text:
    No. 12,855.
    State ex rel. New Iberia Telephone Exchange Company vs. Hon. Felix Voorhies, Judge, et al.
    To be legal and valid a citation must be addressed to the company or corporation, and not to the president of the same.
    The lack of a legal and valid citation is such a radical defect in the proceedings that it can be reached and corrected by certiorari exercised under the supervisory jurisdiction of the Supreme Court at any stage of proceedings.
    y^PPLIOATION for. Writs of Certiorari and Prohibition.

      Foster & Broussard for Relator.
    Respondent Judge pro se.

      Todd & Todd for Respondent Edward Boyle.
    Submitted on briefs May 30, 1898.
    Opinion handed down June 21, 1898.
   The opinion of the court was delivered by

Watkins, J.

Relator complains of the legality and validity of the citation which was issued and served upon it, as defendant, in the suit entitled Edward Boyle vs. New Iberia Telephon’d Exchange Company, in the First Justice Court of Sixth Ward of the'parish of Iberia.

The claim of the relator is that the plaintiff, Boyle, filed his suit against it as a corporation domiciled and doing business in said parish, upon a small' and unliquidated claim as the balance due on open account; and that its counsel at once excepted to the citation, and the exception was tried and overruled.

That its counsel filed an answer pleading a general denial, fully reserving its rights under its exception; and thereupon the case was fixed for trial, tried and decided in favor of the plaintiff, and its counsel prosecuted an appeal therefrom to the District Court, unsuccessfully.

Thereupon relator’s petition affirms “ that the judgment rendered by said justice court, and affirmed, by the said District Court, is erroneous, illegal and absolutely null and void, and that all remedies given under the law have been exhausted by him, except this application to have said error and wrong corrected,” etc.

Relator’s counsel aver that the absolute nullity of the citation in the justice court, at which its exception was leveled, consists in the fact that, while suit was brought .against it in its corporate capacity as indicated by its title, no legal citation was issued to or served upon it in the manner required by law.

The respondent returns that the supervisory power of the Supremo Court can not be resorted to, or used as a means of revising judgments of inferior courts “ which have been rendered according to the rules of law and practice and possessed of jurisdictional authority, except when gross injustice has been done;” and he further returns that, in his opinion, “ the citation complained of conforms, in all respects, with the requirements of Art. 1077, C. P. — this case originating in a magistrate’s court, and that the provisions of Art. 179, C. P., do not govern the case,” etc.

He further returns that under Art. 857 a writ of certiorari lies and is only issued when the inferior judge refuses to hear a party or his witnesses, or where he has pronounced' sentence- without having cited him to appear.”

The record of the magistrate’s court shows that the citation complained of is of the following form, viz.:

‘ State of Louisiana, Parish of Iberia, First Justice Oourt, Sixth Ward.
“ Edward Boyle “vs.
“ New Iberia Telephone Exchange, Oor- ^No. 137. porate Under Laws or Louisiana,
Robert F. Hogsett, President.
To Robert Hogsett, President of the New Iberia Telephone Exchange:
“You are hereby cited and required to appear in an action brought against the New Iberia Telephone Exchange, of which you are president,” etc.
And the defendant’s exception is “that it has never been legally cited, nor has any legal citation been served upon him.”
On the trial in the magistrate’s court no reasons were assigned, but in the District Oourt on appeal the respondent said:
“The court being of opinion that the citation excepted to is sufficient to bring the defendant corporation into court, possessing all the requirements of law, being addressed to the defendant corporation through its president,” etc.

And entertaining that opinion he held that the ruling of the magistrate’s court was correct and affirmed the judgment appealed from.

The point made and contended for by the relator’s counsel is that the citation having been addressed “ to Robert Hogsett, president of the New Iberia Telephone Exchange,” is not a valid citation; that in order that it conform to the requirement of the Code it should have addressed to the New Iberia Telephone Exchange as defendant. C. P. 179.

The answer of the respondent, that the provisions of 0. P. 1077 must control in all proceedings in magistrate’s court, is without force, as that article simply requires that that officer shall upon the filing of a suit “ immediately prepare a citation setting forth the amount and nature of the demand, (and) to call the defendant before him to answer said damands,” etc., without making any requirement differing from those of O. P. 179.

In State ex rel. Yazoo & Mississippi Valley Railroad Company vs. Montegudo, Justice of the Peace, 48 An. 1417, the question presented herein was expressly decided and a writ of certiorari maintained.

In that case it was held that a citation addressed to the president of a railroad corporation is an absolute nullity, and a binding and valid judgment can not be founded thereon. It should have been directed to the railroad company — citing the foregoing articles of the Oode of Practice and Jacobs vs. Frere, 28 An. 625.

As we consider that decision exactly applicable, it is unnecessary to cite any other.

In that case we held that thus deciding would not result in the dismissal of plaintiff’s suit, but merely operate a continuance of the cause for service under a legal and proper citation; and we annulled the judgment with a reservation of right in plaintiff to have the cause continued for service. We will adopt that course in the instant cause and enter a similar decree.

It is therefore ordered and. decreed that our preliminary writ of ceo-tiorari be made peremptory, and that the judgment pronounced by the District Judge, and also the one rendered by the justice of the peace, be and the same are hereby annulled and set aside as absolutely null and void because of the illegality of the citation; but without prejudice to plaintiff’s right to proceed to judgment- upon a legal and proper citation, and that respondents be taxed with the costs of this proceeding.


source: Caselaw Access Project

author: Blanchard, J.

license: Public Domain

text:
    No. 12,845.
    Studebaker Bros. Mfg. Co. vs. Fred. Endom, Tutor, et al.
    Heirs of dead wife are sued to make responsible for a community d$bt property inherited by them, which had belonged to the community. Novation is pleaded in this, that surviving husband had, after death of wife, given his own notes for the antecedent community indebtedness, represented by notes, which had been surrendered to him, subsequently sued on and judgment recovered against him. He is called as witness by heirs to prove novation, and was asked whether he individually, or the heirs, owed the notes first given (those of the community), or any part of them. Objection made and sustained that this called for the opinion of the witness:

      field, he should have been permitted to answer and if his reply was in the negative, to explain why no, by giving the facts which lead in his view to extinguishment.
    A 1ST APPEAL from the Fifth Judicial District Court for the Parish of Ouachita. Potts, J.
    A. A. Guriby for Plaintiffs, Appellees.

      Lamkin & Millsaps for Defendants, Appellants.
    Argued and submitted May 81, 1898.
    Opinion handed down June 22, 1898.
   The opinion of the court Was delivered by

Blanchard, J.

Plaintiffs are manufacturers of wagons, carriages, buggies and other vehicles at South Bend, Indiana.

Fred. Endom, a business man of Monroe, La., handling goods and wares such as plaintiffs manufactured, opened an account with the latter in May, 1889.

For several years this account ran, purchases and payments being made from time to time. On July 1, 1898, a balance of two thousand six hundred and eighty seven dollars and seventy-eight cents was due plaintiffs and on that day the account was closed by three promissory notes executed by Endom and delivered to plaintiffs, each note bearing that date and being for the sum of eight hundred and ninety-five dollars and ninety cents, due respectively at five, eight and twelve months.

At the time the indebtedness was contracted and the notes exe - euted Mrs. Catherine Endom, the wife of Fred. Endom, was alive. The community of acquets and gains existed between this husband and wife and the indebtedness was a community obligation. Mrs. Endom died on the 20th of July, 1893, Shortly after the notes were given. She left six children, issue of her marriage with Fred. Endom. Several of them were of age, the others minors, of whom their father became tutor, qualifying as such. All the property appearing upon the inventory of this tutorship had belonged to the community which had existed between the dead wife and the surviving husband.

When the first note given by Endom to plaintiffs matured, it was not paid. Whereupon an agent of plaintiffs appeared in Monroe and finding Endom unable to settle, it was agreed be.tween them that the old notes should be surrendered to Endom and new notes taken for their amount, plus the accrued interest. This was done on February 6, 1894, at which time the debtor executed four notes, each for seven hundred and four dollars and twenty cents, payable to the order of plaintiffs at stipulated intervals, with interest. The new notes were delivered to plaintiffs and they surrendered the old ones-to Endom. The next day, by public act of mortgage, the latter hypothecated certain real property in Monroe to secure payment of the new notes. The property so mortgaged had belonged to the-community. -

Endom paid none of the notes thus secured, and in October, 1895, plaintiffs proceeded via ordinaria to recover judgment on them, all of which had then matured, and to enforce his mortgage rights. In speaking of the mortgage the'petition of this suit averred that Endom had mortgaged and hypothecated to plaintiffs “ all of his right, title and interest in and to ” the property which is described. This allegation differed, in this regard, from the act of mortgage itself, which assumed to cover the entire property.

Judgment was prayed for against Endom for the aggregate sum of the notes, with interest, etc., and for recognition and enforcement of the mortgage “ on his right, title and interest in the property.

No defence was made and the decree of the court was in accordance with the prayer.

Nothing in the present record apprises us whether or not this judgment has been executed or sought to be executed. Nor, if not executed, why not.

Two years from the date of this judgment the present suit was filed.

The petition sets forth that during the lifetime of his wife Ered. Endom had become indebted to plaintiffs in the manner hereinbefore described; that notes had been given to cover the same; that these notes represented a community obligation; that Mrs. Endom h'ad died leaving heirs and an estate; that the father had become tutor of the minor heirs; that subsequent to the death of ' the wife new notes for the old ones had been given by Endom and a mortgage executed to secure payment of same; that by the substitution of the new notes and mortgage the old indebtedness was not intended to be novated; that the property mortgaged to secure the new notes belonged to the community; that this mortgage covered and was intended to cover the entire property; that subsequently suit was brought on the notes and to foreclose the mortgage; that the heirs of Mrs. Endom were not made parties and the judgment only recognized the mortgage as operative on the interest of Endom himself in the property; that in addition to this judgment against Endom plaintiffs are entitled to have their claim recognized as a debt of the community and as such binding upon all. of the community property; and that the estate of the dead wife is liable to them for the full amount thereof.

The prayer is that the major heirs of the wife be made parties defendant; that the minor heirs be cited through their tutor, and for judgment against them in solido for the sum of two thousand six hundred and eighty-seven dollars and seventy-eight cents, with eight per cent, interest from July 1, 1893, recognizing and decreeing same to be a debt due by. the community and as such binding on the dead wife’s share in the community property.

It will be observed that this is not a suit on the last notes given by Mr. Endom to plaintiffs. These were already merged in the judgment rendered in the suit brought against him individually.

If it be an action on the notes first given, those of July 1, 1893, then it is a suit on notes not in possession of plaintiffs, which they had surrendered to the debtor, and which, in all probability, are not in existence at all.

If it be a proceeding on the original indebtedness between Endom and the plaintiffs, then it is an action on an account stated, which was closed and liquidated by the notes of July 1, 1893.

Defendants considered the suit an action on the notes first given by Endom, those of July 1, 1893, and prayed oyer of the same. Plaintiffs answered this prayer for oyer by the declaration that they did not have possession of the notes.

Defendants then, as matter of defence against the action, pleaded the extinguishment by novation of the pre-existing obligation of the community, to-wit, the notes of July 1, 1893, averring that the creditor had, after the dissolution of the community, received and accepted the individual notes and mortgage of the husband in lieu of the notes of the community, thereby discharging the obligation of the latter, and, subsequently, had sued on the husband’s notes, recovered a personal judgment against him and a decree for enforcement of the mortgage he had given, in which proceeding respondents were not cited or made parties defendant. They aver that this operated a renunciation and discharge of whatever legal rights, if any, there existed against respondents and their property in favor of plaintiffs.

In any event they allege they are not liable personally and solidarily as averred by plaintiffs, because the succession of their-deceased mother was not accepted unconditionally, but with benefit, of inventory.

On the trial plaintiffs offered the depositions of two witnesses, parties in their employ, to prove the allegations of their petition, to the reception of which testimony defendants objected on the ground that plaintiffs had declared on certain notes and that parol evidence was not admissible to prove the existence and contents of the notes in view of the fact that there was no allegation of their loss or destruction; and, further, having declared on notes, evidence was not admissible to establish an indebtedness on an open account.

Those objections being overruled and the depositions received as evidence, defendants excepted.

We will not pass now upon the question here raised for the reason that, in our opinion, the case must be remanded on grounds hereinafter stated.

It was error on part of the trial judge to exclude the testimony of E. Endom, offered as a witness by defendants to prove the plea of novation tendered in their answer. This witness having been sworn and having testified that he was the father of the minors made parties defendant in this suit, and having stated which heirs of his-deceased wife were of age at the time of her death, was asked this question: “Do you individually, or the heirs of Mrs. Catherine Endom, deceased, owe the three notes, or any part of them, mentioned in plaintiff’s petition, viz.: those of date July 1, 1893?”

This was objected to on the ground that it called for the opinion of the witness. The objection having been sustained, defendants excepted and reserved a bill-. Thereupon the witness was withdrawn and defendants closed their case.

Judgment followed in favor of plaintiffs and defendants appealed.

A motion to dismiss is filed here by .plaintiffs, averring this court to be without jurisdiction ratione materias for the reason that the amount in dispute between plaintiffs and defendants is less than two-thousand dollars.

There is no merit in this motion.

While the judgment is against defendants jointly for two thousand six hundred and eighty-seven dollars and seventy-eight cents, it is ordered to be paid out of the community property inherited by the heirs from their deceased mother; and it is expressly decreed that. “the said judgment in favor of plaintiffs is a debt due by the community existing between Fred. Endom and Mrs. Catherine Endom,. deceased, and, as such, is binding on her share in the community property.” Besides, the prayer of plaintiffs’ petition is for judgment in solido against defendants for the sum mentioned above.

The motion is denied.

While the question, quoted above, asked the witness, Endom, might have been put in a less objectionable form, we think he should have been allowed to answer it and then explain why he considered that neither he nor the heirs of his wife owed the debt, if, so be it,, he had replied to that effect.

He might, for instance, have answered: “No, we do not owe them,” and then gone on to narrate circumstances connected with the taking up of the old notes of the community by the new notes of the surviving husband and the surrender of the former, amounting to legal novation. Or he might have answered it was expressly agreed, as consideration of the new notes and mortgage, that the old should be considered extinguished. He was cut off from making either of these replies, if, so be it, he could make either. The-opportunity, at least, to give his version óf the matter should have-been permitted him, and while the better practice would have been to have changed the form of the question and pressed the inquiry in a different way instead of closing the ease abruptly, we believe the interests of justice, certainly a better understanding of the casé, call for a reversal of the judgment on this ground, and the remanding of the ease.

It is, therefore, ordered, adjudged and decreed that the judgment, appealed from be annulled, avoided and reversed, and that the cause be remanded to the court a qua to be proceeded with according t.o the views herein expressed and the law; costs of appeal to be borne by plaintiffs and appellees.


author: Watkins, J.

text:
    No. 12,819.
    The State of Louisiana vs. Sandy Maddison.
    If a witness resides in the State of Mississippi, and personal service of a summons-can not, after due diligence has been exercised, he made upon him, the depositions taken before the committing magistrate may be introduced in evidepce on the part of the State.

      APPEAL from the Twelfth Judicial District Court for the Parish of Assumption. Guión, J.

      M. J. Cunningham, Attorney General, and G. A. Gondran, District Attorney, for Plaintiff, Appellee.

      John Marks for Defendant, Appellant.
    Submitted on briefs May 7, 1898.
    Opinion handed down May 16, 1898.
   The opinion of the court was delivered by

Watkins, J.

On information the defendant was charged with having committed the crime of robbery by putting Alexander Green in bodily fear, by making an assault upon him, and taking from him by force the sum of twelve dollars in money, and stealing and carrying same away, and the jury returned a verdict of “guilty of assault with intent to commit robbery; ” and from a judgment and .sentence to imprisonment at hard labor in the State penitentiary, he prosecutes this appeal.

I.

The first bill of exceptions relates to the admission in evidence on the part of the prosecution, of certain written testimony of the prosecuting witness, Alexander Green, which had been taken on the preliminary examination, same having been offered in connection with a summons which had been issued for the witness, and the sheriff’s return thereon endorsed, showing that said witness could not be found in the parish, and that his domicile was in the State of Mississippi.

The contention of counsel for the defendant in his bill of exceptions is, that the inquiry of the sheriff disclosed that the witness had been seen at Donaldsonville in an adjoining parish about one week previous; and that it had, been reported that he had a residence in an adjoining parish, and that, in consequence thereof, the State had not laid a proper or sufficient basis for the introduction of secondary evidence.

That he had a constitutional right to have the witnesses for the prosecution confront him, and that this privilege could not he legally denied him under the circumstances related.

The trial judge assigns amongst others the following, reasons for overruling the defendant’s objection, viz.:

That before offering the testimony taken before him sitting as a committing magistrate, proof was made, that the deputy sheriff, to whom a summons had been delivered for said witness, “had inquired diligently for (him) and had not been able to find him, he being then a resident of the State of Mississippi,” etc., though there was a rumor extant that he had been recently seen in an adjoining parish a week previous to the trial.

That “ considering the fact that the witness, Alex. Green, was not a resident of Assumption parish, but of the State of Mississippi, and that he was only temporarily in the parish where the crime charged was committed,” and that due diligence had been shown on the part of the sheriff in searching for him in the parish of Assumption, he regarded the testimony admissible.

It thus appears that the witness in question resided in the State of Mississippi — that is to say beyond the realm and the jurisdiction of the court, and that at the time of the trial he was out of reach of the process of the court.

The statement of the trial judge is that due diligence had been shown on the part of the sheriff in making search for the witness in the parish of Assumption; and there is nothing to show that there was any truth in the rumor that he had been, theretofore, recently seen in the adjoining parish of Ascension.

On this showing we think it evident that the judge correctly admitted the evidence. The law neither contemplates nor requires the performance of a vain thing; and as it is shown that the witness resided in the State of Mississippi, the process of the court could not reach him — thus presenting an exception to the constitutional requirement relied upon.

II.

The se'cond bill relates to the portion of the charge of the trial judge to the effect that on a trial for the perpetration of the crime of robbery, it was legal and competent for the jury to bring in a verdict of “ guilty of assault with intent to commit robbery.”

The record shows that in keeping with that instruction the jury so found and returned their verdict in that exact form of words.

Counsel for defendant contends, that the jury could not find accused guilty of a greater offence than that charged in the indictment, and that assault with intent to commit robbery was a greater offence under Act 59 of 1896,” than robbery as denounced by provisions of the Revised Statutes.

A comparison must be made of the statutes in order to determine the correctness of this contention.

The Revised Statutes declare that whoever shall commit the crime, of robbery shall, on conviction, suffer imprisonment at hard labor not more than fourteen years.” Sec. 809.

It further provides that <cif upon the trial of any person upon an indictment for robbery, it shall appear to the jury upon the evidence that the defendant did not commit the crime of robbery, but that he did commit an assaultwith intentto rob, the defendant shall not by reason thereof be entitled to be acquitted, but the jury shall be at liberty to return as their verdict that the defendant is guilty of an assault, with intent to rob, and thereupon such defendant shall be liable to be punished in the same manner as if he had been convicted upon an indictment for feloniously assaulting with intent to rob,” etc. See.. 1053.

Those statutes seem plain enough, and the charge of the judge and’ the verdict of the jury are in exact conformity therewith; but. counsel cites and very much relies upon the provisions of Act 59 of 1896, as having repealed, by implication, the latter section.

Let us see.

The act referred to, in terms, amends Sec. 792 of Revised Statutes, and makes no reference to Sec. 1053.

The former provides that whoever shall assault another by wilfully shooting at him, with intent to commit murder, rape or rob - bery, shall, on conviction thereof, be imprisoned at hard labor, not exceeding two years; and the only change made therein by the act of 1896 is to extend the maximum imprisonment to twenty years.

In State vs. White, 49 An. 127, we had before us the question of the implied repeal of Revised Statutes See. 1058 by said1 act, and declined to so hold.

We adhere to that ruling. See also State vs. Jonas, 48 An. 1570; State vs. Shelby, 48 An. 1518; State vs. Young, 49 An. 70.

As Revised Statutes Sec. 1053 has not been repealed by the passage of the act of 1896, its provisions are inforceable, and must remain as a guide for judges and juries, notwithstanding it may be conceded for the argument, that the effect' of the act of 1896 is to make an assault with intent to rob, a greater offence than robbery; though we are of the opinion that such is not a necessary or logical conclusion.

The result of our having thus concluded is to sustain the judge’s charge.

III.

The two remaining bills of exceptions merely state the two foregoing propositions in the form of a motion for a new trial, and in arrest of judgment; and such being the case the foregoing reasons are strictly applicable thereto.

Judgment affirmed.


text:
    No. 12,806.
    State ex rel. Patsey Kelly Moore vs. Robert Hingle, Judge Twenty-second Judicial District Court, Parish of Plaquemines.
    It being alleged by au opponent, claiming appointment as administrator of a sue. cession by preference, that a prior applicant therefor has been illegally and prematurely appointed, and that the order of appointment and the letters of administration thereunder issued are absolutely null and void and ultra -aires, no right or title can absolutely vest in the appointee so long as such opposition remains undisposed of.
    As, under the law, no suspensive appeal can be taken by an opponent claiming appointment as administrator from an adverse judgment, radical defects and illegal proceedings of the court in respect thereto aré open to examination by the Supreme Court in the exercise of its supervisory jurisdiction.
    QN APPLICATION for a Writ of Certiorari.

      James Wilkinson for Relatrix.

      John Dymond, Jr., for Respondent.
    Submitted on briefs April 23, 1898.
    Opinion handed down May 16, 1898
   The opinion of the court was delivered by

Watkins, J.

The relief demanded has reference to a contest in the respondent’s court over the selection and appointment of a legal representative for the succession of one Charles Kelly, which was opened by his death in the parish of Plaquemines in July, 1896— the sole asset of which is a piece of real estate subject to mortgage in favor of Frank Giordano, the first applicant for-the appointment.

The relatrix assigns as cause for her application that the deceased was 'her natural father by whom she had been frequently and repeatedly acknowledged during his lifetime as his natural daughter, and that she was entitled to be appointed, by preference, administratrix of said succession.

Her averment is, that on the 5th of October, 1896, said Frank Giordano filed an application to be appointed administrator, and was by the respondent appointed and granted letters of administration •on the seventh day thereafter — that is to say, on the 17th of October, 1896 — and that letters of administration were issued to him on the third day thereafter.

That the law neither allows the appointment of an administrator, nor the issuance of letters of administration, until after the expiration of ten days from the first insertion of the notice of the application in the official newspaper of the parish; and that the appointment of Giordano having been made prior to the expiration of that delay the act of the respondent was ultra vires and void, and the letters granted thereunder were likewise illegal and void.

That neither the affidavit, with reference to the publication of the application, nor the certificate of the clerk, on the faith of which the respondent’s order is alleged to have been granted, had been in fact filed in the clerk’s office until the 19th of October, the day previous to that on which the appointment of Giordano was made, and it was, .therefore, unauthorized.

That under said illegal order and letters Giordano was qualified, and immediately thereafter he obtained an order for the sale of the .property of the succession and caused the sale to be advertised.

That on the 28th of November, 1896, she filed an opposition, in which is fully set forth the premature and illegal acts complained of, and prayed for judgment annulling said order of appointment and the letters of administration which had been thereunder issued.

That during the course of the trial it was for the first time developed that her husband had disappeared some years previously and that his whereabouts were unknown, and thereupon counsel for Giordano moved the dismissal of her opposition because of her lack of authorization; and thereupon opponent’s counsel replied by requesting her immediate authorization'by the court and that' she be permitted to prosecute her opposition as though she had been authorized prior to the filing of same. • -

That the respondent acted at once-upon the suggestion of opponent’s want of authorization and orally directed that a non-suit be entered; but that counsel for relatrixtendered his written motion for her authorization before respondent’s action had been formally entered upon the minutes of the court, and he thereupon made and signed the following order, viz.:

“Let Mrs. Patsy Kelly be authorized to prosecute this suit.
“ Robert Hingle, Judge.”

That notwithstanding the foregoing order was made and signed on the'9th of December, 1897, and filed in the record, a judgment-was subsequently signed and filed on the 6th of January, 1898 — very nearly one month having in the meanwhile elapsed — non-suitingrelatrix as opponent for want of authorization. '

That thereupon she applied for a new trial, when her application was met with the last named decree of non-suit, and with the reply of the respondent that a new trial was inadmissible when the judgment pronounced was one of non-suit, and that his only remedy was-by appeal.

That well knowing a suspensive appeal would not lie from an order appointing an administrator, the relatrix renewed her opposition,, adopting all the allegations of her original opposition, and obtained the judge’s order of authorization in the following words, viz. :

“ Let Mrs. Patsey Kelley Moore be authorized to prosecute this, opposition and application.

“ Open court, January 6, 1898.
“Robert Hingle, Judge.”

Said renewal of the opposition and order of authorization bearing-same date as the judgment of non-suit above referred to.

That thereupon the respondent adjourned his court sine die, and there has been no term of the same held since that date, and prior to the present application for relief having been made, at which the opposition and application for appointment by the relatrix could have been fixed for trial or tried; but that notwithstanding that fact, Giordano was permitted to file another petition for appointment, at Chambers, out of term time, during the vacation of court, and without previous notice of any kind to relatrix, by publication or citation, on the 26th of February, 1898, the petitioner acting upon the assumption that opponent had not first paid the costs of the first opposition, and that the payment of them was a condition precedent thereto.

Then follows the following averment of the relatrix, viz.:

“ That without publication of this new demand; without notice to the relatrix or her counsel; without certificate from the clerk of the absence of opposition, and with full knowledge of the pending opposition of relatrix which the judge had himself authorized and signed in this cause; without any new affidavit; withóut a bond given to secure the letters, the former being null and void like the letters (which were first issued), and which they purported to secure, the Hon. Robert Hingle, judge of the court, signed on February 26, 1898, an order granting letters of administration on the estate of relatrix’ father to said Giordano.”

She further avers, that it is under the last named illegal order of .appointment and the letters of administration thereunder issued, that Giordano qualified, and procured the probate order for the sale of the succession real estate of which the relatrix complains.

She further avers, that counsel for Giordano being well aware, -that said order was illegal, and in fact a judgment rendered without hearing the parties, prepared a typewritten reservation in said order which the District Judge was induced to sign, to Frank Giordano of any and all contentions as to the legality of all prior letters.”

Having'quoted in extenso and analyzed the allegations of the relatrix’ petition, we will also quote the synopsis which she makes of her demands as the more accurate method of stating them, and which are of the following tenor, viz.:

“ 1. Because (the respondent) acted contrary to law and exceeded his powers in granting an order to Giordano for letters on October 17 (1897), two days before the clerk of the court filed any certificate, and only seven days after the publication of first monition.
“2. Because he acted contrary to law, and exceeded his powers in signing said letters on the 20th of October (1897), the ninth clear •day after the first publication.
3. Because any ruling upon a verbal motion to non-suit is always within the discretion and control of the court; and that it was illegal for the court in one order to authorize the (opponent) to prosecute this suit, and to subsequently enter up a judgment non-suiting her for lack of authorization.
“ 4. Because it was illegal and arbitrary for the court to declare that she had no right to apply for a new trial from a judgment of non-suit.
“ 5. That it is and was a denial of justice, and was illegal, arbitrary, null and void for the lower court, after authorizing relatrix to file and prosecute her opposition and application, and after said opposition and application had been filed, to issue, out of term time, without hearing the' parties, on an ex parte, petition, without bond, affidavit, publication, or any other notice, letters of administration to the original applicant whose petition had been steadily opposed; and who, despairing of obtaining such letters contradictorily, persuaded the court, by this ex parte proceeding, to ignore her formal pleadings.”

The gravamen of the relatrix’ complaint is, that she has no other adequate and sufficient remedy than her application to this court for the exercise of the supervisory power, for the reason that, under the law she is not afforded the remedy of a suspensive appeal from the order of court appointing Giordano administrator; and having no standing in court to enjoin the succession sale, the sole asset thereof would have been disposed of pending the litigation in respect to the appointment.

In his return, respondent makes a similar statement to that of the relatrix, producing and annexing a certified copy of the mortuaria, and therefrom we make the following extract, viz.:

Respondent represents that he considered, and that he now considers, that in order to legally contest on January 6, 1898, the right of the said Frank Giordano to act under letters of administration actually issued to him in that succession on October 20, 1896, it was necessary for the said Patsey Kelley, after the administrator had been acting in his said capacity for a full period of fifteen months, to proceed by petition and citation in a direct attack upon the said appointment, the legality thereof, and the right of the administrator to fulfil the office.
“ For this reason, considering therefore .that there was no legal opposition pending on February 26, 1898, if opponent had mistaken her remedy it was not the fault of respondent; and, at the request of counsel for the said administrator, reserving to the said administrator his full contention as to his rights in the premises under the original letters issued, and simply to protect the title to real estate which was to be sold to further the ends of justice, and enable the administrator to-convert into cash and sell to better advantage the only asset of the succession, consisting of a piece of real estate which was mortgaged as aforesaid, new letters of administration were thereupon issued to Frank Giordano.”

The foregoing extract from the return is a substantial verification of the principal grounds which are assigned by the relafcrix for relief by certiorari, coupled with an amplification of the reservation he made in favor of Giordano; but this reservation, taken in connection with the reason the respondent assigns for granting additional letters to Giordano, is utterly subversive of his entire theory.

But if this were not so, an examination of the exemplications of the succession record completely sustains the complaint of the relates and supplies any possible hiatus in her statement.

For it appears that the opponent attacked the legality of the original appointment as having been prematurely made, and without the administration of proper proof of publication of the application.

To this opposition the contestee excepted, and his exception having been overruled he filed an answer, and the trial began upon issue thus joined. During the progress of the trial the testimony developed the fact that opponent was a married woman, and the record disclosed her lack of authorization to institute her demand. Thereupon counsel for the contestee moved for the dismissal of the relatrix’ opposition, and the- judge granted the request; but at one and the same time counsel for opponent demanded of the court, then and there, to authorize her to prosecute her opposition, and the request was then granted, and an order of authorization was signed.

This, the judge had, under the authorities, an undoubted legal right to do, and once done, the authorization became complete and effective; and the judge was, thereafter, without, any power to legally recall or revoke the same. And the effect of the authorization once granted, was to relieve the opponent of her legal disability to institute and prosecute her opposition.

But the record discloses that near thirty days subsequently, the respondent signed another decree of dismissal of relatrix’ opposition because she had not been duly authorized; and that he thereafter, and upon the same day, refused to grant a new trial in her favor on the ground that the Code of Practice did not warrant the granting of a new trial in such a case.

Ooneeding for the argument only, that this second decree, or judgment of dismissal, had any legal effect — but in fact we are of opinion that it had not — we think it evident that the respondent entertained a miscaken notion of the law.

The language of the Code of Practice is general in terms, and their significance is plain. They are to the effect that “ the party who believes himself aggrieved by the judgment given against him may * * * pray for a new trial, which must be granted, if there be good ground for the same,” etc. Art. 558. (Our italics.)

Was not & judgment given against the opponent when her demand was dismissed?

It will not do to say that this dismissal was really one of non-suit, only when the immediate effect of the decree was, at the same time, to deprive opponent of the right of suspensive appeal, altogether, therefrom.

But the judge confessed his own want of confidence in the position he had taken, by granting to Giordano mew letters; but being ex parte, the order had no effect with regard to the relatrix whose opposition was still pending.

This whole proceeding is manifestly illegal and unwarranted in law.

It is therefore ordered and decreed that the preliminary writ of certiorari be made absolute, and that the judgments and decrees complained of be decreed illegal; and that same be annulled and avoided, and the opposition of the relatrix be reinstated for trial according to law; and that the respondent be taxed with cost.


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    No. 12,469.
    Ernest Dionne vs. New Iberia Refining and Planting Association.
    A contract which contains a stipulation to the effect that the obligor guarantees the trade of his laborers and lessees to the tenant of his storehouse, so far as he is able to control the same, is not an agreement to coerce the laborers and lessees to purchase goods from the proprietor of the store. Hence, such a contract is not contra bonos mores.

    A PPEAL from the Nineteenth Judicial District Court for the Parish of Iberia. Voorhies, J.

      Walter J. Burlce for Plaintiff, Appellee.

      Foster & Broussard, T. H. Thorpe and Andrew Thorpe for Defend - ant, Appellant.
    Argued and submitted December 27, 1897.
    Opinion handed down February 23, 1898.
    Rehearing refused May 30, 1898.
   The opinion of the court was delivered by

Watkins, J.

Plaintiff alleges that, during the year 1894, he was solicited by the defendant corporation, represented by William Taylor as its authorized agent, to go upon the Morbihan plantation, in the parish of Iberia, of which it was owner, and then in cultivation, and to open a store thereupon “as a convenience to the laborers and others on said plantation. ”

That he yielded to its request and accepted a lease of a storehouse on said plantation, and in the written contract of lease is the following stipulation, viz.:

‘ ‘ The lessor will guarantee the payment of all accounts made by their employees in the store with their knowledge and consent, to the extent of wages due them; and further guarantee the trade of their lessees and labor in.so far as they are able to control same, and the payment of all accounts contracted by them.”

The original lease was signed by the defendant company represented by Wm. R. Taylor, as manager, accepted by the plaintiff, and their signatures were attested by two witnesses; and the clause above quoted and relied upon is endorsed thereon as a marginal note, and signed in like manner.

The representations of the plaintiff are that the defendant had in its employ a large number of laborers on said plantation during the years 1894 and 1895, while the lease was in force, to whom he sold merchandise and made advances; and that when living up to its contract the association was in the habit of deducting from the wages of laborers and employees the amount of their store accounts; still in many cases * * * it failed to deduct the amount due

him, and caused him to lose the collection of these various amounts due him from the various parties whose names and the amounts which each respectively owes, are set forth in a statement annexed,” etc., aggregating one hundred and ninety-five dollars.

He further represents that during the continuance of his lease the defendant collected from the various laborers and employees on said plantation various sums due him by said laborers and employees for merchandise sold and advances made, aggregating one thousand dollars, and has failed to pay over or account for same.

He further represents that not only the said association did not secure to him the trade of its laborers and employees, as it guaranteed to do, but, on the contrary, it encouraged the tenants to open competition with him in his business by encouraging their laborers and employees to purchase merchandise from other persons; and that this competition caused him a loss of two thousand dollars, which the defendant association owes him under its contract.

He avers full compliance with all the terms of his contract, and that he placed defendant in mora before the institution of suit; and his prayer is for judgment for the three several sums demanded, aggregating three thousand one hundred and ninety-five dollars, with legal interest.

To the petition are annexed lists A, B, and C; on which are given the names of the defendant’s laborers and the amounts of their accounts on which the plaintiff’s demands are founded.

The defendant’s answer is a general denial.

After considerable testimony had been taken, and much difficulty having been experienced in establishing certain facts, plaintiff’s counsel tendered and filed, over the defendant’s objections, a supplemental petition, and thereto annexed interrogatories on facts and articles to the vice president of the defendant company; and the-defendant’s counsel filed an answer and set out several objections, viz.:

(1) That the petition came too late; (2) that the materiality of the testimony is not alleged; (3) that there is no affidavit attached to the motion; (4) that the interrogatories propounded are immaterial to the issue.

On the conclusion of the trial the judge a quo assigned the following reasons for his judgment, viz.:

“ The court finds that this case is predicated on a written contract of lease entered into between the plaintiff on the one side and Wm. R. Taylor, acting as the agent of the defendant corporation, on the other side.
“ The court is of opinion that the right and power of Wm. R. Taylor to make this agreement has been satisfactorily shown, and that the contract has been satisfied by the silent acquiescence, by the acts and admissions of the president and other accredited agents of the defendant; corporation, as well as their business relations with the plaintiff.
“ The court considers as not written that part of the contract wherein the defendant binds itself to coerce its laborers to purchase from the plaintiff, believing that part of the contract to be against public moral3 and public policy, and not enforceable.
“ The court is of opinion that the accounts designated on lists B and O, amounting to a total of four hundred and fifty-five dollars and twenty-two cents are due the plaintiff by the defendant corporation and must be paid.
“The evidence regarding accounts carried on list A is not satisfactory, and plaintiff’s demand for the amount represented by it must be denied.
“ The court is of opinion that no damages can be awarded, as none have been proven.”

On this statement the court pronounced judgment in favor of the plaintiff for the sum of f.our hundred and fifty-five dollars and twenty-two cents with legal interest from judicial demand; and from that judgment the defendant prosecutes this appeal.

In this court the plaintiff and appellee has filed no answer to the appeal nor requested any amendment of the judgment which is appealed from; hence the only question is whether the judgment shall be affirmed as it stands or reduced. It can not be increased; and list A and the plaintiff’s demand for damages are not before us at all.

The argument in the brief of defendants’ counsel is chiefly directed to the two propositions, (1) that the authority of Wm. R. Taylor in signing the act of lease to the plaintiff is not fully and satisfactorily shown; (2) that a contract which is illegal in respect to one of several considerations is illegal as to the whole.

The record discloses that the first proposition was the subject of much controversy during the progress of the trial, and this resulted in a great number and variety of objections being reserved, but upon a fair consideration of the whole evidence they have disappeared altogether.

Conceding the law to be on the second proposition as claimed by counsel for the purpose of the argument, we must say that we are ■disinclined to consider the clause of the contract referred to by the District Judge as one binding it “to coerce its laborers to purchase from the plaintiff,” and, therefore, not a contract contra bonos mores. The clause is in those words, viz.:

“And further guarantee the trade of their lessees and labor in so far as they are able to control same,” etc.

We do not construe that phraseology as intimating even the employment of force.

The corporation had a perfect legal right to guarantee the trade of the lessees and laborers as far as it was able.

In this view of the contract the law cited and relied upon by the defendants’ counsel is not applicable, but it can not benefit the plaintiff by entitling him to an increase of the judgment, as he prayed for no amendment of it.

An attentive examination of the case has satisfied us that the judgment appealed from has done substantially justice between the parties.

Judgment affirmed.

Breaux, J. concurs in the decree.


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    No. 12,765.
    State of Louisiana vs. Ruben Downs.
    A demand on the part o£ the defendant’s counsel that the prosecuting witness be qualified touching her competency comes too late after she has been sworn in chief and her interrogation actually commenced.
    It is not the right of counsel for an accused to require the testimony of a witness upon cross-examination to be reduced to writing. The law limits that right to testimony which appertains to some question of law raised on a bill of exceptions and to be decided by the Supreme Court.
    A PPEAL from the Twelfth Judicial District Court for the Parish of Calcasiep. Bead, J.

      M. J. Cunningham, Attorney General, and A. B. Mitchell, District Attorney (P. A. Simmons, Jr., of Counsel), for Plaintiff, Appellee.

      Kleinpeter <& Kleinpeter and B. L. Belden for Defendant, Appellant-
    Submitted on briefs March 26, 1898.
    Opinion handed down April 4, 1898.
   The opinion of the court was delivered by

Watkins, J.

The accused was indicted, tried and convicted of the crime of rape, and sentenced to life imprisonment in the penitentiary, and rests his appeal upon two bills of exception, and a motion for new trial — the defendant having been accused of ravishing Florence Pool, a colored girl of nine years of age.

I.

The first bill of exceptions taken by the defendant relates to the refusal of the trial judge to permit the prosecuting witness to be sworn and examined during the progress of the trial touching her competency as a witness — the objection made and sustained being that the request came too late after he had been sworn, and her interrogation as a witness actually commenced.

We extract the following from counsel’s brief, p. 6, viz.:

The first bill is as follows, to-wit:

“Be it remembered that on the trial of the above cause the proseeutrix, Florence Pool, was duly called and sworn as a witness for the State, and pending the giving of her testimony in chief * * * Counsel for the accused requested that the witness be qualified touching her competency as to the appreciation of an oath, or her accountability to her maker in the event of her false swearing, she being a female negro child of nine years of age.

“ The court overruled the request on the ground that it came too late — after the witness had been tendered and sworn as a witness and her testimony already begun, but with the reservation of right to assail credibility on cross-examination.”

Replying thereto the Attorney General makes reference to the following authorities as sustaining the ruling of the court, viz.:

The ruling of the court was correct. Mr. Wharton says: The law on grounds of policy presumes that all witnesses tendered in a court of justice are not only competent but credible ” * * * Wharton’s Or. Ev., par. 368.

Again that author says: “A party who knows objections to the competency of a witness can not, so it has been held, hold back such objection until the witness has been examined, and then raise the objections if the witness’ testimony prove unfavorable” * * * Par. 359.

While there may be some doubt of the perfect accuracy of the ruling of the trial judge, as the witness had only just been sworn in chief when the defendant’s counsel made their request, we think the ends of justice were subserved by the reservation of the right of defendant’s counsel to assail the credibility of the witness on cross-examination.

II.

The second bill of exceptions relates to the refusal of the trial judge to permit the testimony of the prosecuting witness aforesaid to be taken down in writing as requested by the defendant’s counsel.

The judge assigned as his reason for having so refused the request, that “the ruling of the court above complained of was made because no reason was apparent or assigned for such course, and which if acquiesced in by the court would have materially retarded the cause- and obstructed the business of the court.”

We think the ruling of the judge was correct; not only for the reason which he assigned, but for the stronger one that the law does not warrant the reduction of the testimony of a witness to writing under the circumstances related.

The statute provides that on th.e trial * * * when an objection shall have been made and a bill of exceptions reserved, the court shall at the time and without delay order the clerk to take .down the facts upon which the bill has been retained” — to be attached to the bill in case of appeal. Act 113 of 1896.

But the proposition of the defendant was to have the testimony of the prosecuting witness on cross-examination on the merits reduced to writing — an altogether different situation.

Neither the language nor the spirit of the law justifies the contention of defendant’s counsel.

The testimony sought to be reduced to writing appertained to the guilt or innocence of the accused, and not to a question of law for this court to decide.

III.

The ground of the defendant’s motion for a new trial is, that the verdict of the jury was contrary to law and evidence. In keeping with the uniform current of our jurisprudence we can not enter upon a discussion of that question, as it is predicated upon the facts adduced on the trial."

"We find no error in the ruling of the trial judge.

Judgment affirmed.


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    No. 12,687.
    State ex rel. P. St. Amand vs. Bank of Commerce.
    A tax assessed against money in possession of the liquidators of an insolvent bank is neither illegal nor unconstitutional, as it comes within the designation of both the Constitution and revenue law as property which is subject to taxation.
    APPEAL from the Oivil District Oourt for the Parish of Orleans. King, J.

      Clegg & Quintero and Chas. J. Théard for Liquidators of the Bank of Commerce, Appellee. <

      Samuel J. Gilmore, City Attorney, and W. B. Sommerville, Assistant ■City Attorney, for City of New Orleans, Opponent, Appellant.

      Submitted on briefs March 22, 1898.
    Opinion handed down April 4, 1898.
   The opinion of the court was delivered by

Watkins, J.

This appeal is prosecuted by the city of New Orleans from a judgment dismissing its opposition to an account filed by the liquidators of the Bank of Oommerce, proposing to distribute among the privileged and ordinary creditors thereof the sum of one hundred and ten thousand five hundred and eighty-nine dollars and eighty-seven cents, the claim of the city being for the sum of four hundred dollars taxes, with first lien and privilege upon the funds in the hands of the liquidators.

The amount claimed was not entered upon the account, and the demand of the city is that it should be placed thereon, and paid by preference.

From the tax bill in evidence it appears that the assessment was made for the year 1897 of twenty thousand dollars, of “money in possession ” of the liquidators of the Bank Of Oommerce.

On the trial of the opposition it was agreed by counsel that the case was to be submitted and tried solely upon the question of the legality and constitutionality of the tax; and on the submission the judge a quo held that the tax was illegal, and dismissed the oppositiofi of the city.

The city attorney applied for a new trial, and same was refused; and in the course of his reasons for judgment the judge a quo, among other things, said that in his opinion the “ contention of the liquidators of the bank is correct; that the money in their hands is there as officers of this court, which is a department of government, and property in possession of the government is not liable to taxation.”

In the brief of counsel for the liquidators, the position is taken, that the assessors have assessed “ money in possession ” of the Bank of Oommerce, notwithstanding it is no longer in existence, its charter having been forfeited aby a judgment, and liquidators appointed “ to collect the assets and distribute them among the creditors.”

“ That the stock of the bank has been completely wiped out, and whatever money comes into the hands of the liquidators is the prop - erty of the depositors.

“ In addition to the reasons given by the judge a quo for declaring-the assessment and tax illegal and unconstitutional, it is submitted, that the effort of the city to assess and tax moneys belonging to the' depositors of a bank is clearly an attempt at double taxation.”

In our opinion neither position is at all tenable.

The paramount law declares, that “ all property shall be taxed.” Constitution, Art. 203.

Another articles enumerates certain exemptions from property taxation, but “money in possession ” of neither individual nor bank is found within its designation. Art. 207.

The terms of .the revenue statutes just as imperatively require that “ all property situated within the State of Louisiana” shall be taxed. Sec. 1, Act 85 of 1888.

A more recent statute provides in terms that “all property held, controlled, or administered in each separate capacity as president, cashier, treasurer, liquidator, assignee, master, superintendent, manager, sequestrator, receiver, trustee, stockholder, depository, warehouseman, keeper, curator, tutor, executor, administrator, legatee, heir, beneficiary, father, agent, attorney, usufructuary, mandatory, fiduciary, or official capacity,” shall be taxed. Sec. 1, Act 106 of 1890.

The moneys in the hands of the liquidators were realized by them-from collections, and are in no sense deposits; but if they were deposits, same would become eo instanti property of the bank," of which the depositors would be creditors merely.

The account of the liquidators shows that there is a large sum in their hands ready for distribution among the depositors of the defunct bank as creditors.

Forsooth, that the liquidators are, in a qualified sense, officers of the court, does not, in our opinion, shield the funds in their hands from taxation.

Neither the charge of illegality or unconstitutionality of the tax is, in our view, sustainable. The judgment appealed from must be reversed.

It is therefore ordered and decreed that the judgment appealed from be annulled and reversed; and it is further ordered that the liquidators amend and so restate their account as to include the amount of the tax claimed with interest, and that all costs be taxed against the bank in liquidation.

Nicholls, C. J., recused'.