text:
    No. 11,639.
    State vs. Ernest Beck.
    The word feloniously following the word wilfully in an indictment under Sec. 792, Revised Statutes, is surplusage and meaningless. The judge, therefore, is not required to charge the jury as to its meaning.
    Where evidence as to the overt act is contradictory, and the preponderance of evidence is against it, the trial judge is necessarily clothed with authority to decide whether it has been proved in order to lay the foundation for the introduction of evidence as to character.
    A PPEAL from the Fifth Judicial District Court, Parish of ,Ouachita. Potts, J.

      M. J. Cunningham, Attorney General, and J. P. Madison, District Attorney, for Plaintiff and Appellee.

      Gunby & Sholars for Defendant and Appéllant.
   The opinion of the court was delivered by

McEnbry, J.

The defendant was convicted under Sec. 792, Revised Statutes, for wilfully shooting at one Lee Tillman.

The indictment charges that the defendant did then wilfully and feloniously assault one Lee Tillman by then and there wilfully and feloniously shooting at the said Lee Tillman.”

After the trial judge had fully charged as to the statutory offence, defendant’s counsel requested him to define what was meant, by “feloniously,” as used in the indictment. The trial judge declined to do so. His ruling was correct.

The offence is charged fully by the use of the word “wilfully.,” The word “feloniously” employed in the indictment was unnecessary and without meaning.

There was then no reason why the trial judge should explain its meaning to the jury. State vs. Watson, 41 An. 599.

Counsel for defendant offered to prove the character of Tillman to show that he was a dangerous man, and had a bad reputation for peace and quiet.

Prom the statement of the trial judge, appended to the bill of exception, it appears that there was no hostile demonstration made by the person assaulted against defendant.

There is a variance as to the facts between counsel and judge. Under the repeated rulings of this court we accept the statement of the latter.

It is as follows: “The testimony ¡of the five witnesses — Lee Tillman, Stephen Thomas, Wm. Sampson, Robert Webster and Marion ’Boley — who were present, and all who saw the shooting, showed that there were harsh words used and angry feelings generated between Lee Tillman and Ernest Beck about 10 o’clock A. m., before the shooting, which occurred about 12 or 1 o’clock. At the dinner recess at the saw-mill,, where they were working, the defendant went home, armed himself with a pistol and returned. Tillman, with the five witnesses, was sitting where they had eaten dinner. He had in his hands a pocket knife, with which he had eaten, and was at the time whittling upon a stick. Ernest Beck approached about twenty-five feet and called Tillman, sayiug he wished to see him. Tillman refused to go. A second time he was called upon and refused to come. Some mutual bantering then took place, in which Tillman stated, ‘ If you don’t go off I will come, and when I come I will cover you.’ Tillman did not start toward Beck at.that time, but sat still and cursed him. Beck then drew his pistol from his bosom, and as Tillman arose from, or as the witnesses expressed it, ‘ slid down from his seat,’ Beck hollowed to the crowd to get out of the way, and fired. Tillman ran from Beck, and when about twelve or fifteen feet from where he was sitting, Beck fired again at Tillman while running.

“ It is true that the defendant himself testified as stated in his bill,, but is contradicted by all other witnesses who were present.”

The trial judge evidently believed all the witnesses rather than the sole testimony of defendant. In such a case he is necessarily clothed with the authority to decide whether a proper foundation had been laid for the introduction of evidence as to character. State of Louisiana vs. Ford, 37 An. 443; State of Louisiana vs. Harris, 45 An. 843; State vs. Green, infra.

From the statement of the trial judge it appears that the defendant was the aggressor.

Judgment affirmed.


source: Caselaw Access Project

author: McEnerv, J.

license: Public Domain

text:
    No. 11,603.
    State ex rel. Vietor & Acheles et als. vs. Hon. Fred. D. King, Judge Civil District Court, Parish of Orleans, Division "B."
    It is too late to intervene in attachment proceedings to obtain a reversal o£ an interlocutory order for the preservation of the property after the order has been granted and the conservatory process fully complied with.
    y^PPLICATION for a Writ of Mandamus.

      Dinkelspiel & Hart, Joseph N. Wolfson and Lazarus, Moore & Luee for Relators.

      H. Howard MeCaleb for Respondent.
   The opinion of the court was delivered by

McEnerv, J.

The relators allege that they are creditors of Karl Kuhn and had instituted suit against him by attachment; that when their suits were instituted the property was under seizure at the suit of the Peoples Bank, also under attachment procedings; that on October 22,1894, the Hon. F. D. King, judge Division 44 B,” Civil District Court, parish of Orleans, on the application of the Peoples Bank, issued an order to sell the property attached as perishable; that the defendant was absent and unrepresented on the trial of the rule, the judgment in which was to sell the property after five days’ advertisement; that all the attachment suits are pending and undetermined; that the rule and the judgment rendered thereon were improvident, because there was no power in the court to order a sale of said property in advance of judgment unless the goods were perishable, which petitioner alleges are not; that the court was without authority to order the sale after five days’ advertisement, and without notice to relators.

They applied for a suspensive appeal from the judgment on the rule, which was denied. They pray for relief by mandamus proceeding.

The return of the respondent judge shows that the rule was granted on the application of the Peoples Bank, and served on defendant, who made no appearance; that after hearing evidence he granted the order for the property to be sold after due appraisement and ñve days’ advertisement: that the relators have not made themselves parties to the suit between the Peoples Bank and Karl Kuhn by intervention or otherwise, so as to set up any adverse interest to the plaintiff thereon, nor have they alleged and proved in the lower court that they are aggrieved by said order of sale, and are therefore incompetent to appeal from the said interlocutory order; that the plaintiff prosecuting said suit, the Peoples Bank of New Orleans, has not been made a party to these proceedings as required by Art. 846 of the Code of Practice, and before the order granted herein was signed, issued or served, the said property had already been sold, disposed of and delivered by the sheriff to the purchasers.

We have omitted a part of the respondent judge’s statement in his answer, which alone would be sufficient to deny the relief prayed for, but the attorneys for relator state the rule of court to be, or rather as they allege the custom to be, not to file motions until granted by the judge. As we are not in possession of the rule or the evidence of the custom, we will say nothing about this part of the respondent’s answer.

Article 261, Code of Practice, provides for the sale of perishable property on the application of the plaintiff after the usual advertisement.

The relators deny that any evidence was offered as to the perishable nature of the property, and the attorney for the respondent asserts with equal emphasis that this is a reckless statement. Be this as it may, the respondent judge states that the rule was regularly tried, and we will presume he had ample authority upon which to base his interlocutory order.

The advertisement may not have been of sufficient duration, but of this defect only the defendant in attachment could urge, as the suits of relators were filed after the order to sell was granted, the property sold and the vendees placed in possession. It is too late to intervene in attachment proceedings to obtain a reversal of interlocutory orders for the preservation of the property, after the order has been granted and the conservatory proceedings fully complied with.

The relators are most assuredly without interest to appeal from said order, decreeing the property to be sold because of its perishable nature.

The relief prayed for is denied at relator’s costs.


author: McEnery, J.

text:
    No. 11,515.
    Succession of Jacques Saux.
    The nuncupative testament by public act must make authentic proof of its execution in accordance with Art. 1578, Civil Code, and Art. 1579, when the testator is incapable of signing his name.
    The notary must expressly mention that the will was dictated by the testator and written by the notary as dictated, and the reading of the will to the testator in presence of the witnesses.
    No express mention is required of the signing of the will, except in the contingency provided for in Art. 1579, Civil Code. It is essential to the validity of the nuncupative will by public act that the formalities of dictation, and reading the will in presence of the witnesses and testator be expressly mentioned in the body thereof, and all fulfilled at one time, without interruption or turning aside to any other act; but it is not imperative that the notary shall declare in the will that the formalities were done at one time and without interruption. If he fails' to declare this essential requisite to its validity, the party attacking the will must show the interruption.
    In receiving the will as dictated by the testator, the notary may interrogate him as to his exact meaning, provided no suggestions are made which result in changing the intentions of the testator.
    Where an uneducated person dictates his will in the idiom peculiar to the uneducated, it is no ground for nullity that the notary writes the will in polite language, provided the exact meaning of the testator is preserved.
    A PPEAL from the Civil District Court, Parish of Orleans. Theard, J.

      Albert Voorhies for Plaintiff and Appellant.

      Chas. Louque and Frank MeGloin for Defendant and Appellee.
   The opinion of the court was delivered by

McEnery, J.

Jacques Saux, the deceased, executed the following open or nuncupative will by public act:

“In the city of New Orleans, in the State of Louisiana. On this 20th day of the month of January, 1893, I the undersigned, George Magner Barnett, notary public, duly commissioned and sworn, in and for the city and parish of Orleans therein residing, and in presence of the witnesses hereinafter named and undersigned, at the request of Mr. Jacques Saux, I attended him at his domicile, situated at the corner of Salcedo and St. Ann, Second District of this city, where I found the said Jacques Saux unwell, in the front chamber of said domicile, sick in body, but well in mind, in memory and in will as he appeared to me notary, and to the hereinafter named and undersigned witnesses; and the said Jacques Saux requested me to receive his last will and testament, which I, notary, have written with my own hand, word by word and as he dictated it to me in presence of Messrs. Alexander Bordes, Michel Montant and Paul Bezot, domiciled in this city and called as witnesses to the present testament of the following tenor:
“ I declare that I am named Jacques Saux, and that I am about forty-nine years of age. I declare that I am married to Justine Auguste, of which marriage there is no issue. I declare that both my father and mother are dead.
“I give and bequeath to my said wife, Justine Auguste, all my goods, movables and immovables, which I may leave at the time of my death, and I name as my testamentary executor my said wife, Justine Auguste, to whom I give all the necessary powers to carry into execution the testament. I revoke all testaments or codicils which I have made before this, which alone I declare to contain my last wishes.
“ It is thus that this testament has been dictated to me by the said testator in presence of the said witnesses, and I have written it as it has been dictated to me by the said testator, in their presence and this at once, without interruption and without turning aside for other acts, and the undersigned notary having read the said testament to the said testator in the presence of the said witnesses in a loud and intelligible voice, he has declared in their presence that he has heard it well, that he understands it well and that he therein finds well expressed his last wishes in which he persists.
“This done and passed at the domicile aforesaid, the day, month and year as above, in presence of the witnesses above named, who have signed with said testator and me, notary, after reading same.”

(Signatures)

The will was dictated in French and the above is a translation of the same.

It is attacked by a sister of the deceased on the following grounds:

First. It does not state that the testator signed in the presence of witnesses; nor, secondly, that the witnesses signed in the presence of the testator; nor, thirdly, that testator and witnesses signed in the presence of the notary; nor, fourthly, does it contain express mention that all the formalities, including the reading of the will and the signing by the testator, witnesses and notary, were fulfilled at one time without interruption and without turning aside to other acts.

It is further assailed on two other grounds, dehors the instrument itself: first, that it was not dictated, as a matter of fact; and, second, that it was the result of pressure, duress and intimidation.

There was judgment rejecting the demand of plaintiff at her costs, from which she appealed.

Article 1578 of the Oivil Oode requires the nuncupative testament by public act to be received by a notary public in the presence of three witnesses residing in the place where the will is executed, or of five witnesses not residing in the place.

This testament must be dictated by the testator and written by the notary as dictated.

It must then be read to the testator in presence of the witnesses.

Express mention is made of the whole, observing that all these formalities must be fulfilled at one time without interruption and without turning aside to other acts.

It is well settled that the nuncupative will by public act must make full proof of itself, and must bear upon its face the evidence that all the formalities required by law for its validity have been complied with. These .formalities, if not apparent on the face of the will, can not be supplied by evidence aliunde. Succession of Clement Wilkin, 21 An. 115.

The above will on its face shows that all the formalities required by Art. 1578, Oivil Oode, have been complied with. It shows that the will was dictated by the testator and written by the notary as it was dictated; that it was read to the testator in presence of the witnesses.

These are the material facts of which express mention must be made. There is nothing said in the article about signing, of which express mention should be made. If the will, therefore, has been improperly signed, it is upon plaintiff to show it. But the will on its face discloses the fact that it was signed by the testator, the witnesses and the notary at the same time, and in the presence of each other. No more explicit language could be used than that employed by the notary when he closed the will by stating that the witnesses “ signed with said testator and me, notary.”

It is contended by plaintiff that the word “ received,” employed in the article, means that the notary must, in the presence of the requisite number of witnesses, complete the entire testament, including the signing by testator, notary and witnesses. But in the case of Langley’s Heirs vs. Langley’s Executors, 12 La. 114, to which plaintiff refers, the Supreme Court said that the word meant the dictation of the will in the presence of the witnesses, and the reading of the same to the testator and the witnesses in the presence of each other.

In Keller and others vs. McCalop and another, 12 Rob. 639, it is decided that the express mention referred to in Art. 1578, Civil Code, refers to the preceding formalities, which are the dictation of the will in the presence of the required number of witnesses and the reading of the same to the testator in the presence of the witnesses. And as this case bears a strong resemblance to that, we will use the language of the opinion as applicable to this. “It results from the whole context of the instrument that it was executed in the only way it was physically possible it could be done in relation to the time at which the several things necessary to its completion were performed — id est, that it was first dictated, then written, afterward read, and finally signed.”

The Art. 1578 of the Civil Code requires all the formalities herein referred to should appear upon the face of the will, and that they should be fulfilled without interruption and without turning aside to any other act.

But the direction that they should be fulfilled at one time and without turning aside to any other act need not be expressed in the will. If this requirement has been neglected it is upon plaintiff to Show it. This has been the settled jurisprudence since the ease of Featherstone vs. Robinson, 7 La. 599. It was affirmed in Keller and others vs. McCalop. and another, 12 Rob. 639; the cases cited, and in the late case of Succession of Murray, 41 An. 1109.

In the last case cited we said: “The final charge is that all the legal requisites were not done at one time and without turning aside to other acts. It is a sacramental requirement of the notary that he shall make ‘ express mention of the whole,’ but not that he shall declare that all these formalities had been fulfilled at one time and without turning aside to other acts.” R. C. C. 1578. His failure to make such a declaration in the will is not a ground of nullity. 7 La. 599; 12 R. 639. That article only refers to the formalities therein mentioned. All of these formalities seemed to have been fulfilled at one and the same time, and the act furnishes no proof that he turned aside to other acts. There is no evidence of his having prepared any other act. So, in this case all the formalities required by Art. 1578 of the Code appear from the face of the will to have been performed at one time without turning aside to other acts, and there is no evidence to the contrary. Express mention is made of all the formalities required by the article, bub the notary omits to positively state that the reading of the will to the testator and the witnesses was without interruption, although a reasonable interpretation of his language leaves this impression.

The cases referred to by plaintiff do not conflict with the views herein expressed. The doctrine announced in them is that the will by public act must make full proof of itself in showing that all the formalities necessary to give it validity must appear upon its face, and express mention must be made of the formalities required by Art. 1578 of the Code. Not one of them pronounces the will a nullity because the notary has failed to declare that he had fulfilled these requirements without turning aside to other acts.

This last requirement is essential to the validity of the will, but its non-fulfilment must be shown by the party attacking the will. Keller vs. McCalop, 12 Rob. 639.

The testimony does not show that there was any coercion used to force the testator to make his will. On this point there is a total failure of proof.

The pleadings admit that the will shows that it was dictated by the testator and written as dictated by the notary, but.it is urged that the language employed by the notary was not that of the testator. The testimony attempts to show that the testator was not an educated Frenchman and did not speak the language in its purity. Also that the notary interrogated the testator. The testimony shows that the testator spoke French sufficiently well to be clearly understood. If the notary took down his exact meaning and clothed it in more elegant language than that used by the testator, it is certainly no grounds for avoiding the will.

There could be but trifling variation in the words used, and no perversion of the meaning of the testator. Hamilton vs. Hamilton, 6 N. S. 146.

The inquiries made by the notary were not suggestive of any disposition by the testator, but had reference only to get at his exact meaning, and when ascertained the language was taken down in the meaning of the testator, but in good French. The inquiries were-not calculated to alter or change the intentions of the testator, and therefore are not sufficient to invalidate the will. Starrs vs. Mason, 32 An. 8.

Judgment affirmed.


author: MoEnery, J.

text:
    No. 11,519.
    John Henry vs. His Creditors.
    The ten days allowed by law for the filing of opposition to the appointment of a syndic begin to run from the day on which the proceedings had before the notary are closed.
    The insolvent for illegal votes cast affecting his discharge must file an opposition within the prescribed ten days.
    APPEAL from the Civil District Court, Parish of Orleans. Theard, J.

      Rice & Armstrong for Roberts, Exceptor and Appellee.

      Joseph MaiUe and Louis P. Paquet for John Henry and Bernhard Meyer, Opponents and Appellants.
   The opinion of the court was delivered by

MoEnery, J.

John Henry made a cession of his property on December 27, 1893. The meeting of creditors convened on the 17th January, and closed on the 29th of the same month. A syndic was elected at this meeting of the creditors.

The notary failed to file the proces verbal of the creditors’ meeting as required by law. He was forced to do so by the syndic.

It was filed on February 7th, and on the 10th February, Bernhard Meyer, elaimingto have been elected syndic, and John Henry the insolvent, claiming to have been discharged, filed opposition — the former, in so far as they appear to elect said Willard Boberts as syndic, to annul the order granted to Boberts, and to appoint him, said Meyer, without bond, as mentioned in the prooes verbal; the latter, the insolvent, that certain votes be annulled and stricken from the record.

There is nothing on the face of the record that suggests the absolute nullity of the proceedings before the notary, which would authorize an attack upon it at any time.

The ten days allowed by law for filing oppositions to the appointment of a syndic commence to run from the closing of the meeting of creditors. Dreaux vs. Creditors, 2 N. S. 57; Goodale vs. Creditors, 8 La. 128; Guerin vs. Creditors, 2 La. 358; Spears vs. Creditors, 40 An. 652; Harrison & Bro. vs. Creditors, 42 An. 1055; Bonner vs. Beard, 43 An. 1139; Revised Statutes, Sec. 1802.

The fact that the notary failed to file t the prooes verbal in court does not dispense with the filing of the opposition within the time prescribed by law. The insolvent proceedings are before the court, and there is no reason why the opposition can nob be presented before the prooes verbal is filed. Sec. 1802, Bevised Statutes. Besides it was within the power of the opponent to have compelled the notary to have filed the proees verbal immediately after the closing of the meeting of creditors.

It is contended that the insolvent can file an opposition showing votes illegally cast to his injury. There is no reason why he should ■not be required to file his opposition within the prescribed time. If the votes cast against him are illegal, their illegality must be shown prior to the judgment of homologation. This judgment closes all Objections to the meeting of creditors, and it is evident therefore that he must, like other creditors, file his objections within the prescribed ten days from the final closing of the meeting of creditors.

Judgment affirmed.


author: Breaux, J.

text:
    No. 11,516.
    P. J. Conway vs. New Orleans & Carrollton Railroad Company.
    Ihaintiff’s wife was not at fault in leaving the oar.
    The evidence proves that she was injured by the negligence of defendant’s employe.

      The conductor put the car in motion before the passenger had time to step off, and as a consequence she was thrown, from the step, fell to the ground and was injured; it is negligence for which the defendant company is liable for damages.
    Inability by the principal arises when the servant is acting within the scope of his-employment.
    Plaintiff is entitled to compensatory damages.
    APPEAL from the Civil District Court, Parish of Orleans. Ellis, J.

      Morris Maries and A. H. Leonard for Plaintiff and Appellee.

      John M. Bonner for Defendant and Appellant.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff sued to recover damages sustained by his-wife in a fall from one of defendant’s street cars.

About 6:30 p. M. in the evening of March 20, 1893, she, with her daughter, on their way to her residence, notified the conductor that they wished to leave the car at Third street.

He alleges that the conductor failed to stop at Third, and that she was carried to Burthe street, where the car was stopped that they might leave; that immediately she proceeded to leave and was on the step in the act of getting off, when suddenly and without warning the car was put in motion, and, as a consequence, she was thrown from the step and fell violently to the ground; that she sustained severe injury, which caused pain, suffering and permanent physical disability.

The answer is a general denial.

The case was tried before a jury and a verdict for $1000 was rendered against the defendant. From a final judgment entered upon the verdict, the defendant appeals.

The facts are substantially as follows:

That the car stopped, as alleged, at Burthe instead of Third street, and that plaintiff’s wife was thrown to the ground from the steps while attempting to step down; that her daughter was standing on the platform and saw her mother fall; that she said to the conductor that in the stops he should allow the passengers time to alight; that the car was put in motion without having given these passengers ■time to step’ out and ’leave without injury.-

To this point of the ease the testimony of plaintiff’s witnesses is uncontradicted.

The defendant introduced a witness who testified that no woman fell from the car on the day alleged while he was conductor. He left the car at 6 o’clock, prior to the accident. The conductor who succeeded him in runningthe car was not introduced as a witness.

We therefore have before us, in so far as relates to the fall, only the testimony of plaintiff’s witness.

The attending physician testifies that she called at his office in a suffering condition; that her right hip was severely bruised, and she, in consequence, had high fever and suffered other ills; that he treated her more than three weeks, and that during several months she was unable to work. Most of the time, while under treatment, she was confined to her bed.

That she suffered no permanent injury.

As to the cause of one of her ills the testimony of her physician is contradicted by another physician called in by the defendant as an expert, who did not find any possible connection between that ill and the bruises as described.

BILL OK EXCEPTIONS.

To the ruling of the lower court, permitting evidence as to the number and age of plaintiff’s children to go to the jury, the defendant reserved a bill of exceptions on the ground of irrelevancy.

As partner in community the husband sued for damages in the loss of the services of his,wife to himself and their children. The number of plaintiff’s children may be the cause of more seriously feeling the loss, and in consequence it is admissible in evidence in assessing the quantum of damages.

In any view of the question, it is not of sufficient importance, and has not such bearing upon the issues, as to justify the court to remand the case. Interest repúblicas ut sit finis litium.

On the Merits.

That the plaintiff has a just claim on the defendant company for some damages, is made evident by the unrebutted testimony of the witnesses.

The bruises received by his wife from the fall may not have been as severe as represented; but they, it is proven, were quite painful and forced her to seek medical treatment and remain confined to her bed.

The negligence charged possibly was not as gross as is contended by the plaintiff; the facts remain proven that the cars hastily moved without giving plaintiff’s wife time to step down from the steps, and that she was violently thrown down by the sudden and unexpected movement.

There was no fault shown on the part of the plaintiff’s wife in getting off at the street named.

It was for her to determine at which stop of the car to alight, and for the conductor to offer ample time to leave with safety. There is no testimony whatever before us toward justifying the employés of the defendant’s company. These passengers must have been seen by them, as they were both moving to get off in their presence while the car was stopped.

We do not overlook the fact that, in justice to their fellow passengers who have not arrived at their destination, those leaving should not take up too much time.

There is no complaint on that score made against plaintiff’s wife and her daughter.

The community clamor for rapid transit and corporations generally comply with the public demand in this respect. To this there can be no serious objection as long as the service is safe.

But in all cases, even at the expense of speed, women and children, at any rate, should be given time to alight and not be exposed to accidents.

With reference to the damages, we do not agree with the verdict of the jury as to the amount.

The negligence for which the company is liable is not gross and malicious.

It is nevertheless liable for compensatory damages. In answer to the proposition by counsel that a corporation can not be mulcted in damages for the wilful wrongs of its servants and their illegal and oppressive conduct, we quote from Denver & Rio Grande Railway vs. Harris, 122 U. S. 597: “A corporation is liable civiliter for torts committed by its servants,” though it did not authorize the act, if within the scope of the servant’s employment.

Under the circumstances, the amount is fixed at five hundred dollars, for which amount we find ample support in our jurisprudence. The damages allowed are compensatory.

It is therefore ordered that the judgment appealed from be amended by reducing the amount to five hundred dollars, with legal interest from date of the judgment of the District Court, and that as amended the same be affirmed, appellee paying the costs of appeal.


text:
    No. 11,609.
    State of Louisiana vs. Gus. Smith.
    The charge defined forgery and instructed the jury that to find the accused guiity they ought to infer an intent to defraud the person whose signature was forged.
    The judge did not err in refusing to charge as requested. There was substantially no difference between the charge as given and the instruction requested by the accused.
    The receipt alleged to have been forged was in due form, and, if genuine, would have been proof in court of payment.
    It was the subject of forgery.
    A motion for a new trial should be made before sentence.
    The accused had requested the court to pass sentence.
    PPEAL from the Fifth District Court, Parish of Ouachita. Potts, J.

      M. J. Cunningham, Attorney General, for Plaintiff and Appellee.

      Gunby & Sholars for Defendant and Appellant.
   The opinion of the court was delivered by

Breaux, J.

The accused, charged with forgery and sentenced to two years’ imprisonment in the State penitentiary, complains that the judge refused to instruct the jury, as follows:

First. The mere false making, without an interest to defraud some one, does not constitute the crime of forgery.

Second. The intent to defraud is the very essence of the offence.

Third. To constitute forgery the instrument when forged must be such as would tend to prejudice the rights of another, and such in law as would be available to work the intended fraud or injury, the distinguishing characteristic being the crafty fraud and deceit whereby it is intended to injure some one.

He complains also that the court erred in refusing to permit the filing of a motion for a new trial. 1

The verdict of the jury had been rendered.

His counsel had the accused brought into court and sentenced.

Afterward the accused made affidavit and motion for a new trial and offered the motion for filing. To the court’s refusal a bill of exi ceptions was reserved.

The indictment charges that the defendant feloniously forged a certain receipt for two dollars with intent to defraud, and especially to defraud S. Dickerson and Linton Carney. Said receipt represents that the accused had paid the amount of money to Dickerson for account of Carney, the accused Smith having feloniously and fraudulently signed the name of Dickerson to the receipt.

In the bill of exceptions reserved to the court’s refusal to charge as requested, the trial judge inserted the statement that the charges had substantially been given.

He adds that he, nevertheless, proceeded to give to the jury the first and second charges asked in substantially the same words as those asked and embraced in the bill of exceptions, but that he stated to defendant’s counsel that as to the third, he thought the correct doctrine was embraced in the decision in the State vs. Den-nett, 19 An. 395, which had already been read by the court to the jury as a correct exposition of the law, and refused to charge as asked by counsel. ,

The judge says that he had substantially given the charge requested.

The defendant did not request a written charge.

Under well settled jurisprudence the judge’s statement of the facts, in the absence of all evidence to the contrary, must be considered as true.

This completely disposes of charges Nos. 1 and 2, given by the court without any modification.

As to the third charge, it seems from the judge’s subsequent state ment, incorporated in the bill of exceptions, that he withheld at least a part of it from the jury and relied in lieu on the doctrine embraced in the case cited ubi supra as being a correct exposition of the law1.

In that case (State vs. Dennett, 19 An. 395) the court refused to charge the jury that “the State must show that the check charged to have been forged by the prisoner and the signature thereto affixed sufficiently resembled the genuine check and signature of the drawer to deceive persons of ordinary business observation, or it was not forgery.” (The ruling was sustained on appeal.)

The court said in that case: “ That a jury ought to infer an intent to defraud the person who would have to pay the instrument if it were genuine, although from the manner of executing the forgery, or from that person’s ordinary caution, it would not be likely to impose on him.”

And lastly, it is announced in the case in question that, if there be at any time any possibility of fraud, it is enough to constitute the offence.

The first part of the requested charge reads: “To constitute forgery, the instrument when forged must be such as would tend to-prejudice the right of another.”

The equivalent doctrine from the decision in question was charged, “that a jury ought to infer an intent to defraud the person who would have to pay the instrument.”

In the case at bar it was not a check that was forged, but a receipt which ordinarily speaking could be used in evidence for the defence in a suit brought by the person whose name was forged. Wharton, 9th Ed., Vol. 1, p. 692.

In the language of the decision, the jury were instructed that they “ ought to infer an intent to defraud the person who would have to pay the instrument,” i. e., in the case under consideration, to defraud the person in whose name the forged receipt was made.

The remainder of the requested charge reads:

“And such in law as wonld be available to work the intended fraud or injury, the distinguishing characteristic being the crafty fraud and deceit whereby it is intended to injure some one.”

The utterances in State vs. Dennett, 19 An. 395, are not absolutely similar to the requested charge. They have application to the case and sufficiently instructed the jury.

• There is no essential difference requiringthat the verdict be annulled and the case remanded for another trial.

Taking the charge as a whole all the elements constituting the crime of forgery as applying to a forged receipt were explained to the jury.

The counsel for the defendant argue another principle of law — i. e., that the receipt forged could be of no legal efficacy if it were a genuine instrument.

The defendant delivered the receipt for a stated amount in currency and with this receipt attempted to satisfy a debt of his by committing the forgery alleged.

Had his act been legitimate and not fraudulent, the collection would have been made and the receipt would have evidenced a legal payment. The receipt would have had legal efficacy. Making the receipt and signing to it the signature of the creditor, and delivering it to the debtor, and at the same time stating to the debtor that he had procured the receipt by paying the creditor and thereby seeking to obtain release from the payment of his own debt, was intended to have legal efficacy, and would have had that efficacy if it had not been forged.

The defendant also complains of the court’s refusal to permit the filing of a motion for a new trial.

The records disclose that the motion was made after the sentence had been pronounced.

There is nothing in the affidavit of the accused for a new trial showing that he did not have time to prepare his motion for a new trial. Such a motion should be made before sentence and not after sentence.

There is nothing taking this case out of the ordinary rule requiring that motions for new trial be filed and decided prior to sentence. The State of Louisiana vs. Eugene Offutt, 38 An. 364.

It is therefore ordered that the sentence and judgment of the court a qua be affirmed.


text:
    No. 11,588.
    State of Louisiana vs. Rodolph Dubuclet.
    The State moved for a change of venue.
    The motion was filed and taken under advisement.
    The minutes show that the prisoner was present.
    The motion was not served and no action was taken upon it by the accused or his counsel.'
    On the day following the motion was granted.
    The minutes do not show that the accused was present.
    Although for the purpose of the decision on the motion, his presence was not necessary to establish that he had consented to the change of venue by his silence or by not taking a bill of exceptions at the time to the ruling of the court.
    There was no contradictory hearing on the application to remove the cause.

      The signature of the accused, to the bond to obtain his release is not a waiver of notice of the motion filed for a change of venue nor can it have the effect of a consent to the granting of the motion without evidence and contradictory hearing.
    Xt is not a case of insufficiency of notice of the ,motion for a new trial and insufficiency of evidence on the trial of the motion, but of absolute want of either, and of the absence of contradictory hearing and all note of evidence.
    APPEAL from the Fourteenth District Court, Parish of West Baton Rouge. Talbot, J.

      M. J. Cunningham, Attorney General, and Alexander Hebert, District Attorney, for Plaintiff and Appellee.

      Talbot & Hebert and Yoist & Glaiborne for Defendant and Appellant cite 70 111. 171; Wharton, Or. Pr. 602; 37 An. 443; Wharton, Or. Ev. 458, 459; 2 An. 921; 15 111. 515; 12 Kan. 622; Bishop, Or. Pr. 71.
   The opinion of the court was delivered by

Breaux, J.

The defendant was indicted for murder.

He was found guilty of manslaughter.

He appeals from the sentence and judgment condemning him to serve ten years at hard labor in the State penitentiary.

He was indicted in the parish of Iberville, in which parish, the jury having twice failed to agree, two mistrials were entered.

On the 24th of October, 1894, the accused was in court when the District Attorney filed a motion for a change of venue; no grounds were assigned; it was taken under advisement by the court.

On the morning following it was sustained, and the court issued an order permitting the accused to furnish bond for his appearance before the District Court for the parish of West Baton Rouge.

His bond was forfeited in that parish and his sureties paid the amount of the judgment.

In March, 1894, the case having been called for trial, the defendant through counsel interposed an exception on the ground that the change of venue was granted on the mere motion of the District Attorney.

The court in overruling the exception gave as reason, that the question of change of venue had been determined and no bill of exception was reserved on the ground of insufficiency of evidence or irregularity of the proeedings, and that it was therefore too late to reopen issues previously decided.

After this exception had been overruled an exception ■ was filed to the jurisdiction of the court on the grounds that the accused was not present in court when the order for a change of venue from the parish of Iberville to that of West Baton Rouge was granted.

The court overruled this exception also, and gave for reason that the minutes of the court show that the accused was present when the motion for a change of venue was taken up, and that his presence was not necessary when the court granted the order.

The defendant was again placed on his trial. The jury having failed to agree, another mistrial was entered.

In September, 1894, he was tried for the fourth time and at this last trial he was convicted.

■ Motions for new trial and in arrest of judgment were filed on the part of the defendant and overruled by the court.

WAIVER OR ACQUIESCENCE.

One of the positions on the part of the State is that the accused has acquiesced in the proceeding by not taking a bill of exception. There are many irregularities which the defendant may cure by consent.

. An accused may, it seems, waive many of his rights. He is bound by his acts of omission to plead or reserve his legal rights. In judicial proceedings the doctrine of waiver and acquiescence is a necessity.

It devolves upon us to determine whether there was acquiescence in this case.

It is only on the principle of acquiescence or waiver that the order ■granting the change of venue can be sustained.

As an original proposition it is settled. In Brouillette vs. Judge, 45 An. 243, this court held that an order granted on the simple motion and affidavit of the District Attorney without evidence adduced in support of it, and without opportunity offered to defendants to adduce evidence, is irregular, null and void;” and further, “ the nature of the proceedings contemplated clearly involving a contradictory hearing.”

In the case at bar there was not a contradictory hearing unless the presence of the accused on the day that the motion was filed and taken under advisement gives it that character.

: With reference to notice and contradictory hearing, the State and the accused should be governed by the same rule. Any notice not sufficient to bind the District Attorney as the law officer of the State in criminal prosecutions would be equally as insufficient to bind an accused in a similar ease.

, In State vs. Peterson, 2 An. 921, under laws relative to a change of venue similar to these now in force, the defendant made a written application for a change of venue on the ground of prejudice in the public mind and supported the application with the required affidavit. The application was notified to the District Attorney, and on the same day filed by the clerk.

.• It was contended that the District Attorney, by permitting the application to be filed, waived his right to oppose it.

. The practice of the English courts,” said this court, appears to be, after application and oath have been made, to move the court for a rule to show cause why the suggestion of partiality should not be entered on the record as unopposed, in order to have a trial in the adjoining courts. When the rule is made absolute, a suggestion, Which is the order of the court for the change of venue, is entered on the record, and this order is not tra\ ersable. But this entry is only made upon cause being shown that it is necessary, and upon reasonable notice to the opposite party.”

After having cited 1 Ohitty Oriminal Pleadings, the court adds: i‘The assent of the District Attorney to the necessity of a change of venue and an order of the court .granting it are not to be presumed from the mere fact of permitting application in writing to be filed.” When, as in this case, it is the Disbiict Attorney who moves for a change of venue, the assent of the accused to the necessity of a change of venue is not to be presumed from the mere fact of permitting applieátion in writing to be filed and immediately taken under advisement.

, On the next day, when the order was given in open court removing the cause, the accused was not present.

His absence, of itself, would not have the effect of vitiating a legal 03,’der making the motion absolute after having heard the evidence.

„But that he did not reserve a bill of exceptions to the order eu.tered.in his absence was not a waiver, of his right to oppose it, as he had not been notified of the motion, and there had not been a contradictory hearing.

With reference to evidence and hearing this court said, in Brouillette vs. Judge, “ that it was formerly the law, under the act of 1868 embodied in Secs. 1021 and 1172 of the Revised Statutes, that the judge might order a change of venue upon the simple application of the State attorney, or of his own motion, whenever satisfied that a competent jury could not be had in the parish. But by Act 95 of 1876 the law was repealed, and in lieu thereof it was enacted: ‘ That

whenever it shall be established i . any criminal prosecution, by legal and sufficient evidence, that a fair and impartial trial can not be had in the parish where the case is pending, the judge of any court having jurisdiction of the case may, upon the application of the Attorney General, District Attorney, or District Attorney pro tempore, for a change of venue, grant such application.’

“ This statute,” says the court in the case (utterances that equally apply in the case at bar), “ so obviously contemplates a trial of the issues on evidence to be adduced, including the right of the accused to cross-examine witnesses of the State, and also, if so desired, to produce witnesses in their own behalf, that we are bound to conclude that the learned judge must have inadvertently overlooked its existence.”

While it is true that the prisoner may waive notice and hearing, the records do not disclose that one or the other was waived.

It is urged on the part of the State that the defendant in effect gave his consent by signing a bond for his appearance before the District Oourt in West Baton Rouge.

The bond was not copied in the record. Whatever recitals it may contain they can not be construed as a waiver in a capital case of notice and hearing.

The signing of this bond is not a waiver or an admission of notice of the motion to change the venue and the hearing.

This case is remanded without prejudice to the right of the prosecution to renew the application for a change of venue, and without restricting the court’s large discretion in determining whether or not there is ground for change of venue.

However much we regret the necessity of setting aside the verdict and the judgment of the court approving it, we are left no alternative. Our conclusions, not hastily reached, compel us to remand the case.

It is therefore adjudged and decreed that the sentence appealed from be avoided and reversed; that the verdict be set aside and that the case be remanded to the lower court for a new trial according to law, that the order granting a change of venue and removing the cause is rescinded and annulled and the case remanded to the District Court in and for the parish of Iberville without prejudice to any change of venue for which application may be made, and that the accused be held for trial.


author: Miller, J.

text:
    No. 11,589.
    The State of Louisiana vs. John Guy.
    The verdict of a jury in a criminal ease will not beset aside and a new trial ordered because the defendant waived the jury and claimed a trial by the court, which was denied by the trial judge; it appearing by the bills of exception the judge approved the verdict. In such case to direct a new trial would be idle.
    Nor will such verdict be set aside because the indictment charging assault with intent to murder, notwithstanding the objection of the accused reserved by his bill of exceptions, the question is allowed to be put and answered, that the party assaulted was the town marshal, charged with preserving the peace, the testimony having no tendency to prejudice the accused, and besides admissible to show that the party assaulted was in the peace of the State. 24 An. 29.
    The charge to the jury that a peace officer may, without warrant, arrest for breaches of the peace committed in his presence, is correct. 1 Archibald’s Criminal Practice and Pleadings, Chap. 2, See. 1.
    The court reaffirms it has no power to review the rulings oi the lower court on applications for new trial in criminal eases, except as to questions of law arising on bills of exception exhibiting the facts on which the legal question is to be determined. 32 An. 854.
    APPEAL from the Ninth District Court, Parish of DeSoto. Hall, J.

      M. J. Cunningham, Attorney General, and J. 33. Lee, District Attorney, for Plaintiff and Appellee.

      H. T. Liverman for Defendant and Appellant.
   The opinion of the court was delivered by

Miller, J.

The defendant, sentenced to imprisonment at hard labor, under Sec. 792 of the Revised Statutes, prescribing that punishment for an assault with intent to murder, prosecutes this appeal.

. He complains that, waiving his right to a jury trial, he was, notwithstanding his objection, tried and convicted by the jury. The general rule is the trial by jury in prosecutions for crime. The Conatitution provides for juries less than twelve where the punishment for the offence charged is not necessarily death or imprisonment at hard labor. Our legislation under that article Axes the number of the jury in that class of cases at Ave, and authorizes the waiver of the jury in such cases by the accused. Constitution, Art. 7, Act No. 35 of 1880; State vs. White, 33 An. 1218. The defendant’s offence is not Within the scope of the act of 1880. We are, however, relieved from determining whether, in the absence of any statutory or constitutional authority, it is the privilege of the accused to compel the trial by the court for the offence with which he was charged in this case. It is manifest, from the bills of exception embodying the statements of the trial judge, that he concurred with the jury and refused the new trial. It would be idle to set aside the verdict and remand the case to be tried by the judge, when practically the defendant has had the benefit of a trial by the judge as well as the jury.

Th'e assault charged on the accused was committed upon a peace officer engaged at the time in an effort to arrest the accused. The second bill of exceptions is to the questions allowed to be propounded to show the official character of the person assaulted. It is contended on behalf of the accused that not indicted for resisting an officer, no such testimony should have been received. It is not easy to see how showing testimony that the assaulted party was the town marshal could have prejudiced the accused. It would be a refinement at the expense of public justice to set aside verdicts, because a fact is elicited which, even if not pertinent, could have worked no harm to the accused. Besides the testimony tended to show that the assault was on a person in the peace of the State, a formal averment in all indictments. On this ground such testimony was held admissible in State vs. Warren Denkins, 24 An. 29.

The third bill of exceptions was to the charge of the court that a peace officer — i. e., a town marshal, may enter a disorderly house to suppress the disorder and arrest the disorderly persons without a Warrant. It is the qualification of the duty that the arrest shall not be for past, but for offences under the view of the officer. 1 Arch-bold’s Criminal Practice and Pleadings, Ohap. 2, Sec. 1. The charge related the circumstances under which the assault was made: the disorderly conduct of the accused in a saloon; that the attention of the town marshal was called to it, thereupon he entered the saloon, requested the accused to stop, which request was disregarded, whereupon the marshal attempted to make the arrest, when the accused made the assault charged. The judge adds the charge was warranted by the evidence, and it was important the jury should know that the officer had the right to make the arrest. We think the charge was pertinent and the principle of law correctly stated.

Lastly, our attention is directed to bill of exceptions No. 4 — to the refusal of a new trial. We have no power to review the facts on which the new trial was sought, except so far as they appear in the bill of exceptions. State vs. Nelson, 32 An. 842. The defendant submits this bill without argument, only invoking a careful examination of the law. On the facts stated by the judge with great -detail, importing that the offence was committed and fully proved, we see no ground for the new trial.

It is therefore ordered, adjudged and decreed that the sentence of the lower court be affirmed.


text:
    No. 11,511.
    The State of Louisiana vs. Joseph Hirn.
    The occupation of the barber is mechanical exempted from a license tax by the Constitution, nor is the exemption denied because he employs other barbers in conducting his business. Constitution, Art. 206; ii An. 1116.
    APPEAL from the First City Court for the Parish of Orleans. Childress, J.

      F. Howard MoCaleb, Jr., Attorney for Plaintiff and Appellant.

      Carroll & Carroll, on same side.

      Felix J. Dreyfous for Defendant and Appellee.
   The opinion of the court was delivered by

Miller, J.

The State proceeding by rule seeks to recover from defendant a license tax for conducting the business of a barber. The defence is that the State Constitution exempts mechanical pursuits from license taxes, and that defendant, a mechanic, is within the exemption.

That the occupation of a barber is mechanical admits of no dispute. His labor is manual, using with his hands the instruments required for his employment. He comes within the definition of a mechanic and his pursuit has been recognized as mechanical by the decisions of this court. State vs. Deilenschneider, 44 An. 1116.

The exemption claimed is denied by the State, because he employs other barbers to assist in serving his customers. We do not perceive that availing himself of the assistance of other barbers takes him out of the exemption. He is still a barber, although working with others. He and they are alike exempt from license taxes.

The State relies on the twelfth section of the license Act No. 150 of 1890. That undertakes to tax mechanics who employ assistance. Thus while the Constitution exempts all engaged in mechanical pursuits, the statute proposes to tax mechanics who employ assistance. This is manifestly contrary to the Constitution and has been so held by this court. City vs. Bailey, 35 An. 545; City vs. Lagman, 43 An. 1180. We are also referred by the State to the decisions that master builders are not mechanics, although they sometimes themselves do mechanical work. The decisions simply hold that the main occupation of the master builder, liable to a license tax, is not changed to that of a mechanic, exempt from such tax, merely because the master builder occasionally does the mechanic’s work. Tax Collector vs. Conner, 42 An. 787; State vs. McNally, 45 An. 46. These decisions afford no aid to the State in this case.

The decision of the lower court was for the defendant and is affirmed with costs.


author: Nicholls, O. J.

text:
    No. 11,615.
    W. O. Lea vs. C. A. Orleans.
    1. Where the issue in a case is not the right oí ownership of specific property, but of the possession thereof, it is the value of the latter right which determines the jurisdiction on appeal of the Supreme Court.
    2. Where the course of a plaintiff on the trial, the nature of the cause of action and the evidence adduced in the lower court all go to show that plaintiff could not have seriously believed the demand for damages claimed by him would be sustained, the allegations of his petition as to the amount of damages suffered by him are without force in testing the question of jurisdiction on appeal.

      APPEAL from the Oivil District Court, Parish of Orleans. Monroe, J.

      Harry H. Hall for Plaintiff, Appellant.

      A. B. Philips for Defendant, Appellee.
   On Motion to Dismiss.

The opinion of the court was delivered by

Nicholls, O. J.

In his petition to the District Court plaintiff alleged that he had purchased from the Metairie Cemetery Association several lots of ground in its cemetery for which he had paid cash four hundred dollars; that subsequently he had entered into a contract with Charles A. Orleans to erect a certain tomb upon the lots for three thousand five hundred dollars, of which two hundred and fifty dollars were to be paid upon the completion of the foundations, and the remainder upon the completion of the work; that upon the completion of the foundation he paid the two hundred and fifty dollars as stipulated. That pending the construction it was agreed between Orleans and himself that certain parts of the work should be omitted, and that, in consequence of this change, a reduction of five hundred dollars should be made upon the price. That after the completion of the work he found that some portions were not executed artistically as agreed upon, and he refused to accept it. That about the 1st July, 1893, Orleans agreed to take back said tomb and remove the figure of a lamb, to which he objected, from the tomb, and accept twenty-five hundred dollars in consideration of said removal, in full settlement of all plaintiff’s liabilities to him under the contract; and that thereupon .he paid Orleans the said amount in addition to the two hundred and fifty dollars which he had already paid, and that after this last payment he owed nothing either to Orleans or to the Metairie Association.

That the tomb being locked and Orleans never having delivered the key of the same, of which he had possession, plaintiff, on or about the 6th July, 1893, sent to him for the key, which he unjustifiably refused to deliver to petitioner, falsely asserting that he had not paid him for the tomb. That petitioner, desiring possession of the tomb for the purpose of therein interring the body of his deceased wife, sent a locksmith to have said lock taken off and the tomb opened; that the sexton in charge of the cemetery, an employé of the Metairie Oemetery Association, ordered said locksmith to desist and drove him away, refusing to permit him to act as requested by plaintiff, in |the premises. That upon petitioner’s proceeding to the office of the Metairie Oemetery Association its secretary informed him that he had been requested by said Orleans not to permit him to take possession of the tomb, and announced that he would maintain the sexton in his aforesaid action, and would resist any attempt of petitioner to obtain possession of his property. That the said action of Orleans and of the officers of the association in preventing petitioner from taking possession of his property was an illegal, unwarrantable and outrageous interference with petitioner’s rights, and that he had suffered in his feelings by reason of said outrage and in legal and other expenses and[]attorneys’ fees, the sum of two thousand five hundred dollars; and that to be prevented longer from using said tomb for the purpose of placing his wife’s remains therein would work him irreparable injury, and that an injunction was necessary in the premises. He prayed for an injunction restraining Orleans and the Metairie Oemetery Association from in any manner interfering with him in the exercise of his rights of ownership in and to his said tomb, and from taking possession of and opening the same; that said injunction be made perpetual, and that he have judgment against the parties restrained for twenty-five hundred dollars damages as above set forth.

The injunction was granted as prayed for and issued upon petitioners furnishing bond and security in the sumwof five hundred dollars.

Plaintiff filed subsequently an amended petition, in which he^ averred that the damages claimed by him were composed as follows:

Attorney’s fees, two hundred and fifty dollars; legal costs, one hundred dollars; mechanics, fifteen dollars; suffering to feelings and violations of plaintiff’s rights, two thousand one hundred and thirty-five dollars.

Defendant Orleans first pleaded the general issue. He then, averred that he received the sum of two thousand seven hundred, and fifty dollars, but that plaintiff was still indebted to him in the sum of two hundred and fifty dollars, owing and unpaid, as part of the price of the tomb. He denied that plaintiff had the right of possession of said tomb until he had paid the price, as stipulated in the-contract. He reconvened and prayed for judgment for two hundred1 and fifty dollars, the amount alleged to be due, for dissolution of the injunction, with reservation of his right to sue for damages.

The Metairie Cemetery Association pleaded the general issue, and prayed to be dismissed.-

The court, after evidence adduced and trial on the merits, rendered judgment on the main demand in favor of both defendants, dissolving the injunction and rejecting plaintiff’s demand, and on the reconventional demand rendered judgment in favor of the defendant Orleans against the plaintiff for the sum of two hundred and fifty dollars.

The plaintiff appealed to this court. Appellee has filed a motion to dismiss the appeal on the ground that “ the court is without jurisdiction, because no proof had been given as to the claim for damages, which was made solely to attempt to vest jurisdiction in this court, and the claim for damages must be held as if never made, and that the sole claim at issue was one for two hundred and fifty dollars, an amount insufficient to give this court jurisdiction.”

Appellant maintains that the appeal as taken was well taken, for the reasons: (1) because plaintiff claims two thousand five hundred dollars damages and the allegations of his petition are sworn to, and (2) because the suit for the possession of property of the value of three thousand five hundred dollars is within the jurisdiction of the Supreme Court.

We have, on several occasions, held that in suits for the possession of property the value of the right of possessor, and not the value of the property itself, determines the jurisdiction. State ex rel. Humphreys vs. Richardson, 46 An. 133; In re Genella, 45 An. 1377.

There is nothing in the record on this point to justify our holding the case. Were we to retain it, our doing so would have to rest upon the other ground, but an examination of the pleadings and the evidence satisfies us that we have no jurisdiction.

It is true that the plaintiff alleged that he was aggrieved by the conduct of the defendant to an amount of twenty-five hundred dollars, aid that for the. purpose of obtaining an injunction in the case he swore to his allegations; but this’matter comes before us on appeal after trial, evidence adduced and judgment, and the allegations of the petition have not the controlling force which plaintiff supposes. The parties to this litigation entered into a contract for the construction of a tomb by the defendant, upon a lot of ground owned by plaintiff, in the Metairie Oemetery. A contention arose between the two as to their respective rights and obligations under the contract. Defendant, holding the key of the tomb, and claiming that he had the right to hold it as evidencing his possession of the tomb itself, until payment, declined on demand of plaintiff to deliver it to plaintiff. On plaintiff’s declaration that he would send a locksmith to open the door of the tomb in spite of defendant’s holding the key, the latter requested the authorities of the cemeteries to prevent such action, and to this request they acceded. The present suit followed.

We are of the opinion, without going into details, that the plaintiff could not reasonably have set up the claim for damages which he did, and no attempt was made by him in the lower court to support the claim. We do not think it was seriously expected that it would be maintained.

Appeal dismissed.