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

text:
    No. 9113.
    R. S. Cameron et al. vs. M. M. Ada Lane and Husband.
    The Codo of Practice contains no rules or special provisions authorizing and regulating applications for continuance of a cause on account of the absence of one of the parties to the suit, who desires to testify in the cause.
    'Such applications must bo left to, and controlled by, the sound discretion of the trial judge, whose ruling will not be disturbed on appeal unless manifestly erroneous or glaringly unjust. A ruling which denies a continuance to a party domiciled in the parish in which the suit is pending, urged on the ground of the absence of that party, at his temporary residence in another parish, and of the indispensable importance of his testimony, which he desires to be taken under a commission, is not erroneous, and will be upheld by the Supreme Court. A continuance will not be granted on the ground that the counsel of the party applying for it is oalled away, and that his presence is demanded for important professional business pending in the court of another parish in which he resides and practices. In an action of partition, the judge has the legal authority to select the best means of discovering the most efficient mode of effecting the partition; to that end he may appoint experts for the purpose of examining and reporting the true condition of the property, and of suggesting a mode of partition. The law does not require him to consult either party in the selection of experts.
    In their examination and deliberations, the experts are not required to proceed contradictorily with the parties ¡ thev are not compelled to notify or consult either.
    APPEAL from tbe Twelfth District Court, Parish of Grant. Mcvrbin, J.

      Mobt. P. Hunter and Johnfi. Wiehliffe for Plaintiffs and Appellees.

      Joseph J?. Uornor and Francis W. Maher for Defendants and Appellants.
   The opinion of the Court was delivered by

PoofflU, J.

This is an action of partition, in which the defendant denies the ownership of plaintiffs in any portion of the lands which they claim to hold in indivisión with her. The defendant prosecutes this appeal from a judgment in favor of plaintiffs, ordering a partition in kind of the lands in question, and referring the parties to a notary appointed to make the partition.

In an assignment of errors, she complains of numerous irregularities in the proceedings; we shall notice them in the order in which they are presented. 1st. Her principal and bitterest complaint is levelled at the judge’s refusal of a continuance of the cause, for which she had presented two distinct and successive motions. The following recital of proceedings is necessary to a proper solution of the points raised in that connection :

The record shows that the defendant, Mrs. Lane, was domiciled in. the parish of Grant at the time that this suit was instituted in said parish, on the 4th of January, 1883, but that at the time, and in March following, when the trial occurred, she was absent from the parish, and was at her temporary residence in the city of New Orleans.

Constructive service of citation was made at her domicile in Grant parish on the 5th of January, and personal service was made on her in New Orleans on January 18th. On plaintiff’s prayer, a surveyor and two experts were appointed by the judge on January 6th for the purpose of reporting the situation of the lands sought to be divided, and of suggesting a mode of partition in the premises.

The surveyor and exports thus appointed were qualified on January 12th, and on the same day they submitted their report.

On March 7th defendant filed her answer, which put plaintiffs’ alleged title at issue.

On March 8th the case was fixed for trial for the fifteenth of that month. On the 10th of the same month the defendant’s counsel, who was then in attendance at the court, filed 3iis first motion for a continuance of the cause to the next term of the court. The motion charged in substance that defendant was in New Orleans ill, and that her testimony was indispensable to her defense, and that it could not be taken before the return of a commission issued on March 8th for the testimony of a witness in Rapides parish, which had been made returnable on the 15th, and that her leading counsel, the affiant, was called to New Orleans, the place of his residence, on important professional business, for which his presence was indispensable. The motion was denied; whereupon defendant’s counsel proceeded to New Orleans, where, on the 13th of March, he prepared and swore to a second motion for a continuance, which he forwarded to the court in Grant parish, accompanied by interrogatories to be propounded to his client in New Orleans, and in which he reiterated the ground of the professional business which required his presence in that" city. The petition praying for a •commission to taire the defendant’s testimony was sworn to by herself on the 13th of March in New Orleans. These documents reached the court and were filed on March 15, and no action appears to have been taken on the petition for a commission, but the motion for a continuance was overruled. In the meantime, on the 9th of March, the cause Was reassigned for trial for the I6th of the month, on which day judgment was rendered as hereinabove stated. The case was tried in the •absence of defendant and of her counsel. From the foregoing statement, it appears that the main grounds of the two motions for continuance were:

1st. The absence of defendant’s leading counsel. 2d. Her own absence, and the indispensable importance of her own testimony.

1st. The first ground involves the proposition that an attorney who resides and practices his profession in the city of New Orleans, where the district courts are constantly in session from the month of November to July of each year, can obtain the continuance of a cause in which he is engaged in one of the country parishes of the State, hi which only four terms of court are held annually, on the ground that his presence is needed in the city of his residence. The mere statement of the proposition is its best refutation. The recognition of such a rule would place it in the power of a recalcitrant defendant to procrastinate litigation to an indefinite period of time, the effect of which would be tantamount to an absolute denial of justice. Kohn vs. Short, 18 Ann. 291.

2d. The second ground, which hinges upon the absence of the defendant herself, presents a question somewhat novel in our jurisprudence, and hence we have given the subject a great deal of reflection and study, including a thorough examination of all our reports on the question of continuance of cases. It is to be noted that our present Code of Practice has been adopted since the enactment of the law under which parties to suits are entitled to testily in their own behalf, and that it contains no provisions on the subject of continuance of causes which could, under any construction, possibly apply to the testimony of parties to the suit.

On the contrary, every provision on the subject is pregnant with the idea that parties to suits are entitled to no relief by means of continuance with a view to secure their own testimony.

Article 465 provides for the case when a witness summoned in the cause has gone away, and the party applying for a continuance swears that he did not know the intention of the witness, or could not prevent his departure.

Article 471 furnishes the remedy to compel the attendance of a witness duly summoned, by means of an attachment.

Article 467 provides for the case of the sickness of a witness, and points out the mode of securing his testimony.

Article 466 furnishes the means of avoiding the continuance of a cause on the ground of the absence of one or several witnesses, by requiring the'party relying on tho testimony of such witnesses to disclose on oath what facts he intends to prove by them. But the Code is absolutely silent on the subject of unavoidable or even unforeseen absence of one of the parties to tho suit, whose testimony may be needed in support of his cause.

Hence, tho only guidance of courts in such an emergency is Article 468, which provides as follows:

The court has, besides, a discretionary power' to grant continuance whenever the cause alleged by the party applying for it appears sufficient to justify the same.”

This article involves the discretion which is lodged in courts of the first instance, and lienee it lias been uniformly held by this Court that such a discretion is very great and exceedingly delicate, and that it will never be interfered with by the appellate tribunal, except in extreme cases, where it appears that a glaring injustice .has been done to the party applying for a continuance.

If this rule is safe and wise in ordinary cases, it must apply with greater certainty to cases where the continuance prayed for is predicated on the absence of a party to the suit, and on the indispensable character of his testimony in the cause. But the climax of the rule will certainly be found in a case where the party whose absence is made the basis of tho motion for a continuance is a resident of the parish in which tho suit is ponding, as is shown in the case now before us.

The suit had been pending since January 4th; personal service had been made on January 18th ; her defense was want of titles in her alleged co-owners; the report of experts which she opposed had been on file since the 12th of January, and she certainly knew the importance of her testimony, and she must have been aware of her future intention, so as to prepare in advance for the emergency of her absence from home at the time she intended to file her answer. All these incidents and movements were under her absolute and exclusive control, and hence she could not be heard to plead surprise, or that she had been prevented from preparing her proof by some unforeseen cause. C. P. 464.

It is true that in her counsel’s affidavit in support of his motion for a continuance, on the 10th of March, we find the statement that she was ill in New Orleans. But it is apparent that when in Colfax, Grant parish, he hazarded that assertion, he was misinformed as to her true condition; for on the 13th of the month, only three days later, she went in person before a notary and swore to the allegations in her petition for a commission to take her own testimony. We note also that in the motion of March 13th no reference is made to the condition of her health, and that the assertion of her illness is not repeated. Had she left this city by the same train which carried her papers, she could easily have been in Colfax on the 15th, the day before the trial. Under the theory of her motion for a continuance, the district judge was practically called upon to decide that, in his opinion, a party to a suit pending in Grant parish, in which he resides, is entitled to a continuance for the purpose of taking his own testimony in New Orleans, where he is sojourning, and when it appears from his own papers that he is well enough to go before a notary in person and swear to the necessary affidavit. The judge exercised his discretion to the reverse, and we cannot assume the responsibility of disturbing his ruling.

Had the affidavit for the motion shown that the defendant had been unexpectedly taken suddenly ill, she would have presented an entirely different state of affairs, and doubtless the judge would have ruled otherwise. But oven on that state of things we do not propose to indicate what ruling should be made. The judge in his discretion must deal with each particular case as it presents itself; and we repeat that his discretion will not be disturbed, except in extreme cases. This Court has gone to a great length in upholding district judges on similar rulings in the trial of cases.

In the case of Richardson vs. Dinkgravo et al., 26 Ann. 655, plaintiff’s counsel moved for the continuance of the cause on trial from Saturday to Monday, so as to send for their client, who was in the parish, and whose testimony was indispensable to her cause, and this Court sustained the refusal of the district judge, The court said: “Plaintiff bad not been subpoenaed as a witness, and there was no process by which her attendance could have been compelled. If she had intended to be heard in her own behalf, she should have been present to testify when the time came. * * * The question is, whether she had the right to have the case postponed in order to give her an opportunity of being heard. She unquestionably had not the right, and the judge did not, therefore, err in refusing to continue or postpone the case on account of her absence.” This was beyond a doubt a more rigorous ruling than the one now under consideration, but the discretionary power of the lower court was maintained and upheld.

Defendant’s counsel call our attention to the case of Calhoun vs. Bank, 28 Ann. 260, in which plaintiff was allowed a continuance for the purpose of awaiting the return of a commission to take plaintiff’s own testimony. But in that case plaintiff was not a resident of Louisiana, and the delay fixed for the return of the commission had not yet expired. However, in so far as the ruling of that case conflicts with the views announced in the Richardson case, decided by the same bench, and with the views herein expressed, it must be considered to that extent as overruled.

We have carefully examined and given due consideration to the numerous authorities cited by defendant’s counsel; but with the exception of the case just disposed of, their cases refer to discussions involving the general rifles of continuance, antedating and having no reference to applications for continuances by parties to the suit with a view to secure their own testimony. We are aware that the rifle as established in our jurisprudence is that “Diligence in law means doing everything reasonable, and not everything possible.” Our opinion is that the defendant’s motion does not show a compliance with that rule, and that she was not entitled to a continuance as prayed for. We have been thus particular and at great pains in dealing with this question, on account of its growing importance under our amended laws of evidence.

On the Merits.

2d. The errors assigned by defendant are substantially that the judge ordered a partition of the property without passing on the issue of plaintiffs’ titles raised in her answer, and in appointing experts in an exporte order, and in entertaining the report'of the experts which had been made exporte, and in indecent haste.

Without formally passing on the issue of title, the judge must be understood to-havo adjudicated plaintiffs as the joint owners of the property in question, or else he would not have ordered a partition at their instance.

The decision of that issue was an absolute prerequisite to the judgment of partition. All issues presented by the pleadings áre presumed to have been disposed of even when passed over in apparent silence. In the case of Villars vs. Faivre and Mathews, recently decided, we had occasion to consider and apply that rule.

The question involving plaintiffs’ title to the property sought to be partitioned, loses all practical importance since the final decision rendered by us in the case of Lane vs. Cameron, and which was a direct . suit for the nullity of their title. It was formally recognized and enforced in that case.

We liave carefully examined the.proceedings of partition in this case . and do not find them amenable to the criticism levelled at them by defendant in her assignment of errors.

As this was a proceeding instituted and carried on contradictorily with the defendant, we see no force in the objection that the order appointing the surveyor and the exports was exparte. We know of no rule of law which required the judge to consult either party in such appointment and we have been referred to none.

The fundamental principles of our law is that i'no one can be compelled to hold property with another, unless the contrary has been agreed upon 5” hence, anyone has a right to demand the division of a thing held in common, by the action of partition.” C. C. Art. 1289.

The judicial partition must be resorted to when the parties do not agree to the partition or on the manner of making it. C. C. 1323. In this case the judge had no difficulty in reaching a correct conclusion on this first inquiry in the premises. The only remaining question was to .adopt a mode of partition.

As a guide to his steps in that matter, the judge has article 1336 Of the Code which vests him with ample jurisdiction, to adopt the mode which appears to him most convenient and most advantageous to the general interest of the parties.

And, in this connection, jurisprudence has settled that the judge has the option to rest his discretion on the report of experts which he has the legal authority to appoint, whose report may, however, be overcome by evidence.

The record shows that, after hearing and considering the report of qxperts, the judge adopted the mode of partition suggested by them, that he homologated and ratified their report, and ordered that the partition be made in accordance therewith.

We fail to discover any force in the objection that the report of experts was gotten up with indecent haste, because it was made on the same day that they were qualified, and without an inspection or survey of the lands to be partitioned. The record shows that they were furnished by the appointed surveyor, who was their co-laborer, with maps, surveys and field notes, previously made and taken by that very surveyor, and nothing more could be expected or required of them. Defendant does not allege, or attempt to show, that the report is erroneous or deficient, either in form or in substance. The alleged celerity with which the labor of the experts was accomplished is, of itself, no valid or legal objection to their report if it be not shown to be fraudulent or erroneous.

There are no provisions of our law requiring the experts to proceed with their examination, contradictorily with either of the parties to the action in partition.

We are satisfied that defendant has been deprived or stripped of none of horllegaFrights through and by means of the proceedings for partition, and hence, we conclude that her complaint is unfounded.

Judgment affirmed.

Concurring Opinion.

Bermudez, C. J.

I consider that the continuance was properly refused ; that the objections to the appointment of the experts and to their report, as well as to the manner in which the case was tried and disposed of, lack legal foundation.

It has been a practice of long standing in courts having competent jurisdiction, to appoint ex parte, on the filing of the petition, experts to ascertain and report whether the property, the partition whereof is sought, can or not be conveniently divided in kind. When the parties thus appointed have qualified and made their report, a rule is generally taken on opposite parties to show cause why it should not be approved or the report is simply filed, to be acted upon at the trial of the case.

This ex parte appointment and report have never been considered as conclusive upon the other parties, who have always been properly recognized the right and allowed the privilege of objecting as well to the personnel of the expertise, as to the substance, in whole or in part, of their report. After hearing, the court homologates the report or modifies it, or ignores it, and concludes, sometimes, to the reverse.

The court is not bound to appoint the experts and is not bound by their reports. The appointment is not indispensable to a judgment. of licitation, which may be rendered on simple testimonial proof of its necessity. The latter mode has been considered and declared to bo often more satisfactory than the former. 3 R. 48 ; 5 A. 499; 7 A. 477; 9 A. 197; 11 A. 388.

The appellant’s attacks were based upon untenable grounds, none of which had for its object the personnel of the experts. The objections were properly overruled and are no valid reasons of complaint.

No fact is relied on to show that she was injured by the appointment and bj' the report. Piad testimony been adduced, in place of the report which was acted upon, the result would have been the same, the partition by sale would have been ordered and decreed and the property would have been, as it actually was, sold.

DissentiNG- Opinion.

Fenner, J.

This is a partition suit involving not only the division but the title to over seven thousand acres of land, appraised in these very proceedings at more than $73,000.

The case was put at issue, by timely answer, on the 7th of March, 1883, at the opening of the first term of court after filing of petition.

Experts were appointed on the ex parte application of plaintiffs, and without notice to defendants. With incredible celerity, these experts filed their report on the same day on which they were appointed, and at a time when defendant was known to be absent from the parish and had not even been personally cited. On March 16th, only eight days after issue joined, the case was taken up for trial, in absence of defendant and her counsel, and judgment was rendered.

Surely, such lightning speed in the disposition of a controversy of this magnitude, without a hearing to one of the parties, is without example in judicial history.

It would not be too much to say that even had the absence of defendant and her counsel been negligent or unaccounted for, a judicious magistrate, restrained by the fear of doing injustice, should, of his own accord, have declined to proceed to act upon the report of experts so precipitately framed, without the fullest opportunity for hearing to the parties.

Butin this case, defendant’s counsel, a member of the bar of New Orleans, on the day after issue joined, had applied for a commission to take the testimony of a witness in Rapides parish, which was granted, returnable in seven days. ‘

On the 10th of March, lie made a motion for continuance, suggesting that the ciutent term of the court would expire on the 17th; that his client was absent, ill, in New Orleans, and would not be able to attend at that term of court; that there was not time to procure her testimony under commission before the end of the term, because he was unable to prepare interrogatories properly without consulting' her; that other testimony of other absent witnesses might be required, the necessity for which could not be determined until after he had seen the testimony of the Rapides witness, for which a commission had been issued; and that he himself was absolutely compelled to return to New Orleans on imperative business.

The continuance was refused. The counsel then returned to New Orleans, consulted with his client, prepared interrogatories to take her testimony and a petition for commission, which he forwarded to the judge, accompanied by another sworn application for continuance. The application reached the judge on the 15th, was disregarded, the commission prayed for was not issued, and on the day following the cause was taken up, tried and decided.

The mere statement of the facts indicates the plain duty of our interference to avoid the effect of such precipitate proceedings. In invoking extreme technicalities, doubtful inferences and the most exacting rules of possible diligence, to sustain the refusal of such timely and reasonable applications for continuance, and to support a judgment rendered, without hearing, with such unseemly haste, in a matter of such difficulty and importance, I am bound to say that the Court drifts far away from those equitable rules which have guided our predecessors in such matters, and which, in the language of Judge Porter, with the concurrence of Martin and Matthews, held it “to be law, as it is certainly the safest practice, that whenever the propriety of granting a continuance to a defendant is doubtful, that the court should accord it. If any error is committed on that side, the consequence is but delay to the plaintiff; if on the other, a mistake might produce great injury, perhaps ruin, to a party defending himself against an unjust demand.”

Lecesne vs. Cottin, 9 Mart. O. S. 457.

Lee vs. Andrews, 10 id. 686.

See, also, 9 Mart. 457; 6 N. S. 635; 7 N. S. 104; 3 La. 448; 19 La. 558; 9 Rob. 380; 10 Rob. 97; 8 Ann. 467; 28 Ann. 260.

These considerations are enforced in the instant case, by the brief period for which the case had been at issue, by the unusual expedition of the proceedings, and by the natural aversion of the judicial mind, to judgments without hearing; and, still more, by the fact that it is only by decision of this Court, rendered since the present cause was submitted, that the title of the plaintiffs to a share in the land involved in the partition, which of course underlaid their right to partition, has been finally confirmed.

I, therefore, dissent from the opinion and decree therein.

Mr. Justice Todd concurs in this opinion.


source: Caselaw Access Project

author: Todd, J.

license: Public Domain

text:
    No. 8951.
    The State ex rel. Fidèle Eugster vs. City of New Orleans.
    Wliore a creditor obtains a money judgment against the city and registers it under tlio provisions of Act 5 of 1870, lie cannot by mandamus compel tbe city or board of liquidators to issue bonds in satisfaction of tbe judgment, on tbe plea tliat tbe work done which formed tbe consideration of the judgment entitled tbe creditor to the bonds demanded.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      Blame & Butler for the Relator, Appellant.

      Wyrme Bogers, Assistant City Attorney, for the Respondent, Appellee.
   The opinion of the Court was delivered by

Todd, J.

The relator, holder and owner of a judgment against the city of New Orleans, on which a balance is owing of $9862 29, besides interest, alleging that the judgment was rendered upon contracts entered into pursuant to a certain law designated, and that by said law the debt was to be paid in improvement bonds of the city of Carrollton, applied for a mandamus to compel the city and the board of liquidators to issue said improvement bonds in satisfaction of his judgment. The relator also asked that a special tax be levied to pay his judgment, under Act 5 of 1870, but this latter demand was withdrawn, leaving only to be determined his rights to the bonds claimed.

The judgment that the relator seeks to have satisfied is in the words and figures following, to wit:

‘“Nicholas Connell vs. City of New Orleans.
) > )
Superior District Court,
No. 26,892.
“This case came on this day for trial, H. C. Upton for plaintiff, Samuel P. Blanc, assistant city attorney, for defendant.
“When, after hearing pleadings, evidence and counsel, the court considering the law and the evidence to be in favor of the plaintiff, Nicholas Connell.
“It is ordered, adjudged and decreed that there be judgment in favor of the plaintiff, Nicholas Connell, and against the city of New Orleans, for the sum of nineteen thousand seven hundred and sixty-two 29-100 dollars, with eight per cent per annum interest on eighteen thousand two hundred and ninety-eight 42-100 dollars from December 1st, 1875, till paid, and with all costs of suits.
“Judgment rendered January 4th, 1876.
“Judgment signed January 10th, 1876.
(Signed) “JACOB HAWKINS, Judge.”

By its terms, it will be seen that the judgment is strictly a money judgment.

The relator alleges that the consideration of the judgment was work done on the streets of Carrollton by the plaintiff in the judgment, and that the terms of the contract and the act referred to entitled the creditor to be paid in certain bonds called “improvement bonds,” as before stated. G-ranting that the judgment creditor -was entitled to demand, when lie instituted his suit, payment of his debt in the mode stipulated, yet it appears he did not do so, but preferred seeking its liquidation or satisfaction in money. Whatever his rights may have been under Ms contract, they become merged in the judgment he sought and obtained. That judgment became the exponent of his rights and the measure of his debtor’s liability. That right, as thus determined, was to enforce payment of his debt by money, and the liability of the debtor was to pay in money and nothing else.

The creditor might have chosen otherwise, and the debtor might have insisted, in the progress of the suit, on satisfying the debt, under the terms of the obligation, in bonds instead of money. But, however that may be, when the option of the creditor was declared and exercised, and the privilege of the debtor was waived and the rights and obligations of the parties respectively were determined otherwise than might have been fixed, upon a different presentation of their respective claims or rights, the determination became final and the mutual rights and obligations of the parties became a thing adjudged.

It is true that in exceptional cases and for certain purposes, courts may look beyond the judgment to fix its true status and ascertain upon what founded, with a view to determine its immunity from impairment, and its right to protection under constitutional guarantees. But no principle of this kind is here involved and no exceptional feature presented requiring or permitting judicial inquiry into the character or merits of the debt on which the judgment was rendered.

It appears that after the judgment was recovered it was duly registered, in accordance with Act 5 of 1870, preparatory to its ultimate payment under the provisions of that act.

We are powerless, under this state of facts, to grant the relator the relief he asks and provide for the satisfaction of his judgment in a mode and by mean's other than its terms and the law prescribe. State ex rel. Strauss vs. Brown, 30 Ann. 79.

The judgment of the lower court, which refused the mandamus, is, therefore, affirmed with costs.


author: Fenner, J.

text:
    No. 9184.
    John E. Thompson vs. Muller Brothers.
    "When tlie evidence in the record satisfies us that the omission of the endorsement on a draft offered in evidence was merely a clerical error, and when the evidence otherwise sufficiently establishes the endorsement, the omission -will furnish no ground of reversal.
    In proceedings for forced surrender on a petition setting forth all the requirements of Section 1781 R. S., it is not error for the judge to make his order expewte commanding the defendant to file a schedule of his creditors.
    If after such order the defendant, by rule or exception, traverses the truth of the allegations of the petition, he must make at least a beginning of proof, in order to throw on plaintiff tlie burden of establishing his allegations, which, upon the affidavit to the petition are to bo taken HQprwnco facie true.
    PPEAL from the Civil District Court for the Parish of Orleans. XjL Lazarus, J. -

      Jolm If. Homier for Plaintiff and Appellee.

      A. B. Philips amd Albert Voorldes for Defendants and Appellants.
   The opinion of the Court was delivered by

Fenner, J.

Plaintiff sued the defendants and recovered judgment against the firm and the individual members msoUdo.

He subsequently filed a petition conforming in all respects to Article 1781, setting forth his judgment and the amount thereof; that execution had issued and had been returned no property found,” after due demand on the judgment debtors; that he has reason to believe that they have property or assets which may be made available to creditors; and concluding with the prayer that the debtors be ordered to surrender their property to their creditors. The petition was duly verified by affidavit.

Thereupon, as directed by the same article, the judge entered his order directing the debtors to file a schedule of their creditors within ten days. Defendants then appeared and filed exceptions to the petition, which were overruled as to one of them and sustained as to the other.

The present appeal is three-fold.: 1st, from the original judgment; 2d, from the .order of the judge directing the filing of schedule of creditors ; 3d, from the judgment on the exceptions of defendants. We shall consider these judgments in their order.

I. '

The original suit was brought on thirteen drafts^alleged to have been drawn by C. Conrad & Co. to the order of themselves, and by them endorsed on and accepted by the defendant firm.

The drafts were filed with and made part of the petition. They were offered and received in evidence without objection. Full proof is administered that they were acquired by plaintiff, or his assignor, in good faith, for value and before maturity; which facts bar all the special defenses set up in defendants’ answer. The endorsements are fully proved, as well as the authority of the attorney in fact by whom they were made, and all the facts above referred to come from the mouths of defendants’ own witnesses.

The only possible objection to the judgment arises from the fact'that one of the thirteen drafts, as copied in the record, does not exhibit the endorsement of Conrad & Co., to whose order they were payable. It is claimed by plaintiff’s counsel that this is a mere clerical omission, discovered by him too late for correction, and he brought before the court the original draft to establish his assertion. This, of course, we could not consider; but the record itself contains sufficient intrinsic evidence to satisfy us that the draft was endorsed and that the omission in the transcript was a purely clerical error. The drafts, as before stated, were all filed with the petition and subject to defendants’ view from the outset. They themselves took the testimony of plaintiff, of Carl Conrad and of Julius Conrad, all of whom swear that the drafts were discounted by the Bank of Commerce shortly after their dates, which necessarily implies their endorsement. Defendants made no such point in the lower court; and even in their motion for new trial, suggesting various errors in the judgment, this is not referred to-These facts convince us that the draft was endorsed and that the omission is merely clerical, and defendants’ counsel have not ventured a personal assertion to. the. contrary.

We find no ground for reversing the judgment.

II.

The objection made to the order on the petition for forced surrender is that it was ex parte and could only have been rendered after hearing of defendants.

The law affords no support to' the position. After prescribing th o terms of the petition, the language is imperative: The judge shall order the debtor to file a schedule of his creditors, etc.” As well might it be contended that the judge could not issue his order for an attachment or sequestration without a hearing. The remedy of the debtor, if aggrieved, is the same here as in those cases, viz.: a rule to set aside, on which he may have his hearing.

III.

The exceptions to the proceeding for forced surrender, so far as urged in this Court, were the one above considered, and the further one that the firm of Muller Brothers had been dissolved and that no demand on the fi.fa. was ever made on defendant John Muller, nor on the firm of Muller Brothers.

Defendants contend that under this exception the burden was on plaintiffs to establish the facts on which his proceeding was based. We cannot agree with him. The law makes the affidavit to the petition sufficient prima fade basis for the proceeding. The defendant, who seeks, by exception or rule, to attack its verity, must, as in rules to dissolve conservatory writs, give at.least some evidence to rebut it.

Offut vs. Edwards, 9 Rob. 90.

Simon vs. Jacobs, 15 Ann. 425.

Hermann vs. Amédée, 30 Ann. 393.

The only evidence taken on the trial of the exceptions, appearing in the transcript, is the testimony of Joseph Muller. He proves the dissolution of the firm, but says not one word in contradiction of the sworn allegation of the petition that the f,.fa. “has been returned ‘no prop erty found,’ after due demand on said judgment debtors.”

The mere dissolution of the firm is no bar to the proceeding.

The judgments appealed from are, therefore, affirmed.


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

text:
    No. 8969.
    Carter Bros. & Co. vs. Galloway & Burns.—Kirkpatrick & Co., Garnishees.
    Whoever deals with a partner, who uses the partnership name to direct that partnership property he applied to his individual purposes, is put on his guardhy the very nature oí the transaction which is heyond the scope of the partner’s authority. If he carries out such instructions, he does so at his risk and peril.

      One -who has thus dealt, in whose hands the property is attached by a partnership creditor and who disposes of it, notwithstanding the seizure, and diverts the proceeds, accord ing to the partner’s instructions, is liable to the creditor, unless he affirmatively proves that the other partner had assented, previous to the seizure, to the disposition of the assets.
    PPEAL from the Civil District Court for the Parish of Orleans. Bightor, J.

      Chas. S. Rice for Plaintiffs and Appellees.

      Branch King Miller for the Garnishees, Appellants.
   The opinion of the Court was delivered by

Manning, J.

In a suit by the plaintiff firm against the deiendant firm of Trezevant, Tenn;, for $2,076.58, a writ of attachment issued, and Kirkpatrick & Co. of this city were served with interrogatories and process of garnishment. They answered, denying any indebtedness, whereupon a rule was taken to traverse their answer. In the main suit there was judgment in favor of the plaintiffs for their demand, less $692.19, received by them from the defendants since the institution of this suit, and also against the garnishees for $764.50 with interest. The garnishees appealed.

Galloway & Burns had a running account with the appellants. They failed, and made an assignment on February 9, 1882 in Tennessee, eleven days before this attachment was issued. Kirkpatrick & Co. had received from Galloway & Burns ten bales of cotton on Nov. 21,1881, and a bill of lading therefor accompanied by a letter of instructions, and eleven bales on Feb. 8, 1882 with bill of lading and a letter of instructions, the purport of the instructions for both shipments being to hold for account óf W. H. Galloway, the senior member of the defendant firm. These instructions were without the knowledge of his partner. Galloway had been speculating in futures, and his directions were that these twenty-one bales should be held as margin for his private speculation.

A partner cannot divert property belonging to the firm to his own use, and any one dealing with him and knowing the facts will be deemed to have acted in bad faith, and in fraud of the partnership, and the transaction by which the funds or securities of the partnership have been so obtained will be treated as a nullity. Story on Partnership, § 132. He who knows that the partner’s act is not within the firm-business, knows that it is not authorized, and when he knorvs that the partner is acting for his own immediate and several benefit, he cannot presume that the firm authorizes it. Parsons on Partnership, 228. A party taking- the paper of a firm with the knowledge that it was given for the private or personal debt of one of the partners, knows enough to 'put him on his guard, and is bound to inquire whether the firm authorized the use of its name Ibid. 121. The principle applies to the property of a firm equally as to its paper.

Kirkpatrick &Co. received these shipments from the firm in the same manner as they had received others — the bills of lading drawn in the same way — and all others had been placed to the account of the firm except these two. They are therefore charged with knowledge that one of the members of the firm was diverting its property to his own use, and must therefore be held to accountability for it to the firm, or the firm’s creditors.

Oral objection was made that the garnishees were owners of the proceeds of this cotton, and that their title could not be attacked except in a direct action, on the authority of Ivens’ case, 30 Ann. 249. No exception was made to the rule to traverse, nor any plea filed, nor even oral objection (we are informed) to the trial of the rule. So serious a question as that of title, entailing the legal consequence of a direct action for its attack, ought surety to have appeared by written exception orplea. Florance v. York, 2 Ann. 996. Slatter v. Tiernan, 12 Ann. 376. The objection was not made until the argument. If valid, it should have been made sooner, and should have been put formally on record. This was said explicitly by the Court in Florance v. York ut supra.

Judgment affirmed.

On Application for Rehearing.

We have determined to grant a re-hearing- of this cause because of doubt whether we were correct in saying that Kirkpatrick & Co. are charged with knowledge that one of the members of the firm was diverting- its property to his own use, and must therefore be held to accountability for it to the firm’s creditors.

The letters of instructions were signed in the firm-name, and it may bb that in the absence of complaint by Burns, a creditor would be powerless to interfere to prevent the disposing of the property otherwise than was ordered in those letters, or to hold Kirkpatrick responsible for obeying the direction contained in them. The attention of Counsel is directed to that mew of the matter.

Rehearing granted.

ON REHEARING.

Bermudez, C. J.

The admissions and the evidence establish that Galloway, using the name of the firm, Galloway & Co., without the knowledge of his co-partner, Burns, shipped cotton to Kirkpatrick & Co., with instructions to apply the proceeds to his individual purposes.

It likewise appears that the cotton was received in November, 1881, and on February 7, 1882; that the writ of attachment was issued and garnishment proceedings served on February 20, 1882; that the cotton was sold on the 25th and 27th following; five and seven days after service of the process.

The rule traversing the answers of the garnishees, Kirkpatrick & Co., has for its object to hold them responsible for the proceeds of the cotton, which they are practically charged -with having wrongfully diverted and applied. The argument advanced to exonerate them is: that they were the agents of Galloway & Burns; that they cannot be held responsible for having, as such, executed the instructions or orders of their principals; that as those principals could not hold them liable, no creditor of theirs, who has no greater righter than they possess, can be permitted to do so.

This is a glaring fallacy. It is not true that the firm authorized them to hold the cotton for account of Galloway, individually.

The cotton was shipped by Galloway & Co. to Kirkpatrick & Co. The letter of instructions was written by Galloway, in the name of the firm, but without the knowledge of the other partner, Burns. Kirkpatrick & Co. knew that the letter was thus written. They knew that the proceeds of partnership property were ordered by one partner, without the authority of the other, to be diverted and applied to his purposes. They were put and should have been, in law, on their guard under that state of facts, and should either have absolutely refused the consignment, or received it declining to carry out the instructions to misapply, until the consent and authority of Burns had been clearly obtained. Having failed to require that consent and having carried out the illegal instructions, they have acted at their risk and peril and should stand the consequences of their imprudence and rashness, the more so, as they sold the cotton, several days after the ga/rwishment proceedings had been served on them.

There is no better settled principle of commercial law than, that a partner cannot use partnership property for his individual purposes, without the consent or authority of his co-partner or partners and that when he attempts to do so, parties dealing with him are, by the very fact or nature of the transaction, warned and put on their guard, and that if the same is consummated, the burden of proving the knowledge, consent or authority of the other members rests upon such parties, who, when sought to be made responsible, must, at their risk and peril, succeed or fail according as they may or may not prove such ratification.

There can be no doubt that Burns, the partner whose consent or authority was necessary and not obtained, could recover from the consignees for the wrongful misapplication, otherwise, lie could be spoliated by a derelict partner and his accomplices, without any remedy, which is a legal impossibility. What rights he had or could exercise, accrue to the creditors of the firm when claims are liquidated by a final judgment which has become executory.

Story on Partnership, par. 132j says: that in such cases the party dealing with the partner and knowing the circumstances will be deemed to act mala fide and in fraud of the partnership, and the transaction by which the funds, securities or other effects of the partnership have been so obtained will be treated as a nullity * * * for it is a clear misapplication of the partnership credit. He further correctly adds : that the case would be different whore the other partner has directly or by fair implication authorized or confirmed the application of the partnership effects to the very purpose. (133.)

In 12 Pet. 221, Rogers vs. Batchelor, which is a leading case, Mr. Justice Story, after a review of applicable precedents, substantially held: that the time principle to be extracted from the authorities is that one partnership cannot apply partnership property for his own advantage without the consent of his co-partners ; that without such consent title to the property is not diverted in favor of the party whether he knew it or not to be partnership property. “In short, his right depends, not upon his Imiowledgc that it was partnership property hut upon the fact, lohether the other partners had assented to such disposition of it or not.” p. 232.

The law, says the Supremo Court of Virginia, in a similar suit and referring to the Rogers case, is now generally considered as accordingly settled. Sec. 1, Am. Lead.'Cas. 5th Ed., May, p. 453; Liberty Savings Bank vs. Campbell, July term, 1881, No. 24, Vol. XIT, p. 7(!(i; Reporter of 1881.

. In tlio absence of Burns’ consent or authority, title to the proceeds of the cotton continued to vest in the firm of Galloway & Co., the ap-plioation of them by Kirkpatrick & Co. was unauthorized and illegal and they should be held liable for the same.

Parsons is to the same effect. 121 and 128.

This doctrine was also emphatically recognized and applied by the present Court in 33 A. 1308 and 1315, after a full review of the authorities applicable in such instances.

In the later case of Allen, Nugent & Co. vs. Cary et al. we distinctly held, supported by unquestionable precedents, that even where a partner, acting apparently beyond the limits of his authority, untruly states his co-partner’s consent, his representations will not bind them, even in favor of parties dealing with him although in good faith, for the reason that it is the duty of every one who deals with a member of a commercial firm, out of the line of the business of the partnership, to require evidence of that partner’s special authority to bind his co-partners, and this at his risk and peril. 33 A. 1455.

From a recent case decided by the Supreme Court of Maine, reported in 10 Central L. T. p. 388 (Johnson vs. Hersey), it appears that a bank held the individual note of one of the members of an insolvent firm who without the knowledge of his co-partner drew the partnership funds in the bank to pay the note, and that the Court decided that the character of the transaction was notice to the bank of the character of the funds, and that the attachment levied could be sustained by the creditors.

In Caldwell vs. Scott, 54 N. H., the Court recognized the right of creditors to repudiate such diversions and to hold the delinquent parties responsible.

It would be indeed cumbersome to quote authorities in support of a proposition of law so manifestly correct.

It is immaterial whether the consignment and instructions be in one and the same or in different papers. If transactions so reprehensible and injurious to others concerned can be tolerated and enforced, when accomplished under cover of authority delegated by the same authority, the law eminently protective of partners and of partnership creditors becoihes a delusion, easy to be successfully evaded. Partners and creditors would bo unmercifully victimized by sanctified miscreants.

The law never designed that such transactions should be upheld, and the argument urged by counsel of the garnishees is simply heterodox in the extreme.

It is, therefore, ordered that our previous decree remain undisturbed.

DisseNting Opinion.

Fenner, J.

I do not controvert the correctness of the general principles announced in the majority opinion, but I think their application, under the facts of this case, is dominated by superior principles of tin law of mandate.

The bills of lading for the twenty-one bales of cotton, here in controversy, were enclosed to the consignees in letters signed in the firm name of Galloway & Burns, and giving the instructions to hold the cotton for account of W. H. Galloway to reimburse margins advanced or to be advanced upon certain future delivery cotton contracts which had been entered into for him.

These letters, with the enclosed bills of lading, constituted the indivisible mandate under which the consignees received and hold the cotton. They had the right to accept and act upon it as a whole. Until otherwise notified, they were not subjected to the duty of inquiring into the authority, but had the clear right to assume that the authority to ship the cotton included authority to direct the disposition of the proceeds. A different rule would impose upon factors responsibility which the law has never contemplated.

If the instructions were unauthorized, and if the firm or its creditors’ had asserted claims upon the cotton before the consignees had acted upon the instructions in such manner as to alter their position, then such claims might be enforced. But if acting in good faith upon the instructions the consignees had made advances for Galloway’s account or otherwise incurred liabilities for him, before advised of the want of authority, they are entitled to protection.

The case cannot be distinguished, in principle, from that of Bullitt vs. Walker, 12 Ann. 276. There, the bill of lading was in the name of John S. Mitchell “for account of William Walker,” and was accompanied by a letter of instructions from Mitchell in these words: “I ship you to-day, per express, corn, which please sell for the best price you can and credit my account with the proceeds. Make account sales for account of Win. WaHcer.”

It thus presents the clear case of an avowed agent shipping for account of a named principal and directing the proceeds to be applied to Ms own credit. Certainly it will not be denied that the power of a partner, acting in the name of his firm to direct the application of firm assets to his individual credit, is at least as great as that of any other mandatary to make similar application of his principal’s property. Hence, the case fully applies. Now, in the case referred to, the consignees, acting on the instructions, paid drafts of Mitchell beyond the value of the corn. Creditors of Walker then proceeded against the consignees by garnishment.

The Court held that, having paid Mitchell’s drafts upon the faith of tlje instructions accompanying the shipment, before advised of any want of authority, tlie consignees were entitled to protection, saying that although “ the mention of Walker’s name in the hill of lading and letter of advice conveyed to the consignees knowledge of his interest,” yet “the consignees had no mission to protect Walker from a misappropriation of his funds by his agent, Mitchell.”

In the same case, however, other garnishees who had received corn under like instructions but who had not sold it at date of garnishment, and who were not shown to have made advances on the faith of the shipment but sought to apply the corn to a former account, were held liable, to the true owner’s creditors under the garnishment: though, from this part of the decision, two of the ablest justices, Slidell and Lea, dissented.

• The question in the case, therefore, is whether or not, after the consignment and upon the faith of the instructions, the consignees, Kirkpatrick & Co., had made advances or incurred liabilities for W. H. Galloway before the garnishment? If so, to that extent they should be protected.

Owing to the omission from the transcript, by consent, of the account of W. H. Galloway offered in evidence, we could not determine the dates of the advances made for his account, but I think the case should be remanded for the purpose of settling that point.

For these reasons, I dissent from the opinion and decree.

Mr. Justice Todd concurs in this opinion.


author: Bermudez, C. J.

text:
    No. 9051.
    Mrs. Elizabeth Noble vs. Samuel Flower, Administrator.
    The objection that the district judge has passed himself upon a case ordered to be tried by a jury, which was empanelled and sworn and present, will not be considered on appeal, where no bill was taken below to the course pursued. Silence amounts to a waiver, or to acquiescence.
    The refusal of a district judge to admit any evidence, on the ground of iiTelevancy, in support of the allegations of a petition which discloses a cause of action, cannot be justified.
    Under such circumstances, the case will be remanded for further proceedings.
    A PPEAL from the Civil District Court for the Parish of Orleans. / \ Monroe, J.

      Geo. L. Bright and F. Kernan for the Appellant.

      G. L. Sail for the Appellee.

      Nicholls & Carroll on the same side.
   The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiff enjoins executory proceedings against her, on notes issued by her in settlement of the purchase price of certain real estate in this city, amounting in capital to $3500.

She contends that those notes were extinguished by payments and compensation before they came to the possession of the defendant, to whom they were passed without consideration and to defraud her of her rights against the previous holder.

She prays that the notes be so declared; further, that the privilege- and mortgage apparently securing them be annulled; that she recover $1500 damages and that her injunction be perpetuated.'

The defendant at first filed an exception of no cause of action and next answered, resisting plaintiff’s demand, averring a valid title to the notes and security, concluding with a prayer for $5500 damages, in re-convention.

At plaintiff’s instance the case was ordered to be tried by jury.

On the day of trial, objections resting on the ground of irrelevancy were urged to the admissibility of any evidence of plaintiff. The court sustained them, refused to admit any proof, and proceeded to render itself judgment of non suit on both the main and the reconventional demands.

From that judgment the plaintiff alone appeals.

It appears that, after refusing to allow the evidence, the court did not permit the case to go to the jury, empanelled, sworn and present to try the same; blit assumed to render the judgment stated and complained of.

In argument before this Court, our attention is called to this irregularity by defendant’s counsel, who contends that the district judge had no right, after directing the cause to be tried by a jury, to wrest it from them and to pass upon it, himself, as he did. It is urged that this suf,fices to justify a reversal of the judgment and a remanding of the case. We do not think so.

Nothing shows that the plaintiff objected below to the course thus pursued. Silence on such an occasion amounts to a waiver of objection, or to an acquiescence in the correctness of the proceeding. It may be that on objection the judge would have receded and submitted the ease to the jury, who undoubtedly would have rendered a verdict of dismissal for want of proof by either party. Practically, the plaintiff has ustained no imaginable wrong and cannot be heard to complain.

MERITS.

The facts averred by the plaintiff in her elaborate original and in her supplemental petition must be taken as true, for the purpose of the litigation, in its actual phase, and may be considered to be substantially the following:

That in 1872 the Life Association of Ain erica issued a policy of insurance, whereby it agreed to pay plaintiff, in trust for herself and children, $10,000 sixty days after the death of her husband, if she survive him, and to the legal holder if she do not; but that if the insured be living on the first of April, 1898, the policy would then mature and be paid to the legal holder of it.

That, after payment by her of $3539 as premiums on the policy, the association, without her consent, induced her husband to surrender the policy, and accept, in lieu thereof, another for $5000, in 1878.

That the company became insolvent on November 10, 1879, and unable to comply with the terms of the policy; that this circumstance dissolved the contract and entitled the plaintiff to recover from the association the sum of $3539, paid as premiums.

That on October 2, 1879, previous to the insolvency, the iffaintiff acquired from the association, as wife separated in property, the real estate seized, for $4500, one thousand of which was cash and the rest on time, for which the notes sued on were furnished.

That when the company became insolvent it owned these notes; that its insolvency was known to the defendant; that the association had no right to transfer the notes to the defendant j that the transfer was made without consideration passing and fraudulently, and was designed to prevent plaintiff from urging her claim against the company and thus defraud her, as also the other creditors.

The fundamental averment is: that the notes were extinguished by payment and compensation, on the day of the insolvency, by the application thereto of her claim for the $3539 for premiums paid.

There was filed in limine no exception to the right of plaintiff to stand in judgment, or to the form of her proceedings. The only preliminary defense set up was the exception of no cause of action, which was after-wards withdrawn.

The defendant joined issue by answer, denying the pretensions of plaintiff, and, reconvening, averred title in himself as administrator of the succession of Hood; claimed title to the notes and security; as- ' serted damages sustained ; concluding with a prayer for the rejection of plaintiff’s demand, for recognition of his title to the notes and security, for the dissolution of the injunction, with $5500 damages.

The grounds urged for the exclusion of all and any evidence are multifarious and difficult to formulate systematically.

They constitute practically a double exception of no right and no cause of. action.

Reduced to their simplest expression, they appear to be:

Tliat the association is no party to the suit; that the defendant represents neither it nor the minors Ilood, whose title to the notes and security cannot be collaterally attached ; that the suit is a disguised revocatory action : that it is barred by prescription: that plaintiff’s claim, whatever it be, cannot be set up in compensation,for the, double reason that, at the time,'of the, insolvency — November 10, 1879 — the notes wore not due and the claim set up in compensation was not liquidated and of equal dignity ; that under no circumstances, even if all the allegations were proved, can the judgment sought be vend wed.

Tt is true that neither the association nor the tutor of the minors Hood is a party to this suit. It was unnecessary, under the exceptional features of the suit, to have connected them with it.

The plaintiff in the executory proceedings is charged with having obtained the, notes from the association without consideration, fraudulently, to injure the defendant, the drawer thereof, a creditor of the concern, by depriving her, if possible, of her recourse against it.

If those allegations be true, it is clear that, as plaintiff herein assumes, with the consent of his transferror to champion his rights, it was superfluous to mate him a party. A judgment against the ostensible owner of the notes would bind the real owner, either as to their ownership, validity or extinction.

On the other hand, the defendant represents, as administrator, the succession of Hood, whose minors have only a residuary interest. A judgment against him necessarily will conclude them. The attack is not collateral; it is a direct one, as direct as it could be.

The suit cannot be viewed, at this stage of the proceedings, as a disguised revocatory action. If it was irregularly brought, an exception to the form should have been filed m Umine.. If it is barred by prescription, the plea should have been offered and the action of the court asked upon it.

It was, no doubt, in the power of the defendant in injunction to have excepted to the right of the plaintiff of pleading her claim in compensation as a ground for the writ, for the reason that it is not of equal dignity. Had he done so, it is probable that this defense would have been sustained; but far from doing so, he has answered to the merits, denying the pretensions of plaintiff a,nd averring his own, asking judgment on both demands.

The suit, in its complex character, is a cross one, regardless of the. injunction, which becomes, by the pleadings, an incident, a feature of minor importance, possibly one of utter insignificance on its merits.

The defendant seems to concede that, had the demand been formulated as one in recomention, the plaintiff in injunction, defendant in ex-ecutory process, might have had a standing to revindicate some right, as was necessarily done by the defendant in the case of the same association vs. Levy, 33 Ann. 1203.

If it be true that in such contingency she could have recovered, it is impossible to discover why, under the pleadings, in the instant case she is not entitled to some relief, merely because she proves her claims in compensation — a plea which the courts favor, as it rests on good faith and dispenses with unnecessary evidence in support of an admitted claim.

There exists, no doubt, a telling disparity between a demand in re-convention and one in compensation. The former may or may not admit the main demand; generally it denies it. The latter impliedly confesses it. Whatever the difference be, however, it does not in the least follow that a demand which might have been set up in reconvention cannot be formulated as one in compensation. When presented under the last term, the main demand is admitted and the burden of proving extinguishment and consequent release from the principal obligation is then assumed by and rests upon the defendant, who sets up the plea invariably at his risk and peril.

It cannot be denied that, had the plaintiff expressly charged that the notes had been transferred to defendant after maturity, or even previously, without consideration and for the purpose of. defrauding her of her recourse against the company, they could not have passed, under those circumstances, subject to those equities. It is true that she has not done so formally, as to time; but she has certainly averred broadly enough to justify the admission of evidence to establish those charges.

The filing and the formal withdrawal of the exception of no cause of action possibly admitted a right of action, and, on proof, a came of action. The objections to the evidence on the ground of irrelevancy are kindred to those implied in the exception of no cause of action. The waiver, of the latter is equivalent to an abandonment of the former.

We do not think that, under the issues, in the absence of any preliminary exceptions seasonably assailing the right and the cause of action, as well as t. e form of the proceeding, the evidence should have been excluded.

This view of the case renders unnecessary a further consideration of other differences between the litigants.

It may well be that the plaintiff may fail in her proof; but it does seem that, if she can establish satisfactorily all her averments, she should be entitled, under the pleadings as they exist, to some relief, which cannot exceed the. amount of the notes sued on.

It is, therefore, ordered and decreed that the judgment appealed from be reversed; and it is now ordered and decreed that this cause be remanded to the lower court, to be further proceeded with according to the views herein expressed and according to law, defendant to pay costs of appeal: those of the lower court to abide the result of the suit.

Rehearing refused.


author: Poché, J.

text:
    No. 9192.
    Gus. A. Breaux et al. vs. The Recorder of Mortgages.
    In a proceeding for a mandamus to compel the recorder of mortgages to cancel the inscription of tax mortgages, like in all other controversies, the test of the jurisdiction of the Supreme Court is to he found in the real amount in dispute, exclusive of interest. If the amount in capital of the taxes sought to he cancelled does not exceed §1000, the Supreme Court is without jurisdiction.
    Although accrued interests are likewise secured by the mortgages, they are not a component part of the matters in dispute within the meaning of the Constitution.
    APPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

      Breaux & Hall for Plaintiffs and Appellants.

      J. C. Egan, Attorney General, John MeJSnery and W. B. Sommerville for Defendant and Appellee.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Poché, J.

The ground of the motion is that the amount- in dispute is not sufficient to give jurisdiction to this Court.

The object of the proceeding was to compel the defendant to cancel the inscription of certain tax mortgages affecting property owned by plaintiffs, who are the appellants herein. The inscription complained of included the State taxes of 1871, amounting to $387; for the year 1875, amounting to $217 50; and for the year 1876, amounting to $174; making a total of $778 50.

In their petition, plaintiffs allege that these taxes, together with penalties and interests, exceed in real value $1800, and that therefore their actual interest in the controversy is equal to that amount. Hence, their counsel contended that their “jurisdictional allegations” clearly bring their case within the reach of our jurisdiction.

But allegations of “jurisdictional facts” are not the exclusive test of a question of jurisdiction. “ The real amoimt m dispute, whenever the same can he legally ascertained from the pleadings and documents annexed, and not the allegations of parties, is to be the test of our jurisdiction and shall be our rule in determining all such questions.” Wilkins vs. Gantt, 32 Ann. 929. Applying this rule to the case at bar, we find that the alleged sum of $1800 includes, taxes amounting in capital to $778 50, and that the balance comprises penalties and interests» as alleged by plaintiffs. ,

Now, under the effect of section 15, of Act No. 98, of 1882, which remits all penalties heretofore attached to delinquent tax bills for ¿axes due prior to January 1, 1880, and substitutes in lieu thereof interest of eight per cent per annum from the date that said taxes became due, the element of penalties is entirely eliminated from discussion. Hence, tne real amount in dispute is the amount of taxes in capital, bearing interest from the dates at which the respective amounts became due, as hereinabove stated.

This is virtually conceded by plaintiffs’ counsel, who suggest that a simple calculation of that interest “will speedily demonstrate that the sum of that interest, added to said principal taxes, exceeds $1000.”

Their, contention seems therefore to be that as the interest is secured by mortgage as well as, and as an accretion of, the principal of the tax, the amount in dispute necessarily includes accrued interests.

But under the textual provision of the Constitution our jurisdiction only attaches when the matter in dispute, ex elusive of interest, exceeds one thousand dollars.

We know of no provision in the Constitution or in our laws which contemplates an exception to that rule in cases involving the erasure of inscriptions of tax mortgages, and plaintiffs’ counsel have pointed to no authorities in support of such a proposition. The argument that interest on taxes must be included in the matter in dispute, because it is alike secured by the mortgage which secures the principal tax, is not sound.

It might as well he argued that the interest accrued on a mortgage note, and which is secured by the same mortgage, could be considered as an element in the matter in dispute or as a test of jurisdiction. The reverse of such a proposition is too plain for discussion.

But the position contended for by plaintiffs is not entirely new. It was considered in the case of the State ex rel. Forman vs. Recorder of Mortgages, 33 Ann. 14, which was also a proceeding for the erasure of an inscription of tax mortgages. In that ease, the city of New Orleans had appealed from a judgment ordering the recorder to cancel a mortgage for its taxes, amounting in capital to $584 88, on which interests had accrued up to $440. The city attorney urged that the two amounts together were sufficient to give ns jurisdiction and should both be considered as elements of the amount in dispute, but the Court held otherwise and dismissed the appeal, on the. ground that accrued interests could not be considered as a component part of the “matter in dispute.”

So we must conclude, iu this case, wherein the amount in dispute is the sum of $778 50, exclusive of interest.

. It is, therefore, ordered that the present appeal be dismissed, at appellants’ costs.


author: Fenner, J. Roché, J.

text:
    No. 9106.
    Miss Mary J. Lemmon et al. vs. Wm. L. Clark, Adm., et al.
    When the tutrix of minor heirs, in her capacity as such, talces possession of and administers the estate of the deceased parent of the minors, -without any appointment as administrator, such act is equivalent to the entering into possession of the beneficiary heirs. The tutrix officially represents them alone: her possession is their possession; her acts, within her lawful authority, are their acts. Soye vs. Price, 30 Ann. 93.
    If the minor heirs are creditors of the estate of the parent, they cannot, on coming of- age. compete with other creditors, before accounting for the movable property and revenues of the estate which came into tlieir possession through their tutrix and which, if consumed for their benefit, would extinguish their debt.
    Whore an immovable has been donated to a wife by her parents by a private act, defective in form, that defect may he ratified and confirmed by subsequent acts on the part of the heirs of the donors, such as we think are established in this case; hut, in any event, the husband who has held ilie property as the paraphernal estate of his wife and as her agent, cannot raise objections to her title or make his possession the basis of a prescriptive title. His heirs and creditors have no greater rights.
    APPEAL from the Twenty-third District Court, Parish of West Baton Bouge. Matthews, Judge ad hoe.

      David N. Barrow for Plaintiffs and Appellees.

      Favrot & Lamon and Miller & Finney, contra.

   The opinion of the court, was delivered by

Fenner, J.

William W. Lemmon and his wife, Elizabeth Chism, died in 1863, leaving a large estate and three children, who were their sole heirs. The eldest, George C., was of age, but as he afterwards died and as his interest is inherited by the other two, he may be dismissed from consideration. Mary J. Lemmon and Wm. W. Lemmon, the present plaintiffs, were minors. Their grandmother, Mrs. Elizabeth Chism, in 1863, presented a petition to the court of the parish, representing the death of the said W. W. Lemmon and wife, and the minority of said children and praying that she be appointed tutrix, that an under-tutor should be appointed, and that an inventory should be taken of the estate of said deceased.

An inventory was taken, Mrs. Chism was appointed and confirmed as tutrix, and Jas. L. Lobdell as under-tutor, the former furnishing a bond for $25,000, with W. D. Winter, as surety.

In her capacity, as tutrix, she took possession of all the property of the successions, and the record does not advise us that any further judicial proceedings were had touching the administration of the property until her death in 1877.

In the meantime, J. W. Burbridge & Co., a creditor of W. W. Lem-mon, and of the community, brought suit against the tutrix and recovered judgment against her as possessing, in that capacity, the property of the succession of W. W. Lemmon, but not affecting the separate estate of Mrs. Lemmon, payable in course of administration.

The inventory of 1863 exhibited, besides real estate and slaves, a large amount of personal property belonging to the community, embracing, besides other items of furniture, xilantation stock, etc., the following: $936 in II. S. Treasury Notes; 195,000 pounds of seed cotton valued at $15,600; and “ a package supposed to contain $13,000, Confederate money, and supposed to have been received from Chas. Parlange in an incomplete transaction about cotton and to belong to said Parlange.”

The other items of community movables above mentioned aggregate in appraised value, the sum of $4406 75.

Leaving out of view the package of Confederate money, it thus axipears that the tutrix went into possession of nearly $21,000 of movable property, of which no account has ever been rendered.

The real estate inventoried consisted of 640 acres of land comprising a plantation of which 320 acres undoubtedly belonged to the separate estate of W. W. Lemmon, while the other 320 acres are claimed as belonging to the separate estate of Ms wife. The tutrix and, since her death, the heirs, have continuously enjoyed .the whole of this plantation withotit any account of the revenues.

As before stated, the tutrix died in February, 1877. Miss Mary J. Lemmon became of age in March, 1877. W. W. Lemmon was emancipated in January, 1878.

In June 1882, Miss Mary J. Lemmon filed a petition praying that an administrator be appointed to represent the succession of her father, W. W. Lemmon, and that a new inventory be taken. W. L. Clark was accordingly appointed administrator and an inventory was taken, the sole property placed upon which is “320 48-J00 acres of land with all the improvements and appurtenances thereon,” described as Si of section 4, T 6. R. 11 E., and valued at $1600.

The present suit is brought by Miss Mary J. -and W. W. Lemmon against Clark, administrator, in which they aver that they have accepted the succession of their mother and have renounced that of their father; alleging that the latter was indebted to the former in the sum of $12,625, with interest from date of death in 1863, being amount of paraphernal funds of their mother, received by him during marriage and not accounted for; and praying for a judgment against said administrator for said sum, with recognition of their legal mortgage on all the property of the father, dating from receipt by him of said funds

Averring that Thomas D. Miller, successor and subrogee of J. W. Burbridge & Co., claimed to be a creditor of the succession and had an interest, they made him a party defendant.

Miller resists the claims of plaintiffs on sundry special grounds:

1. He claims that they have accepted the succession of their father, by sundry acts, which we need not notice more particularly than to say that we agree with the judge a quo in the conclusion that the acts referred to were done under, and attended by, circumstances which negative the intent to accept, and that they are of a character which do not, of themselves and in absence of intention, necessarily involve an acceptance.

2. He pleads peremption of the mortgage claimed by plaintiffs.

The conclusion reached on the following point obviates the necessity ,of considering this question.

3. Miller urges that plaintiffs, through their tutrix, having gone into possession of the entire estate of W. W. Lemmon, including movables for beyond the value of their claim, and having failed to account for the same or for the revenues of the immovables, their claim as creditors of said estate is extinguished and cannot be urged against the sole remaining asset of the succession to the prejudice of other creditors, without first accounting for those which have been received by them.

Since the decision in the case of Soye vs. Price, 30 Ann. 93, this position is incontestable.

In that case, Mr. Justice Spencer, as the (írgan of the court, after a full review of the authorities, announced the following conclusions:

“ Notwithstanding the numerous authorities cited from our earlier reports, we think it is now well settled that minors (who are beneficiary heirs of necessity) may come lawfully into possession of the estate of their deceased parent without there having been any previous administration thereof. In 4 Ann. 561, Labranche vs. Trepagnier, it was held to be settled that ‘the natural tutor or tutrix, as such, has a right to administer the succession of the deceased spouse, unless the heirs of age or creditors require the appointment of an administrator.' This was but the affirmance of the same doctrine in effect held by this Court in 1 Ann. 239; 2 Ann. 462; 3 Ann. 502. In Monget vs. Penny, 7 Ann. 134, it was held that ‘ the creditors of the wife need not provoke the appointment of an administrator to her succession, but may sue the natural tutor of its beneficiary heirs as its representative. See also to same effect 5 Ann. 180; 10 Ann. 534; 14 Ann. 641. These cases clearly recognize the right of the natural tutor of minor heirs of the deceased spouse, in absence of opposition, to take possession of his estate in his capacity as tutor, and to administer it, as other property of his wards, for their benefit. The possession of the tutor is the possession of the minor and all Ms acts are in the name amd on behalf of his wards.

It seems almost needless to say that the use of the term natural tutor is merely an accident of the case, and that like principles apply to legal or other tutors. Indeed, in one of the cases quoted, the tutrix was the grandmother of the minors, as in the instant case. Succession of Story, 3 Ann. 502.

The cases quoted by counsel for plaintiffs are all cases in which the tutor held in the dual capacity of tutor and executor or administrator, and it was there held that the functions as tutor were subordinated to those of executor or administrator, in which latter capacity she directly represented the creditors. 4 La. 489. 20 Ann. 513; 1 Rob. 112; 30 Ann. 743.

But here the tutrix acted in that capacity alone, and under the doe-trine of Soye vs. Price, represented the minors only, held possession for them, and “ all her acts are in the name and on behalf of her wards.”

As representative of the beneficiary- heirs in possession, creditors of the succession had the right to sue them through her and to recover judgment, restricted, of course, in its operation to the property inherited by them. Whatever she has received and appropriated of that property is, quoad creditors, a reception and appropriation by the heirs, ff she has wronged the latter, they must look to her personally and to her bond; but, as against creditors, her acts-are their acts as far as they were within her lawful powers as tutrix.

■A-PPljing these principles -to the case before us, we find that these plaintiffs, through their tutrix, have received and possessed this entire estate since the death of their father in 1863. Its presumable revenues are not accounted for. Its movables, of the value of $21,000, have been consumed or have disappeared. And now, at the end of twenty years, when nothing remains except a tract of unconsumable land valued at $1600, they seek to oust the recourse of a bona fide and indulgent creditor of their father thereon by springing their own claims as creditors of his succession.

In face of tlieir entire failure to account for the revenues of the plantation and to show that their tutrix did not actually realize from the movables, for their benefit, a sum at least equal to the amount of their claim, their pretensions cannot be countenanced. Their demand must be rejected.

4, We have considered the demand of Miller to the effect that the other half of the six hundred and forty acres of land appearing on the original inventory should be included in the last inventory of W. W. Lemmon’s estate. The evidence satisfies us, as it did the judge a quo, that this land was given by the parents of Mrs. Lemmon to the latter during her marriage, and was received and held by her husband as her separate paraphernal, property; that, although the original act of donation was defective in form, yet we consider that it has been validated and confirmed by sundry acts within the contemplation of O. C. 2274, not necessary to be here particularized, but referred to in the learned opinion of£the?judge ad hoe. At all events, it did not lie in the mouth of W. W. Lemmon, or his administrator or creditors, to deny his wife’s title, since it clearly appears that he received and held the property as hers. Still less can prescription be invoked in favor of his sxrccession or the community.

He held ’the property avowedly as the paraphernal property of his wife and as her agent, as evidenced by numerous acts, but, particularly and conclusively, by his joining in an act of mortgage executed by his wife thereon as her separate paraphernal property.

The other relief asked by him must be denied, without prejudice to his right to demand satisfaction of his debt and sale of the property of the succession of W. W. Lemmon in the succession proceeding.

Tt is, therefore, ordered, adjudged and decreed, that the judgment appealed from bo annulled, avoided and reversed; and it is now ordered, adjudged and decreed, that the demand of plaintiffs herein be rejected: and that the recohventional demand of Thou. D. Miller be also rejected, without prejudice, to his right to provoke a sale of the property of the succession of W. W. Lemmon and satisfaction of his judgment by proper proceedings against, said succession — 'plaintiffs and appellees to pay costs in both courts.

DisseNtiNG Opinion.

Roché, J.

I dissent from that part of the opinion which recognizes the tract of land known as the “ Clark Tract,” as the separate'property of plaintiffs’ mother — Mrs. Lemmon. In my-opinion, that tract of land is community property, acquired under the prescription of thirty years.

The act of donation from Judge Chism to his daughter, Mrs. Lemmon, relied upon by plaintiffs, was not made in the form required by law (C. C. 1536), and could not make proof of the title claimed by Mrs. Lem-mon’s heirs.

The alleged ratification by means of the Act of-May 24,1853, does.not justify the conclusion drawn from it. The language hearing on this point reads as follows:

“Elizabeth Lemmon acknowledges to have received the following-slaves and sums of money during the lifetime of her father, to wit:” In the enumeration which follows, I find this item, which is the only statement referring to this subject-matter:
“Paid for Clark’s land, $2500.”

■ The donation ratified by that language is not of the tract of land in question, hut of a sum of money used towards the payment of the land. The result of that act may he to show a credit of $2500 for-paraphernal funds in behalf of Mrs. Lemmon against her husband — hut surely not to show a ratification of a donation of land. Under that construction, and the language of the act admits of no.other, the record-is barren of any proof of separate title in Mrs. Lemmon, and the possession 'of thirty years being the only element, of title, my conclusion is that the tract of land became, and should be treated as, community property. As-suck, it is affected with Miller’s mortgage.

Rehearing refused.


author: Manning, J.

text:
    No. 7989.
    Peter Montfort, for the use of his minor child, Josephine Montfort, vs. Peter Schmidt.
    A peremptory exception to the plaintiff’s %vant of capacity to sue cannot he pleaded after answer filed.
    Where a child of tender years is injured by running under a mule which is being driven at an ordinary trot, and without negligence by the driver, no recovery can bo had for dam* ages becaúso of injuries suffered by the child.
    APPEAL from tlie Fourth District Court for the Parish of Orleans. Houston, J.

      Brmighn, Buck & Binlcelspiel for Plaintiff and Appellant.

      Olías. F. Olaiborne for Defendant and Appellee.
   The opinion of the Court was delivered hy

Manning, J.

The action is hy a father for the, use and benefit of his minor child to recover damages for injuries received hy her through the fault and negligence of a minor son of the defendant.

The mother of the injured child had died before the.institution of the suit. No exception to the capacity of the plaintiff was made in the lower court, hut it is here pleaded hy way oí peremptory exception that the father as such cannot represent his minor child until and unless he has qualified as her tutor.

Pretermitting any expression of opinion whether this exception may be pleaded for the first time in this Court under art. 902 of the Code of Practice, it is sufficient to say that the privilege of pleading it was waived by filing an answer. Gibney v. Fitzsimmons, 5 Ann. 253. The case does not fall within the rule applied where there is a total want of any legal right whatever in the suitor, as was held in Brown v. Saul, 4 Mart. N. S. 434; Union Bank v. Dunn, 17 La. 234.

A cart driven hy the defendant’s'son was coming up Dauphine street toward Canal, and was on a tramway track, and was met by another cart near the intersection of St.,Ferdinand street. The child of the plaintiff, a girl of five and a half years, attempted to cross the street with a companion three years older. Slie had gone over half across when finding herself about to encounter the other cart she turned, and in the effort to escape, became entangled in the legs of the mule driven by the defendant’s son, and received severe and lasting injury. Her companion escaped.

The cart was not driven fast or in a reckless manner. The mule was at an ordinary trot, or as the principal witness says neither very fast nor very slow. He saw tlie whole affair and says the driver could not have stopped in time to have prevented the accident, and this inability was not on account of reckless or even negligent driving, but because the child in its perturbation had run headlong under the mule.

The occurrence is lamentable, for the child is in all probability permanently disabled, but the contributory negligence is apparent. A child of such tender years is constantly liable to injury if allowed to run unattended in the streets. It is true this particular street is not a crowded thoroughfare, bnt a tramway car passes and increases the precaution at all times necessary. The effort to fasten upon the driver, a lad of eighteen years, negligence by carelessness and inattention fails. The older girl, more self possessed, crossed safely, and the younger received the injury because she turned and in her fright ran under the mule. We do not think a recovery can be had under those circumstances. Hubener v. N. O. & C. R. Co., 23 Ann. 492; Klein v. Cres. C. R. Co., Ibid, 729; Sherman and Redfield on Negligence, § 48, 50; 2 Thompson on Negligence, § 1129, 1140.

Tlie verdict of the jury seems to have recognized this condition of tilings, since they gave only one dollar as damages.

It is therefore ordered and decreed that the verdict of the jury is set aside, the judgment of the lower court thereon is avoided and annulled, and that there be now judgment in favor of the defendant rejecting the plaintiff’s demand and for costs.


author: BI5K.UPDIÍZ, C. J.

text:
    No. 9096.
    J. W. Demarest vs. W. J. Beirne.
    An appeal lies from tlie ruling of a district judge increasing the amount previously fixed for tlie bond to be furnished for a devolutive appeal, although the matter he within the discretion of such judge.
    The main demand being appealable all orders and decrees made in the suit, whether before or after judgment, are revisahle by the appellate court.
    Such ruling is not a final judgment requiring signature. It is a mere iuterlocutory order which might work irreparable injury. *
    Piling of a bond in accordance with an order of appeal does not divest the jurisdiction of the inferior court over questions affecting the sufficiency of the bond; and it matters not whether the insufficiency result from an error of the judge or from default of a party.
    ■Where the inferior court ha3 inadvertently fixed the bond for a devolutive appeal at a sum less than the actual costs, it may, on discovery of the error, amend the order and require sufficient security.

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

      Singleton, Browne á O/wate for Plaintiff and Appellee.

      W S. 'Benedict and A. J. Mwphy for Defendant and Appellant.
   Ox Motiox to Dismiss.

The opinion of the Court was delivered l>y

BI5K.UPDIÍZ, C. J.

The appellee asks a dismissal of this appeal for the reasons:

That the matter involved is unappealable, as the decision of such a case is within the exclusive discretion of the district judge and the sum is less than $1000.

That the judgment complained of, if a definitive judgment, is not signed and, therefore, inchoate and if an interlocutory order, works no irreparable injury.

The judgment in question was rendered after the decision of the cause on its merits. It increases the amount previously fixed by the court, as that of the bond to be furnished, on an order allowing a devo-lutive appeal.

The appeal had been granted on the fixing of a bond for $200 j but subsequently, on a rule by plaintiff, the court amended the order by increasing the amount of the bond to $900, directing the appellant to furnish it within a given delay, and providing, in default, that the appeal shall be dismissed.

The defendant in the case and in the rule, then obtained a suspen-sive appeal from this decree, on his giving a bond, which was furnished.

It is this appeal which the plaintiff now seeks to have dismissed, for the reasons stated.

It cannot be denied that the fixing of the amount of a bond to be furnished for a devolutive appeal is a matter within the discretion of the judge a quo; but that discretion, like all others with which judicial officers are vested, must necessarily be a legal and not au arbitrary discretion. Ijp case of abuse of that power, the action of the lower judge in an appealable case, is revisable by the appellate court, when presented in a proper form, just as it is reviewable in cases in which the sufficiency of bonds and of sureties is primarily passed upon. Where it is found that the power has been improperly exercised, the Supreme Court can correct the error and afford adequate relief.

In the recent case of the State ex rel. Müller, ante p. 189, we had occasion to consider a ldndred question and to review the action of a district judge, fixing, as the amount of a bond of a devolutive appeal, a sum which, at first blush, appeared to be excessive ; but, as there were no data in the record, to enable us to state what the amount should have been fixed at, we expounded tho rule of law for the g-uidance of lower courts in such matters and left the district court free to reconsider Ms decree and to take proper action.

We, therefore, have the power to review such decrees by courts a qua and the exercise of that power can consequently be lawfully invoked at our hands.

It is not correct to say that the matter is not appealable, because the amount “involved” is less than $1000.

There is no dispute that the main suit is appealable. Being such, all orders therein made, are necessarily appealable, as accessaries follow the principal, particularly such decrees as might defeat the very right of appeal.

The order is not to be viewed as a final judgment. It is not, therefore, to be signed, as definitive judgments, which pass upon the merits of a controversy, are required to be.

It is simply an interlocutory aecree which remains under the control of the district judge and which, should it remain unaltered and not complied with, might cause the appellant an irreparable injury, which would consist in the dismissal of his appeal.

The motion to dismiss is without merit and is denied, with costs.

On the Mekxts.

Defendant obtained an order for a devolutive appeal from a judgment on tho merits of this cause on a bond for costs fixed by the order at two hundred dollars.

Plaintiff, alleging that the costs far exceeded the amount, filed a rule to amend the order of appeal by increasing the amount of the bond, and, in default of the additional security being furnished by defendant, to dismiss his appeal.

The judge a quo, after hearing the parties and after appointing an expert whose report exhibited costs to the amount of nearly, nine hundred dollars, rendered judgment amending the order of appéalso as to fix the bond at nine hundred dollars, and requiring, the defendant to comply therewith within five days, under penalty of dismissal of his appeal in case of default.

From this judgment the present appeal is taken.

To the general rule that, after compliance with the order of appeal by filing bond, the jurisdiction of this Court attaches and that of the lower court is divested, there exists the well recognized exception that the jurisdiction of the latter continues for the purpose of inquiring into and determining the sufficiency of the bond. State ex rel. Fairex vs. Judge, 33 Ann. 928; Dumas vs. Mary, 29 Ann. 808.

It is perfectly clear that a party is not entitled to a devolutive appeal under the law, without furnishing a bond for costs.

If the judge of the inferior court has improvidently fixed the amount of the bond at a sum less than the costs and may not amend the same after discovery of his error, we are at a loss to conceive how such error could be remedied. Certainly no proceeding in this Court could accomplish the result, since, without inquiring into facts dehors the record, we could not obtain the information on which to base our action.

Thus the anomaly would be presented of a party enjoying a right without performing the conditions upon which alone the law grants it to him.

In matters of this kind, where the duties of the judge are defined by law, he is bound to obey the law, and if he discovers that he has inadvertently departed from its injunctions, he is not precluded from correcting his error.

It matters not whether the bond is insufficient through mistake of the judge or default of the party, the law must be complied with, and it lies within the province of inferior courts to see that parties who appeal to this Court shall comply with the legal conditions precedent to the exercise of such right.

As to that portion of the order appealed from which purports to dismiss the appeal already in this Court in case of non-compliance within the stipulated delay, we shall treat that as mere surplusage, being a matter necessarily for the action of this Court, when failure to comply with such order shall be properly brought to our notice.

Judgment affirmed.

Rehearing refused.