, occasion delay, expense, and labor, and yet no •one pretends that appeals lie from them. More or less delay is the proverbial attribute of the law — expense and labor necessary incidents, which are supposed to be reimbursed and compensated by the party •cast. • i

Third — -The third reason presented by relator seems to us rather a reason why he ought not to desire an appeal. He says that witnesses, by whom he can prove the facts taken for confessed may die. True, but ia not that a cogent reason for taking their testimony as soon as possible, and without waiting for the results of the appeal he is seeking? For that would involve months of delay, thereby iuereasing the chances of death among his witnesses ; and if by any chance the appeal sought should be decided against him, and the “ rescinding orders ” held to be valid, he would then indeed'have suffered an irreparable-injury, but that injury would have proceeded from his own act! By denying him the appeal we save him these risks. He is safe in the possession of the confessions in question, if the order taking them was legal. ■ No irreparable injury can therefore result; at most he will incur some delay and some additional cost and labor, which as we have seen do not afford cause for appeal.

The writs prayed for are refused.


source: Caselaw Access Project

author: DeBlano, J.

license: Public Domain

text:
    No. 6698.
    State ex rel. J. Larieux et al. vs. the Judge of the Fifth District Court.
    This court will not issue a writ of prohibition to a lower court forbidding it to proceed in a qase before it, of which it has not jurisdiction, until a plea to its jurisdiction has been filed in the lower court, and overruled by it.
    j^PPLICATION for a writ of prohibition.

      JE. K. Washington, for relator.

      Eobt. Mott, for respondent.
   The opinion of the court was delivered by

DeBlano, J.

On the twelfth of June 1877, the Crescent City, Live Stock, Landing and Slaughterhouse Company filed, in the Superior District Court, a suit against John Larieux, one of the relators. In that suit, which was transferred to the Third District Court of this city, the company prays that said Larieux be enjoined from yarding, stabling and slaughtering, within the parish of Orleans, St. Bernard and Jefferson,, except in its buildings, on its premises and at its abattoirs, any animals destined for human food.

On the third of July 1877, the injunction thus applied for was refused by the judge of the Third District Court, and, from the decree denying and rejecting its application, the company appealed. That appeal is now pending in the Supreme Court. On the 9th of July, six days after the judge’s refusal to grant the aforesaid injunction, the company applied to the judge of the Fifth District Court, for an injunction against the said Larieux, which, in substance, is almost identical to that refused by the Third District Court. The manifest object of both is to compel the relators and every butcher, within the limits of the three aforesaid parishes, to pursue their occupation at the place designated by the company’s charter.

On the eleventh of July, Larieux appeared in the Fifth District Court, 'and, through his counsel, moved that the order of injunction granted by said court be revoked and rescinded, on the ground that it was allowed in violation of an act of the Legislature, which provides: “ That whenever a suit'or judicial proceeding is instituted in any of the courts-of the parish of Orleans, in this State, when such court has jurisdiction, all parties to such suits shall be confined exclusively to such court for the trial of all issues or matters that may arise in the course of such litigation, or out of the judgment rendered in such litigation; and no other judge shall have jurisdiction to grant orders of injunction, sequestration, provisional' seizure, arrest, prohibition, quo warranto, or any other order by which the proceedings in such litigation or judgment rendered thereon, or the property in litigation, or persons of the parties in litigation, shall be stayed or in any manner interfered with or interrupted etc. That no provision in this section shall apply to the Supreme Court or the judges thereof.”

The second section of said act provides “that whenever any judge shall grant any order in contravention or in violation of its first section, and the same shall be brought to his knowledge ex parte or otherwise, he shall forthwith revoke and annul such order, either in chambers or open court, and cause the officer in charge of the execution of such writ to be notified of such revocation, whose duty it shall be to return such writ at once; and if any judge, who has granted any such orders, and to whom knowledge has been brought that it is in violation of the first aforesaid section, and he fails or refuses to grant an order annulling it, as directed, and it shall be necessary, by writ of prohibition or appeal in such cases, or resorting to any legal remedy to compel him to issue such order, and he is directed to annul the same, as is required by the first section of said act, such judge shall be fined in the sum of two thousand-five hundred dollars,” etc. Act No. 86 of 1870.

The motion made to revoke and rescind the order obtained from the judge of the Fifth District Court was tried, argued and taken under advisement. Immediately after, and before the decision of his own motion, Larieux applied for a writ of prohibition commanding the aforesaid judge to take no further action in the case. His application is premature;

According to High, “ the common-law rule is believed to be generally applicable in this country, and the writ will not go to a subordinate tribunal in a cause, arising out of its jurisdiction until the want of jurisdiction has first been pleaded in the court below and the plea refused; and where there has been no effort made to obtain relief in the court which it is sought to prohibit, the superior courts will refuse to exercise their jurisdiction by this extraordinary remedy. Eor example, where an injunction has been obtained in direct violation of statute, and without any jurisdiction on the part of the court, prohibition will not be granted to prevent the court from proceeding with the injunction suit, where no application has been made to dissolve the injunction.” High, Extraordinary Legal Remedies, p. 558-9, No. 773.

There is no doubt that but one tribunal, the Third District Court of this city, could legally have entertained jurisdiction of the controversy pending between Larieux and the company, and that said controversy has passed from the lower to the appellate court. Were it not that his decision has been suspended by the provisional writ of prohibition, the jtidge of the Fifth District Court would have, we presume, already complied with the imperative mándate of an imperative law and sustained the plea to his jurisdiction. Be this, as it may, until now the parties alone, plaintiff and defendant, have proceeded in this cause, the first in asking the injunction, the other in asking the dissolution of the injunction. The judge has not yet acted, and until he does and evinces a determination to encroach upon and usurp the jurisdiction of the other tribunal, there shall be no cause to interpose our authority.

The rule is, therefore, discharged at relator’s costs.


author: Egan, J.

text:
    No. 5455.
    A. P. Dumas vs. Aristide Mary.
    The1 failure of an appellant to obey an order of the lower court to substituto a solvent for an insolvent surety on his appeal bond, will work the dismissal of his appeal.
    APPEAL from the Fourth District Court, parish of Orleans. Lynch, J.

      A. & W. Voorhies, for plaintiff.

      A. Robert, for defendant.
   The opinion of the court was delivered by

Egan, J.

The surety upon the appeal bond in this case died insolvent after the transcript was filed in this court. A rule was taken in the court below upon the appellant to show cause why he should not give new and sufficient surety. The rule was made absolute, and appellant ordered to furnish the required new surety within a delay fixed by the court. He has not complied with the order.

The solvency and sufficiency of the surety on an appeal bond is peculiarly within the province of the court of original jurisdiction. From its order in the premises he has not applied to this court for relief, and the action of the court below is presumed to be regular and based upon sufficient evidence. The motion to dismiss this appeal must prevail. 21 An. 178; 16 An. 192; 19 La. 178; 22 An. 113; 23 An. 714; 25 An. 424.

Although this ground is not expressly taken in the motion we have the less difficulty in dismissing the appeal for the reason that the surety upon the injunction bond was likewise the surety upon the appeal bond. This he could not lawfully bé, as he was a necessary party to the appeal. See 18 An. 659.

It is therefore ordered, adjudged, and decreed that the appeal be dismissed at the cost of the appellant.


text:
    No. 6724.
    State ex rel. Mary E. Brown et al. vs. Parish Judge of Iberville Parish.
    Where a motion in open court for a suspensive appeal has been refused, and the mover, pending the term of court at which his motion was refused, makes no application to this court for relief, he can not obtain a mandamus to compel the successor of the judge who refused his motion, at a subsequent term of the court, to grant the appeal,
    It is too late to apply to this court for a mandamus to compel an appeal to be granted, when the term of this Court, at which the appeal was "asked to be made returnable, has expired, without any effort having been made by the applicant to obtain relief from this tribunal.
    ^PPLICATION for a writ of mandamus.

      Barrow & Pope, for relators.
    Respondent for himself.
   The opinion of the court was delivered by

Egan, J.

Judgment was rendered in the parish court of Iberville by James L. Cole, then’parish judge, on the twelfth of December, 1876, in the partition suit of Julia A. Ventress; individually, etc., vs. Isaac D. Brown et al., heirs of James N. Brown. On the same day the relator moved in open court for an appeal, suspensive or devolutive, which motion was overruled and the appeal refused. The relator asked for no order of prohibition or mandamus against the judge so refusing the appeal. The term of court expired at which the motion was made and judgment rendered, as did also the term of the judge who refused the order, and he was regularly succeeded by James Crowell, the defendant in these proceedings. The relators do not even allege that they ever applied for any other or subsequent order either to the former or to the present parish judge, nor do they allege any state of facts which placed it beyond their power to seek the relief provided by law to enable them to assert and obtain a suspensive appeal within the time fixed by the statute or to avail themselves of any right growing out of the motion for appeal made by them in open court at the term at which the judgment was rendered. Under this state of facts the defendant Crowell very properly answers that the term of court at which the motion for appeal was made having adjourned sine die, the matter had passed beyond his reach. In other words, that it was too late after its adjournment to change the orders made at that term, and that it was not his province at this time to revise the acts and orders of his predecessor in the premises.

Under this state of facts it is apparent that the present parish judge is not in default, and that mandamus will not lie against him. Indeed, he says in his answer that had he been the judge of the court at the time of the motion for appeal he would have granted it. The relators obtained the provisional order of mandamus in these cases on the twenty-fourth of October of the present year. By their own showing it is now too late for a suspensive appeal; the term of this court to which the appeal was asked for has passed without any effort on the part of the relators to. correct the alleged error in refusing appeal, and an order could not at'this time be granted to have effect nunc pro tunc either for suspensive or devolutive appeal; and they could no doubt obtain a devolutive appeal by proper application to the present judge of the court a qua, as it is within twelve months.

It is therefore ordered, adjudged, and decreed that the complaint be dismissed and the writ of mandamus be discharged at the cost of the relators.


author: DeBlanc, J.

text:
    No. 5417.
    James. L. Ferree et al. vs. Wm. P. Smith.
    When the owner of a patented machine sells to another the exclusive right to use, and dispose of the machine within a certain territory, he thereby' excludes himself, and all others acting under his authority, from using or selling, within said territory, any other machine, called by a different name, and differing slightly in its construction and method of operation, but which is substantially the same machine, performing substantially the same kind of work.
    ^PPEAL from the Sixth District Court, parish" of Orleans. Saucier, J.

      A. & W. Voorhies, for plaintiffs and appellees.

      Hornor & Benedict, for defendant.
   The opinion of the court was delivered by

DeBlanc, J.

On .the fifteenth of August, 1871, William Smith, acting in his own name and as agent of L. M. Rumsey, sold to plaintiffs, James L. Eerree and John R. Davidson, “all the right, title and interest which they had in an invention to drill rock and earth, for which, on the first of J une 1869, they obtained a patent from the United States; the right thus transferred to be held and enjoyed to the end of the term for which the patent is granted, and as fully and entirely as then held by the vendors.”

In the deed from defendants to plaintiffs, it is expressly stipulated that the privilege thus assigned to the latter shall be exercised by them in only the parish of Pointe Cbup'ee, and that, within the limits of said parish, none but the drove well referred to in the deed, and none of that description but those to be manufactured and furnished by William Smith shall be used by his transferees.

Under this contract, what were, if not the express, at least the implied obligations of defendants ? It certainly was not to enter in competition with their assignees and in the designated locality, either with the patented drill or any other. It was more: they could not fairly advise, assist and encourage others to drill wells in said locality.

Have they done so ? One of them, William Smith, manufactured what he seems to consider as two different drovewells, one which does, and one which does not revolve, as they are driven. He claims that it is the first which he sold to plaintiff, and that he, and any one else, "has a perfect right to use, sell and drive the other at any and every place. He so informed James Holmes, who, thereafter, drove, in the parish of Pointe Coupee, several of those non-revolving wells.

Davidson came to the city, spoke to Smith on this subject, mentioned the names of those for whom those wells had been driven, complained that he had advised not to deal with him, that, besides, he had himself sent the machinery and appliances for those wells to Pointe Coupee, and Smith answered that he would continue to do so. He evidently relies on the difference existing between the two wells and indicated in his and his witnesses’ declarations,. Whatever may be that difference, and it is very slight, Smith has violated his contract of the fifteenth of August.

“ In determining the question of infringement, we are not to determine about similarities or differences, merely by the names of things, but are to look to the machines or several devices or elements in the light of what they do or what office or function they perform and how they perform it, and to find that a thing is substantially-the same as another, if it performs substantially the same function in substantially the same way to obtain the same result.” Union Refinery vs. Matthieson, 2 Fish. 602.

“ It makes no matter what additions to or modifications of a patentee’s invention a defendant may have made: if he has taken what belonged to the patentee he has infringed, although with his improvement the original machine or device may be much more useful.” Howe vs. Morton, 1 Fish. 587.

In their answer to the appeal, plaintiffs pray that the judgment of the lower court be amended and they allowed, as damages, the sum of five thousand dollars. The facts disclosed on the trial do not authorize either the amendment or reversal of said j udgment, which is affirmed with costs.

Rehearing refused.


author: Spencer, J. DeBlanc, J.

text:
    No. 5416.
    Gordon & Gomilla vs. Wright & Clark.
    Before a third person can sue on a policy of insurance to which he is not a party, no matter what his interest in the insured property may be, it must be shown that the policy was assigned to him with the written consent of the assurer, and that the property assured had been assured as his property.
    A claim not set up in the pleadings will not be allowed by this court.
    A consignee who fails to insure property shipped to him and received by him, after having been instructed to insure by the shipper, is liable for any loss resulting from his not having insured.
    A consignee who has insured a consignor’s property in his, consignee’s, name, and fails to collect the insurance money, becomes liable himself as insurer.
    LPPEAL from the Sixth District Court, parish of Orleans. Saucier, J.

      Bandolph, Singleton & Browne, for plaintiffs and appellees.

      H. H. Bryan, for defendants.
   The opinion of the court was-delivered by •

Spencer, J.

Plaintiffs, a commercial firm of New Orleans, bring this -suit by attachment against defendants, a commercial firm of Jefferson, Texas, for $1629 41, with ñve per cent .interest from first March, 1872. They allege that in the latter part of 1871, and early in January, 1872, they consigned to the defendants for sale 500 barrels of flour, which defendants duly received. That defendants refuse and- neglect to account for a portion of said flour, by reason of its having, while in their warehouse at Jefferson, been destroyed by fire in the month of February, 1872. That said defendants were instructed to insure said flour. That it was in the usuál course of business, their duty to insure it — that they had insured similar shipments made to them by petitioners or at least had charged petitioners with the premiums of insurance, which in every instance were duly paid by petitioners — and that said defendants had charged petitioners with the premiums of insurance on this particular lot of flour — that said defendants are liable for ■ 167 barrels of flour worth $1472 and for damages done to other barrels to the amount of $354 75, less a credit of $197 34, leaving due $1629 41. They pray for attachment and garnishment.

The defendants answer in substance, that they were not the agents of plaintiffs; that if- they were they were not bound to insure; that in point of fact they did insure and that they are not liable for said loss.

There was judgment for plaintiffs as prayed for, and defendants appeal.

The evidence satisfies us that plaintiffs shipped the flour to defendants for sale, and that defendants received it, and stored it in their warehouse. That defendants were in the habit of insuring the plaintiffs’ consignments, charging insurance premiums therefor, which were always paid by plaintiffs. That in point of fact they (the defendants) had this particular flour entered as insured under their open policy with “ the Texas Banking and Insurance Company ” and charged plaintiffs with the premiums thereon. This policy was payable only to the defendants or their assignees. The insurance attempted was effected in their name, and not in that of plaintiffs, who could not have maintained an action on the policy. The insurance officers swear that defendants overloaded their policy, which was for only ten thousand dollars, and that the company had paid them all it owed under the policy.

Under this state of facts the right' of plaintiffs to recover is too plain for discussion. If the defendants did insure, it was in their own name, and it was their duty to collect. If they did not, it was their neglect of a plain duty which makes themselves liable as insurers. They can not avoid1 this liability by pretending that plaintiffs had more especially charged one of their (defendants’) clerks with the sale of this flour. There is no sufficient proof of that fact, and there is no pretense that defendants were not the consignees.-

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed with costs of both courts.

Marr, J., recused.

On Behearino-.

The opinion of the court was delivered by

DeBlanc, J.

In the brief which he filed a few months before his death, the able, unpretending and regretted attorney who then represented the defendants, based his application for a rehearing of this cause, on the ground that the policy of insurance, though issued in his client’s name, was procured for the benefit of plaintiffs, and that they could and should have sued thereon.

He has quoted from the reports of several States to establish that “ when a promise is made to one for the benefit of another, he for whose benefit it is made may bring an action for its breach.” This, assuredly, we have never denied, for that plain doctrine is consecrated by our legislation and jurisprudence. Here, that doctrine is a law, and the action given for the breach of such a promise is the equitable action. C. P. 35.

In our previous opinion, what did we maintain ? That the insurance was effected in defendants’ name, that, in substance as in form, the policy is payable but to them or their assigns, and that, as plaintiffs could not legally have sued thereon, it was defendants’ duty, we should have said their right, to claim, sue for and collect an indebtedness, the evidence of which ever was and still remains in their hands; but we have neither entertained, nor published the more than extravagant proposition “ that an agent, who makes a contract for his principal is bound to enforce that contract, even by litigation.”

The policy is before us, and we have to read it as it is written, to construe it according to its stipulations. By its terms, who were insured ? Wright & Clark alone. Against what and for what amount were they insured ? Against fire and for any amount not exceeding ten thousand dollars. Whose property the policy was intended to cover ? Their own and any property held by them on trust or on commission.

To have enabled plaintiffs to bring an action on that policy, three conditions had to be complied with:

First — -The policy would have had to be assigned to them, and it could have been so assigned but by written consent of the corporation. That consent was neither asked, nor given.

Second — They would have had to allege and prove that the property held on commission for them had been insured as such. This was not done.

Third — They could have successfully sued but on a policy not exceeding ten thousand dollars, and defendants’ — this is not disputed — did exceed that amount and was overloaded.

Two important facts were sworn to 'by the general agent of the insurance company and they stand uneontradieted. He did not know Gordon & Gomilla in connection with this policy, nor that any flour of others was destroyed by the fire: but, so far as he knows, what was due to Wright & Clark, under the policy, had been settled and paid.

Under these circumstances, are they not liable for the full value of the flour which was entirely destroyed, and for the injury done to the balance? In that respect, our conviction was and still is that they are bound. So we held and so we hold.

We have found, in our former decree, an error of fact, and that error we hasten to correct: it is as to the value placed by us and by the lower court on a portion of the flour, the Alvarado, for which we should have allowed, not nine dollars as we have done for the Eigaro, the best of the two brands, but only eight dollars and a half, as there was, between those brands and according to Gomilla’s own statement, a difference of fifty cents per barrel. That excess was charged on ninety-one barrels and should be deducted from plaintiffs’ claim.

In their printed argument, defendants contend that they should also be allowed a commission of two and a half per cent on any balance for which they may be held liable, as that balance shall represent the full value of the property consigned to them, and be, we must presume, equal to the amount of the proceeds which would have been realized from the sale of the floui\ That commission is not claimed in their pleadings and can not be allowed.

It is therefore ordered that the former decree of this court be set aside, and the judgment of the lower court avoided, annulled and reversed.

It is further ordered, adjudged and decreed that there be judgment in favor of plaintiffs, Gordon & Gomilla, and against defendants, the firm of Wright & Clark, and against Mark H. Wright and P. B. Clark, the individual members of said firm, in sólido, for the sum of fifteen hundred and eighty three dollars and ninety-one cents, with legal interest thereon from judicial demand, with privilege on the property attached by plaintiffs; the costs of the appeal to be paid by Gordon & Gomilla, those of the lower court by defendants.

Mr. Justice Marr took no part in this decision.


author: Spbnoer, J.

text:
    No. 6727.
    State ex rel. Fuqua, Tutor, vs. F. D. Brame, Special Judge.
    On the recusation of a district judge in a particular case, an attorney at law can not be compelled to accept the appointment of judge ad hoc, to try the case in place of the'recused-judge ; nor to act, even-after--having -accepted the appointment, and passed on some preliminary questions in the case.
    j^PPLICATION for a mandamus.

      Wedge & Moore, Calhoun FluUer, and Labatt & Clinton, for relator.
    Respondent for himself.
   The opinion of the court was delivered by

Spbnoer, J.

Certain suits are pending in the district court of East Feliciana between the relators and K. A. Cross. The judge of that court having been of counsel previous to his election, recused himself, and appointed the defendant Brame, an attorney of that court, special judge to try them. Brame accepted the appointment, took the oath as judge ad hoc, and tried some preliminary questions and exceptions therein. Subsequently he stated from the bench, that, while he had no interest in the suits, nor had been of counsel, nor was related within the fourth degree to any of the parties, he was a personal friend of Mr. Cross, and had some family relationship with parties to the suit. He therefore declined to sit longer as judge ad hoc, and vacated the bench, refusing to proceed with the trial.

Relators thereupon apply to this court for ap mandamus to compel him to proceed as judge ad hoc to the trial.

The defendant answers in substance to the rule nisi—

First — That article ninety of the constitution does not compel an attorney, not a judge of any court, to abandon his own business and assume against his will the office and responsibilities of a judge in any court or case.

Second — That he has been appointed against his will, during the present term, judge ad hoc to try at least half a dozen cases like the present and that “ the said appointments are attended with neither honor, nor profit, and are a nuisance.”

p Third — That such compulsory service would be involuntary servitude, in violation of article thirteen of the constitution of the United States.

Fourth — That act No. 70 of 1876 provides for the disposal of cases like the present, where no attorney possessing the requisite qualifications will serve as judge ad hoc.

The course of the defendant looks very much like trifling with serious interests and his answer is wanting in that gravity which ought to characterize judicial proceedings. He should not have accepted unless he intended doing his duty. But we know no law by which we can compel him to do so. The ninetieth article of the constitution requires the judge to appoint an attorney, but does not make it obligatory on the attorney to accept, or having accepted, to compel him to serve. If he be considered as an officer, a judge, still he has the right to resign, provided he does not do so inopportunely and to the defeat of the rights of others. His action in this case amounts to a resignation; and although it appears by the certificate of the district judge that there is no other attorney at that bar who can be appointed, we do not think that the relators are remediless. The act No. 70 of 1876 provides, we think, specifically for their case, and enables them to have their cases tried by transfer to" another district.

The mandamus is therefore refused with costs to be paid by relators.


author: DeBlanc, J. Spencer, I.

text:
    No. 6589.
    James J. O’Hara vs. Mrs. E. Booth and Nicholas Connell.
    "When. an owner ol property within this State, who is absent from the State, is sued, in a court, -within whose jurisdiction the property is situated, he may be brought into court and have a judgment in ran rendered against him, either by attaching the property, or by having a curator ad hoc appointed to represent him. Service of citation on such curator is sufficient.
    The purchaser of unmortgaged property, sold under the decree of a court of competent jurisdiction, rendered in a suit where the proper parties were duly represented, can not have his title to the property assailed in any collateral manner ; or, on the ground of irregularities in the legal proceedings which only the defendant in the proceedings could plead.
    The adjudication of property sold under execution, at the suit of a privilege creditor, for a price less than the amount of a prior privilege is utterly void.
    Seizure of property under the execution of a valid judgment, gives alien on the property, superior to any privilege recorded against it subsequent to the seizure.
    A PPEAL from the Fourth District Court, parish of Orleans. Lynch, J.

      Hornor & Benedict, for plaintiff and appellee.

      T. Gilmore £ Sons, for Connell.
   The opinion of the court was delivered by

DeBlanc, J.

The defendant, Sarah E. Booth, was the owner of the ■square of ground bounded by Liberty, Howard, Washington and Fourth streets, in the city of New Orleans.

Nicholas Connell, as transferee of ’one J. Fallon, and O’Hara, the plaintiff, were both creditors of Mrs. Booth for the cost of laying sidewalks, curbs and gutters, under contracts with the city — Fallon on Liberty street, O’Hara on Howard street,

Eallon’s privilege was recorded on the fourth of March 1872, O’Hara’s on the ninth of March 1876.

Connell sued on the claim transferred to him by Fallon, -and, on the tenth of May 1875, obtained judgment against Mrs. Booth,for $669 71, with recognition of his privilege on the lot of ground above described.

On this judgment execution issued and was levied in July 1875. The property subject to Connell’s privilege was seized, advertised for sale, and adjudicated to him for $1600, but on account of alleged informalities in the proceedings, said property was re-advertised, and, on the fifteenth of April 1876, re-adjudicated to Connell, for $300.

On the twenty-fifth of March 1876, O’Hara brought suit against Mrs. Booth and Connell, on his herein-mentioned claim, and, on the third of May, obtained judgment against Mrs. Booth alone, for $820 28, withreeognition-of his privilege. His demand against Connell was rejected.

It was after the first and before the second adjudication of the property to Connell, and while said property was under his, said Connell’s seizure, that O’Hara’s privilege was recorded and his judgment obtained.

O’Hara issued execution upon his judgment against Mrs. Booth, and caused to be seized, as belonging to her, the lot which, already, had been sold to Connell. The sale, under O’Hara’s execution, took.place on the fifth of August 1876, and, at that sale, the property twice before adjudicated to Connell, was purchased for $100 by A. Hero, Jr.

It was after this last adjudication, that O’Hara filed the rule in and by which Connell was called upon to show cause why the privilege securing the claim transferred to him by Fallon should not be cancelled. To this rule, Connell excepted on the grounds that such issues as it presented could not be tried during the court’s vacation, and that his rights on the property could not thus be collaterally attacked.

In answer to these exceptions, O’Hara’s counsel contend, in their printed argument — •

1. That Fallon’s privilege was not recorded at the date fixed by the 3274th article of the Civil Code, and that, under a decision of this court reported at page seven of the twenty-seventh Annual, he was not entitled to any privilege whatsoever.

2. That the judgment of Connell, as transferee of Fallon, is an absolute nullity, for the reason that, having no privilege, he had no right to proceed against Mrs. Booth, an absentee, by the appointment of a curator ad hoc.

3. That said curator was appointed without a previous citation to Mrs. Booth, before it had been shown that she was an absentee, and that he, said curator — -though it does not appear that he was cited — answered Connell’s demand by a general denial, upon which, on the tenth of May 1875, judgment was rendered against Mrs. Booth.

Fallon’s claim against Mrs. Booth is not disputed; its rank alone is' contested. That claim, its amount and its character are recognized by the judgment of a competent court — that judgment was.executed inthepresenee of O’Hara; he protested, but irregularly, against the execution! under which Connell acquired title to the property, on which they botín allege and tacitly admit they had a privilege.

Could O’Hara, disregarding the title so acquired, proceed to seize and’ sell as still belonging to Mrs. Booth, the property which, to his knowledge, had passed from Mrs. Booth to Connell ? He seems to think that he could. In this, he is mistaken. Mrs. Booth was absent from anc£ owned property in the State; she was, beyond any doubt, indebted toConnell, and, when sued by the latter, was properly represented by a curator ad hoc, on whom, as such, citation was served on the first of April 1874

There may be, in the proceedings which are the basis of Connell’s title, a slight inobservance of the rigid course which should be pursued, to bind absentees and justify the sale of their property; but, if they do-exist, most of the irregularities complained of, considering the evidence-now before us, would only authorize those defenses and actions personal! to the absentee, and do not import that absolute nullity, which, to be- ' pronounced by the court, needs but be referred to and suggested, and1 which, at any time and under all circumstances, may be urged by any-interested party.

The curator ad hoc may seem to have been a little too hasty in filing-his answer; unexplained, that haste may leave the impression that Reacted before communicating with Mrs. Booth; but, had he corresponded with her, would she have imparted any information he had not, and would any additional information have changed the form and substance-of the curator’s answer ? That is not probable. He may have had reasons to believe that, in the interest of the absentee, to avoid the useless • expenses of a litigation which could be but uselessly prolonged, the immediate trial of a suit on an indisputable and undisputed claim was as-proper as desirable! This did, nor could, in no way, expose or affect. the rights of O’Hara.

Mrs. Booth might, with what result, we are not prepared to decide,, assail as apparently irregular and suspicious two successive adjudications of her property to the same party, under the same execution; the first for sixteen hundred dollars, the last for only three hundred. That right, in a proper pleading and under proper allegations, her creditor might invoke and exercise; but he neither could, nor can, by mere suggestions in argument, ask of any court to ignore the existence of a title, derived from the execution of a judgment rendered after citation, the joining of issue, a trial, and the uncontradicted proof, if not of Connell’s'claim and privilege, at least oí the as yet undenied correctness of his claim.

Instead of contending for a preference over the price of either the first or the second sale, O’Hara has chosen to proceed directly against the property, as if it had neither been seized nor sold under Connell’s execution; he has chosen to seize after an executed seizure, to sell after a previous sale, to acquire after the title thus acquired had, to his ^knowledge, passed from the seized debtor to one of her creditors — and, in its present form, his action can not prevail.

Eor at least two reasons, plaintiffs demand should be disallowed:

1. If,' at'the date of the sale made under his execution, the title to the property was in Mrs. Booth, Hero’s bid of one hundred dollars was entirely insufficient to discharge the prior privileges and mortgages bearing on said property, and its adjudication at that price was absolutely void. C. P. 684.

2. Whether Eallon’s transferred claim was or was not properly certified and recorded, Connell, by his seizure, which antedates the recording of the evidence of O’Hara’s contract, was invested with a privilege which entitled him to be paid by preference to all other creditors of Mrs. Booth, out of the price of the property seized. C. P. 722; 27 An. 290.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be and it is hereby annulled, avoided and reversed, and plaintiff’s rule dismissed at his costs in both ogurts.

On Application roe Behearing.

The opinion of the court was delivered by

Spencer, I.

Even if the plaintiff’s rights arc of the character represented by him, and even if the defendant Connell had no privilege, still wo could give him no relief under the form of action pursued in this case.

If we treat and consider Connell’s judgment as but an ordinary debt without privilege, still the seizure and sale Mrs. Booth’s property thereunder undoubtedly had the effect of transferring that property to him; and if it is true as asserted by plaintiff that he had thereon prior to the sale a valid and subsisting privilege, superior to any right of Connell, that privilege was not divested by the sale. We can not treat that sale as a nullity. The law is too plain for that. Where the sale of a debtor’s property is real and not simulated, and where a creditor has not a privilege or mortgage containing the pact de non alienando, the creditor can not disregard the sale and seize the property. His only remedy, if an ordinary creditor, is the regular revocatory action, with allegation and proof of the debtor’s insolvency — if a mortgage or privileged creditor, he may proceed by the hypothecary action. Now it is not pretended that the rule in this case comes under either of these forms' of action; and plaintiff must therefore fail, unless the judgment of Connell, and therefore the proceedings under it, were absolutely and radically null. The plaintiff contends that they were, first because Mrs.•' Booth was represented by a curator ad hoc upon mere allegation of her being an absentee; and second because, an absentee can only be brought into court by attachment or seizure of his property, if the seizing credit- or has no privilege. It will be time enough to discuss the. question whether Mrs. Booth was or was not an absentee, when Connell’s judgment is attacked by her on that ground, or by her creditors, in a proper form of action. One thing is clear and that is, that if she was in point of fact an absentee, then the appointment of a curator ad hoc to represent her, could not be invalidated because made by the judge on insufficient proof or even without proof. We must presume that the judge did his duty, and we think this record shows that he did, for throughout this litigation she is treated as an absentee, even by the plaintiff himself. Nor is it true under the jurisprudence of this State as now settled, that an absentee owning property in this State can only be brought into court by the attachment or seizure of his property, when the creditor has no privilege.

•The rule as now settled (and we believe correctly) is that, where an absentee owns property in this State, any creditor may bring him into court, quoad that property, by the appointment of a curator ad hoc, and that the judgment rendered contradictorily with the curator may be' executed on that property. The judgment is good in rem, but not in personam. Of course it would have to appear in the pleadings and proof that the absentee owned property within the jurisdiction of the' court.

In conclusion if Mrs. Booth was and is insolvent, and the judgment of Connell a fraud upon her other creditors, the revocatory action must be resorted to. If the complaining creditor has a mortgage or privilege upon the property alienated, he may resort to the hypothecary action. If the sale is a simulation, or if the creditor holds a mortgage or privi-' lege under the pact de non alienando, he may disregard the sale and seize, but not otherwise. Plaintiff does not allege or pretend himself £o be within these exceptions.

Rehearing is refused.


author: Manning, C. J.

text:
    No. 6675.
    Joachim Borde vs. Mrs. William Erskine et al.
    "When, an additional party is made to an appeal aftor the execution of the appeal bond in favor of the clerk, a new bond is not necessary.
    ■On such a bond all parties to the appeal, no matter at what stage of the proceedings ■ they may have become parties, have their recourse.
    <!itation of appeal should be served on a resident party in person, or at his domicile, not on his attorney. But if an improper citation has been made by the sheriff, not shown to have been caused by the fault of the appellant, it will not • justify the dismissal of the appeal.
    The filing of properly certified copies of missing parts of a transcript, absent by fault of the clerk of the lower court, will be allowed, although it is not the method prescribed for perfecting an incomplete record.
    APPEAL from the Second Judicial District Court, parish of Plaque-mines. Pardee, J.

      JS. Bermudez, for plaintiff in rule.

      U. L. Lazarus, for defendant in rule.

      JS. H. McCaleb, for defendants.

      Sambola & JDucros, for Mrs. Fernandez, appellant.
   On Motion to dismiss.

The opinion of the court was delivered by

Manning, C. J.

The plaintiff instituted a suit for the partition of a plantation owned by him in common with the defendants, in which there was rendered a judgment for a partition by licitation. There was a sale, and Mrs. Carmen Fernandez was the purchaser. In March, 1877, 'Boarde, the plaintiff, alleging that the property was incumbered with -certain mortgages which he describes, and that Mrs. Fernandez was the adjudicatoe, and that their erasure is necessary to give her a clear title, •took a rule to shew cause why they should not be erased. The rule was served on all the joint owners, and upon the under tutor to two minors who were defendants, whose mother and tutrix was a co-defendant, and also upon the mortgagees, except one. On trial, the rule was discharged, and Boarde appealed. He furnished no bond, and abandoned the appeal.

In April the purchaser prayed an appeal by petition, making all the mortgagees and owners parties, except Boarde, which was granted upon a bond of two hundred and fifty dollars, which was duly executed with surety. Subsequently, upon discovering that Boarde had been omitted, she filed a supplemental petition supplying the omission, and there was an order making him a party, and he was cited. No additional bond was given.

The motion to dismiss is based on several grounds. One of them is that the failure to execute a new and additional bond vitiates the appeal as to Boarde, who is a necessary party. This is untenable. The bond is in favor of the clerk, and all parties to the appeal can recover on it. And besides if Boarde himself does not complain of the want of an additional bond, it is not for the appellants to complain for him. The •circumstance that Boarde’s name was not included in the original petition for appeal would have been fatal, had the defect not been cured by the supplemental petition and citation upon it. We are referred to several decisions to the effect that those only are parties to the appeal whose names are in the bond. All of them are under the old law which required the insertion in the appeal bond of all the parties, a provision which sometimes was so incapable of sure fulfillment that the legislature tardily, but effectually, removed the difficulty by substituting the name of the clerk, and authorizing the parties to avail themselves of it.

Another ground for dismissal is the want of proper citation to the under tutor, He was a party to the partition suit, and was regularly •cited therein. The citation of appeal was served on his attorney, which is the proper mode of service on a non-resident. Code of Practice, art. -582. But he is a resident of the State, and was at that time, if the sheriff’s returnjbe correct, absent. The service should have been at his domicile. Ratliff vs. Creditors, 14 La. 292. Under the act of 1839, an -appeal will not be dismissed on the ground of irregularity in the service •of citation, if it is not imputable to the appellant. We think that statute protects the appellant in this case. She alleged in her petition of appeal that the under tutor was a resident of Orleans, and prayed for his citation. The sheriff should have known how to cite him. There is nothing before us to shew that the appellant, or even her attorney, misdirected the sheriff, and by her own fault caused an improper service to be made.

Another objection is urged that the record is incomplete, and the appellant has attempted to supply its deficiencies by filing along with it a copy of a missing paper. The clerk also makes a supplemental certificate as to some omitted words in the transcript. These omissions are •attributable to the clerk, and should not prejudice the appellant. The' proper and regular mode of perfecting the transcript is by a writ of certiorari, but as was said in Baltimore v. Parlange, it is useless to order the writ when certified copies of the missing documents have been filed. 25 Annual, 335.

The facility for dismissing .appeals that formerly existed, and of which parties constantly availed themselves to the great detriment of substantial justice, has been restricted by the wise substitution of an officer to "the names of the litigants in the appeal bond, so that an appeal by motion can rarely be dismissed for technical objections. It would be an equally wise amendment of the 'law, if the process of taking and serving an appeal by petition were simplified by some equally effectual means.

The motion to dismiss is denied, and the case is continued with leave-to the appellant to have the under tutor properly cited.


author: Spencer, I.

text:
    No. 6409.
    State vs. T. J. Newhouse and A. Newhouse.
    In tlie selection ol the persons from whom the regular juries shall be drawn for the-trial of cases in the Superior Criminal Court for the parish of Orleans, the jury-commissioners appointed under the law to make the selection, can not delegate-that duty to any other person.
    The jury commissioners must themselves make the selection, and must make it. from all the Qualified voters of the parish of Orleans.
    .Their mere approval of a selection made by some one else, can impart no validity to the selection.
    A jury commissioner who has accepted another office, and Qualified in it, is thenceforth constitutionally disqualified from serving as a jury commissioner.
    j^PPEAL from the Superior Criminal Court. Steele, J.

      H. N. Ogden, Attorney General, for the State.

      Cullom & Castellanos, for T. J. Newhouse, defendant and appellant.
   The opinion of the court was delivered by

Spencer, I.

The defendants were indicted, and tried at the April term 1876 of the Superior Criminal Court, for murder. The verdict of the-jury was not guilty as to A. Newhouse and guilty of manslaughter as to T, J. Newhouse, who was accordingly sentenced to twenty years hard labor. He appeals and presents various grounds for reversal of said yerdict and sentence. We shall notice but two of them.

The fifth section of act No. 124 of 1874 provides:

• “ Be it further enacted, etc., That on and after the first day of April, 1874, all grand and petit juries in the district courts, civil and criminal, for the parish of Orleans, shall be drawn pursuant to the provisions of this act, as follows: There shall-be two jury commissioners,-to be selected from the qualified voters of the parish of Orleans, and appointed by the Governor, who shall hold their offices and be removable at the pleasure of the Governor. The commissioners shall receive for their services five hundred dollars, each, per annum, payable quarterly by the-city of New Orleans. They shall select impartially from the citizens of the parish of Orleans having the qualifications requisite to register as-voters, the names of not less than five hundred good and competent. men; a list of whose names shall be made out and returned certified under their hands to the clerk of the Superior Criminal Court, to be filed by him in his office; said list shall be kept complete and supplemented from time to time. Each of the names on said list, and all supplemental lists shall be written out by said clerk on a separate slip of paper, together with the place of residence of each person, and the slips of paper on which shall be written the names and places of residence'of persons on the said list, shall be placed in a box or wheel to be kept for that purpose by the sheriff of the court, and ten days before the expiration of every month in which the said Superior Criminal Court shall hold its sessions, the said commissioners together with the criminal sheriff, shall proceed to draw from said box or wheel not less than forty-eight names, and the persons whose names shall be so drawn, shall constitute the petit jury for the month or session of the court succeeding such drawing,” etc.'

Before proceeding to trial the accused challenged the array of petit jurors, and moved to quash and set aside the venire, on various grounds, among which were these:

First — -That the names from which the venire was drawn and out of which the petit jury was composed, were not selected by the jury commissioners, but that a list of over two hundred names was furnished by one Lionel Adams to said commissioners, and said names were put into the wheel from which said venire was drawn.

Second — That.in the said wheel at the time said venire was drawn;there were names of persons selected by James Lewis and Smallwood as jury commissioners, at a time when said Lewis was not a jury commissioner, he having months before resigned said office and accepted that of police commissioner, both offices being of trust and profit.

Both of these objections were we think clearly shown'to be true in point of fact. It seems that the commissioners to lighten their labors asked Adams to furnish them a list of two or three hundred names for the jury wheel, which he did. The commissioners in their testimony state that they looked over and approved this list after Adams prepared it. The district judge was of opinion that this -was a substantial compliance with the statute and that the commissioners by approving, made the list their own selection. "We do not think so. To so hold would be equivalent to affirming that the commissioners could act by proxy or deputy in the performance of their very important and grave duties. Nothing in the statute j ustifies such an inference. Much leés could their functions be performed by a person like Mr. Adams, who was, as it were, a mere bystander, under none of the obligations of an officer, or even of an agent or proxy. It is manifest that-there would and could be no security for the-accused-against-packed ju-r-ies, if-they be-selected in this loose way. The intent of the law was that two responsible and competent men should, under the appointment of the Governor and under the sanction of an oath, select from all the voters of the parish, a list of persons to serve as jurors; that they should inspect and select from the names of all the voters, and not simply inspect and approve what might be “ a cut and dried ” list of two or three hundred names. Such a system is too liable to abuse to be tolerated or sanctioned by courts charged with the lives and liberties of the citizen.

’ It seems that James Lewis was one of the jury commissioners up to August 1875^ when he tendered his resignation and was appointed a police commissioner by the Governor, with a salary of f2000 per annum. His salary as jury commissioner .was five hundred dollars per annum. He in August 1875 took the oath, and qualified as police commissioner and entered fully upon the duties of his new office. But as the Governor did not appoint his successor as jury commissioner.he continued to act as such also up to and including February 1876, drawing the salary of both offices.

' The 117th article of the constitution declares that “ no person shall hold or exercise, at the same time, more than one office of trust or profit, except that of justice of the peace or notary public.”

In the case of the People vs. Carrique 2 Hill 93 the Court of Errors and Appeals of New York held: “ The appointment of a person to an office incompatible with one held by him is valid and he has a right of election between the two. If he accepts, take the oath and enter on the duties of the second office, the first is absolutely determined.”

The constitution declares all offices of trust or profit incompatible with each other, when held by the same person, except one of them be justice of the peace or notary public.

By accepting and entering upon the duties of the office of police commissioner James Lewis ceased, ipso facto, to be a jury commissioner. And it appearing that the wheel from which the venire in this case was drawn, did, at the time of said drawing, contain the names of persons placed there by James Lewis after he ceased to be a commissioner, the venire was unlawful.

Article 122 of the constitution, directing that all officers “ shall con- '* tinue in the discharge of their duties, until their successors are qualified,” has no application to a case like this, where the office has been absolutely vacated. The absurdity of such an application of it, will be made manifest by illustration: Should the Chief Justice of this court be elected Governor, could he fill both places until he saw proper to appoint his own successor on this bench ? We conclude therefore that the challenge of the array and the motion to quash the venire, made before trial and in limine, should have been sustained.

It is therefore ordered adjudged and decreed, that the verdict and sentence appealed from be set aside and annulled and it is further ordered that this cause be remanded to the court a qua for a new trial, according to law.


author: Marr, J.

text:
    No. 5786.
    Heirs of Guturrez vs. B. & W. Croner et al.
    An appeal bond given lor the full-amount required by law, but in which two, or more sureties bind themselves, each for a designated part of that amount, is a good and legal bond.
    APPEAL from the Sixth District Court, parish of Orleans. Saucier, J.

      George L, Bright, for plaintiff and appellee.

      Cotton & Levy, for defendants.
   On Motion to dismiss.

The opinion of the court was delivered by

Marr, J.

In this case each of the two sureties bound himself for one half of the amount of the appeal bond. Appellees move to dismiss the appeal on the ground that the law requires the sureties to bind themselves, each, for the whole amount.

There might have been some foundation for such a motion under the Code of Practice, article 575, as originally promulgated. The English text, which is merely a translation of the original compilation in French, required the appellant to give his obligation “ with a good and solvent security;” and the corresponding French text is, “avec le cautionnement d’une personae bonne et solvable.”

In the amendments to this article the phraseology is changed so as to read: “with good and solvent security.” Acts of 1868, p. 167; 18t9,p. 11; Revised Statutes, 1870, sections 43, 567,1921; Revised Code of Practice, article 575.

' “Security,” the thing, ought not to be used as the synonym of “surety,” the verson. The “ security,” which the law requires, must be a single obligation: there is no good reason why there may not be several sureties who bind themselves, in the aggregate, for the entire amount, each binding himself for part only of that amount. Where the bond is for a large amount, better “security” would be afforded by a number of sureties, each having ample means to meet that part of the obligation for which he binds himself, than by a single “ surety,” whose death or insolvency, which might occur at any time, might either greatly impair or even destroy the value o£ the ‘’security.”

Our predecessors decided that appeal bonds in which there were several sureties, each binding himself for part only of the aggregate amount, were sufficient. 21 An. 443; ib. 730; 22 An. 124. These decisions are in conformity with our views of the law; and they have been followed in practice since 1869.

The motion to dismiss is overruled, with costs.


author: Spencer, J.

text:
    No. 5385.
    Andreas Richoux vs. Mayer Bros.
    A principal who employs an agentto do a legal thing, is not liable in damages for any illegal act of the agent done in the execution of the mandate, to which tho principal was not accessory, or privy.
    APPEAL from the Fifth District Court, parish of Orleans. Oullom, J. Trial by jury.

      Hornor & Benedict and F. W. Baker, for plaintiff and appellant.

      James H. Grover, for defendant.
   The opinion of the court was delivered by

Spencer, J.

This is an action for $10,000 damages for malicious arrest. Defendants were judgment creditors of plaintiff for some $800. Being unable to find property they employed Pécora and two other detectives to hunt it up, promising them $400 if they found property to satisfy the writ. It seems the plaintiff was a Havana lottery ticket vendor and these detectives got him arrested on a charge for unlawfully selling them. The affidavit was made by one James Lawrence, a gambler. Plaintiff was taken to the police station and his valuables, consisting of watch, chain, $100 in currency, two checks, and some lottery tickets were taken into custody, and from his person, by the prison officials, and deposited with their property clerk. Thereupon a deputy sheriff levied a fieri facias upon them under the judgment of Mayer Bros. vs. Richoux. Plaintiff was after about two hours bonded out and on next day the Fifth District Court ordered the sheriff to return to plaintiff his effects, which was done. No one appearing to prosecute the plaintiff, the charge was dismissed. Thereupon he brings this suit which was tried by jury, and there were verdict and judgment for defendants. Plaintiff appeals.

The evidence satisfies us as it did the jury that the defendants were not privy to and did not authorize, or know of this arrest. They are not responsible for the illegal and tortious acts of the detectives, who were employed to find property of plaintiff for seizure under defendants’ judgment. There was nothing wrong in such employment. And surely it did not authorize the employees to do the wrongful act complained of.

The judgment is affirmed with costs of both courts.


text:
    No. 5438.
    Mary Duncan vs. Michael Duncan.
    Parol evidence is not admissible to prove an acknowledgment of, and promise to pay a debt, after the debt has become prescribed.,
    Prescription will not be suspended on account of the absence of the creditor from the domicile of the debtor, when it appears that it was in the power of the creditor to reach the domicile, and there bring suit in time to avoid the prescription of his debt.
    APPEAL from the Fourth District Court, parish of Orleans. Lynch, J. Trial by jury.

      Belclen & Hancllin, for plaintiff and appellee.

      Foley & Buisson, for defendant.
   On Motion to Dismiss.

The opinion of the court was delivered by

Egan, J.

The motion'to dismiss this appeal, filed on November 9, 1877, is upon the identical ground taken in a former motion to dismiss, filed November 12,1875, which was overruled by our predecessors. The appellee can not be permitted thus to revive an issue already decided against him. The motion to dismiss is overruled.

On the Merits.

The plaintiff sued for $1490, money alleged to have been loaned to the defendant, in 1857 and 1858. The defendant pleads a general denial and the prescriptions of three, five, and ten years. There is a mass Qf contradictory, and (as the plaintiff has chosen her action) irrelevant testimony in the record, which it is unnecessary, therefore, to consider in the present case. The transcript has been made up with culpable carelessness, and displays frequent and evident errors. There is, however, evidence enough in it to correct the principal errors, and to enable us to adjudicate the case, and we shall proceed to do so.

The plaintiff relies mainly upon two drafts or checks of the defendant, the dates of which are both erroneously given in the record, but are sufficiently shown by the evidence of plaintiff herself and other witnesses, to inform us that the first, that on the Bank of James Bobb, was given some time in 1858, and the last, that on the Merchants’ Bank, some time in 1859, probably in February of that year. These drafts are both for the same amount, which is precisely that sued for, $1490, and the latter is admitted by the plaintiff, and otherwise shown to have been given, in lieu of the former, the bank of James Robb having been merged in and succeeded by the Merchants’ Bank. In June, 1860, the plaintiff went to Ireland to visit her relations, and took the drafts or checks with her, without having presented either of them for payment' until her return to New Orleans, in November, 1868, when she presented the later check, that on the Merchants’ Bank, and was answered that there were no funds to meet it. Both checks were payable to her order, and drawn by the defendant. It is unnecessary to consider the effect, if any, of the late civil war upon the rights of the parties to this litigation in regard to the matter of prescription; as to whether this be considered an action for money loaned, which the plaintiff has chosen to make it, and by which she is bound, or on the check of the defendant, which seems only to have been introduced and relied upon of evidence of the alleged loan.

There was no inability on the part of the plaintiff to reach the city of New Orleans (her own domicile and that of the defendant all the time), and to have instituted suit in ample time to have avoided the effect of any prescription applicable to either action. Neither can she be considered to have presented the check within a reasonable time, as she might have done, either before or after the close of the war. It is, however, urged that the defendant acknowledged the debt, and promised to pay it some time in 1871, within less than three years prior to the institution of this suit, which was on the third of May, 1873. Even accepting the truth of the statements on this subject, they can not be considered, as the only evidence is parol acknowledgments and promises made by the defendant, “after prescription had already run,” to the reception of which the defendant excepted, and which was not receivable under the statute. R. C. C. 2278, paragraph four, which is but a reprint of the old law. This evidence was improperly received in the court below, and can not, therefore, be considered on appeal.

Under the pleadings and the evidence, the defendant’s plea of prescription should have been sustained. The case was tried by a jury, and there was a verdict and judgment for the plaintiff, for one thousand dollars. Precisely how this sum was arrived at by the jury, the record does not inform us, and there are some circumstances in the case which may have affected the jury unfavorably toward the defendant, and tended to induce the verdict which, under the law and facts, we feel it our duty to set aside. Had the evidence been confined to that introduced by the plaintiff, or to the real issues in this case, we should be content to stop here. The defendant has, however, in his zeal to defeat the plaintiff’s present action, disclosed some facts which tend to show that, whether equitably liable to plaintiff or not, he may be, to some extent, legally so in another action or other amount. We refer more particularly to the price of bank stock which he himself owns to have belonged to the plaintiff, and the proceeds of which, when sold, appear to have inured to his benefit. Neither this nor any balance of rents collected, if such there be, can be allowed in this action; but, that no possible prejudice may result, the right of plaintiff, if any such she have, to recover in another action on these accounts, is reserved to her from this adjudication.

This record has an unsavory odor of family discord, resulting, to all appearance, from a disreputable attempt to control the small means of an ancient maiden. It is probable,- from the evidence,.that so far at least as the defendant is concerned, the late war and its unhappy consequences of loss and decline of property and business, and an honest impression that he had essential rights, may have been mainly responsible. Plaintiff and defendant are brother and sister, and appear to have lived most amicably and happily together, as becomes that relation, for very many years, and with the utmost mutual trust and confidence. During all those years the plaintiff was the recipient from the defendant of many substantial evidences of brotherly regard and liberality, and, whatever may be her present legal rights as against the defendant, the evidence renders it probable that they are mainly due to that kindness and confidence, and that, but for the avariciousness and interference of others, who have contributed nothing toward, but who seek to control them, those rights would never have been strictly asserted or inquired into; but that the old and proper relation between the parties would have continued undisturbed, to the mutual benefit and happiness of both. While we can not reach or remedy this through the law, we can not permit it to pass unnoticed or unrebuked. We trust we shall not be called upon to witness its repetition.

It is therefore ordered, adjudged and decreed that the defendant’s plea of prescription to plaintiff’s action be sustained, and that the verdict of the jury and judgment of the court below be set aside and avoided, and plaintiff’s suit be dismissed with costs of both courts. It is further ordered and adjudged that her right of action for any amount which may be due her from defendant on account of bank stock sold by Mm, and rents of property received and unaccounted for, if any such there be, be and it is hereby reserved to the plaintiff.


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    No. 6755.
    Mrs. B. S. Hearing and F. Greig vs. Mound City Line Insurance Company.
    No error or defect in the petition, order or citation in an appeal will cause the appeal to be dismissed, unless it be shown that such error or defect is to be imputed to the appellant.
    Whore a party sues in an individual capacity, and afterward, during the progress of the suit, subrogates a succession of which she is executrix to her rights, without notice of the subrogation to the defendant, the latter will not have the appeal he may take in the case dismissed, because he has only cited the plaintiff in her individual capacity. In such ease the appellant will be allowed time to cite plaintiff in her administrative capacity.
    Where one of the appellees has died, the appeal, as to his succession, can not be dismissed until after his representatives have been made parties to the appeal.
    APPEAL from the Fifth District Court of the parish of Orleans. Rogers, J.

      Hudson & Fearn, for plaintiff and appellee.

      Merrick, Race & Foster, for defendant.
   On Motion to dismiss.

The opinion of the court was delivered by

Marr, J.

In October, 1871, John A. Bonnafon effected in the defendant company insurance on his life, for the benefit of A. Constant Hearing and Frangois Greig, in unequal portions.

In November, 1871, about two weeks before the death of Bonnafon, Hearing, with the consent of insurers, assigned his interest in this policy to his wife, Mrs. Barbet Schuster Hearing; and in May, 1872, Mrs. Hearing, authorized by her husband, and Greig, brought this suit to recover their respective shares under the policy.

In December, 1872, Constant Hearing died; and his widow qualified as executrix under his will. It appears from the proceedings in this court, in the succession of Hearing, reported in 26 An. 326, that the creditors attempted to comjiel the executrix to have put upon the inventory, as property of Hearing’s succession, his interest in this policy, and certain other policies effected by him on his own life, some in favor of his wife, some in favor of his wife and child; and that, in April, 1874, this court decided that none of these policies belonged to the succession, and affirmed the judgment of the court of first instance refusing to have them put upon the inventory.

In December, 1874, on motion of counsel for Mrs. Hearing, and on suggesting the death of her husband, and that she had transferred all her interest in the policy sued on to his succession; that this interest had been duly inventoried as the property of the said succession; and that she had been confirmed as sole executrix, it was ordered by the court that the succession of A. Constant Hearing be subrogated to all her rights, under the policy; “andthat Mrs. Barbet S.Hearing, testamentary executrix, be made a party to this suit.”

No notice of this was served on defendant; and the case proceeded; without any change in the title. The appeal comes up to this court under the same title, “ Mrs. Barbet Schuster Hearing and Erangois Greig vs. Mound City Life Insurance Company,”-etc.

The trial commenced in December, 1874, and it- was protracted so that, it was finally submitted on the tenth of November, 1876. Judgment was rendered on the eleventh of December, 1876, and signed on the second of July, 1877, in favor of “plaintiffs, the succession of A. Constant Hearing and Erangois Greig;” and after the expiration of the term defendant took a devolutive appeal, by petition, in which the conclusion of the prayer is “that Mrs. Barbet Schuster Hearing and Erangois Greig be duly cited to-appear and answer the appeal.”

Citations were issued, one addressed to Erangois Greig; one addressed to Mrs. Barbet S. Hearing, which was served on her attorneys; and another addressed to Mrs. Barbet Schuster Hearing, which was served on her in person a few days before the return day.

On the return day, appellant suggested the death of Greig before the service of citation could be made; and asked for a continuance and delay in order to have the proper representative of his succession cited,, when one shall be appointed.

On the third day of the term counsel for “ the succession of Constant Hearing, one of the appellees, represented by Mrs. Barbet S. Hearing, its testamentary executrix,” moved the court to dismiss the appeal on the grounds:

Eirst — That appellant did not, in the. petition of appeal, pray to have said succession made a party, or to have the same cited.

Second — That the said succession has not been cited to answer the appeal.

Third — That appellant, in the petition of appeal, prayed to have Mrs. Hearing cited in her individual capacity, but not in her representative-capacity; and that she was cited individually, but not in her representative capacity.

Appellant- thereupon moved the court to grant him time to have Mrs. Hearing cited in her capacity as testamentary executrix of A. Constant Hearing, on such terms as the court may deem meet.

In Guerin vs. Bagneries, [9 La. 472], the plaintiff appealed from the judgment in favor of defendant. He did not make the parties called in warranty by the defendant parties to the appeal, and they were not cited. Appellee- moved to dismiss on that ground. The opinion of the court was delivered by Judge Martin. He maintained that the parties called in warranty were necessary parties; and that the appellant was bound to bring in all persons contradictorily with whom the judgment appealed from was rendered; but he added; “ There appears to be no necessity to dismiss the appeal. The case is a new one, and justice may be attained otherwise than by driving the parties out of court.”

In the argument of the case, Judge Preston, counsel for appellant, not only did not ask to be allowed time to cite the the warrantors; but he argued that the appellant had nothing to do with them; that they were called in by the defendant for his protection; and that it was his business to have them cited to answer the appeal. Nevertheless, the court refused to dismiss the appeal, and allowed appellant time to have the warrantors cited.

‘ This decision was in strict accordance with the spirit of the old English 'statute of jeofail, 14 Edward, 111. It was rendered in 1836; and in 1839 the Legislature gave it the sanction of positive law, by enacting that, “ hereafter, no appeal shall be dismissed on account of any defect, error, dr irregularity in the petition or order of appeal, etc., whenever it shall not appear that such defect, etc., is imputed to the appellant. Acts of 1839, p. 170, section ninetéen. Re-enacted, Revised Statutes of 1870, sections 36,1907;' and since embodied in the Revised Code of Practice, article 898.

The counsel for appellant has filed in this court his affidavit showing that when he went to the clerk’s office of the district court to prepare the petition and bond of appeal, he called for the papers in the suit; that the clerk informed him they were not in the office, having been delivered to a person who had taken them home with him to be copied for the appeal which it was known would be taken; and that he was compelled to draw his petition from his knowledge and recollection of the names of the parties as set out in their petition, copy of which he had.

"We think that we have the right to receive the uncontradicted affidavit of counsel in such a case as this; but’ we find, without referring to it, nothing in the record from which it appears that the defect, or error, or irregularity complained of, in the petition of appeal is imputable as a fault to appellant.

The suit was brought in the names of Mrs. Hearing and Greig. The subrogation, which was entered on motion of her counsel, was some two years and a half before the rendering of the judgment, and three years and a half before it was signed. It did not require that Mrs. Hearing should be dismissed as a party, but that she should be made a party in her representative capacity. She was the person to be cited; she was cited; and we do not see that the failure to add to her name, in the petition or citation of appeal, her quality and capacity as testamentary •executrix, is such, a defect, or such error or irregularity as would justify the dismissal of the appeal.

The representatives of Greig have not been cited; and the appeal can not be dismissed as to his succession until it is properly represented, The application of appellant to cure the defect complained of, by having Mrs. Hearing cited in her-representative capacity, causes no-delay, no prejudice to the appellee; and, under the circumstances of the case, as disclosed in the record and proceedings in the court below, we could not dismiss this appeal without violating the letter and spirit of article 898, R. C. R., our statute of jeofail. We think the ends of justice can be better attained otherwise.

It is therefore ordered, adjudged, and decreed that the motion to dismiss the appeal be overruled; and that time be allowed appellant until-the second Monday of January, 1878, to have Mrs. Barbet Schuster Hearing, in her quality and capacity as testamentary executrix, representing the succession of Antoine Constant Hearing, cited to appear and •answer this appeal.


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    No. 6712.
    City of New Orleans vs. J. B. Pigniolo and M. Popovich.
    The only evidence required to authorize a court to grant an order of seizure and sale, on certain promissory notes of the defendants, secured by a mortgage im- . porting a confession of judgment, is a properly certified copy of the act of mortgage passed before a notary public and two legal witnesses, with the notes themselves paraphed by the notary, and identified with the act.
    Where a debtor makes a part payment of a debt evidenced by his two mortgage notes, one of which is due, and the other not due, and the partial payment is receipted by the creditor across the face of the matured note, the payment will be imputed to that note. In such case an order of seizure and sale need not make any imputation of payment; nor need such an order fix the exact balance due a creditor to whom partial payments have been made.
    On appeal from an order of seizure and sale this court will not consider the rights and obligations of the parties, growing out of another suit. On such an appeal but one question will be considered, and that is, was the evidence before the court below sufficient to authorize the order.
    ^^PPEAL from the Sixth District Court, parish of Orleans. Bightor, J.

      B. F. Jonas, City Attorney, for plaintiff and appellee.

      F. Bermudez, for defendant.
   The opinion of the court was delivered by

Marr, J.

This is an appeal from an order of seizure and sale.

Counsel for appellants, the mortgagors, has filed a brief, in which he admits, what is well settled in our jurisprudence, that the question on appeal in such cases is: Has the plaintiff submitted sufficient authentic evidence in support of his demand ? He insists, however, that this, court must determine whether the lower court rendered such a decree as should have been rendered. He also urges that the prayer of the petition is vague, and does not state the capital claimed by plaintiff and that there was an imputation of payment to be made, which should have been done by the judge in the judgment.

Counsel also call our attention to the fact that the city is a party to a. suit now pending in this court, on application for rehearing, in'which the title'to the mortgaged property is involved; and he asks that we will, in that case, grant the defendants, the appellants in this case, the relief which they claim.

The petition for executory process in this case sets forth that the city is the holder and owner of two notes, drawn by appellants to their own order, and by them indorsed, both dated twenty-ninth June, 1872, each for $4176, one at three years, and one at four years, bearing interest at eight per cent per annum from date until final payment, secured by mortgage on certain land, described ; and that the note at three years is entitled to a credit of $3200, paid on account of it on the twenty-eighth of July, 1875. The prayer is that a writ of seizure and sale issue, commanding the sheriff to seize and sell the property described, to pay and satisfy the claim on said notes in principal and interest, subject to the-aforesaid credit, with five per cent attorney’s fees, five dollars costs of copy of the act of mortgage, and costs of suit.

A certified copy of the act of sale, in which the mortgage is reserved and stipulated, passed before a notary and two witnesses, and the two notes, paraphed by the notary, and fully identified with the act, were filed with the petition. This evidence was all authentic: the act imports confession of judgment; the credit of $3200 is written across the face of the note at three years, in the form of a receipt acknowledging the payment of that amount, on the twenty-eighth of July, 1875, on account of that note ; and the prayer of the petition is clear and appropriate.

The order of the court is : “ Let a writ of seizure and sale issue in this-case as prayed for according to lawand this is the judgment appealed from.

There is no question of the imputation of payment. The note at four years did not mature until more than eleven months after the payment was made ; and the imputation was expressly made to the note at three years, which had become due about a month before the payment was made.

It was a matter of mere calculation of the simplest kind, to ascertain the amount due in principal and interest, on the note at three years, up to the twenty-eighth of July, 1875, to deduct the credit of $3200, and thus to fix the balance bearing interest from that date. • It was not the business of the judge to make this calculation. In ordinary suits on promissory notes it is not unusual for judgment to be rendered for the face of the note sued on, subject to such credits as may have been admitted or proven on the trial; and no law requires the judge to deduct the credits, -and to fix the balance.

We fail to discover any error or even irregularity in the proceedings in this case; and we can not, inquire in this appeal, certainly we can not go out of the record to ascertain, what may be the relations, or rights ¡and obligations of the parties dependent upon the final decision in an-other suit. The simple question is, whether the order of seizure and sale was granted on proper and sufficient evidence; and no fact or circumstance not appearing in the record can be considered in determining •that question.

The appellee prays for the affirmance of the judgment, with damages. The appellants may have supposed that they had cause to complain, and •to seek relief by appeal, although we find none in the record; and we shall not inflict damages upon them.

The judgment appealed from is affirmed, with costs.


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    No. 5413.
    Leonville Augustin vs. Mr. and Mrs. M. P. Avila.
    "The moment a succession under administration is closed, the probate court ceases to have jurisdiction of any ordinary suit then pending before it, in which the succession is a defendant.
    .And any judgment afterward rendered in such suit by the probate court, is null and void.
    APPEAL from the Second District Court, parish of Orleans. Duvigneaud, J.

      Paul P. Théard, for plaintiff and appellee.

      Bd. J. Bermudez, for defendant.
   The opinion of the court was delivered by

DeBlanc, J.

On the 5th of January, 1871, this, an ordinary suit on a -contract, .was filed in the Fourth District Court of this city, for the recovery of $1476, alleged to be due by defendants to plaintiff.

Nearly one year after this suit was brought, Mr. Avila, one of the defendants, departed this life, leaving a minor child. His succession was opefied-on the'17th of January, 1872.

The interest of said minor in whatever she inherited from her father, was adjudicated to her mother and tutrix, for its appraised value, and, -on the 22d of M&FCh, 1872, the adjudicatee,,Mrs. Avila, was-put in possession of all that composed the succession of her deceased husband and ■the community which had existed between them.

From that date, said succession was closed.

Avila died on the 2d of January, 1872. After his death, this case, by consent of parties, was transferred from the Fourth to the Second District Court. It was filed in the last mentioned court on the 30th of January, 1873.. There, on the 4th of May, 1874, more-than two years after the succession had been closed, a judgment was rendered against said succession, not. only in favor of plaintiff, but also in favor of parties who had intervened in the original suit.

This case was, at its inception, and, at the death of Avila it did not cease to be an ordinary suit, .one in which, for a moment only, a succession was one of the defendants; but as at no time, that case either had or assumed a probate character, it could not have been legally transferred, even by and with the parties’ consent, to a court whose jurisdiction is exclusively probate. C. P., 92; 25 A. 56, 220, 225; 28 A.

This suit still belongs to the jurisdiction from which it was transferred,, and, with the incidental demands therein filed, must be returned to that jurisdiction. 22 A. 81.

It is therefore ordered that the judgment of the lower court be and it is reversed at appellee’s costs, and that this case be re-transferred from and by the Second to the Fourth District Court of the city of New Orleans, there to be proceeded with according to law.


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    No. 6721.
    State ex rel. Ella Smith et al. vs. Judge of the Second District Court, Parish of Orleans.
    A judgment debtor, who having applied tor a suspensive and a devolutive appeal in the alternative, elects to take the devolutive appeal, and gives the bond fixed by the court for that appeal, forfeits his right to a suspensive appeal, and therefore is not entitled to a writ of prohibition to arrest the execution of the judgment.
    To suspensively appeal from a judgmentwhich orders the delivery of movables and immovables, the amount of the appeal bond should exceed by one half the estimated value of the movables, and of the revenues to be derived from the real estate pending the suit.
    APPEAL from the Second District Court, parish of Orleans. Tissot,. J.
    . Kennard, Howe & Prentiss and A. & W. Voorhies, for relator and appellant.

      F. H. Farrar, for respondent.
   .Tire opinion of the court was delivered by

DeBlanc, J.

The parties, in this case, are George W. Bancker, who* appears in his own name and as executor of the last will of Henry Eassman, and Mrs. Bancker and Mrs. Smith, children of said deceased. Ih their petition for a prohibition we find Bancker’s admission “that,; within ten days from the signing of the judgment by which he complains that he has been aggrieved, he, individually and as executor, moved for a suspensive and devolutive appeal, in the alternative, and, being unable to furnish bond in the amounts required by the court for a suspensive appeal, he actually filed, within the aforesaid delay, his two bonds, in the amount fixed for the devolutive appeal.

Whatever were or may have been, under his application for an appeal, his rights, the nature and extent of those rights, he has, by his submission to, and compliance with that part of the order of court granting a devolutive appeal, not only exercised, but exhausted his rights, and in as much as he can not be allowed two appeals from the same judgment, he can not be relieved from the effects of his own act, his own choice. It matters not that he has furnished bond during the delay within which he could have taken and did take a suspensive appeal. The bond then given by him is that which was fixed for the devolutive appeal, and no proceeding of his has or could have suspended the execution of the judgment. 12 R. R. p. 322.

If he considered as unlawful the condition imposed, the amount of the bond required by the lower court, to authorize a suspensive appeal, he should have applied for the redress he now seeks to obtain, before perfecting the other, the devolutive appeal. We can neither change the name, nor extend the effects of his appeal.

Had he, within the prescribed delay, applied for and been allowed “ an appeal,” without coupling with that term the qualification “ devolutive," he might successfully invoke the presumption that the object of an appeal is, generally, to suspend a judgment until its revision by the appellate tribunal; but, this he did not do; he was allowed, in the alternative, a suspensive and a devolutive appeal. He availed himself of the latter, and, impliedly at least, renounced to the former.

Can we, distorting the plain signification of the qualification which fixes the character of his appeal, decide that he intended to do otherwise than he has done, that he intended to take, and, because he so intended, he should be allowed another, a different appeal, one for which he gave no bond, neither that required by the court, nor any other, one which he abandoned and why ? He was unable to furnish the required obligation. He so stated himself.

As to Mrs. Smith and Mrs. Bancker, what are the facts ? As testamentary executor of Henry Eassman, George W. Bancker was ordered by the Second District Court to file an additional, a third account of his administration. He obeyed that order, filed an account, the homologation of which was opposed by Yictor E. and Frank Fassman, as heirs and creditors of the aforesaid deceased. To these proceedings neither Mrs. Smith, nor Mrs. Bancker were made parties, either by an actual or constructive citation. Judgment was rendered partly in favor of Bancker and partly in favor of the opponents.

Within ten days of the signing of said judgment, Mrs. Bancker and Mrs. Smith applied for and obtained an unqualified appeal, and, within ten days, they furnished bond in the amount fixed by the lower court, fifteen hundred dollars. They now contend and defendants deny that said appeal suspends the execution of the judgment.

There can be no doubt that the judgment appealed from does not answer the description of that referred to in the 575th article of the Code of Practice. It is not, as against Bancker or any one of the appellants, a judgment for any specific sum. It orders the classification, not the payment of two judgments previously obtained before another court, by the two opponents, and which, then, had already acquired the force and effect of res judicata, and that order did not authorize the court to require the bond mentioned in said article.

This, however, is not the only difficulty which we are called upon to solve. Though the judgment appealed from embraces twenty distinct decisions on. not less than twenty oppositions, it is but one judgment, and relators have appealed, notas they might perhaps have been allowed -to do, from any specified or separate decision included in that general •decree, but from the judgment, and, of course, from every part, every branch of the same. Considering the pleadings and the decree, is their appeal a suspensive or a devolutive appeal ?

Two of the decisions comprised in the general judgment, command:

The first, that, in his next account as executor of Fassman’s will', Bancker shall substitute, in lieu of $25,000', the alleged price of a sale avoided by said judgment, the property described in the act of sale, a cotton press and the ground on which it is built, and, besides-, the revenues of said property since the thirteenth of July 1872.

• The other, an inventory of the movables claimed .as- belonging to the succession of Fassman, and which, it is alleged, Bancker has converted to his own use.

The sale of the cotton press was declared-a mere simulation, intended to cover the unlawful title which, apparently, passed from Bancker, as an executor, to Bancker, as an individual, and according to the pleadings and the judgment appealed from, the whole of said property, the most of which is of a perishable nature, is in Bancker’s possession. To have suspensively appealed from the decree which orders the delivery of that property to the succession, what bond should have been given ? One exceeding by one half the estimated value of the movables, and of the revenues to be derived from the real estate, during the suit. C. P. 577.

We learn from the judge’s answer to this rule, that the personal property,. the inventory of which he ordered, was variously estimated at from two to fifteen thousand dollars, and the revenues of the cotton press, those already realized, and those that may accrue during this litigation, at $30,000. To protect the succession of Eassman, his heirs and creditors against the possible loss, the inevitable deterioration of the property which the suspensive appeal would leave in possession of one who, according to the decree, is not entitled to that possession, to protect the interested parties against the injury which may be caused by that appeal, a bond of fifteen hundred dollars is not sufficient. 22 An. 589. 27 An. 334.

The rule nisi granted on the thirteenth of October 1877, is,-therefore, discharged at the costs of relators.