text:
    No. 7579.
    Police Jury of the Parish of Jefferson (Right Bank) vs. Thos. McCormack et al.
    The public property of the Parishes of this State is not converted into private property by the legislative territorial division of the Parish to ■which it belongs, and the consequent cessation of the public use to which it is dedicated. Such property, notwithstanding the chango of territory and of nse, remains what it was before, public property, extra com-mercium and not subject to seizure.
    APPEAL from the Second Judicial District Court, in and for the Sixth and Seventh Municipal Districts of the parish of Orleans. Houston, Judge of Fourth District Court, parish of Orleans, acting in the place of Pardee, J., recused.
    Ellis & Ellis and J. Fisk for Plaintiff and Appellee:
    The law governing this case is well settled. It has been held that, under under the legal definition of public things, R. C. C. 453, 454, public squares, courthouses, and jails of a parish are public property, and, as such, cannot be executed for debt.
    4 A. 84, Police Jury of Baton Rouge vs. Michel.
    30 A. 65, Plaquemines Parish vs. Foulhouze.
    30 A. 61, MoKnight vs. Parish of Grant.
    See, also, 21 A. 244.
    It has also been held that this rule is not affected by the consideration whether or not the public property is in actual use, and that “it suffices that the public has a right to use.” 30 A. 67.
    It has also been settled, that in issues of this kind, the courts cannot consider the question as to whether or not the public property is necessary for the public use, for this is a political, and not a judicial question. Picket vs. Brown et al. 18 A. 562.
    Police Jury of Plaquemines vs. Eoulhouze, 30 A. 67.
    The Defendant knew, when he bought, that the property was public. The Sheriff’s notice of seizure, advertisement, and adjudication to Defendant all describe the property, as the “courthouse and square,” etc. (R. 179-150.) He could not plead ignorance of the law, R. C. 0. 7, and knowing that the property was public, he knew, also, it was not liable to seizure. He was, therefore, a purchaser in bad faith. R. C. C. 3452.
    Brashear vs. Dwight, 10 A. 645.
    Walworth vs. Stevenson, 24 A. 253.
    He therefore owes the rents and revenues of the property from January 25,1878.
    The doctrine of estoppel does not apply.
    Police Juries can only manage or administer ; they caunot alienate. A fortiori they cannot, by indirection, by acts of omission, or commission, alienate.
    See R. C. 0. 429, 431, 445, 2996, 2997.
    29 A. 592, 261 ; 26 A. 59.
    23 A. 191, 232, 251.
    R. S. I 2734.
    2 Kent, Lecture XXXIII. Sec. Y. *p. 306.
    SO A. 66.
    Wm. Mithoff, District Attorney pro tern., on same side.
    E. Howard McCaleb for Defendant and Appellant:
    The property, not being used any more for a courthouse, ceased to be public, and became the private property of the Parish. Dillon on Municipal Corporations, $S 435, 436. 14 An. 872 ; 8 An. 149 ; 13 La. 328.
    Plaintiff is estopped from contesting the validity of the Sheriff’s sale,, because he appointed an appraiser. 27 An. 314 ; 7 How. 183.
    Plaintiff must tender the amount of the purchase price paid by the purchaser before he can contest the validity of the sale. 24 An. 325 ; 21 An. 425 ; 28 An. 854; 29 An., 537 ; 30 An. 174.
   The opinion of the Court was delivered by

Fenner, J.

Prior to 1853, the government of the parish of Jefferson was divided between three.distinct corporations, viz.: The Police Jury of the parish of Jefferson, the city of Jefferson, and the town of Carroll-ton. These corporations bore the common parish expenses in certain; proportions established by law.

The whole parish, as then existing, was within the limits and jurisdiction of the Second Judicial District Court of the State.

It was the duty of the parish to provide suitable accommodations for the administration of justice by the said District Court within her limits, and for that purpose to provide a courthouse and jail. Rev. Stat. 2746.

In 1853, the three corporations above referred to, acting through the medium of a joint committee appointed for the purpose, purchased jointly a square of ground for the purpose of erecting thereon a courthouse and jail; and subsequently did erect thereon the said buildings.

The conveyance was made to the three corporations jointly, and the-price of the land as well as the expense of erecting the buildings were-paid for by them “ according to the regular proportion established bylaw,” as recited in the deed.

By subsequent legislative acts, No. 138 of 1856, and No. 147 of 1858,, the government of the parish was modified, so that it was confided to-two Police Juries, one of the right bank, and one of the left bank, and to-the town of Carrollton.

It is needless to discuss the mode by which the interests of the former corporations in the common property were distributed between these new ones ; because it was admitted on both sides that the interest in the property here concerned, which accrued to the Police Jury of the right bank, plaintiff herein, was three hundred and thirty-five thousandths (335-1000) of the whole.

The property so expressly bought, and the buildings so erected for public use, have been used for the public purposes so intended to the-present day, and have never been used for any other purposes.

It cannot be doubted that by such purchase and use they became public things, hors cle commerce, and not liable t.o seizure.

Police Jury vs. Michel, 4 An. 84.

In 1874, by Act No. 71 of that year, the legislature transferred the town of Carrollton, within whose limits this property was situated, to the city of New Orleans ; but the town still constituted part of the Second Judicial District.

By Act No. 45 of 1876, both the Sixth and Seventh Districts of the city of New Orleans (the latter being the former town of Carrollton), were made part of the Second Judicial District, and the Court was expressly directed to be holden in the very courthouse here concerned, and has been holden there to the present day, under this legislative-direction.

In December, 1877, under certain judgments against the parish of Jefferson, right bank, the latter’s interest was seized, and subsequently-sold and adjudicated to Thos. McCormack, the present defendant, who-has since held and controlled the same as owner.

This action is brought by the Police Jury to annul the sale and recover the property and its revenues.

The defendants contend that by the transfer of Carrollton to the-city of New Orleans, the interest of plaintiff in this property, having-passed outside the limits of the parish of Jefferson, ceased to be public, and became the private property of the parish, .and subject to execution.

Parish organizations in this State, like counties in other States of the Union, are so feebly endowed with corporate life that they are regarded rather as quasi corporations, deriving such powers as they possess, not from special charters, but under general laws, and existing merely as involuntary agencies of the sovereign power of the State to-exercise certain functions of local government, and to perform such duties as may be imposed upon them by the sovereign. Their powers are strictly limited, and are only “ co-extensive with the duties imposed upon them by statute or usage.”

Cooley on Const. Lien. pp. 240, et seq.

Dillon on Mun. Corp. 110.

They are incapable of acquiring or holding immovable property, except for public purposes, under legislative authority, express or distinctly-implied. Such property, once acquired and devoted to public use, cannot be alienated without legislative authority.-

Dillon, l 512.

The extent of the legislative control over the public property of such corporations has been the subject of conflicting decisions ; but it -is; well settled that the legislature has power to alter or abolish the corporations, to change their territorial boundaries, to divide and transfer part of one parish to another, and in such'case to regulate and direct the disposition of the property held by them for public purposes.

Dillon, $ 37,127,128. Cooley, p. 235.

’ The legislature may apportion the property which had been common, either at the time of making the division, or at a subsequent period.

Dillon, ^ 329.

As long as the legislative power of apportionment has not been exercised, it seems that each division will hold and have the right to-use the public property which falls within its limits. Dillon ubi eitr supra. We And no authority any where for the doctrine that public property can be converted into private property under any circumstances, as the effect of such territorial division or transfer.

Nor do we find any authority recognizing the right of such a corporation to alienate, or divert from public use, such property, without legislative permission.

The attempt to imply such legislative sanction in this case is entirely ■negatived by the provision in the Act No. 45 of 1876, expressly directing the public use, for which this property was acquired, to be continued.

We therefore conclude that at the time when this property was •seized and sold it remained what it ever had been, public property, extra commercium, and not subject to execution.

The estoppels pleaded by defendants herein have no application to •such a case as this'. The acts of the former Police J ury referred to were entirely ultra vires, and had no more effect to estop the corporation than if they had been performed by entire strangers.

What may be the rights of the plaintiff to control or exercise ■ ownership over this property, in the existing state of the legislative action, it is not necessary to determine here. The legal title rests in plaintiff, and gives it an equitable right to claim from the legislative power some equitable settlement of its interest. This is sufficient to .maintain plaintiff’s right to bring this action.

The appellee asks to have the judgment amended by allowing the •sum of eight hundred dollars as revenues. Por the reasons given by -the District Judge, we think McCormack was a possessor in bad faith ; but we also agree with him that the evidence in the record is not sufficient to authorize any money judgment on this account in the present ■action.

Por these reasons it is ordered, adjudged, and decreed that the judgment appealed from be affirmed at appellant’s costs.

Behearing refused.


source: Caselaw Access Project

author: Todd, J.

license: Public Domain

text:
    No. 6138.
    William Sweeny vs. C. Murphy and John Murphy, etc.
    'The master and owners of a sliip, having contracted with a competent stevedore to load lier, and not having controlled or directed, in any manner, the laborers employed in the loading, are not responsible fordnjuries resulting from the negligence of said laborers.
    APPEAL from the Sixth District Court, parish of Orleans. Saucier, J.
    McGloin & Nixon for Plaintiff and Appellee :
    IThe only principle applicable to this case is that contained in C. C. 2320, to the effect that masters and employers are responsible for the faults of their servants and employees. 7 An. 325 ; 14 An. 818 ; 26 An. 170 ; 17 An. 166; 11 An. 396; 16 An. 321; Potbier des Obligations, vol. 1, p. 166; Duranton, vol. 7, p. 512, No. 724; Toullier, vol. 6, p. 117, No. 282 ; O. N. 1384.
    This responsibility cannot be gotten rid of by delegating the work to another and giving him control. Sherman & Redfleld on Negligence. p. 132, et seq., % 102 and 103 ; 5 Rob. 113 ; 22 Ala. 264; Cooley on Torts, pp. 558 and 560.
    Singleton & Browne for Defendants and Appellants :
    Defendants are not responsible for the injuries alleged to have been suffered by Plaintiff, because they employed a skilled person as a contractor to do the work, and had no control or supervision of it.' 28 An. 943 ; Addison on Torts (3rd ed.), pp. 395-397 ; 29 An. 791.
    3?laintiff has utterly failed not only to make his cases certain, but even reasonably certain. 17 Wall.. 557 ; 4 Mete. 59; 1 Selden, 492; 3 Am. Rep. 143, and others.
   The opinion of the Court was delivered by

Todd, J.

The plaintiff claims, from the master and owners of the .ship Regina, damages for an injury alleged to have been caused by an •employee of the defendants, in this way : That plaintiff was working as a, screwman in the hold of the ship Tasmania, and the ship Regina, of ■which defendants wore owners, and one of them master, was being loaded with cotton at the time; that the cotton was being rolled across the Tasmania on staging reaching to the ship Regina; that in the act of rolling a bale of cotton across the Tasmania, through the carelessness ■of the laborer rolling the bale, it fell into the hold of the Tasmania, and ■upon the plaintiff, there at work, inflicting a serious injury, for which damages were claimed to the amount of $1500.

The defendants denied any liability for the alleged injury, and ■averred that the ship Regina was being loaded at the time of the alleged accident under a contract made by them with one Joseph Cooper, an experienced stevedore, by whom the staging for loading the ship was constructed, and the laborers employed. Cooper was called in warranty, and answered, acknowledging his liability, for the reasons set forth in defendants’ answer, if any injury had been sustained by the plaintiff, which he denied. By an amended petition Cooper was subsequently made a defendant in the suit.

There was judgment in favor of the plaintiff for $175 against the ■defendants, and in favor of the defendants for same amount against Joseph Cooper as warrantor, and dismissing the demand of the plaintiff against Cooper in the direct action against him. From this judgment the defendants appealed.

The view we have taken of this case, and the conclusion we have-reached after a careful examination of the pleadings and evidence in the record, renders it unnecessary that we should decide all the interesting legal questions so ably and ingeniously discussed by the counsel on both sides.

The evidence satisfies us that Joseph Oooper contracted with the defendants to load their ship. That it was Cooper who employed the hands, who directed their labors, to whom they looked for their pay, and who paid them for their work ; and that the defendants did not control and direct the laborers while engaged in rolling the cotton with which the ship was loaded ; that, therefore, they were not responsible for injuries resulting from the acts or faults of these laborers while working in the employment of Cooper.

The fact shown, that the laborers so employed were seamen, composing the crew of the Regina, the defendants’ ship, does not affect the-legal aspect of the question, since for this work of loading the ship they were practically under the exclusive control and direction of the contractor, Cooper.

In the White Mass Colliery Company ease (36 London L. T. p. 50),. where the company had furnished engineers to the conti’aetor, and through the negligence of one of them the plaintiff in that case had received a severe injury from the fall of machinery down the shaft, •Chief Justice Cockburn said :

"I think they placed this man at Whittle’s disposal, and in the course of the servant’s employ by that other, some injury occurs through the negligence of the servant, the servant must be held to be the servant of the borrower (if I may use the expression), for the purpose of the particular work the latter employs him to do, and the borrower must be held liable.”

In the case of Reilly vs. State Line Steamship Company, 29 An. 791, it was shown that the same stevedore (Joseph Cooper) employed in this case was employed to load the ship in that case. The ship furnished the “ gins ” or hoisting apparatus which was used by the stevedore. The machinery broke and killed one Moriarty, a screwman employed by Cooper to assist in the work, and the widow, for herself and minor children, brought suit against the company owning the ship. It was held that the company was not liable. See, also, 18 A. 683 ; 20 A. 495 ; 22 A. 389.

There is no question in this case but that Cooper was a competent and experienced stevedore, and the testimony satisfies us that no fault can be imputed to the defendants in contracting for the work with an incompetent party.

We are not called upon to decide whether Cooper is or is not liable for the injury sustained by the plaintiff. He was called in warranty by,the defendants, and appeared and answered. He was subsequently-cited as defendant in the suit, but judgment was rendered by the court:. a qua dismissing the demand as to him, and from that judgment the-plaintiff did not appeal, which fact places it beyond our power to reviever the judgment in this respect.

It is therefore ordered, adjudged, and decreed that the judgment: of the lower court be annulled, avoided, and reversed, and it is now-decreed that the plaintiff’s demand against the defendants and the demand in warranty against Joseph Cooper be rejected, plaintiff to payv costs in both courts.


author: Poché, J.

text:
    No. 6392.
    Louis Mathé vs. N. O. Sugar-Shed Company.
    No evidence is admissible to show custom or usages of trade contrary to law, and especialtyr to a prohibitory law.
    The holder of the Receipt of the New-Orleans Sugar-Shed Company, for sugar stored with: them, must be fully protected, under the provisions of Act No. 150 of 1868, and he will’, recover from the Company the value of the sugar, if it has been disposed of, without Ms-written assent

    The refusal of a creditor to receivo payment of his debt on .condition of withdrawing or retracting a criminal charge made by him against his debtor, is commondable and cannot. impair his right to sue a third person, liable fór the debt.
    APPEAL from the Sixth District Court, parish of Orleans. Saucier„ J.
    C. E. Schmidt for Plaintiff and Appellee :
    The Receipt of Defendants was for sugar stored with them for account’, of Plaintiff.
    By the stringent provisions of Act No. 150 of 1868, sec. 4 (Rev. Sta. see.. 2480), Defendants were forbidden from permitting the transfer or removal of the sugar without the written assent of the person holding their receipt.
    The evidence offered by Defendants, to estabiish the custom of brokers- and merchants, in dealing with them, to justify their parting with; the sugar, was clearly inadmissible. 22 An. 378.
    The evidence failed to show any assent on Plaintiff’s part that the sugar: should be delivered to Martin.
    The offer to pay the debt, upon retraction of the criminal charge-: against Martin, cannot, with any reason, be made equivalent to an . real tender, followed by a consignment. C. C. art. 2167.
    ' Robert Mott and T. J. Semmes for Defendants and Appellants^
   The opinion of the Oourt was delivered by

Poché, J.

The Sugar-Shed Company is appellant from a judgment condemning it to pay to plaintiff the sum of two thousand dollars, as the alleged value of twenty-six hogsheads of sugar stored for account of plaintiff in one of the sheds of the company, and subsequently removed therefrom and disposed of without this authority or consent.

The company for defense urges its discharge from any liability to plaintiff, on the following grounds:

1st. That the sugar had been stored by one J. J. Martin, who really was the owner of the same, although the receipts bad been taken by him in the name of plaintiff, but that Martin had always retained the control and disposition of said sugar.

2d. That the sugar having been thus stored, as a collateral security for a debt due by Martin to plaintiff, the latter had authorized and empowered Martin to sell and withdraw the sugar, so as to raise the funds necessary to pay and settle his indebtedness to plaintiff.

3d. That subsequently Martin or some one on his behalf had offered to pay plaintiff in full.

The first question to bo considered is the refusal of the District Judge to grant a new trial to defendant, on the ground of newly discovered evidence.

The president of the company, in support of the motion for a new trial, swears that since the trial he had discovered that while testifying before a committing magistrate in this city, in a criminal prosecution against Martin, on a charge growing out of these identical sugar transactions, plaintiff had-made the following statement in reference to this very matter : “ After the note came due, Martin came to my office, and he says : ‘ Mr. Mathé, I am going to Vicksburg, and I can’t pay you that note, because I did not sell that sugar yet. I am going there to get some money, and I wish you would renew that note for me one month more.’ I did so.”

Appellant urges that this statement shows consent on the part of plaintiff to the withdrawal of the twenty-six hogsheads of sugar by Martin, and that this would change the result of the litigation.

We do not think so. The receipt under which the sugar was stored reads in substance as follows :

" New Orleans Sugar-Shed Company,
“ New Orleans, May 25, 1875.
“ Deceived for account of Mr. Louis Mathó fourteen hogsheads of sugar, marked J. B., twelve hogsheads sugar, marked B.
“John L. Monies, Clerk,”

The company, under its charter, is subject to the operation of Act No. 150 of the Legislature of 186S, regulating the issue of receipts or bills of lading by cotton-presses, wharfingers, and others receiving produce and other goods in storage. And its rights and liabilities in this ease are to be tested under section four of said act, which reads as follows :

“ That no cotton press, wharfinger, or other person shall sell or incumber, ship, transfer, or in any manner remove or permit to be shipped, transferred, or removed beyond his control any goods, wares, merchandise, grain, flour, or other produce or commodity for which, a receipt shall have been given by him as aforesaid, whether received for storage, shipping, grinding, manufacturing, or other purpose, without the written assent of the person or persons holding such receipt.”

Admitting, for the sake of argument, that the verbal consent of plaintiff could operate a discharge of the company under this stringent rule, we are of opinion that the statement of Mathé, relied upon by appellant for a new trial, does not establish such a consent. It could at most show consent to sell the sugar before enforcing payment of the note which it was intended to secure, but it cannot be construed to mean an authority to withdraw the sugar from the shed before payment of the debt.

It would be folly for a creditor to take such security for debts, and allow the debtor, by his own act, to cancel the receipt and the security by disposing of the property thus stored in the name of his creditor, as a security for his debt.

Besides, we see that plaintiff had been questioned by counsel touching this very statement, which he had made before the committing magistrate, and he explains it in a manner which is conclusive against appellant’s construction of his statement; and this interrogatory by appellant’s own counsel suggests the surmise that the evidence was not entirely discovered after the trial of this case.

The motion for new trial was therefore properly overruled.

On the merits, we see no strength in the defense set up by the company :

1st. On the first ground, as to the ownership of the sugar, the evidence shows that the company received the sugar for account of Louis Matlié, and it cannot be allowed to deny its own formal receipt. Mathé was the party holding the company’s receipt, and under the law he must be protected as the owner of the sugar.

The fact that Martin, who was a sugar-broker, stored the sugar, cannot affect the rights of plaintiff or modify the responsibility of the company. The fact that he frequently stored sugars in the sheds, taking receipts in his own name, and that on this occasion he took the receipt in' the name of Matlié, was ample notice to the defendant that 3ao one but Mathé could control, remove, transfer, or otherwise dispose «of the goods thus stored.

2d. The second ground of defense, the alleged authority of plaintiff ■‘-to Martin, empowering him, at his will and discretion, to remove the jsugar, is not better substantiated by the evidence.

Martin himself does not swear positively that he was thus authorized, for, on cross-examination, in answer to a direct question on this ¡point, .he says: I so understood it.” And, on the other hand, Mathé repeatedly and positively denies having given any such authority. The fact of his exacting from Martin the company’s receipt for twenty-six 'hogsheads sugar in his own name, as a condition precedent and “ sine qua non” of his lending him the §2000, and the ordinary prudence characterizing the conduct of money-lenders, strongly corroborated his testimony, and allows no reason to even suspect or presume such a consent.

In this connection, defendant introduced, and the court a qua admitted, notwithstanding plaintiff’s objections, the testimony of several witnesses for the purpose of proving the existence of a habit or custom .heretofore prevailing among sugar dealers and brokers on the levee •cand the Sugar-Shed Company, under which goods stored in the sheds ■were usually delivered to agents, brokers, and clerks, without the express authority, written or otherwise, of their principals, or employers, or of those holding the company’s receipts. This ruling of the judge was manifestly erroneous. No evidence can be admitted to show habits ■ and usages of trade contrary to law, and especially to a law so positive and prohibitory in its character as Act No. 150 of 1808, which goes so .Mar as to provide criminal penalties for its infraction. Defendant could «certainly not claim immunity from the operation of this statute ; nor to he exempt from the force and effect of all laws governing the rights and inabilities of all persons receiving produce, goods, or other commodities ;in storage, and even when such storage, as in tlie case of this company, iis made compulsory on the owners of the merchandise.

3d. In the third place, we can’t see how the liability of the company holding the property of plaintiff can be affected by any offer made to .'.him by his debtor, Martin, or some one in his behalf, to settle the in- • debtedness secured by the transfer of the sugar, which thus became his ■property. The evidence, besides, fails to show conclusively that an un¡conditional tender of the whole amount due by Martin to plaintiff was «at any time made to Mathé, by Martin, or his brother, or his attorney. The instructions conveyed by the telegrams of his brother, and the •very nature of things, show that the motive of the latter in sacrificing Ms own means, for the payment of that particular debt of his brother, was to release him from the clutches of the law in the criminal prosecution pending against him, and to screen the family name from a lasting stain. No offer of a settlement was made before the criminal proceedings were begun. None would have been made, if no criminal prosecution, with an unpleasant prospect of success, had been instituted against J. J. Martin. And if, under such a belief, plaintiff did refuse a settlement in full, conditioned upon his withdrawing and retracting the charge which he had seriously preferred against Martin, he fearlessly performed & citizen’s duty, for which his conduct is commendable, and it should certainly not impair his rights to recover property which he had entrusted for safe keeping to the defendant.

The company assumed a full and legal responsibility for the sugars which were stored in its shed; it allowed the sugars to be removed,sold, and transferred, without the authority or consent of the person holding its receipt; its liability is therefore fixed by law, and was correctly adjudicated by the court a qua.

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


author: Fenner, J.

text:
    No. 4849.
    Mrs. Widow Simeon Perrault, Tutrix, vs. Octave Perrault et al.
    Under the law of Louisiana, the general rule forbidding the establishment of title to real estate by parol evidence, finds no exception in the case of a fraudulent violation of an alleged parol mandate to buy. The decision in Hacltenburg vs. G-artskarap, 30 An. 898, affirmed.
    Prescription against the action of forced heirs for the reduction of excessive donations, only begins to run from the death of the donor.
    Article 1556 of the Civil Code of 1825, by which donations inter vivos were revoked, up to the disposable portion, by the subsequent birth of children to the donor, was a law based upon considerations of public policy, and not passed in view of giving to the donor any .right or privilege in any manner personal to him. Therefore, the Act of the Legislature of 1855, repealing the said Article of the Code, cannot be considered as having a retroactive effict, or impairing any obligation of contracts, or affecting vested rights.
    j^PPEAL from the Eifth District Court, parish of Orleans. Cullom,

    L. Oharvet and G-. Duplantier for Plaintiff and Appellee.
    Einney & Miller for Defendants and Intervenor, Appellants.
   The opinion of the Court was delivered by

Fenner, J.

In August, 1850, Simeon Perrault made a donation ■inter vivos of certain immovable property to Octave and Marie Per-rault, defendants herein. He subsequently married and had five children.

Simeon Perrault died in 1866, intestate, without property, and leaving-four children surviving him.

This action is brought by plaintiff, as tutrix of said children, for the? purpose of having said donation reduced to the disposable portion, and to have the remaining two thirds of the property declared to belong to-the estate of their deceased father, and to them as his natural heirs.

To this action the defendants filed a general denial, and also pleaded the prescription of ten and twenty years.

Mrs. Appolinaire Perrault, the mother of defendants, intervened in the suit, alleging that she was the real owner of the property ; that the-same had been bought by Simeon Perrault as her agent, and the cash-portion of the price had been paid with her money, entrusted to him for the purpose; that the credit portions of the price had been wholly paid by her ; that, fraudulently and without her knowledge or consent, said, Simeon Perrault had taken the title to the property in his own name r. that she had always possessed and administered the property; had paid the taxes ; had built on the property at her own expense ; and that Simeon Perrault had never disputed her ownership ; that she was not a party to the donation made by Simeon to defendants, which act she-claims to be consequently null and void ; and she therefore prayed that she be decreed to be the lawful owner of the property fraudulently conveyed to Simeon Perrault, her agent, and that the act of donation be-declared null and void.

There was judgment in favor of plaintiffs and against defendants, and dismissing the intervenor’s demand, from which judgment defendants and intervenor have appealed to this Court.

Appellants complain of the proceedings and judgment in the lower court in the following particulars, viz.:

1st. That the judge excluded parol evidence offered by the appellants to establish the agency of Simeon Perrault in the purchase of the property, his fraud in taking the title thereto in his own name, and the other allegations of the intervenor, for the purpose of establishing that the real title to said property was in intervenor.

The question of the admissibility of parol evidence for the purposes above stated has been the subject of conflicting and irreconcilable decisions. Wo must, however, regard the recent case of Hackenburg vs, Gartskamp, 30 An. 898; as settling the controversy, adversely to its admissibility. The opinion of the majority of the Court and the dissenting opinion of Mr. Justice Egan, in that case, establish that the question was exhaustively considered, all the authorities reviewed, and all the reasons pro and con fully discussed. We are not disposed, and see no-good reason, to disturb the conclusion reached by the majority of the? Court, that, under the law of Louisiana, the general rule forbidding the establishment of title to real estate by parol evidence finds no exception in the case of a fraudulent violation of an alleged parol mandate to buy. The principal in such case, whose money has been misapplied, or who has been otherwise injured by the fraudulent conduct of his agent, must find redress in his personal action for pecuniary indemnity. The? evidence was therefore properly excluded.

2nd. It is contended that the donation to defendants was a “remunerative donation,” and therefore only reducible in accordance with art. 1513, Rev. C. C. The clause of the donation from which the remunerative character is sought to be deduced is the following: Lequel ert reconnaissance des bons soins que lui a portes sa belle soeur, dame Per-rault, et voulant donner des preuves de sa tendresse a ses niéce et neveu Marie et Octave Perr.ault, * * a, par les presentes, fait donation entre? vifs, pur et simple,” etc.

The remunerative character of a donation should appear upon its: face ; and we do not find in the words above quoted any recognition or discharge of any obligation, but a simple declaration of motives for giving. Besides, as the donation was made, without the knowledge or consent of Madame Perrault, as she alleges in her intervention, and to others than herself, it is plain that the acceptance by the donees would in no manner affect her right to claim for any services she might have-rendered, if so entitled.

The judge properly excluded parol evidence to establish the nature- or value of these services.

3d. The plea of prescription was properly overruled. The minors, who were entitled to the benefit of this revocation, could not have brought their action until after the death of their father, who died in. 1866, and the action was brought in 1872.

4th. We are of opinion, however, that the share of the plaintiffs in the property is only one half, instead of two thirds, as allowed in the judgment of the Court. The evidence shows that only two children were born to Simeon Perrault prior to March 15,1855, on which date the act of the Legislature was passed repealing the provision of the Code revoking donations inter vivos on account of the subsequent birth of children.

The effect of the birth of those two children was to reduce the donation by one half, and it was not revived by the death of one of them, but continued and inured to the benefit of the donor and his heirs. Art. 1559, former Code.

But we are of opinion that the birth of children after the repealing: act of 1855 had no effect whatever on the donation. This is not giving-a retrospective effect to the law, in any sense, nor does it interfere with any vested right or impair any obligation of a contract.

A reference'to articles 1556, 1557, 1558, 1559, and 1560 of the former «Code will show that this cause of revocation is not given to the donor as a right or privilege in any manner personal to him. It is a cause of revocation established by the law upon considerations of public policy, -which takes effect by operation of the law itself, and so completely independent of the will of the donor that he can neither renounce it in advance, nor revive the donation thus revoked by any confirmative act, and, if lie wishes still to give the property to the donee, can only do so sby a new and original act of donation.

It is manifest therefore that, as this cause of revocation only takes «effect by operation of law, as soon as the law giving such operation •«ceases to exist the subsequent birth of children can have no effect -whatever on the donation.

5th. It is contended that the judgment is erroneous, because it awards to plaintiffs a share of both property and improvements, whereas -the donation was only of the naked property. The improvements must -go with the property. If, as alleged by Mrs. Perrault, they were erected t>y her, and at her own expense, she “must seek her remedy under those provisions of law governing the rights of persons who have made constructions on the land of another.

It is therefore ordered, adjudged, and decreed that the judgment «appealed from be amended so as to reduce the proportion of the property awarded to plaintiffs from two thirds to one half thereof, and that, as thus amended, the said judgment be affirmed, appellees to pay costs <of appeal, and appellants those of the lower Court.


author: Bermudez, C. J.

text:
    No. 7897.
    State ex rel. Jos. Hernandez vs. Don A. Pardee, Judge, etc.
    TSTo provision was specially made by the Constitution of 1879 for the administration of justice in the Sixth and Seventh Municipal Districts of the City of ÜSTew Orleans, during the interval between the first Monday of April and the first Monday of August 18S0.
    therefore, under the provisions of Art. 259 of the same Constitution, and for reasons of public «order and of absolute necessity for the administration of justice, the laws, in existence atitbe time of the adoption of the Constitution, which placed those Sixth and Seventh Municipal Districts under the jurisdiction of the Second Judicial District Com t, are still in force in that particular respect, and that Court, so far as those Sixth and Seventh Municipal Distiicts are concerned, is still in existence, and the Judge presiding over it, still in office. This order of things will remain so until tho first Monday of August 188 0.
    Application for Writ of Prohibition.
    Thos. J. Semmes & Francis B. Lee for Relator.
    A. G. Brice for Respondent.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a prohibition to prevent the defendant from acting as District Judge over the Sixth and Seventh Municipal Districts of the parish of Orleans. To the demand a return is duly made.

The constitution of 1868 did not assume to divide the State into judicial districts, but vested the General Assembly with plenary powers to organize the judiciary department for those districts throughout the State, save probably, in the parish of Orleans, for which same ■district provisions were made.

By an act of 1860 the Second Judicial District had been declared to be composed of the parishes of Plaquemines, St. Bernard, and Jefferson-This law remained unaltered until by subsequent acts portions of the parish of Jefferson, including the town of Carrollton, were detached from it, and annexed as the Sixth and Seventh Municipal Districts to the parish of Orleans. By the act of 1874 the last portion was “ to remain and constitute part of the Second Judicial District.”

The exercise of such power of dismemberment was expressly recognized by this Court, on good authority, as within the legitimate scope of legislative sovereignty. 29 A. 781.

In 1876 the Legislature passed an act to define and extend the limits of the Second Judicial District. Under its operation the Sixth and Seventh Municipal Districts of the parish of Orleans were taken ■out of the jurisdiction of the courts for the parish of Orleans, and added to the territorial jurisdiction of the Second Judicial District Court.

In November, 1876, Don A. Pardee was elected Judge of the Second Judicial District, was commissioned, qualified, and entered upon the •discharge of his functions. The four years for which he was elected were to expire on November 1st, 1880.

By act 83, of the constitution of 1868, the judicial districts were to remain unchanged for four years when once organized.

In 1877 the Legislature passed an act, No. 85, to repeal the act of 1876, with a clause that it would take effect only at the expiration of the term of the then judge of that court.

The constitution of 1879 next followed. By article 108 the territory •over which the Second Judicial District had jurisdiction was can tied ; the parish of Jefferson was annexed to the Twenty-sixth Judicial District, -consisting, besides, of the parishes of St. Charles and St. John the Baptist.

The confines of the parish of Orleans, of which the Sixth and Seventh Municipal Districts formed part, remained untouched. Special provisions, found in article 128 and following, were made for the organization of the judiciary within its limits.

At the last general election' District Judges were elected to the-courts whose jurisdiction extended over the parishes of Plaquemines, and St. Bernard, and, besides, over that of Jefferson.

In the parish of Orleans, five judges were appointed by the Executive to compose the Civil District Court, two to compose the Criminal District Court, two judges were elected by the Legislature to compose a Court of Appeals, and several city judges were elected by the-people.

By article 130, $ 2, of the constitution of 1879, the Civil District: Court of the parish of Orleans was given exclusive and general and probate and exclusive civil jurisdiction over the parish of Orleans in the causes mentioned, and provision was made for the jurisdiction o£ the Criminal District Court.

By article 264 it was declared that all officers, whose election or appointment is provided by that constitution, should enter into office on the first Monday of April, 1880, after compliance with legal requirements.

By article 266 the judicial officers appointed or elected for the-parish of Orleans were not to enter upon their functions until the first Monday of August, 1880, and the incumbents in office were to continue-until then in the performance of their duties.

It is manifest from this statement, which is exact and full, that no> provision was specially made by the constitution for the administration of justice in the Sixth and Seventh Municipal Districts between the first Monday of April and the first Monday of August, 1880.

Were it not for the salutary provisions of article 259, which were-wisely intended to guard against any disturbance of the equilibrium of the government, the result would have been an interregnum, fraught with all its horrible attending consequences, anarchy and confusion., and a complete emancipation of persons within those two municipal districts from all civil actions and criminal prosecution, and all other governmental restraints.

That article provides:

“In order that no inconvenience may result to the public service* from the taking effect of this constitution, no office shall be suspended thereby, but the laws of the State relative to the duties of the several officers, Executive, Judicial, and Military, shall remain in full force, though the same be contrary to this constitution, and’the several duties-shall be performed by the respective officers of the State, according to existing laws, until the organisation of the government under this constitution, and the entering into office of the new officers to be appointed or elected under said government, and no longer.”

The territory of the Second Judicial District, as it existed under the -constitution oí 1868, was cantled by the constitution of 1879, but the parish of Orleans was not dismembered.

The District Judges elected for the Twenty-fourth and Twenty-sixth Judicial Districts were qualified. The moment that the.Second Judicial -Court, which had jurisdiction over the territory falling under, their jurisdiction, ceased to exist quoad the detached territory, i. e. the first Monday of April, 1880, those judges were qualified to enter upon their respective duties. Their courts were not courts succeeding the Second Judicial District Court; they were not judges succeeding the Judge of the Second Judicial District. Their courts were new courts ; they were new judges with different territorial jurisdiction, with different attributions and powers. There was to be no new court, no new judge to exercise jurisdiction over the Sixth and Seventh Municipal Districts of the parish of Orleans after the first Monday of April, 1880. The courts previously organized were to cease to exist on that day, provided there was a valid or sufficient judicial power to be exercised at the time of their extinction and competent to replace them, practically.

It is upon this principle, which is based on considerations of political economy of the highest order, which imperiously require in every well-organized government a judicial power for the administration of justice, and without which society is impossible, that the case of the State ex rel. Cheevers vs. Duffel, just decided, was made to rest.

As there was no provision by the constitution of 1879 for the exercise of a competent judicial authority within the circumscription of the Sixth and Seventh Municipal Districts of the parish of Orleans, for the period between the first Monday of April and first Monday of August, 1880, it follows, ex necessitate, that the District Court and the judge thereof, that had jurisdiction prior to the first Monday of April, 1880, over those municipal districts, have continued to exist, and will so continue until the first Monday of August, 1880, when the Civil District Court for the parish of Orleans will be organized and be put in operation.

If it be true that the Second Judicial District Court, having jurisdiction over the Sixth and Seventh Municipal Districts, absolutely died away on the first Monday of April, it must have been replaced, to that extent, by some judicial authority clothed with even civil and criminal powers.

What is that authority ? Is it the Civil and Criminal District Courts, created by the constitution theoretically in existence, and whose judges are known but powerless ? But those courts are not to go into operation until the first Monday of August next, under the very terms of the constitution. Is it the First District, or the Superior Criminal Courts? Is it the Second, Third, Fourth, Fifth, and Sixth District •Cou,rts for the parish of Orleans? Where, if so, is the constitutional provision which enlarges the jurisdiction which they had prior to the first Monday of April, so as to include within their territorial limits the Sixth and Seventh Municipal Districts ? Which of those courts having concurrent jurisdiction could assume to proceed with the causes pending in the previous courts ? Those questions cannot be solved in the sense contended for by the relator, unless the judiciary arrogates to itself the power of legislation, a thing which it has neither the right nor the will to do.

It is not possible to construe legally, not even plausibly, the act of 1877, so as, under its language, to abridge the term of office of the defendant. The Legislature intended that the act should not go into effect until the term, for which the incumbent was elected, has expired, that is in November, 1880 (29 A. 783); but what the Legislature could not in the contraction of its powers do, had it intended to do, the Convention could do, and has done, by shortening the term to the first Monday of August, 1880.

In 1812 a question somewhat similar to the one which has just engaged our attention was elaborated by the members of the Superior Court of the State, among whom were Judges Martin and Mathews, in a letter to the Senate upon their rights to act as the judges of the State. They had previously been judges of the Superior Court of the Territory of Orleans, and they claimed to hold over and continue in office as judges of the Superior Court of the State. Their letter is reported in 3d Martin, p. 1, and well deserves the attention of the Bench and the Bar.

As they then said, we now say:

“Wisdom is to be presumed in the Convention, and wisdom directs ■the means adequate to the end.

“The end was to prevent inconveniences as might arise from the change of government.”

In furtherance, therefore, of the wise regulations of article 259, we now declare that the District Court, which was known as the District Court for the Second Judicial District, though defunct, eo nomine, as concerns the parishes of Plaquemines, St. Bernard, and Jefferson, is still a District Court, having the same civil and criminal jurisdiction as it ■had previously over the Sixth and Seventh Municipal Districts of the parish of Orleans, that the defendant is still the Judge thereof, is clothed with the same powers as heretofore, and that both will continue to be until the first Monday of August, 1880, -when the Civil and Criminal District Courts for the parish of Orleans will be organized and put in motion.

It is utterly impossible to arrive at a different conclusion, without provoking a total disruption of the functions of all government in those Municipal Districts, and without sanctioning consequent cataclysm, with the high authority of this Oourt.

Before such frightful result we necessarily do stand aghast, an<® rule as we consider it is our solemn duty to do.

It is therefore ordered that the application for a prohibition herein be rejected with costs.


text:
    No. 6686.
    Mrs. Johanna Dillon vs. Luke Dillon, Her Husband.
    This Court will presume that the Court a qua properly exercised the discretion vested in in refusing a continuance claimed on the ground that Defendant’s Counsel was unavoidably absent and engaged in the actual trial of a cause in another Court, if tbe Pecordí does not contain the proof of the facts upon which the continuance was asked for.
    The rule of law that both parties should be dismissed when guilty of mutual wrongs, has its-qualifications in suits for divorce, and only applies when the wrongs are similar in nature* and so proportional as to render it difficult to ascertain which party is mainly in fault.
    The testimony of the husband and of the wife is inadmissible in a suit for a divorce. Suchi cases do not come within the exception of article 2281 of the Civil Code. The rule of exclusion of the testimony is founded upon considerations of public policy and morality-
    APPEAL from the Fifth District Court, parish of Orleans. Michinarcl„ Judge acl hoc.

    Braughn, Buck & Dinkelspiel for Plaintiff and Appellee.
    Chas. S. Rice for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The first question to be disposed of in this case is the claim of appellant to have the cause remanded to be tried over again on the ground that the judge a quo improperly refused a continuance oí the case on the day fixed for trial, and tried the case when the only-counsel of defendant was unavoidably absent, engaged in the actual trial of a cause in another court.

AVearenot prepared to say that if the facts alleged were proved,, and in the absence of explanatory circumstances to justify the action of the judge, such a refusal to grant a continuance would not afford proper ground for relief in this Court. But we must take the record as we find it, and can only predicate our action on what appears therein.

This record contains nothing to establish the state of ease upon which appellant’s claim for relief is founded.

Nothing appears connected with the taking up of the ease for trial except the simple entry that “ Chas. S. Rice, for defendant, did not appear.” There is no statement of any application for continuance or refusal thereof.

In the rule for new trial, it is true, the facts above set forth are stated as one of the grounds ; but, though the affidavit of the defendant is attached to the rule making oath to the truth of certain facts therein, it does not include these. The rule was regularly fixed for trial. On the day fixed, the entry shows that the counsel for defendant was again absent.

No testimony was taken, and the rule was .submitted, and was decided simply as follows : “The Court seeing no reason to change its opinion herein as heretofore expressed — it is ordered that said rule be dismissed.”

Pacts averred in support of an application for new trial must be •either admitted, or proved, like any other facts. They cannot be taken as established by merely being alleged in pleading.

All the circumstances were necessarily within the personal knowledge of the judge, and, in the absence of positive proof to the contrary, we are bound to assume that he exercised the discretion in him vested properly.

Ox the Merits.

This is an action for separation from bed and board and for ultimate divorce, on the grounds of ill-treatment, excesses, and misconduct on the part of the husband, of a nature to render their living together insupportable ; for the dissolution and settlement of the community of ac-quets and gains ; for restoration to the administration of her separate property, as well as of the property of her minor child by a former marriage, in her capacity of natural tutrix ; and for judgment against the husband for certain paraphernal funds which she claims to have entrusted to him.

We have examined, with great care, the voluminous evidence touching the conduct of these spouses toward each other. The cruel treatment, outrages, and personal violence on the part of the husband toward the wife, continually and constantly repeated, going so far as a determined attempt to kill her on one occasion, and frequently accompanied with murderous threats, were certainly such as to render her living with him insupportable. The only refuge of the defense was, by establishing violent temper, abusive language, holding her own in furious quarrel, and like misconduct on the part of the wife, to bring the case within the rule that both parties should be dismissed when guilty of mutual wrongs. But, as well said by Judge Spofford, in the case of Thomas vs. Taillen, 13 A. 127, “ that rule has its qualifications. The wrongs should be similar in nature, and so proportional as to render it difficult to ascertain which party is mainly in fault. * * The excesses, outrages, and cruel treatment of the husband toward his wife are enormous as compared with the faults of which she is shown to have been guilty, and were themselves the exciting cause of those faults, not their result.”

Such we find to be the case here. In another case, in excusing the violence of a husband toward a termagant wife, Judge Martin said: ■“ husbands are men, and not angels,” The i>laintiff here, though a •woman, has certainly shown that she is not an angel; which she must Imve been, however, to have enduredJ the violence-of defendant with patience, and his abuse without retort.

Her case as presented in this evidence entitles her to relief. We Shave reached the foregoing conclusions from the testimony of other witnesses than the husband and wife, whose evidence, we think, was improperly admitted. Article 2281 of the Revised Oivil Code retains the very words of art. 2260 of the former Code, when it declares that the husband cannot be a witness for or against the wife, nor the wife for or against the husband;” adding, however, this exception: “but in any -case where the husband or wife majr bo joined as plaintiffs or defendants, ■and have a separate interest, they shall be competent witnesses for or ■against their separate interests therein.” The husband and wife clearly ■are not joined as plaintiffs or defendants in this case, and, therefore, do not fall within the terms of the exception. It follows, therefore, that their rights to testify are governed by the same rule which prevailed under the Code of 1825. Whatever inconvenience, and even injustice, may result from their exclusion in such cases as this, they are only such as existed for years before the alteration of the law, and if in such alteration the lawgiver did not see fit to remedy and remove them, it is not fn our power to do so.

The counsel refers to the case of Meyer vs. Smi:-h, 24 An. 153, as -establishing a contrary doctrine ; but, on referring to that case, we find •that counsel was misled -by a faulty head-note, and that the decision, itself does not sustain him.

The rule on this subject has been held to be founded on considerations of public policy and morality, Tully vs. Alexander, 11 An. 628, •and the law is prohibitory in its terms, so that we are bound to reject and disregard the evidence of the spouses, without reference to the. shape in which objections to it, at time of offering, are presented.

Outside of their testimony, we find no sufficient evidence in the ■ record upon which to affirm the [judgment of the court a qua, so far as the same determines the status ofjthe property therein referred to, or sa-far as the same condemns the defendant to pay to plaintiff the sum of one hundred and [eighty dollars.

It is therefore ordered, adjudged, and decreed that the judgment-anpealed from, so far as it decrees a separation from bed and board. ' between the parties to this suit, be affirmed ; that the remainder of said judgment fixing the status of the various properties therein referred to- and condemning the defendant to pay to plaintiff the sum of one hundred and eighty dollars, be avoided and reversed, without prejudice to the right of the parties to assert and vindicate their respective claims to said property and moneyed rights in the partition proceedings, or otherwise.

And it is further ordered that the cause be remanded to the lower court to be proceeded with before the nqtary designated, or to be designated by the said court, for the liquidation and final partition of the community of acquets and gains, and for settlement of the rights of the parties. The costs of appeal to be paid by appellee, and those of the lower court by appellant.


author: Levy, J.

text:
    No. 7838.
    Mrs Mary A. Nichols, Natural Tutrix, vs. Drury A. Harris.
    On Motion to Dismiss.
    Testimony taken on tlie trial of a case by a plionographer, under the provisions of Act Ho. 9Í of ] 876, is testimony taken in writing, although, tlie phonographic notes of the officer may never afterwards have been transcribed or translated into ordinary writing, owing to some accident. In that case, the Appellant is not compelled to have the statement of facts-made out, which Article 602 of the Code of Practice requires.
    The fault of the insufficiency of the Record, under such circumstances, not being imputable to Appellant, held that the Appeal should not he dismissed, hut the case remanded for a new trial.
    PPEAL from the Fifth District Court, parish of Orleans. Sogers, . J.
    Merrick, Race & Fostqr for Defendant and Appellee :
    The witnesses were heard in open court. By consent of Counsel, the case was thereupon submitted, and the District Judge rendered liis judgment on that oral testimony, because the written report of the phonograplier was never filed.
    It is clear that Appellant should have had a statement of facts made out, as required by Art. 602, O. P. The Appeal should be dismissed because the fault, if the testimony was not noted in writing, is attributable to Appellant. 29 An. 71 ; 25 An. 667; 23 An. 746; 22 An. 83. The Act of 1876, No. 94, makes it the duty of the shorthand reporter to “ furnish and file in Court within ten days” of the taking of the testimony a transcript thereof. It was the duty of Appellant’s Counsel to look after it and have the deficiency remedied.

      Cotton & Levy for Plaintiff and Appellant:
    The testimony having been taken in writing by the short-hand reporter, in the manner prescribed by the Statute of 1876, Appellant was not required to call upon opposite Counsel for a statement of facts. The fault is, in no manner, that of Appellant, and, therefore, the ease ought to be remanded for a new trial. 23 An. 28 ; 25 An. 860. /
   The opinion of the Court was delivered by

Levy, J.

This case is before us on a motion to dismiss the appeal. The judgment herein was signed on the 18th of February, 1879 ; appellant filed her petition for a devolutive appeal, and the same was granted on the 11th of February, 1880. In the certificate of the clerk, it is certified that the transcript is a full and complete one of all the proceedings had, testimony and evidence adduced, and all the documents filed upon the trial of the case, “ except the depositions of S. Cot-ten, Mrs. Nichols, and D. A. Harris, which the affidavit of Bichará Nixon, short-hand reporter, shows have been stolen and cannot be found or supplied.”

The affidavit of Nixon, the reporter, was made on the 1st of March, 1880, and sets forth that he as short-hand reporter, “ took down the depositions of S. Cotten and Mrs. Nichols, for plaintiff, and of Drury A. Harris and others, for defendantthat after the adjournment of the court, he took his notes of the testimony to his boarding-house, where they were extended, and the testimony written out in full or translated into “ long-hand,” and, without negligence or want of proper cafe on his part, they were stolen, and have not, although he has made diligent search, been recovered. The Judge of the Fifth District Court, by whom the case was tried, certifies of date the 13th March, 1880, that the case was tried before him, and submitted on the testimony taken and the documents in evidence in the case, and judgment was rendered thereon; that among the witnesses who testified were Mrs. Nichols, plaintiff, D. A. Harris, defendant, Samuel Cotten, Dr. N. Jenkins, whose testimony was taken down in short-hand or phonetic characters by Richard Nixon, the phonographer, in open court, but the testimony of said witnesses was never returned into court nor filed therein, and so far as to the said witnesses, the judgment was rendered on their oral testimony ;” that he has “ never been applied to to make a statement of facts in the case, by either appellant or her counsel, or by any other party, either before or since the taking of the appeal herein.” There is, also, a certificate from S. L. Poloch, phonographer, to the effect -that he acted as phonographic clerk on the first day of the trial of the casQ, and, having other duties to perform on the second day, employed Nixon to take his place; that about fifteen or twenty days after the trial he presented his bill to Mr. Levy, one of the counsel of plaintiff, who refused to approve it, saying that Nixon stated his notes had been stolen, and he (Levy) would not approve the bill unless the notes were transcribed, and the testimony thus transcribed was filed in court.

The appellee moves to dismiss the appeal, on the grounds “ that the transcript of record filed herein is incomplete and imperfect, and does not contain the evidence upon which the case was tried in the court below, and the appellant has not made the effort, and has failed to take the proper steps to complete the record and place the testimony on which the ease was tried in the court below before this court.”

Appellee cites article 89G, Code of Practice, which requires : “ That If the copy of the record brought up be not duly certified by the clerk of the lower court, as containing all the testimony adduced, the Supreme Court can only judge of such cause on a statement of facts prepared and signed in the manner directed in the second section of the sixth {should be fifth) chapter of the preceding title,” etc. Referring to the article G02, C. P., we find that this statement of facts is only authorized “when the depositions of witnesses have not been taken in writing in the inferior court.”

But it is contended by appellee that in this case the testimony was oral, and could not be regarded as testimony taken down in writing, until the same was transcribed by the plior'-rrapher. and, being written ;u.- in lull, filed in the record. Act No. 9i oessior acts of 1876, p. 150, am r.i-iizing the appointment of short-hand reporters, in section 8 defines the duties of short-hand reporters appointed under the provisions of the act to be, to report all testimony taken in open court in all ap-pealable civil causes, and furnish and file in court within ten days of the taking of the same a transcript of the said testimony, printed or written in a legible hand. We are of opinion that the notes of the stenographer, taken when the witness gives his oral testimony in court, is a “ taking in writing” as contemplated by article 602. It is true this short-hand report may be illegible or unintelligible to others than the reporter himself, hut it is the writing, the taking down, word for word, of the oral testimony, under the eye and within the hearing of the court, by a sworn officer, and when transcribed is to be filed in the record. It cannot be transcribed unless previously taken down in writing, and when thus transcribed and filed, it is only an intelligible translation of written testimony, taken in short-hand or phonetic characters, into characters generally understood. Hence, we conclude that this was not a case falling within the operation of the articles 896 and 602 of the Code of Practice. The parties by consent might have agreed upon a statement of facts, or agreed that the court should make such statement, but they are nowhere required to do this, and their Miare or even refusal to enter into such agreement to supply tlie lost or missing testimony cannot be urged against them as a reason for the dismisssl of the appeal. The loss of the short-hand report and the transcribed testimony, and consequent incompleteness of the record, is not attributable to the appellant, and although by consent of parties this loss might have been supplied by a statement of facts, the failure to present such statement, or even to endeavor to obtain such consent, cannot be regarded as a legal fault, and should not be visited with a dismissal of the appeal We have no right to prescribe any rules of practice or suggest the course of management of a case to counsel, particularly when the Code and law do not explicitly point them out.

5 An. 602; 12 An. 88 ; 23 An. 28 ; 25 An. 216.

The motion to dismiss is denied, and adopting the precedent in the case of Ferrous vs. Lacoste (not reported), Opinion Book 40, p. 175, it is ordered, adjudged, and decreed that the judgment appealed from bo set-aside, and that this cause be remanded to the lower court for a new trial.


text:
    No. 7881.
    State ex rel. John A. Cheevers vs. Henry L. Duffel et al.
    By the adoption of the Constitution of 1879, the judiciary system created and established under the Constitution of 1868, ceased to exist at the time fixed in the new organic law.
    Tho Fourth Judicial District Court was, therefore, out of existence after the first Monday in tho month of April, 1880, and tho Judge, who had presided over it up to the moment oí its extinction, could not i>retond to hold over, until his successor was appointed ; his own official existence, like that of his Court, had terminated.
    jlSTo Injunction should issuo at tho demand of the Attorney General, and on the ground'd ineligibility, to prevent a District Judge, whose election has been legally promulgated and who has been Commissioned by the Governor, from entering upon the discharged his duties. The question of eligibility must be tried in a different proceeding.
    Application for Writ of Prohibition.
    . James D. Augustin and St. M. Bérault for the Relator :
    The issuance and perpetuation of the Prohibition are prayed for on the following grounds, to wit:
    1st — That the late Fourth Judicial District Court was, and tho present Twenty-Second Judicial District Court is (as a tribunal and irrespective oí the Judge thereof), utterly without jurisdiction to take cognizance of and try the suit No. 2018 of the State of Louisiana ex rel. vs. John A. Cheevers, the relator and applicant herein for the writ of prohibition.

      2.1 — That the Honorable Henry L. Duffel, late Judge of the extinct Fourth Judicial District Court, under the superseded constitution of 1868, is absolutely incompetent, and without any legal title, right, or power whatever, to preside in said Twenty-Second Judicial District Court, and to try said suit No. 2013, or any other.
    3d — That neither the late Fourth Judicial District Court had, nor the present Twenty-Second Judicial District Court has, power and jurisdiction to enjoin and restrain a commissioned District Judge from entering-into his office and upon the discharge of the duties thereof.
    The objections are, in substance, that the suit is coram non judioe — is before one who is not the proper judge — is in a tribunal that is not the proper court — that both are incompetent — ratione materice.

    If these objections are true, then are they well and legally taken against a manifest usurpation of jurisdiction, against a clear, undue arrogation of power — wrongs, for the speedy redressal whereof — for the timely deliverance therefrom — this Honorable Court has ample plenary power — being invested by Article 90 of the Constitution of 1879 with " control and general supervision over all inferior courts,” and power to issue all “ remedial writs.” Thus “ no pent-up Utica ” contracts your power, for an almost boundless control and general supervision are yours.
    J. C. Egan, Attorney General, F. B. Earhart, District Attorney 22d Judicial District, R. N. Sims, E. N. Pugh, Fred Duffel, and Paul Leche for Defendants :
    Articles 196 and 200 of the Constitution of 1879 have no application to a case like this. The one provides for impeachment of a guilty officer while in office. The other provides for removal from office.
    It is Article 171 of the same Constitution which should govern, as it provides that persons like the Relator shall not he elected.

    The Injunction having been applied for in legal form, was properly granted, and can only be dissolved by this Court on appeal. 29 An. 360 ; High, p. 566, No. 780 ; 21 An. 123 ; 29 An. 796 ; 30 An. 78.
    Art. 259, Constitution of 1879, provides that, in order that no inconvenience may result to the public, no office shall he superseded thereby, etc.
    Art. 161, Constitution of 1$79, provides that all officers shall continue, etc., until their successors shall he inducted into office, etc.
    The Fourth Judicial District Court was not wiped out of existence by the Constitution of 1879. It only underwent a change in its numerical designation.
    These questions were elaborately discussed in the year 1812, by the Judges of the Superior Court of the State. See 3 M. 2. Also 10. M. 1.
   The opinion of the Court was delivered by

Bermudez, C. J.

John A. Cheevers was a candidate at the last general election for the office of Judge of the 22d Judicial District Court in this State, and obtained a majority of the votes cast for that position. This result having been announced in the manner required by law, he was commissioned as such judge by the Governor on the 5th of January, 1880, and took the oath of office on the 26th of the same month. On the 2d of April, following, a petition was filed in the name of the State by the Attorney General and the local district attorney, before the Fourth Judicial District Court, charging, for stated reasons, the ineligibility of Cheevers to the office of judge of the 22cl Judicial District ■Court, and asking for an injunction to prevent him from entering upon said office.

The judge then presiding in the Fourth Judicial District Court granted the order, and the defendant Cheevers was accordingly forbidden from acting as judge of the 22d Judicial District.

Oh the 5th of April, the day on which the 22d Judicial District Court was to have been organized under Act 264 of the Constitution of 1879, Cheevers did not, with the usual solemnity attending such acts, open court and enter upon his functions ; but H. L. Duffel, by whom the order of injunction had been issued as judge of the Fourth Judicial District Court, claiming to be still the judge of that Court and to be the acting judge of the Twenty-Second Judicial District Court, and considering himself authorized in the premises, assumed to open and organize the said court.

On April 15, following, under the same belief, and claiming to act in the same capacity, he assumed again to open the said court.

Then and there Cheevers, the defendant in said case, objected to the course pursued by said acting judge, and offered a protest, which was not allowed to be filed. To such refusal a bill of exception was reserved.

On the 16th of April, John A. Cheevers, in the name of the State, applied to this Court for a prohibition to prevent the State officers already mentioned, and said acting judge, from further proceeding in the case brought against him as before stated, and prayed for general relief.

The Court allowed a restraining order, and issued a rule to show cause why the prohibition asked should not be made perpetual.

The grounds relied on by Cheevers are :

1st. That the Fourth Judicial District Court was without jurisdiction to take cognizance and try the suit in question ;

2d. That H. L. Duffel, late judge of the 4th Judicial District Court, was absolutely incompetent and without any power to preside over the 2,2d J udicial District Court;

3d. That neither of said two courts had power to enjoin and restrain a commissioned District Judge from entering into Ms office and upon the discharge of his duties.

The defendants have made separate returns antagonistical to the-pretensions of John A. Cheevers in this Court for the relief sought, and explanatory of their conduct.

The grounds upon which the relator relies, and upon which the-respondents resist him, are so intimately connected and blended that ifc is hardly possible to pass upon the one without determining the others ; we shall therefore deal with all of them simultaneously.

We are clear that the Convention of 1879 intended that at the adoption of the Constitution which it framed the judiciary system created and established under the Constitution of 1868 should cease, and should be superseded, in the manner and at the time provided for by them in the new organic law. Art. 257.

The Fourth Judicial District Court, whose territorial jurisdiction embraced the parishes of St. Charles, St. John the Baptist, St. James, and Ascension, was to exist no more after the first Monday in April, 1880, and two courts were created by the Constitution of 1879, whose-jurisdiction was to extend over that territory, namely : the 22d Judicial District Court, over the parishes of St. James and Ascension ; the 26th Judicial District Court, over the parishes of St. Charles and St. John the Baptist, and besides over the parish of Jefferson, which previously was subjected to another jurisdiction.

Commissioned and sworn as he was, as judge of the 22d Judicial District Court, John A. Cheevers would on the fifth day of April, 1880, have actually entered upon the discharge of his official duties, but for the injunction forbidding him from doing so. Relying upon article 171 of the Constitution of 1879, which provides that certain classes of persons shall be for certain causes ineligible to any office of trust, honor, or profit under the State government, and preferring certain grave charges against Cheevers, the State, represented by its officers, brought the suit already mentioned, and enjoined him from acting as judge of the 22cl Judicial District Court.

Had the Fourth Judicial District Court the right of entertaining such a suit? It may have had, so far as the proceeding contemplated a judgment to declare Cheevers ineligible ; but this is not a question that we can how determine, but one which may come hereafter on appeal. The Fourth Judicial District Court could not, however, issue, as it did, an injunction against Cheevers, who had been commissioned and sworn as judge of the 22d Judicial District Court. The allegation, verified b3f affidavit, that unless the injunction issued the State would sustain irreparable injury, cannot, it would seem to us, be justifiable by any assumed state of facts, for we cannot realize what damage, reparable'or not, the State would suffer in the event that Cheevers had gone into office. The proceeding was not one to remove Cheevers, but one to prevent him from entering into the discharge of the functions of judge of said court, and ultimately to disqualify him absolutely. Had the suit been to remove him after induction, no injunction could have been issued even by the Supreme Court (art. 200 Const, of 1879), to prevent him from further performing judicial acts. The suit brought would have continued without such restraining process, and would have ended only by a final adjudication of the matters at issue, so important is it that judicial officers, who are particularly entrusted with the administration of justice, be not interfered with and molested while fulfilling their functions, unless the interference or molestation be clearly authorized by law.

The petition for an injunction was presented in the name of the State, but the question arises: How can the State, after its highest executive officer had commissioned Cheevers to act as judge of said court, assume the attitude of an ordinary litigant apprehending wrong,. go before one of its subordinate judicial functionaries, and, on the averment of dreaded irreparable injury, ask an immediate suspension of the action of the Executive Department, unrecalled, as it was, by any competent authority, and where the office to be filled is originally vacant., and is not judicially claimed by any litigant setting up better rights ? The State could not do so, in its own exclusive name, in such a case without bringing into sudden and deplorable conflict those two co-ordinate branches of government, which are and should be kept distinct, and independent, and thus disturbing the functions of the government in the administration of justice by the judiciary department. The consequence of such improvident action is verified by the circumstances attending the granting of the injunction complained of, which has practically maintained in apparent authority, acting under color of office, as judge of the 22d Judicial District Court, the late judge of the late Fourth Judicial District Court.

We are, under the exigencies of the exceptional and unparallelled circumstances of this case, constrained to treat H. L. Duffel, not as the judge dejure, which it is claimed he is, but as the judge defacto, acting under color of office, of the 22d Judicial District Court, as, otherwise, if he was no judge at all, we would have no authority to entertain, as we do, the present proceeding against him, and there might possibly exist a wrong without apparent remedy, an eventuality which should by all legitimate means, if possible, be avoided.

There is no force in the objection that the judge of the Fourth Judicial District holds over until his successor shall have qualified. His court being defunct, he officially dies with it. The 22d Judicial District Court is a new court, which does not succeed, but which supersedes the Fourth Judicial District Court, with different powers, duties, responsibilities, and distinct territorial limitations. We are therefore of opinion that •whether or not the case was properly brought before the Fourth Judicial District Court, that court has, at the instance of the State and its officers, transgressed the bounds of its jurisdiction in granting the injunction which it has allowed without any warrant, and the effects of which might have proved so disastrous. All hiatus or interregnum was well provided against by the Constitution of 1879, for the administration of justice in the territory over which the 4th Judicial District Court, previous to the first Monday of April, 1880, had jurisdiction. The 22d Judicial District Court had been created, and there was, in esse and in readiness to discharge the functions of judge thereof, a duly commissioned and qualified officer, who would have done so, had it not been for the injunction illegally issued against him, but which yet he respected.

When that court became defunct, all the causes pending before it were transferred by operation of law to the court provided for to fill the vacancy created by its extinction.

The case No. 2013 of its docket therefore passed to the 22d Judicial District Court, created by the Constitution of 1879 ; but, as it is brought against the person who obtained the majority of votes as judge of that ■c'ourt, and who claims to have been elected such, he is incompetent to determine it or deal with it in any manner, except for the purpose of disposing of it as is provided by act No. 40 of 1880, regulating the trial •of recused cases in the District Courts, the parish of Orleans excepted.

It is not perhaps out of place to remark here that the acting judge should have entertained the protest offered by Cheevers and ruled upon it, in the exercise of his judicial discretion, as he might have thought best under the law, previous to allowing any default to be taken, as was permitted by him to be done, which default will have, necessarily, to be set aside as a nullity, should the defendant have any preliminary defenses to urge which the law requires to be filed before issue joined.

The petition of the relator concludes with a prayer for general relief, which, in a case involving great public interest, may be considered susceptible of all legitimate amplification. Under its cover, we think •ourselves justified in the exercise of our plenary powers within the limits of constitutional boundaries to adjust the matters herein agitated, and to regulate the same, for the preservation of public order and the maintenance of the well-being of society; otherwise, a judicial district of importance might indefinitely be deprived of its judicial officer, to the great and surely irreparable injury and damage of the citizens entitled to protection within its realm.

We consider that H. L. Duffel is not only without authority to act ;&ny longer as judge de facto of the Twenty-Second Judicial District ('Court .in the case of the State vs. Cheevers, No. 2013 of the docket of '■tlie late 4th Judicial District Court, above mentioned, but in any of the ■other cases before said courts ; that John A. Cheevers must be permit-:ted. to enter upon the discharge of his functions as the commissioned : and qualified judge of the Twenty-second Judicial District Court, to try • and. determine all matters therein actually or hereafter pending, except ■thesaid case against him, wherein he shall recuse himself and make the ¿appointment hereinbefore mentioned, and also such other cases in which r-there may be good and valid cause to legally recuse him.

It is therefore ordered, adjudged, and decreed that the prohibition 'herein provisionally issued be made perpetual, that H. L. Duffel be ac-•«ordingly forbidden from acting as judge, either of the late Fourth Judi-<eial District Court or of the Twenty-second Judicial District Court ¿aforesaid ; that the trial of the ease of the State vs. Cheevers, No. 2013 -of the docket of the late Fourth Judicial District Court, and transferred -.%»the Twenty-second Judicial Court, be proceeded with according to ’law, after the appointment of a judge to try the same under the provis-ñoas of Aet No. 40 of 1880, relative to recused cases in district courts -■outside of the parish of Orleans, and that John A. Cheevers be permitted and authorized to enter upon the discharge of the duties of judge ■of the Twenty-second Judicial District Court, without prejudice to the ■rights of whom it may concern to contest his eligibility to that office, Jibe respondents to pay costs of these proceedings.