author: White, J. Poci-ié, J.

text:
    No. 7242.
    James H. West vs. P. E. Davis and Widow H. Kuntz.
    A minor lieir, on arriving at his majority, cannot, by appeal, obtain the reversal of a'judgment rendered agaiust the succession of his father, and which the executor of that succession allowed to become final by not appealing.
    APPEAL from the Second Judicial District Court, Parish of Jefferson. Pardee, J.

      li. King Cutler, W. J. MeGune and W. B. Lancaster, for Plaintiff and Appellant.

      Brauglm, Buelc & .Dinkclspiel, for Defendants and Appellees:
    The benefits of Art 593, C. P , that the delays for appeal as regards minors, “must be computed from the day of their coming of age,” cannot be extended to a suit where the minor seeking to appeal, had, or has only a residuary interest as heir in a succession party to such suit, represented by a testamentary executor. 12 It. 323.
    “ This Court cannot amend the judgment between appellees; nor can an appellee obtain any relief on the appeal prosecuted by some other party to the suit.” 20 An. 121; 10 An. 288.
   On Motion to Dismiss.

The opinion of the Court, was delivered by

White, J.

It is moved to dismiss this appeal on the following grounds: 1. Want of proper parties to the appeal. 2. Errors in the transcript. 3. That the appeal was taken after the legal delays. The motions were made after the three days, and are hence not in time. Of course, the denial of the motions will not preclude us from ascertaining when the case is before us on its merits, whether the necessary parties to justify a decree have been made, whether there is an appeal, as also whether the transcript is so defective as to preclude the formation of a conclusion. We cannot now pass upon these questions, owing to the tardiness in filing the motions; they are therefore denied.

On the Merits.

Poci-ié, J.

This suit was instituted in January, 1867, with the object of annulling’ the sale under executory process, of a piece of landed property belonging to plaintiff', seized by the defendant Davis, and adjudicated to his co-defendant, Mrs. Kuntz.

At the death of West, in September, 1867, his widow was qualified as testamentary executrix of his succession, and in said capacity, she became plaintiff in the suit, and judgment was rendered against her in December, 1868.

This appeal was taken from said judgment in May, 1878, by I-Ienry West, who alleged in a petition of appeal, that he was one of the children of the deceased J. H. West, and that he had reached his age of majority on the 29th of May, 1877, or less than one year previous to his application for an appeal in the case.

Under the decree rendered on appellee’s motion to dismiss this appeal, by our immediate predecessors, who overruled said motion, the right of' this Court to examine into the validity of this ajipeal was specially reserved.

We shall now proceed to tost the right of the present appellant to maintain his appeal, taken nearly ten years after the rendition of the judgment which he seeks to reverse.

The pleadings and the record show that the succession of the deceased, who had left three children and a surviving widow in community, rvas under administration, and was fully and legally represented herein by the widow in her recognized capacity of testamentary executrix; and that the succession of the father was, and could only bo accepted with benefit of inventory by his minor children, who had only a residuary interest in his succession.

Hence, it follows that those heirs, if even of age at the time of the rendition of the judgment, could not have stood in judgment in the name of the succession thus represented and administered. It is, therefore, clear, that subsequently, in May, 1878, the present appellant, who had acquired no greater rights in and to the succession, and to this specific property, alleged to belong to the succession, could not, in his own right, represent the succession, or his co-heirs, yet minors, in moving for this appeal, and that the proceedings instituted by him alone, with a view to reverse the judgment rendered against the succession, duly represented, could not prevent the judgment of the District Court from becoming final against the succession, whose legal representative had failed to take an appeal within one year after the rendition of the judgment. Audat, curatrix, vs. Lutey, curator, 12 R. 325; Préjean vs. Robin, curator, 14 A. 788.

The right conferred by Art. 593, Code of Practice, to minors to appeal from judgments in which they are interested, within one year after the day of their becoming of age, does not contemplate the exercise of such right by the minor heir of a succession under administration, and duly represented by an administrator or executor, and when the latter acquiesced in the judgment, or took no appeal within the time prescribed by law.

We, therefore, hold that the judgment appealed from had become final against the succession of James H. West, when this appellant obtained his order of.appeal, which is, therefore, an absolute nullity.

It is, therefore, ordered, that the appeal be dismissed at appellant’s csots.


source: Caselaw Access Project

author: Todd, J.

license: Public Domain

text:
    No. 8528.
    The State of Louisiana vs. Albert G. Ober.
    The doctrine of estoppel applies to the State as well as to private individuals. 28 An 462.
    APPEAL from the Ninth Judicial-District Court, Parish of Concordia. Rough, J. . . .

      Geo. S. Sawyer, for Plaintiff and Appellant:
    The sale of the school section to York and Hoover was null and void:
    1. Because it was made without the “ consent ” of the inhabitants legally given. Act of Congress, February; 1843. U. S. Stat. at Large, VoL 5, p. 601; Durant vs. Board of Liquidators, 29 An. p. 77,. where the said act is quoted ;' Rev. Stat. 1876, Sec. 1316; C. C. 1797, .1818, etc.
    2. * Because said land was not sold in lots, as required by law. Rev. Stat. 1876, Sec. 1316. See Treasurer’s Deed, Record, page 33. The sale was absolutely null and void. C. C. Art. 3010. The act was ultra vires. 33 All. 1031.
    3 There was no warrant from the Auditin’ authorizing this sale.
    4. Because there were no appraisers appointed and sworn, etc. The affirmative and burden of proof to show that all prescribed formalities were strictly complied with is on the defendant. 8 H. S. 246 : 3 La. 42L; 4 La. 150, 207; 9 La. 542; Reeves vs. Towles, 10 La. 285 ; ■ C. C. 3010; 2d Cond. XT. S. S. C. Reports, 150, (note). De non eccistentibus et non appaA'cntibus eadcm est ratio.

    The prescribed formalities must be strictly followed. 20 Call. 96 ; 7 Bosw. 604; 20 H. Pr. 395; Abb. Corp. Dig. 869; 2 Hans. 357, 371; 16 Ind. 227; 7 Gray, 12; Cool, on Const. L im 196.
    5. The prescription of ten years will not apply. Trop. de la Prese. Ho. 921, t. 2d, p. 445. See . Hos. 918. 919, 920, ib. Titles defective in form, even, cannot be the basis of ten years’ prescription, locum sit. C. C. 3186; C. H. 2267; Trop. 903.

      6. The prescription of ten years acquirenda causa, has no place between the immediate vendor and vendee. Trop. Prese. Ho. 904; C. C. 3848; Yaz Prese. Ho. 199.
    Ho prescription can run against the State. Lyndsey’s Case, 3 Peters’ Rep. 673. It cannot be estopped, being but a trustee. i
    7. The State is but a trustee, clothed, with a naked trust, uncoupled with an interest. M An. 130, 98; 33 An. 712.
    8. All parties defendant were necessarily in bad faith. C. C. 3482, 3452. They owe for rent, etc., at $500 per year.

      Steele & Garrett, for Defendant and Appellee:
    1. Elections are to he determined by the majority of ballots cast, and are not to be set aside on account of the meagreness of the vote. Austin vs. Eggleston, 12 An. 366.
    2. Where a State is party to a contract, or sues to enforce contract rights, the same rules of law are applied to her as to private peisons under likt circumstances. Davis vs. Gray, 16 Wall. p. 232; Curran vs. State of Ark., 15 Howard, 308; Succession of Zacbariof 30 An. 1262; Graham vs. Tignor, 23 An. 570; Pepper vs. Dunlap, 9 An. 141
    3. The sale of school lands in block, instead of lots of 40 to 160 acres, under Act 267 of 1858, is not an absolute nullity; hut such failure to subdivide is an informality of the sale cured by the prescription of five years. O. C. 3543; Frazier vs. Zytieg, 29 An. 537.
    4. The plaintiff vendor having recognized the title of defendant vendee by foreclosing the .mortgage and receiving the proceeds of the mortgage notes given as part of the purchase price, is thereby estopped from denyiug the validity of the first sale. Girault vs. Zunts, 15 An. 684; State vs. Taylor, 28 An. 462; Delbondio vs. H. O. M. I. Co., 28 An. 139.
    5. The plaintiff vendor cannot maintain the action to rescind the sale and take back the property without first having tendered the portion of the price paid. Lee vs. Taylor, 21 An. 514; Heirs of Doll vs. Kuthman, 23 An. 487.
   The opinion, of the Court was delivered by

Todd, J.

This is a suit instituted by the State to recover a tract of land in the Parish of Concordia, described as the 16th Section of Township Four, in the Land District North of Red River, in the possession of, and the title to which is claimed by defendant.

The facts relating'to this controversy are substantially these :

In 1860, this land was sold by the. State to Z. York and E. J. Hoover, for twenty-two thousand dollars. Of this amonnt, one-tenth, $2,200, was paid in cash, and for the balance of the- price the purchasers executed their nine promissory notes, payable, annually thereafter, and secured by mortgage on the land. The cash paid was transmitted and received into the State treasury. In 1870, an order of seizure and sale, issued on the notes, which remained unpaid, at the instance of the State, and in January, 1871, the land was sold'under this proceeding and adjudicated to F. D. Atwater for $1,500, which was also paid into the State treasury.

' In the meantime, the land liad been surrendered in bankruptcy by the original purchasers, York and Hoover, and in 1869, sold by their assignee in bankruptcy at bankrupt sale, to A. G. Ober and F. D. Atwater, but owing to oppositions made by the creditors of York and Hoover, the adjudication to tlie purchasers at the bankrupt sale was not completed till April, 1871.

Atwater subsequently sold his interest in the land to A. G. Ober, the defendant herein. The land in question was known as school lands, and is embraced in the grant made by the federal government to the State for educational purposes, by Act of Congress, of 15th February, 1843.

The State seeks to set aside the sale of the land and recover the same on account of certain alleged illegalities in the original sale to York and Hoover.

The defenses to the action are those of estoppel, prescription, and the failure of the State to return the money received for the land, or the offer of a return before bringing the suit. From a judgment in favor of the defendant, the plaintiff has appealed.

The ground of estoppel, relied on by the defendant, is the action of the State in selling the land, receiving the cash payment, and subsequently suing to recover the credit portion of the price, and causing the land to be. again sold under her mortgage, and a second time receiving the amount of the adjudication.

Except upon the theory that the first sale conveyed a title to the purchasers, and they' had become the owners of the land by virtue of that sale, and owed the unpaid balance of the price for the property they had thus acquired, the State could not consistently have proceeded to enforce her mortgage on the land for the price, and compel the payment of the balance due thereon.

There is no question that were the original vendor a private individual, he would be precluded by such action from ever again claiming the land and instituting suit for its recovery, on account of defects or irregularities attending the proceedings under -which he had first sold the property. He could not, and would not, under such circumstances, be listened to. Plaintiff’s counsel contends that this rule does not apply to the State, and especially as the beneficiaries of the origina? grant from the United States have an interest in the lands embraced therein.

We think otherwise. In the case of the State vs. Taylor, 28 A. 462, it was held; “ That the State is bound by her judicial jdeadings and admissions, the same as private persons, and is entitled to no greater right or immunity as a litigant, than they are. The doctrine of estoq)pel applies to the State just as it does to individuals.” Nor is this rule of law* varied by the fact that there are others interested in the subject matter of the proceedings conducted by the State. If any persons have been injured by the action of the State, good faith and a sense of justice should incline the State to make reparation, as all other fiduciaríes should do under like circumstances, even admitting their existence; but such conditions cannot affect the rules of law nor modify the liability and status of the State, in a judicial proceeding’in a suit where the State seeks to recover the lands as owner, and where the legal title under the federal grant was vested solely in the State. This view of the case dispenses with the consideration of other questions involved.

We find no error in the judgment appealed from, and it is, therefore, affirmed at the costs of the plaintiff and appellant.


author: Pociié, J.

text:
    No. 8463.
    R. R. Barrow vs. E. A. Hepler et al.
    Hncler the laws of tlie State, police juries are clotlied witli plenary and exclusive power to regulate l>y ordinances tlie manner of malting and repairing public roads in tbeir respective parishes.
    Tbe burden imposed on land owners by tlie parochial road laws, is not a tax within the meaning of the Constitution in its limitation of the municipal taxing power.
    APPEAL from the Nineteenth Judicial District Court, Parish of Terrebonne. Goode, J.

      John B. Winder, for Plaintiff and Appellant.

      B. B. Winchester, for Defendants and Appellees.
   The opinion of the Court was delivered by

Pociié, J.

The defendant, road inspector, having proceeded under the road laws of the Parish of Terrebonne to advertise for sale the work to be done on the public road contiguous to plaintiff’s lands, by reason of the latter’s refusal to do the work necessary on his road, he was enjoined by plaintiff, who urges that the road laws of Terrebonne Parish, under which proprietors of lands are required to make and repair, at their expense, the roads in front of their property, are in conflict with the road laws of the State, which provide that the making and repairing of the public roads should be made by the labor of able bodied men of the parish, under the control of road overseers to be appointed by the police juries, and that such parochial laws virtually operate as a tax on his property, on which a tax of ten mills had already been imposed by the police jury, and are, therefore, violative of Art. 209 of the present Constitution.

The road inspector and the police jury filed a general denial, and a special defense, admitting the acts complained of and maintaining the legality and constitutionality of the parochial ordinances relative to public roads. They also filed .a plea in reoonvention for a fine of $120 against.plaintiff, under a provision of tlie parish road laws. Plaintiff has appealed from the judgment of the District Court, which dissolved his injunction, and condemned him to pay a fine of forty dollars and all costs.

There is no contest as to the regularity of the road inspector’s proceedings, or of the correctness of the judgment under the parish road laws, and the contention hinges solely on the following questions :

1. Whether the State laws relative to public roads, authorize the police juries to establish any other system for making and repairing public roads than the labor system.

2. Whether the burden imposed on land owners by the parochial road laws is a tax, within the meaning of the Constitution, in its limitation of the municipal taxing power.

1. In the history of State legislation on the subject of public roads, it appears that two distinct systems have been successively provided for in this State; under one of the systems, the landed owners were required to make and repair, at their own expense, the public roads in front of, or contiguous to, their landed property; and under the other, the work on public roads was to be done by the able bodied men of the parish, under the control of road overseers appointed by the police juries.

Under the legislation of 1829, both systems were recognized; one, the proprietor’s, being confined to roads situated on rivers and other navigable streams, and the other, the labor system, to all other roads.

By Act No. 146 of 1858, the whole subject matter was left to the control of police juries, who were granted full power to pass all such ordinances as they may deem necessary, relative to roads, bridges and ditches, and to enforce their ordinances by fine and imprisonment.

Tlie provisions of this Act are incorporated in Section 3364 of the Revised Statutes of 1870, and clearly indicate the intention of tlie legislature to wisely entrust such regulations to the local authorities of the parishes.

As this was the last expression of legislative will on the subject, it would appear beyond a doubt that the police juries were endowed with plenary powers in the regulation of public roads, and that the State enforced no system of its own, either the “proprietors ” or the “ labor ” system, touching the making and repairing of public roads.

And tlie whole difficulty in this case arises from the unaccountable fact that the compilers of the Revised Statutes of 1870, after incorporating at the head of the chapter or subject of Roads,” the legislation of 1858, under which the whole matter had been relegated to the police juries, proceeded to incorporate in the same chapter, in Section 3373, the provisions of the legislation of 1818, which had established, as a State system, the manner of making and repairing' public roads by the labor of the able bodied men of the parishes.

And plaintiff contends that Act No. 112 of 1880, which is entitled “An Act to amend and re-enact Section 3873 of the Revised Statutes of 1870, relative to public roads,” has had for effect to repeal and abrogate all other laws of the State relative to public roads, and has re-established the “labor system,” for making and repairing such roads.

This Act amends Section 3373 in three particulars, but it cannot be construed as giving to the amended section any greater general powers than it hitherto contained or conferred.

Hence, we cannot adopt plaintiff’s theory that it is the last expression of legislative will on the subject of public roads in the sense which he contends for. The Act contains no repealing clause, and hence it does not abrogate other laws existing- on the Statute books on the same subject matter.

As it only amends Section 3373, in some unimportant details, and is passed with special reference to the Revised Statutes which contain the legislation of 1858, conferring full authority to police juries touching public roads, it cannot be construed to indicate an intention on the part of the legislature to establish a peculiar State system on the subject of public roads.

With the exception of these unimportant amendments, this Act leaves the legislation of the State on the subject of public roads, in precisely the same condition which characterized it in the Revised Statutes of 1870, which apparently contain two dissimilar systems on the subject matter.

Plaintiff concedes that, under his construction of those Statutes, containing provisions apparently conflicting, the two systems recognized are of equal dignity, and that, therefore, the present road laws of Terrebonne Parish are not in conflict with the State legislation, unless they be so made under his construction of Act 112 of 1880, which wo have shown as not imparting such a construction.

A careful reading- of the various Sections of the Revised Statutes of 1870, on the subject of roads, satisfies our minds that the effect of all that legislation is to relegate to the police juries the full and exclusivo power to establish such system of road laws as to them may appear necessary or more convenient, and that the object and effect of Section 3373 was to specially regulate the powers of such of the police juries as would adopt the labor system, and to give them ample power to enforce their system by fines.

Such was the conclusion reached by our immediate predecessors, who held, that Section 3364 of the Revised Statutes, incorporating the provisions of the legislation of 1858, under which police juries were clothed with plenary power in the premises, was the law of the State regulating the subject matter of public roads. 30 A. 1092, St. Martin vs. Delahoussaye.

Tn tlie case of St. Landry vs. Stout, 32 A. 1278, the present Court recognized the power of police juries to enact and enforce ordinances touching the manner of making and repairing public roads.

We are, therefore, clear in our conclusion, that under the laws of the State, police juries are clothed with full, plenary and exclusive power to regulate by ordinances tlie manner of making and repairing public roads in tlieir respective parishes, and that, therefore, the ordinances of the Police Jury of the Parish of Terrebonne on this subject, are legal and binding.

2. Tlie argument that the police jury, having exhausted its taxing power under the Constitutional limitation, is inhibited from imposing tlie additional burden of road repairing, is evidently not serious, and is refuted by a mere statement of the proposition.

The taxing power of a municipal corporation is as distinct from its power to regulate tlie manner of making and repairing public roads, and to enforce its ordinances by fine or imprisonment, as it is distinct from the power of such corporations to enforce any police regulations. A tine for dereliction of duty is not more a tax than an imprisonment for the violation of a police regulation.

We find no error in the judgment appealed from; it is, therefore, affirmed at appellant’s costs.


text:
    No. 8538.
    J. C. Seale vs. Parish of Madison.
    This is a suit by a Parish Attorney for his fees. He obtains judgment for part of his claim,
    lint it is held, that his employment under the statute creates no contract between him and the Parish, and that lie is not entitled to have, by his judgment, a tax ordered tobe levied to pay him.
    APPEAL from the Eighth Judicial District Court, Parish of Madison. Deloney, J.

      II. F. Wells and John JB. Stone, for Plaintiff and Appellant.

      li. I). Farrar, for Defendant and Appellee.
   The opinion of the Court was delivered by

Todd, J.

The plaintiff sues the Parish of Madison for fees or commissions due him as Parish Attorney for said Parish.

The amount claimed is $34,388, less $5,400, already paid him. This amount consists of five per centum upon the aggregate of the sums for which the Parish was sought to be made liable in certain suits brought against the late Board of Levee Commissioners, for the Parishes of Madison and Carroll, in the United States Courts; the plaintiff claiming that lie was entitled by law to that rate of compensation for defending said suits.

The amounts claimed in these suits were over a million of dollars, and the result of the litigation was, that the Parish made a successful defense and had nothing to pay.

The defenses of the Parish to this demand of the plaintiff in this suit are, substantially:

That plaintiff cannot legally charge for defending suits in the United States Courts, or for services rendered out of the Parish of Madison, to which Parish his official functions were restricted by law j that the suits wore not against the Parish of Madison, but against the Levee Board, and that no services -were performed in but two cases by the plaintiff, which were the only cases in which any defense was made, and judgments rendered; and that large sums had been paid to other attorneys as fees in the same cases.

The Court a qua, gave judgment for the plaintiff for $3,214.52, and from that judgment he has appealed, and the appellee has asked an amendment of the judgment rejecting the demand.

The facts of the case, as disclosed by the evidence, are substantially these:

Plaintiff was District Attorney, •pro tem., or Parish Attorney, for the Parish of Madison, from 1871 to 1876, except one year, when his right to the office was in controversy. During that time suits for large amounts, aggregating the sum mentioned, were brought against the Levee Commissioners of the two Parishes named, and which the two Parishes, composing the Levee District, would have had to pay had judgments been rendered in favor of the plaintiffs therein.

The Act of 1868, (Act 120) creating the office of District Attorney pro tenvpore, provided that such officer should be the Parish Attorney, and it was made Ms duty to represent the Parish in any case in which the Parish was interested, and should besides perform such other duties for the benefit of the Parish as might be required by the police jury, and was entitled to receive five per cent, on the amounts involved for defending suits against the Parish. E. S. Sec. 1186.

The police jury of Madison, by several ordinances, recognized the interest of the Parish in these suits, and the privileges and duties of the plaintiff with respect to them, and empowered Mm to employ assistant counsel to defend them. Under this authorization the plaintiff employed Messrs. Samuel R. & C. L. Walker to assist in the defense of one of tlie suits, entitled Barclay vs. Board Levee Commissioners, and Warrick Tunstall, Esq., in another suit, Heine vs. same. These suits, in point of fact, were the only ones that were really defended of al; those instituted. To be sure, answers were filed in the others, but they seem to have awaited the issue of those named, and when they were determined, tlie others were not further prosecuted. In those referred to and named above, however, we are satisfied that the plaintiff rendered valuable services. It was upon information furnished by him that the defense tó them was made. He made several trips to New Orleans in preparing the defense, and ivas present at the trial of them in the United States Circuit Court, and co-operated with the other attorneys employed by him, and assisted in defraying the expenses incident to the "suits, hotli in New Orleans and Washington — one of the cases having been appealed to the Supreme Court of the United States. The employment of the attorneys mentioned was subsequently ratified by the police jury. We, however, concur with the District Judge who tried the case, that tlie understanding had between plaintiff and the Messrs. Walker was, that he was to share with them the five per cent, commissions on the amount involved in the suit in which they were employed. That is, that their joint fee was not to exceed that rate, and plaintiff himself reported to the police jury that the fee of those attorneys was to be two and one-half per cent, on the amount in suit, and was to be deducted from his commission, and this was substantially the purport of both liis testimony and that of the Walkers in the suit brought by the latter against the Parish for their foes. We, however, do not find that any such understanding- was had between the plaintiff and Judge Tunstall in regard to 1ns fee, in the suit defended by him. There was no agreement on the part of plaintiff to divide Ms commissions with Mm, and nothing in the evidence that warrants such a conclusion; and we think the Judge a quo was in error in charging one-half of the amount paid Tunstall by the Parish, to the plaintiff. And we differ with the Judge also, in regard to tlie amount on which the commissions of the plaintiff were to be calculated. The evidence satisfies us that the liability of tlie Parish of Madison, had judgment been in favor of the-claimants on the amount sued for in the two cases, was tliree-fifths, instead of one-lialf, as estimated by the Judge; and it was on this proportion of the debt claimed that the commissions should have been calculated ? With these corrections, the plaintiff is entitled to recover $7,537.40, instead of tlie amount allowed by the judgment appealed from. We are satisfied that his claim for services in the other cases, in which no defense, or at most a mere nominal one, was made, was properly disallowed.

The plaintiff com plains of the refusal of the Judge to include in tin* judgment a provision for the levy of a tax to pay the same. His contention is, that at the time his services were rendered and his debt accrued, the law required that whenever a judgment was rendered against a municipal corporation, the judgment at the same time should provide for its payment, by ordering the assessment and collection of a special tax sufficient to satisfy the same, and that this provision of law formed part of the contract under which the indebtedness accrued, which could not be impaired by the subsequent repeal of tbe law (in 1877) inasmuch as it was protected by both the State and Federal Constitution, and that the taking away the remedy for its enforcement wa s an impairment of the contract within the intendment of the law. We do not concur in this view of the subject. In tlie first'place, tlie argument is based on false premises. We do not find that tbe plaintiffs claim was based upon a contract. A contract implies a convention between two or more parties, from which an obligation arises in favor of one or both of the parties. • There was no such convention in this ease. His claim does not grow out"of any con tract made with tire police jury of Madison, but out of a legal provision allowing him a certain compensation for services rendered tbe Parish iii Ms official capacity, and which it was made his duty to render, and the compensation would he due him with or without the action of-the parochial authorities. Before the Aet of 1869 was passed, there was a remedy to enforce the payment of a judgment against anranicipal corporation. A remedy for the enforcement of such a right exists to-day, and were the debt' claimed founded on a contract, it would by no means follow that the abrogation of the special remedy provided by the Act in question, to-wit: ordering the levy of the tax in the judgment itself, was unconstitutional. 32 A. 884.

This precise question came up in the case of Carnes vs. Parish of Red River, 29 A. 608, which was a suit by a sheriff for his fees. The Court held that in view of the repealing Act of 1877, the order for tlie levy of a tax to pay the debt was properly refused. We are not prepared to overrule that decision, nor can we concede, as charged by the plaintiff’s counsel, that it is repugnant to the rules of constitutional construction.

It is therefore ordered, adjudged and decreed, that the judgment appealed from he amended, by increasing the amount thereof to the sum of seven thousand five hundred and thirty-seven 40-100 dollars, with legal interest from judicial demand, and as thus amended, it be? affirmed, defendant to pay tbe costs of both Courts.


author: Bermudez, C. J.

text:
    No. 8519.
    The State of Louisiana vs. Green Howard.
    It is well settled,'that the Court has the right to correct its minutes, so as to have them to conform with the truth, by a correct statement of facts, at any time, even after appeal.
    APPEAL from tlie Eighth Judicial District Court, Parish of East Carroll. Deloney, J.

      J. G. Fgcin, Attorney General, for the State, Appellee:
    1. The court a qua has the right to correct its minutes, so as to have them conform to a correct statement of the facts, at any time. Archboid’s Crim. Pr and PI, 7th Ed , Yol. I, p. 690, note 1; Halo’s Pleas of the Crown, Vol I, 1st Am. Ed., p. 646; Bishop on Criminal Procedure, 2d Ed., Yol I, Secs 1161 and 1162; Criminal Law Magazine, Yol. I, Sec 12, p. 253; State vs. Westfall, 19 Iowa, 328; Bilanski vs. State, 3 Minn 427; Burnett vs. State, 14 Tex. 455
    2. Particularly does this right exist when said correction is made contradictorily with the accused. 31 A. 387; Ib. 4C6 , Ib. 357; 32 A. 1227.
    3. It is not necessary, in a verdict, to insert the name of the accused, or the offense. 30 A. " 382; 31 A. 717; 32 A. 854.

      F. F. Montgomery, for the Accused, Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

The accused was indicted for making an assault by wilfully shooting at one Louis Cook! He. was tried. The jury rendered the following verdict: “We, the jury, find tlie prisoner guilty of the above charge.”

The defendant was sentenced to two years’ imprisonment at hard labor, and appeals to this Court.

The record contains a bill of exception, from which it appears that, outlie 23d of December, 1881, op motion of the District Attorney, the court ordered the minutes of the 13th previous, to be so changed as to add to the same the words: “ Said verdict beiug in wilting and written upon the face of the information under .the charge;” and also on the same day the following:

“State op Louisiana, ) vs. [No. 221. [ Green Howard. )
“ In this ease, the prisoner being present in open court, the court ordered that the minutes of December 13th bo amended in the presence of the prisoner, in accordance with the facts, so as to show that the said verdict, being in writing and written upon the face of tlie informatiou under the charge.”

The bill avers that, to the action of the court, the defendant, hy counsel, objected upon the ground, “ that the prisoner has been sentenced and au appeal has been granted in this case, before the said alterations of the minutes, and upon the further ground that such alteration of the minutes cannot be made upon the oral motion of the State’s Attorney, without any written motion to that effect.” . .

The objections are without merit.

It is well settled that the court has tho right to correct its minutes so as to have them to conform with truth by a correct statement of facts, at any time, even after appeal, particularly wheu this is done in open court and in tho presence of tlie accused, who does not charge falsity against the corrections and consequent injury to him. 31 A. 387, 406, 557; 32 A. 1227; Bishop Crim. Prac. 2d Ed. Vol. I, Secs. 1161 and 1162.

It is settled that it is not essential to embody in the verdict tho name of the accused, or to insert the offense charged. 30 A. 832; 31 A. 717; 32 A. 854.

Tho minutes as corrected establish with all required precision that the accused was convicted of the offense for which he was indicted.

It was not necessary that tlie motion of the District Attorney should have been offered in writing. Motions are reduced to writing for the convenience of the clerk and the court, although it is customary to secure a regularity and precision in tlie proceedings, to draw them up in writing. The court could, of its own motion, independent of any application, have ordered the correction of its minutes, in the presence of the accused, or notice to Mm, where the correction is material. It is sufficient, when a motion is made orally, that it be afterwards correctly reduced to writing, and entered bn the minutes of the court accordingly.

Judgment affirmed.


text:
    No. 8265.
    Edward J. Gay vs. Board of Assessors et al.
    The Board of Assessors of the City of New Orleans may lie proceeded against, by a taxpayer, in order to have the assessment of his property reduced; and the said Board lias authority to stand in judgment for that purpose, after delivery of the rolls, and may ho ordered by the Court to change the assessment.
    APPEAL from the Civil District Court for the Parish of Orleans, Monroe, J.

      J'. Ward Gurley, Jr., Assistant City Attorney, .for Defendants and Appellants:
    Section 19 of A ct No. 77 of 1880 applies to the Parish of Orleans as well as to all the other parishes of the State.
    Taxpayers in the City of New Orleans have no light to test the correctness of assessments before the oourts, unless they have first made application for correction before the Board of Assessors. And appeals to the courts from the decision of the Board of Assessors must be prosecuted promptly. Sections 30, 87, 88 and 89 of Act Mo. 96 of 1877; Sections 19, 22 and 51 of Act Mo. 77, of 1880.
    Section 51 of Act Mo. 77 of 1880, does not authorize a taxpayer to delay the institution of proceedings in court any longer, after the decision of the Board of Assessors, than is necessary in the exercise of due diligence, otherwise the subject could compel the sovereign to ■ incur useless expenses of advertisement, etc.
    The Board of Assessors have no authority of law to alter, change or amend an assessment after the rolls have passed from their possession, and are deposited with the Auditor, City of Mew Orleans, Recorder of Mortgages and Tax Collectors, respectively. Sections 28,29, 30, 32, 33, 87 and 89 of Act Mo. 96 of 1S77; Sections 19 and 22 of Act Mo. 77 of 1880.
    Actions to test the correctness of assessments should not he instituted against the Board of Assessors, after they have completed the rolls and parted with the possession thereof. They cannot stand in judgment relative thereto, nor would a judgment against them bind the City of Mew Orleans, the Tax Collectors, the Auditor of the State, or the Recorder of Mortgages.
    The evidence supports the correctness of the'assesswent made by the Board of Assessors.

      F. G. Zackarie, for Plaintiff and Appellee:
    1*. Art. 203 of Constitution of 1879 provides, that “the taxpayers shall have the right of testing the correctness of their assessments before the Courts of Justice.”
    2. Act 77,1880, Sec. 53, providing that previous laws not in conflict with that Act or the Constitution, are continued in force; the Act of 1877 is to be construed with the Statute of 1880, when not inconsistent.
    3. Sec. 51 of Act of 1880 provides, that taxpayers may appeal to the courts for correction of assessment, but provides no manner or form. Sees 28, 29, 30 31, 32, 85 and 89 of Act of 1877 do provide for correction by courts, and lays down tbe manner and form. This, not being in conflict with the Statute of 18b0, is to be followed.
    4. Sees. 32 and 89 of Act of 1875 specify, that “ it shall be the duty of the assessor to enter such corrections on the assessment rolls,” and is still in force. Any other interpretation would deprive the taxpayer of his constitutional and legal rights.
    5. Mo other person, under our tax legislation, can stand in judgment, except the Assessors, in cases of correction of assessments, and the history of our tax legislation must be consulted, and precedent usage followed, if not in conflict with paramount laws. Syllabus, 11 A. 430 ; Hennen’s Dig. Equity, p. 480.
    6. There can be no danger of the abuse of the power hy assessors, when exercised under judgments of Courts, as in this instance.
    7. The evidence on the merits justifies the reduction made by the Judge a quo.

   TIlc opinion of the Court was delivered by

Todd, J.

This is an appeal taken hy the City of New Orleans from a judgment on a rule taken by the i>laintiff against the Board of Assessors of said City, to reduce the assessment on Ms city property, kn'o wn as the Sugar Refinery, for the year 1880.

In July of that year, plaintiff made a return to the Assessor, in which he valued said property at $300,271. The Board increased the assessment to $175,000. Before the completion of the assessment rolls plaintiff made an application for a reduction of the assessment, which was disregarded, and after the filing a delivery of the rolls in the several offices directed hy law, resort was had to this rule, and the reduction claimed sought to he enforced thereby.

The defendant excepted to the rule on the grounds: that plaintiff liad not observed the conditions necessary to entitle him to theremedy pursued, and that after the delivery of the rolls, the Board of Assessors was without authority to change the assessment or stand in judgment iiuthe proceeding.

The exception was overruled. The answer was a general denial, with the further avermont that the assessment, as shown on the rolls, was fair and reasonable, Tliore was judgment in favor of the plaintiff, making the rule absolute, reducing' the assessment to $116,371, from which the City of New Orleans has appealed.

The main question to be decided is that raised by the exception touching' the right of plaintiff to the remedy he has invoked, and the capacity of the Board of Assessors to stand in judgment.

Art. 203, of the Constitution of 1879, declares: That taxpayers shall have the right of testing the correctness of their assessments before the courts of justice.”

See. SI of Act 77 of 1880, provides: That all taxpayers shall have the right to appear before the Board of Assessors in the Parish of Orleans, * * ■* * and be heard concerning the description of the property listed, and the value of the same as assessed, and shall have the right of testing the correctness of their assessments before the courts of justice in any mode of procedure which the Constitution and laws may permit, prior to the day of tax sale as advertised.”

Under the Act of 1877, (Act. 96) Assessors were required, after completing their rolls, to advertise the fact for ten days, and after that, to expose the rolls for a certain definite period, during which period any person aggrieved by the assessment might make complaint to the Assessor, who was authorized to submit the complaint to the Board of Assessors, who were to pass on the application before the expiration of the period named. If the Board refused to make the correction, then it was provided that it might be submitted to arbitration. If not satisfied with the result-of the arbitration, the right was reserved to appieal to the courts. If any correction was made, either by the Board or by arbitration, the same was to be entered on the rolls, which were then to be returned to the officers designated. The complaint to the Board, and a resort to arbitration, were conditions precedent to the appeal to the courts. See Secs. 87, 88 and 89 of Act 96 of 1877.

. It is plain that, if under the provisions of the Act referred to, the matter of the assessment had been appealed to the courts, and the contestation thereon had been protracted beyond the time for the delivery of the rolls, notwithstanding such delivery, and after such delivery, the corrections sought to be made, if allowed by the judgment, would have to be made by the Assessors.

In tlie Act of 1880, first, above referred to, the Board of Assessors are not required to expose tlie, rolls lor examination and correction, whilst they remain in their possession, as provided by previous laws. A time is, however, fixed within which the rolls must be filed in the offices of the tax collector, auditor and recorder of mortgages, and when thus filed, it is made the duty of the tax collector to give public notice “ that the taxes assessed in that year, as set forth in the tax rolls on file in his office, are then due, etc.” And it is further provided that this publication “shall be full notice to each taxpayer that the listing assessments, etc., have been made, and that the tax rolls are on file and open to inspection and examination in the sheriff’s office, and in the office where the mortgage records of said Parish are kept.” Secs. 22, 25 and 26, Act 77, 1880. In addition thereto, as before stated, Sec. 53 of this Act gives expressly to the taxpayer the right to apply to the- Board for a reduction of the assessment, and to test the correctness thereof before the courts. And this right can be exercised at any time before the day of the sale of Ms property to pay the tax.

Notwithstanding no provision is made in the last Act mentioned for an exposure of the rolls before their delivery by the Assessor or filing in the offices named, yet wo cannot, therefore, conclude that it was intended to deny to the taxpayers a right and an opportunity to correct the assessment, for such conclusion is opposed by the requirements of the law prescribing a public notice to be given of their completion and filing, and declaring this to be notice that they aro open to inspection and examination, and to the further express provision granting the taxpayers the right to test the correctness of the assessment, at any time before the tax sale, in the courts of justice.

These provisions would be vain and nugatory if the delivery of the rolls to the offices named would shut off the taxpayer from all opportunity of making his grievances known, if any there be, and errors complained of corrected.

If the taxpayer has such right, who is to make the correction ? And whom is he to proceed against to have it made? The answer seems to us a plain one, that it should be against those who made the assessment, those who are most familiar with the subject, and those who are charged under the law with the entire work of the assessments, and this means against the Board of.Assessors.

The Act 77 of 3880, does not declare in positive terms against whom they should be directed, but it is certainly in keeping with both the letter and spirit of previous laws on the subject, and with the Act in question, that the authority that committed the error or the wrong, and to whom all power over the subject matter had been delegated, should correct the error and repair the wrong. Otherwise, though the right.to proceed to liave the correction made, may be, and is expressly conferred, the silence of the Act, as against whom the proceeding should be directed, would in no effect amount to a deprivation of any remedy.

We think, therefore, that the exception was properly overruled.

On the merits the evidence in the record leaves-not much room for controversy. A thorough examination of it satisfies us that the reduction made of the assessment by the Judge a quo, was in strict accord with the proof before him and should not be disturbed.

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


author: Todd, J. Bermudez, C. J.

text:
    No. 8286.
    Mrs. Rosina A. Brown vs. George Stroud, Executor, et als.
    In cases where the rights of creditors, forced heirs or other third persons, are in no manner affected, the declarations and admissions of the husband, made at a time not suspicious, that certain property belongs to his wife and was acquired by her, in her own right, by purchase or otherwise — in the absence of any charge of fraud or error, are legal and proper and sufficient evidence against himself or persons claiming through him. And such admissions may be proved under the general issue. Affirming previous decisions.
    A petition for a rehearing must contain substantially the reasons, points and authorities upon which the petitioner relies to obtain a rehearing. When further time is allowed him by the Court, it is only for the purpose of elaborating an argument on the points presented in the petition.
    APPEAL from the Civil District Court for the Parish of Orleans. Laemus, J.

      Wm. TP. Mellen, Julius Aroni and D. <7. Mellen, for Plaintiff and Appellee.

      W. 8. Benedict, for Defendant and Appellant.
   The opinión of the Court was delivered by

Todd, J.

Tbe sole matter in controversy in this ease relates to the ownership of a number of shares of stock of the Cincinnati Gas Light Company, and a small dividend thereon.

The plaintiff, who is the universal legatee of George T. Rowe, deceased, claims that the stock belonged to the community that existed between the said deceased and Louisa P. Rowe, his wife, also deceased, and that the community interest of the'former belongs to her as such universal legatee. The defendant, who is the executor of the succession of Mrs. Rowe, and the attorney for absent heirs, claims that the stock in question was Mvs.-Rowe’s paraphernal property, and belongs to her succession.

Mrs. Rowe die,(l in 1878, and George T. Rowe in 1880.

The property in dispute was inventoried as belonging to tlie succession of the former. By the last will of Mrs. Rowe, her surviving husband, George T. Rowe, was given the usufruct of this and other property, which was specifically namedin the will, and under this-devise lie had possession of it and received its revenues up to the time of his death.

The plaintiff assumes that the property in question belonged to the community existing between the deceased spouses, basing her claim upon the legal presumption that all property acquired during the marriage, whether'in the name of the husband or wife, and remaining at its dissolution, belongs to the community. The property was purchased and stood in the name of the wife during the marriage, and the defendant, as stated, contends that it was her separate property.

We find it unnecessary, from our view of the case, to take into consideration a great deal of evidence in the record referring to the origin of the fund, or how and whence derived, with which the purchase was in the first place made.

These facts are certain:

That the purchase or purchases of the first shares acquired were made in the name of Mrs. Rowe.

That the remaining shares accrued or were acquired by the dividends or profits arising- from the shares purchased.

That these shares were treated by the Company as the separate property of Mrs. Rowe, and the dividends paid or accounted for to her.

That her husband, George T. Rowe, during the long series of years that these transactions were going on, verbally, and in writing, acknowledged, both during the lifetime of Mrs. Rowe, and after her death, that they were her individual or separate property; that he joined in an act to authorize his wife to pledge a number of the shares to secure a loan made to her individually; he acted as her agent at times with reference to the business with the Company connected with these shares. In short, in every possible way, both by act and word, he disclaimed any title or interest in this property, and admitted and declared the title of his wife thereto.

The usufruct of this property — the right to receive its revenues — was given to the husband by the will of his wife; they were inventoried as belonging to her estate. The revenues from them were received by liim after her death, and we hear no claim asserted by him .to the property itself.

In the face of all this evidence — with these facts opposed to him— George T. Rowe, after the death of his wife, could not have recovered this property from her estate. His acts and admissions would have placed the matter beyond controversy. These admissions were made at times not suspicious, when there was no motive whatever for concealment, when there were no creditors, and the rights of third persons were not involved.

They show conclusively that he had no right to this property, and , therefore, could convey none.

The plaintiff, claiming only as an object of Ins benevolence, being neither croditornor forced heir, has, and could have, no better right, than the testator possessed, and we clearly see that he had none. There is no allegation by the plaintiff of fraud or simulation on the pari of the person under whom she claims in connection with his acts and admissions referred to, and from her position, she would be suffered to make no such charge.

Hence, it is evident that the authorities relied on by her counsel, and cited in their argument, have no application to the facts upon which, in our opinion, the proper determination of the case rests. The principle upon which our conclusion .is based has been frequently recognized in the decisions of this Court, and is firmly imbedded in our jurisprudence. Thus, in the case of Drumm vs. Klemman, 31 A. 124, in which Chief Justice Manning was the organ of the Court, where the effect of the acts and declarations of .the husband touching property held as the separate property of the wife, was under consideration, we find the following language:

“ Can the present plaintiffs gainsay this declaration in the deed, to which the husband had put his hand ? If they were creditors or forced heirs of the testator, there is no doubt they could. "Were it otherwise, collusive declarations made by parties to an authentic act would conclude those whose interests are affected by them. But the plaintiffs are neither creditors nor forced heirs. One is the mere executor of the will, with no substantial interest in the question. The other two are simply subjects of gratuitous bounty, who have no claim to any of the testator’s property except that derived from the will. They stand in his shoes. They are bound by his acts and his words. They cannot claim as his that which he declared or admitted was another’s.”

And in the case of the Heirs of Compton vs. Maxwell, 33 A. 688, the irresent Court, referring to a like state of facts, said:

“ This recognition (by the husband) is shown by the purchase of property in the name of the wife, including the property in controversy, in some of which purchases the husband joined to authorize her, by powers of attorney executed by her to her husband, empowering him to represent her in her business affairs, which, during his life, were conducted in her name. ? In the face of-these acts and proceedings, it would:hardly be contended that Thomas A. Compton. (the liusband) if alive, could be listened to in asserting a claim to this property. His heirs, claiming through him, stand in no better condition.”

See also, Barbet vs. Rath, 16 A. 271; Arnover vs. Case, 9 A. 242; Stewart vs. Mix, 30 A. 1036.

The case of Kernan vs. Ins. Company, 28 A. 312, cited by plaintiff’s counsel, is not in point, for that involved a contest between the heirs of the father and the creditors of the mother, where it was competent and legitimate to show the falsity of the declarations of the husband in favor of the wife.

This matter in no manner involves the question of estoppel raised by the plaintiff’s counsel. It is not a case where plaintiff or any one else has been induced to act upon the statements of another party, and would be prejudiced by permitting him to deny their truth; but, on the contrary, is a case where the representations of a party in whose favor the statements or declarations were made, simply assert them as a matter of evidence against the adverse pretensions of the one, who claims under him, by whom they were made. We, by our ruling on this point, merely announced that, in cases where the rights of creditors or forced heirs, or other third parties, are in no manner affected, the declarations and admissions of the-husband, made at a time not suspicious, that certain property'belongs- to his wife and was acquired by her in her own right, by purchase or otherwise, in the absence of any charge of fraud or errory-aré proper and. sufficient evidence against him, and those claiming through or under him, and that such admissions may be proved under-tbfe-'géne-ral issue.

Entertaining these views, we think the judgment of the lower court, which was in favor of the plaintiff, was erroneous.

It is therefore ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed, and that plaintiff’s demand be rejected with costs of both Courts.

Mr. Justice Poché takes no part, not being present during argument.

On Ai’plioation for Rehearing.

Bermudez, C. J.

We have given a patient and deliberate attention to the exhaustive brief of plaintiff’s learned counsel in support of the application for a new hearing.

The close and intelligent criticism to which our appreciation of the circumstances of this controversy was subjected, confirms us in an adherence to our finding of the substantial fundamental facts elicited during the trial of the cause, and to our previous decree.

It is sufficient that it was proved that Mrs. Rowe had ample means to acquire the gas stock, which is the object of this litigation; that she administered lier property separately ; that her husband has time and again unequivocally acknowledged it to belong to her j that he has left no creditor or forced heir, charging against those acknowledgments, to debar those who claim gratuitously' under and through his benevolence.

It is a significant circumstance that Mr. Rowe never, before or after the death of his wife, intimated the slightest claim that the gas stock was not her paraphernal property. He must have known of, and never objected to, the inclusion of it, as such, among the assets of her succession. Even in his will there is nothing to indicate that he contemplated or claimed the right to dispose of this property. In her will, Mrs. Rowe mentions it as belonging to her, and gives her husband the usufruct of it.

Had the marriage been dissolved otherwise than by' death, and the spouses proposed to liquidate the community affairs, the husband could not have been admitted to attack the title of the wife to the stock.

The authorities to which the able counsel once more calls our attention have our unqualified approval, but only in those cases in which the rulings were made, in which predominate. conspicuously either creditors or forced heirs, assailing investments made to their alleged injury' in the name of the wife.

We have been shown, and we know of no authority permitting the husband — after a dissolution of the community, aud upon a settlement of it, in the absence of any clamor on the part of injured parties— to go behind his acknowledgments of ownership or title, honestly made in favor of his wife, and to raise any claim to the whole or to part of the same.

In 30 A. 1036, our immediate predecessors, in an analogous controversy, said:

This whole proceeding is bad in law, and equally bad in morals. If the wife is not really the owner of this property, the husband has done all that he could to establish and confirm the ownership in her and to mislead the public as to the real ownership. If her title is apparent, not real; if it rests upon a basis of false pretenses and assumptions, the husband’s hand must not be the first that is raised to strike down the fabric of which he was the chief architect.”

This ruling was subsequently affirmed in 31 A. 124, by the same Court. In 33 A. 688, the same doctrine was announced and it is now reiterated. It rests upon solid foundation. 16 A. 271; 23 A. 83; 21 A. 344; 28 A. 314 ; 10 A. 739; 33 A. 612.

We have made in our previous opinion extracts from the two first cases, bearing also directly upon the point under consideration.

After a careful review of the facts and of the law, as well as of the reasons assigned in support of our anterior decree, we cannot perceive how we could be justified in admitting error in our finding, which is correct and does justice.

Before concluding, we will take occasion to say that we have felt much perplexed as to our right to review the judgment complained of; but we did not hesitate to do so, considering that the conclusion which we had again reached, favorably to the defendant, could impair no vested right.

The opinion pronounced in this case was rendered on the 19th of December past. On the sixth judicial day following its rendition, viz : on the 31st of the same month, the plaintiff and appellee, dissatisfied with the judgment, presented through her counsel a petition for a rehearing, the sole allegation whereof is, “ that there is error in the opinion and judgment rendered herein, as she will show by her printed statement of points and authorities to be filed, and that she is aggrieved by said judgment.” On the same day, on motion, ten days were allowed the petitioner to prepare and file a brief in support of the petition for a rehearing. On the 7th of January following, a brief was filed.

The question which presents itself to our minds was, simply, whether we had a right to revise that judgment.

-v • The solution of that question depended upon whether there had been •presented to that end such a petition as is required by law, in order to suspend: the course of the delay prescribed for the finality of the judgment.

Where the six judicial days fixed by Article 911 of the Code of Practice, as the time within which a petition for a rehearing should be filed, elapse before the filing of such a petition as is required by law, the irresistible consequence is, that the judgment becomes final and is not reviewable.

Article 912 of the Code of Practice provides, that in the interval between the day on which the judgment is rendered and that on which it becomes final, a party dissatisfied with the judgment may apply to the Court for a new hearing in the cause, and for this purpose shall present a petition in which he shall state substantially the reasons for which he thinks that the judgment is erroneous, and shall cite the authorities in support of his opinion.”

Rule IX., par. 1, of this Court, reads, that applications for rehearing must be made by petition filed within the legal delay, and must be accompanied by a printed statement of all the points and authorities on which the party founds his application. Additional time for elaborating tlie argument on such points and authorities may he granted upon a proper showing, if made before the dolay expires.”

It is apparent that both the Article of the Code and the rule of Court require that the petition shall contain substantially the reasons, points and authorities upon which the petitioner relies to obtain a new hearing, and that the petition so drawn up shall be filed within the six judicial days.

The petition presented in this case was filed on the sixth judicial day, but it states no reason, no point, no authority, in justification of the complaint and charge of error which it embodies. Far from it, it charges error in the judgment, as 'will be shown by a printed statement to be filed.

The order allowing ten days to prepare and file a brief in support'of the petition, was rendered on a motion which was not intended and did not purport to inject into the petition, the lacking allegation, reason, point or authorities. It was an authority for an extension of .time to elaborate an argument on the points which the petition was supposed to contain, but, in reality, did not in the least embody.

To countenance petitions not presented in compliance with mandatory requirements of the law, would be to inaugurate a loose practice. To .consider briefs, into which are incorporated grounds,.when no ground has been embodied in the petition, would be to sanction an enlargement by argument, of a groundless petition, by allowing an amendment to vivify that which would otherwise be lifeless, after the. sixth judicial day. . Such a course can, under no circumstance, be permitted.

The appellee, by not presenting within, the six judicial days such a petition, setting forth the reasons or points in support of her complaint, and charge of error, as is demanded by law and by the rule of this Court, might have been considered as having suffered the delay to expire uninterrupted, and the judgment to acquire the same finality which it would have acquired, had the document termed a petition for a rehearing never made its appearance.

' The Article of the Code of Practice, and the rule of Court on the subject, will be hereafter enforced.

The prayer .for a rehearing is refused.

Mr. Justice Pochó takes no part, not having participated in the original decision.


author: Pociiii, J.

text:
    No. 8335.
    The State of Louisiana vs. Henry Revells.
    The attorney appointed as Judge ad hoc declining to act as suck any longer, it was legal and proper for the lower court to appoint another attorney as such Judge ad hoc. jNor was it necessary that the said attorney bo a resident of the Parish in which the case was tried, being a resident of the District of which the Parish formed part.
    A continuance was properly refused, under the circumstances of the case.
    Orders relating to the separation of witnesses during the trial, are matters peculiarly within the discretion of the lower court.
    Tlie confession of the accused, made whilst lie was in the hands of liis captors, who were not officers of the law, and after they had put a rope round his nock, cannot he considered as a voluntary and free confession, and should not have been íeceived in evidence by the lower court.
    APPEAL from tlie Eiglith Judicial District Court, Parish of East Carroll. Hawlces, Judge ad hoc.

      W. G. Wyly, for tlie Accused, Appellant:
    1. Where the Judge is recused, and can find no resident attorney competent to act as Judge ad 7¿oc, the ease shall be assigaed to a District Judge of an adjoiniug District Sec. 2, Act 40 of the Acts of 1880; Act 70 of the Acts of 1876.
    2. Dor the purpose of trying a motion for continuance, the faets stated in tlie affidavit of the accused, for continuance, must be taken as true, and the Judge erred when he allowed rebutting evidence.
    “ The affidavit of the accused cannot he contradicted; it must he taken as trued’ 30 A. 296, State vs. Semien.
    3. When the accused caused his material witness to be summoned, ho exercised proper diligence. Where there was no competent Judge to issue process to secure the attendance of this witness, who had been duly summoned, it is absurd to say the accused failed to use proper diligence to compel the attendance of said witness, the District Judge being recused, and there being no competent Judge ad hoe to try the case, the one appointed having failed to qualify, and subsequently refused to try the case.

      4. A list of the names of the prosecutiug witnesses should have been served with the indictment, on the accused, iu order that he might protect his life and liberty by taking, in due time, adequate measures to repel their testimony, or destroy the weight or competency thereof.
    5. The statements of the deceased should not have been given to the jury by the witness, Richardson; because they were subsequent to the shooting — two minutes thereafter, and out ofthe presence of the accused; the criminal act had ended, and the guilty party escaped. Those “ declarations and the killing do not harmonize and constitute one transaction.” 21 An. 473, State vs. G-regor. Thoy were not contemporaneous. (See 33 An. 289 ; 28 An. 952.)
    6. Where the court orders the witnesses separated, to prevent combination and false swearing, they should remain separated till the trial ends; it was error for the prosecution to ask, and tlio court allow the witness, Shelton, after ho had testified in chief, to remain in the court room to hear the testimony of the other witnesses, in view of the fact, that defense stated he expected to recall said witness later in the trial, and did not wish him to hear the delivery of the testimony of other witnesses.
    7. Tlie confessions of the prisoner, kidnapped'in Mississippi by a patty of 20 armed men from this State before day, and brought across swamps for a distance of fifteen miles, with his hands tied and a rope around his neck, were not voluntary confessions of guilt. ' It is manifest the circumstances of this capture were such as to inspire fear and alarm, and to preolude the idea of deliberation and voluntary mental action nocessary in making a solemn declaration of this character. (See 25 A. 192, State vs. Garvey and Earle; 28 A . 925.)
    8.“ Where, from the whole case as presented, the Supreme Court is left with an impression that there may have been irregularities in the trial, although all the points made by the accused have been properly ruled against him, the case will he remanded for a new trial/’ 30 A. 540, State vs. Gunter.

      Olías. M. Pilcher, on the same side.

      J. 0. Egan, Attorney General, for the State, Appellee :
    1. A Distiict Judge has the power to recuse himself, and to- appoint any attorney-at-law, practicing in his District, to act as Judge ad hoc. Art. 112 of the Constitution ; Act No. 40 of 1880.
    2. And if the said appointed Judge accepts the trust, hut afterwards refuses to proceed in the trial of the case, after passing upon some preliminary matters, it is in the power, and the duty, of the District Judge, to appoint some other qualified attorney to act as Judge ad hoc.

    3. The absence of a witness for the defense is not a good ground for continuance when several continuances have already been liad, and the defendant has not shown proper diligence in obtaining the absent witness, and there are no reasonable prospects that the absent witness will he present at the time to which a continuance is asked. 33 A. 1344 ; 10 A- 478; 21 A. 273 • 22 A. 468; 33 A. 681; lb. 1111; 16 Texas, 445.
    4. It is in the discretion of the court to permit or refuse the witnesses to be present in court during the trial, and he can make whatsoever order, in reference to the same, that suits the circumstances of the case. Holt, 689; 30 Mo., 236 ; 27 Ga., 287 ; 29 Cal. 622; Moody & M. 329; S. R. Rex vs. Brown, 4 Car. & P., 588, note; Bishop on Crim. Pro., 2d Ed., Yol I, Secs. 1086, 1087 and 1088.
    5. A statement made by the deceased within two minutes after receiving a mortal wound, as to the cause of the injury, is admissible as a part of the res gestee. 2 Dutch, 601; 2 Gratfe. 594; 2 Allen, 136; Waterman’s U. S. Crim. Digest, p. 288, Secs; 363, 362 and 364.; 11 Ga. 615; 3 Cnsh. (Mass.) 181; Roscoe’s Crim. Ev., 5th Am. Ed. p. 24.
    6. Confessions of the accused are admissible in evidence when the prosecution proves, to the satisfaction of the Court, that they were made voluntarily. 15 A. 568; 3 A. 497; 6 A. 167; lb. 694; 12 A. 895; 30 A. 881; 40 Ala. 54 ; 31 A. 192; Roscoe’s Crim. Evidence, p. 41.
    7. The fact that accused made the confession while under arrest, is not sufficient to exclude the evidence. 4 Parker, 319 ; 18 R. Y. 9; 3 Barr., 264; 11 Ga. 225 ; 6 Ired, 305; 44 Cal. 538; S. C., 2 Green’s Crim. Reps. 411.
    8. Ror is it sufficient to exclude them if he was also very much frightened at the time. 3 Pinker, 256 ; 69 Mo. 430.
    9. Eor if he was hound. 28 A. 9; 44 Miss. 322; 17 Ala. 192.
    10. The surrounding circumstances are matters for the consideration of the Jury in determining the credibility of the confession, and what force and effect should he given it. 47 Ala.-38; S. C., 1 Greenes Crim; Reps. 708.
    11. Although a confession is made under improper influences, yet a subsequent confession, which is free from such influences, is admissible as evidence. 3 Heisk. 408; 4 Smed. & Marsh. 31; 12 A. 895; 5 Jones, 315; lb. 420; 6 lb. 478 ; 20 Gratt. 724.
   The opinion of the Court was delivered hy

Pociiii, J.

Appealing from a sentence of death, on a conviction for murder, the defendant alleges, through hills of exception, numerous irregularities in his trial, which we shall consider seriatim.

1. He charges error in the appointment of J. G. Hawks, Esq., as Judge ad hoc, in the place of the District Judge, who had recused himself for the reason, that previous to his election, as Judge, he had been of counsel for the State in this case.

The complaint is, that J. W. Montgomery, Esq., having been first appointed, and having acted as Judge ad hoe, and having subsequently resigned the trust, the court had erred in appointing Hawks, a resident of Madison Parish, but should have appointed some District Judge of an adjoining District, to try the case.

Under Act 40 of 1880, which is the law regulating the recusation of District Judges, and the mode of trial of reeused cases, no attorney can. be compelled to accept the trust, or to continúe in the discharge of the duties after haviug once accepted, nor does the law require that the attorney appointed as Judge ad hoe, be a resident of the Parish in which the case is tried. He must have the qualifications of a Judge of the District Court in which the recused case is pending. J. G. Hawks, Esq., being a lawyer, otherwise qualified, and a resident of Madison Parish, which is included in that District, was competent to discharge the duties of Judge ad hoe in the case, and hence there was no error in liis appointment.

The complaint of the accused of the refusal of the Judge to grant him a continuance is not well founded, under the circumstances of this case, which had already been tried, and had been remanded from this Court, and in which three successive continuances had previously been obtained, on account of the absence of the very witness whose absence was made the ground of the motion for the continuance which was refused. The circumstances under which the motion was overruled, subject the question to the rulings recently made by this Court in the following eases: State vs. Fulford, 33 A. 681; State vs. Hoonsley, same, 1111; State vs. Fisher, same, 1344.

3. The Judge did not err as charged, in allowing one of the State witnesses to remain in the courtroom after he had testified, and after the Judge had ordered all the witnesses in the case to be separated.

All orders touching the separation of witnesses, are matters peculiarly within the discretion of the Judge, with which the Appellate Court will not interfere: 27 Ga. 287; Bishop on Criminal Procedure, 2d Ed., Vol. I, Secs. 1086, 1087 and 1088.

4. The accused next complains of the ruling of the Judge in admitting proof of the statements of the deceased, touching the person who had shot him, immediately after he had been shot, to a witness who had heard the shot, and the cry of the deceased, and had hurried to the spot which he reached about two minutes after the shooting, but not in the presence of the accused.

After considering several authorities on this point, we have reached tlie conclusion that this declaration was properly admitted in evidence as part of the res gestae. Com. vs. M. Pike, 3 Cush. (Mass.) 181; Roscoe’s Crim. Evidence, p. 24; Waterman’s Digest, pp. 288, 361, 362 and 364.

5. Tlie next error charged has reference to the admission in evidence of the confession of the accused, made under the following circumstances :

Immediately after the homicide, which had caused great excitement in the Parish, the accused had crossed over in the State of Mississippi, at a distance of about 15 miles, where he was captured at a house in which he was spending the night, a short time before day, by a body of eighteen or twenty men, well armed, but not authorized by any requisition to make the arrest in Mississippi, nor sworn officers of the law, who immediately hound the accused, a hoy about 18 years of age, by tying a rope around his arms and around his neck, and at once began, their march towards Carroll Parish.

During the journey, the accused, after being warned that his statements touching the homicide might he used against him on his trial, made a confession of his guilt, which he repeated after he and his captors had reached the Parish of Carroll.

• We cannot conceive how it can he maintained that a confession made under those circumstances, is a free and voluntary confession, within tlie meaning of the numerous adjudications of our own as well as of the1 Courts of our sister States, on this important question.

The fact that the rope around tlie arms of the accused had been removed when he made the confession, unaccompanied by proof that the rope had been removed from his neck, is not sufficient to remove the irresistible impression that the accused, in the hands of a large body of armed ipen, who liad taken him from the bed in which lie was asleep, had tied him by the arms, put a rope around his neck, was not, and could not he in a state of mind under which he could make a free and voluntary confession of guilt, uninfluenced by fear or not alarmed by tlie dread of his numerous captors.

We have examined and fully considered the numerous authorities relied on by the Attorney General in support of the admissibility in evidence of confessions made by prisoners while in custody of officers, while in jail, and even when in irons, but we have found no cases, and have no hesitation in asserting that none can he found, justifying the admission of the proof of a confession of guilt made by a young captive while in the hands of a hostile body of armed men, not known to him as officers of the law, and with a rope around his neck, and we shrink from the responsibility of establishing such a dangerous precedent.

The ruling of the Judge on this iioint was erroneous, and manifestly to the great injury of the accused, and hence the case must he remanded.

It is, therefore, ordered, that the verdict of the jury he set aside, and the judgment of the lower court reversed, and that this case he remanded to the District Court for further proceedings.


author: Levy, J. Levy, J.

text:
    No. 8529.
    Mrs. C. Young vs. Rowley Wilson et als.
    The allegation in defendant’s answer and claim in reconvention, that the value of the possession of the land sued for, is §1500, is sufficient to show that this Court has jurisdiction of the case.
    The evidence shows that plaintiff has had actual possession of the laud for more than a year, and was evioted within a year prior to the institution of the suit: it is all that the possessory action requires.
    APPEAL from the Ninth Judicial District Court, Parish of Concordia. Hough, J.

      Boatner & Mason, for Plaintiff and Appellee:
    The Supreme Court lias no jurisdiction of a possessory action, in which the value of the possession is neither alleged or proved to exceed the sum of one thousand dollars. 22 A. 272.
    Jurisdiction is fixed by the pleadings and the evidence, and where the evidence in the record shows that this Court has no jurisdiction, ex-partc affidavits filed after appeal is perfected are not permissible to contradict or vary the evidence so as to ohange or show that it has.
    On the Merits.
    In a possessory action the possession of the executor, during his administration, is the'possession of the heirs, and will entitle them, after a partition, to maintain the action. 5 A. 689, 643.
    The civil possession of the vendee, together with the actual and real possession of the vendor, will suffice to maintain the possessory action, when brought within one year of the vendor's actual and real possession, and before an adverse possession has been acquired. 13 L, 237; 19 L. 241; 10 A. 518.

      Geo. 8. Saioyer aud York c6 Young, for Defendants and Appellants:
    1. The premises in dispute did not belong to Fletcher, or the Fletcher Place. Plaintiff had no right, or title, orpossession. She cannot maintain a possessory action. C. P. Art. 49 ; 7 La. 415 ; 13 An. 573 ; 4 An. 515.
    2. She should have ordered a survey, and admitted the deeds offered to prove the locus in quo and the extent of the Fletcher Place, and of possession of the plaintiff. 9 M., bottom of page 79 ; 19 La. 256; 7 An. 578; 15 La. 451; 6 An 66 ; 19 La. 484.
    3. The possession of the disputed premises by Fletcher, plaintiff’s vendor, was a tortious possession; he could nob convey any right to the same to his vendee. Ex “ turpi causa,” etc.
    4. The plaintiff, not having actual possession at the time, or prior to the alleged disturbance, his action must fail.
    5. The amount involved in this suit exceeds in value the sum of one thousand dollars.
   On Motion to Dismiss.

Tlio opinion of the Court was delivered by

Levy, J.

Appellee moves to dismiss this appeal, for the reason that this Court is without jurisdiction, rations mateiiw, the amount in dispute not exceeding one thousand dollars.

The suit is a possessory action, in which plaintiff seeks'to be restored to the possession of a certain tract of land, of which he has been disturbed and evicted by defendant, and further claims damages in the sum of two hundred and thirty dollars, and one hundred and eighty dollars for rent, and fifty dollars for attorney’s fees, amounting in the aggregate to four hundred and sixty dollars.

In his answer, defendant claims in reconvoution as damages, nine hundred dollars, as follows: In the threatening by plaintiff to take possession of his stock and crops, in $150; in $250 attorney’s fees in defending this suit, and $500 exemplary damages for slander of title and annoyance and trouble attendant upon tho institution of the suit. He further alleges that the possession of the laud is worth fifteen hundred dollars.

Defendant’s right to recover on this reconventional demand must be governed by the prayer for damages made in his answer. Tho amount of damages claimed by him, and the causes giving rise thereto, are specifically set forth and cannot be supplemented by more allegations of the value of the land; but there is an allegation that tho value of the possession is $1,500, and, therefore, the case is within our jurisdiction on appeal.

The motion to dismiss is denied.

On the Merits.

Levy, J.

This is purely and simply a possessory action. The evidence shows that the plaintiff had the actual possession of the land for more than a year prior to the alleged eviction, in herself, and through her vendor and agent, and was disturbed and evicted in her possession within a year prior to the institution of the suit. The requirements of the law which justified a resort to this action, areTulfillod, and the proof sustains the judgment of the lower court.

The title to the land was not, and could not bo inquired into in this action.

The judgment appealed from is, therefore, affirmed at costs of appellant in both Courts.


author: Pocilé, J.

text:
    No. 7273.
    J. M. Billgery vs. Widow Billgery et al.
    When the surviving husband, after mortgaging the community property, has been recognized by the Probate Court as sole heir of his' deceased wife, in default of descendants, ascendants, or collaterals, the mortgage will be legal upon the whole property, and the seizure and sale of such property, by foreclosure of the mortgage, will convey a valid title to the purchaser.
    APPEAL from t.lie Second District Court for the Parish of Orleans. Tissot, J.

      J?. Micldnarcl and Olías. Longue, for Plaintiffs and Appellants.

      Gibson, .Rail & Montgomery, for Defendant and Appellee.
   The opinion of the Court was delivered by

Pocilé, J.

The object of the proceeding is to compel Carbajal, adjudicatee of a piece of property, to comply with the terms of his jmrchase.

' Alleging defects in the title of the vendor, he refuses to complete the sale.

The main defect alleged is levelled at the title acquired by Billgery, at the side under executory process in the suit entitled Rose Cammack vs. John Hays, and rests on the ground that Hays was not sole owner of the property when he mortgaged it in 1870, which property belonged to the community previously existing between Hays and his deceased wife, Margaret Allen, in consequence of which only one-half of the property was or could be affected with the mortgage granted by Hays, and only that portion was transferred by the sheriff’s sale in the suit in executory process.

This appeal is taken from the judgment of the District Court sustaining the adjudicatee’s' objections, and releasing him from the obligation of his hid.

From the record it appears that Hays was married in 1848, that he purchased this property in 1858, and that his wife died in 1868, and that, therefore, the property belonged to the community.

The act of mortgage under which the property was subsequently seized and sold, was executed by Hays in 1870, and his wife’s succession was opened in 1873, when, on proof that Mrs. Hays had left no issue, no ascendants, and no known relatives, a judgment was rendered recognizing Hayes as her sole heir. The adjudication to Billgery, under the executory process, was made in March, 1874.

Immediately after his purchase, Billgery instituted suit for the nullity of the adjudication to him, on substantially the same grounds as are now urged by Carbajal in this controversy, which suit resulted in a judgment rendered by this Court, recognizing the validity of Hays’ title to the entire property, and binding Billgery to the terms of his purchase.

We consider that the status of the property was finally settled by that judgment, and protects all future purchasers against any claim which Hays, who was a party to the suit, might set up to tho property, on the alleged ground that the mortgage, which he granted in 1870, affected only one-half of tho property, and that he became owner of the other one-half only in 1873, under the judgment of the Probate Court. The latter judgment, predicated upon proof made of the non-existence of any heirs of the deceased wife, must stand until annulled or set aside in a direct action by heirs of the deceased wife, and is, in our opinion, a legal protection of the purchaser. Davis vs. Greer, 32 A. 425.

The argument that, bocause Hays did not comply with tho decree of the Probate Court, requiring him to give the bond prescribed by Art. 931 of the Civil Code, he was not legally put in possession, falls harmless in the face of the consideration that tho law does not contemplate the nullity of the decreo as a consequence of tho surviving husband’s failure to furnish the required bond, and is further met and overcome by the fact that the bond is intended by law, in order to secure tho restitution of the estate in case any heir should come forward within the space of three years after his having been put in possession, after which term the security shall remain discharged from his obligation, as it appears that more than five years had elapsed from the date of the judgment to the date of the institution of this suit.

Under the circumstances and the issues presented in this case, this bond would have served no useful purpose, and it does not lie in the mouth of a third party to invoke any consequence resulting from the failure of Hays to furnish the bond.

By the fact of his wife having no relatives who could claim her succession, Hays was at once invested with the quality of heir of her succession, and the mortgage granted by him in 1870 affected quoad that property all the rights which he had to it. By opening the succession of his wife in 1873, and by obtaining the decree recognizing him as heir of his wife, Hays obtained no greater substantial legal rights to the succession property than were vested in him by law at tho death of his wife, without legal heirs of the blood to represent her succession.

And even if he had by those proceedings acquired any rights not previously vested in him, such rights enured to tho benefit of his mortgagee. 1N. S. 547 ; 5 N. S. 247.

After a careful consideration of all the objections urged by defendant in rule to Billgery’s title to this property, and an attentive examination of all the authorities which he quotes, we find no serious ground in the adjudicatee to fear any trouble or eviction under the title which is tendered him, and which lie-must, therefore, accept.

It is, therefore, ordered, that the judgment appealed from be annulled, avoided and reversed, and it is now ordered that the rule herein taken on N. J. Carbajal be made absolute, and that lie be condemned to comply with the terms of his bid at the adjudication made of the proi>erty described in the rule, in default of which, said property is ordered to be sold at his risk according to law, and that he pay costs of this rule.


author: Poché, J.

text:
    No. 8537.
    J. H. Horner vs. E. S. Dennis, Sheriff, et als.
    It is now well settled in our jurisprudence, that the property held in pledge by a creditor, may be seized from his possession by another creditor of the pledgor, and that the said pledgee cannot, by injunction, arrest such seizure.
    APPEAL from the Eighth Judicial District Court, Parish of Madison. JDéloney, J.
    J. B. Stone and Seale & Boney, for Plaintiff aud Appellant.

      A. Ar. Spencer, for Defendants and Appellees.
   The opinion of the Court was delivered by

Poché, J.

Plaintiff, as pledgee of a claim evidenced by an instrument in writing, owned by Henry S. Utz, has enjoined the seizure of the same by E. D. and W. Farrar, judgment creditors of the pledgor.

Among other defenses, the seizing creditors filed a peremptory exception of no cause of action, which was referred to the merits, and judgment was rendered in their favor, dissolving plaintiff’s injunction, with ten per cent, interest per annum on the judgment enjoined.

It is now well settled in our jurisprudence, that the property of any nature, held in pledge by a creditor, may be seized from his possession by another creditor of the common debtor, and sold subject to the pledgee’s claim.

The only right which the law secures to the pledgee is to satisfy his debt by privilege and in preference to the other creditors of his debtor, out of the product of the movable, corporeal or incorporeal, which has been thus burdened.” C. C. 3157.

Nothing in the nature of the contract can authorize the pledgee to hold indefinitely the property pledged, which is usually far in excess of the amount thereby secured, and to thus deprive other creditors of tlieir recourse on tlie debtor’s property. “Were it otherwise, the creditor in possession would become by his own wrong the proprietor of the pledge, and that in open violation of the law which prohibits him from acquiring it by such means, and expressly declares that it is only a deposit to secure his debt.” 2 N. S. 22; 1 N. S. 417, Williams vs. Schooner St. Stephen; 31 A. 865, Augé vs. Variol; same, 870, Pickens vs. Webster, sheriff, et al.

It was, therefore, competent for the seizing creditors to seize even in the possession of I-Iorner, the claim wliich had been pledged to him by Utz.

The next question involved in this case is, whether plaintiff, claiming to have a pledge of the thing seized, and urging a superior privilege on the same, was authorized in law to enjoin the seizure made of the claim, by judgment creditors of the debtor.

An unbroken line of decisions of this Court has also settled that point adversely to plaintiff’s position in this case. His right was to claim priority of privilege over the seizing creditor on the proceeds of the property pledged to him, and seized by his debtor’s judgment creditors; and his remedy was by third opposition to regulate the effects of the seizure, or by injunction arresting the proceeds in the hands of the sheriff, subject to his ranking privilege, but he is not warranted in law to enjoin the seizure of the thing pledged, becairse he claims asupei'ior right or privilege thereon. To concede such a right to a preferred creditor, would empower him, in case the value of the property thus burdened was far in excess of his claim, to remove the property beyond the pursuit of other creditors of the debtor, whose property is in law the common pledge of his creditors. 5 R. 496, Vanhich vs. Husband; 10 R. 28, Gill vs. Husband; 2 A. 762, Fisher vs. Gordey; 11 A; 275, Antognini vs. Railey; 14 A. 104, Wallis vs. Boure; 18 A. 665, Marot vs. Husband; 19 A. 62, White, Admr. vs. Blanchard; 26 A. 265, James Breaux; also 6 N. S. 615, 7 N. S. 281.

Plaintiff relies in support of his right of injunction on the cases reported in 6 N. S. 311, and 13 A. 273, but neither is applicable to the question under discussion. In the case first mentioned, the contention involved the ownership and possession of a slave, and it was held that possession justified an injunction. In the other case, the seizure was not enjoined, but the proceeds of the sale of the property were arrested in the hands of the sheriff, by injunction on the demand of the preferred creditor, the very remedy which we have indicated in this opinion.

Appellees have asked an amendment of the judgment, for the purpose of increasing the damages allowed them below.

Considering plaintiff’s utter disregard of our well established jurisprudence on the two questions involved in this controversy, we think tlie demand reasonable.

It is, therefore, ordered, that the judgment of tlie lower court be annulled, so as to increase the damages allowed to defendants, by adding ten per cent, on the amomi t of the judgment enjoined; and that, as thus amended, said judgment be affirmed at appellant’s costs.


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

text:
    No. 8540.
    Mrs. Mary A. Pike et al. vs. J. W. Bates, Sheriff, A. L. Gusman et als.
    After once granting an order of injunction, the Judge cannot revoke it without notice to, and hearing of the party in whose favor it was granted.
    The hiicf of one of the defendants in this case is ordered by this Court to bo taken off the files and returned to its author, for indecorous languago towards the opposite counsel.
    APPEAL from the Seventeenth Judicial District Court, Parish of East Baton Rouge. Sherburne, J.

      Herron <& Beale, B. B. Richardson and H. B. Matjruder, for Plaintiffs and Appellants.

      A. B. Gusman, in propria persona, Defendant and Appellee.
   The opinion of the Court was delivered hy

Fenner, J.

On May 31, 1881, the plaintiffs applied for, and obtained a writ of injunction against the defendants, under an order requiring plaintiffs to furnish bond with security as therein directed. The bond was filed, and the writ of injunction was issued and served.

Subsequently, in November, 1881, upon a petition to that effect filed by one of the defendants, without service on, or notice to the plaintiffs, tlie Judge a qiio entered, in open court, his order, u That the injunction against A. L. Gusman and J. W. Bates, sheriff, be, and is hereby revoked.”

From this order, on the following day and at the same term, plaintiffs applied, hy motion in open court, for a suspensive appeal. On refusal of tlie Judge to grant the same, plaintiffs applied to this Court for mandamus to compel him to grant the appeal, and this Court issued its peremptory writ to that effect, in obedience to which the present appeal is brought up.

We have no concern here with the grounds of tlie Judge’s action. Whatever they may have been, bo was wrong in revoking tlie order granting tlie injunction, without notice to, and hearing of, the parties in whose favor the samo had been granted. Martin vs. Thiery, 29 A. 362.

It is, therefore, ordered, adjudged and decreed, that the order appealed from be avoided and annulled, and that the injunction be reinstated, to stand as if said order liad never been made, costs of this appeal to be paid by appellee.

Bermudez, C. J.

We have noticed with regret, that the brief filed in this case by Mr. Gusman, contains reprehensible, indecorous reflections and irregular charges on opposite complaining counsel, apparently calculated to asperse tlieir good name and reputation.

We would have ordered the return of the brief before this, but we thought it preferable to retain it while the case was under consideration.

Parties appearing in tlieir own behalf, as Mr. Gusman did in this instance, are, like advocates, required to plead their cases orally or in writing, with propriety and decency, and must not indulge in personal remarks against the parties or their counsel. C. P. 486.

Briefs of that description, cannot, after the determination of a controversy, be permitted to remain, as a piece of scandal, among the proceedings.

At the request of counsel, it is, therefore, ordered that the brief alluded to be taken from tbe files of this case, and returned to its author.