text:
    No. 10,023.
    The State ex rel. W. H. Heath et al. vs. The Judge of the Twenty-Second District Court et als.
    A Loud to cover all costs is sufficient for a suspensive appeal from a judgment dismissing a third opposition claiming a preference on the proceeds of a pale in the hands of the sheriff over seizing creditor.
    Where there are a number of oppositions claiming preferences on such proceeds, which are dismissed, the appellants from the judgment of dismissal may join in the motion for the appeal, and in one appeal bond.
    PPLICATJON for Mandamus and Prohibition.

      Sims & Poché, for the Relator.
   The opinion of the Court was delivered by

Todd, J.

The relators, by third oppositions, claimed to be paid by preference out of a fund in the hands of the sheriff, realized from the sale of a certain plantation described in the pleadings.

There was judgment rejecting their demands. From this judgment they asked a suspensive appeal, and tendered a bond to cover all costs,

They complain of the judge by whom said judgments wore rendered, for refusing to grant them a suspensive appeal on the bond tendered, and denying them the privilege of such appeal unless upon a bond for one-half over and above the amount of the judgment or claim of the other and successful party to the controversy ; and they have' applied to this court for a mandamus to compel tile judge to grant the appeal upon the execution of a bond for a sum to be fixed by him, sufficient to cover the costs, and also for a prohibition to stay proceeding ponding their application.

The judge, in his answer, denies that the case presented is one in which the relators are entitled to a suspensive appeal on giving bond for costs. He assigns, also, other causes for his refusal to grant the appeal, which, as they pertain to the merits of the controversy, we must decline to consider in this proceeding. They may furnish ground for the dismissal of the appeal, but are out of place here.

The l’elators do not seek to appeal from a money judgment against them, or from a judgment for the delivery of property, but only from one denying them a preference in a certain fund in the possession of the court or its officers.

In such case it has been established by a long line of decisions running through a half century, that the law only exacts a bond sufficient to cover the costs. Heath et al. vs. Vaught et al., 16 L. 513; Blanchin vs. St’r Fashion, 10 Ann. 345; Suc. of Edwards, 34 Ann. 216; State ex rel. Moller vs. Judge, 36 Ann. 189; Pasley vs. McConnell, 38 Ann. 470; State ex rel. Durand vs. Judge, 30 Ann. 283.

In the face of these and many other decisions to the same cifect, it is surprising that there can now exist any controversy on the subject.

Another ground urged for the refusal of the appeal is that there is no privity between the different relators, and they could not join in one motion for the appeal.

There is no force in this contention. In the case of Schlieder vs. Martinez, 38 Ann., the present court said:

“ There is no provision of law or rule of practice which requires each party dissatisfied with the judgment rendered should separately appeal and give a separate and distinct boud. They can all well join in the same motion and furnish one bond, in the case in -which the judgment appealed from was rendered.”

It is, therefore, ordered, adjudged and decreed, that the writs of mandamus and prohibition be aud the same are hereby made peremptory.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 9952.
    Succession of Kaspar Auch.
    A legacy to the incorporated churches of a particular Christian denomination in the city of New Orleans “ to the end that the poor of said respective churches may be cared tor,’ i>« a donation to pious uses expressly recognized in the Civil Code and highly favored by our jurisprudence.
    It contains no element of a Jiflei commissum or prohibited substitution.
    The uncertainty in. such a designation of the beneficiaries of the bequest is a characteristic of donations to pious uses, and is no obstado to their validity.
    There is no uncertainty as to the legatees described in the will.
    Charity is not foreign to the objects and purposes of incorporated Christian churches, but, on the contrary, is an essential function in their economy, and they are competent to receive and administer donations for charitable purposes.
    A PPEAL from tlie Civil District Court, for the Parish Orleans. LX. Rightor, J.

      Henry P. Dart, for Plaintiff and Appellant.

      Singleton, Browne ds Ghoate, for Defendants and Appellees:
    1. The defendant corporations, have tho power, under their respective charters and the laws of this State, to receive the legacy in question, whether it is viewed as a legacy for charitable purposes m a strictly limited sense, or as partaking of the character of a religious charity: (<7) because it comes with the express purposes and objects of their organization, which are, the religious worship of the Almighty God, and to cultivate and propagate the Christian religiou, according to the Presbyterian f ¡ith ; <&) because it is a x>art of their religious faith, and, therefore, one of the object of their organization, that the poor members should be provided for by the corporation; (o) because their rules and bs-laws especially provide for the care of the poor, and the collection and distribution of tlie offerings of the people for pious uses ; (d) because it was 44 the will and intention of' the donor” that they should receive the legacy in question. Charters; Book of Church Order; Will, II. S., secs. 677, 681 ; 2 JR. 532; 9 Ann. 266 ; 7 Ann. 363; 3 Ann. 294; 17 L. 46; Mora wet ss on Corp., vol. 1, secs. 27, 327, 36, 333. 362, 364, 5; Perry on Trusts, sec. 43, p. 25; 2 How. 188; 15 How. 367; 4 Wheat. 636; Parish of Sutton vs. Cole, 8 Pick. 237; 5 Met. 155; Watson vs. Jones, 13 Wall. 679; 8 N. V. 525; Domat, secs. 3585-86*87; Sue. McDonough, 8 Ann. 246; Williams vs Western Star Lodge, 38 Ann. 629.
    2. The legacy in question is not too vague tobe carried iiBo effect; the poor members of each body are well known and susceptible of positive identification. Tho designation in the will is sufficient in law. O. C. 1549 ; 2 R. 438; 12 Ann. 301; 8 Ann. 171; 38 Ann. 620; Domat, secs. 3337, 3588 89-90-90^; Bispham on Equity, p. 164; Perry on Trusts, secs. 687, 732.
    3. The title to the legacy is vested in the churches, and not in their poor members. 2 Bedfield on Wills, p. 422 ; 38 Ann. 621; Domat, Book 3, sec. 8, Nos. 3214-15 20.
   The opinion of the Court was delivered by

Fenner, J.

The decedent, Kaspar Audi, left a large estate, which he disposed of by a "testament containing tlie following clause:

“I give and bequeath to the several incorporated religious associa-. tions of the city of New Orleans, propagating the teaching of religion according to the form of government and. book of discipline of the Presbyterian Church, all the rest and residue of the property and effects which I may die possessed of, of whatever nature and kind, to .the end that the poor of said respective churches may be cared for.”

The executors named in the will opened the succession and caused the will to be probated.

The several incorporated Presbyterian churches of the ci.ty of New Orleans intervened in the succession by a petition praying for a citation of the executors and for a judgment recognizing them as sole residuary legatees and instituted heirs, and ordering the executors to sell the property and liquidate the succession.

After due proceedings such a judgment was duly rendered and signed. While it was in process of execution, Rosina Miller, a sister and legal heir of decedent, filed h petition citing the executors and the several residuary legatees, and praying for a judgmeut annulling both the will and the judgment.

The clause above quoted from the will is the basis of the attack, and its nullity is claimed on four grounds :

1st. Because it is therein attempted to create, hold aud perpetuate a fund not recognized by law.

2d. Because the said clause is in effect a fidei commissum, and substitution in violation of law ; and

3d. Because the said claimants and said legatees are incompetent to receive said legacies, the objects and purposes of same being beyond the scope of the power granted the churches by the laws of this State for the creation and government of the same.

4th. Because the said attempted distribution is too vague aud indefinite, and can never be carried into effect by reason of said vagueness and indefiniteness.

The first two grounds are frivolous.

The disposition contains not a single feature of the fidei commissum or prohibited substitution, and is the simplest possible example of a legacy to pious uses recognized in the text of our Code and favored in its judicial construction. Rev. C. C. 1549; Suc. of Vance, 39 Ann. 371; State vs. McDonough’s executors, 8 Ann. 171; Williams vs. Western Star Lodge, 38 Ann. 620; Suc. Mary, 2 Rob. 438; Fink vs. Fink, 12 Ann. 301.

As much may be said of the fourth ground. There is no intrinsic difficulty in determining what are.the incorporated Presbyterian associations-of this city, and the record shows that, without any contest among themselves, they have accepted the legacy, and made proof of their identity, under the designation contained in the will.

So far as the beneficiaries of the legacy are concerned, viz: “the poor of said respective churches,” there is no indefiniteness which is not inherent in all charitable bequests. This question was fully discussed and disposed of in the opinions of C. J. Eustis and Judge Rost, delivered in the McDonough will case, 8 Ann. 171, where it was said : It is plaiu that under the civil law it is no objection to the validity of a legacy to pious uses, that it is for the benefit of the poor, even without any designation of locality. There is no principle better settled than that such legacies are valid. Indeed, the very generality complained of is an illustration of,Christian charity; and uncertainty of individual object at the time of the gift is its character and element.”

The final contention that the corporations are incompetent to take because organized solely for religious, and not for charitable purposes, involves the monstrous proposition that charity is foreign to the purpose of Christian religious organizations — even charity to their own members. This is contrary to the general knowledge which we all have of the objects and practical workings of such organizations, and is contradicted by specific evidence in regard to these particular corporations showing that the care of their poor members is a special function in their economy confided to the direction of their deacons, who are officers constituted mainly for this purpose.

The laws under which such corporations are authorized expressly provide:

Said corporations shall be capable in law, according to the terms and conditions upon which the said corporations are formed and established, to take, receive and hold all manner of land, tenements, rents and hereditaments, and any sum of money, and any manner and portion of goods and chattels, given and bequeathed unto them or acquired by them in any manner respectively; to be employed and disposed of according to the objects, articles and conditions of the instrument upon which the corporations respectively are formed and established, or according to their articles and by-laws, or of the will and intention of the donors.” Sec. 681 R. S.

Exposition of a matter so plain would be “ lighting candles when the sun was shilling.”

Judgment affirmed.


author: Watkins, J.

text:
    No. 9946.
    Succession of R. H. Boullemet.—Rule on the Louisiana State Lottery Company.
    The sniviviug parent, holding property in common with minor children of a marriage with the deceased spouse, whether of the late community or derived by testament, may cause same to be adjudicated to him, or her, in whole or part, at an estimation of value fixed by experts appointed and sworn by the'judge, after a family meeting shall have declared that such adjudication is for the minor’s interest and advantage, and their ttndei tutor shall have given his consent thereto.
    A judicial adjudication of property thus held in common will not be annulled for informalities anterior to the decree of adjudication. Such decree is conclusive as to the facts on which it iests, until corrected on appeal, or annulled in a direct action.
    When, as in this case, the property sought to bo adjudicated to the surviving spouse is shares of stock of a corporation, and a rule is taken on such corporation to sho ' cause why the stock should not be transferred on the books of the corporation, in conformity with the decree of adjudication, the answer of the corporation thereto, presents an issue that mu8tbe decided as a necessary step to the completion of the adjudication. On appeal taken from the decision of the judge a quo, on the rule, we may decide upon the regularity of the anterior proceedings, and whether the consummation of same would bo to the best interest and evident advantage of the minors.
    APPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

      Joseph H. Spearing, for Plaintiff and Appellant.

      T. J. Semmes & Legendre and Hornor & Lee, for Defendant and Appellee.
   The opinion of the Court was delivered by

Watkins, J.

R. H. Boullemet died on the 12th day of February, 1886, leaving a widow and two minor children, to each of whom he beqeathed one-third of his estate.

The widow caused the will to be probated, an inventory to betaken, and herself to he qualified as testamentary executrix. Thereafter she was qualified and confirmed natural tutrix for the minors, and had an abstract of the inventoiy reoorded’in the book of mortgages, and H. P. Buckley, grandfather of the minors, was appointed and qualified as their underbutor. On the 20th of December, 1886, the executrix filed an account, showing the liquidation afid settlement of succession debts and charges, and, on due proceedings had, procured tile homologation thereof.

In her capacity of natural tutrix, Mrs. Boullemet filed, subsequently, an account on which was carried the value of 108 shares of stock of the Louisiana State Lottery Company fixed at $16,200, i. e., $150 per share; and the total amount of assets for distribution at $20,494 14.

On that basis the respective shares of the widow and heirs were fixed at $6831 38 — that is to say, $13,662 76 for the two minors. The uudertutor having been cited, filed an answer, in which he acknowledged the account to be correct, and consented to the liquidation and fixing of the shares of the minors at the amounts stated. Thereupon the account was homologated. Mrs. Boullemet then filed a petition requesting the convocation of a family meeting to advise whether it was to the best interest and evident advantage of the minors, that the property held in common by her children and herself should be adjudicated to her, upon the execution and registry of an adequate.special mortgage m their favor. The proper order was made, and experts appointed. They reported in favor of the adjudication being made at the price of $13,662 76, as fixed in the inventory. This report was duly approved and homologated.

The family meeting was duly convened, and recommended the adjudication to the surviving widow, of all the property that is described in the inventory,.at the price of $13,662 76 for the share of the two minors, upon her executing an adequate special mortgage in lieu of the general mortgage, in their favor. In these recommendations the nndertntor concurred, and the same were duly homologated', and the special mortgage was accepted, and the cancellation of the general mortgage ordered.

Mrs. Boullemet procured an order directing the Lottery Company to show cause why the judgment adjudicating to her the shares of stock, the deceased held and owned, should not be complied with, and the same duly transferred to her upon the books of tile company, and new certificates of stock issued to her in its place.

In answer to the rule, the Lottery Company assigns as a reason why the trausfer should not be made that, in their opinion, “ an apparent wrong was being committed to the prejudice of the minors, without the knowledge of the court, in that the appraisement of the property of the succession, was much less than the officers of the company knew to be the amount of .the interest of the children in the capital stock of their father in said company ; aud, therefore, said officers believed it to be their duty to make an investigation of the proceedings,” etc. The answer then declares that their investigation led to the discovery that said stock was worth, at the date, of those proceedings, $500 per share, “ and for this reason, and from the fact that the officers are advised that they might be held liable to said minors if they transferred the stock in obedience to the judgment of the court, with-oat biiugiug to the notice of the court tlie true market value of said stock.”

To this answer are annexed the affidavits of two stockbrokers of this city, stating the value of this Lottery stock to have been “upwards of $500 per share,” and it contains an. offer on the part of the company “ to take the whole of said stock at the price of $500 per share, payable cash.”

On the trial of the rule no other evidence was offered than the record and proceedings referred to on the part of plaintiff in the rule, and the two affidavits on the part of the Lottery Company. To the introduction of these the plaintiff objected on the following grounds, viz:

1st. That said judgment and proceedings cannot be attacked collaterally.

2d. That said judgment and proceedings fixed the value of the property to be adjudicated.

3d. That said affidavits are irrelevant.

4th. That the Lottery Company is without interest.

5th. That the minors are the o.nly interested parties.

6th. That only the undertutor, or some one claiming to represent the minors, can attack the report of the experts fixing the value of the property to be adjudicated, and the judgment adjudicating same.

7th. That all of the proceedings leading up to the judgment being regular, same cannot be attacked in the absence of a charge of fraud.

The idea sought to be conveyed by the Lottery Company is that their shares of stock are worth a large premium in the market, and in cash ; and that, instead of the 108 shares that are held in indivisión by the widow and heirs of Boullemet only being worth $16,200, they are now, and were at the time, worth $54,000; and that the interest of the minors amounts to $36,000, instead of $13,662 76.

The question presented is an equitable rather than a legal one.

Tlie provisions of the Code are : “ Whenever the father or mother of a minor has property in common with him, they each can cause it to be adjudicated to them, either in whole or in part, at a price of an estimation made by experts appointed and sworn by the judge, after a family meeting duly assembled, shall have declared that the adjudication is for the interest of the minors, and the undertutor shall have given his consent thereto.” R. C. C. 343; 5 Ann. 122, Succession of Hebert.

In Orr vs. Thomas, 8 Ann. 582, our predecessors said on this subject:

“ A judicial adjudication of community property made to the surviving husband, under proceedings before a court of competent jurisdiction, in which the minor heirs were represented by their under-tutor, will not bo annulled for ■informalities anterior to the decree of adjudication.

The minors being represented by their undertutor, the judgment of adjudication is conclusive as to ,the facts on which it rests, until corrected on appeal, or annulled in a direct action.”

It cannot be fairly argued that so great a disparity in value as alleged in the instant case is a mere informality; nor can it it be said that the Lottery Company have appeared in this cause without interest.

They appear in answer to plaintiff’s rule and for the purpose of bringing to the attention of the court a fact of material importance to the minors, and possibly to themselves; and it is substantiated by the judicial admission of the company, and the uncontradicted testimony of two witnesses who are professedly familiar with the value of its stock.

No objection was urged to the affidavits on account of their being ex parte.

Ti.e proof furnised by the Boullemet mortuaria is not of the satisfactory character that evidence contradictorily taken, is.

Such proceedings are too frequently taken as a matter of course”— simply as routine! business, and not carefully weighed or properly inspected. We are, it is true, not justified, from anything in the record, to pronounce such judgment in this case; but if the testimony of the Lottery Company is to-be taken into account — and we think it is — it inevitably creates this impression.

While it is, no doubt, true that the undertutor is a very worthy and responsible person, and devoted to the interest of his grandchildren, yet it is within the range of probability that he was unaware that so large a value was placed upon, or could be obtained for this Lottery stock. We are unwilling to declare that he has been unfaithful, and we cannot consent to deprive him of the opportunity of investigating the value of this stock, and of testing the sincerity of the company’s offer “ of $500 per share, payable cash.”

We regard the rule to show cause, taken on the Lottery Company, as a necessary step in the judicial proceedings to complete the adjudication t.o Mrs. Boullemet. The stock was not sold at public auction.

It had not been transferred by authentic act.

Tlie judgment-of homologation of the proces verbal of the deliberations of tlie family meeting was ex parte. It is not such a final judgment as will conclude investigation. We think the ends of justice will be best subserved by an affirmance of the judgment appealed from and it is ordered.

Judgment affirmed.


author: Bermudez, C. J.

text:
    No. 9996.
    Arthur Leibe vs. Ernest Hebersmith.
    Acts acknowledged before a Louisiana commissioner have no effect as authentic acts unless the acknowledgment takes place also before two witnesses, legally competent.
    Otlieiwise, they remain acts under private signature, which are inadmissible in evidence, until the signature is proved. 15 Ann. 392; 22 Ann. 457, affirmed.
    Admission in evidence to prove -raw. irpsam, of a document which is not authentic and the signature to which is not proved, is irregular. The document ought not to have been received at all.
    The judgment of non-suit, rendered by the lower court-, is justified.
    A PPEAL from the Civil District Court for the Parish of Orleans. JLjL. Tissot, J.

      Brauglm, Btich, Binkelspiel and Hart, for Plaintiff and Appellee.
    “ An act under private signature is inadmissible in evidence until the signatures have boeu proved.” 22 Ann., p. 457.
    “ An act executed before a Louisiana commissioner is not entitled fco the effect of an authentic act unless same has “been done in tlie presence of two witnesses.” 15 Ann., p. 392.
    “While an act under private signature, duly registered, may be held sufficient as notice to thiid persons, yet a distinction exists between the effect of the registry as to notice, and tlie effect of the act itself as proof of its contents.” 33 Ann., p. 1249, and authorities there cited.
    “ A common law mortgage has no effect in Louisiana as to third persons.” 34 Ann., p. 797 38 Ann., p. 890; Sue. of Mrs.'Larendon, decided Nov. 21, 1887.

      W. W. Handlin, for Third Opponent and Appellant:
    A common law mortgage is not similar to a vente á réméré under the Civil Code of Louisiana. S. O., No. 9787; C. C. 2464.
    An act under private signature dates from its registry, made to appear by the certificate of the Recorder of Mortgages.
    The acknowledgment of a deed under private signature before a Louisiana commissioner, makes full proof aliunde, of the genuineness of the document.
    An attaching creditor can have no greater rights than his debtor had over the property when bis attachment was levied.
    “ No privilege shall have effect against third persons, unless the act or other evidence of the debt is recorded, within seven days from the date of the act or obligation of indebtedness.” Act No. 45 of 1877.
    Private acts whose date is proved by evidence dehors the instrument being recorded, in the Mortgage Office and the transaction being bona fide, have the same effect against third persons as the parties themselves. 35 Ann. 847; 33 Arm. 12-19; 2 Ann, 251, 469; 9 Ann. 547; 14 Ann. 701; 11 Ann. 57; 4 N. S. 369; 2 N. S. 171.

      A private act once registered in toto, it is immaterial as norice whether the evidence of its execution was registered or not. Pierce vs. Clark, 25 Ann. Ill; C. C. 3367; C..C, 3397-3; C C. 3392; C. C. 3357.
    The employment of a shorthand reporter is optional. It is the duty of the minute clerk to take down the evidence if a party declines to employ a stenographer. The-law authorizes one note ot evidence or transcript in each case. A note of evidence .taken by a stenographer, as an officer of the court, may bo filed by him, and need not be submitted to the clerk. The law does not warrant the stenographer in not filing his transcript unless he is paid in advance.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is a contest for the distribution of the proceeds of real estate judicially sold.

The third opponent claims to be entitled to preference over the seizing creditor, by virtue of au agreement between her aud the defendant, termed a mortgage, executed in New York and subsequently recorded in New Orleans, where the property was situated, at a date anterior to the registries ou which the plaintiff relies.

On the trial, the' opponent offered in evidence the agreement in question, which, notwithstanding objection, was admitted to prove rem ipsam.

- The opponent contends that it ought to have been received without qualification, as an authentic act, but the plaintiff insists that it should have been rejected altogether, as it is not authentic, and the signature was not proved.

The agreement purports to be signed by the defendant befo.e a notary public in New York, on November 19, 1883, aud to have been recorded in the Mortgage Office of the parish of Orleans, on December 14 following.

It whs subsequently acknowledged before a Louisiana commissioner in New York, ou November 25, 1886.

The acknowledgment before the New York notary was not made in the presence of any witne1 s, and that before the Louisiana commissioner was made before one witness only.

No proof was adduced of the signature of the parties to the agreement.

Under the terms of the law and the construction put upon the same by a previous court, the instrument, to operate as an authentic, ought to have been acknowledged in presence of two witnesses before the Louisiana commissioner.

In Langley vs. Burrows, 15 Ann. 392, in which the acknowledgment had been made before a Louisiana commissioner and one witness only, the court said:

The section of the act of 1855 authorizes commissioners appointed in other States by the Governor of the State of Louisiana, to take acknowledgment and proof of any deed, mortgage, etc., and the eighth section gives to all acts thus acknowledged, the force and effect of authentic acts executed in this State. Thus we may conclude that those commissioners are by express p o vision of the law, vested with all the powers of our justices of the peace and notaries and as an authentic act of sale, mortgage, assignment, etc., is an instrument executed or acknowledged before a notary and two witnesses, it necessarily follows that the documents produced by the plaintiff are acts under private signature.”

This ruling is perfectly correct. It cannot be pretended that the Legislature intended to vest commissioners for this State, acting in other States, with powers superior or more efficacious than are conferred on home notaries, who must be citizens of the State.

Hence, it is apparent that an act acknowledged before a Louisiana commissioner acquires no authenticity in this State, unless executed in the presence of two competent witnesses. R. C. C. 2234; R. S. 596 to 603.

In Miller vs. Wisner, 22 Ann. 457, the court held that documents under private signature are inadmissible in evidence until proof of the signature. Thus reads the law. R. C. C. 2242.

The admission of the document to prove rem ipsam was barren of any effect; a white sheet of paper might as well have been admitted. It should not have gone in at all.

The district judge properly non-suited the opponent. The record is not in a condition to enable this court to pass upon the merits of the controversy.

Judgment affirmed.


author: Pochb, J.

text:
    No. 9950.
    Succession of Octave J. Forstall.
    The sale or transfer of a note secured by a special mortgage and vendor’s privilege carries ■with it both the mortgage and privilege.
    This right accrues to the purchaser by mere operation of law, and is not dependent upon the articles of the Civil Code, which treat of payment with subrogation, legal or conventional.
    The right is acquired by the purchaser, even if the payment of the note, which is in suit by executory process, is made to the sheriff; provided, the contract be shown to be one of purchase between the seizing creditor and the transferees of the note.
    In a sale of an immovable, burdened with a mortgage and vendor’s privilege, belonging to a succession, no other claim or charge can be preferred to the vendor’s privilege out of the proceeds of the sale, but the expenses incurred for making the sale.

      In the oase of a sale of succession property, 'burdened with mortgages, by executory process, the purchaser at such sale cannot be compelled to turn over to the succession representative the amount of ranking special mortgages, which he is entitled to retain, after satisfying the junior mortgage of the seizing creditor. Morris vs. Cain, 34 Ann. 657.
    But if the unsatisfied mortgages arc general, the residue of the purchase price cannot be rotained by the purchaser, and the same must be paid over to the succession representative to be administered upon, Teissier vs. Bourgeois, 38 Ann. 256.
    A natural tutrix, administering in that capacity the succession of her husband, is entitled to administrator's commissions.
    APPEAL from the Civil District Coart, for the Parish of Orleans. Monroe, J.

      W. JS. Murphy, for Opponent and Appellee :
    1. The C. C. Art. 3237 grants a vendor’s privilege on the property sold for the payment of the price, or so much of it as is due, whether sold for cash or on credit.
    2. This is a right which springs from the nature of the debt, and by force of law is embodied in the contract.
    3. It is also a right of very high character conferring advantages superior to those which flow from a mortgage.
    4. Although a renunciation of rights of this character may be implied, it must be held by sound principles of interpretation, should be established, not by doubtful, but by clear and cogent inferences from the acts of the parties. Boner vs. Mahló, 3 Ann. 600, and authorities there cited, aleading case on this subject.
    5. Nemo facilepreesumitur donare. Merlin expresses, with his usual accuracy, the just íule for interpretations of renunciations. “ Les renonciations se font de deux maniéres, expressément, et par des faits. Mais pour que les faits emportent, il faut qu’il en résulle une volonté manifesté de renoncer, c’est-ái-dire, que ces faits soient directement et k tous ógards contraires et au privilége dont il s’agit.” Merliu, *Verbo Renon, § 3; DuraDton, vol. 10, § 158.
    6. Even a release of a special mortgage to secure the vendor the payment of the debt does not effect the vendor’s privilege. Citizens’ Bank vs, Curry, 12 R. 279 ; Sue. Johnston, 3 R. 217; Howard & Thomas, 3 L. 112.
    7. The burden of proof as to the renunciation falls on the party holding the affirmative. The tutrix in this case representing the deceased is estopped from denying her husband’s contract to subrogate opponent.
    8 The tutrix claiming §1000 from the succession, under the Homestead clause, is not entitled to commissions, all she can take from the creditors is the §1000 allowed by law. R. S. p. 333, sec. 1693. As tutrix, she is entitled to a commission on the minors’ revenue. C. O., Art, 349; Sue. of Weber, 16 Ann. 420.

      Bombóla & Diteros, for the Tutrix and Appellant:
    1. Legal subrogation is stricti juris, and can take place only in cases expressly provided for by law. 11 Ann. 435 ; O. C. 2161, 2645; 3 Larombiere, pp. 180, 301 ; 1 Troplong, Priv. No. 349; 4 Mareardó, Nos. 704, 710; 7 Toullier, Nos. 102, 139; 12 Dnranton, No. 180; 2 Zacharias, p. 376.
    2. Conventional subrogation is not presumed ; it must be express, unequivocal, and made in writing and at the same time as the payment; and only by notarial act, when made by the debtor. C. C. 2L59, 2160 ; 12 Dnranton, Nos. 117,118; 3 Larombiere, pp. 194, 215 ; 7 Toullier, Nos. 116, 117,121; 5 R. 207; 11 Ann. 295; 30 Ann 23: 9 R. 476.
    3. Eact3, not alleged by a litigant, are inadmissible in evidence. C. C. 2161; 9 Ann. 120 j 24 Ann, 158: 14 Ann. 356 : 12 Ann, 77; 9 R. 477.

      4. An administrator cannot jnstly be charged with uncollected funds, which the action of the law and of the complaining party himself has put it out of his power to receive. C. P. 679, 683 ; 2 L. 280 ; 13 Ann. 592 ; 34 Ann. 662.
    5. A widow and natural tutrix, administering and settling, us nominibus, the insolvent estate of her husband, is entitled to an administrator’s commission. C. C. 1014, 1069 ; 1 Zacharies, § 40; 1II. 400 ; 7 Ann. 212; 34 Ann. 40.
    6. An appellate court has no power to review the judgment of the lower com t as to appellees inter sese. C. P. 888, 889; 2 Ann. 548, 994; 12 Ann. 775; 11 Ann. 546; 16 Ann. 195; 18 Ann. 265; 20 Ann. 123; 23 Ann. 456; 25 Ann. 508; 26 Ann. 542; 32 Ann. 190.
   The opinion of the Court was delivered by

Pochb, J.

The.principal contention presented in this appeal grows out of the opposition to the account and tableau of distribution of the natural tutrix administering in that capacity the succession of her husband, interposed by James P. G-uiuault, as the holder of twenty-two notes, amounting together, in capital, to $1900; and originally secured by a special mortgage and vendor’s privilege on an immovable, the proceeds of which constitute the principal asset of the succession.

He complains that, in her proposed distribution, the tutrix lias recognized him as a privilege creditor for the amount of only eleven of the notes which he holds, treating him as an ordinary creditor for the amount of the eleven others; and he also charges error in the omission of the tutrix to include a< an asset of the succession the sum of $93 0 87, the residue of the adjudication of another immovable belonging to the succession, whici. had been sold under executory process at the instance of opponent, as the holder of a mortgage, second in rank, on said property. He finally resists the amount, claimed by the tutrix as administrator’s commission, as well as the foes allowed lo the attorneys and to the notary of the succession, which he alleges to be excessive in amount.

The tutrix appeals from a judgment which recognizes the opponent as a privilege creditor for t.he full amount of his twenty-two notes in capital and interests, and orders the proceeds of the property sold under executory process to be charged as an asset of the succession, or as much of the same as may be necessary to satisfy the claim propounded by the widow under the provisions of act- 171 of 1852, now article 3252 of the Civil Code. The judgment also rejects her claim for commission as administratrix, and finally homologates her account as thus amended.

The first point of discussion involves the proposed reduction of opponent’s privilege by one-halt'. Appellant’s position on this point will be best understood by a reference to the facts which gave rise to the contention.

It appears that a short time previous to the death of Forstall, the holder of the twenty-two notes, eleven of which had then matured, took out a writ of seizure and sale of the property subject to the mortgage and vendor’s privilege, by which the notes were secured, and 1 hat before Ghe date fixed for the sale, at the instance of Forstall and with the consent of the seizing creditor, the opponent (Guinault) purchased the entire series of the notes on which execution had issued, for the purpose of assisting and befriending Forstall, whose home was thus saved to him. In order to avert and suspend the sale which was to have taken place on the very day that the transaction was consummated, the amount of the eleven matured notes in capital and accrued interests, together with costs thus far incurred, was paid into the hands of the sheriff, and that a few days later, as soon as the notes could be legally withdrawn from the files of the court, the purchase price of the eleven notes was paid to the attorney of the seizing creditor, who had been vested with full authority by his client to carry out the agreement of the parties, and who thereupon delivered the entire series of notes to Gfuinault, the purchaser, to whom he executed a conventional subrogation of the rights of mortgage and privilege securing the eleven matured notes, the payment of which was therein stipulated to have been made as hereinabove stated. Relying on that circumstance and on the alleged fact that this instrument was not executed.on the day that payment was made, coupled witli the fact that in his return on the writ the sheriff stated that he had received the amount which the writ called for from the debtor Forstall “through Jas. P. G-uinault,” appellant makes the point that the transaction thus evidenced was, in fact and in law, a payment by the debtor of the eleven matured notes, under the operation of which the vendor’s privilege was extinguished and cancelled, and that therefore the attempted subrogation of such defunct rights was, and must be treated as, an absolute n ullity.

Under our reading of the record the evidence shows clearly and conclusively that the transaction • which resulted from the negotiations carried ou by Forstall and G-uinault with the duly authorized counsel of the seizing creditor, and in consequence of which Guinault acquired the possession of the twenty-two notes in question, was one of purchase.

Hence, we hold that the rights which he acquired as purchaser and transferee could not be in law, and were not in fact, affected by the mode, awkward it was, adopted of making the payment of the eleven matured notes and of the costs incurred in the executory proceedings. The practical result of the transaction was, as shown by the record, that the seizing creditor, as vendor, received the price of his notes, and that the purchaser received the notes, which lie bought, in their full legal and intrinsic value.

The securities which were thus transferred to him, together with the notes, were the special mortgage and vendor’s privilege with which they were duly identified. Those rights are secured to him by the very text of the law.

Article 2645 Civil Code reads: “ The sale or transfer of a credit includes everything which is an accessory to the same, as suretyship, privileges and mortgages.”

Hence, our jurisprudence has invariably enforced the rule that the mere transfer of a note secured by mortgage carries with it the mortgage itself. In such a transaction the articles of the Code which treat of the payment with subrogation have no application, as the right acquired by the transferree derives from another and a different provision of law. Oakley vs. Sheriff, 13 Ann. 273.

It follows, therefore, that the accessories of the notes which Guinault acquired were vested in him by the mere operation of law, without reference to the attempted conventional subrogation evidenced by the instrument executed by the seizing creditor’s attorney and agent,, which was mere surplusage. As such it can add to, or detract no strength from, the legal rights which Guinault acquired under his purchase.

It is plain, under our well-settled jurisprudence that, on presenting his notes, with authentic proof, as was the case here, that they were made payable to the order of, and indorsed by, the drawers, with a copy of the sale with which they were identified, to a court of competent jurisdiction, he would have been irresistibly entitled to executory process to enforce payment thereof.

Hence, his rights to a mortgage and vendor’s privilege are perfect in law, and must be enforced. Race vs. Bruen, 11 Ann. 34; Scott vs. Turner, 15 Ann. 346; Seckel vs. Fried, 18 Ann. 192; Frost vs. McLeon, 19 Ann. 80; Perot vs. Levasseur, 21 Ann. 529; Miller vs. Canpel, 36 Ann, 264.

On the second branch of the controversy, the record shows that the purchaser of the immovable sold under the executory process in the suit of Guinault vs. Forstall, after paying the amount of the seizing creditor’s claim, costs of suit and taxes, retained in his hands the sum of $910 87 to meet the payment of a special and ranking mortgage affecting the property sold, and an additional sum of $170 96 on account of a tacit mortgage recorded in favor of the minor children of the deceased, against their mother, the accountant.

Under our well-settled jurisprudence the succession representative was without legal right to claim from the purchsser the amount retained by him on account of the special ranking mortgage Morris vs. Cain’s executors, 34 Ann. 662.

But she had the right, and it was her duty, to claim and recover the amount retained by the purchaser on account of the general mortgage in favor of the minors. Tessier vs. Bourgeois, 38 Ann. 256.

This is conceded by her counsel, and they argue that the account should be credited with the additional sum of $170 96, as it appears, as a result of the developed insolvency of the succession, iliat the inscribed mortgage of the minors, resulting from the abstract of the inventory, lapses and is without effect.

We, therefore, conclude that the district judge erred in treating the entire proceeds of the sale as an asset of the succession; that part of his judgment covers only $170 96.

At this stage of the case comes the practical conflict between the opponent, G-uinault, in the enforcement of his rights of vendor’s privilege on the proceeds^of the immovable subject thereto, and the widow’s claim of $1000 under the act of 1852. The total assets of the succession are insufficient to satisfy both and the funeral and law charges and other privileges recited and contained in the account.

Under the provisions of the act of 1852, the claim therein created muse “ be paid in preference to all other debts, except those for the vendor’s privilege and expenses incurred in selling the property.”

Hence, it follows that the only debts or charges which can "bo preferred to opponent’s privilege are the costs of the salo of the property subject to his mortgage. Now the record informs us that the judicial costs incurred for that sale amount to $90 90, and that the property wns liable for taxes amounting to $75 95.

Beyond this the record is silent, and wo are not informed of the items which make up the amount of costs as above stated. But we are authorized to conclude that the total amount consists of the clerk’s and sheriff’s fees, appraiser’s charges, advertisement of sale, etc., and these, we hold, are the only costs which can rank the vendor’s privilege. Succession of P. O. Lauve, 18 Ann. 721; Succession of Markey, 2 Ann. 265.

The judgment appealed from is in accord with these views, although it does not detail the charges which are allowed; these must be restricted to the two items hereinabove enumerated,

Protected by that decree, opponent has no concern with the amounts allowed for attorneys’ and notary’s fees, for the reduction of which lie has filed a prayer to amend the judgment. And as the other creditors of the succession have not appealed, the judgment in that j>articular cannot be reviewed by us in the present appeal..

We do not approve of the conclusion reached by the district judge on the claim of the tutrix for commissions of administration, which was rejected in the judgment appealed from.

The right of a natural tutrix to such commissions has been judicially recognized. Succession of De Lerno, 34 Ann. 40. Hence we shall allow them, but they are inferior in rank to opponent’s privilege.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be amended in the following particulars :

1st. By reducing the amount of the proceeds of the property sold under executory process in the suit of G-uiuault vs. Forstall, to be accounted for by the natural tutrix, to the sum of $170 96.

2d. By allowing to accountant administrator’s commissions, under the restrictions hereinabove stipulated.

And it is now ordered that said judgment, as thus amended, be affirmed at the costs of Jas. P. G-uinault, opponent on appeal.


author: Todd, J.

text:
    No. 10.039.
    James L. Winter vs. Max Fraenkel.
    To authorize an appeal from an interlocutory decree the decree must be such as would work an irreparable injury.
    So where a lessor complains that the lessee has placed an electric batcery and ejected machinery in a part of a building leased by him, in violation of the contract of leaso, and ciaims damages to the amount of the rents to be paid for the residue*of the building, which he avers will be abandoned by the tenants, and demands the dissolution of the lease, and at the same time asks for an injunction to stop the running of the machinery pendente lite, the order of the judge refusing to grant the injunction is not appealable.
    The injury likely to be caused by the disturbance is not irreparable, nor is the refusal of the injunction decisive of the cause on its merits.
    APPEAL from the Civil District Court, Parish of Orleans. VoorMes, J.
    F. L. Richardson, for Plaintiff and Appellant.
    F. F. Moise, for Defendant and Appellee.
   The opinion of the Court was delivered by

Todd, J.

This is an appeal from the refusal of the district judge to grant an injunction.

There is a motion to dismiss the appeal on the ground that the appeal is from an interlocutory decree, which does not work an irreparable injury.

The petition for the injunction contained in substance the following allegations :

That the plaintiff had leased to the defendant parts of certain buildings and their appurtenances in the city of New Orleans for thirty months, and that defendant had taken possession of the same. That the defendant, a few months after the commencement of the lease, placed in the building an electric battery of five-horse-power for the purpose of running sewing machines and fans, which caused so much noise, tremor and jarring of the walls of the building that the offices on the second floor thereof, occupied by the plaintiff and his other tenants were rendered almost uninhabitable. That the use thus made of the premises was not contemplated at the time of making the lease.

That he found the tenants would abaudon the building if the distuibance from the battery and machinery was not stopped, and that he also would be obliged to give up the use of his office.

That the rents of the building-, including his own office, for the term of the lease would amount to $2118.

Plaintiff prayed to have the lease cancelled and annulled, and for an injunction restraining defendant from running the machinery and for damages.

A rule to show cause was issued, and on trial of the same the injunction was refused.

The order of refusal complained of was an interlocutory order.

It is not for us to say whether the judge should have granted the injunction or not. That is not the question before us, but whether the interlocutory order refusing the injunction was appealable.

The general rule is that an interlocutory order or decree to be appealable must be calculated to work an irreparable injury.

There is, however, no allegation in the petition that such an injury, or an injury irreparable in character, would be caused by the refusal to grant the injunction. On the contrary, it is plainly inferrible from the nature of the complaint urged, that the injury could be repaired.

The substance of the complaint is that plaintiff and his other tenants will be compelled to quit the building, and he measures his loss therefrom at $2118, as before stated. That is, if he and his tenants abandon the buildings on account of the disturbance complained, $2118, but no less sum paid to him by defendant will compensate him for his loss,

An injury, as lias often been said, to be irreparable must be of that kind that cannot be compensated in money.

But, as we understand the plaintiff's counsel, he does not put the appealability of his case on this ground — of irreparability — but rather on the ground, substantially, that the refusal of the judge to grant the injunction was equivalent to deciding the case on its merits, and refers us to authorities, favorable, in such case, to the right of appeal.

If the premises of the counsel were correct, the authorities cited might greatly aid him. But are they correct 1

The petition distinctly charges that the defendant, by the acts complained of, had violated the conditions of the lease, and that he, plaintiff, was entitled to have it annulled, and he prays that it be annulled and cancelled for the dissolution of the lease.

This demand, it is obvious, is the substance of his action — his main demand — whilst the injunction asked for can only be properly viewed as ancillary to that demand — to stop the disturbance — until he could be absolved from the unfortunate contract and get rid of his obnoxious tenants.

For these reasons the motion to dismiss the appeal must prevail.

Appeal- dismissed.


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

text:
    No. 10,050.
    The State of Louisiana vs. Guillaume Valere, alias Peter Valere.
    It is not safe for counsel to charge that a case lias been decided without having been fixed for trial where the minutes of the court show that it was regularly called and submitted, and where, after such submission, counsel file briefs in support of points made.
    It is with little good grace that counsel complain that a decision delivered does not pass - upoD points made by him, where he himself admits that ho has not read the reasons assigned, and where the opinion shows that the points wore considered and overruled.
    The grave charges made ought not to have been preferred at random, but with circumspection.
    APPEAL from the Twenty-first District Court, Parish of St. Martin . Mouton, J.
    Jf. J. Cunningham, Attorney General, for the State, Appellee.

      JH. Simon, F. Voorhies and Fan Voorhies, for Defendant and Appellan t.
   The opinion of the Court was delivered by

Fenner, J.

The recoid teems with charges of error embodied in bills of exception, a motion for new trial and a motion in arrest of judgment, most of which require only the briefest mention.

1st. The indictment is assailed as insufficient in law because the endorsement thereon did not specify the offense charged and because the foreman of the grand jury signed simply as Foreman,” without adding the words of the grand jury.” The objections are frivolous. State vs. Mason, 32 Ann. 1019; State vs. Granville, 34 Ann. 1089.

2d. It is objected that the venire and indictment were not served two full days before the trial. The return of the sheriff showed the contrary, and it was not successfully contradicted.

3d. The copy of the indictment served is assailed as not a true copy, because certain words endorsed on the original were not contained on the copy. The omission charged was utterly immaterial. 32 Ann. 1019.

4th. Objections were raised to the method of summoning jurors de talibus, which have no force, and were sufficiently disposed of by the reasons given by the judge.

5th. Certain defects in the minutes of the court were assigned as ground of the motion in arrest, whereupon the judge ordered the minutes to be corrected so as to conform to the facts. This he had the right to do, whenever his attention was called to the errors.

6th. The claim that the accused was not present at all important proceedings on the trial, is not sustained. State vs. Price, 37 Ann. 215.

7th. Defendant offered in evidence a deposition of one of the State’s witnesses, taken before, a justice of the peace, for the purpose of contradicting the evidence given by the same witness on this trial. The judge refused the same, without proof of the signature of the witness, which was by cross-mark, holding that the attestation thereof by the justice of the peace did not afford authenticity, because said justice had no jurisdiction, ratione materice, to swear witnesses and take down depositions in a murder case, and his action was corcm nonjudice, and gave no effect to the declaration other than that of a private writing.

The ruling was correct, and the reason sufficient.

8th. After the foregoing ruling, defendant offered to prove the signature of the justice of the peace by a witness in court or by a comparison of hand-writing, which the judge refused to permit, on the ground that the testimony of the justice himself was the best evidence. And then the defendant moved for a delay of ten hours in order to enable him to secure the presence of the justice.

We fail to see what would have been accomplished by proving the signature of the justice; the matter requiring to be proved was the signature of the witness. As that signature was by cross-mark, the justice, who attested it, was no doubt the best witness; but the judge assigns sufficient reasons for not granting th i delay applied for, in the lack of diligence displayed by defendant, who, though aware of the necessity of offering this evidence from the time «lien the witness to be contradicted had testified, took no steps to secure the witness until long afterward when the trial was nearly completed. Defendant was presumed to know the law, and cannot avail himself of the plea of surprise by rulings of the court, which were legal and proper, and should have been anticipated.

We have thus disposed of all the charges of error, none of which have the slightest merit.

Judgment affirmed.

On Application por a Rehearing.

Bermudez, C. J.

The judgment rendered herein on Nov. 8th is assailed on two grounds:

1st. That the case never was set for trial.

2d. That the court did not pass upon an important question presented by bill of exception to the admissibily of certain evidence.

I.

The appeal was made returnable at Shreveport in October last.

In the country, cases are not fixed for any particular day, but are taken up in the order in which they stand on the docket.

The minutes of the couit show that the case was called in its regular order, on October 17, and was submitted on briefs filed and to be filed.-

On the following day, the Attorney General filed his brief, and on the 19th a brief on behalf of the accused was also filed.

On October 22, the court, considering, from appearances, that the issues presented demanded ample consideration — the accused being prosecuted for manslaughter, and having been sentenced to ten years at hard labor — ordered the case to be trausfered to New Orleans, not for reargument, but for final decision.

Counsel for the defendant complains, urging that he had been informed by an attorney that the case had been transferred to New Orleans there to be tried.

This court is not responsible for the information thus conveyed to the counsel, who ought to have sought the same from the minutes.

Charges of such grave character ought not to be made at random, as was done in'this instance, but with circumspection.

It thus appears that the case was regularly called, submitted and decided, and that the accused has no cause to complain.

II

The court took pains to consider the case, not only from the briefs of the State and of defendant’s counsel, but also from the record, and did actually pass upon every point presented. Had counsel read the opinion delivered in the case, he would have found that his second objection is utterly groundless.

His complaint can hardly be deemed serious, when he himself, in his application for a rehearing, confesses that he has not read the opinion. If so, with what grace can he complain that his points have not been determined.

We have reviewed the opinion, and see no reason to disturb the conclusions reached.

Application refused.


text:
    No. 10,036.
    J. G. St. Julien vs. Morgan’s Louisiana and Texas Railroad and Steamship Company.
    Tbe Legislature, in granting to the defendant company immunity from suit elsewhere than at its domicile, fur causes of action other than trespass, designed to restrict the character of suits not brought at the place of domicile, to actions of tort, for wrongs committed, and its unlawful entry upon the lands of citizens oí et armis.

    Trespass is an unlawful act committed with violence on the property or lights of another. An action of trespass is that which is instituted for the recovery of damages for a wrong committed with immediate force.
    In case the owner of land permits its use and occupancy by a railroad corporation, and the construction thereon of a quasi public work, without resistance or complaint, he cannot thereafter require the demolition thereof, nor prevent its use by such corporation,
    Such owner is not debarred of hi action for compensatory damages, if instituted at the domicile of the company; but lie cannot affect to treat such entry as tortious, and suo it, as a trespasser, at the place where the injury is alleged to have been sustained.
    PPEAL from tbe Twenty-sixth District Court, Parish of Lafayette Be Baillon, J.

      M. B. Girard, for Plaintiff and Appellee.

      ¡I. Ij. Garland and heavy & Blair, for Defendant and Appellant.'
   The opinion of the Court was delivered by

Watkins, J.

The demands of the plaintiff are founded upon the reservation iu his favor contained in our decree in the previous suit betweeu the same parties. 35 Ann. 924.

He claims of the defendant company the sum of $3911 50, as compensatory damages, and which may be correctly itemized as follows, viz :

1. Yalueof land taken........................ $1087 50

2. Cost of fences.............................. 500 00

3. Injury to 100 acres of land.................. 500 00

4. Yalue of embankment...................... 1824 00 — $3911 50

In the court a qua the case was tried by a jury, and they found a verdict in favor of the plaintiff for cost of fences and hedges, $500, but disallowed the remainder of his demands as prescribed. The defendant appealed.

In Ivmme the defendant company filed an exception to the jurisdiction of the court on the ground that, under its charter, suit could not be brought against it, elsewhere than at its domicile, the city of New Orleans, for other cause of action than trespass. See. 12, act 37, of regular session of 1877.

And that the claim herein made did not, confessedly, arise from a trespass committed by the company on the person or property of the plaintiff, as will appear from his petition.

This exception was overruled by the judge a quo, and the correctness vel non of his ruling must be first ascertained, and decided.

In making the exception defendant relied upon the provision of its charter.contained in section 12, as restricting the right to sue it, elsewhere than at the place of its domicile, to actions of trespass, and as taking said company, in all other respects, out of the operation of C. P. 165, paragraphs 8 and 9.

In State ex rel. Morgan’s L. and T. R. R. and S. S. Company vs. Judge, 33 Ann. 955, we held the company’s act of incorporation to be a private statute, and not a public law ; and that the word “ trespass,” as employed therein, was “employed in its broadest sense, so as to comprehend a variety of wrongs, having the common element of a use of force, whether direct, or indirect.”

In the more recent case of Heirs of Gossin vs. Williams, and Morgan’s L. and T. R. R. and S. S. Co., 36 Ann. 187, we said of the same statute:

“It is evident that the Legislature, by granting to the company immunity from suit, out of New Orleans, its legal domicile, except in eases of trespass, meant to confer some privilege or advantage, which otherwise would not have existed. The design was clearly to restrict the character of suits, not brought at the place of domicile, to cases of trespass.”

Though it cannot be said to have, in any legal sense, repealed the article of the Code of Practice, it did have the effect of relieving the corporation from the effect of those provisions conferring jurisdiction on the judge of the place where the property is situated, to try and determine suits for damages other than for trespass.

In the opinion last quoted from we also treated of the action of trespass, as contemplated by the defendant’s charter, and said :

“Trespass is defined to be au unlawful act committed with violence, vi et armis, on the person, property, or relative rights of another.

“An action of trespass is that which is instituted for the recovery of damages for a wrong committed against the plaintiff with immediate force.” P. 188.

Our predecessors, in construing C. P. 165-9, employed similar language :

“ The Legislature contemplated the active violation of some right, or the doing of some illegal thing, acts of commission, which give rise to an action for damages, and that the rule does not apply to omissions, neglect or failure to do.

“ Wrongs of this class are excluded by the use of the words “ commit” and “ commit!ed,” * * and which, necessarily, imply action.” 30 Ann. 609, Montgomery vs. Levee Company; 31 Ann. 566; 39 Ann. 29.

The plaintiff does not, in his petition, class, or style this as an action of trespass. In our former opinion (35 Ann. 924) the character of his original suit was fully examined and defined, and the reservation in his favor clearly outlined.

It was regarded and treated as one possessing some of the characteristic of a petitory action for the recovery of certain land occupied and used by the defendant as a road-bed for its-railway — claiming that it had entered thereon in July, 1879, without his permission, and without purchasing, or appropriating it — -and for rents and revenues.

After carefully reviewing the evidence, we said : “ It is unnecessary for us to say, or intimate how, or whether he would have been protected had he done more than talk to a lawyer. Certain it is he did not invoke the arm of the law, at the time it could have been of service to him, but, on the contrary, acquiesced in the defendant’s taking possession, and using his property; encouraged it to prosecute its work by abstaining from every attempt to prevent it, and made no compiaint in a court of law, of the injuries inflicted upon him, until the defendant had expended large sums of money in completing it. Having thus permitted the úse and occupancy of his land, and the construction of 'a quasi public work thereon without resistance, or even complaint, he cannot afterwards require its demolition, nor prevent its use, nor treat the company erecting it as his tenant.

“ I-Ie is not barred from an action for damages by reason of the taking of the land, and for its value; but having acquiesced in the entry, and encouraged, if lie did not invite it, he cannot affect to treat it as tortious.

“Considerations of public policy, not less than the suggestions of natural justice, require that, in such case, the owner shall not be permitted to reclaim his property free from the servitude he has permitted to be imposed upon it, but shall be restricted to compensation.'1'1

The taking possession of plaintiffs land was not accomplished by a resort to violence, nor through the commission of a wrong, a tort, or other illegal act. The plaintiff not only did not make resistance to the entry of the defendant, but acquiesced in it, and encouraged it to construct its railway thereon.

He cannot now prevent the defendant’s use of it, nor treat it as a trespasser in so doing.

In support of the views expressed by the court the opinion quoted the following very pertinent paragraph from Pierce on Railroads, viz :

“ If the company had made an- unlawful entry to construct its road, it would be liable in an action of trespass for the injury accruing therefrom, and the satisfaction of that judgment would not have the effect of making the appropriation legal, as would the payment of the award in proceedings for condemnation; but the company would remain liable to sueeessive actions of trespass for the continuing nuisance, or to successive actions for the recovery of rent for the continuing use of the land. ” P. 169, 230.

Hence, the defendant is not liable in an action of trespass for the injury accruing for its use, but may be sued, only', for compensation.

The opinion also-quotes with favor, Mills on Emiuent Domain, who says:

“ Slight acts of acquiescence on the part of the owner will estop him from interferring with the running of a railroad.

“He will not be deprived of his claim for damages, or his right to enforce it in all proper modes; but, if he has, in ’any sense, for the shortest period, clearly given the corporation, either by his express consent, or by his silence, to understand that he did not intend to object to their proceeding with the construction and operation, he cannot, on non-payment of compensation, maintain ejectment. If there was, in fact, a waiver, either express or implied, by acquiescing in the proceedings of the company, to tlie extent of not insisting upon prepayment as a condition precedent, but consenting to let the damages lie and remain a mere debt, with or without a lieu upon the road-bed, then it is impossible to regard the corporation, in any sense, in the light of a trespasser, or liable to ejectment.” Sec. 140.

The converse of that pioposition is clearly stated in Salt Lake City vs. Hollister, 118 U. S. 256, in which the Supreme Court held that a railroad company, authorized to acquire a right of way by the exercise of eminent domain, which seizes upon the land of a citizen, makes no compensation, and takes no steps for its expropriation, “is a naked trespasser, and can be made responsible for a tort.” The two are easily reconcilable, and are reconciled on the theory of our opinion.

In that case the plaintiff’s demand for ejectment was refused because the entry of the defendant on the plaintiff’s land was with his consent or acquiescence. The logical deduction from that decree is that plaintiff has no right of action for trespass, and had only reserved to him therein, an action for compensatory damages for the value of his land, and the injury he may have suffered by tlie taking of it. The plaintiff’s suit should have been instituted at the defendant’s domicile. The exception to the jurisdiction of the court should have been sustained, and the suit dismissed.

It is, therefore, ordered, adjudged and decreed, that the verdict of the jury be set aside, and tlie judgment appealed from annulled ; and it is now' ordered, adjudged and decreed that the defendant’s exception to the jurisdiction of the court a qua be sustained, the suit dismissed, and that all costs be taxed against the plaintiff aud appellee.


text:
    No. 10,035.
    A. P. Moore et al. vs. F. M. Wartelle et al.
    In the absence of proof tbat an act of sale, under private signature, attacked by foroed heirs, as designed to serve as a disguised donation — was sncli in tlie intendment of the parties, the court will not pass upon the sufficiency of the act sous seign privó, as ti ana lative of the property.
    The sales of immovable property made by parents to their children may be attacked by the forced heirs as containing a donation in disguise, if the latter can prove that no price was paid, or that the price was below one-fourth of tbe real value of the immovable sold, at the time of sale. H. C. C. 2444.
    The law does not favor actions by forced*heirs to undo transactions of their ancestors as done in fraud of their rights. The burden is upon them, and, in the absence of convincing proof, and in the presence of evidence which merely cast a suspicion, the court will not take the property of one man to give it to another; (Act of 1884 not applicable here.) The law does not, in proper cases, leave the heirs without relief. *

      If it be true that forced heirs can be likened to creditors, and may resort to the revocatory action, their right to sue would be barred by one year from the death of the parent.
    A partition cannot be ordered of property which cannot be described, so as to give bidders an exact knowledge of what is to be offered for sale.
    APPEAL from the Thirteenth District Court, Parish of St. Landry. Hudspeth, J.

      Leíais & JBro., for Plaintiffs and Appellants.

      Kenneth á Baillio and John N. Ogden, for Defendants and Appellees.
   Th.e opinion of the Court was delivered by

Bermudez, C. J.

This suit has a double object: First, to annul a transfer of real estate made by plaintiffs’ grandmother to the defendants, their uncles, on the ground of defect of form, of simulation or fraud ■, and second, to compel the latter to account for certain movable property of the deceased, which they unlawfully retain in their possession.

The nullity of the transfer is sought, because the transfer, in the form of a sale, was intended as a disguised donation, and was made under private signature; because the conveyance was made without any real or valid consideration, and because it was made with the fraudulent design of depriving the plaintiffs of their legitime, as forced heirs of their deceased grandmother.

The defense is substantially a denial of the charges propounded. It avers the validity of the transfer attacked and the fact that the deceased, Mrs. Wartelle, has died leaving no estate susceptible of any partition, save some gas stock.

The defendants, however, reconvened, claiming, in case of eviction, $13,000, for money paid, improvements, etc.

They further plead that the action is barred by prescription.

The trial lasted three weeks, resulting in ah accumulation of pleadings and evidence exemplified by a transcript of over eight hundred pages.

After a patient hearing, careful investigation and due consideration, the esteemed district judge, who has passed from among us, and whose character for integrity, industry, perspicacity, correctness and ability is indisputable, gave judgment for the defendants, resting his conclusions on elaborate reasons.

For an appreciation of the merits of the controversy, it is sufficient, nevertheless, to know that the plaintiffs complain that on the 20th of February, 1879, their grandmother, Mrs. Wartelle, made a title, which they claim is a donation, under the form of a sale, to their uncles, the defendants, to the only real estate she owned, for $5400, part cash and part on time, and that neither-the cash nor the portion on credit has been paid ; or, if any compensation was received, it was below one-fourth of the value of the property at the date of the conveyance, and that the transaction was made for the purpose of giving the defendants an undue preference, and so defraud the plaintiffs of their reserve.

The first ground of attack is that the act by which it was donated is under private signature, and thus an absolute nullity, as the law emphatically provides that an act of donation shall, under pain of nullity, be executed before a notary and two witnesses.

The act in question does not purport, on its face, to be a donation. It is, on the contrary, in appearance, au act of sale, an onerous contract. The burden was upon the plaintiffs to show that it was designed to be a disguised donation, and was not an onerous contract.

They could have had this court so to declare it only after the foundation had been laid; but as they have failed to do so, and the reverse is shown that the act was intended to operate as a sale, the solution of the question must be eliminated. 2 L. 215.

The second ground relied upon for the nullity is, that the conveyance was made without any real and valid consideration, and with the fraudulent design of depriving the forced heirs of their legitime, by a disguised donation encroaching on the same.

The plaintiffs would probably have no standing to ask the nullity, for the law declares that: any disposal of property, whether inter vivos or mortis eausa exceeding the quantum of which a person may dispose to the prejudice of the forced heirs, is not null, but only reducible to that quantum. R. C. C. 1502. But as the defendants do not appear to have made the objection, or if they have, seem to have waived it, by going into the trial on the merits, we must consider the plaintiffs, as in court-.

On this subject the law is likewise clear. Art. 2444 R. C. C., emphatically declares, that the sales of immovable property made by parents to their children, may be attacked by the forced heirs as containing a donation in disguise, if the latter can prove that no price has been paid, or that the price was below one-fourth of the value of the immovable at the time of sale.

It was incumbent on the plaintiffs to have proved, either that no price had been paid, or that the price paid, or consideration ieceived, was insufficient, being less than one-fourth of the value.

Tlie act of sale is perfect on its face. It is just and translative. It can convey property.

It describes the real estate, specifies the price in cash and on time, acknowledges payment and settlement.

It must stand for what it purports to be until it is set aside. The burden was upon those who attack to “prove ” that it was made without consideration, or for an insufficient one.

The burden was not, as is contended, on the defendants, to uphold the act assailed. The letter, spirit and construction of the, law are in that sense. Laycock vs. Thomson, 13 Ann. 173.

We find, as the disti ict judge did, that there was a. consideration, and that the property was not only not worth moro ti. an four times the price agreed to and settled, but also that the price stipulated was the actual value of the real estate at the date of sale, viz, $5400, whereof $1400 appears to have been paid, or settled for at the time of sale, and $2000 some short time before the maturity of the notes, while the remaining $2000 were considered to be satisfied by the obligation assumed by the purchasers to provide for their mother’s necessities during her life.

There is no reason to doubt that the payments and settlements acknowledged by the deceased to have been made to her, have indeed taken place ; but if there was, this would be no reason to set the conveyance aside, for it must stand until the plaintiffs show that no price was paid, or that the price paid was less than one-fowth of the actual value.

This court has no concern with what Mrs. Wartelle may have done with any money paid her, for she was the owner of it, and could have disposed of it as she might have thought proper, and there is nothing here to show that she has unduly done so.

The controversy is not on a question of lesion beyond moiety. The considerations which Mrs. Wartelle admits to have received and the obligation assumed by the defendants to provide for the wants of their mother during her life, surely constitute more than one-fourth of the value of the property at the date of sale.

The law does not favor actions of this character. It imposes on the complainants the burden of adducing convincing, if not irresistible, proof, to undo the act of their deceased parent; but it may not leave them without > ome remedy in proper cases, of undue advantage. 13 Ann. 173, 207; 15 Ann. 641; 21 Ann. 367; R. C. C. 1324, 1326.

The law of 1884 (No. 5); to which the plaintiffs refer, was passed since the occurrence of the facts involved in this controversy, and has, therefore, no bearing on them.

In the ease of Carter vs. McManus, 15 Ann. 641, which was an analogous suit, although the evidence adduced created strong suspicion, the court deeming it slight, said, Land, J:

Such evidence is too uncertain to justify the courts in taking an estate from one man and declaring it to be the property of another.”

The plaintiffs further insist that, as forced heirs, they are assimilated to creditors and entitled to ask a revocation of the sale which they allege was made for the fraudulent purpose of depriving them of their just rights to the legitime, in the succession of their grandmother.

If this were true, the pleaded prescription of one year would bar the claim, not because that time bad elapsed between the date of the sale, (February 20, 1879), and that of Mrs. Wartelle’s death, (June 14, 1883), but because that delay expired between the death and the bringing of the suit, (July 14, 1884), the time of death being fixed by law as the initial point for the computation of prescription. R. C. C. 1504, 1994, 3527.

There can be no doubt, and there is no dispute on the subject, that the shares or gas stock remains the joint property of the heirs, plaintiff and defendants, and can be sold to effect a partition among them, if they cannot be divided in kind.

It is impossible, under the averments and the proof, to say, so as to be able to describe them, as might'be necessary for a judicial advertisement, what other effects remain likewise to be divided. The district judge properly reserved tlie right of any heir to have'the stock and the other movable property, whatever it. be, sold for diviKion among them.

We find no error either in the reasons, or in the judgment complained of.

Judgment affirmed.

Rehearing refused.


author: Poché, J.

text:
    No. 9934.
    Mrs. Walter Regan vs. W. W. Washburn.
    All final judgments rendered by the Supreme Court are liable to be revised on application for a rehearing, m-'de within the delay prescribed by law.
    The rule applies to judgments malting a final disposition of applications for mandamus, certiorari and other remedial writs. State ex rel. Gerson vs. Judge, 37 Ann. 261, affirmed.
    Hence, a final judgment disposing of an application for a certiorari is not executory before the expiration of six judicial days, or before a final disposition of an application for a rehearing in the case.

      But this rule cannot be construed as an absolute prohibition on the parly in whose favor the judgment has been rendered in the Supreme Court from proceeding to an execution thereof before the expiration of legal delay.
    A premature execution of such a judgment is a moro irregularity which may be corrected by an application for reheating timely made, and which becomes valid after the expiration of the delay. And for having recourse to such mi execution the party cannot bo held responsible in damages.
    A PPEAL from the Civil District Court, for the Parish Orleans. t A. FAghtor, J.

      Franlc Miehinard d; Horace L. Dufovr, for Plaintiff and Appellant.

      Horace F. Upton, for Defendant and Appellee :
    1. This court will not i«t>ue the writs of x>robibition and certiorari to inferior judges in cases jn which they have exercised their legal authority and discretion. Previous decisions affirmed. 33 Ann. 378, 794,1284,1356. Writ of certiorari refused by this court on the ground that, under the supervisory power granted by article 90 of the Constitution, it cannot pass upon the correctness of the judgmentof an inferior court, in an unappealable case, when said judgment appears to have been legally rendered. 33 Anu. 378.
    2. Art. 911 C. P. having reference to applications for a rehearing, has been construed as not applying to the writ of certiorari issued from tbis court, under Art. 90 of the Constitution, to revise the proceedings of inferior courts in cases where no appeal lies. That article of the Code of Practice could not embrace such cases, for they were not in exist enee at the adoption of that Codo. The effect of the remedy granted in certiorari oases is the same as in habeas corpus cases. The judgment on its rendition becomes immediately executory in such eases. State ex rel. DeBuys vs. Judges Civil District Court, 32 Ann. 1263 and 1264.
    3. In an application for a writ of ccrtioraH, the record of the proceedings below makes full proof of itself, and is conclusive if not assailed and proven to oe incorrect and untrue. The unsupported affidavit of the relator, of facts and proceedings, when contradicted by counter affidavits, and negatived by the record, cannot avail the applicant. State of Louisiana ex rel. Mr. and Mrs. Walter Began vs. Judge of the First City Court of New-Orleans, 36 Ann. 977. In 18 Ann. 113, a mandamus case, the court refused to entertain an application for a rehearing, and in 21 Ann. 50, in a proceeding for a prohibition, also refused to entertain an application for a rehearing. Such was the law at the date the unit o£ certiorari was denied by this court in case just cited. State ex j el. Began vs. Judge First City Court, 36 Ann. 977.
    4. The judgment of 9> justice’s court ejecting the occupant of a house under the laws of landlord and tenant, charged to be null and void in an action of damages for wrongful ejectment, cannot be inquired into collaterally, if regular in form and valid on its face. Huygbe vs. Brinkman, 34 Ann. 831. Samo authoiity, p, 833, the comt adds : “ As the judgment under which plaintiff was expelled is ñnal and valid on its face, and as she does not claim title or ownership to the property from which she was ejected, we are at a loss to conceive upon what grounds she can recover damages in this suit.”
    5. The premature issuing of execution is a meie irregulaiity, which the defendant, may have corrected within the delay for, or after he has taken his suspensive appeal; but if he suffer the delay to expire, it does not then even give him the right to an injunction. Dayton vs. Commercial Bank of Natchez, 6 Bob. 20; Morgan vs. Whiteside, curator, 14 L. B. 280. See, also, 1 Bob. 497; Leggett vs. Potter, 9 Ann. 309; Hatch vs. English, 12 Bob. 136. The execution of a judgment is not void because issued before the delay had expired, but becomes valid by the expiration of the delay, there being no attempt on the part of the defendant to correct the irregularity. Sowle vs. Pollard, 14 Ann. 287, and authorities cited.
    6. A rehearing can he asked and allowed only where the court has erred. Bacas vs. Smith, 33 Ann. 141. Where there is no such error, the rehearing must be refused. 33 Ann. 588.
   The opiniou of the Court was delivered by

Poché, J.

This is a suit for damages for an alleged wrongful ejectment of a tenant by the owner of the premises.

It is brought by plaintiff in her own right and in behalf of her minor children, and it is based on the following facts and incidents :

Previous to his death, Walter Regan and his family occupied certain premises in this city, owned by the defendant Washburn ; and in November, 1884, lie was made a defendant in ejectment proceedings, instituted by Washburn in one of the city courts, in which judgment was rendered in favor of Washburn, ordering the ejectment of Regan from the premises.

Complaint was then made in an application for a writ of certiorari in this court, by Regan and his wife, of the irregularity and illegality of the judgment rendered against them, on the ground that the trial had taken place in their absence, and without legal notice of such trial on them.

The proceedings thus assailed were sustained by the judgment of this court, which was rendered on the 15th of December, 1884.

Now, il appears, that on the next day, Washburn proceeded to execute the judgment rendered in his favor by the city court, by ejecting Regan and his family from his premises.

This act, perpetrated before the expiration of the six judicial days allowed by law for an application for rehearing of final judgments rendered by this court, is made the basis of the damages claimed against, the defendant Washburn, in the sum of $2450.

Among other defenses, Washburn interposed an exception óf no cause of action and of res adjudícala, and the present appeal is taken from a judgment sustaining that exception and dismissing plaintiff’s action.

The issue presented to us for review involves two questions of law :

1st. Was the judgment rendered by this court in the certiorari proceedings executory before the expiration of six judicial days?

2d. Can a party be held responsible in damages for a premature execution of a judgment rendered in Ids favor?

1. Defendant’s proposition that a judgment of this court on an application for a writ of certiorari is executory on its rendition, and before the expiration of the delay within which a rehearing may be applied for iu other cases, is not sustained by our. jurisprudence as at presence established.

Two decisions of this court Which tended to favor the rule that judgments of this tribunal rendered on applications for mandamus, prohibition and, other remedial writs, were not open to further discussion by applications for rehearing have been formally overruled, as sanctioned by no law. The State vs. Judge, 18 Ann. 113; The State ex rel. Gausson vs. Judge, 21 Ann. 50.

The question came up before our immediate predecessors in the caso of the State ex rel. Newman vs. Judge, 32 Ann. 210, in which it was disposed of in the following language : “ But we do not concede that a judgment on a mandamus is such a decree as to become final on its rendition. That it is a final judgment has been determined. The mere fact that the proceeding is summary does not make the judgment iu which the proceedings culminated a summary docket.- ...

. In the absence of positivo provision of. law wo would .be without authority for treating a final judgment, rendered in a mandamus proceeding differently from other final judgments,”- - .

..-The same rules were entertained and enforced by the present bench in the case of the State ex rel. Gerson vs. Judge, 37 Ann. 261. In that case the previous adjudications, now invoked by defendant; were reviewed, and were in terms and in fact-recalled aud obliterated;. W:o therein formulated tho rule as follows :

.■ “Judgments rendered by this court on the merits of petitions for writs of mandamus, prohiblion and the like are as much final j udgments ‘as any which it can render, and are therefore revi.sable on applications for a rehearing, seasonably and properly made.” . •

Adhering to that rule, which flows from the text of the law itself (C. P., Art. Oil), we hold that the judgment rendered by this court.on December 15, 1884, iu the matter entitled “ The State ex rel. Regan vs. Judge of the First City Court of New Orleans, was not executory on its rendition, aud before the expiration of six judicial days.

2. But conceding, as the record shows, that tlie ejectment of Regan and family on the 16th of December, 1884, was a premature and irregular proceeding, is Washburn legally responsible in damages therefor?

To all practical intents and purposes the proposition of law involved in that question is precisely similar to tho discussion of the legal consequences of the premature execution of a judgment rendered by a district court.

The only impediment to tho execution of the judgment rendered by the city court in favor of Washburn, and authorizing the ejectment of Regan and his wife from the former’s premises, was tho preliminary writ of certiorari emanating from this court. That impediment was removed by our final judgment, which did away with the effect of the writ. Hence, the judgment complained of revived in all its legal bearings and effects, except in so far as its executory condition depended upon the delay within which our own judgment could havo been revised on an application for rehearing.

This is exactly the Condition with all appealable judgments rendered by district courts, under the provisions of article 624 of tho Code of Practice, which in terms, restricts the right of execution of such judgments within a delay of ten days from tho rendition of tho judgment or from notification thereof on the party cast.

In the latter case, by an appeal taken within tho prescribed delay by the party cast, the execution of the judgment is suspended until the final determination of the cause.

■ Iu the case of a final judgment rendered by this court, tho party cast may suspend or retard tho effect of our decree by an application for a rehearing seasonably-made, until the final disposition of his application.

But in both cases the evident object, of the law is tho same ; it is to secure to the party cast a delay within which ho may call for a review or a revisal of tho judgment or of the decree rendored against him.

But nothing in either provision of the law can bo construed as an absolute prohibition against the right of tho party, in whose favor tho judgment in either case has been rendered, to take the risk of a premature execution of his judgment.

Iu reference to judgments rendered by district courts our jurisprudence has settled the rule adversely to such a prohibition, and legal effect has uniformly been given to the execution of judgments pending the delays within which a suspensive appeal could havo been taken therefrom, and when no such appeal had been taken.

From numerous adjudications on this subject we cull the following rule:

The object of article 624 C. P. * * is to protect defendant’s right to a suspensive appeal by granting him a certain delay, the right to which being in his interest, and not affecting public order, he may waive. C. P. 567.

If execution issue prematurely, it is a mere irregularity to bo corrected within the delay for a suspensive appeal or after it is taken, but insufficient, if not so corrected, to authorize an injunction, or impair the execution which becopres valid after the expiration of the delay.” LeBarre vs. Dunbar, 10 Martin 182; Morgan vs. Whiteside’s curator, 14 La. R. 280; Hatch vs. City Bank, 1 Rob. 497; Hatch et al. vs. English, et al., 12 Rob. 136; Leggett vs. Potter, 9 Ann. 309; Sowle vs. Powell, 14 Ann. 287.

Applying the rule to the case in hand, we find from the record, that no attempt or. effort was made by Regan and wife to obtain a revisal of our decree which set the judgment of the city court in motion, and hence the conclusion is not only warranted, but it is inevitable that the execution of the judgment by Washburn, although premature and irregular, became valid after the expiration of the delay within which our judgment could have been revised on an application for rehearing seasonably made. It thus follows that the irregularity of the execution of the judgment was cured by the silence and want of action of the parties cast therein, and no damages can flow from a valid execution of a final judgment. • , • .....

It is true that the reported cases in which, the rule, has been uniformly enforced presented moneyed judgments, but surely, the right of the owner of an immovable to recover possession of premises illegally occupied by a recalcitrant tenant is not less entitled to the protection of the law than the right of a creditor to judicially recover money which is due to him.

These considerations lead to the conclusion 'that, the district judge committed no error in sustaining the exception ol no cause of action.

Judgment affirmed.