author: Nxcholls, C. J.

text:
    No. 11,957.
    State ex rel. Reynolds & Henry Construction Company vs. W. A. O’Kelly, Tax Collector.
    Where, after the Supreme Court, in a mandamus proceeding, directed against the Common Council of a municipal corporation, has remanded the case, with instructions to it “ to levy a tax in favor of rel itor upon an assessment upon the tax rolls of 1889, hut in case the limit of taxation had been reached during that year, or there should be any other reason why the full amount of the tax so ordered assessed could not be assessed and col ected on the rolls of that year, that the tax should be levied on the rolls of 1894 ” — the Common Council underthe decree passed an ordinance directing the collection of the tax upon, the roll of 1894, and set on foot the execution of its ordinance through the tax collector of the town — it can not of its own motion (on the ground that it acted in error) repeal the ordinance and check the collection of the tax by the tax collector, though it simultaneously parses an ordinance directing the collection of the tax upon the assessment roll of 1889.

      The decree did not send the case back for the exercise of any original right in the Common Council, but for the performance of a specially imposed duty, Both Its right and its duty in respect to the matter for which the cause was remanded went no further than the decree, which was at once the source and measure of its right and its duty. In taking action the Council was not acting in the course of its ordinary functions asa common council, but as a special agency selected by the court to do a particular act.
    On Reheabing.
    The Supreme Court has supervision and control over the execution pf its own judgment. If the original action taken by the Council had not been, in the opinion of the court, in conformity to its decree, it would, by supersedeas, have set the Councilright. Cox* Executors vs. Thomas, 11 La. 369; Lovelace vs. Taylor, 6 Rob. 92. And so long after that first action was taken, as it received no instructions to change it, the Council was powerless of itself to do so. It has no legal interest in the matter further than to comply with the order of the court.
    Where the tax collector has, under instructions from the city council, discontinued the collection of the tax under the first ordinance, he may be ordered to proceed by a direct order of court in a mandamus proceeding directed against him, without the necessity of making the common council a party.
    APPEAL from the Fifth Judicial District Court for the Parish of Ouachita. Potts, J.

      O. J. Benton and E. T. Lamhin for Plaintiffs, Appellees.

      Thomas 0. Benton, City Attorney, for Defendant, Appellant.
    Argued and submitted November 19, 1895.
    Opinion handed down December 2, 1895.
    Rehearing refused January 6, 1896.
    In Reynolds & Henry Construction Company vs. the Mayor and Council of the city of Monroe, reported in 47 An. 1289, this court affirmed the judgment of the lower court, which had decreed that relators (the Reynolds & Henry Construction Company) were entitled to a tax upon all the taxable property situated within the corporate limits of the city of Monroe, to be levied on the assessment roll of 1889, with the following amendment:

      * * * u £fje judgment appealed from be amended so as to order an assessment of a tax of five mills on the rolls of the year 1889, and in case the limit of taxation should have been reached that year, or that if there is any other reason why the full amount of the tax so ordered assessed can not be assessed, in is ordered that an assessment of a five-mill tax be made on the rolls of 1894.”

    On the 1st of July the city of Monroe adopted an ordinance, in which it was'declared that in execution of the decree above stated, a tax of five mills on all the taxable property situated in the city of Monroe was thereby levied to be assessed on the tax roll of 1894, and directed the tax collector to proceed with its collection. The collector gave legal notices by publication, extended the tax on the city roll, and received taxes of those who paid until the 29th of August, when the Oity Oouncil, in special session, repealed the ordinance of July 1, and ordered the collector to proceed no further with the collection of the tax it had levied. At the same meeting an ordinance was adopted levying a five-mill tax in favor of relators, on the roll of 1889, and directing the tax collector to proceed with its collection. Relators thereupon demanded of the tax collector to proceed with the collection of the tax under the ordinance of July 1. He refused, and an application for a mandamus against the tax collector was made.
    Relators claim that when the ordinance of July 1 was enacted, it was enacted in compliance with a decree of the Supreme Court, and the subject; matter passed entirely beyond the power, control and jurisdiction of the Common Council; that the ordinance was irrepealable; that the repealing ordinance was void and in contempt of the authority of the Supreme Court. That the collection of the tax by the tax collector, in accordance with a decree of the court, was a mere ministerial duty, and that he could be compelled by mandamus to perform it, the void repealing ordinance to the contrary notwithstanding; that the writ of mandamus is the substitute for the ordinary process of execution to enforce judgment against a municipal corporation or county; that such a judgment can not be executed in any other way; that when the tax was levied by the municipality to which the writ had been directed and in obedience thereto, it becomes the property of the person in whose favor it has been levied, and that he has a vested right in the premises which can not be affected by subsequent legislation and repeal. In support of these positions relators cite the case of Riggs vs. Johnson County, 6 Wall; 166-198; the case of Labette County Commissioners vs. Moulton, 112 U. S. 223; 1 Black, 360; 9 Branch, 43-292; 21 Cal. 116; 1 Mit. (Ky.) 174; 12 Wis. 67.
    The contention of defendant, that they should have proceeded against the City Council and not against the tax collector, proceeds upon the erroneous idea that the City Council was a party to the contract between relators and the taxpayers of the city of Monroe, and that they had been proceeded against in the litigation as the representative of the taxpayers; whereas, on the contrary, they do not in this matter represent the taxpayers, but have only been proceeded against as one of the instruments provided by the law, through which the contract with the taxpayers is to be enforced. Under Act No. 35 of 1886, in executing the powers conferred upon the taxpayers (not the City Council) to incur an indebtedness in aid of public works, the City Council is charged with the performance of the following purely ministerial duties, all of which are enforceable by mandamus:

    1. Considering and passing upon the petition of taxpayers asking for an election.
    2. Ordering or refusing to order an election, as the petition may or may not posses the legal requirements.
    3. Proclaiming the result of the election.
    4. Levying the tax pursuant to the result of the election, if favorable to the tax.
    Relators maintain that in the performance of these duties, the law confers no discretion whatever. That in the execution of this law, the City Council is pro hae vice an agency of the State, utilized for this purpose. The action taken is in no sense the action of the municipal corporation, and it is subject to no responsibility — its officers being merely utilized by the State, to effectuate the will of the taxpayers in a matter upon which the law authorized them to express it, and as such are necessary only to compel the performance of purely ministerial duties devolving upon them by statutes of the State.
    The application is resisted by defendant on the ground sustained by the District Court, that being simply an officer of the City Council he is bound to obey its orders alone and he insists that if the writ should be directed to any one, it should be against the City Council, and the fact that that body is not a party to this proceeding at all is fatal to it. He contends, if the legality of the proceedings of the Common Council can be considered in this application for a man~ damus, that both the facts and the law justified their course. That the action of the 1st of Suly was before the decree of the Supreme Court had become final, and executory, and that it was not of such a character that it could not be revoked or rescinded incase of error —that that action was made in error. That they had a discretionary power vested in them by the mandate of the Supreme Court, and this discretion, once vested, the courts had no control or power over it, citing American and English Encyclopedia of Law, Vol. 15, p. 1046, and authorities; that the Mayor and City Council in the exercise of their legislative powers could have done nothing less than act as they did. That the tax levied in 1889 amounted to ten mills and the tax already levied in 1894 amounted to fifteen mills.
    From the judgment against them, refusing the mandamus, the re-lators appealed.
   The opinion of the court was delivered by

Nxcholls, C. J.

The first feature of the proceedings below which is to be observed is that they are not original, extra-judicial proceedings, but proceedings taken in the matter of the execution o a final judgment of this court rendered in the matter of a mandamus ordered. Art. 629 of the Code of Practice declares that it is for the court, whether appellate or inferior, which has rendered the judgment to take cognizance of the manner of its execution when the proper manner of executing it is to be determined. It is unquestionably our duty to se,e that the mandamus which issued in the last branch of this ease, when before us, be obeyed. If by the decree of this court the levying of a tax of five mills on the assessment of 1894 had been ordered, and the Common Council had remained perfectly inactive in the premises, it is clear that judicial proceedings would have been taken to enforce the decree of the Supreme Court. The remedy for this inaction would not have been the vain renewal of mandamus proceedings, but proceedings for contempt of court.

The same result would have followed if the council, after initiating proceedings for the purpose of execution by the employment of a sub-agency (rendered necessary from the fact that the Common Council itself could not do the particular work needed) had, after steps had been taken by this sub-agent to carry out the decree of this court, given peremptory orders to him to cease all further action. In such case the Council would have been as liable to contempt proceedings as if they had not moved at all. Should such' proceedings have taken place, joining as a party thereto the tax collector (who, we will assume, had ceased operations under orders of the council), the latter would not have been so joined for the purpose of having the council in this new proceeding be decreed to revoke-its staying order to him, and to instruct him through a new order to proceed under the original ordinance, but for the purpose of receiving' from this court itself a direct order to proceed. The Council would not be before the court for the purpose of receiving orders to revoke its staying order, but for that of being punished for contempt.

It is argued that the decree of this court was not absolute — that it-left open, subject to the exercise of the discretion of the Common Council, whether the tax should be levied on the tax of 1889, or the-the tax of 1394, and that, having that discretion, neither the Council nor any one acting under its direct orders, could be controlled in the-exercise of that discretion. The court in this instance directed the Council to ascertain certain facts, and on such ascertainment to have a tax levied on the assessment of 1889 or 1894, as those facts would justify. The Council acted upon the particular subject matter thus referred to them, levied a tax of five mills upon the assessment rolls of 1894, and set on foot the machinery necessary for the collection of the tax. The sole matter left uncertain by our decree was thus fixed, and became thereafter substantially written into the decree. If it could be said that there was a discretion conferred upon the Council in the selection of the particular years upon which the tax should be levied, that body had acted upon that discretion, performed the special duty with which it was charged, and there was no attempt to control it in the exercise of its original discretion. The question is whether, after having exercised the power or duty entrusted to it, it can subsequently reverse its action and stay proceedings because it may suppose that its duty was incorrectly performed (5 Cal. 627). We do not think it was charged with the duty of correcting its own mistakes, if mistakes it made. There would be no end to litigation if such a doctrine were true. When the Council levied the tax it was ordered to levy, the subject matter passed out-•of its hands. It had no further legal interest in the premises. It had performed the specific duty imposed upon it, and its connection with the levying of the tax ceased. Darcantel et al. vs. Slaughterhouse Co. et als., 44 An. 644; 20 Atlantic Reporter, 61.

We are of the opinion that the judgment appealed from is erroneous.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed, and it is now ordered and decreed that a writ of mandamus issue, directed to W. A. O’Kelly, commanding him to proceed with the collection of the tax ordered to be levied by this court in the judgment rendered by it on the 17th of June, 1895, in the matter of Reynolds & Henry Construction Company vs. The Mayor and City .Council of Monroe, No. 11,835, in accordance with the decree of this court, and the ordinance of the City Council of the City of Monroe, passed on the first day of July, 1895.

It is further ordered that appellee pay the costs of both courts.

On Rehearing.

The Council is in error in respect to the position it occupied after .our decree was sent back to the District Court. Our decree did not send the case back for the exercise of any original right in the Council, but for the performance of a specially imposed duty. Both its right (if such it may be styled) in respect to the subject matter for which the cause was remanded, and its duty in regard thereto, went no further back than the decree of this court. That decree was the source and measure, both of its right and duty. In taking .action under the decree, the Council was not acting in the course of its ordinary function as a Common Council, but as a special agency selected by the court to do a particular act.

The Supreme Court has supervision and control over the execution of its own judgment. If the original action taken by the Council on the remanding of the case had not been, in the opinion of the court, in conformity to its provisions, it would, by super-■scedeas, have set the Council right. (Cox’ Executors vs. Thomas, 11 La. 369; Lovelace vs. Taylor, 6 Rob. 92.) And so long after that first action was taken, as it received no instructions from us to change ■■its course, it was powerless of itself to change that action. It has -no legal interest in this matter further than to comply with the order •of this court. Refused.


source: Caselaw Access Project

author: McEnery, J.

license: Public Domain

text:
    No. 11,861.
    The State of Louisiana ex rel. Citizens Bank of Louisiana vs. Board of Assessors et als.
    When the Citizens Bank subjects property to its ownership,which was mortgaged to secure stock subscriptions, the property is not exempt from taxation as part of the capital stock of the bank.
    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      Henry Denis and Branch K. Miller, for Plaintiff, Appellee.

      Walter H. Rogers, as amicus curice, submitted a brief.

      Richard Lyons, for Defendants, Appellants.
    Argued and submitted November 8, 1895.
    Opinion handed down December 2, 1895.
    Rehearing refused January 6, 1896.
   The opinion of the court was delivered by

McEnery, J.

The Citizens Bank, in pursuance of a provision in its charter, demands that certain assessments against its property be canceled.

The defendant Board of Assessors contend that the same issue is now pending before the Circuit Court of the United States between the same parties and pleads lis pendens. The board urges also as a defence that the Act No. 40 of 1874, granting an extension to the bank of its charter, is unconstitutional, being in violation of the Constitution of 1868, and that the bank by voluntarily adopting the provisions of Act 79 of 1880 brought the charter under the provisions of the Constitution of 1879, in which case there could be-no exemption of the capital of the bank. It will be unnecessary to notice these defences, nor will it be necessary to discuss the plea of res judicata pleaded by the bank. The cases to which it refers in support of the plea involved the furniture in the banking house, the banking house property and the shares of stock of the corporation. The property upon which it was attempted to assess taxes in those suits is different from that in the instant ease, and the issues are es* sentially different. The property which it is attempting to relieve from taxation is certain real estate specially mortgaged to the bank to secure the payment of 854 shares of the capital stock of the bank. The bank foreclosed the mortgage and purchased the property in order to make the debt.

The charter of the bank has been so often discussed and the manner of the formation of its capital by subscription to stock and its security by special mortgage so universally understood that we are relieved from the labor of a review of the charter, and again Stating the rights of the bank under its special mortgage to secure stock subscriptions.

It is only necessary to say that under the supplemental and amendatory Act of 1836, Sec. 4, only the capital of the bank is exempt from taxation. Citizens Bank vs. Bouny, Tax Collector, 32 An. 239.

The question for solution is: The stock for which the special mortgage was given to secure, being exempt, does the purchase of the property by the bank substitute the mortgaged property for stock, thus making it a part of the capital of the bank, exempting it from taxation?

The statement of the proposition we think carries with it a negative answer. The shares of stock and the property mortgaged to secure it are distinct and different things. The property while in possession of the mortgagor was subject to taxation, while the shares of stock issued by the bank were exempt. The charter of the bank by its very terms and recitals never contemplated that immovable property should form any part of the banking capital.

It never contemplated that the bank should become the owner of the property in default of paying the mortgage — otherwise there would have been .i different contract with the stock subscriber.

The bank, like any other mortgage creditor, could only become the owner of f he property in the contingency of no one bidding more for it than the creditor. In relation to this mortgaged property it stands in no more favorable relation than if it went into the market as a speculator and purchased, property. If it should do so and become the owner of property, we do not think it would have the assurance, under its present charter, to ask relief from taxation.

The debt of the bank, secured by special mortgage, gives it only a right to have the property judicially sold to pay the debt. It is unfortunate if the security is inadequate, and no purchaser can be found to bid the amount of the debt. The bank is thus forced to purchase the property in certain instances, but we fail to see wherein the mortgaged property, by the purchase, becomes a part of the capital of the bank. The composition of the capital of the bank is stated in its charter, and there is no reference whatever to immovable property being a part of the capital stock. Such being the case the purchase of property mortgaged to secure a part of its capital certainly can not give this specified property a new character.

In its broadest meaning capital signifies actual estate, whether in money or property owned by an individual or corporation. 23 N. Y. 192.

It is the fund upon which a corporation transacts business which is liable to its creditors, and in case of insolvency, passes to a receiver. 28 Barbour, 320.

The Citizens Bank does not transact its business on an investment in the purchase of immovable property. Its capital is fixed by its charter.

The capital of the ¿bank is composed of loans. These loans are granted and secured byjmortgages, which mortgages shall form the basis of and stand j'as full security for the loans and the interest thereon, which the directors are authorized to make as forming the capital of said bank. Sections 1 and 3 original charter, Act of 1833.

In the charter the word capital means capital stock, the amount of capital designated by the charter, and not the value of the property of the corporation. 30 Ark. 693.

Stock in corporations is personal property. The capital of the bank is composed exclusively of personal property. The mortgage' is only an accessory obligation to enforce the payment of the principal one, and we can not perceive in what manner, when subjected to --(KriWESKn. the ownership of the bank in the enforcement of the payment of its debt, it takes the place of and stands in lieu of the debt, free from the privileges accorded by lawlto the debt. If the mortgaged property sells for enough to pay the^debt, it is, of course, extinguished. If for less, then there is still anjobligation resting on the debtor to pay the balance not realized.

If the mortgaged property is to stand in the stead of the principal obligation it must dogso in its entirety. What is to become of the unpaid balance as to taxation? We would in such a case be confronted with the anomaly of the mortgaged property being exempt from the whole amount of the subscription and the unpaid subscriptions also exempt.

This case might have been disposed of by the assertion that the property, upon which the special mortgage was given to secure the payment of the stock subscription, was not and is not exempt from taxation. Can the mere act of purchasing the property by the bank give it a status, which it did not have before?

The proposition that the mortgaged property, when subjected to the ownership of the bank, does not take the place, as capital of the bank, of the capital stock it was intended to secure, is so plain to us that we have had difficulty in framing an argument to sustain such a self-evident truth. Thi3 is the view evidently taken by defendants, as they have failed to file a brief, and we have looked in vain into relator’s brief for any substantial .reasons against the position assumed by us, unless, as we infer, the contention is that the exemption in the original charter is still in force, and that all the property of the bank is exempt from taxation. But even in this contingency, we would be inclined to the opinion that the property referred to was only that used in immediate connection with the banking business of the corporation, such as its banking building, furniture, etc., which formed the subject matter of the dispute in the cases pleaded as res judicata by relators.

The judgment appealed from is annulled, avoided and reversed, and it is now ordered that the relief prayed for be denied, and the demand of plaintiff be rejected, and the rule granted discharged.

Miller, J., recused.

On Application nor a Rehearing.

We have carefully considered the reason urged for a rehearing in this ease. On a re-examination of the questions presented we are more than confirmed in the correctness of the views expressed in the opinion.

We refrained from stating the effects as to the taxation of the bank’s capital, in consequence of Act 79 of 1880. We now do the same because we think it unnecessary to do so. We propose to let this question, as to the exemption of the bank’s capital, rest on the decisions heretofore rendered.

A written acceptance of the act was filed by the bank with the Secretary of State.

Section 4 of the act reads that “this act shall not be binding, or confer any right upon the bank unless accepted within twelve months from the date of this act, and under the conditions prescribed in Arts. 234 and 237 of the Oonstitution. Such acceptance to be manifested by the bank in writing, and filed in the office of the Secretary of State.”

That the act was for the benefit of the corporation is made certain by the acceptance of the benefit of the act and the text of the same. Art. 234 forbids the amending or the altering of the charter of an existing corporation for the benefit of such corporation, except upon’ the condition that such corporation shall thereafter hold its charter,, subject to the provisions of the Constitution of 1879.

Article 237, which the bank accepted as governing its charter, provides that “no corporation shall engage in any business other than that expressly authorized in its charter, or incidental thereto, nor shall it take or hold any real estate for a longer period than ten years, except such as may be necessary and proper for its legitimate business or purpose.”

The acceptance of the benefits of the act bring this corporation under the provisions of the above article.

It is restricted to the business of banking. It can not for a longer period than ten years hold real estate not essential to the conducting of its banking operations. To hold that' the property purchased is a part of the banking capital would, in effect, be to repudiate this article of the Constitution and to nullify the bank’s acceptance of the same.

If it be a part of the banking capital it can not be diminished in ten years; otherwise the corporation would probably go out of existence by the exhaustion of its capital. The cultivation or the leasing of the property purchased — the only way of administering it without loss, is not a part of the business operations of the bank, nor is it incidental thereto. We think the Citizens Bank has heretofore obtained all that it is entitled to, the exemption from taxation of its capital proper and the real estate necessary for the carrying on its legitimate business or purposes.


author: WateiNS, J.

text:
    No. 11,859.
    Hymes Abes vs. Leopold Levy.
    until there has been a sale, or something that is equivalent o£ real property of a community, the interest of the heirs of the deceased remains, and the survivor is without power, by any convention of his own, to make a full title to another ■
    Probate proceedings, contradictorily taken between the heirs of the deceased wife and the surviving- husband, to ascertain the value of the heir’s net interest in the community property, and to fix the basis of the usufructuary’s bond, can not operate as a substitute for a sale of their interest therein.
    A PPEAL from the Civil District Court for the Parish of Orleans. ^ King, J.

      E. Howard MeCaleb for Plaintiff, Appellant.

      John Bassich, Jr,, for Defendant, Appellee.
    Argued and submitted November 19, 1895.
    Opinion handed down January 6, 1896.
   The opinion of the court was delivered by

WateiNS, J.

This suit has for object to compel defendant to accept title to the property known and designated as No. 84 Prytania street (old number), of the city of New Orleans, with improvements ; and, also to compel specific performance of the contract of sale “ of all the furniture in said premises,” less certain excepted articles which are enumerated, the price of the real estate being fixed at seven thousand five hundred dollars, and the movables at one thousand five hundred dollars.

Plaintiff alleges that he is the owner of the entire property, and charges that defendant, without any just or sufficient cause, neglects and refuses to accept title.

The defences to this action are accurately stated in the defendant’s brief, and we make the following extract therefrom, to-wit:

“ After general denial defendant answered denying that plaintiff had a good and valid title to the property which he agreed to purchase; that same was acquired during existence of the community between plaintiff and his deceased wife, Julia Sonenberg, and that the interest of the latter’s heirs in said property was never divested; that of the six persons plaintiff pretends are the heirs of his wife, he, plaintiff, acquired by notarial act before Edgar M. Oahn, on February 17, 1890, what purported to be one-sixth of the one-half interest of his wife, from one of the pretended heirs, Mary Ehrlich, but that she was never recognized as heir in any proceeding; that Hymes Abes never acquired the ownership to the real property, No. 84 Prytania street, of the other five pretended heirs to his wife named Esther Sonenberg, Widow Gershon Szteinlauf, Grina Sonenberg, Widow Piesach Michowski, Sura Sonenberg, wife of Abramson of Bereck Goldflam, Ruchla Sonenberg, divorced wife of Schweir Aierwas, and Golda Sonenberg and Iser Sonenberg, as representing their father; that if said parties are heirs (which is denied), thee® parte order under which they were recognized is a nullity because rendered upon illegal evidence, upon a document purporting to be a procuration and sale combined, to one Nichodeus Ehrlich, before Markweir, notary in Russia, assigning and transferring to him one-half of their one-sixth interest, and authorizing him (Ehrlich) to represent them and have them put in possession as heirs to Mrs. Julia Abes; that said document was a nullity because not in conformity to the laws of Louisiana nor of Russia, as the same was a translation from the Russian, was not signed by said parties, who are therein stated to be unable to read and write, but was signed for them at their personal prayer, and that same was executed by Ruchla Sonenberg, as the divorced wife of Schweir Aierwas, without the authorization of her husband and without proof of divorce excepting her assertion to that effect; and that said ox parte order rendered by Oivil District Court, Division D, was for that neason an .■absolute nullity and vested nothing in said parties or their transferees, and praying for a judgment annulling the entire agreement ,of sale dated September 28, 1894.”

■On the trial of the cause there was an exception or plea of res adjudioata tendered on part of .the plaintiff, and urged as the basis ■of objection to the admission of certain testimony of defendant attacking a judgment recognizing the capacity of certain persons as legal heirs — the plea being founded upon a judgment of Division D of the Civil District Court of the parish of Orleans. This objection having been overruled and the testimony admitted, plaintiff reserved a bill of exceptions, and the judge pronounced judgment rejecting th.e plaintiff’s demands, and he has appealed.

The judgment annulled the agreement and contract of sale which was entered into between the plaintiff and defendant on the 28th of September, 1894, for the conveyance of the property in question, and absolved the defendant from complying with his agreement.

The plaintiff rests his case upon the legal proposition that, in a suit brought by the heirs of a deceased wife against the surviving husband for a’settlement of the matrimonial community, wherein judgment has been rendered decreeing settlement and fixing the amount due by the husband in a sum of money which is subject to his usufruct, and this judgment has been paid and bond given for the money left in his charge as usufructuary, the interest of the heirs in the real estate acquired during the existence of the community is completely divested.

Further, that a judgment recognizing the capacity of legal heirs can not be attacked collaterally.

That a judgment of a competent court, placing heirs in possession of an estate or inheritance, rendered contradictorily with a party in interest, constitutes res adjudicata and can not be collaterally attacked, may be at once accepted as a well-settled proposition of law which can not be controverted.

Such a judgment fixes the status of the heirs, and it furnishes full proof, until set aside in some other judicial proceedings which are instituted for its revocation, and to which they are made parties.

Accepting this theory we must look into the record and judgment placing the heirs of the plaintiff’s deceased wife in possession, and therefrom ascertain what light they furnish us in respect to this controversy.

It appears that Hymes Abes married Julia Sonenberg and that she died in the city of New Orleans, La., on the 30th of June, 1889, leaving some separate property, an undivided one-half interest in the community between herself and her husband, and six children surviving; that an inventory taken showsJsthat the. value of the property of the community, personal and real, aggregated about thirty thousand dollars, subject to the payment of debts — one item of which is the property in suit, and described as having been purchased during his marriage.

It appears that Hymes Abes, the plaintiff, appeared by petition in the succession of his deceased wife, Julia Abes, while it was under administration by Mrs. Mary Erlich, and asked to “ be placed in possession in indivisión as usufructuary of (her) one-half of the community shown and described in the inventory,” etc., alleging that Mrs. Erlich had renounced and abandoned the administration.

And, in conformity to his application and prayer, there was a judgment placing the petitioner “in possession in indivisión as usufructuary of his deceased wife Julia Abes’ half of the community shown and described in the inventory on ñle herein.” This judgment bearing date April 17, 1890.

On the 25th of February, 1891, several petitioners appeared in court, in the aforesaid succession, alleging themselves to be “ the sisters and representatives of the brother of Julia, wife of Heinrichs Abes, who lately died in New Orleans, are her nearest surviving heirs, and are entitled to take ñve-sixths of the estate of said deceased,” etc. And their prayer was for judgment recognizing them as heirs of said deceased and put in possession, each of 'one undivided one-sixth interest of her estate, in full ownership as to the separate estate, and one undivided one-half interest in the community property between the deceased and her husband, “ subject to the usufruct of said Abes, reserving to said heirs the right of demanding bond of the usufructuary as provided by law,” etc.

And, on the same date, a judgment was duly rendered, recognizing petitioners as heirs of the deceased, each for one-sixth of her estate, and sent into possession of her estate, separate as well as. community, subject to the usufruct of Abes, and reserving their right, to demand bond of said usufructuary according to law.

Thus it was that the surviving husband went into possession as usufructuary, and the heirs as owners, subject to his usufruct,, went into possession of her property, separate and community.

On the 14th of May following, the aforesaid heirs went into court,, resting on the aforesaid judgment recognizing them and placing, them in possession of their inheritance, and made the following representations, viz.:

That they were entitled to have and recover from Hymes Abes “ the amount of the separate estate belonging to the said deceased Julia Sonenberg, and to have the community existing lately between the said deceased and the said Abes ascertained and settled; and. should he demand and be entitled to the usufruct of the part of the-community estate belonging to the deceased, then your petitioners, are entitled to require and receive sufficient security according to, law.”

Their prayer conforms to the petition.

H. Abes was duly cited, and, amongst other things in his answer, he said that he was willing and ready to pay over to the plaintiffs five-sixths of the separate estate, after debts and charges against the deceased; and that he is willing and ready to furnish security as usufructuary during his natural life for five-sixths of one-half of the community in which the deceased was interested “ after deducting debts and charges due by said community.”

He further avers “ that the separate estate and community should be adjusted and fixed according to law.”

That he “ has purchased all the rights, title and interest of one of the heirs in and to the separate estate and community property left by his said wife * * * and only five-sixths thereof remains due to the other heirs.”

Wherefore he prays that the separate and community property “ be adjusted and fixed, and after ascertaining the respective rights and interests of the parties, and after deducting the debts and charges due by the separate estate and community, that respondent be authorized to pay over to plaintiffs five-sixths (5-6) of the separate estate of the said deceased, Julia Sonenberg, in full discharge and extinguishment of all their rights, titles and interest as heirs in and to the succession of said deceased, and that respondent be also authorized to give bond, with good and solvent security, to the satisfaction of the court, as usufructuary of five-sixths of the community property belonging to the community which existed between said deceased, and respondent, after deducting debts and charges, said security to be for the estimated value of the property subject to the respondent’s usufruct.

Upon the issues thus joined there was a judgment in favor of the heirs “ for five-sixths of the separate estate of Julia Sonenberg in the aggregate sum of five thousand two hundred and thirteen dollars and thirty cents, same being in full settlement of all claims, dues and demands of said plaintiffs against defendant in the separate estate of Julia Socenberg,” etc.

And it is further decreed “ that the community of acquits and gains which existed between the said Sonenberg, deceased, and H. Abes, her husband, be settled and fixed at the sum of two thousand five hundred and eighty-seven dollars, due to the said plaintiffs, subject to the usufruct of Hymes Abes, her surviving husband, during his natural life.”

And it is furbher decreed “ that the said Hymes Abes do furnish good and sufficient surety according to law, as usufructuary of said community property in the said sum of two thousand five hundred and eighty-seven dollars,” etc.

The foregoing is a full and complete analysis of the records of the succession of Julia Sonenberg, deceased, and we are of opinion that it fails to support the contention of the plaintiff. They only evidence the recognition and placing the heirs in possession; the recognition of the surviving husband’s right of usufruct and placing him in possession as such; and the ascertainment of the net interest of the heirs in the separate estate of the deceased, as well as that in the' community property.

Of the former he made payment to the heirs, and for the amount of the latter he gave bond.

Beyond this no steps have been taken looking to the partition of the community property, real or personal. It remains in statu quo and in a state of indivisión, notwithstanding there was a judgment ascertaining and fixing the respective rights of the parties. This decree, in respect to the community, merely determined the amount of the bond the husband was required to give as usufructuary of the five-sixths interest of the heirs. This bond was basedupou the value of the personal as well as real estate of the community to which they will be entitled at the termination of the usufruct. •

To eliminate the interest of the heirs two things were necessary: first, the abandonment by Abes of his usufruct; second, a sale of the interests of the heirs.

In its present situation plaintiff is without a complete title to more than one-half, and one-sixth of the other half of the property in controversy, and could not convey a complete title to the defendant.

The District Judge decided the case correctly.

Judgment affirmed.


text:
    No. 11,926.
    Succession of Mrs. Anna McNamara.
    where experts are sworn as to the value of services and differ materially in their estimates it is safe to accept the lowest estimate,
    where services are rendered of a valuable nature in the expectation of being remunerated in the will of the person to whom they are rendered and an implied promise to that effect has been held out to the party performing the same, an d he is not mentioned in the will, he will be entitled to reasonable compensation out of the estate of the deceased.

      APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      John J. O’Connor and Frank MeGloin for Executor, Appellant.

      Fred. Adolph for Knecht.

      Fart & Kernan for Appellees.
    Argued and submitted December 17, 1895.
    Opinion handed down January 6, 1896.
   The opinion of the court was delivered by

McEnery, J.

The opponent, Dr. Mainegra, claims one thousand dollars for professional services to the deceased.

The deceased was assaulted in an attempt to rob her. She received lacerated wounds on the hands, wrists, on the back and nose. For these injuries the services rendered were applying salves, antiseptics and bandages. No bones were broken and no surgical operation was performed. From the injuries received there was a suppression of urine and the bladder was emptied sev - eral times by proper appliances. Twelve visits were made to the deceased. All these services were within the duties of an ordinary, or what is called a family physician, to distinguish him from the specialist.

Expert testimony was received as to the value of these services. As usual in such cases, there is a wide range in speculation. We will accept the estimate of Dr. Brickell, the lowest made, in connection with the disease with which it is said the deceased was afflicted, which made the dressing of her wounds not only disagreeable but dangerous. This estimate is ten dollars a visit. This ruling is in accordance with the doctrine announced in Hart vs. Dreyfous, 42 An. 631; Succession of Duclos, 11 An. 406; Collins vs. Graves, 13 An. 96.

The opponent, Knecht, claims one thousand two hundred and twenty dollars, seven hundred and twenty dollars for services rendered to the husband of the deceased for six years and more, at the rate of ten dollars per month, and for services and attention to the deceased five hundred dollars. The opponent was in the employment of a firm at a stated salary of eighty-three dollars and thirty-three cents per month. Three nights in the week he was at leisure at 6 p.m., and the remaining nights at 9 o’clock. These leisure hours were devoted to the service of the deceased husband. In the language of the opponent these services consisted in keeping a correct account of moneys collected, making deposits in bank, and corresponding with his principals, and collecting money for rent. The engagement was for ten dollars per month. After a service of two months he asked for a settlement, but was induced not to press the same because of certain inducements or implied promises, made to him by the husband. These “ expectations ” $had reference to the future disposition of the husband’s property, in which the opponent expected to he remembered. He made no further demand on fhe husband, and made no demand against the wife after his death. He was disappointed in getting anything from the husband, and he failed to be remembered in the will of the deceased wife, to whom he continued his services. Having been thus disappointed in being remunerated for his services, he filed his opposition to the account of the executor, and claimed ten dollars per month as originally agreed upon between him and the husband.

His services were those of clerk, and are prescribed by three years. This prescription is pleaded. The opposition was filed 16th March, 1894. His claim for services to March 16, 1891, were prescribed. He is entitled to recover for clerk’s hire from this date to the death of the husband, one]year and eight months, two hundred dollars. Colley vs. Latourette, 7 An. 222; Alexander vs. Alexander, 12 An. 588.

His services to the widow McNamara were of the same character as those given to the husband, with the addition of personal services to the deceased, such as changing her clothes, washing her face and feet. There was no agreement or contract with • the deceased, the opponent, we presume, fully’expecting a remembrance in her will. He is, however, entitled to recover for the value of his services. Dauenhauer and Husband vs. Succession of Brown, 47 An. 341.

We think three hundred dollars will be ample compensation for all the services he rendered the deceased for the nine months he devoted to her.

It is therefore ordered, adjudged and decreed, that the judgment appealed from by the opponent, Dr. Mainegra, be amended so as to place him on the account as a creditor for the sum of one hundred and twenty dollars, and the judgment in favor of the opponent, Knecht, be affirmed, and in all other respects the judgment be affirmed, Dr. Mainegra to pay costs of the appeal of his application —the succession to pay all other costs.


author: Nicholls, O. J.

text:
    No. 11,968.
    Mrs. Aglae Landry et als. vs. Mrs. Marie Bertrand, Administratrix of the Succession of Maximillien Landry, Jr.
    The failure of a judge to render a judgment in a ease within thirty days after it has been submitted to him, as required by Act No. 72 of 1884, does not carry with it as a penalty the nullity of a judgment subsequently rendered by him, if it be otherwise legal.
    An action of nullity against a judgment does not lie upon a general allegation that it was rendered contrary to law and evidence. Where an appeal is the proper remedy for the correction of a judgment, an action of nullity can not be substituí! d therefor.
    APPEAL from the Seventeenth Judicial District Court for the Parish of Lafayette. Allen, J.

      L. L. Bourges for Plaintiff, Appellant.

      Conrad De Baillon for Defendant, Appellee.
    Submitted on briefs December 19, 1895.
    Opinion handed down January 6, 1896.
    The defendant, as administratrix of the succession of Maximillien Landry, Jr., filed a final account of her administration; plaintiffs opposed the same; by judgment of court in August, 1898, the opposition was rejected, the account approved and homologated, the ad-ministratrix discharged and her bond canceled. The present suit in the District Court is to annul this judgment. The grounds relied upon by plaintiff are that, through the delay of the District Court in deciding the case, it had become advised of the decision in Landry vs. Landry (reported in 46 An. 1113), affirming the judgment in the matter therein in litigation, and that knowledge of that decision had influenced the District Court in its judgment upon plaintiff’s opposition to the homologation of the final account of the adminis-tratrix, to his prejudice; that such fact is a cause for annulment; that the judgment was contrary to the law and the evidence and ultra vires in so far as it discharged the administratrix and canceled her bond, as the evidence showed conclusively; that the real estate of the succession of Maximillien Landry, had never been sold by order of court; that it had been donated to some parties and allowed to be sold for taxes, all of which were acts of maladministration ; that nevertheless, the judgment complained of had discharged the administratrix and canceled her bond.
    The exception of no cause of action filed by defendant having been sustained and the suit dismissed, the plaintiff appealed..
   The opinion of the court was delivered by

Nicholls, O. J.

Plaintiff’s allegations are of the vaguest character possible. She failed to annex to her petition, as part thereof, the mortuaria of the succession of Maxmillion Landry, Jr., or any particular portions thereof. She has caused the clerk of the District; Court.none the less to copy into the transcript a certified copy of what obviously is only a part of the proceedings in the matter of that succession. If we be authorized to look into the proceedings at all under the circumstances in which they are brought up, they fail to furnish us with data sufficient upon which to base any foundation for an action of nullity.

The plaintiff having withdrawn her charge that the administratrix had fraudulently caused the clerk of the court to file documents in that court, while the matter of her opposition to the homologation of the final account of the administratrix of the succession was under advisement, she left her demand for nullity of judgment based upon the grounds:

1. That the District Judge had held up a decision upon the matter of the opposition for over thirty days after the case was submitted and taken under advisement, and because pending that delay the decision of this court in the case of Landry vs. Landry, reported in 46 An. 113, had come to the-knowledge of the District Judge and.had influenced him to plaintiff’s prejudice in the judgment which he rendered.

2. Because the judgment was contrary to law and evidence and ultra vires, and neither plaintiff nor his attorney were in the parish of Lafayette when the judgment was rendered, and that the rendition of the judgment became known to him only a month or two before the filing of the petition in the action for nullity of judgment (January 25, 1895).

In sustaining the exception of no cause of action, the District Judge correctly stated that a judgment, otherwise valid and legal, is not struck with nullity because it has been decided by the court at a date later than thirty days after the case, in which it was rendered,, had been submitted to it. That Act No. 72 of 1884, requiring judgment to be rendered within ’thirty days, was a penal statute carrying no penalty other than that speciflcially fixed therein, and that-nullity of the delayed judgment was not the penalty imposed by the act.

Referring to the other grounds of nullity, relied on, the District-Oourt held that the fact that a judgment “ was contrary to law and evidence” might be good ground for a new trial, or for a reversal on appeal, but it furnished no occasion for an action for its nullity in the absence of a charge of fraud or deception, especially where the party claiming to be aggrieved had, by his own laches and by his own acquiescence, allowed it to become final.

That plaintiff had expressly disclaimed charging fraud, and there - fore the case did not fall under the exception stated by the-court in Lazarus vs. McGuirk, 42 An. 194, but under the general rule that defences which a party had a chance to make which he should have made, and which he did make on the trial, would afford no justification for an action of nullity of the judgment rendered in the absence of a charge of fraud or deceit. The District Judge further said: “ Plaintiff informs the court that her opposition was tried, argued and submitted, and judgment rendered on the-day of August, 1893. Judges are bound to take cognizance of the minutes of their courts. On the day the judgment was signed, August -, 1893, an appeal was granted by this court to the opponent. It was never prosecuted. Plaintiffs allege that neither they nor their attorneys were present in' court when the judgment was rendered. The judgment was rendered and signed in open court, as shown by the judgment itself in this record. They should have been present. I know of no law which declares that the voluntary absence of litigants or their attorneys from their post of duty is a ground to annul a judgment. Those who by their own laches and indifference permit a judgment to become final without availing themselves of the relief which the law affords them for a year, can not, by alleging such facts, annul the judgment in the absence of fraud.”

We think it evident that plaintiff is attempting to substitute am action of nullity for an appeal. We know of no reason why the order of appeal which was granted to her could not have been effectively followed up for the correction of any errors which might have existed in the judgment. There is no claim that the case was not, at a regular term of court, and before a competent judge, regularly fixed for trial, taken up pursuant to assignment and legally disposed of with full opportunity for the production of evidence. It is not pretended that any evidence was introduced by the admin-istratrix which she should not have properly and legally made use of. It is urged that pending the holding under advisement by the District Court of plaintiff’s opposition, the judgment of this court in Landry vs. Landry was announced, and the court permitted itself to be influenced by it to plaintiff’s prejudice; but it is nowhere asserted that the influence of that judgment upon the decision was not a legal one. If it led up to an erroneous judgment by the lower court, the judgment could have been reversed on appeal.

It is very true that Art. 556 of the Code of Practice classes an action of nullity as one of the methods by which definitive judgments may be revised, set aside or reversed, but the usual ordinary method for doing so is by appeal. An exceptional state of facts must be alleged to justify a recourse to an action of nullity — none such has been set forth in plaintiff’s petition. The judgment rendered by the District Court may have been “ erroneous,” but plaintiff has suggested nothing from which a court could infer that it is subject to attack by action of nullity.

The judgment appealed from is correct, and is affirmed.


author: ! Miller-, J.

text:
    No. 11,878.
    Rushian Johnson et al. vs. Jose P. Martinez.
    It'is again held that adjudications for taxes accrued since the Constitution of 1879,, ,. pass no title without the notice given to the owner the Constitution exacts. Art. 210, Breaux vs. N.egrotto, 43 An. 428; 44 An. 912; 46 An. 360, 418.
    Nor will prescription of three or five years cure want of such notice. Act 1874, No. '• 105, Sec. 5; Civil Code, Art. 3453; R. S.,Sec. 2809; Person vs. O’Neal, 32 An. 237; Breaux vs. Negrotto, 43 An. 428; 46 An. 856. " ;
    The plaintiff'ill the petitory action miy, without a direct action, controvert the sufficiency of the tax title pleaded by defendant. Code of Practice, Art, 329; 3 ■' La. 392; 11 An. 546; 47 An. 923. ■ • .
    T¡ax titles, under the Act No. 82 of 1881, as already held, require for their completion payment by the purchaser of the taxes'of 1880 and later years. 42 An. 677; ! 47 An. 923.
    APPEAL from the Oivil District Court for the Parish of Orleans, Monroe, ■ J.

      ■Benjamin W. Kernan and Kernan & Wall for Plaintiffs, Appellees.
    r O. H. Osterberger for Defendant, Appellant.

      Marry L. Edwards filed Brief on Application for a Rehearing.
    Argued and submitted November 20, 1895.
    Opinion handed down December 16, 1895.
    Rehearing refused January 20, 1896.,
   The opinion of the court was delivered by

! Miller-, J.

The plaintiffs, heirs of Feriby Johnson, bring the petitory action for property acquired by her in 1846. The defendant claims under an adjudication to the State for taxes accrued since 1880, followed by a sale by the State to the author of defendant’s asserted title. Defendant appeals from the judgment in plaintiffs’ favor.

In the petitory action when the plaintiff exhibiting his title is met by that relied on by defendant, the plaintiff has the right to contest, by proof, the title thus opposed to him. There is no exception to this rule because the defendant produces a tax title. Ib is prima facie proof, but is subject to any objection the plaintiffs’ testimony may sustain. This, we think, answers the contention that the plaintiff con not controvert the tax title. Code cf Practice, 829; 2 Hennen Digest, p. 1155, No. 1.

Under assessment against F. Johnson for the. taxes of 1880 to 1883, the propsrty was adjudicated to the State in 1885; sold by the State to L. H. Fernandez, and from his widow passed to the defendant, whose title thus depends on the adjudications to the State.

It is urged by the plaintiff that the assessments on which the adjudications were based were of no effect, because if F. Johnson earn not be deemed to mean Feriby Johnson, she had been dead for years, and that the adjudications were without notice to the ' owners, her heirs. Tax sales for taxes accrued since the Constitution of 1879 must be preceded with notice to the owner or no title passes. The defence on this ground is supported by proof and must prevail. Constitution of 1879, Art. 210; Breaux vs. Negrotto, Jr., 43 An. 428; Montgomery et als. vs. Land and Lumber Co. et al., 46 An. 409.

The defendant pleads the prescription of three years and five years. But it must be deemed settled that the prescription pleaded will not cure the want of notice required by the organic law. Barrow vs. Wilson, 39 An. 403; Breaux vs. Negrotto, Jr., 43 An. 428; Parish of Concordia vs. Bertron, 46 An. 356.

To repel the plaintiffs’ demand the defendant put in evidence a tax title to Elizabeth Hartwell of the property in controversy made under the Act No. 82 of 1884. In the petitory action it is admissible for defendant to prove any divestiture of plaintiffs’ title. But this proof fails in this case, for the Hartwell title it is plain was never completed; that completion being dependent on the payment by the purchaser under the act of 1884 of the taxes of 1880 and subsequent years, and it appearing the State received no such payment, but undertook to realize these taxes by the adjudication of 1885. Act No. 82 of 1884; State ex rel. Martinez vs. Tax Collectors and City, 42 An. 677; Remick vs. Lang, 47 An. 923.

The plaintiffs have maintained their title against the tax titles and prescription pleaded by defendant.

It it therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed with costs.

On the second branch of this ease Breaux, J., dissents for reasons stated by him in the ease of Remick vs. Lang, 47 An. 914.


author: Breaux, J. Miller, J.

text:
    No. 11,860.
    Mrs. L. E. Hodges et als. vs. Benjamin Ory et als.
    On Motion to Dismiss.
    The party against whom judgment has been rendered can not appeal if he has acquiesced in the judgment.
    This does not apply to the party in whose favor an obligation is admitted in a suit
    The defendant made admissions without plaintiff’s consent.
    If there was a confession of judgment it was m*de without plaintiff’s consent and they, therefore, have the right to appeal from the judgment.
    On the Merits.
    Even when the contract for compensation for the professional services of the attorney is not enforced, he will be entitled to recover from his client sums expended for his benefit by the attorney.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Kernan & Wall and W. S. Parkerson for Plaintiffs, Appellants.

      Benjamin Ory for Defendants, Appellees.
    Motion to dismiss June 10, 1896.
    Argued and submitted on merits November 18, 1895.
    Opinion handed down on motion to dismiss June 17, 1895.
    Opinion handed down on merits December 2, 1895.
    Rehearing refused January 20, 1896.
   On Motion to Dismiss.

The opinion of the court was delivered by

Breaux, J.

The plaintiffs sued for an immovable worth ten thou - sand dollars, or in default thereof for its value.

They allege substantially that in February, 1892, one of the defendants undertook and agreed to clear and perfect their title to their property fora contingent fee equal to 88 1-8 per cent, of the value of the property.

That in violation of his contract this defendant acquired the property in his own name from the State of Louisiana.

That subsequently the property was conveyed to Oole and by Oole to Dowers.

They pray for judgment decreeing that these conveyances are without effect, and commanding Dowers to convey the property to them, or, in the alternative, for a personal judgment against Benjamin Ory (with whom they contracted^ for the value of the property, viz.: ten thousand dollars.

The defendant in his answer admits that he entered into a contract with plaintiffs to recover the property in question for their account, -and to that end to bring needful suits to have several sales revoked and canceled.

His narrative of facts shows that in order to protect his rights and those of his clients when he purchased the property from the State ,he had the title made to James D. Oole after having himself paid the price.

That subseqently, at his instance, it was transferred to David J. .Dowers, from whom he required a counter letter.

In the name of the latter a suit was brought to recover possession •of the property.

Lastly, the property was sold by Dowers to Lavedan, who also •signed a counter letter.

Respondent alleges that the conveyances were for account of the plaintiffs; that this suit was brought against him without any demand on the part of the plaintiffs or any inquiry regarding their title.

That , plaintiffs have notified him that they considered their contract revoked and canceled, and that he is in consequence relieved from any further responsibility.

He, moreover, alleges that he has faithfully complied with his -contract, and that under the contract he has expended the following amounts:

First — The sum of two hundred and seventy-five dollars, price paid to the State.

Second — To W. J. Delano, who held same rights as adjudicatee at •one time of the property, one hundred and fifty dollars.

Third — The city taxes of 1891, forty-three dollars and five cents.

Fourth — State taxes of 1898, twenty-three dollars and thirty-five •cents.

Fifth — Costs of court, six dollars and sixty cents.

Sixth — Sheriff’s costs, six dollars; to which he is entitled as well as to a judgment for fees on a quantum meruit for professional services.

Oole and Dowers have answered plaintiff’s petition and disclaim that they have any interest in the property.

The judge of the District Oourt pronounced judgment for the plaintiffs on the principal demand, and decreed that the different purchases, before stated by us, were made for the account of the plaintiffs, and that they are the owners of the property.

On defendant’s reconventional demand, he pronounced judgment in his favor against plaintiffs for the sum of fifteen hundred and four dollars and five cents, with interest from date of judgment, with a privilege on the property to secure the amount.

Prom this judgment the plaintiffs appeal.

In this' court, as grounds to dismiss this appeal, the appellee alleges:

That the judgment on the principal demand was rendered on the admissions and confessions of judgments of the defendants and appellees, and that the judgment rendered in favor of defendants and appellees on the reconventional demand is only for fifteen hundred dollars.

That plaintiffs and appellants have acquiesced in the judgment in their favor by claiming the benefits derived from the suit and the judgment in their favor.

That there is no controversy between the plaintiffs and the defendants.

We think that an appeal should never be denied, unless it is manifest that the judgment is not one from which an appeal lies.

The provisions of the law regarding confessions of judgment or acquiescence are, that the party against whom judgment has been rendered can not appeal, if he has acquiesced in the judgment. C. P. 567.

We do not understand that plaintiffs and appellants have acquiesced in the judgment. The defendants have made admissions. It nowhere appears that they were accepted by plaintiffs; in other words, that a confession by defendants was entered, with the consent of plaintiffs. The suit was contested from the first, and while it may be true that, prior to judgment, plaintiff claimed certain benefits, obtained by services on the part of the defendant Ory, these are not tantamount to acquiescence, preventing plaintiffs from prosecuting their appeal-..

The motion to dismiss is denied.

On The Merits.

The opinion of the court was delivered by

Miller, J.

The plaintiffs, heirs of William G. Hodges, sue to -be decreed owners of a square of grouud alleged to be held by defend-' ant Dowers. The answer of defendant Ory is that the property was the subject of an agreement between himself and plaintiffs, by which he was to free it from tax titles and recover it for plaintiffs for a stipulated compensation; that he caused it to be redeemed from the. State in the name of Oole, who transferred to Dowers; that there being judgment against Dowers it was transferred to Lavedan; that taking title in these names was to prevent complications that might arise from the death of any of the numerous plaintiffs, and to protect respondent’s interest under his contract; that counter letters were taken from Dowers and Lavedan, recognizing that the property had been purchased by Ory as agent for plaintiffs, and placed in the names of Dowers and Lavedan for purposes of convenience; the answer avers respondent’s good faith, and that he has been, at all times, willing to recognize plaintiffs’ ownership; the answer further avers that his contract was for one-third of the value of the property as compensation for his services, that he is entitled to fair compensation under a quantum meruit, the plaintiffs having canceled his contract; and averring he had made disbursements for plaintiffs’ benefit, claims judgment against them for a fee of 10 per cent, and for the amounts claimed to be expended by him. The other defendants answer, disclaiming title, and that the property had been purchased by Ory for plaintiffs and for convenience placed in the respondents’ names. There was judgment recognizing plaintiffs’ title in favor of defendant Ory on his reconventional demand and plaintiffs appeal.

The defendant Ory’s contract was-in February, 1892. The property had been acquired in 1869 by W. G. Hodges, whose widow and heirs sue. There had been a sale in 1876 under a drainage tax to Delano ; then a sale by him to Van NOrden in 1885, and there had been a sale for State taxes under the Act of 1884, to Reinhart Martin. These were the two tax titles mentioned in Ory’s contract, which he undertook to cancel. Besides, in 1890, Martin had sold to Delano. At the date of the contract neither Martin or Delano, his vendee, had completed the title under the Act of 1884 by payment of the taxes accrued subsequent to 1880. Act No. 82 of 1884, 5th Sec.; Martinez vs. Tax Collector, 42 An. 677; Remick vs. Lang, 47 An. 914; Blood vs. Negrotto, 47 An. 1132. Thus in 1892 there stood between plaintiffs and the property acquired in 1869, the drainage tax sale to Delano, the sale by him to Van Norden, the ineompleted tax sale under the Act of 1884 to Martin, and besides the property had been adjudicated to the State under the Act No. 80 of 1888. In this condition Mr. Ory purchased from the State in the name of Dowers. Not willing to rely on this purchase he obtained in July, 1893, a quit-claim deed from Van Norden. He began proceedings for possession of the property, which were enjoined by Delano, and nothing further was done. The purchases from the State-and from Van Norden in the name of his clerk, and the suit for possession, appear to be all defendant ever did under his contract to recover the property for the plaintiff.

From 1892, when defendant'undertook the business for the plaintiffs, to 1894, there was no communication from him to them. His explanation is that plaintiffs were told at the outset he could not impose on himself the burden of correspondence. Finally, in 1894, plaintiffs, residing in another State, becoming anxious, requested their friend here to call on defendant for information as to their property he had engaged to recover. To the application of that friend, defendant’s clerk, also a defendant in this case, answered in substance that defendant had concluded there was no chance of recovery. At that time the property stood in the name of the clerk, under plaintiffs’ purchase from the' State. There is no contradiction of this statement of the clerk to plaintiffs’ agent, but defendant Ory claims he is not bound by it. After this, there were letters from plaintiffs expressing their surprise at the announcement of no hope of recovery of their property coming abruptly, with no explanation, and being the only communication they had had in the two years since their interests had been placed in defendant’s hands. They demanded the return of their power under which defendant had undertaken their, business and employed other counsel.

In defendant’s answer there is the avowal of his readiness at all times to acknowledge the plaintiffs’ title, and he avers the suit was brought without notice. But the fact remains he had given plaintiffs neither information or explanation of their business and of the situation he had placed their property. They ha/d the statement of his clerk there was no chance of getting the property, and they found it standing in his name on the records. This suit for the recognition of their title, thus put by their agent in his clerk’s name, was the natural result. The judgment of the lower court was in plaintiffs’ favor for the property and against them on the reconven-tional demand for defendant’s fee and disbursements.

The defendant claims the plaintiffs were benefited by his purchases of their property, preventing the completion of the tax title under the Act of 1884. If the defendant had purchased in his principal’s name, the basis of his claim for compensation would be more appreciable. He claims he put the property in his clerk’s name for •convenience, because of -the possibility of the death of some of plaintiffs. We can not see the force of the reason. Death would not have endangered or destroyed plaintiff’s title, and there was no protection or advantage to them by putting their property in the clerk’s name. The defendant had counter letters acknowledging the property had been bought by him as plaintiffs’ agent, but these letters not put on the record, had no effect to secure plaintiffs. The interposition of Oole, Dowers and Lavedan, to stand on the records as owners of plaintiffs’ property, suhjected plaintiffs to the risks of mortgages or alienations by the recorded owner, as well as to seizures. The defendant had no right to thus deal with his principal’s property. The purchase should have been in his principal’s name. He had made a contract to receive for his services a portion of the property. He reached the conclusion his contract was illegal. This, he gives as a reason for ■ purchasing his principal’s property in the name of his clerk. We find no occasion to' deal with the question as to the legality of his contract. No such objection came from his clients. If he was not satisfied with his contract, he should have brought the matter to the notice of his clients. Contract or no contract, the law protected him in his right to compensation for any services he might render. We can not recognize the right of an attorney to put in his own, or in the name of another, the property of the client the attorney is employed to recover, and to allow the defendant’s fee in this case would be that recognition. The record, in our opinion, affords no basis for eompen-sation to.defendant, least of all, for cash to be paid by plaintiffs on the ■■.theory they have been benefited in respect to the property. Defendant "was engaged to recover, 'but.made no advance in the line of his employment except that if advance it can be called, shown by the record, and sufficiently discussed. But we think the defendant should be allowed the money paid by him in the purchases from the ■State and Van JMorden, and all taxes he paid, amounting to five hundred and four dollars and five cents, as we gather from the record.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed in so far as it allows the defendant the sum of one thousand five hundred and four dollars and five cents, and in lieu thereof it is now ordered, adjudged and decreed that defendant recover from plaintiff five hundred and four dollars and five cents, and in other respects it be affirmed with costs.


author: Mili/eb, J.

text:
    No. 11,896.
    Charles M. Fush vs. Thomas Egan, Jr., et al.
    When the defendant’s property has been sold under a judgment reversed afterward on a devolutive appeal, the defendant entitled to restitution of his property may seek relief by an action for damages in which the judgment will be based on the value of the property, the costs of suit, counsel fees and other expenses incident to the sale, deducting the amount of the debt of the plaintiff satisfied by the execution sale. 15 La. 46; 15 An. 97; 38 An. 474.
    The judgment pending the devolutive appeal decreeing that plaintiff in such execution must credit his debt with the amount derived from such sheriff’s sale will not be res judicata as to the value of the property, against the defendant in execution in the suit brought by him for damages after the reversal of the judgment under which his property has been sold. Civil Code, Art. 2286; 3 M. 483; 3 N. S. 409; 7N. S.28,
    As held in previous decisions, plaintiff seeking damages for seizure of his property under conservatory writs illegally issued will be restricted as to counsel fees, to the fee for dissolving the writ. 2 La. 620; 5 An. 714; 13 An. 40.
    The respite proceedings will not prevent suit and seizure by the privileged creditor. Civil Code, Art. 3095.
    Public policy favors the resort to the courts for the redress of grievances the liti gant conceives to exist, and hence the law will not amerce him in damages unless his suit is m'alicious/as it is not readily imputed when one acts under the advice of counsel. Const., Art. 11; 13 La. 440; 28 An. 592; 46 An. 1342,

      APPEAL from the Civil District Court for the Parish of Orleans." King, J.

      W. 8. Parkerson for Plaintiff, Appellant.

      Prank MoGloin for Defendant, Appellee.
    Argued and submitted November 16, 1895.
    Opinion handed down December 16, 1895.
    Opinion on rehearing January 20, 1896.
   The opinion of the court was delivered by

Mili/eb, J.

The plaintiff sues for damages for the wrongful sequestration and execution sale of his property under a judgment of plaintiff, afterward reversed on appeal to this court. The petition -charges the property was sacrificed, and that the sequestration and suit were malicious. The defence is the general issue, res judieaia and a demand in reconvention for the plaintiff’s debt to defendant left unsatisfied by the sale of the property under the execution-. From the judgment in favor of plaintiff for one thousand two hundred and eighty-five dollars and twenty-seven cents with interest ($1285.27), much less than the amount claimed in the petition, and in favor of defendant on his reconventional demand, the plaintiff appeals, and defendant, answering the appeal, asks its affirmance and for a reduction of the judgment defendant obtained.

The plaintiff purchased wagons and mules of the defendant in September, 1892, and in March, 1898, there was unpaid one of the notes given for the purchase price. A short time before the maturity of the note plaintiff sued for a respite. Pending the respite defendant sued on the note, sequestered the mules, subsequently sold' them under execution issued on his judgment. But the judgment was reversed on appeal after the sheriff’s sale. Egan vs. Fush, 46 An. 474. After the sheriff’s sale the defendant took a rule to set' aside the respite obtained by plaintiff. On that rule the plaintiff offered the testimony to show the credits on . defendant’s note-derived from the sheriff’s sale. The note was for two thousand six' hundred and sixty-six-dollars and sixty-seven cents, and.the judgment on this rule applying the credits fixed plaintiff’s debt to defendant at one thousand two hundred and eighty-five dollars and' twenty-seven cents, and decreed the nullity of the respite unless payment was made. Civil Code, Art. 3093; Act 134 of 1888. It is-this judgment rendered in 1894, and unappealed from, the defendant in this suit for damages pleads as res judicata to so much of plaintiff’s demand as relates to the alleged sacrifice of his property at sheriff’s sale.

When the judgment in favor of a plaintiff is reversed on the devo-lutive appeal he owes restitution to defendant of all obtained on ex - ecution of the judgment. The party cast on the devolutive appeal is placed where he stood before he brought his suit, and the successful appellant is restored to the property wrested from him under the void judgment. Nor will the fact that the appeal was devolutive, instead of suspensive, which the appellant may not have been able-to take, at all affect his right. Mooney vs. Corcoran, 15 La. 46; Graham vs. Egan, 15 An. 97; Pasley vs. McConnell, 38 An. 474. It is no answer to plaintiff’s demand to urge that the property was sold under a fi. fa. issued on the judgment. It is true, the petition charges the wrongful sequestration as a cause of the damage, but that-cause is merged in the reversal of the judgment under which the execution issued.

The plaintiff seeks restitution from the defendant by this suit for damages. A part of the demand is for the loss the plaintiff alleges he sustained by the sacrifice of his property at the sheriff’s sale. The petition alleges the value of the property, mules and floats, deducts-the amount of the sales and claims the difference as the loss. The plaintiff’s estimates are one hundred and fifty dollars for the mules, and fifty dollars for the floats. With reference to this question of value we find in the record the testimony of the defendant and three witnesses. The sale to defendant was in September, 1892; the sheriff’s sale was a year later, defendant becoming the purchaser. One witness who saw from eight to twelve of the whole number of the mules, after defendant’s purchase, states he offered one hundred dollars apiece, and did not think more could be obtained; he states that two years before, i. e., when Push bought from Egan, the value was then one hundred and fifty dollars, but the witness states mules have been declining ever since. This witness and another concur in stating plaintiff’s estimate of one hundred and seventy to one hundred and seventy-five as extravagant. The defendant asa witness states he bid on the mules at the sheriff’s sale “ to keep up the price;” he states those he purchased averaged one hundred and ten dollars to one hundred and eleven dollars, and after pasturing, sold eight for one hundred and twelve dollars and fifty cents. On this testimony, with due regard to that of defendant, the plaintiff’s estimate for the. mules appears high. The sheriff’s sale realize , costs deducted, one thousand five hundred and eighty-two dollars and thirty-two cents for the mules. The plaintiff’s brief estimates the floats that were seized at fifty dollars; other witnesses put the value much lower; one states fifty dollars, another two hundred for the whole number. The plaintiff in giving his testimony states that the wagons were worth fifty dollars apiece, but his point of time is the date of his purchase, September, 1892, not the test in our view of the value nearly a year later, when the sheriff’s sale occurred. At that sheriff’s sale the wagons brought but one hundred and twenty-six dollars. The estimate relied on by the plaintiff for the wagons we do not think, is maintained by the testimony. On a review of all the testimony, we think one thousand seven hundred dollars for the mules and two hundred dollars for the wagons is warranted by the testimony to be allowed the plaintiff.

It is claimed, on this branch of the case, that the judgment on the. rule of the defendant here in the respite proceedings is res judicata, in his favor as to the value of the property sold under his execution. That judgment decreed that defendant here, should credit his debt with the net proceeds of the sheriff’s sale. The judgment on which the execution issued was then in full force. The court on that rule was bound to give it effect. But the judgment was afterward reversed. The plaintiff now sues, claiming his property was sacrificed. We think it clear his cause of action was not all involved in the rule taken before that cause was in existence.

Allowing the plaintiff the full value of the property eliminates the costs of Eagan vs. Fush as items of damages, except one hundred and fifty dollars clerk’s costs which is conceded in defendant’s brief to plaintiff. Besides, he is entitled to twenty dollars charge for brief. The feed bill of the mules at plaintiff’s stable during the seizure, two hundred and eighty-nine dollars, should, we think, be allowed. It is true, the mules would have required feeding, even if not seized, but the seizure deprived plaintiff of their use, and cast that expense on plaintiff. These items, aggregating four hundred and fifty-nine dollars, must, in our opinion, be allowed the plaintiff.

The judgment of the lower court allowed five hundred dollars as the fees of plaintiff’s counsel in Egan vs. Push. It is well settled that if a sequestration issues illegally, the defendant in the writ can recover as damages as the fee of counsel only the amount proportioned' to the service for dissolving the writ. The writ in this ease issuing before the debt was due was dissolved for prematurity of suit, but to obtain that judgment required an appeal to this court. We think two hundred and fifty dollars a proper fee for dissolving the writ. Penny vs. Taylor, 5 An. 714; Conrey vs. Elbert, 2 An. 20; Phelps vs. Coggeshall et als., 13 An. 440.

We have given attention to the argument that Egan’s suit was malicious, for which punitory damages should be allowed. When the application for the respite was made Egan was Fush’s creditor, with the vendor’s privilege on the mules and wagons. The privileged creditor is not bound by the respite proceeding. C. C. 3095; Huppenbauer vs. Durlin, 24 An. 361.

Defendant had no right to sue before his debt was due. For this he incurs the penalty of paying costs and actual damages. But in issuing that sequestration he acted on the advice of counsel. Public policy forbids that the suitor shall be mulcted in damages for seeking the courts for redress of his supposed wrongs, unless he is actuated by malice. It is urged by plaintiff, in addition to the prematurity of the suit, that it bore hard on him, then applying for a respite; that subsequently the plaintiff’s property, under a judgment subsequently reversed, was forced to a sheriff’s sale in the summer time; that still later the defendant ruled Fush to set aside his respite for non-payment of the in-stalment due. All this this plaintiff insists showed malice, but we think it exhibits the enforcement of legal rights, except in the institution of the suit of a few days before the debt was due, and to hold defendant on that ground for damages would be to punish him for acting under legal advice. Excutrix vs. Daboval, 13 La. 90; Kearney vs. Holmes, 6 An. 375; Block vs. Creditors, 46 An. 1344.

The debt due Egan by Fush was two thousand six hundred and sixty-six dollars and sixty-seven cents with eight per cent interest-froln 1st September, 1892, and should be credited with one thousand" nine hundred dollars, value of-the property sold under execution.' On the other hand, Fush is entitled to claim of Egan seven hundred and nine dollars.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed, and it is further ordered, adjudged and decreed that plaintiff do have and recover from defendant seven hundred and nine dollars with legal interest from August 14, 1893, and that defendant on his reconventional demand recover from plaintiff two thousand six hundred and sixty-six dollars and sixty-seven cents with eight per cent interest from 1st September, 1892, subject to a credit of nineteen hundred dollars ($1900) of date August, 1893, and that defendant pay costs.

ON Application fob Rehearing.

The defendant urges the defence of res judicata should be maintained. The defence is founded on the judgment on a rule taken by Egan, the defendant here, in his suit against Fush to cancel the respite Fush had obtained. Egan proceeded as a creditor of Fush and the court decided the debt should be credited with the amount derived by Egan from the sheriff’s sale under his judgment afterward reversed on devolutive appeal. The proposition is that the judgment on this rule to cancel the respite is a bar to Fush’s suit now ■ before us for damages caused by the illegal sale of his property under Egan’s judgment, afterward reversed. It is brought to our notice that when the rule was taken Egan’s judgment had been reversed. We assumed in our previous opinion the judgment was then in force. But the substantial question is, whether the judgment on that rule, making it absolute, i. e., that Fush should pay the debt, or that his respite be canceled, and that the debt should be credited with the amount made on Egan’s execution, is any bar to the demand here that Egan should pay damages for illegally causing Fush’s property to be sold.

The cause of action here is, that the defendant, under the judgment decreed void, sacrificed the plaintiff’s property at the sheriff’s sale, made in the summer, unpropitious, it is alleged, for selling the property. The liability for selling a man’s property under a judgment afterward reversed is to restore the property or pay its value. The plaintiff seeks restitution for that illegal sale by this suit for damages. His cause of action arises out of the reversal of the judgment under which his property was taken. The cause of action here asserted by Fush, subsisted when Egan took his rule, but no suit for damages was then brought or urged on the rule. The court, on the rule, naturally directed Egan’s debt to be credited with the amounts made on his execution. It is urged that Fush claimed the credits. He might, it seems to us, do that without prejudice to his present suit for damages. The credits exhibited by the executions issued in the suit in which the rule was taken were necessary incidents in making absolute Egan’s rule. He was the creditor of Fush holding a debt reduced by the credits made on his void writ. The allowance of those credits to which, in any event, Fush was entitled, left Fush at librrty, we think, to bring suit for damages for the illegal seizure and sale, one element of which was the loss caused by the sacrifice of his property. Egan’s cause of action was as a creditor of Fush seeking to set aside his respite. Fush’s totally different action here is for damages caused by the enforcement by Egan of the judgment reversed on appeal. Bes judicata is not to be extended to issues not involved in the litigation on which the defence is founded.

The defendant complains of our allowance of interest tp plaintiff from the date of the sheriff’s sale. In the restitution to defendant of his property sold under an illegal execution he is placed as to the property in the position he stood before the sale. There is, therefore, reason to given interest on the money when the property itself is not restored. But the defendant in this case urged his debt as a de-fence, and from both parties comes the suggestion of an adjustment of the accounts; defendant’s debt on his part and plaintiff’s demand for damages. The debt of defendant is by operation of law reduced by the credits on the execution. In so far as these credits are concerned the suit of plaintiff is not one for damages. These credits as of date August 4 and October 9, 1893, carry the same interest as the debt which they reduce. They amount to one thousand six hundred and seventy-seven dollars and sixty-seven cents and are included in the amount two thousand six hundred and nine dollars for which the plaintiff had judgment. The residue ot that amount is made up of the damages awarded plaintiff. Our judgment gave defendant interest on the whole amount, two thousand six hundred and nine dollars. We think defendant’s contention that interest on damages are not allowable is well founded and to that reduction he is entitled. C. P., Art. 553; Green vs. Garcia, 3 An. 702; Bonner vs. Copley, 15 An. 504.

There being no res judicata, we held the plaintiff entitled to recover the full value of his proporty sold under the execution. The amount we fixed on the testimony discussed in the brief. In plaintiff’s application for the rehearing he brings to our notice that the mules brought at the sheriff’s sale one thousand nine hundred ahd thirty-five dollars and fifty cents, an excess of two hundred and thirty-five dollars and fifty cents over the amount awarded. To that excess he is entitled, and his judgment is to be increased accordingly. In respect to the other items of damage we think the amount allowed is sufficient.

As the judgment we now render reduces the amount plaintiff would have to pay under the judgment of the lower court, defendant is to pay costs. 0. P., Art. 908.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed, that our former judgment be set aside; and it is now ordered, adjudged and decreed that the plaintiff do have and recover from defendant two thousand eight hundred and forty-four dollars ($2844) with eight per cent, interest no one thousand five hundred dollars and eighty-two dollars from August 4, 1893, and on ninety-five dollars from October 4, 1893; that defendant do have and recover from plaintiff two thousand six hundred and sixty-seven dollars and sixty-seven cents, with eight per cent, interest from September 1, 1892, and that defendant pay costs.