author: Todd, J.

text:
    No. 182.
    J. Henry Shepherd vs. Miss Lizzie Dickson.
    Where the fee of an attorney is a contingent one, as where k6 agrees to prosecute the suit for one-half that may be realized from the claim or the judgment thereon, presci iption for the fee only begins to run from the time it is exigible, that is from the collection of the judgment.
    APPEAL from the Second District Court, Parish of Bossier. Drew, J.

      Land ds Land for Plaintiff and Appellee :
    1. In fixing the compensation for the professional services of an attorney in any particular case, there are two considerations which will determine the judgment of this Court. One is the extent and kind of service, and the labor incident to its rendition ; the other is the ability of the party who is liable to pay. Breaux, Fenner & Hall vs. Francbe, 30 Ann. 338.

      2. In an insolvent succession, whose entire assets have been recovered by the labors and industry of an attorney, a fee of one-third will be allowed. Succession of Linton, 31 Ann. p, 132. The fact thal the attorney would have received absolutely nothing had his efforts failed, should be considered. Ib. 134, on rehearing.
    3. Where it appears that the services of an attorney have been long continued, wisely directed and valuable, this Court will be guided as to the money value of his services (in the absence of special agreement as to his fees, and of specific evidence as to the extent of his services) by the opinion of the local bar to which he belongs. Succession of Jackson, 30 Ann. 463.
    4. A contingent fee is not exigible until the judgment is collected. It is the duty and right of an attorney in such a case to collect and even to revive the judgment, 32 Ann. 305, and his fees are not exigible until the judgments aro collected. 34 La. Ann, 1187. Hence in case of contingent fees, prescription does not run from the date of judgment, but from date of collection thereof.

      Snider & Smith for Defendant and Appellant:
    1. Defendant, under the general denial, can prove, when sued on a quantutn meruit, a special contract to show value. Powers vs. Steamer Patriot, 3 L. 348; Stone vs. Clifford, 3 L. 349; Budreaux vs. Tucker, 10 Ann. 80. Defendant may, under general issue, show any fact tending to prove' that she is not indebted to plaintiff as alleged. Prank vs. AIIqd, 3 M. 381; Davis vs. Davis, 17 L. 259 ; Bonnabol vs. Bouligny, 1 R. 292.
    2. Attorney's fees are prescribed by three years from date of judgment in the case. R. 0. C. 3538 ; Morgan vs. Brown, 12 Ann. 159; Hiestand vs, Labatt, 11 Ann. 30; Howe’s Heirs vs. Brent, 6 H. S. 248; Morse vs. Brandt, 2 N. S. 515; Linton vs, Harman, 5 Ann. 603 ; Looney vs. Levy, 35 Ann. 1012. Continuity of services does not interrupt prescription. Cootevs. Cotton, 5 L. 15; Howe’s Heirs vs. Brent, 6 N\ S. 248; Cresap vs. Winter, 14 L. 553; Cooley vs. Succession of Latourefcte, 7 Ann 222; Chadwick vs. Waters, 3H. S. 432; Linton vs. Harman, 5 Ann. 603; Looney vs. Levy, 35 Ann. 1012.
    3. The Supreme Court will fix attorney’s fees without regard to the opinion of witnesses, in accordance to the exertion of legal knowledge, the responsibility incurred and the labor bestowed, etc 5 N. S. 399; 3 Ann. 517; 27 Ann. 467; 12 R. 414; 25 Ann. 647 (fee reduced from $3,000 to $500); 6 Ann. 565, Pee graduated by value of the services rendered. Stein vs. Bowman, 9 L. 284.
   Tlie opinion of the Court was delivered by

Todd, J.

This is a suit to recover of the defendant $5458, of which amount $4625 is an account for professional services as an attorney - at-law, and the residue tlie amount of two written obligations.

The controversy between the parties is confined to tlie account for professional services. The answer was a general denial and plea of prescription. The jury returned a verdict for tlie full amount of the demand, less $275, declared 'prescribed, and from a judgment on this verdict the defendant lias appealed.

It is shown that the plaintiff was the attorney for the defendant for a period of about five years. That bis services were rendered in the prosecution and defence of many suits, some of them in both the district and Supreme Courts of the State, several involving large amounts, greatly protracted and severely and even bitterly contested.

They were of a character to impose great responsibility on the attorney and to require the exercise of the utmost labor and skill.

The services, we find, were faithfully rendered, and in several instances resulted greatly to the benefit and advantage of the client.

The account is prqved by the testimony of the plaintiff, supported by that of the able and efficient judge before whom part of the litigation was conducted, and by three of the leading and most experienced members of the bar; ail of whom had more or less personal knowledge of the nature oí the services and the character of the litigation in which they were rendered.

Against this array of testimony we have the testimony of but one witness, an attorney of much less experience than the others, who differed with them with respect to only one item of the account.

One of the suits mentioned in the account was a damage suit for $15,000.

It was attempted to be shown that there was an agreement between plaintiff and defendant to the effect that he, plaintiff, was to prosecute that suit for one-half the amount he might recover on the claim or the judgment to be rendered thereon, and besides was to give the defendant the benefit of his services in all other cases in which she was interested, and connected with the succession of her father, which embraced most of the items in the account. This agreement was not established satisfactorily to our minds.

Such an agreement was rather of an extraordinary character, requiring very strong evidence to support it, whilst the evidence offered was of the weakest kind, and was flatly contradicted.

Proof was offered of the fees charged by other attorneys for similar services in some of the cases mentioned in the account, and which were less than those charged by the plaintiff; and it is contended that plaintiff’s charges should be regulated by theirs. We cannot accept such a test of the correctness or incorrectness of plaintiff’s account.

These attorneys were as likely to render their services to the defendant gratuitously if they chose, and many and various circumstances may have governed them in fixing their charges, of which we have no knowledge; and besides, that an estimate made by one person for services performed should be held up as a rule for another in the legal profession, is an unheard of proposition.

Again, it is urged that this court is not bound by the opinions of- attorneys-at-law touching the question of fees any more than by the opinions of experts in other matters, and the judges may disregard such evidence, and form their conclusions • from their own experience and knowledge. We have, to be sure, the power to do this, but from our personal knowledge of some of the litigation to which the account refers, as members of the court, as well as that derived from an examination of the record, and from the great respect we entertain for the witnesses who have testified on this point, and confidence in their experience and judgment in such matters, we would not feel justified in exercising such power.

Prescription.

The jury rejected $275 of the demand because prescribed, about which no question is now raised.

The plea could have no possible application to any other item of the the account unless to the suit for damages of Lizzie Dickson vs. M. Hugh Dickson et als. This is the same suit referred to above, in which there was a contingent fee — the plaintiff to receive one-lialf that was realized. This suit was decided in October, 1881, and all that was realized by the defendant from her judgment therein was collected in 1883 and 1884.

The fee was not exigible until these collections were made, 32 Ann. 308, and consequently prescription only began from that time.

Judgment affirmed.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 179.
    Mrs. N. T. Mulhaupt and Husband vs. William Enders.
    Failure of lessor to maintain the thing leased in a condition such as to servo the use for -which it is hired, and to make repairs necessary to that end, while it may give the lessee the right to claim a dissolution, or to claim damages resulting from sucli failure, does not confer upon him the right to continue to use and occupy the premises without compensation ; and if, notwithstanding a suit to dissolve, he fails to restore or offer to re store the thing leased to the lessor and continues to use and occupy it, he is liable for the rent during the term of such occupancy.
    ■Where the lessee fails to pay the rent due under such circumstances, the writ of provisional seizure is a lawful remedy, and damages cannot be recovered for its issuance.
    APPEAL from tbe First District Court, Parish of Caddo. Taylor, J.

      Land & Land for Plaintiffs and Appellees.

      J. W. Jones for Defendant and Appellant.
   Tlie opinion of the Court was delivered by

Fenner, J.

Plaintiffs sued for rent due and to become due on a ten years’ lease to defendant of a certain building in Shreveport, accompanied by a process of provisional seizure under which defendant’s property on the premises was takeq into custody of the sheriff on the 10th of February, 1885. On the same day, the sheriff, at the instance of plaintiff who advanced the premiums, insured the seized property for $7,000. On the 15th of February, the property was destroyed by fire.

Thereafter, on March 5th, defendant filed his answer and plea in re-convention, in which he admitted the lease, but averred that the lessor had failed to comply with his obligation to maintain the thing leased in a condition such as to serve the use for which it was hired, and had failed to make repairs necessary for that purpose notwithstanding due demand, in consequence of which he had brought a suit against plaintiffs for annullment of the lease; averred the destruction of the property by fire; set up that the provisional seizure had been wantonly, illegally and tortiously issued; and claimed, as damages, the sum of $7,600, the value of his property destroyed by said fire and the further sum of $500 as counsel fees in this suit, confined in a supplemental plea to fees for dissolving the sequestration.

Subsequently, defendant bonded the policies of insurance which had been taken out by the sheriff; voluntarily adjusted his losses by the fire with the insurance companies, receiving in satisfaction the sum of $5,535 and the debris of the machinery -which he sold for $575.

From a judgment in favor of plaintiffs for $66.66, amount of rent due, up to the date of the fire, with privilege, and rejecting the reeonventional demand, defendant has appealed.

The judgment is certainly correct under the issues and facts of this case.

Notwithstanding his complaints of the unserviceable condition of the premises dating back for several months, and notwithstanding his suit to annul the lease instituted a few weeks before the present action, defendant maintained his occupancy and use of the premises, without even offering to deliver them to plaintiff, and so continued up to the moment of seizure.

It is perfectly clear, therefore, that he was liable for the rent.

Granting- that the alleged faults of the lessor might have entitled the lessee to claim a dissolution or damages resulting from such faults, they certainly could not confer upon him the right to occupy the premises without compensation. Now we have before us no issue as to the dissolution of the lease and no claim for damages for any fault of lessor under the lease. Under these circumstances, we regard all the evidence on the subject of the condition of the premises and the necessity for repairs as irrelevant; for, conceding all that plaintiff claims, its only effect would be to entitle him to claim dissolution of the lease ou restoring or tendering the premises to the lessor, or to claim damages for non-repair; hut if he continued voluntarily to use and occupy the premises without even offering to restore them, his suit for dissolution could not dispense him from paying the rent during such occupancy.

The judgment in favor of plaintiff, confined as it was to the term of actual occupancy, was manifestly correct.

Prom this it conclusively appears that the writ of provisional seizure was lawfully issued, and the damages claimed on the charge that it was wanton and malicious have no foundation.

In any event defendant having, under the policies of insurance, voluntarily accepted a certain sum much less than the face of the policies as the value of his goods destroyed, could not he heard to claim a greater amount on that account from plaintiff.

The writ of provisional seizure having heen lawfully issued and sustained, of course the claim for counsel fees vanishes.

Judgment affirmed.


author: Watkins, J.

text:
    No. 176.
    John Chaffe & Sons vs. P. J. Trezevant et als.
    1. A contract entered into with, tlie State Board of Engineers, under act ETo. 7 of 1884, for cutting tlie bends and straightening certain navigable watercourses in tliis State, the expense of which is borne by private and interested individuals, and under the circumstances detailed in opinion, is a private enterprise, and cannot be maintained or enforced on the pretence that it is in the exercise of the police power of the State, or that it finds sanction in the levee laws of the State.
    APPEAL from the First District Court, Parish of Caddo. Taylor, J.

      Alexcmder & Blcmchard, for Plaintiffs and Appellants :
    1. Private property shall not be taken nor damaged for public purposes, without just and adequate compensation being first paid.” Constitution of the State of Louisiana, art. 156, U. C. 497, 2628, 2629.
    2. The decisions in this State go only to the extent of holding that the State, through its proper officers, has the exclusive right to determine the propriety, location and mode of building public lerees, and that for auy damage incidentally caused by such work, the State is not liable.
    All of these decisions are based upon tbe laws which impose a servitude upon tlie lands of all riparian owners in this State. C. C. 665, 457, 861, 862; 7 Ann. 150; 11 Ann. 165; 12 Ann. 185; 13 Ann. 401; 34 Ann. 494.

      3. It has heen held that for houses actually taken and destroyed in the course of construction of a public levee, the owners were entitled to compensation. 12 Ann. 185.
    Also that for land taken and damaged in building a dam across the mouth of a bayou, under the supervision of the State Engineer, and in accordance with an act of the Legislature, the owner was entitled to compensation, and could maintain his rights by injunction. 13 Ann. 401. .
    Both of these cases were decided under the Constitution of 1852, ■which contained no such provision as art. 156 of the Constitution of 1879.
    4. The Bass case is not applicable to this. In that case no part, of his place was actually taken. The damages were purely incidental to the construction of the levee, and wore occasioned, as plaintiff claimed, by the failure or omission of the State engineers to put it on the front of his plantation, whereas they located it in the rear.
    In this case the plaintiff’s plantation was to be severed by cutting a canal through the mid' die of it, and turning the channel of Red river through it, thus taking a large body of cultivated land, and destroying his gin-house, storehouse, dwelling, cabin, fences and other improvements. The damage is direct and immediate.
    5. The case of Green vs. Swift, 47 Cal. 536, is not against us, but on the contrary supports our position.
    It was there held that the damage suffered by plaintiff was incidental only to the prosecu tion of a lawful public work, for which he was entitled tono compensation. But the opinion further states that the act of the legislature was constitutional, because it provided for compensation to all persons from whom property was directly taken by the new channel of the river. •
    6. An act of the legislature which authorizes the taking of private property for public use is unconstitutional, unless provision is made in it for compensation. 2 Gray 1; 103 Mass. 120; 127 Mass. 50; (24 American Law Reports 338).

      Wise & Herndon and Yomuj <& Thatcher, for Defendants and Appellees :
   Tlie opinion of the court was delivered by

Watkins, J.

Act No. 7 of 1884, provides that whenever the levee commissioners of any district, or the police jury of a parish not included within any levee district, shall request the State Board of Engineers to make an examination, or survey of any stream therein, said hoard are required, when such examination is made, and if thereafter they think the navigation of such streams will be improved or the land will he protected from overflow by cutting across the bend, and straightening such stream, “ they are hereby required to have the work done under the laws and regulations governing the construction of the public levees.

Arising under this statute are the following substantial facts:

On the 20th of November, 1885, the State Board of Engineers, at the request of the police juries of Bossier and Caddo parishes, caused an examination to he made of a portion of Bed Biver, a navigable stream, and recommended that ditches he cut across the bends at certain points, and particularly the one on whicii is situated plaintiff’s Pascagoula plantation, worth about $20,000.

In pursuance, of said report a contract was made with defendants, duly approved by the Governor, to cut the canal across the said bend of the river, and they were proceeding to carry it out when met with plaintiffs’ injunction.

The report upon which their contract is based is that “ considering all the circumstances of the case as affecting protection from overflow, it will be a&vantageous to cut through the bend above-mentioned.”

The evidence shows that defendants had entered upon plaintiffs’ Pascagoula plantation with the avowed intent to cut a canal across the bend of the river, in order to divert its course from the natural channel, and cause it to flow across, and through said plantation, in its entire length, immediately through the cultivable portion, and most valuable buildings and improvements thereon, whereby it would have been completely severed by the stream, leaving an island on one side, consisting of about 500 acres, not susceptible of natural drainage, and about 800 acres on the opposite side.

The witnesses concur in the opinion that the direct and immediate effect of this deflecting the bend of the river and turning the flow of the stream across plaintiffs’ land would be to inflict on them a loss of $8000 or more.

Plaintiffs’ injunction prevented the cutting of the canal.

The statute in question made no provision for compensation to individuals suffering injury, and none was tendered plaintiffs.

Under this state of facts they insist that this statute violates arts. 155 and 156 of the State Constitution, and that all acts done under it are null and void; also, that the particular work in question was in reality a private enterprise, and not one of public utility.

The defendants argue,that, in the exercise of its general police power, the Legislature had a constitutional right to enact the law in question, and, in pursuance thereof, the contract for cutting a canal through plaintiffs’ plantation for the purposes recited, was a legal and enforceable one, and plaintiffs are not entitled to compensation for any injury they might sustain thereby.

The learned judge of the court below likens the right sought to be exercised to the taking of the property of individuals to prevent the spread of a conflagration, a pestilence, or the construction of levees upon lauds adjacent to navigable watercourses to prevent inundation, no compensation being required.

They rest upon the maxim that the public safety is the supreme law, and it must be first consulted. The interest of the citizen being subordinate to that of the State, the former must yield in case of conflict.

I.

What the police power of a State is it is. difficult to determine witli precision. It is generally said to extend to the protection of the lives, health and property of the citizen and the preservation of good order and good morals: to the promotion of domestic tranquility and the comfort and quiet of all persons.

By the general police power of a State persons and property are “ subject to all kinds of burdens and restraints in order to secure the general comfort, health and prosperity of the people.”

It has been well said that “it is a settled principle, growing out of the nature of well-ordered society, that every holder of property however absolute, and unqualified may be his title, holds it under the implied liability that his use of it shall not be injurious to the equal enjoyment of others, having an equal right to the enjoyment of their property, nor injwmis to the rights of the community.” Bass vs State, 34 Ann. 494.

Citing 7 Cush. 53, Commonwealth vs. Olger, plaintiffs allege that defendants were employed and engaged by private individuals to do the work of cutting the bend across the petitioners’ plantation, and that any pretended contract with the State, or its officials, was a mere subterfuge, and that the funds with which to pay for same were supplied and furnished solely by the interested persons whose lands lie above Pascagoula bend.

Quite a number of citizens of tiie immediate vicinity, alleging themselves to be interested in the question, intervene and adopt the allegations of plaintiffs’ petition.

They allege that the cutting of Pascagoula bend is not necessary for the purpose of improving the navigation of Bed Biver, or for the general protection from overflow, nor was it so intended by defendants.

“ On the contrary, they charge specially, and allege that it was a job, or scheme of a few individuals owning lands above the said bend to relieve and benefit themselves at the expense of the plaintiffs and intervenors, their neighbors, who lived below them.”

The plantations of all the intervenors are shown to be valuable and above overflow, and are situated below Pascagoula.

The cutting of a canal through it, as proposed, would cause the river to rise higher, and subject them to overflow. It would increase the current, and cause the banks of the river to cave. Prom these two causes great damage would be suffered by them, to the extent of many thousands of dollars. It would also cause a large portion of plaintiffs’ plantation to overflow annually.

The estimated cost of cutting Pascagoula Lend is $1700, and about $3600 for the cutting of three bends included in contract. This amount, except $100 appropriated by the State, was to be paid by private individuals, and was actually subscribed by them.

The report of the State Board of Engineers states substantially that the floods in Red River, in the neighborhood of Tone’s bayou, have reached an unusual height, overflowing the natural banks of the river, and requiring additions to the height and extent of the levees there, beyond the means of the State and sub-district to undertake; and “ it is believed that the cutting across of certain bends of Red River, below the region of the high water, would locally reduce the height of floods? and thus tend to prevent overflow * * * but that such a system should not be made general, nor be greatly extended, until time has been given to ascertain the changes actually resulting from a few such cuts, and for the bed of the river to adjust itself to new conditions. * * Our conclusion is that, considering all the circumstances of the case as affecting protection from overflow it will be advantageous to cut through the bends above-mentioned. * * We learn, however, that funds for construction of the work have been raised by subscription, and arrangements have been made by which the cost to the State will be only nominal, or say the round sum of one hundred dollars.”

Under this state of facts it seems to us clear that the enterprise enjoined is a private one — only an experiment, inaugurated in the interest of a few private individuals, for their own advantage. We are, therefore, dispensed from discussing the serious constitutional questions entertained by the judge a quo, in his opinion.

We do not think that there is involved, in this case, any question of the exercise of the police power of the State, and hence there is no necessity for us to pass upon the constitutionality of the statute in question.

In our opinion the work contracted for was not to be done in pursuance of the laws and regulations governing the construction of the public levees.

Much reliance has been placed upon the opinion of this court in Bass vs. State, 34 Ann. 494, and Green vs. Swift, 47 Cal. 536.

The latter is not in point, for reasons above assigned, and the former finds support in the theory that servitudes are imposed for the public utility, and relate to the space which is left for the public use by the adjacent proprietors, on the shores of navigable streams, and for making and repairing levees. R. C. C. 457; 21 Ann. 165; 4 Ann. 73; 18 La. 295; 6 Ann. 77; 7 Ann. 150; 111 U. S. 704.

If, in this ease, the plaintiffs sustain loss it cannot be said that it must be attributed to an unfortunate investment upon a caving- bank. 11 Ann. 166; R. C. C. 665.

The work projected cannot be defended upon the ground that it was necessary to confine the waters and shelter the inhabitants from overflow and inundation. 12 Ann. 655.

Each proprietor is personally interested in his own protection, as well as his neighbors, yet, as the property situated upon navigable streams, that are subject to overflow, are of little value without levees, the Legislature has the power to compel such riparian proprietors to make levees in front of their plantations without any further compensation than the increased value which such works would confer upon their lands. The levee laws are not intended to apply to lands which are entirely above overflow.

It has been held that the levee system of Louisiana has been devised and maintained for the preservation of arable lands from overflow and inundation.

Each levee has been considered as a continuation of one great system, or plan for the preservation of the cultivable fields of the inhabitants.

It has never, heretofore, been deemed a part of the levee system that a proprietor was bound to yield a part of his soil for the 'construction of levees for the purpose of reclaiming overflowed lands, where it was not originally necessary to prevent his land from inundation, and when he is not benefited by them. If this was permitted, money would be taken from him without an equivalent, to enrich others. “ The principle of such a system would be to make great ameliorations, benefitting a large number of people at the expense of the few who might own property in the immediate vicinity of the works requisite to effect these improvements.

“There is no principle in the levee law's in this State which justifies this theory.” Cash vs. Whitcomb, 13 Ann.

In our opinion defendants1 theory finds no application or sanction in the levee laws of this State. The work enjoined is not such a work of public improvement as is contemplated in R. S. 1390, and the enforcement of defendants’ contract would operate a direct and invidious distinction in favor of certain interested individuals, and to the great detriment of plaintiffs and intervenors, without previous adequate compensation paid.

Grant everything that the report announces, and the contract under it cannot he maintained. It only suggest the propriety, convenience and utility the cutting of this canal would subserve, and these suggestions negative the idea of the existence of any great necessity, or impending danger, the cutting of this canal would prevent or avert.

The inauguration of such a system, as is clearly contemplated, would he destructive of the most valuable plantations in the vicinity of Pascagoula bend, if not of Red River valley.

The plaintiffs’ injunction should have been maintained.

It is therefore ordered, adjudged and decreed that the judgment appealed from he avoided, annulled and reversed, and that plaintiffs’ injunction he sustained and made perpetual, and that the defendants he taxed with the cost in both courts.

Judgment reversed.


text:
    No. 183.
    A. Goodwill et al. vs. Police Jury of Bossier Parish et al.
    The police juries of the several parishes have no power to interfere with or obstruct navigation on any navigable watercourse, by the construction of bridges without draw across the same or by the erection of embankments therein.
    A watercourse will be held to be a navigable stream when in its natural state it is such as to afford a channel for useful commerce.
    That condition is not affected by fcbe formation thereon of natural barriers resulting from sand bars or rafts formed by tbe accumulation of timber.

      \ PPEAL from the Second District Court, Parish of Bossier. Drew, J.

      Land <& Land for Plaintiffs and Appellants:
    1. Police juries may be prohibited by a writ of injunction from obstructing any stream susceptible of navigation. Ingram vs. Police Jury, 20 Ann. 226.
    2. Police juries have no power to construct! public levees. The law gives them simply the management and control of completed public levees. Acts 88 of 1880; 104 of 1882; 84 of 1884.
    3. Their power over non-navigable streams is limited to cases where it is ne cessary to fil up the same for the purpose of carrying the public highways over such streams; provided no injury be thereby occasioned to the neighboring inhabitants. R. S. of 1870, sec. 2743-13.
    4. When the closing of a non-navigable stream by a police jury would destroy or greatly impair the navigation of a neighboring stream, and thereby inflict injury on the public, such closure is not authorized by the above statute. Police juries cannot do indirectly what they are prohibited from doing directly.
    5. The right of the State to close or obstruct streams is confined to such as are of no value to the public for purposes of navigation. Boykin & Long vs. W. A. Shafer, 13 Ann. 129
    6. “Hack’s Bayou,” which defendants have been injoined from closing, was by Act 175 of 1867, declared to be susceptible of navigation for purposes of trade and commerce and the levying of the same was forbidden by Act 63 of 1876, because it was an essential feeder of Lake Bistoueau, an important navigable stream.
    7. The evidence shows that, as a matter of fact, " Mack’s Bayou ” is susceptible of naviga- . tion by small steamboats, flats and other craft. The true test of the navigability of a stream does not depend on the mode by which commerce is carried on nor the difficulties attending navigation. 20 Wallace, 430.

      Sniñev & Smith and J. A. Lcnory for Defendants and Appellees :
    1. Act No. 63 of 1876 is a nullity in this, it has no title. Art. 114, Const. 1868 ; art. 29 of Const, of 1879.
    2. If Act No. 63 of 1876 be a nullity then, under general powers of police juries, the police jury of Bossier parish had the power to authorize the construction of a dirt bridge across Mack’s Bayou, if it be not navigable. B. S. of 1870, sec. 2743, Nos. 2 and 13; Act No. 87 of 1882; sec. 1 of Act 84 of 1884 ; Act 175 of 1867.
    3. An action will not lie for damages resulting from a lawful act, it is dem/uum absque injuria. Donovan vs. City of New Orleans, 11 Ann. 711; Beyuolds vs. Shreveport, 13 Ann. 426; Now Orleans vs. Wandemere, 12 Ann. 84; Orr vs. Home Ius. Co., 12 Ann. 255; Bass vs. State, 34 Ann. 494; Charles Biver Bridge vs. Warren Bridge, 7 Pick, 344, and 11 Peters; TT. S. Beports, 420; Cooley on Const. Lim.; 481, 676.
   The opinion of the Court was delivered by

Poché, J.

This suit involves the power of the police jury of Bossier parish to close Mack’s bayou, which is a stream flowing from Red river and emptying through several other bayous into lake Bistineau in said parish.

Plaintiffs in injunction are residents of Minden, a town in Webster, an adjoining parish, situated a short distance from the head water navigation of Doreheat bayou, which empties into lake Bistineau- at its northeastern extremity.

Alleging that Mack’s bayou is a navigable stream, and that it is, in addition, one of the principal sources of water for, or feeders of, Lake Bistineau, which affords to this section of country the only navigable highway to Red river, and through it to the great markets of the country and of the world, they claim the legal right to prevent the closing of the same.

They are appellants from a judgment, based on the verdict of a jury, dissolving their injunction and dismissing their action.

Tiie defence is a denial that Mack’s bayou is a navigable stream within the legal meaning of the term, and the consequent legal authority in the police jury to exercise absolute control over it for the purposes of public highways, by means of bridges constructed over it or of embankments erected in it.

The pivotal question in this case, therefore, consists in ascertaining whether the bayou is or not a navigable stream. All the sources of legal authority in the police jury to control that stream, as urged by defendants, are expressly conditioned on the fact that the stream be not susceptible of navigation for the purposes of commerce.

Section 2743 of the Revised Statutes of 1870, par. 13, empowers police juries to “cause any water course which is not navigable (italics are ours) to be filled up for the purpose of carrying the public highways over the same; provided that no injury be thereby occasioned to the neighboring inhabitants.”

The proviso of Act 87 of 1882 confers the power to certain corporations with the consent of police juries where navigation terminates, and of police juries of adjoining parishes interested, to bridge without a draw such waters within ten miles of the terminus of high water navigation on watercourses which cannot be navigated except at high water.

Section 1 of Act 84 of 1884 has exclusive reference to. the control of police juries over completed levees erected under the general power of the State, in keeping with the levee system which prevails therein, and over public roads within the limits of their respective parishes.

It appears that no provision in any of these enactments can be construed as conferring the power on police juries to interfere with, or obstruct in any manner, navigation on any navigable watercourse in this State, and much less to close, as proposed in this case, any such stream.

And we may add that the attempt of the State to delegate such power to police juries, or to any other State functionary or authority, would be defeated on proper showing by the courts, as violative of the letter and spirit of the Act of Congress by which Louisiana was admitted into the Union. Stat. at large, vol. 2, pp. 642 and 706.

Our reports are somewhat meagre of information on this important subject. We find but two cases which have some bearing on this question.

In the case of Boykin and Lang, 13 Ann. 129, this Court found that while bayou Black, in the parish of Terrebonne, was a navigable stream by nature, its use for commerce had been at first impeded by the accumulation of timber within its banks, and that by the subsequent removal of those impediments, the stream has lost its utility for navigation by the too rapid discharge of its waters. Iicnce the court sanctioned as a legal means to enhance the navigation of the bayou the construction of locks by an individual, and maintained his consequent right to charge and collect tolls in compensation therefor. The court rested its conclusions very guardedly on the fact well shown that the proposed works would not impede, but would positively improve navigation on that stream.

In the case of Ingram vs. Police Jury of St. Tammany, 20 Ann. 226, the court enjoined the defendant from erecting a bridge across the Bogue Palia river, because the construction of the bridge would impede navigation on a navigable stream. The injunction was granted at the instance of a private individual, who showed that he was interested in the navigation of the watercourse.

It must be noted that in either of these cases the police jury did not attempt to close the watercourses.

Prom these and other authorities, which w'e have consulted, we reach the conclusion that the navigability of a watercourse depends upon the fact whether the river, in its natural state, Is such as that it affords a channel for useful commerce, although its free navigation may be at times encompassed with difficulties by reason of natural barriers such as rapids and sandbars or accumulation of timber forming rafts.

The Supreme Court of the United States held that a small stream whose navigability was materially embarrased by rocks and rapids, and could only be navigated by means of Durham boats, and by means of locks and other artificial apparatus, was a navigable stream within the legal meaning of the term. The case of the Montello, 20 Wallace 430, and authorities therein cited.

The preponderance of the evidence in this record, although it is conflicting, affords satisfactory proof that Mack’s bayou is by its nature a navigable stream, and that it has been frequently and for many years navigated by small steamboats and flatboats in the transportation of cotton, merchandise and other commodities.

Under the plainest rules of evidence the negative testimony of defendant’s witnesses who say that the bayou is not navigable, and that in their recollection it has never been navigated for the puiposes of commerce, must yield before the positive testimony of witnesses of unimpeached veracity, who state, as captains and pilots of steamboats, that they have navigated the stream, giving the names, dimensions and capacities of the vessels used in the trade, and the years in which they thus used the watercourse for the purposes of commerce. They also give the dimensions of the stream at the j>oint where it flows out of Bed river, at which place it is 120 feet in width and it has 20 feet in depth during the highest water tide; and it is at that point that the ■proposed embankment is to be thrown.

Prom the record we find that the country surrounding the town of Mindeu have two water highways to Red River, both by the Dorcheat River and Lake Bisteneau, one of the routes through that lake aud through Loggy bayou into the Red, the other also through the Dorcheat and that lake thence in a northwestern direction through Swan Lake, Red Chute Lake, Cross bayou and Mack’s bayou, into the Red at a point considerably above the latter, and not remote from the city of Shreveport.

Through Mack’s bayou as an outlet, Red river pours a large volume of water through the streams above-mentioned, thus feeding Lake Bistineau, and thus enhancing its navigation, which would he materially affected and much reduced in facilities by the closing of Mack’s bayou.

We thus perceive the great utility which was naturally expected from that bayou in that double system of navigation, and we hold that it does not lie within the power of a police jury to alter or defeat the object to he accomplished.

The navigability of the bayou is not affected by its present condition, which is the result of the accumulation of timber which has floated and stopped against numerous bridges which liad been built across the bayou, with or without legal authority, it is immaterial, and have formed rafts which at the present time seriously obstruct navigation thereon, and to some extent impede the free flow of waters through its hanks.

It is therefore ordered that the judgment of the lower court he annulled, avoided and reversed; that the verdict of the jury he set aside, and it is now ordered that plaintiffs do have and recover judgment perpetuating the injunction to prohibit the police jury of Bossier parish from closing Mack’s bayou in said parish by means of the embankment proposed to be thrown therein, at or near the point where it flows out of Red river, and for costs in both courts.


text:
      No. 185.

    Tutorship of Minor Heirs of T. and E. Byland.—Walling Heirs Opponents.
    "Where a judgment is rendered, on an opposition to an account of a tutor charging him with a personal liability to the heirs represented by him, an appeal from such judgment taken by bim in bis capacity as tutor only, will not be entertained.
    An appearance by an attorney for a defendant in a cause, except for the purpose of excepting to the citation, cures the want- of citation.

      When the defendant in a suit liles a plea to the jurisdiction of the court and tlie plea is overruled and a judgment rendered, and no appeal is taken, tlie' question of jurisdiction becomes res adjudicate and the judgment cannot in a collateial proceeding be treated as an absolute nullity for want of jurisdiction in the court rendering it.
    APPEAL from tlie First District Court, Parisli of Caddo. Taylor, J.

      J. E. Shepherd for tlie Tutor, Appellant:
    1. An administrator may urge any defen.se lie has, whether by general depial, confession and avoidance, or peremptory exception. 111. 533; 5 R. 123; 3 Ann. 223; 6 Ann 54.
    2. The petition must contain a clear and concise statement of the object of the demand as well as the nature of his title or the cause of action on which it is founded. C. P., 172* Pickett vs. Vance, 14 Ann. 668.
    There must he a definite statement in substance and grounds of action, and the relief sought must be expressed with precision ; vague and indefinite allegations of indebtedness cannot support a petition, and loose and indefinite allegations will not be noticed. 23 Ann. 374; 14 Ann. 797; Lamorere vs. Cox, 32 Ann, 1045.
    A party must describe a note, with much greater certainty must lie describe the amount due him. 27 Ann. 225.
    ■Where a plaintiff or opponent to an administrator’s or tutor’s account fails to state tbe amount he claims, but merely refers to a judgment; but does not annex the same to his opposition or make it a part thereof, an exception of no cause of action should he sustained, Lamorere vs Cox, 32 Aun. 1045. A party cannot be admitted to prove what he has not alleged. 9 Aim. 124.
    3. A judgment rendered against a party who has neither been cited nor appeared, is an absolute nullity. 5 N. S. 429; 7 N. S. 161; 1 R. 30; 13 Ann. 27; 21 Ann. 27.
    Nothing will cure want of citation except appearing and answering to the merits. 17 Ann. 91; 21 Ann. 438.
    4. Where a party denies under oath tba$ a plea filed in his name was filed without author ity and the allegation is borne out by the proof, the act of the attorney is not binding. 15-. 569; Louque, 69, No. 4.
    5. A judgment rendered on default in absence of parties by a justice of the peace, is inoperative until legal notification in accordance with art. 1131, C. P, If, therefore, no Ji. fa. could issue until the service of tbe requisite notice, the holder of such a judgment, who neither alleges or proves notice or previous presentation for approval of claim, ought not to be permitted to collect said judgment by an opposition to a tutor’s or administrator's account, otherwise all appeal is denied.
    6. A judgment rendered by a court without jurisdiction is absolutely null. 26 Ann. 127; 28 Ann. 744; 27 Ann. 630; 30 Ann. 139, 793.

      Alexander <& Blanchard and J. B. Slattery for Opponents, Appellees:
    Opponents’ claim is for $97.18 and interest, and there being no other opposition, this is the only amount in controversy, and the appeal should he dismissed. 37 Anu. 429, 35 Ann. 1025; 34 Ann. 585.
    A tutor appealing from a judgment in his official capacity only, cannot contest on appeal items in said judgment rendered against him individually. 37 Ann. 126; 33 Ann. 1339 ; 32 Ann. 890.
    When estates are in the possession of minor heirs, debts due by such estates must bo sued ior before the courts of ordinary jurisdiction. C. P. 996; 6 N. S. 519; 30 Ann. 93*; 35 Ann. 826; 36 Ann, 744.
    Where a defendant has not been cited, but appears in court and contests the cause on any other ground than tbe want of citation, the defect is cured, 9 M. 497; 2 L. 286 ; 31 Anu, 540; 35 Ann. 130.
   The opinion of the Court was delivered by

Todd, J.

This appeal was from-a judgment sustaining an opposition to a tutor’s account.

There is a claim to dismiss the appeal suggested in the appellees.

First, on the ground that the opposition is made by creditors whose claim amounts to only $96.18 principal; and secondly, that the appeal is taken by the accountant Toombs as tutor, whereas the judgment against him, beyond the recognition of the debt of opponents, is against him personally, .and he has not appealed personally.

I.

The first ground for dismissal is not good.

The amount of funds or property in the hands of the tutor belonging to the tutorship exceeds $2,000, and this fact determines our jurisdiction, and not the amount of the opponents’ or creditors’ claim.

II.'

The controversy so far as relates to the demand to have the claim of the opponents recognized as a just claim, and placed upon the account as such, is one exclusively between the creditors and Toombs as tutor, and the judgment of the lower court to this extent is appealable, but in so far as the opposition and the judgment maintaining it adds to the liability and debt of the tutor to the heirs he represents, to that extent it is in favor of the heirs and against the accountant personally, and from which he should have appealed in his personal capacity.

The appeal, except as relates to the claim and its recognition, must therefore be dismissed, and to that extent the appeal is dismissed, and in other respects maintained.

On the Merits.

There was an exception to the opposition on three grounds:

1. That there was no cause of action.

2. lies acbjudicata.

3. Prescription.

Under the plea of no cause of action, it is urged that the claim of the opponents purports to be based on a judgment rendered before a justice of the peace, but the amount and number of judgment are not given.

The title of the suit is given, the name of the justice, the ward and parish are stated. Besides, in the rule taken against the tutor to compel the rendition of the account, there is a complete description of the judgment as to amount due, and in short in every particular the opposition and rule for accounts are but parts of the same proceedings. The omission of tile amount was not, therefore, a fatal defect.

It was contended, however, that the judgment in question was rendered without citation. There appears to have been a citation issued, but no return on the same. It is, however, shown from the record or minutes of the proceeding that an attorney appeared for the defendants and filed a plea to the jurisdiction, which was overiuled. The appearance of the attorney supplied or cured the want of citation. 21 Ann. 27; 23 Ann, 803; 31 Ann. 540; 35 Ann. 130.

Again it is urged that the magistrate court was without jurisdiction to render the jurisdiction.

As stated above, the plea to the jurisdiction was filed in the very suit in which the judgment was rendered and in the court before which the case was pending, and the court held that it had jurisdiction and overruled the plea, and no appeal was taken therefrom. The ruling on this point was therefore final and conclusive.

2d. We find nothing in the record upon which; to found the plea of res adgndicata, and there is no force in it.

3d. The judgment was not prescribed, since ten years had not elapsed since its rendition. The plea of prescription was properly overruled.

For the reason given it is therefore ordered, adjudged and decreed, that the appeal from the judgment of the lower court, so far as said judgment adjudicates a personal liability from. A. S. Toombs to the heirs represented by him be dismissed, and in all other respects the judgment be affirmed at the cost of the appellant.


text:
    No. 191.
    John G. Oriol, Tutor, et al. vs. E. B. Herndon, et al.
    1. "When a community is unliquidated and owes debts, the administration of tbe estate of tbe husband involves that of tbe community, and tbe community property may be validly sold by tbe administrator of the husband’s succession-for tbe payment of community debts.
    2. In case of sale by an administrator to pay debts, rules applicable to alienation of minor’s property do nob apply, and citation to heirs is unnecessary.
    APPEAL from the, First District Court, Parish of Caddo. Taylor, J.

      B. J. Looney and J. JET. Shepherd, for Plaintiffs and Appellants.

      Alexander & Blanchard, for Defendants and Appellees :
   The opinion of the Court was delivered by

Fenner, J.

Salvator and Ellen Justi were husband and wife, living-under the regime of the community.

The wife died in 1872, and the husband about one year later.

The wife’s succession was never opened,'nor was any tutor to the minor children ever qualified until very recently.

Tlie husband’s succession was opened, and the real estate involved in this suit, which stood in his name, but was community property, was inventoried in his succession, and constituted the sole asset appearing on said inventory.

The administrator filed a tableau of debts, amongst which appeared taxes and debts arising during the existence of the community, and due by it; represented that he had no means to pay the debts; that a sale of the property was necessary in order to pay the same; and obtained an order of sale accordingly. After due proceedings, the sale was made and the property adjudicated to defendant herein, who lias since held the same as owner.

The plaintiffs, as heirs of Salvator and Ellen Jusfci, bring this suit to recover the property on the ground of nullity of the above proceedings and sale.

The grounds of nullity urged, are :

1st. That the wife’s interest in community property cannot be sold under proceedings had in the succession of the husband.

Where the community is unliquidated and owes debts, the contrary lias been held too often to require more than a citation of authorities. Durham vs. Williams, 32 Ann. 162; Succession Cason, Id. 792; Succession Boyer, 36 Ann. 515; Killilea vs. Barrett, 37 Ann. 865; Succession Bright, 38 Ann. 141; Succession McLean, 12 Ann. 222.

2d. That the heirs were not cited or made parties.

In case of a sale by an administrator to pay debts, it has been frequently held that the rules applicable to the alienation of minor’s property do not apply, and that citation to the heirs is unnecessary. Carter vs. McManus, 15 Ann. 676; Id. 15 Ann, 641; Vincent vs. D’Aubique, 19 Ann. 528; Davidson vs. Davidson, 28 Ann. 269. The cases in 9 La. 580, and 1 Rob. 381. cited by plaintiffs, do not apply.

Judgment affirmed.


author: Waticins, J.

text:
    No. 193.
    Vicksburg, Shreveport and Pacific Railroad vs. John Lake, Sheriff and Ex-officio Tax Collector.
    The action of the police jury, sitting as a hoard of reviewers, is of a quasi judicial character, and should not he disturbed except for cogent reasons and upon clear and satisfactory proof of error in assessment.

      APPEAL from the First District Court, Parish of Caddo. Taylor, J.

      Wise c(j Herndon for Plaintiff and Appellant.

      Land & Land and M. 8. Oram, District Attorney, for Defendant and Appellee.
   The opinion of the Court was delivered by

Waticins, J.

The plaintiff company claim that a portion of their line of railway, situated in the parish of Caddo, with its rails, roadbeds, etc., being of about twenty miles in length, was by the assessing offlceis thereof placed upon the parish assessment rolls for the year 1885, at a valuation of $170,000, and that said assessment and valuation is erroneous and greatly in excess of the actual cash value of same, “and is not equal and uniform, with assessments of similar property situated in other parts of the State of Louisiana, of equal or greater value.

They allege the true value of their property to be not more than $4,000 per mile, i. e., $80,000 for that section of their railway and appurtenances, and they pray that the assessment be reduced to that rate per mile.

The defendant avers that the plaintiffs’ property was lawfully and fairly assessed for the sum of $170,000, “the actual cash value of its road-bed, iron, tracks, superstructures and other property in Caddo parish, subject to taxation, other than lands and lots assessed separately.”

Quite a number of witnesses were interrogated with regard to the net revenues and running expenses of the road; also with regard to the date of its construction, the cost of its construction, present condition and approximate value.

Plaintiffs introduced in evidence a certificate from the Auditor of Public Accounts, showing in tabulated form what are the assessments for the year 1885 of different railways that traverse different parishes of the State, viz: Illinois Central, Mississippi Valley, Northeastern, Louisiana Western and Texas Pacific; but it does not include their own.

The assessment of plaintiffs’ property iu Caddo was, in 1884, as follows, viz:

Vicksburg, Shreveport and Pacieio. — 1884.

City property..........................................$ 6,400 00

Lands................................................. -20,000 00

Bridge................................................ 100,000 00

Track, etc.............................................. 100,000 00

$226,400 00

The assessment for 1885, viz:

Value of lands........................................$ 30,000 00

City property........................................... 8,900 00

Railroad track, etc..................................... 170,000 00

$208,900 00

(Bridge not on roll, excluded in road-bed).

This shows that, notwithstanding the value of the bridge — separately assessed in 1884 — entered into the assessment of plaintiffs’ “railroad track, etc.,” in 1885, the total assessment of their property had been reduced by the sum of $17,500.

The evidence discloses that plaintiffs made no effort to have the 1884 assessment reduced, and it may be fairly assumed that same was satisfactory.

The learned district judge, in his written opinion, says: “ There can be no doubt that this bridge has increased the value of that part of the plaintiffs’ line located in this parish.

“Without the bridge this part is valueless, except for the rent it pays, and is virtually a more fragment of a road beginning at Shreveport and ending in an old held in Texas. It has not been operated by the plaintiffs’ company for many years, and is now leased by the Texas and Pacific Company as an inlet into Shreveport from the west and north. The construction of the bridge has connected plaintiffs’ system of roads east of the Mississippi and Red rivers, and greatly facilitated the handling of all freight and passenger traffic, which they may secure from the vast region west of the, latter. In short the bridge supplies the missing- link in a chain of railroads connecting and extending eastward from this point to the Atlantic, and westward to the Pacific oceans.

“In view of these facts, it is idle for plaintiffs to deny that the bridge has increased the value of their road in this parish. If it has not, it is difficult to understand why they should expend so large a sum as $300,000 in its construction.

“ The police jury properly considered the bridge as a factor in fixing the general value of the track lying within this parish. * * They could not have done otherwise and not have violated the law.”

Again: “It sometimes happens that a railroad is more valuable m one parish than in another, or more valuable in one than in another part of same parish.

“A great many circumstances go to produce this inequality of value. It may be better constructed, or more recently repaired, or traverse a more populous and productive country, or terminate in a thriving town, or liave "better stations, or terminal facilities at one part tlian at another.

“In fact, a great number of circumstances might be cited as giving a local value to a road greater at one point along its line than at others in the same parish.

“The taxing authorities of every parish must take these things into consideration in fixing values, for the obvious reason that they are elements of value,, and their duty under the law is to assess this value in the parish.”

Again : “ The assessor of Caddo has nothing to do with the valuation put upon railroads in the other parishes, nor can he regulate his valuation by an average of the several valuations of the different parishes, or by an approximation based upon the general value of a road as an entirety.

“ This can be done only by a State board of equalization.”

Again: “ The board of review took into consideration all these different elements of value. It did not select any one mile of the twenty miles of road, as for instance that mile on which the bridge, depot, round-house and turn-table are situated — which, of course, is worth more than ten times as much as any other mile — and estimate the value of the whole road according to the value of this particular mile.

“They assessed the whole twenty miles at $170,000, and found that this amount represented the sum of the values of the several elements considered of — in other words the value of the track and its appurtenances which included the bridge.”

The judge a quo heard all the witnesses and carefully, weighed and considered their evidence. He concludes his opinion by saying: “ The valuation of this property by the assessor was reviewed by the police jury, a body of men supposed to be acquainted with the value of the different subjects of taxation in the parish.

“Their action in the premises is quasi judicial, and is presumed to be based on evidence and inquiry.

“ It ought not to be disturbed unless proved to be erroneous, and I cannot say that such proof has been administered in this case.”

We have read carefully all the evidence in the record, and it has convinced us of the corréctness of his conclusions.

Judgment affirmed.


author: PochJd, J.

text:
    No. 187.
    Julia C. McKenzie et al. vs. Gabriella Bacon et al.
    A suit for the dissolution of the sale of immovable property, coupled with a demand for possession, is not a purely personal action, as it involves mainly the ownership of an immovable; it partakes of the nature of a proceeding in rem.

    Hence sncli a suit may properly be brought in the parish where the property is situated, and in such a case non-resident defendants may properly be^ited through a curator ad hoc without the necessity of subjecting their property under the control of the court by process of attachment.
    APPEAL from the First District Court, Parish of Caddo. Taylor, J.

      H. 0. Miller, F. L. Richardson and Watkins & Watkins, for Plaintiffs and Appellants :
    1.An action for the revendioation of real property is properly brought before the court ' having jurisdiction over the property. C. P. art. 163 ; 0. 0. 56.
    2.Absent defendants in such an action may be represented by a curator ad hoc. 6 Ann. 048,
    3.It the absent defendant is not a necessary party, the suit should not be dismissed as to other defendants who have been cited and have not pleaded to the jurisdiction. Ibid.
    4.An action for revendioation of real property is not a personal action. O. P., art. 41.
    3. [* A curator ad hoc may be appointed, if the absentee becomes a necessary party toa suit betweon other parties lawfully in court. Field vs. Delta, 19 Ann 36.

      T. T. Land, curator ad hoc.

      Alexander <& Blanchard and Wise c6 Herndon, for Defendants and Appellees:
    1. It is now the settled jurisprudence of the Supreme Court of the United States that, except in actions affecting persona! status, or in those partaking of the nature of proceedings in rem, like suits to partition real estate, foreclose mortgages or enforce privileges or Hens, substituted service, as against a non resideut. can be effectual as “ due process of law,” under the fourteenth amendment to the Constitution of the United States, only whore, in connection therewith, property in the State is brought under the control of the court, and is subjected to its disposition by process adapted to that purpose. The question being Federal in its nature, former jurisprudence of this court on this subject must yield to tho authority of the Supreme Court of tbe United States. 35 Ann. L1S4 ; 36 Ann. 796; 95 U. S.,365; 98 U. S-. 714; 10 L., 220, 381; 18 Ann. 682; 23 Ann. 80; 5 It. 418; Story Conf. Laws, pp. 934, 921; Bigelow on Estoppel, pp. 209,210; Tb., pp. 212, 213, 214; Cooley’s Const. Lim., pp- 505, 506, 507.
    2. A probate sale cannot be annulled in a suit to which the vendee is not a party. 3 L. 523.
    3. To rescind a sale so as to place parties in statu qtio, the parties to the sale and the re* cission must be the same. 9 Ann. 75.
    A resolutory condition is implied in all communicative contracts, to take effect in case either of the parties do not comply with his engagements; in this case the coutraot is not dissolved of right; the party complaining of a breach of the contract may either sue for its dissolution with damages, or, if the circumstances of the case permit, demand a specific performance. It. C. C. 2046.
    Personal actions arise from contracts where one has hound himself for his own advantage, as by selling, purchasing, hiring or letting, or by any like contract O. P. 29.
    An action to annul a sale on the ground of non-payment of the purchase price is a personal action, and prescribed by ten years.

      4. This suit is a personal action to annul a contract, and not a petitory action against the non-resident defendants to recover a tract of land. No such action would lio against said non-residents because they are not in possession by agent, lessee or otherwise. C V. 43.
    5. Neither is this suit a petitory action against the vendees of Donaldson, because no such action would lie against them before a judgment dissolving the sale from Donaldson to White was duly obtained and became final,
    6. A non-resident vendor cannot be called in warranty merely by the appointment of a curator ad hoe, and a judgment rendered against him. Pagett vs. Curtis, 15 Ann. 451; Steel vs. Smith 9 Ann. 171.
   The opinion of the Court was delivered by

PochJd, J.

Plaintiffs brought their action for the dissolution of a sale of an immovable for uon-payment of the price, and filed it in the parish of Caddo, where the property is situated. They sought to bring the non-resident heirs of the original vendee into court by means of the appointment of a curator ad hoc. The other and successive vendees and their legal representatives are all residents of the State.

The curator excepted to the jurisdiction of the court on the ground, substantially, that the non-resident defendants, who own no property in this State, and against whom no attachment has been sued out, could not be cited in the mode proposed by plaintiffs, which mode does not constitute due process of law” within the meaning of the fourteenth amendment to the Constitution of the United States.

This appeal is taken from a judgment maintaining that exception and dismissing the suit.

The principal contention of the curator involves the proposition that an action for the dissolution of a sale for non-payment of the price, having for its object the rescission of a contract, is purely a personal action, in which the respective defendants, vendees, are not sued jointly, and that therefore non-resident defendants cannot be legally brought into court by process of citation on a curator ad lwc.

The argument is not tenable, and finds no support in the authorities on which it is predicated.

The demand of plaintiffs is two-fold in its character; it embraces the dissolution of the sale and the possession thereunder of the property. The pith of the controversy under the issues thus tendered presents the question of the title or ownership of immovable property.

The demand for the dissolution of the sale is a’ necessary step required by law as a means of acquiring possession of the property by the vendor, and that feature of the proceeding cannot be invoked as. solely characterizing the nature of the action. The law provides that under the effect of the resolutory condition the contract is not dissolved of right by the failure of either of the parties to comply with his engagements •, the dissolution must be judicially enforced. C. C., arts. 2045, 2046.

The legal effect of the dissolution of a sale under the resolutory condition's to place matters as though the sale had never existed; lienee, it follows that the practical result of the judgment enforcing the condition is to restore the ownership and the possession of immovable property to the previous owner, the complaining vendor.

These conditions lead to the inevitable conclusion that such a proceeding is not a purely personal action as contemplated in our Code of Practice, and as understood in jurisprudence, but that it partakes, of the nature of a proceeding in rem.

As thus defined, the present action falls within one of the exceptions recognized as instances in which a non-resident defendant can be 'legally brought into court without the necessity of bringing any of his property under the control of the court. It is thus clear that the authorities quoted by the curator in support of his contention do not militate against the views which we have just expressed. Laughlin vs. N. O. Ice Company, 35 Ann. 1184, and authorities therein cited from the Supreme Court of the United States.

.' We have considered the decision of this court relied on by the curator in support of his contention that a proceeding of this nature is a personal action. Those cases only go to the extent of subjecting these actions to the term of prescription, which bars all personal actions not otherwise enumerated in the Civil Code under the head of prescription. But in none of the cases was the court called to define authoritatively the precise nature of the action in reference to the classification of action in the Code of Practice.

In each of the cases the issue tendered, and the only adjudication made, involved the plea of prescription of ten years. Jones vs. Crocker, 1 Ann. 440; George vs. Lewis, 11 Ann. 654; Hunter vs. Williams, 16 Ann. 130.

The only reference to personal actions in either of the cases is in the decision of the 11th Annual, and we fail to draw from it the slightest inference that the court intended to classify the suit a personal action. The language used by Judge Spofford reads as follows :

“ We conclude that the present action, not being an action of nullity or of rescisión, is not regulated as to prescription (italics are. ours), by art. 3507 of our Code, * * ' * it falls rather within the general category of personal action, limited to ten years by the article 3508.”

It is clear'to our minds that the question discussed was not the classiflcation of the action, but that the only point made by tbe court was that, as to prescription, tbe action for a dissolution of a contract for non-compliance with the terms thereof must be regulated by the prescription which applies to the category of personal actions provided for in tbe article 3508 of tbe Civil Code.

We therefore conclude that tbe suit was properly instituted in the parish of Caddo, and that this is a case which justified and required tbe appointment of a curator ad hoc, to represent tbe non-resident defendants, (C. P., 166; C. C., 56), and that there is error in tbe judgment appealed from.

It is therefore ordered that tlie judgment of tbe district co.urt bo annulled, avoided and reversed, that the exception interposed by the curator ad hoc be dismissed, and that tbe cause be remanded to the lower court for further proceedings according to law.

Mr. Justice Watkins, having been of counsel, recuses himself.


text:
    No. 189.
    John T. Prude vs. R. C. Morris and J. F. Lucius.
    There can be no contract of sale without a fixed price. Where the consideration of a con - tract called hy the parties a sale, is that the transferee of the property shall settle a certain debt of tbe vendor on the most advantageous terms, without any sum being named, and the transferee takes possession of the property and settles the debt and records his title, though the contract cannot he regarded a sale, yet a creditor of the vendor or transferor, who seizes the property, must first pay out of the proceeds to the transferee in said contract, in possession, the amount that he, the transferee, had paid in settling the debt of the transferor or vendor.
    APPEAL from tbe Eleventh District Court, Parish of Sabine. Pierson, J.

      Pugh & Goss for Plaintiff and Appellee.

      J. F. Smith for Defendant and Appellant.
    Evidence which tends to show the intention of the parties, and to show the real consideration in a contract of sale, is clearly admissible.
    Although the vendor intended to defraud his creditors, if the real vendee was not a party to such fraud, the sale, as to him, cannot be annulled. 26 Ann. 467; 34 Ann. 883; ID L. 594.
    In a revocatory action it must he shown that tbe vendor was insolvent, or was not possessed of sufficient property to pay bis debts at the time of the transfer. 28 Ann. 454.
    The payment of a price less than that stipulated in the aet of sale does not make the sale simulated. 19 Ann. 53.
    Where the defendant in his answer avers that the purchase was made for a “good and sufficient consideration,” and shows that the sale covered an actual contract to secare tbe payment of a just debt, the actual contract will he enforced. ‘ 32 Ann. 95; 31 Ann. 348 ; 30 Ann. 966»
   The opinion of the Court was delivered by

Todd, J.

This is an action in declaration of simulation, in which the plaintiff, an alleged creditor of the defendant Monis, seeks to have declared simulated and void a conveyance of certain property described in the petition, from Morris to his co-defendant, Lucius.

There is a motion to dismiss the appeal on the ground that the matter in dispute is under the lower limit of the jurisdiction of this court.

It is true that the debt sued for is under $2000, but the property embraced in the alleged sale, according to the pleadings and the estimates by several witnesses on the trial, exceeds that sum; and this' latter fact or consideration, determines the question of jurisdiction in favor of the demand in suit.

The motion to dismiss is therefore denied.

On the Merits.

The main questions involved in this controversy are purely questions of fact, to be governed by the evidence in the record.

Wo find that plaiutiff is a creditor of the defendant for the amount claimed in the suit. The debt is evidenced by promissory notes, which plaintiff and defendant both testify on oath are unpaid.

Upon the question of simulation the evidence is, as usual in such cases, very conflicting. It, however, appears as undisputed facts, that at the time of the alleged sale Morris, the ostensible vendor, was indebted to one Johnson in the sum of $21,000, evidenced by his promissory note. A few days after this sale, it is shown, that Lucius, the vendee named in the said alleged sale, settled this debt of Morris to Johnson, paying him $1125. This was paid, so far as the record discloses, by him (Lucius), out of his own means.

Lucius, moreover, swore on the trial of the case, that the consideration of the alleged sale, as agreed on and understood at the time, be tween him and Morris, was that he should settle this debt of Morris to Johnson. If there was no such agreement, an assumption on the part of Lucius, then he paid out this amount to Johuson gratuitously, since he was in no manner bound to him for the debt apart from, his alleged assumption of the debt in the act in question. lu addition to this, it is shown by the testimony of Mr. Smith, the attorney for the holder of this claim, that a short time after this alleged sale, and when he was pressing Morris for the payment of the debt, he was told by him (Morris) that under an agreement with Lucius, lie (Lucius) was to pay this debt in consideration of the transfer he had made of his stock of goods, etc., to him.

We are, therefore, forced to the conclusion that, although the price expressed in the written deed from Morris to Lucius — $1825 cash — was a mere nominal price, in point of fact, there was a real considertion tion for the contract, viz : the settlement of this Johnson debt.

If this was so, then the act in question was not a pure fiction.

The contract may not, in truth, have been a sale because the price was not fixed and certain ; but there is a reality about it. The effect of it was to place Lucius in possession and control of the property under an apparent title in consideration of Lucius settling for Morris a certain debt.

It was one of those innominate contracts closely resembling a pledge. After Lucius settled this debt by paying Johnson $1,125, Morris certainly could not have demanded the return of the property without reimbursing Lucius this sum and the plaintiff, as a creditor of Morris, stands in no more favorable position. Lucius is entitled to reimbursement for the amount he has paid out.

The facts of this case are almost exactly parallel with those in the case of Wang & Cottam vs. Martin Finnerty et al, 32 Ann. 95, and we shall so shape our decree as to conform to the precedent found in that case.

It is therefore ordered, adjudged and decreed, that the judgment of the lower court, so far as it decrees the payment by Morris to the plaintiff of the amount with interest therein specified, and maintains the attachment and orders the sale of the property seized, be and the same is affirmed and in all other respects annulled and reversed; and proceeding to render such judgment as should have been further rendered, it is further ordered, adjudged and decreed that the property described and embraced in the contract between plaintiff and R. C. Morris of date 16th January, 1885, and attacked as simulated in this suit, be and the same is decreed subject to plaintiff’s judgment and seizure, but that from the proceeds of the sale of the same J. E. Lucius, defendant, be paid by preference eleven hundred and twenty-five dollars with legal interests on the same from the 24th day of March, 1885, the.costs of the lower court to be paid by the defendant Morris, and of this Court by the plaintiff.


text:
    No. 190.
    John G. Oriol, Tutor, et al. vs. Mouning Moss et al.
    Want of notice of order of seizure and sale or of the seizure, where [he defendant administrator has waived such notice, comes within the irregularities referred to in C. C. article 3543, and are cured by the prescription of five years, which runs against minors.
    A purchaser at a judicial sale under an order of seizure and sale of a court of competent jurisdiction, in a proceeding against the legal representative of the person in whose sole name the property stood of record, without knowledge, express or implied, of the existence of any claim of a deceased wife in community, is a purchaser in good faith, and although the heirs of such deceased wife may recover her share of the property, they are entitled to revenues only from date of their claim, and must reimburse the expenditures of defendants, such as taxes.
    APPEAL from the First District Court, Parish of Caddo. Taylor, J.

      B. J. Looney and J. B. Shepherd, for Plaintiffs and Appellants.

      Alexander & Blanchard, for Defendants and Appellees :
    1.Where minor heirs claim the property of their ancestor, for alleged illegalities in the sale thereof, they must, as a condition precedent to suit, return or offer to return the purchase price of the property which enured to their benefit by going to paya debt due by such ancestor. 21 Ann. 383, 425; 24 Ann. 324; 26 Ann. 234; 28 Ann. 269; 30 Ann. 174, 891, 1232 ; 3 Ann. 121.
    2.All irregularities and informalities connected with or growing out of any public sale are cured by the lapse of five years, and this prescription runs agains minors. C. C. 3543; 21 Ann. 584 ; 24 Ann. 24; 29 Ann. 534; 33 Ann. 673, 1048; 34 Ann. 205. Want of notice of seizure, want of actual seizure, want of appraisement, and waiver of notice of order of seizure and sale by an administrator, have all been expressly held to be covered by this prescription. 24 Ann. 24; 33 Ann. 1043,
    3.A bona fide purchaser at a judicial sale is protected by the decree. He is not bound to look beyond it. 2 Ann. 466; 14 Ann. 622; 19 Ann. 353 ¡ 20 Ann. 124 ; 32 Ann. 292; 3G Ann. 444

      4.A purchaser in good faith is liable for rents only from judicial demand. 0. O. 3453; 27 Ann. 398; 34 Ann. 127; 35 Ann. 1090; 38 Ann. 150.
    5.Such a purchaser is entitled to be reimbursed for all improvements made or taxes paid by him on the property. O. C. 3453. And he is entitled to be so reimbursed, even when the title under which he holds is declared to be an absolute nullity. 34 Ann. 407, 705; 35 Ann. 1080.
   T)ie opinion of the Court was delivered by

Fenner, J.

Plaintiffs sue as children and forced heirs of their father and mother, Salvator and Ellen Justi, between whom existed the community of acquets and gains, which community, in 1871, acquired, by purchase in the name of the husband, lot No. 11, of block 42, of the town of Shreveport, which is the subject-matter of this controversy.

Mrs. Justi died in 1872. Her succession was not opened, nor did the father qualify as natural tutor of the rumor children.

In 1873, after the death of the wife, Justi, in whose name the title stood, granted a mortgage on the property to secure a debt created and due by himself individually, in favor of one Dalpino.

Justi died, and his succession was opened and administered by the public administrator.

Thereafter, Dalpino proceeded, in the district court, against the succession of Justi, for a foreclosure of his mortgage, by executory process. The attorney of the public administrator, and subsequently, the administrator himself, accepted service of the petition for foreclosure, and waived all other and further writs, notices and delays, and agreed that the property be sold on the sale day of August, according to advertisement.

Notwithstanding this waiver, it appears that all delays and formalities were fully complied with, excepting only the notice of seizure, which, notwithstanding the waiver, was issued, but only served on the attorney of the administrator.

At the sale, under these proceedings, defendant became the adjudicatee. of the property for the price of $500, and has since possessed the same.

Plaintiffs, as heirs of their father and mother, attack this proceeding and the sale under it, as absolute nullities, and claim the property with its revenues.

I.

There can be no doubt that, at the dissolution of the community, Salvator Justi became the owner of an undivided half of this property, and that, as against this half, his mortgage was perfectly valid.

Plaintiffs claim, however, that the mortgage was inoperative as to them, because it was not recorded until after Justi’s death, and because, as forced heirs, they stand as creditors of the succession, citing McCarty vs. Bond, 9 La. 354; Boyles vs. Escofier, 2 Ann. 872; Suc. Harkins, 2 Ann. 923; Suc. Rhoton, 34 Ann. 896, and Rev. C. C. 2264, 2266, 3342, 3347, 3363.

This position is utterly untenable. It is true that, under the above authorities, a mortgage not recorded until after the death of the mortgagee, is without effect against his creditors; and it is also true that, in a certain sense, and for the purpose of attacking disguised donations, simulated transfers and like devices of the ancestor, to defraud them of their legitime, forced heirs are assimilated to creditors, and are granted similar rights.

But, as against real and bona fide creditors of their ancestors, they have no greater rights than other heirs, because their claim as forced heirs only attaches to the residue left after payment of such debts. There is no dispute of the validity and reality of the debt and mortgage of Dalpino, and, even without registry, they were binding as against his succession and heirs whether ordinary or forced.

Plaintiffs next assert the nullity of the sale on the ground of certain nullities in the proceedings, viz: Want of notice of order of seizure and sale, insufficiency of waiver by administrator to cure same, issuance of notice of seizure by sheriff instead of by clerk and service on attorney instead of on the administrator.

The record does not show that the notice served by the sheriff was not signed by the clerk.

Even if it did, the very authorities cited by plaintiffs show that such defect could not be urged to defeat the title of a purchase at such sale. Hart vs. Pike, 29 Ann. 262; Billgery vs. Ferguson, 30 Ann. 86; Suc. Sadler vs. Henderson, 35 Ann. 806.

This, however, and the mode of service are of little consequence, because all the defects urged have been held subject to the prescription of five years under art. 3543 of the Code, which is pleaded herein, and, by the terms of the article, runs against minors. Munholland vs. Scott, 33 Ann. 1043; Allen vs. Couret, 24 Ann. 24; Woods vs. Lec, 21 Ann. 506.

We are not to be understood as extending this doctrine to entire absence of notice, but only to cases where there has been a waiver or the like, showing actual notice.

We conclude that the judge a quo has rightly rejected plaintiffs’ demand so far as it affects the husband’s half of the property.

II.

There is no controversy as to the right of plaintiffs to recover the share of their mother in the property.

The only question is as to the relative rights of the parties with regard to revenues and improvements.

The defendant was certainly a possessor in good faith.

She was a purchaser at a judicial sale, made under a decree of a court of competent jurisdiction, in a proceeding against the legal representative of the person in whose sole name the property stood upon the records. Nothing on the face of the proceedings or of the records suggested any other ownership than that of the debtor proceeded against; nor is there any hint that defendant had actual knowledge of the latent rights of Mrs. Justi, or even that she had ever existed.

Defendant possessed as owner by virtue of an act sufficient in terms to transfer property, the defects of which he was ignorant of,” C C. 503, and bad just reason to believe herself the owner. C. C. 3451. Hutchinson vs. Jamison, 38 Ann. 150; Barrow vs. Wilson, 38 Ann. 209; Giddens vs. Mobley, 37 Ann. 417; McCloskey vs. Webb, 4 Rob., 205.

It follows that she is only liable for rents from judicial demand, and is entitled to be reimbursed the expenses she has incurred on the thing. C. C. 3453.

The defendant claims, and was allowed reimbursement of half the taxes which had been paid on the property, and this was unquestionably correct. She was also condemned to pay rent from judicial demand.

Judgment affirmed.


author: Poché, J.

text:
    No. 184.
    William Enders vs. Gingras, Mulhaupt & Co.
    A. party who contracts with a factory for the manufacture of certain goods, and receives a partial delivery of such without objections or complaint cannot, subsequently complain as an alleged violation of the manufacturer’s obligation under the contract that the goods had not been manufactured in conformity thereto.
    After the debtor has been putín mora, his offer to execute the contract under his engage- ' ment comes too late.
    A PPEAL from the First District Court, Parish of Caddo. Taylor, J.

      Land & Lcmd, for Plaintiff and Appellant:
    1. In order to put the debtor in default, the demand that the contract shall be carried into effect must be made either by suit, in writing, by a notarial protest, or in presence of two competent witnesses C. O. art. 1911; 30 Ann. 264; 37 Ann. 659.
    2. The husband, who was agent of his wife, is not a competent witness for her or her co-defendants, all being members of the same firm and having a common interest. C. C. 2281; 1 Greenleaf, sec. 334, 335, 342; 1 Phil. EV., see. 83; 38 Ann. 106.
    3. Though there have been repeated violations of a contract by both parties, yet if neither elects to consider it broken, and they proceed under it, neither can he considered in default. 3 Ann. 285.
    4. In commutative contracts, the party desiring to put the other in mora must perform or offer to perform his part of the contract. C. 0.1914 ; and having done so must make his demand as required by Art. 1911, C. C.
    5. The facts stated in an affidavit for a writ of sequestration aro taken as true, primafacie. 15 Ann, 574. After pleading to the merits defendants cannot question the regularity of the writ in point of form, and on the trial of the merits the question of privilege is the only one that can he raised. 7 Ann. 337.
    6. The prayer of defendants for “general relief” in reconvention would justify a decree dissolving the contract, though the plaintiff might not be entitled to such a decree. H. D., p. 734 (4); No. 5, 11 Ann. 69.

      Alexander <& Blcmehard and J. LL. Shepherd, for Defendants and Appellees:
    1. The stipulation in the contract as to the delivery of the hedsteads on the 1st of October was waived by the plaintiff. He not only did not put the defendants in default, but by’ accepting the delivery after that time, waived this right to claim a dissolution of tlio contract. C. C. 1911, 1912, 1913; 8 L. 569 : 18 L. 88; 1 B. 325 ; 4 Ann. 148, 243.
    2. By the terms of the contract, plaintiff bound himself to pay for the bedsteads, at the factory, on delivery. The plaintiff having failed to do this, defendants were no longer bound to continue the delivery. 37 Ann. 835.
    3. Plaintiff was regularly put in default by a formal verbal and written demand in behalf of defendants, for payment of the sum due them for furniture already delivered, accompanied by a formal tender of another lot then completed. This demand and tender was on October 13, and the plaintiff was thereby in default from that time.
    Hino days after his being thus in default himself, the plaintiff attempted to put defoudauts in default.
    “After the debtor has been put m -mom, bis offer to execute liis engagement comes too late and cannot be listened to.” 14 Ann. 713; 8 R. 161.
   Tlie opinion of the Court was delivered by

Poché, J.

This litigation grows out of the following contract:

“ State of Louisiana, Parish of Caddo. — This contract, made and entered into this day between Wm. Enders and G-ingras and Sellmeyer, witnesses that the said parties have entered into the following contract:

“Wm. Enders obligates himself to deliver to said Gingras and Sellmeyer 200,000 feet of beech, gum and pine lumber within one year following the date of this contract, said lumber to be of good merchantable quality, for the purpose of manufacturing into furniture and cut into such dimensions as the said G. and S. may require for the purpose of manufacturing; same to he delivered on the cars at Shreveport, in sufficient quantity to keep the factory at work, and of such kind and quality as the said G. and S. may call for. G. and S. are to pay for said lumber at the rate of $12.50 per 1000, and agree to pay the freight on same when delivered) and deduct the amount so paid from the invoice on settlement with Enders. The said Enders agrees on his part., to take all the bedsteads or other furniture made at the factory of said G. and S. within the said year in lots as finished at factory, and pay for same at the prices agreed upon for same cuts or photographs of the kind and prices of said furniture are annexed to this contract as part of it. The furniture to be finished in a workmanlike manner in accordance with said photograph or samples, and to be paid for on delivery at the factory, as follows : Two-thirds of total amount in cash and the balance, one-third, to be credited on the lumber account for lumber furnished by said Enders until the same is paid.

Gingrass and Sellmeyer obligate themselves to make not less than 3000 bedsteads within the year, one' thousand (1000) of which to be furnished by the 1st of October, 1885.

“ This contract is renewable at the option of both parties at the end of the first year. Either party desiring to change or cancel same, is to give the other party sixty days notice thereof prior to the expiration of the year, otherwise this contract to remain in force for another year..”

Mrs. Mulhaupt subsequently became a member of the firm.

Plaintiff’s demand is for a dissolution of the contract on account of the violation of the same by the defendants, for consequential damages in the sum of $1386, * * and for the sum of $732, as the unpaid balance due on the lumber furnished by him under the contract, with vendor’s privilege on the same. He obtained a writ of sequestration of the lumber on hand, in kind and in process of manufacture.

The defense is a general denial, an averment of a compliance with their contract by the defendants, of the violation of the same by plaintiff, and it ends with a prayer for the rejection of his demand for a balance on furniture delivered to plaintiff, and with a demand in re-convention for damages in the sum of $10,200. * *

Plaintiff appeals from a judgment which rejects his demand, dissolves his writ of sequestration, and condemns him to pay to defendants $219.65 as balance on account of furniture delivered to, and accepted by him.

The district judge rejected defendants’ demand in reconvention for damages, reserving their right to claim damages on account of the sequestration.

The defendants have not prayed for an amendment, hence their claim for damages, growing out of the alleged violation of the contract is eliminated from discussion.

The pivotal point of the controversy hinges upon the alleged violation of the contract by the defendants, and the consequent right of plaintiff to sue for the dissolution.

The case was very hotly contested, numerous questions of law are discussed by counsel, and the voluminous evidence in the record is sadly conflicting.

Prom that mass of testimony we have reached the conclusion with the district judge that plaintiff has failed to make out his case.

It is true that the defendants utterly failed to furnish the 1000 bedsteads which the contract called for, by the 1st of October, but on the other hand, the record shows conclusively that plaintiff, by his acts, unequivocally waived that feature of the contract.

He received after that date, in sundry lots, more than two hundred bedsteads, on which he made part payments without complaint or objection.

And the record further shows that he himself then became deficient in the performance of his obligations under the contract, by refusing or neglecting to pay the balance due on the goods which had been delivered to and received by Mm. It was at this juncture that he was put in default by the defendant by a demand in writing, in which he was notified that some 350 bedsteads were in the factory subject to Ms order under the contract, which demand was made simultaneously with a demand for the payment of the balance due by him. Landeche vs. Sarpy, 37 Ann. 335

We note, in this- connection, his contention that the furniture delivered to him had not been made in conformity to the specifications agreed upon, and that the same was not merchantable. The evidence does not bear him out. It shows some slight and almost imperceptible differences between the samples furnished and some pieces of the furniture made and delivered, but not sufficient to justify even a complaint.

And again, his own conduct in receiving the same without objection, in not contesting the correctness of the bill therefor, confirms that conclusion, and estops him from later complaints on that score.

The record there shows that some nine days after he had been formally put in default, he made the attempt to put the defendant in mora by serving on them a written notice to comply with their contract.

His demand for the dissolution of the contract is in the main predicated on that attempt. But it cannot avail him $ it came too late.

The fact of his having himself been previously put in default debars Mm of the right to call for the specific performance of the contract by the defendants. Moreau vs. Chairvin, 8 Rob. 161; Morrison vs. Wimberly, 14 Ann. 713.

We note the logical suggestion of plaintiff’s counsel that an affirmance of the judgment rendred below will apparently continue in existence a contract with which both parties are' manifestly dissatisfied, and that more litigation will follow in the wake of such a condition of things. But courts cannot be and are not concerned with such considerations. They must decide the issues which are presented by the pleadings, and cannot go beyond those limits. In this case the issue was the right of plaintiff to demand a dissolution of the contract. We find against him, and we can adjudicate nothing else.

We note the bill of exceptions taken by plaintiff to the ruling of the district judge in admitting the testimony of Mnlhaupt, tire husband of one of the members of the firm, but as we have not considered his testimony at all, we have obviated the necessity of a discussion on an unimportant question, which we relegate to some case in which a solution of the same will be imperative-

judgment affirmed.


text:
    No. 192.
    A. R. Ketchum for Fred. Ketchum vs. Texas and Pacific Railroad Company.
    A railroad company is responsible in damages for injuries sustained by a person who is run over by one of its engines at one of its crossings on the street of a city, when it is shown that the engine was being driven at a rate of speed unusual in a depot yard, and beyond the limits of speed allowed under its own regulations, and that no signals by either whistle or bell was given of the approach of the engine*
    A Yerdict of the jury allowing $10,000 damages for injuries caused by such an accident to a boy who lost an arm thereby, and who belongs to a laboring family, will not be disturbed on appeal. The allowance is not excessive.
    APPEAL from the First District Court, Parish of Caddo. Hides, J.

      T. F. Hell for Plaintiff and Appellee.

      Wise & Herndon for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

The defendant company appeals from a judgment based on the verdict of a jury, in the sum of ten thousand dollars as damages for injuries inflicted on plaintiff’s minor son by one of the engines of the company through the alleged carelessness of the engineer, one of its employees.

The main defense is the alleged contribution ; negligence of the injured boy, who was eleven years of age at the time of the accident.

The law of the case is too well settled in jurisprudence to require any discussion at the present time.

The principles which defendant’s counsel contend for find ample support in numerous authorities including our own reports, namely: that in damage suits tho party injured cannot recover if he contributed to produce the result, or in other words, if both parties are in fault, neither can recover damages from the other, and that children who have reached the age of reason, can be guilty of imputable contributory negligence which will bar a recovery on their part. Childs vs. R. R. Co., 33 Ann. 154; Lott vs. R. R. Co., 37 Ann. 337.

But the evidence in the record removes the case far beyond the domain of either of the rules; it satisfactorily establishes the following state of facts:

The accident occurred in the city of Shreveport at a railroad crossing on one of the streets, the only avenue to a large cotton oil mill, to which an average of one hundred vehicles are driven each day, and which is situated nearly opposite the defendant’s main depot in Shreveport, from which it is separated by the railroad’s main and two switch tracks.

The boy had gone into the mill-yard on a wagon loaded with cotton seed, and after the wagon had been emptied of its load, and was being weighed on a pair of scales under a shed adjoining the oil mill office, a short distance from the road, he undertook, at the request of the regular driver of the wagon, to drive the team across the track to the street.

Knowing that an engine was taking water at a tank at a distance of about 350 feet east of the crossing, and that it would soon pass at that point, and being prevented by buildings from seeing the engine from the place where the wagon stood, he took the precaution to go out to the track to ascertain whether the engine was moving, and as it was yet standing still, he returned to and in the wagon and began to drive out, but before he had cleared the track the hind end of the wagon was stricken by the locomotive, and he was thrown under the engine, by means of which his arm was shattered and had to be amputated above the elbow.

The testimony shows that the boy frequently rode back and forth in that wagon, with the express permission of his father and of the teamster for the purpose of learning how to drive, and that he took every precaution which even mature experience could suggest to cross the road before the engine could be on him. Hence we agree with the jury in the conclusion that no negligence can reasonably be imputed to him in the premises.

On the other hand, the preponderance of the evidence goes to show that the engine was driven at a rate of speed unusual in a town or city, and far beyond the limit prescribed by the regulations of the company; and that when the engine approached the mill, no bell was rung and no whistle was blown. The limit allowed for speed in depot yards is four miles per hour, and the engine was then running at a speed of ten to twelve miles an hour.

Our conclusion is therefore clear that the accident is rationally attributable to these two causes and to no other circumstance. Hence it was carelessness and negligence ou the part of the engineer, for which tlie company must be held responsible.

That conclusion is fortified by the omission of the company to introduce the evidence of the engineer who had charge of the engine at the time of the accident, which occurred in broad daylight. Day vs. R. R. Co., 35 Ann. 694.

The measure of the damages is the only point left for our consideration, and we note that this question was not discussed by either counsel on appeal.

Defendant’s exclusive hope of relief was apparently in the contention of contributory negligence on the part of the injured boy.

The sum allowed by the jury at first appeared excessive to our minds.

But after considering that the boy is the son of a laboring man, without property or means, and that for the balance of his life lie will be deprived of the use of so important a limb, absolutely indispensable to the performance of manual labor, we do not feel justified to disturb the finding of the jury.

Judgment affirmed.