author: Breaux, J. Blanchard, J. Blanchard, J.

text:
    No. 13,301.
    The Cumberland Telephone and Telegraph Company vs. The Texas and Pacific Railway Company.
    Syllabus.
    1. If the suit could not originally have been brought in the United States Circuit Court for want of jurisdiction, a fortiori, it could not be transferred to that court from the District Court.
    2. Where a complainant seeks to force a railroad company to afford it facilities equal to those given to a favored rival, the court may issue a mandamus to compel it to serve both alike.
    3. A decree made peremptory, which requires a common carrier to serve conflicting interests without preference, does not have the effect of denying the equal protection of the laws to the defendant railway company.

      4. Where it appears that more of a tender than made of cars for transportation would have been a mere waste of time and money, a useless expenditure of either is not required.
    5. While it is true that the court has no legal right to manage the railroad or direct the details of its operation or make contracts for the railroad company, it may Issue a writ of mandamus to compel it to perform a duty clearly defined under the law.

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

      Bart & Xernan for Plaintiff, Appellee.

      Howe, Spencer & Cocke and Clegg & Quintero for Defendant, Appellant.
    On tile application for rehearing by Blanchard, J.
    Removed to the Supreme Court of the United States by writ of error.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff seeks by mandamus to compel the defendant railroad company to haul special ears and run special trains in order to distribute poles, wires, and cross-arms between stations, enabling them thereby to hasten the construction of a telephone line between the city of .New Orleans and Shreveport. Relator avers that it owns its own right of way along the line of defendant’s road; that it requested it to receive its freight and transport it to points where it is needed; that the latter refused to transport these poles and other freight owing to an unlawful combination and conspiracy with the Western Union Telegraph Company, entered into contrary to public policy and in violation of the organic law of the State.

They further aver that defendant, as a public carrier, is bound by its charter to treat all alike. The defendant, on the other hand, controverts plaintiff’s right to the writ of mandamus on a number of grounds filed in their answer to the proceedings. They are clearly set forth in respondent’s assignment of errors, which, after having made a summary of the evidence, we will note. As. relates to the testimony, it appears that relator, by letters, and through one of its clerks, requested the defendant to receive its freight. To this request no answer was given except that filed in this suit, to which we have before referred.

Relator in its petition says that respondent could perform the services required of it by relator without great loss or inconvenience either to it or the traveling public or to those for whom it carries freight; that this loss and inconvenience can be avoided by distributing between trains, that is between the times of trains, and avoiding passing trains by switching its construction train to a side track; that this can be managed with safety and the construction train kept out of the way of regular trains by giving notice, usually given to such trains by dispatches; that there are switches and sidings between the regular stations on which trains stop to get out of the way of other trains; that the material can safely and without inconvenience be delivered between stations by running the construction train atj a moderate rate of speed and stopping at every one hundred and fifty feet, at which distance it is needed by relator for the construction of its line; ijhat this manner of doing this work is not extraordinary at all, and while it is being done the train can he controlled and the work done with perfect safety; that by the exercise of sound judgment the poles and other materials are thrown out at every one hundred and fifty feet on the line without the least danger; that the delivery would not- be entirely unusual on defendant’s road as it delivers freight where there is no station. There is testimony showing that on a number of railroads materials such as poles, cross-arms and insulators were delivered in the same manner as it is proposed by relator to deliver and distribute its materials along the line. This distribution was done on a special distribution train which was not unwieldy, and was not in the way of other trains. The testimony sets forth that relator would be greatly benefited by the service for which it sues, for the reason that the country through which its line runs is partly swamp covered with water three or four feet deep in some places, and there is also much underbrush and trees through which it is impossible for a human being to carry freight. It appears that defendant delivered . some of relator’s materials at stations. The disagreement relates to the pole places between stations. The witnesses for relator, and fhere are a number of them, all agree in the statement that the work in question can be performed by the respondent without incovenience or loss.

Defendant examined only one witness, its freight agent. He denies that an actual and physical tender was made by relator for transportation of freight for distribution between stations. He says that he apprehended danger if materials were thrown off from trains moving at a rate of more than two and a half miles an hour. His theory is, if, in throwing off poles say thirty or forty feet long, weighing six or eight hundred pounds, there happened to he some mistake made, it might fall under the train instead of on the side and derail it or go through the car. He mentioned other possible dangers in this work and said that there was an element of danger, because, being an irregular train on the line, it might result in a collision between itself and a regular train.

The judge of the District Court made the writ of mandamus peremptory and ordered respondent to receive from, and transfer and deliver for, relator the poles, cross-arms and other materials offered for shipment by relator for the purpose of building its telephone line along the line and route of defendant’s railroad from the places mentioned in the judgment, and particularly, in the swamp and other inaccessible places between the points mentioned. The power was recognized in the defendant company of regulating the time, order and manner of delivery so as not to interfere with their regular business and passenger traffic and to charge just and proper payfñent for the service.

From the judgment, respondent appeals and assigns a number of errors in the judgment, which we will pass upon in the order in which they are stated in respondent’s brief.

The first error assigned assails the judgment as erroneous on grounds included in the different assignments of error following it. The second assignment sets forth that the court erred in proceeding with the trial of the cause against appellant’s exception, after the cause had been removed to the United States Circuit Court for the Eastern District of Louisiana and improperly remanded by the United States Courts to the State Courts. Defendant especially claimed its federal right under the Constitution of the United States. The Circuit Court of the United States remanded the case to the State Courts for the reason that the defendant corporation is a Louisiana one, operating in Louisiana. This fact is not denied by defendant. The ground of objection is that it was erroneously remanded because the action is removable under the Judiciary Act of 1887. We have read the Act, bearing in mind defendant’s contention, and have not found that its cause comes within that act. It was within the cognizance of the District Court. We understand that this corporation has been created by the laws of the State in addition to the corporate powers it claims under United States law. The removal was not sustained by any law to which • the defendant referred, and now that it is before us on appeal we have not been informed under which of the different sections of the law invoked defendant claimed the right to remand. We have not found any provision to sustain its removal.

In the next place, we are informed by the appellant that the Texas and Pacific Railway Company is established by Congress to connect the Atlantic and Pacific oceans by a military and post road, and that no law of any State shall be sanctioned which impedes it, and that the ruling and judgment of the District Court unlawfully contravenes this federal right.

It does not appear from the evidence that appellant’s road as a military or post road will be impeded or interferred with in any manner by the proposed service. All the witnesses, except one, sustain the averment, that not only will the appellant not in any manner be impeded as a post road but that its business will not in any manner at all be interfered with, and that under proper management, and none other is contemplated as we take it. Even the appellant’s witness, to whom we have just referred, in answer to the following question: “If I were to call upon you as a man in authority and say to you, 'I want to hire through you from your railroad company one or more flat cars, to be taken out by your engineer and under your supervision and entirely suiting your convenience, in order to dump poles, how could that interfere with traffic arrangements and how could you deny me that right? You can not answer that question,’ ” answered: — “No.”

At this point, appellant’s counsel, claiming all of its federal rights, as conferred and required by Congress in different acts, contend with great earnestness and clearness that a writ of mandamus to compel a railroad company to do a particular act in constructing its road bed and buildings, or in running its trains, can be issued only when there is a specific duty on its part to do the act and a clear proof of the breach of that duty, citing Northern Pacific Railroad Company vs. Washington, 142 U. S. 492. The issue in the cited case was whether the court could compel the respondent by a writ of mandamus to erect and maintain a station house at a point named, and the language of the court should be read with reference to that issue, presenting an entirely different state of facts from that before us for decision in the present ease. The court held in the cited case that the railroad company could not be compelled to erect and maintain stations, and the court, pursuing the question further in that connection, said that there was no specific legal duty on its part to do that act, and, therefore, mandamus did not lie.

Here, different from the cited case, we take it that the purpose is to maintain similar service as that rendered to the Western Union Telegraph Company, a corporation entirely independent of the appellant, and using the telegraph line along the route of the Texas and Pacific Railroad Company, as made evident by the return of property made for taxation by the respondent. The evidence shows that telegraph poles and other materials were delivered from slowly moving trains on defendant’s road. As the defendant owns no telegraph line along its track in Louisiana, it follows that they must have delivered the materials to the Western Union for the repair and improvement of its line. The evidence shows that other companies and this company too, we may say, have carried freight to points other than stations. The law applying has made it the specific duty of carriers to serve all alike. Favors and preference are to be avoided. A common carrier cannot carry for one and refuse to carry for another. A railway is without right to grant privileges where the public is concerned. “If the company possessed this right, it might build up one set o'f men and destroy another, advance one kind of business and break down another, and make even religion or politics the test in the distribution of its favors”, quoted from Sanford vs. Railroad Company, 24th Penn. 382, in Chicago, Northern Railroad Company vs. People, 8th American Reports, 690, in which the court maintained a writ of mandamus compelling the company to perform the service requested. “The business of the common carrier is for the public and it is his duty to serve the public indifferently. ILo is entitled to a reasonable compensation, but, on payment of this, he is bound to carry for whomsoever will employ him, to the extent of his ability.” Messenger vs. Railroad Co., 1 American Reports, 756. The services to be rendered by a common carrier exclude the right to give special preference. Messenger vs. Railroad Company, 37th N. J. L. 531, citing The New England Express Company vs. Maine Central Railroad Company, 57 Maine, 1986.

This brings us to the objection urged by the defendant in support of the assignment of error arising from the asserted attempt to take away a valuable right of property vested in appellant, without due process of law. It being the duty of the appellant not to discriminate in its service to thd public and to serve all impartially, a decree requiring service without discrimination is not the taking away of a valuable right of property, but is the enforcement of a duty.

Under the laws, as we take them, the appellant is expected to give good reasons for not serving one who offers to pay afiy reasonable amount required for the service. We have not found good reasons for its refusing' to serve relator. It is not proposed to interfere in any manner with the traffic, or other business of the company. From this point of view there is no interference with the right of property. It is not an arbitrary exercise of the powers of government. It is due process of law.

The other assignments of error, in the order in which they were argued, the fifth and sixth, are considered and passed upon together. Appellant sets forth in these assignments that it is elementary that no action for damages can be maintained against a common carrier, nor can mandamus lie unless the carrier has been put in default in some one of the methods known to the law. We do not disagree with counsel’s view of the law on this point, but it must be conceded that one may waive the tender either expressly or tacitly, also that one cannot be expected to do vain things. In addition to the proof of repeated requests made by relator for the transportation of its material, the traffic manager testified that the appellant would have refused to hire engine and cars to the relator for the purpose of transporting' telegraph poles and materials. It would only have been a waste °of time and a useless expenditure of money to have made a physical tender of cars and material therein. Under the circumstances, the steps taken by the relator were equivalent to a physical tender of ears to respondent company.

We pass to the seventh, eighth and ninth assignments, considered together. Appellant contends, in support of its position, that there was no law authorizing the lower court to render a judgment making the mandamus peremptory; that it never held itself out as a common carrier to distribute freight between stations, and1 that even if it has now and then chosen to deliver freight at a platform, a flag- station, or a road crossing, that does not authorize any one else to compel the railroad to repeat such an act. As thus, stated, it may be that mandamus would not lie, but here we think the case presents different conditions. Relator seeks to compel the performance of the same service as that per formed for a rival company, in order that it may compete in its line of business. As between these two companies, the evidence shows that discrimination would be the resullt. One company would be given the opportunity to live and prosper, while the other, as relates to this line, must go out of existence. This, we think, may be prevented by way of mandamus.

Appellant states further in the brief that the fact that it wishes to distribute poles and cross-arms, etc., between stations, to the end that a telegraph line on its right of way may be constructed and repaired, does not impose any legal obligation on it to distribute freight for other people; that it simply amounts to a necessary repair or construction of one of the necessary appliances of a railroad and does not differ from the distribution of its ties and rails. Here again we. are not inclined to differ greatly from counsel. Our conclusion would be different if appellant had only provided facilities to repair or reconstruct its own line, but we have seen that the line is not owned by the appellant and the service of thfe Western Union is separate apd distinct from that of the appellant. We Lave carefully examined each of the references cited by appellant, but we have not found that they sustain any position which must result in discrimination between conflicting interests.

Our attention is called by counsel to the fact that a rigid distinction has always been made in the Constitution of Louisiana between administrative power on the one hand and judicial power on the other; that during current years, in one way or another, large administrative powers have grown up in the United States, the creation of which has been suggested by the experience of France, Germany and England, and that railroad commissioners have been vested with the authority to inquire into matters such as these here involved. We think it answer enough to state that there is a controversy between relator and respondent involving a right valued at more than two thousand dollars, and that the organic law vestk this court with jurisdiction to decide such controversies. The right claimed, and the questions involved are within the court’s jurisdiction. We would notlbe justified in declining to exercise our jurisdiction in a matter which no court has ever declined to consider, on the ground urged by appellant, when the facts are as they are here.

Appellant with great confidence, avers that a federal question is involved.

We have not given the question of federal jurisdiction very much thought, and express no opinion upon it. If there is a federal question involved, the Supreme Court of the United States will give the matter consideration and rectify the error, if error there he, in our view of the law.

This is the second decision rendered on this line in recent times. We have found no reason to change our views from those expressed in the first, Cumberland Telephone and Telegraph Company vs. Morgan’s Louisiana and Texas Railroad Co., 51st Ann. 29.

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

Blanchard, J.

Rests his concurrence upon the ground that defendant company having performed, and continuing to preform, the same service, herein demanded, for the Western Union Telegraph Co,. cannot be permitted to discriminate, and owes the duty of performance to relator, and this duty, being of a nature public, may be enforced by mandamus.

On Application for Rehearing.

Blanchard, J.

Defendant company is, quoad its lines in Louisiana, a Louisiana corporation. It acquired by purchase and absorption the franchise rights and lines of the New Orleans Pacific Railway Company, which held under a legislative charter from the State of Louisiana, and whose domicil was the City of New Orleans. See Act No. 14 of the Acts of Louisiana of 1816, and Articles of Agreement of Consolidation between ihe Texas Pacific Railway Company and the New Orleans Pacific Railway Company found in the record.

It is not true that the Court, in its decree heretofore rendered, has assumed the authority to manage defendant Company’s railway and to direct the running of its trains. •

All the decree does is to require of the company the performance of the same service for relator that it has extended to others, notably the Western Union Telegraph Company.

The evidence establishes that poles and materials for the construction, repair and maintenance of the Western Union lines have been distributed by the cars of plaintiff company between stations, and that this has been going on for years and still goes on.

It also establishes that it has been constantly the practice of defendant company to deliver freight for planters and others between stations and to receive for transportation, at points between stations, rice sugar, etc.

This being shown, it is held that the company may not discriminate arid when called upon, under conditions that are reasonable, must perforin the like service for relator. And the duty, being of a public nature, is enforceable by mandamus.

The evidence also shows that the same service herein required of defendant company has been freely accorded this relator and others by other railroad companies over their lines in this and other states.

Kelator, it appears, owns its own cars on which are loaded its telephone and telegraph poles. It applied to defendant company to haul these cars over its lines between New Orleans and Shreveport and throw the poles off, or permit them to be thrown off, at convenient distances. Other railroad companies operating lines of railway into and out of New Orleans had done this, and defendant company does the same for the Western Union Telegraph Company — a rival line.

It refused the service to relator.

That it is the province of the Court to say to this common carrier ‘what you do for others you cannot refuse to relator’, cannot, we think, be seriously questioned.

And in so saying, and enforcing by its writs the performance of the duty, it is not apparent that defendant company is denied any of the rights, privileges and immunities granted to it by the several acts of Congress referred to in the application for rehearing and in the briefs filed on its behalf.

The rehearing applied for is denied.


source: Caselaw Access Project

author: Blanchard, J.

license: Public Domain

text:
    No. 13,326.
    Interstate Transportation Company vs. The City of New Orleans and W. L. McGary, Commissioner of Public Works.
    Syllabus.
    1. The barge “Laura Lee” was in good condition, sound and seaworthy when chartered by defendant for services in connection with the removal of garbage.
    2. While in the possession and service of defendants she was lost.
    3. It is found that the immediate and direct cause of the loss was the unskillful, faulty, negligent way in which the barge was loaded, causing her to be twisted out of shape, to spring leaks and to sink ; and for her value defendant is held liable.

      JP PPEAL from the Civil District Court, Parish of Orleans — Ellis,

      Thomas Marshall Miller for Plaintiff, Appellee.

      James J. McLoughlin, Assistant City Attorney, and Samuel L. Gilmore, City Attorney, for Defendants, Appellants.
   The opinion of the court was delivered by

Blanchard, J.

The city of New Orleans, through its Commissioner of Public Works, acting by authority of an ordinance of the Common Council, chartered from the plaintiff company the barge “Laura Lee”.

The city’s object was to make use of the vessel for the loading- and transportation of garbage from points in the city to points below the city, where the garbage would be shoveled into the river.

The barge was delivered to the city officials, towed to the garbage wharf, where, during three days, she was being loaded with garbage.

She was then, under convoy of a tug-boat, towed to a point three miles below the city, where she was tied up for the night. During the night she disappeared and no trace of her was ever afterwards found.

The rope with which she was moored to the bank — a five-inch circumference, or inch and a half diameter rope — was found the next morning-parted, with all the appearance of having been broken by violence or strong- pressure.

A watchman, who had been left with the boat, disappeared with it and has not been heard of since.

There is no possible way of accounting for the disappearance of the barge except upon the hypothesis that she sank and that the colored watchman, sinking with her, was drowned. It was the weight -and pressure of the sinking vessel that parted the cable.

The barge, from the time of her delivery to the city, under the charter, was entirely under the control of the agents and employees of the city. No employee of the owners was left aboard of her, or in any way controlled her.

The return of the vessel not having been made to the owners, this suit was brought to recover her value, which is averred to be $1500.

It is represented that the city, through its officials, was under duty to the owners to use due care, caution and skill in loading and handling the barge, but that this obligation was disregarded and the vessel was loaded and handled in a manner so careless, negligent and unskillful that, as the result thereof, she sank and became a total loss to petitioners.

It is averred that the vessel was strained and twisted by the pressure resulting' from the unequal distribution of the loads of garbage dumped upon her from carts, that this caused her butts to spring, her seams to open and leaks were started which caused her destruction by sinking.

The defense is denial of fault or negligence on part of the city’s agents, and the averment that the loss of the barge was due to her unseaworthy condition.

There was judgment below in favor of the plaintiff, and the sum of $5000 was awarded as the value of the barge.

Defendants appeal, and plaintiff files an answer to the appeal asking an increase of the judgment to $7,500.00.

Only questions of fact are raised by the pleadings and evidence.

1. Was the barge in good order and condition when delivered to defendants ?

2. Was her destruction by sinking the result of carelessness and of the lack of skill on part of the agents and employees of defendants?

Both must be answered in the affirmative.

Seldom has a stronger case been made out.

The evidence is conclusive that the barge was in thorough good order and condition when the city received her; that she had but recently been overhauled and repaired in the most careful manner; that she did not leak, was entirely seaworthy and a well equipped and serviceable vessel.

Some two or three weeks before the city hired her she had transported safely an enormous load of oak staves, in weight far in excess of that of the garbage loaded upon her by the city.

All that was required to insure the barge’s efficiency and safety was that she be loaded in such way as to keep her on an even keel. This done she would carry any load within her capacity, which was very great, for she was 225 feet long, 42 or 43 feet wide, with about 7 feet depth of hull.

But in loading her with garbage the city employees were utterly lacking either in the necessary knowledge and skill to do it in a proper way, or else were guilty of gross carelessness in the premises.

The evidence establishes with reasonable certainty that to this faulty loading of the vessel is her destruction attributable.

After being loaded she was ’towed down the river between five and six o’clock in the afternoon. Some four or five witnesses, called to testify, saw her pass down.

The testimony of Mr. Tracey Lilly, which is corroborated by the others, gives the situation.

He was foreman of the Good Intent Dry Dock, knew the barge well, and took notice of her as she passed the dock yard on her way down.

He says: “She was in pretty bad condition; pretty badly loaded. Both ends were down in the water and the middle up about five or six feet, buckled up and twisted and both corners dropped over. One of the men called my attention to it and said she was pretty badly loaded and would certainly sink on the way down.”

Asked if he knew whether it was customary to distribute a load on barges, he said: “If you don’t you will break up the boat; the butts are fixed for that purpose.” He said further the boat could not have been all right when loaded in that condition, and that he never saw a boat as twisted as she was. “A barge in that condition might live a week and might not live two hours.”

There is testimony showing that while the barge was being loaded with garbage it was called to the attention of those loading her that she was being improperly loaded, and would sink unless she were straightened by a proper distribution of the weight of the cargo.

Witnesses called/ by the defense attémpted to show a different state of facts, but the weight and preponderance of evidence sustains the contention of the plaintiff.

The barge was not overloaded. The trouble was in want of proper distribution of the load. This caused her destruction and it is in evidence that the “Laura Lee” was not the only barge engaged in transporting garbage sunk that season ini consequence of improper loading by the city’s employees.

With regard to the value of the boat we are not satisfied that the amount allowed by the district judge should be increased.

But the judgment below condemns the city of New Orleans “and W. L. McGary, Oommissioner of Public Works, in solido.”

The contract for the hire of the barge was made by the city through its agent, McGary, and the petition charges in effect that what McGary did was done in his capacity as agent.

Under the circumstances it is not thought that McGary, Commissioner of Public Works, should have been condemned in solido with the city. A judgment against the city is all the plaintiff is entitled to.

After all, “McGary, Commissioner of Public Works”, is the city. That is to say, a judgment against him in that capacity is but a judgment against the city.

He is not condemned in his personal or individual capacity.

It is, therefore, ordered and decreed that the judgment appealed from, in so far as it condemns the city of New Orleans to pay the plaintiff company five thousand dollars, with legal interest from judicial demand, he affirmed. But that in so far as it condemns W. L. McGary, Commissioner of Public Works, in solido with the city for said amount, the said judgment is reversed and annulled — costs of both courts to be borne by defendant, the city of New Orleans.


author: Watkins, J. Nicholls, O. J.

text:
    No. 12,969.
    Succession of Thomas W. Bothick.
    Syllabus.
    On Motion to Dismiss Appeal.
    Notwithstanding it does not clearly appear upon the face of the record that the appellants may sustain irreparable injury by means of the interlocutory order that is appealed from, yet, as appeal is a favored remedy, it should, in case of doubt, rather be sustained than denied.
    On the Merits.
    1, An executor’s account, intended to serve as a basis for a future partition and settlement between the heirs in the succession ’and the surviving widow in community, should classify the properties disposed of and the debts paid into separate and community properties, and separate and community debts, and show what part (if any) of separate funds had been applied to payment of community debts, and what part (if any) of community funds, had been applied to the payment of separate debts. (Zeigler vs. Creditors, 49th Ann., 145).
    If the account filed and homologated should have simply shown amounts received and expended by the executor, without this classification, the widow and heirs in subsequent partition proceedings should dissect the same and make themselves, in their pleadings, the classification claimed by each.
    The pleadings and issues based therein should be raised and determined in the District Court, before reference to a notary public, where such reference is called for, in order to complete the partition. (Succession of Harrell, 12th Ann., 337).
    2. Costs incurred during a marriage in interdiction proceedings, directed against the husband, which proceedings resulted in his interdiction, are, as a rule (with some exceptions and modifications), a debt of the community.
    3. The community of acquets and gains is not dissolved by the interdiction of the husband.
    4. Costs of administration of a succession, and consequent settlement of a community, are due by the succession and by the community in proportion to the interest of each. (Succession of Webre, 49th Ann., 1491; Sims, Tutrix, vs. Billington, 50th Ann., 976).
    APPEAL from the Civil District Court, Parish of Orleans.— Ellis, J.

      Dart & Kernam, and John T. .Whilaher for William H. Bothick et als., Plaintiffs, Appellants.

      Charles Louque for Mrs. Thomas W. Bothick and ITeirs of Mrs. Thomas W. Bothick, Defendants, Appellees.
    The opinion of the court, on the motion to dismiss, was delivered by Watkins, J.
    On the merits by Nicholls, O. J.
    On Motion to Dismiss Appeal.
   Watkins, J.

The ground of the appellees’ motion is, that the appeal is taken from an interlocutory judgment which is not capable of working an injury to appellants.

The judgment appealed from is of the following tenor, viz:

“This cause having been referred to the notary for instructions, and “ the court being of opinion, as appears by the written reasons on file, “ that the pro jet of settlement and partition proposed by the attorney “ of Mrs. T. W. Bothick, is correct on facts;
“It is therefore ordered, adjudged and decreed that Jos. D. Taylor, “Esq., notary public, be ordered to complete the partition herein in “ accordance with the pro jet of settlement proposed to him by the attor- “ ney of Mrs. Bothick, according- to law.”

The appeal sought and obtained was suspensive in character, and was predicated upon petition and citation.

The appellants are the heirs.at law of Thomas W. Bothick, and who aver they have an interest opposed to Mrs. Olivia Bothick and other parties in interest.

An examination of the transcript fails to disclose “the written reasons on file,” as stated in the judgment, or interlocutory order that is appealed from, and it, also, fails to disclose the projet of settlement proposed as the basis of the judgment of the court.

It does disclose that the appellants filed a suit against Mrs. Olivia F. Bothick and others, praying for judgment annulling and reducing-certain donations and bringing bafck certain property into the estate of their mother; and for a decree of partition of a number of pieces of real property therein described, and of certain money and movables.

There was a judgment rendered directing- a partition in kind of the cash on hand; that the movables be sold for cash, and the proceeds of same distributed according to law; and that the real estate be sold on terms, one-third or more in cash, and the residue on time.

Some months later, counsel for Mrs. O. T. Bothick obtained upon the heirs at law of T. W. Bothick — appellants here — a rule to show cause, “why the projet of partition presented to Jos. D. Taylor, Esq., “ notary public, by Mrs. O. T. Bothick, should not be adopted by the “ court; and why judgment should not be rendered accordingly.”

That projet is not annexed thereto, and we are not advised of its contents; but it is but reasonable to conclude that same is adverse to the appellants as they prosecute this appeal in order to obtain relief from the interlocutory decree making said rule absolute.

That said order or decree may cause appellants irreparable injury is possibly not apparent on the face of the record, but as an appeal is a remedy that is favored in law, we prefer, in a case of doubt, rather to sustain than deny the right.

The motion to dismiss is denied.

On the Merits.

Nicholls, O. J.

This suit was brought on September Ith, 1896, upon the joint petition of (1) William II. Bothick, (2) Mary Jane Bothick, wife of John Walters and of John Walters her husband, (3) Mathilda Bothick, wife of Lambert I. Franz and of Lambert I. Franz her husband, (4) Arabella Bothick, wife of A. L. Lag-ay and of A. L. Lag-ay her husband, (5) Lizzie Bothick, wife of M. Pitcher and of M. Pitcher her husband, (6) James D. Bothick, (7) Thomas B. Bothick, and (8) Jefferson D. Bothick, alleging themselves to be the children of Thomas W. Bothick, the two first named petitioners being children by his first marriage, and the other six children by his second marriage.

They allege that there was a seventh child of the second marriage, Anna J. Bothick, wife of John A. Solari, who had died leaving two minor children, John A. Solari, Jr., and Charlesia A. Solari, who were under the charge of their father, and natm'al tutor, John A. Solari.

That petitioners and the minors were the sole heirs of Thomas W. Bothick, and their share in his succession was one-ninth to the two minors, and one-ninth to each of the major heirs named.

That Thomas W. Bothick left a widow by his third marriage, Olivia T. Bothick, who, being the executrix of his last will and testament, had filed a final account and judgment had been rendered therein. That under the reservations contained in said judgment, and under the facts of the case, there were certain matters at issue to be settled between petitioners, the minors and the widow, to-wit:

1st. — Petitioners alleged that by act of donation, inter vivos, before Armstrong-, notary, on the 7th of July, 1877, their father donated to his said third wife two certain described lots on Dorgenois street, in the City of New Orleans; that said lots were worth at that time, and were still worth, twenty-five hundred dollars.

2nd. — That by act under private signature, executed in New Orleans on the 1st of May, 1896, he donated to his said wife two certain described lots in the City of Natchez, Mississippi; that at that time Bothick and his wife were residents of New Orleans, and delivery of said property was made to the donee; that they were worth at the time of the donation, 'and were still worth, the sum of fifteen hundred dollars.

3rd. — That during the settlement of the succession of her husband, Olivia T. Bothick purchased, at the succession sale, certain described real estate for the price of sixty-five hundred dollars; that she failed to take title thereto; that she was duly put in default; that she was ordered to 'take title by judgment of court, and thereafter the said property was sold at lier risk and expense; that at the second sale it brought the sum of four thousand, eight hundred and fifty dollars, being one thousand, six (hundred and fifty dollars less than the first adjudication, and the widow was responsible for said deficiency with the sum of one hundred and ninety-six dollars and five cents costs incurred in making said second sale.

4th. — That the Succession of Thomas W. Bothick had been closed, and said donations exceeded in value the disposable portion of his estate; that the community between him and Olivia T. Bothick was exhausted by its debts and expenses of settling his estate; that his widow had received since his death, in personal property and in money, a sum exceeding one thousand dollars out of said community, and there was nothing coming to her as widow in community, and the said property whidh was thus donated to her should be brought back in order that it might be divided among the legal heirs of Thomas W. Bothick.

5th. — That in the matter entitled Pickles vs. Fairrex, in the docket of the Civil District Court, by a decree of Division “D” of the court, the sum of six hundred and seventy-two 19-100 dollars was deposited with the clerk of the court to await the settlement of the estate of T. W. Bothick.

That said sum belonged to them and the minors, and they desired to divide the same.

6th. — That there was still unsold the following real estate property, the same being the separate property of Thomas W. Bothick and not in any way connected with the community between him and his surviving wife, to-wit:

1. A lot bearing the municipal number 1046 Magazine street.

2. The Natchez property, donated to the third wife.

3. The Dorgenois property, donated to the third wife.

7th. — That Thomas W. Bothick was an undertaker, and in the course of his business came into possession of several tombs or vaults for receiving and preserving bodies and not used for himself or his family.

That they had called upon Mrs. Olivia T. Bothick to return the property donated to her, and she had refused to do so.

That they were unwilling to remain any longer in indivisión with the widow and the minors, Solari; that they demanded a partition, and for that purpose a sale of the property, it being indivisible.

For further particulars as to the family of Bothick, and the various matters affecting its property, they referred the court to the different suits and records thereof in the court bearing upon the same.

In view of the premises, they prayed for the citation of Mrs. Olivia T. Bothick and the minors, Solari; that they have judgment against the former annulling and reducing the donations made to her, and that she return the same to the Succession of Bothick, and for judgment upon that issue as the-court would be competent to render; that she also be condemned to pay petitioners the sum of eighteen hundred and fifty-six dollars and five cents, with legal interest from judicial demand; that it be decreed that she has no interest of any kind in the community between herself and her husband; that it be adjudged that the community was debtor to the separate estate of Thomas W. Bothick for the debts paid out of his separate estates for its account, and in any event for such judgment as would adjust, settle and terminate the community in all of its branches, and that there be a -judgment of partition against all the defendants of the property and effects on such terms as the court should determine, and that the parties be referred to a notary to adjust and settle the accounts and complete the partition.

No appearance having been made for or on behalf of the minors, Solari, a judgment by default was taken against them and ultimately confirmed decreeing a partition. Mrs- Olivia T. Bothick answered. She pleaded, first, the general issue, then that there was certain property of T. W. Bothick which was still undisposed of, and which should be distributed to the heirs before any reduction of donations could be established.

3.| That as regards the property in Mississippi the plaintiffs were without capacity to sue; that said property being real was guided by the laws of Mississippi.

That her husband, in addition to the donations, made a will under which she is a legatee, and has a right under the will to said property.

That the succession was of considerable magnitude, and was frittered away by the plaintiffs in litigation, and they had no right to disregard the amount of the succession at the date of its opening in making a calculation of their rights, if any they had.

Judgment was rendered on May 27, 1897, in the case, dismissing, as of non-suit, the demand of the plaintiffs to collate the property in New Orleans on Dorgenois street, and the property in Natchez. The judgment further decreed a partition and division of all the property and effects then held in common between plaintiffs and defendants, partition to be made in kind of the money then in hand and on deposit and at sale by public auction by Green,'auctioneer, of the other property on terms cash for the movables and for the tombs and various cemetery lots owned by said parties, and on terms of one-third or more cash for the real property and the balance at one and two years credit with eight per cent, interest in so far as the real estate was concerned. It further ordered that the question of the liability of Mrs. Bothick for the difference in the adjudications and all other questions between the parties, plaintiffs and defendants, not passed on in the judgment, be reserved for discussion, settlement and adjustment upon the completion of the partition and upon a settlement of accounts.

The judgment further referred the parties to a notary public for the purpose of said adjustment and to complete the partition.

On the 80th of June, 1898, the children of Bothick (with the exception of the Solari minors) filed a petition in the partition suit which they had instituted on the 7th of September, 1896, .in which they referred to the claim therein made by them for the revocation or reduction of the donations made by Bothick to his wife, which had been dismissed as in case of non-suit. They then alleged that the partition decreed in said suit had reached the final stage, and that it was now definitely known-that the donations were far in excess of the disposable portion of the decedents’ estate and trenched upon the legitime reserved by law to petitioners. That the decedent, in his last will, left the disposable portion of his estate to his widow, and that the same was of no effect inasmuch as the donations alone exceeded the portion which, by law, the testator was permitted to dispose of.

That said donations exceed by more than two-thirds the sum of the values or amounts which deceased could dispose of by donations, inter vivos or mortis causa, to the prejudice of petitioners, and they should be revoked or reduced as the defendant might elect.

They prayed that the widow be cited, and that the donations, inter vivos and mortis causa, be annulled, revoked and reduced.

We find in the record a document addressed to the court by Joseph D. Taylor, the notary designated by it to make the partition, in which he stated that several conferences between the parties and their attorneys had taken place before him, at which nothing definite was suggested or decided, and that matters rested in this condition for a time; that subsequently Mr. Loque, representing' the Widow Bothick, had presented to him a projet for a partition based on the rights of parties from his standpoint. That he, the notary, had submitted the same to the other parties in interest, and they, through their attorneys, had presented a counter projet based on their claim as to the rights of parties. That being himself unable to settle the ^matters involved, he forwarded the two projets to the court for its decision, and awaited instructions from the court.

The projet submitted by Mr. Louque was as follows:

Assets.

In the hands of the Civil District Court in the case of Prickles vs. Fairex, No. 26,099, of the docket of said court, $672.90.

Being the proceeds of the Fairex notes, which were community property- — one-half is Mrs. Bothick’s, $336.45.

Amount in the hands of John II. O’Connor, auctioneer, $623.45.

This amount is the balance on hand of the proceeds of sale of the following described properties sold by O’Connor, by order of court, and the proceeds were used to pay community debts as well as the separate debts of Mr. T. W. Bothick.

Total sales by O’Connor, and Mrs. Bothick’s share

No. 199 Terpsichore street — sold.............. $2700 00

One-half of which belonged to Mrs. Bothick, same being community property, to-wit...... $1350 00

Three lots on First street, sold for............ 406 00

Community, one-half Mrs. Bothick’s share.... 203 00

Lot on Lee Circle, or Tivoli Circle............ 2350 00

One-fourth is Mrs. Bothick’s share............ 587 50

Stables on Magazine street, sold for.......... 3950 00

One-fourth is Mrs. Bothick’s share............ 987 50

271 Camp street sold for...'..................4850 00

One-fourth is Mrs. Bothick’s share............ 1212 50

Second sale of movable property.............. 300 00

One-half is Mrs. Bothick’s share.............. 150 00

Camp street property sold for................ 2042 10

One-fourth is Mrs. Bothick’s share.......:.... 510 52

Fairex notes of $3500, on which has been paid $1800, leaving ........................... 1700 00

One-half is Mrs. Bothiek’s share.............. 6850 00

Total sales by O’Oonnor.................... 18,298 10

Total amount acruing to Mrs. Bothick out of sales by O’Oonnor......................... 5851 02

In order to ascertain Mrs. Bothick’s share in the $623.43, we proceed by rule of proportion and have $18,298.10 : $5,851.10 : : $623.43: x $5,851.02 x $623.43 — $209.21................ $209 21

$18,398.10

.Difference between the two adjudications' of 271 Camp street................................ $1600 00

One-fourth is Mrs. Bothiek’s share............ 400 00

Proceeds of lots on Magazine street............ 900 00

One-half is Mrs. Bothiek’s share — $450.00—less her share of the expenses of sale; one-half of one-half of $111.50 — $55.75 taken from $450.00 .................................. 394 25

Total amount for partition................... $3796 73

Total amount Mrs. Bothick’s share. ........... 1309 88

$1309 88

Amount for partition, less cost of.............. 2486 85

Courts $......... notary $........, 71-2 sale $55.75 and taxes on the Magazine street lots.. 200 75

Total assets of partition...................... 2286 10

Out of the sales previously made, Mrs. Bothick was entitled to............................ 5851 02

The whole of which went to pay debts indiscriminately of the Bothick community as well as the separate debts of T. W. Bothick.

In addition to the above amount, Mrs. Bothick was entitled to one-half of the bills collected by Drown, the same being community assets, to-wit:

W. H. Moon ............................... 175 00

Dr. N. Bailey.............................. 150 00

Mrs. McMahon ............................. 148 50

Alpha Lodge ................................ ISO 00

Harry II. Ivens ............................ 10 00

Carriage hire .............................. 20 00

Rent — Terpsichore property.................. 40 00

Sales — movables............................. 1517 75

Frantz bill — due............................ 50 00

St. John Lodge............................. 50 00

Mount Moriah Lodge........................ 89 00

Total ..................................... $2466 25

. One-half total Mrs. Bothick’s share.......... 1233 125

Total amount of community property belonging to Mrs. Bothick........................... 7084 145

Which would not only absorb the total assets. .. . 2286 10

But leave Mrs. Bothick a creditor of the heirs to the amount of.......................... 4798 04

Mrs. Bpthick owes of ordinary debts which were due at the dissolution of the community one-half the same being community debts........ 2473 33

Pescud Insurance........................... 125 30

Finley, $58.85, and Holcombe, $53.00.......... Ill 85— 2710 48

Amount being deducted from $4798.04 would leave her a creditor of the estate of T. W. Bothick for .............................. 2087 56

The balance of the debts were the costs of the interdiction of T. W. Bothick, and for his funeral expenses and costs of settlement of his succession, which are not community debts, but, nevertheless, have been paid with community assets, to-wit:

Paid by Drown — interdiction.......................’.......$427 00

Paid by Drown — medical experts........................... 250 00

Paid by Drown — Drown curator............................ 500 00

W. O. Hort, inventory for interdiction..................... 50 00

Bernau ..................................................250 00

Lombard, attorney — interdict.............................. 250 00

Bobb ...'................................................ 8 00

Funeral bill ............................................. 281 00

Costs ................................................... 40 00

Gurley, notary .......................................... 56 00

Appraisers .............................................. 70 00

Richardson & McConnell..................................3000 00

69 25

246 62

Total ..............................................i.. .$5809 80

For which amount of debts Mrs. Bothick is in no manner personally or through her property responsible. Deducting the community assets, the community debts, she still has a claim against the heirs of T. W. Bothick, to the amount aforesaid, of $2,087.04.”

In the record, immediately below the projet, are found the following words:

“This, and the three preceding, pages — four pages in all — I find to be a correct projet, approved by the interlocutory order and decree this day entered and signed New Orleans, La., July 5th, 1898.”
(Signed) T. C. W. Ellis,
Judge”

The projet submitted by Messrs. Dari & Whitaker, on behalf of the plaintiffs in the partition proceeding, was as follows:

1st. — The sum now in the judicial depositoijy, together with the sum in the hands of O’Connor, auctioneer, and the sum due by William H. and Mary Jane Bothick for the real .property heretofore sold, are the only active assets that we know of. These sums we propose shall be allotted to the children of Bothick, and nothing shall be given to Mrs. Widow Bothick, as she is a debtor to the estate.

We ask, also, that the notary find, as a fact, that Thomas W. Bothick donated to the Widow Bothick, by act before A. J. Armstrong, notary public, 7th of July, 1877, the two lots in the square bounded by Dorgenois, Broad, Canal and Customhouse streets, worth say $2500.00.

2nd. — That by act under private signature, 1st of May, 1886, said T. W. Bothick donated the lots known as lots 11,12 and 14, in Natchez, Miss., described as having a frontage of 130 feet on Rosalie street, by Í60 feet in deptjh* said lot forming the corner of Green and Rosalie streets, which property is worth $1500.00.

We ask that these two properties be figured in the estate, to show what was the disposable portion, and what portion of said donations said widow should return.

We ask that the widow be charged with $1650.00 — difference between the price of the sale of the property and the price it brought (referred to in the succession record).

That she further be charged with $1000.00 — money received and personal property taken by her since the death of Mr. (Bothick — for which she has not accounted. That she also be aisked to give up the titles to the various lots in the Girod Cemetery and other cemeteries referred to in the partition suit on file herein.

We are prepared to offer the proof of these donations whenever the notary wishes to receive them. •

(Dated) March 30, 1898.

(Signed) Dart & Kernan.

(Signed) John T. Whitaker.

Mrs. Olivia T. Bothick excepted to the demand for the reduction of donations on the ground that all the heirs had not been joined, and, 2nd, that no suit for reduction could be filed until ifiaintiffs had complied ith the judgment of the court ordering them to pay the two thousand dollars.

On the 5th of July, 1898, the court rendered judgment in the following terms: “This cause having been referred to us (by the notary for instructions, and the court being of opinion, as appears by the written reasons on file, that the projet of settlement and partition proposed by the attorney of Mrs. Bothick is correct on facts. It is ordered, adjudged and decreed, that Joseph D. Taylor, notary public, be ordered to complete the partition herein in accordance with the projet of settlement proposed to him by the attorney of Mrs. Bothick, according to law.

From this judgment the plaintiffs, in the partition proceedings, including the minors, Solari, through their tutor, appealed.

Opinion.

In appellants’ brief it is stated. “This case was decided on written reasons, which have been lost or mislaid by the clerk. * * * A motion to dismiss was made here to dismiss this appeal, and though your Honors found the record incomplete, you,, nevertheless, maintained the appeal. Since that.decision, many of the missing documents have been duplicated by office copies, and the record is now in condition to understand the issues.”

In appellants’ petition we are referred, for information concerning the Bothick fajmily, “to the record of the Succession of Thomas W. Bothick, on file in this court, and in the various suits which are reported in the archives.”

We have found that no less than four reported eases (43 Ann., 547; 44 Ann., 1038; 45 Ann., 1384; 47 Ann., 613) under that title have been brought up to this court, on different issues, with disconnected evidence scattered in different transcripts.

To come to a knowledge of the situation from what is contained in these records involved a labor which we do not think we were called upon to expend (Succession of Billington, 50 Ann., 974).

We, none the less, referred to these cases with the hope that through them we would find material which would eke out the last very defective record sufficiently to enable us to reach definite conclusions, but in this we have been disappointed. -We do not think matters are in such a shape before us to enable the court to render, with any degree of certainty, a judgment which would do justice between the parties. Had the reasons assigned by the district judge, for his judgment, not been lost, we would have been able to ascertain on what theory this case was tried.

We feel constrained, under the circumstances, to reverse the judgment and remand the case, with instructions to the parties to amend their pleadings, and set up, in a connected form and with distinctness, their respective claims and pretentions, and support the same by connected evidence, as best they may. The presumption being, in the absence of evidence, that property in existence at the dissolution of the community is community property, and debts due are community debts.

We have again to object to the bringing up of documents outside of the transcript. They are liable to be lost and mislaid.

The situation of the succession is such that these various claims should be passed upon by the District Court before the parties be referred to a notary, if such reference should in fact be necessary at all (Succession of Harrell, 12 Ann., 337).

We have alluded to the various suits in which various matters concerning Thomas W. Bothick and his family have been before this. From them we learn that Bothick lived in the years 1846, 1847, 1848 and 1849 in New York and New Jersey; that he came to New Orleans about 1849 or 1850; that from the time he came to New Orleans to the 24tli of July, 1874, he lived with Ann J. Cunningham; that she was universally recognized as his wife, and was undoubtedly married to him; that children were born of this marriage; that Ann J. Cunningham died in 1874, and Bothick afterwards married Olivia Tyree, who survived him.

That during his residence in New York, he lived with Catharine Connelly as his wife. He abandoned her and came to New Orleans. In 1890 proceedings were instituted in the Oivil District Court asking and resulting in a judgment for the interdiction of Bothick. The petitioners were the children, issue of his marriage with Ann J. Cunningham, with the exception of John A. Solari, who married Annie J. Bothick, a predeceased daughter, and who appeared in the suit as tutor of his minor children.

In anticipation of a judgment of interdiction, the plaintiffs united in a prayer that one of the sons, either Thomas B. or J ames W. Bothick, be appointed curator, and that Solari be appointed under curator. In their petition plaintiffs alleged that the wife had obtained complete control of her husband, and had succeeded in causing him to make certain donations to her, which should be annulled.

In anticipation of her making a demand for the curatorship, they averred that her actions had been stfch that she should be denied that right.

The husband and wife were made defendants.

As had been expected, Mrs. Bothick made a claim for the curatorship. The litigation became a very bitter one. The District Oourt appointed the wife euratrix.

The plaintiffs appealed, and upon the appeal the judgment appointing Mrs. Bothick euratrix was reversed, hut otherwise affirmed appellee to pay costs.

The court held that the curator should be appointed upon the advice of a family meeting.

On the return of the cause a family meeting was convoked, and, at its instance, Charles W. Drown, then sheriff of the Parish of Orleans, was appointed as and qualified as curator. All the plaintiffs appealed, but the judgment was confirmed on appeal (44 Ann., 1042).

In 1893 William Henry Bothick and Mary Jane Bothick instituted a suit (45 Ann., 1042) to have the court recognize that Thomas W. Bothick and Catherine Oonnelly had been husband and wife, and that the plaintiffs therein were the legitimate issue of that marriage. They obtained a judgment to that effect which, on appeal, was affirmed.

It seems that in the interval between Bothick’s arrival in New Orleans and the death of Oatherine Connelly, he had 'purchased certain real estate in New Orleans, which was sold by him in effecting a settlement with the children, issue of his marriage with Ann J. Cunningham. Thomas W. Bothick died on the 24th of December, 1892, leaving a will in which it W'ould appear he left to his third wife, Olivia Tyree, the disposable portion of his estate, and appointed her as his executrix.

The will was probated; she qualified, and later, as such, filed an account.

William Henry Bothick and Mary J. Bothick filed an opposition to this account, seeking to recover from the estate of ijheir father one-half of the community between him and their mother at the date of her death, and also to recover, as heirs of their father, one-half of his succession, alleging the nullity of the will in so far as it trenched upon their rights as forced heirs, and charging the illegitimacy of the children of Bothick and Ann Cunningham. They also claimed that certain lots of ground in New Orleans, and certain property in Natchez, which had been donated by Bothick to his wife, should be placed upon the inventory and held subject to collation.

Instead of following the property which Bothick had alienated in making the settlement with his children by the second miarriage, into the hands of the purchasers and claiming the undivided half thereof, the children of the first marriage claimed that by said sale a resultant trust had been created in their favor in any immovable property since acquired by him, by reason of the accumulation and accession of means in his hands, through said sales, to make new 'purchases, and that said property so acquired became by reason of his being their negotiorum gestor or trustee, charged with the return of said property in kind with the revenues or the equivalent in other immovable estate, unencumbered by any debts created by Bothick, since the death of their mother.

These pretensions were denied, and it was contended that if they had a claim of any kind against their father, it was one for money, and, as against such a claim, prescription was pleaded. The defense in this branch of the case was sustained, and plaintiffs demand rejected, but judgment was rendered in their favor annulling the will in so far as it might trench upon their legitime.

Drown, in the meantime, seems to have rendered an account as curator, and was dicharged. The executrix filed an occount in which she charged herself with the -amounts which she had received, and credited herself with the amounts paid out and to be paid.

The account showed a small balance in favor'of the estate, it was homologated and the executrix discharged.

This account was not framed in such a manner as to afford a basis on its face for a settlement of the rights of the widow and heirs inter se.

It was prepared upon the theory that whether the debts shown by the account were separate debts of the deceased or debts of the community, in either event the deceased would, quoad the creditors, be liable for the whole amount.

There was no attempted classification of the properties sold into community or, paraphernal, no classification, as just stated, of the debts as separate and community debts, and no showing made as to how far the proceeds of paraphernal property had been applied to the payment of community debts, or the proceeds of community property had been applied to the payment of separate debts,- and the court is uninformed by the record upon this subject.

The filing- of the account in so far as it went to make an exhibit ¿f the general status of the succession, as to creditors aind as to the appli cation by the executrix of the funds of the succession for that purpose, was an act proper and necessary to be done prior to the discharge of the executrix, but it left the rights of parties, inter ;se, to be thereafter fixed and determined.

It was a closing act of an administration, but an opening act for a partition. It was then that the widow and heirs were placed in a position to ascertain what would be their relative rights. Mrs. Olivia Rothiek occupied different positions in,the matter of this succession, which have to be kept distinct. She was the wife and surviving widow in community of the deceased; she was, during the marriage, by donations inter vivos, his donee of particular pieces of property; she was a legatee under his will, and she was, finally, the executrix of his estate. Her rights in each relationship differ, and her situation as to each has to be ascertained and fixed. Her rights as widow in community have to be determined by the status of the community; her rights as legatee are dependent upon the sitiration of her husband’s succession made up of his separate property, and the portion of the community falling to him upon the adjustment of the community; and upon the results of these two liquidations and settlements will rest the fact whether her position as a donee would be affected or not, and, if affected, to what extent it would be so. (Bartoli vs. Hugenard, 39 Ann., 417, 418; Succession of Moors, 40 Ann., 531; 42 Ann., 333).

Reference is made several times in the briefs to her liability to collate the property donated to her, but there is no question of collation in the case, though there might be under certain circumstances and conditions, a question of reduction, and for the determination of that issue a consideration of the values of those properties (C. C. 1505). (Succession of Moore, 40 Ann., 531; 42 Ann., 333).

We are not certain, from the evidence, whether the property donated to her was separate property of her husband; partly separate and partly community, or entirely community property.

Counsel of Mrs. 'Bofhick argues several propositions from the standpoint of the community of acquets and gains between her and her husband having been brought to an end by the interdiction of the latter, but this position is untenable. (See Hotard vs. Hotard, 12 Ann., 145; Laurent, Vol. 22, Secs. 230, 231 and 232). Counsel announces, as an invariable rule, that the costs of the proceedings taken for the interdiction during marriage of a husband, which terminate ib. a judgment for the plaintiff, is a debt due by the separate estate of the husband, and he cites Article 387 of the Civil Code in support of that position, but this court held otherwise in interdiction of Leech, 45 Ann., 197.

The rule, subject to special exceptions and modifications, is, that these costs are a community debt. They accrue during the marriage and fall under letter of Article 2403 of the Civil Code. The husband being head and master of the community, it is specially to the interest of the community that a personal administration which might ruin it should be brought to an end. The law makers, in enacting Article 397 C. C., were evidently providing for cases of interdiction generally, and were not considering the question as between the separate estates of the husband and the community. Exceptional cases have frequently to; be read out of and excluded from broadly written law, because if so enacted by the legislators, it was, as Mareade says, ‘‘evidemment pareeque ils so sont preoccupes des cas les plus ordinaires.”

Counsel of appellee asserts it to be a general rule that the costs of the settlement of a succession haver to be borne by the husband’s succession, but the Succession of Webre, 49 Ann., 1491 and Sims vs. Billington, 50 Ann., 976, announce a different rule.

For the reasons herein assigned, it is hereby ordered, adjudged and decreed that the judgment of the District Court be, and the same is hereby avoided and reversed, and this cause is remanded to the District Court for further proceedings, according to law, with leave granted to the parties to amend their pleadings. Costs of appeal to be borne by the appellee.

Rehearing refused.

Monroe, J., takes no part.


author: Monroe, J.

text:
    No. 13,467.
    State ex. rel. Kansas City, Shreveport & Gulf Railway vs. Hon. Stephen D. Read, Judge of the Twelfth Judicial District, and the Police Jury of the Parish of Vernon.
    Syllabus.
    Where property taxpayers lile a suit, under Act 10G of 1892, and fail to cause the Police Jury to be cited, and the Police Jury takes no notice of such suit, and it is dismissed, at the instance of the plaintiffs, and of a defendant, who was cited and who answered, the Police Jury cannot, thereafter, merely by filing an answer, reinstate and reopen the case; and a writ will issue, at the instance of the defendant who was cited,' prohibiting further proceedings in such case upon the theory of its being a matter still pending and undetermined.

      Alexander & Wilkinson and Pujo & Moss for Relators.

      Boatner„ Dodds & Boatner and J. Henry Shepherd for Respondents.
   The opinion of the court was delivered by

Monroe, J.

This is an application for certiorari and prohibition, against the judge of the District Court of the Parish of Vernon, and the Police Jury of that Parish, to restrain the reopening of, and further proceeding in, a certain cause in which the relator alleges there was final judgment in its favor in October 1897. Under an order made upon the petition herein, a certified transcript of the proceedings in said cause lias been sent up, from which., taken in connection with Lhe returns made by the respondent judge and the Police Jury, we find the following' to be the situation:—

On December 5, 1S95, agreeably to the provisions of Act No. 35 of 1886, carrying into effect Article 242 of the Constitution of 1879, a sxiecial election was held in the Parish of Vernon in order to determine whether the property tax payers of that parish woulij submit to a special tax in favor of the Kansas City, Shreveport & Gulf Railway Company; and the Police Jury, having- canvassed and compiled the returns, proclaimed the result as having- been in favor of the tax, and adopted an, ordinance to levy the same. Thereafter, upon February 27, 1896, seven persons, claiming- to be tax-payers and voters in the parish, filed a suit in the District Court, which bears the number 175 of the Civil Docket, with the view of contesting said election, in which thejy prayed that the “Police Jury of Vernon Parish, composed of W. D. Holden, etc.,” (naming- the members), and the Railway Company, be cited, and for judgment, decreeing the result of said election to have been the defeat and rejection of said tax, annulling the ordinance levying- the same, and perpetually injoining- its collection. The allegations of the petition upon which this prayer was predicated charged:

1. That the petition for the election was not signed by the requisite number of property tax-payers, as required by law.

2. That many of the signers were not property tax-payers.

3. That the Police Jury ordered the question submitted to the property tax-payers entitled to vote at general elections, whereas it should have been submitted to “the property tax-payers.”

4. That all votes cast in favor of the tax were null and void by reason of non-conformity to the requirements of the petition.

5. That, in holding the election, canvassing- the returns, and promulgating the result, certain gross frauds were perpetrated by some of the Commissioners, by the Board of Supervisors, and by the Police Jury, which frauds the petitioners set forth with elaborate detail and circumstance.

Citation, with a copy of this petition, was duly served upon each of the members individually, but not upon the Police Jury, eo nomine. The answer of the railway company was filed April 6, 1896, and, upon April 11th, a written agreement for a continuance was signed by the District Attorney, in behalf of the Police Jury, and, the counsel for the other parties litigant. The matter remained in that condition until October 1897, when the plaintiffs in the suit and the railway company entered into a notarial agreement of compromise, the conditions of which were that the plaintiffs were to allow judgment to be rendered rejecting their demand and dismissing their suit, in consideration of which, the company was to hold them, individually, and quite a number of other persons whose names are mentioned, harmless with respect to the tax. And, pursuant to this agreement, on October 12th, 1896, judgment was rendered and signed in the pending suit in the following-terms, to-wit:

“In this case, by reason of the consent of the plaintiffs, and the law and evidence being in favor of the defendants, it is ordered, adjudged and decreed, that there be judgment in favor of the said defendants, and the demands of the plaintiffs be, and are hereby, rejected, and this suit dismissed at plaintiff’s cost. Done and signed in open court, on this, the 12th day of October, 1896.
“(Signed) S. D. Read,
"District Judge.'"'.

No answer, or appearance, other tiran as stated, had been filed or made by the Police Jury. Upon March 30, 1898, however, that body adopted an ordinance, which, after reciting, as the reason for its action, the fact that the railway company had entered into the agreement above mentioned, declared its previous ordinance, levying the tax, “repealed, annulled and of none effect”. Thereafter, the company instituted suit against the Police Jury, the assessor, and the tax collector, praying that the repealing ordinance of March 30, 1897, be declared null, and the officers named be ordered to extend the assessment and collect the tax. In this proceeding, the Police Jury answered that the plaintiff company had destroyed any right which it might have acquired, resulting- from the election in 1895, and had destroyed the validity of the ordinance, levying the tax in its favor, by the compromise and judgment of October 12th, 1897, inasmuch as the result of the same was to release a portion of the tax payers and leave the burden upon others. The case, having been decided by the District Court in favor of the defendants, was brought here by appeal, and, in February, 1899, the judgment appealed from was reversed, and there was judgment for the plaintiff.

Following- this, in January of this year, the Police Jury filed an answer in the tax-payers’ suit, wherein judgment had heen rendered, as has heen stated, in which answer it admits that the averments contained in the petition, as to frauds perpetrated by the Commissioners and to the effect that the tax did not receive a majority of the legal votes, were true, but alleges that it was in ignorance thereof when it promulgated the result and adopted the ordinance levying the tax, which it regarded as ministerial functions.

It further sets up the compromise entered into by the railway company, and the judgment obtained, and alleges that they were collusive and had the effect of making the burden of taxation unequal; that the ease was not at issue as to it, when the judgment was rendered, and that it was no party thereto, and hence, that the same is null and void: and that to give effect to it would be to deprive the tax-payers of the Parish of Yernon of the right to be heard. “That these respondents were re- “ quired by law to be made parties defendant in this case, as representatives of the tax-payers of Yernon Parish, and that they were s-“made parties, and the petition prays for citation and judgment “ against these respondents. They, therefore, aver that no valid judg“ment could be rendered herein except contradictorily with them. “ That the suit, not being, alone, for the protection of tho rights of “ the plaintiff, but availing to the benefit of all tax-payers, it is against “ public policy and good morals to permit the grave charges contained “ in the plaintiffs’ petition to be withdrawn for money consideration, “paid to the plaintiffs and their attorneys.”

And the answer contains other matter which need not he here recapitulated. In February, following- the filing of this answer, the Police Jury ruled the railway company, to show cause why the. ease should not he reinstated as an open case and proceeded with to a final hearing; to which the company excepted and answered; and the rule was heard, and, on February 28th, submitted for adjudication. On March 2nd, however, the mover asked and obtained leave, the railway company objecting and excepting, to withdraw said rule, and the case, as we understand it, was then set for trial, as a case which is open as to all parties, in fact, the judge a quo has permitted other tax payers to come in, by way of intervention , and his position in regard to the matter, as now presented, as well as that of the police jury, may be understood from the foregoing resume of what has taken place, and the following synopsis of the return made by them, showing cause why the prohibition, herein prayed for, should not be granted, to-wit:

The judge says: "That the proceedings by rule were, under orders of court, subject to the disposal of the applicant therefor.” That the plea to the jurisdiction was, in effect, a plea of res adjudicaba, but that only two of the parties could be affected by the judgment relied upon, and that, as between them, the judgment was rendered by consent.

That the law requires that the Police Jury should be made a party in a suit such as the one in question, and that no judgment could, otherwise, be rendered affecting rights represented by said Police Jury.

That said suit involved public rights, and when brought, became public property, and neither the tax-payers, who brought it, nor the Police Jury, could, thereafter, settle the same, by compromise or consent judgment, or in any other manner, save by judgment of the court, after an examination of the facts.

“That, the proceedings by rule having been withdrawn, the said cause, No. 175, by necessity, must stand as it stood when the consent judgment was signed and became operative, and has stood ever since that circumstance, and open for all purposes of legitimate consideration, until finally closed by such action as definitely settles all matters put at issue by, and against, all parties thereto.”

The Police Jury says, that the relator has an adequate remedy by appeal, since “if the exceptions, which the relator claims to have filed in “ the court of first instance, be sound in law and the court overrules “ them complete relief may be had by appeal.”

That this court is asked to exercise original jurisdiction which does not belong to it, and to decide matters which have not been decided by the lower court, to-wit: the effect of the judgment rendered in the absence of the Police Jury, and the question of the duties and responsibilities of said Police Jury under Act 106 of 1892.

That the suit, No. 175, is one in which the tax-payers are interested, and that it could not be compromised, or discontinued, without the consent of the court and. upon full statement of facts. And there are further averments relating to the merits of the case in the District Court.

Opinion.

Whatever might be the inclination of this court to afford relief, in view of the conditions thus disclosed, the action, and non-action of the parties interested, and of those by whom they are represented, renders it impossible that the course pursued by the respondents should be sustained, without an utter disregard of the most elementary rules established for the orderly administration of justice.

Act No. 106 of 1892 reads:

“Section 1. That any election, held under Articles 209, 242 and 250 of the Constitution of 1879 and the laws to carry the same into effect, may be contested by any party or parties in interest, on the grounds of fraud, illegality, or irregularity, before any court of competent jurisdiction.”

Section 2. That suits brought to contest any election, as aforesaid, -shall commence by petition, which shall be served, in the manner provided by law, on the Police Jury, or other body, or authority, holding such an election, under the aforesaid articles of the Constitution of 3 879 and laws to carry the same into effect; and any suit, under the provisions of this act, shall be brought within three months after the promulgation of the result of the election contested.”

Py reference to Article 242 of the Constitution, and to Act No. 35 of 1886, it will be seen that the suit, in this instance, was properly brought against the Police Jury, as the authority which ordered, and held, the election, declared the result, and adopted the ordinance levying the tax; and it was also properly, though, perhaps, not necessarily, brought against the railway company in whoso favor the tax was said to have been voted.

The act, however, only requires that the “Police Jury or other body, etc.”, shall be made party defendant, and this is, manifestly, because such “Police Jury” etc., is presumably • best qualified to vindicate and defend the result announced by it, and which it is the purpose of the suit to attack; and because it stands for the body of the citizens, whom it would be practically impossible to join together as defendants.

In the suit out of which this controversy has arisen, it appears, that, whilst the Police Jury was not cited, eo nomine, nevertheless, a copy of the petition was served upon the members, and each of them was cited individually, upon the last days of February, 1896; and, upon April 11th, after the filing of its answer by the railway campany, the District Attorney, acting for the Police Jury as a body, signed a written agreement for the continuance of the case. There can be no question, therefore, that the members of the Police Jury were fully informed of the suit, or that that body, itself, had obtained legal advice concerning it. The purpose of the suit, as declared in the petition, was to annul the action which the Police Jury had taken, upon the ground, that it was based on gross fraud, perpetrated by the commissioners of election; by the supervisors,and by the Police Jury,itself; and the allegations as to the fraud perpetrated by the Police Jury were as distinct, categorical, and emphatic as those which imputed fraud to the other officers. No notice was taken of the existence of this suit, from April 11th, 1896, when it was continued by consent, as stated, until March 30th, 1898, when the ordinance was adopted, repealing the ordinance of December 6th, 1895, levying the tax; the reason assigned for its adoption, in the preamble, (of the repealing ordinance) being, not that the commissioners, the supervisors, and the Police Jury had perpetrated gross frauds which it was necessary to-correct in that way, but that a-compromise had been effected, as a result of which some of the citizens of the parish would escape the tax, whilst others would not; which was the defense urged in the suit, thereafter, brought by the railway company; and it was not until after an adverse decision in that case, four years after the filing of the suit by the tax payers, and more than two years after the judgment had been rendered therein, that the Police Jury, though still without a citation addressed to it as a body, filed its answer, upon the theory that there was still a suit pending, notwithstanding the judgment of the court to the contrary.

It is plain that, unless the District Court was without jurisdiction to render the judgment rejecting the demand of the taxpayers and dismissing their suit, there is no suit pending in that court in which such an answer could be filed, and there are no litigants now before sa'd court who can be called upon, by means of such answer, to contest the issues presented by it, even if it should be conceded that those issues can be presented by the Police Jury.

The question, then, is, wherein was there a lack of jurisdiction? “Jurisdiction,” says the Code of Practice, “means the power of him, who has the right of judging”. It is not pretended that the judge a quo did not have the power, quoad the subject matter, or the plaintiffs, or the defendants who had been cited; but it is said that the other defendant, the Police Jury, who had not been cited, was a necessary party to the suit, and that no judgment whatever could be rendered without the presence of that defendant. But let us suppose that the .suit had been brought against the Police Jury, alone, and the plaintiffs, filing it, had instructed the clerk to issue no citation, and none had been issued until after the expiration of the three months within which the action became prescribed, would not the plea of prescription have been a perfect bar to its further prosecution ? And, if this is true, can it be successfully urged that there was no way by which the plaintiffs could take themselves out of court upon their own motion? Were they obliged to remain there, awaiting the pleasure of the defendant, whom in legal contemplation they had never sued? The proposition seems hardly a reasonable one, from any point of view, since the defendant might just as well have deferred the filing of its answer for twenty, or fifty, as for four, years; and it certainly can not be maintained under the textual provisions of the law, which give the plaintiff the right to discontinue, even as to a defendant who has been cited, “in every stage of the suit, previous to judgment being rendered.”

Whether, by reason of the peculiarity of the suit in question, the plaintiff ought to have been allowed to discontinue, or to take a judgment rejecting their demand, was a question which the district judge had to decide. Perhaps, if the Police Jury had put -in an appearance, and had urged that, the plaintiffs, having come into court and being the only property tax-payers who had done so within the time allowed, ought to be held there for the benefit of those who had not come in, he might have taken that view of that matter. But the Police Jury put in no such appearance, and no one else came in, and the judge determined the question for himself; and, several years later, he concluded that he was mistaken. But, in the meanwhile, the judgment is a finality, and is no longer under his control. The Police Jury, not having been made a party to the suit because n'ot cited, is not affected by it, and, as to those who were parties to it, it is conclusive, and must remain so, unless set aside in some method known to the law; and, merely to ignore it as a thing having no existence, is not such a method.

It is, therefore, ordered, adjudged and decreed that the writ issue, as herein prayed for, prohibiting' the respondent judge and the Police Jury of the parish of Vernon from further proceeding in the suit entitled “Citizens and Tax-Payers of Vernon Parish vs. Police Jury of Vernon Parish eb als.”, No. 175 of the Civil Docket of said court; the costs to be paid by the respondents.

Rehearing refused.

Blanci-iard, J., recused.