text:
    No. 7717.
    Hernsheim & Brother vs. L. A. Levy.
    ■Where defendant in attachment reconvenes, the allegation in 1ns plea in reconvention that “ plaintiffs by their unlawful attachment of his goods have damaged him in his business to the amount of ten thousand dollars,” is sufficiently clear and certain to admit of any evidence tending to show the amount of the pecuniary loss suffered by him in his business by reason of the attachment.
    An attachment based upon.lsTos. 4 and 5, art. 240, K. O. P. cannot bemaintained without satisfactory proof of some act indicating the fraudulent intent of defendant to place his property beyond the reach of his creditors, or to give an unfair preference to some of them. The daily selling of his goods, in the regular course of his business, by permanent dealer, is not such an act, although he be financially embarrassed.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Boarman, J.
    Alexander & Blanchard and Looney & Elstner for plaintiffs and appellants:
    First — That misrepresentations as to the ownership of goods by the defendant after the ownership had ceased, supplemented by other suspicious circumstances, will justify the plaintiff in attaching. 29 An. 635.
    Second — The plea in reconvention is not sufficiently explicit of the cause of action, in stating the manner in which defendant was damaged— how damaged — the items going to make up this aggregate of damage, etc. 6 M. 510.

      “ Every circumstance which may be considered proper to be known, in order to put plaintiffs on a just defense of the reconvention, ought to have been stated.” — Id.

      The plea is too vague and indistinct; general allegations will not suffice ;• plaintiffs ought to -have been informed of the nature of the damages intended to be proven in order to prepare themselves to disprove it. 17 L. 371; 2 R. 216 ; 2 N. S. 85 ; 5 N. S. 18 ; 3 R. 258, 364 ; 2 An. 932 ; 7 An. 635 ; 9 An. 6 ; 4 An. 381; 11 R. 347.
    “A general allegation of indebtedness in a gross sum, without specification of the time, place, or manner in which the debt accrued, is too vague to authorize proof of it.” H. D. p. 1155, No. 5 ; 6 L. 77.
    “ Pleas in reconvention must be set forth with the same certainty as to amounts, dates, etc., as if advanced in a direct action.” H. D. page 1173, No. 1.
    T. P. Bell and J. 0. Moncure for defendant and appellee :
    First — That a resident debtor is not amenable to the writ of attachment for selling goods in the usual course of trade.
    Second — That one who has been illegally attached has a right to recover all damages caused by such attachment.
   The opinion of the court was delivered.by

Marr, J.

Plaintiffs, merchants of New Orleans, brought this suit against defendant, a merchant of Shreveport, for the balance due on account, some $2000. The petition charges that plaintiffs “ verily believe that defendant has assigned or disposed of, or is about to assign and dispose of his property, rights, or credits, or some part thereof, with intent to defraud his creditors, or give an unfair preference to some of them ; or that he has converted,' or is about to convert his property into money or evidences of debt, with intent- to place it beyond the reach of his creditors and they prayed for an attachment. An agent of plaintiffs made affidavit that the allegations of the petition were true, “ to the best of his knowledge and beliefand the attachment was ordered. Writs were issued to the sheriff of Caddo, and to the sheriff of Webster parish, under which the sheriff of Caddo seized the lease for three years of defendant’s store at Shreveport, appraised at $500 ; the-stock of goods appraised at $5607 32 ; and other effects, appraised at $335 ; and the sheriff of Webster seized, in the store of A. Levy, at. Minden, the stock of goods, appraised at $2381 25.

Defendant moved to dissolve the attachment on the ground that, the allegations of the petition and affidavit were not true, and did not. warrant the attachment. .This motion was referred to and tried with the merits. In his answer defendant adopted the allegations of his-motion to dissolve; and he plead the general denial. He alleged that plaintiffs were non-residents of Caddo parish, and that “ by their unlawful attachment of Ms goods, they have damaged Mm in his business to the amount of ten thousand dollars,” for which he prayed for judgment in reconvention.

There was no dispute as to the account of plaintiffs ; and there was judgment in their favor for the balance due. The attachment was dissolved ; and there was judgment in favor of defendant, on his recon-ventional demand, for $1425, general damages, and $250, special damages for attorney’s fees, aggregating $1675. Plaintiffs appealed suspensively ; •and defendant, in answer to the appeal, prays that the damages be increased.

On the trial plaintiffs objected to all the evidence offered by defendant to prove damages caused by the attachment, on the ground that the •demand in reconvention was too vague and uncertain to authorize proof. The district judge overruled this objection. Defendant’s only cause of complaint was the unlawful attachment of his goods. The •allegations on which the attachment was granted were traversed ; and the facts, which it would have been necessary to recite, in an independent suit for damages, already appeared of record in the cause. On the dissolution of the attachment the plaintiffs would be liable in damages ; and the most direct and obvious damage would be that which defendant would suffer in his business by the seizure of his goods, and the closing of his store. Plaintiffs have no cause to complain that defendant chose, iby his pleading, to limit his demand in reconvontion to the actual pecuniary loss suffered by him in his business; and the allegations of the answer are sufficiently clear and certain to admit of any evidence tending to show the amount of the pecuniary loss suffered by defendant in his business, by reason of the attachment.

The questions to be determined are:

1. Was the attachment wrongfully obtained ?

2. If it was, what pecuniary loss and damage resulted to defendant?

We shall endeavor to give a condensed statement of the facts upon which the s ;lution of these questions depends, without attempting to analyze the entire mass of testimony in this voluminous record, much of which we consider irrelevant.

Defendant commenced businéss at Shreveport in 1872. He was young, energetic, and industrious ; and he acquired a good reputation as a business man, and built up a profitable business. Notaries and ba'nk officers testified that he met his pecuniary engagements promptly ; and that his name had never been dishonored by protest.

In December, 1877, Tomkies’ Bank, in which he kept his account, failed, with a balance to his credit of $1800, about half of which was lost. In February, 1878, his store, the upper part of which he occupied as a dwelling, was destroyed by fire. He was covered by insurance to the extent of $11,000 ; but his books and papers were burned ; and he bad some difficulty in making a satisfactory statement of his loss, which he estimated at $22,000, in goods, furniture, and apparel. The insurers .■sent agents and adjusters to make a settlement with him ; and they dually offered to pay him something over @8000, with the alternative of immediate acceptance, or a lawsuit. He accepted the amount offered, .as a compromise, and to avoid tne ruinous delays of a litigation with the underwriters. He says, and there is no proof to the contrary, that (he used this money in paying his debts, dollar for dollar. On the third ■day after the fire he wrote to plaintiffs that his insurance would pay his debts, and for the furniture which he needed ; that he believed his credit was good every where ; and that the bank would indorse for him for all he wanted. The object of this 'letter was, through the influence of plaintiffs, to procure furniture on credit, for immediate use.

On the failure of Tomkies’ Bank, Johnson, a banker at Shreveport, without solicitation or request on the part of defendant, offered to assist him pecuniarily ; and on the 28th December, 1877, Johnson’s Bank •opened an account with him, beginning with a deposit of @50, and a check of same date for §321; and he was allowed to overdraw as convenience required. In April he took a lease, for three years, of a new store, at ■the annual rent of @1000, payable monthly; and, with the assistance afforded by the bank, he fitted up the store and commenced business •again, carrying but a small stock during the summer.

In September defendant went to New York, and purchased goods •on time ; and he made arrangements there, and at St. Louis, to have his -orders filled as his business might justify and require. Shortly after his return from New York one Eocke, traveling agent for plaintiffs, ¡arrived at Shreveport; and while he was there he received instructions from plaintiffs to press the settlement of the account due by defendant. 'The immediate cause of this seems to have been that when defendant, was in New York he did not call at plaintiffs’ establishment in that city, which was abranch of their New-Orleans house. When Eocke mentioned this to defendant, defendant told him he had not called on plaintiffs in New York for want of time ; that he did not intend to increase his indebtedness to plaintiffs until he had made some payments ; that he had on his shelves but few goods in plaintiffs’ line ; that he would pay Eocke ••something on account; and would give his notes for @100, payable weekly, or for @200, payable every fifteen days, until January, when he would be able to pay the whole. He attributed his present inability •to pay to the loss by fire, and the rigid quarantine, caused by the epidemic of 1878, which had seriously interfered with business. Nevertheless, he paid Eocke $100, on account on the 16th October.

There was much correspondence between Eocke and plaintiffs, by •¡telegraph, the Jesuit ,o.f which was that Eocke was authorized to take defendant’s notes, at short dates, to be secured by indorsement. Defendant said he had never indorsed for any one; that it was a delicate-matter to ask any one to indorse for him ; that his name was good enough; and that he had never been protested. Finally, he said his-brother at Minden, whose indorsement Focke was authorized to accept, would be at Shreveport on Sunday; and that he would indorse the notes.

For some reason the brother did not come, but his brother-in-law Peiser, the managing partner of the Minden house, came. He refused to indorse, and said the Minden brother would not indorse the notes ;■ and, after some discussion, in which defendant told Focke he could not compel any one to indorse for him who was not willing, Focke left, telling defendant he must take the consequences. On the next day,. Monday, 21st October, by authority of a telegram from plaintiffs of same date, this suit was brought and the goods were attached.

Focke arrived at Shreveport on the 12th October. He had no personal knowledge as'to the allegations of fact on which the attachment was issued; and he made the affidavit, as agent, “ to the best of his knowledge and belief.” There is nothing positive in these allegations.. The plaintiffs verily believe “ to the best of the knowledge and belief ” of' their agent, that defendant has assigned or disposed of, or is about to-assign and dispose of his property, rights, or credits, or some part thereof, with intent to defraud his creditors, or give an unfair preference-to some of them ; or that he has converted, or is about to convert his. property into money or evidences of debt, with intent to place it beyond the reach of his creditors. It is not possible to say what plaintiffs verily believed defendant had done, or what he was about to do. If an attachment can be validly issued on such an affidavit, a point which we-shall not now decide, it cannot be maintained without satisfactory proof of some act on the part of defendant, plainly indicating the fraudulent intent to place his property beyond the reach of his creditors, or to give-an unfair preference to some of them.

In October, 1877, when defendant was doing a large business at. Shreveport, he established a store at Minden, under an agreement with his brother, A. Levy, and his brother-in-law, H. Peiser, that, when they-returned to him the #900, advanced by him in starting the business,, they should be the sole proprietors. The proof is that this amount was-returned early in January, 1878. The business which had been conducted in the name of defendant alone, was thenceforth conducted in the-name of A. Levy ; the license and lease were taken in the name of A. Levy;- and the sign, and the advertisement in the local paper were changed by substituting the name of A. Levy for that of defendant. A. Levy really meant the partnership composed of A. Levy and H. Peiser; and Peiser, from the beginning, was the business manager of the concern.

The first purchases for the Minden store were made by defendant. After liis interest ceased all the purchases were made in the name of A. Levy, by Peiser in person, or in orders. In February, 1878, Peiser purchased goods of plaintiffs, in person, in the name of A-Levy; and they were marked A. Levy, and shipped to A. Levy at Minden. Peiser told plaintiffs that he was a partner in the firm of A. Levy, and from that time A. Levy was a regular customer of' plaintiffs. Goods were purchased, for the Minden store, of Gregg & Ford, of Shreveport. At first defendant told Gregg & Ford that he* was interested in the -Minden store. Afterward, he told them he was no longer interested ; and goods were thenceforth purchased of Gregg & Ford, either by Peiser in person, or in orders, and always-in the name of A. Levy. The Minden house was always a customer of defendant, and ordered goods, and paid for them, sometimes in .money, sometimes in drafts. Defendant paid plaintiffs for one bill only purchased for the Minden house, and that was the first; and Peiser says the Minden house furnished the money.

It seems that some one at Shreveport told Focke that defendant was sending goods from his Shreveport store to the store at Minden and that a wagon-load of goods had left defendant’s store, marked with the name of A. Levy. Somebody else had told him that the stock at Minden was much larger than that of defendant at Shreveport; and' defendant told him that the Minden store did not belong to him. The truth seems to have been that the wagon-load of goods in question had' been ordered by the Minden house ; that they had but recently arrived at Shreveport .by rail; and that they were taken by the wagon from the-depot. The returns of the sheriffs of Caddo and Webster parishes,, respectively, on the writs of attachment, show that the stock seized at Shreveport 'was appraised at nearly three times as much as that seized at Minden.

It would be difficult to connect the establishment of the store at-Minden, in October, 1877, under the original agreement, or the retirement of defendant in January, and the corresponding changes then*, made, with any fraudulent intent by which defendant may be supposed' to have been actuated at the time this suit was brought in October,. 1878.

The relations between plaintiffs and defendant had been very friendly. Defendant had dealt.with them for sis years. The account-sued on shows that on the 5th April, 1878, there was a balance against-. defendant of $800. From that date to the 20th August, inclusive, the-debits, including two items of cash, one of $400, on the 13th April, the* other of $575, on the 25th April, had increased to $3159 95 ; and the-credits, up to same date, including two items of cash, one of $575 on the-■22d April, the other of $500, on the 3d June, amounted to $1078, or : $103 more than the two items of cash to the debit. It seems, therefore, that defendant had done nothing to impair his credit with plaintiffs, nothwithstanding his losses by the failure of Tomkies’ Bank, and the ■ disastrous fire of 10th February.

In a letter of 26th April, 1878, defendant wrote to plaintiffs: “ I ■wanted ^o send you funds from my Minden store ; but business is very ■dull there, and I have to rely on my own resources.” On the 29th July the Minden house remitted $100 to plaintiffs, on account, and wrote: ■“■Would have remitted sooner, but was under the impression that L. A. Levy had done so. Would ask of you for the balance due until 1st of ’September, and will assure you that, in the future, will be more prompt. :Hoping to hear from you soon, I remain

“ A. LEVY, per Reiser.”

If the letter of 26th April would have created the impression, with. ;a stranger, that defendant owned the Minden store, it could not have had that effect with plaintiffs, because they had a running account with that store, in the name of A. Levy ; and Peiser had told them, in February, when purchasing goods for that store, that he was a partner of A. Levy. This letter could have had no effect in enlarging defendant’s credit, because it plainly informed plaintiffs that the Minden store was not one of his own resources for the payment of his debts ; and of the -entire amount to his debit on the 20th August, $3159 95, only $489 30 ■were for goods sold after the date of that letter.

The letter of 29th July, offered in evidence by plaintiffs, plainly indicated that the-Minden store did not belong to defendant; and it repeated, what plaintiffs knew from their dealing and accounts, that the firm of A. Levy was the ostensible owner, and their ackowledged debtor for the goods sold to that firm. It may be that defendant had expected, before the letter of 26th April was written, to receive money, either on . account of goods previously sold to the Minden firm, or for temporary accommodation ; and that the firm of A. Levy, before the letter of 29th -July was written, had expected a remittance of $100 to be made by defendant to plaintiffs, either on general account or as a temporary ac- ■ commodation.

But this testimony is of no importance in the solution of the pre- • cise questions at issue. The proof shows that defendant had no prop■erty except the goods, furniture, and fixtures pertaining to his business ; . and there is no testimony tending to show that he had offered, or at- ■ tempted, or intended to dispose of any thing that he had for sale otherwise than in the legitimate course of his regular business, as a perma■ment merchant and dealer. No doiibt he was embarrassed financially ; /but his credit sufficed to enable him to take a lease for three years of the store in which he resumed business soon after his losses by the fire were adjusted. He went to New York with only $500, in money ; and •he had purchased, on time, a stock of goods which he was selling every day. No one except plaintiffs was pressing him. No one had brought suit against him. He had no domestic creditor whose debt was then due, except the bank; and the bank, in which his account had been overdrawn for several months, to the extent of $1800, had not thought it. necessary to take steps against him. He was, apparently, doing well, with a new stock on hand, and goods en route ; and his cash sales from the 1st to the 21st October, inclusive, amounted to $1978. According to the testimony of business men at Shreveport, the sales in November are usually double those in October, and the December sales are double those of November. There was reason, therefore, for the opinion expressed by one of the witnesses, himself a creditor, that defendant would have paid his debts if he had been let alone. The attachment came most inopportunely for him, just after the raising of the quarantine, at the beginning of the most active part of the business year ; and when he had purchased, on credit, a large stock of goods, which he could have paid for only out of the sales.

There are other facts which merit brief notice only because of, the importance attached to them in the argument. Besides his store, defendant had a candy factory, capable óf making 750 pounds a day, from which he derived good profits. He had also an ice-cream saloon, in which there were four mirrors, worth from $20 to $25 each. At the •close of the season he had no use for those mirrors ; and two merchants who wanted, each, two mirrors for their stores, offered to buy them. Defendant said they were not for sale, but that he would lend them, on condition that they were to be returned, at the opening of the season, or be paid for if injured. These mirrors were publicly exposed in the two stores ; and they were attached by plaintiffs, and were promptly given up to the sheriff.

There were'also some parts of a soda-fount, a box supposed to contain silver, it was really plated-ware, worth from $25 to $35, and some marble slabs, tops of tables, used in the ice-cream saloon, which had been removed into the bed-room, over the store, occupied by defendant .and his brother, for the reason that the ice-cream saloon was wanted .and was used for a warehouse. When the sheriff attached the goods in ■the store, defendant’s brother and a colored servant moved their articles iinto the adjoining room, occupied by Gilham. Defendant says this was •done without his consent. Be this as it may, they were not claimed by >Gilham ; and they were subsequently attached under plaintiffs’ writ.

It is evident that defendant was not able to pay all his debts immediately ; but this involved no moral turpitude. According to his estimate his losses by the fire largely exceeded the insurance; and he was compelled to submit to considerable reduction on his policies in order to effect a settlement with the underwriters. He resumed business within a very short time after the fire; he took a lease of the new store for three years ; and at the beginning of the business season he-had an ample stock on hand, and arrangements made for future supplies-The $100 which he paid Eocke on account on the 16th October, he had just received from a customer for a bill of goods sold for cash ; and on the day the attachment was levied he protected his name in bank by paying a note or bill which matured that day. His entire conduct shows-that it was his intention to continue permanently in the same business which he had pursued for six years ; and to protect the credit which he enjoyed.

The right to attach depends upon the state of facts existing at the time the writ is issued ; and there is no proof of any fact from which it could reasonably be inferred that defendant had disposed of, or that he was about to dispose of any part of his property with intent to place it beyond the reach of his creditors, or to give an unfair preference to some of them, or otherwise to defraud them. The attachment was-properly dissolved ; and plaintiffs are liable in damages, on the recon-ventional demand.

The charges on which the attachment was granted in this case are precisely those which would affect most injuriously the character and credit of a merchant. .The attachment effectually broke up defendant’s business ; and it must have destroyed his credit. There are no reliable data upon which the amount of pecuniary loss suffered by defendant can be estimated, otherwise than conjecturally. If he had been permitted to go on in business he might have made large profits, or he might have suffered losses, and have failed. The district judge did not give any opinion in writing; but we infer from the testimony that he fixed the amount awarded as general damage by estimating the profits, which defendant might have derived from the sale of the goods attached. This damage was the direct and inevitable consequence of the seizure- and detention of the goods; and the amounts allowed for general and special damage seem to us just and reasonable. On a mere question of the quantum of damage we would not be inclined to disturb the verdict of a jury, or the estimate of the judge, who saw and heard the witnesses, except where manifest inj ustice has been done ; and we shall not increase, the damages in this case.

The judgment appealed from is, therefore, affirmed with costs»


source: Caselaw Access Project

author: Marr., J.

license: Public Domain

text:
    No. 7652.
    State vs. Milly Thomas.
    •All objections to the manner of drawing juries, or to any defect or irregularity that can he pleaded against any array or venire, must he urged on the first day of the term,
    Tn an indictment for manslaughter the word “ slay ” is not essential; and it suffices to charge that the accused, “ with force and arms did willfully and feloniously shoot and kill ’* the deceased.
    'The distinction between the right of the State, in cross-examining the witnesses of the accused, and the right of the accused in cross-examining the witnesses of the State, as stated in Swayze’s cwse, 30 An. 1327, approved and afiirmed.
    It is error in the district judge to restrict the counsel of the accused, in his cross-examination of a witness for the State, to the matters brought out on the direct examination.
    APPEAL from the Ninth Judicial District Court, parish of Grant. Blackman, J.
    J. C. Egan, Attorney-General, for the State :
    First — That the question of the regularity of the jury being a question of fact can not be examined on appeal. 22 An. 9 ; 25 An. 418 ; 26 An. 383 ; 23 An. 149.
    Second — The question of continuance in this case was one of sound discretion involving facts and not reviowable by this court. Having gone to tiial and the jury impanneled, it was too late to ask for a continuance for services of the venire. She had waived this right, and this she had the power to do. The indictment is evidently a good one, and charges all that is necessary in a prosecution against the prisoner for manslaughter. There is nothing to show what • questions were desired to be asked the witness, and therefore the court cannot rule that the testimony had any thing to do with the case, and was improperly overruled, or could have injured the accused, The court states that the attorney was only stopped after he was proceeding to ask questions on matters not connected with the case. Some discretion must be vested in the lower court to stop attorneys in examination, and confine them to the issues in the case. As the questions asked are not before this court, it can not decide that they were improperly overruled.
    James Jeffries, Robt. P. Hunter, and H.L. Daigre for defendant:
    First — Tnat the indictment should be quashed on two grounds ; first, because the indictment was found by an illegal grand jury on the 3d day of October, 1878, at a call-term of the court, which was held without notice and advertisement as required by law ; that this not being a regular term of the court, and in order to put parties charged with crimes upon their guard, it was necessary that the proper advertisement should be made. Second. Because the clerk of the court, as one of the jury commissioners, was not sworn as-required by law; hence, she prays that the indictment herein found be quashed arid set aside, and she be discharged. 30 An. 1028.
    Second — That the defendant in a criminal case is entitled to a continuance on account of the absence of a material witness, who was unknown to defendant up to the day of trial.
    Third — That defendant in a criminal case is entitled to a continuance-on account of the absence from the State of his principal counsel.
    Fourth — That defendant is entitled to be served with a list of jurors and copy of the indictment two clear days before the trial.
    Fifth — That defendant on cross-examination of a witness for the State is not confined to such answers as have been brought out by the State.
   The opinion of the court was delivered by

Marr., J.

The accused appealed from the judgment of the district court of Grant parish, sentencing her to imprisonment, at hard labor, in the penitentiary, for the term of five years, for the.crime of manslaughter.

The indictment was found at a called term, on the 3d October, 1878. The accused was brought into court in custody of the sheriff, and arraigned. She plead not guilty ; and asked for a trial by jury. On the same day she moved for a continuance, which was granted, on the ground that her leading counsel was absent; and at the regular term,, in January, 1879, she asked for a continuance, which was granted.

At the July term, 1879, counsel for accused made motions to set aside the venire ; and two motions to quash the indictment. The first motion to quash was on the grounds :

1st. That the indictment was found at a called term, which was held without notice and advertisement as required by law.

2d. That the clerk of the court, as one of the jury commissioners,, was not sworn as required by law.

All objections to the manner of drawing juries, or to any defect or irregularity that can be pleaded against any array or venire, must be urged on the first day of the term, or they shall be considered as waived, and shall not afterward be urged. Act of 1877, p. 58, sec. 11.

The second motion to quash was on the ground that the crime is not charged in accordance with the statutes of Louisiana, nor with the common law of England ; and that the indictment is fatally defective in that it does not allege that the accused did “kill and slay” the deceased. The law relied upon is section 1048, of the R. S. of 1870, the last clause-of which is: “ It shall be sufficient in every indictment for manslaughter to charge that the defendant did.-felomiously 1all and slay the-deceased.” The charge in this indictment is that the accused, “ with' force and arms * * * did willfully and feloniously shoot and hill”' the deceased. The complaint is that these words do not charge the-crime of manslaughter.

The word “ slay ” adds nothing to the force and effect of the word “kill,” when used with reference to. the taking of human life. It is-particularly applicable to the taking of human life in battle; and when it is not used in this sense, it is synonymous with “ kill.” The man that is slain is killed ; and the man that is killed by the hand of his fellowman is slain. It suffices to charge that the accused did feloniously hill and slay” the deceased ; and it equally suffices to charge that 'the-accused, with force and arms * * * “ did willfully and feloniously shoot and hill ” the deceased.

The district judge properly overruled both the motions to quash. It appears by one of the bills of exception that, after the State had' examined a witness, Harriet Newman, and turned her over to the defense for cross-examination, the counsel for accused proposed to examine her on matters not brought out on the examination-in-chief; to which the district attorney objected on the ground that the defense was confined, on the cross-examination, to such matters as were brought out on the examination-in-chief. The court sustained the objection “ only after the counsel of the accused had proceeded to interrogate the witness on. matters not directly connected with the case.” We take it for granted that the words quoted were added by the judge in explanation of his-ruling.

In the State vs. Swayze, 30 An. 1327, we laid down clearly the distinction between the right of the State, in cross-examining the witnesses-of the accused, and the right of the accused in cross-examining the witnesses of the State; and we held then, as we hold now, that the accused must be allowed to cross-examine the witnesses of the State as to any fact tending to establish his defense, whether it be or be not connected' with the facts testified to in the examination-in-chief.

The district judge improperly restricted the counsel of the accused in his cross-examination of the witness Harriet Newman to the matters-brought out on the direct examination ; and for this error a new trial must be granted.

It is therefore ordered, adjudged, and decreed that the judgment and sentence of the district court be avoided and reversed; that the verdict of the jury be set aside ; and this cause be remanded for a new trial, and to be proceeded with according to law and the views herein, expressed.


author: White, J.

text:
    No. 7811.
    Pierre Fillastre vs. A. St. Amand. On Opposition of Julie Pourciau.
    The giving of a twelve-months bond does not extinguish the claim of the seizing creditor against the seized debtor.
    While the claim is not extinguished quoad the mortgage, the sale transfers it to the proceeds, the right to take these proceeds when in esse being evidenced by the twelve-months bonds.
    The mortgages being transferred by operation of law to the proceeds, which take the place of the property, they are transferred with the rank existing on the day of sale.
    Where property has been sold under execution to pay mortgage debts, the rights on the property to which the price was to be applied are extinguished as far as the property is concerned and are transferred to the fund. It is not, therefore, necessary to re-inscribe the mortgage to presorve tbeir rank as against the fund.
    «Tut where the seized debtor buys at a sale on twelve-mouths credit, the sale operates a mere prolongation of time with security, and the mortgages are not transferred from the property to the fund. Re-inscription is then necessary.
    A PREAL from tbs Seventh Judicial District Court, parish of Pointe Coupee. Yoist, J.
    Hewes & Parlange and C. E. Schmidt for plaintiff and appellant:
    "The third opponent cannot contend that plaintiff’s twelve-months bond under which the property was sold is extinguished, and at the same time claim the proceeds of the judicial sale made to satisfy that very bond. 29 An. 274 ; 3 An. 454 ; 22 An. 135 ; 23 An. 245.
    The mortgage at the foreclosure of which the property was sold on a twelve-months bond ceased to exist after the sale. The law substitutes to it the special mortgage which secures the bond. C. P. art. 693, ?¿ 7. It is, therefore, unnecessary to re-inscribe the original mortgage.
    When, as in this case, the sheriff has taken from the purchaser several twelve-months bonds, corresponding to the respective claims of the mortgagees, and execution afterward issues on one of said bonds, the creditors should be paid from the proceeds, according to their original rank, which the bonds represent.
    Edward Phillips for third opponent and appellee :
    'The respective original mortgages of plaintiff and third opponent having been lost for want of re-inscription, and both parties holding the twelve-months bonds of the purchaser, furnished when plaintiff’s said original mortgage was foreclosed, the third opponent is entitled to a pro rata distribution of the proceeds of the sale afterward made by execution on the twelve-months bonds. 9 La. 1; 16 La. 164; 3 An. 144 ; 7 Rob. 73 ; 2 An. 242.
    It is only as long as the proceeds of the sale remain in the hands of the sheriff that they are subject to the original mortgages, but no longer. O. P. art. 401 ; 7 Rob. 87 ; 14 An. 423.
    As -soon as the proceeds have been distributed by order of court the mortgages cease to exist. The twelve-months bonds are the proceeds themselves of the sale, and the holders of the same are on a footing of equality together.
   The opinion of the court was delivered by

White, J.

Pillastre, and Poureiau, the third opponent, held special ■mortgages on certain real estate. In 1871, Pillastre obtained a'writ of ■seizure and sale to enforce his claim, under which writ the property was ¡sold. At the date of the sale, which was made on twelve-months credit, the mortgage of Pillastre was first, that of Poureiau second in rank. The twelve-months bonds furnished by the purchaser were given first to Pillastre, then to Poureiau, to the amount of their respective shares, or rather claims, the price bid being sufficient to pay both. The deed of sale by the sheriff with which the twelve-months bonds were identified was duly recorded, as were also the bonds furnished by the purchasers, all on the same day, in the order of rank of the respective mortgage ■creditors for whose claims they were given. Thereafter, the original ■mortgages of both Pillastre and Poureiau perempted, after which Pillastre took execution on his twelve-months bond, and bought the property for an amount less than the sum due him under the bond held by him, and on which the execution issued. Poureiau, as third opponent, ■claims a pro rata distribution of the proceeds, on the ground that the •failure to re-inseribe the original mortgages reduced both claims to an equality of rank. This proposition, is founded upon the theory that as the twelve-months bonds did not extinguish until payment the original claims, therefore, the right of the parties as to rank of mortgage depended after the sale upon the continuation of the rank existing prior thereto ; and as both mortgages are perempted, no guide by which to determine the priority exists, and the parties as holders of concurrent bonds furnished as the price of a sale are equal in dignity of claim. That the giving of a twelve-months bond does not before its payment extinguish the claim of the creditor against the seized debtor, has long ■since been determined. Offut vs. Hendsley, 9 La. 1. In fact, even without the guide. of jurisprudence, a like conclusion would, as an original question, be inevitable, since to hold the converse would be to say that by the act of seeking to enforce payment the creditor would without obtaining the payment which he sought of necessity abandon his claim •against his debtor.

We take it that the effect of the giving of a twelve-months bond is to create without novation a new debtor, the extinction of the new obligation carrying with, it the extinction pro tanto of the old. This-being true, does it follow as a necessary consequence that the original mortgage continues notwithstanding the sale, in a ease like the one now before us, where the sale was made at the instance of the first mortgage creditor, and, there being no privileges ranking that of the seizing creditor, the bonds were delivered to and and accepted by the creditors ?' We think not, because, as a legal consequence, the effect of the sale is to pass the property to the purchaser free from mortgages, and to transfer them to the proceeds. Offut vs. Hendsley, 9 La. 1; Tollain vs. Broussard, 9 Robinson, 72.

In fact, to hold the converse would be of necessity to say that the-drawer of the twelve-months bond would on payment be subrogated to the original mortgage and claim, a theory now long since negatived. 3 A. 66, 205, 540. Nor is it an answer to say that the effect of the giving of the bond not being to extinguish the claim until payment of the bond, therefore the accessory right of mortgage should subsist. The fallacy lies in confounding the extinction of the mortgage with its transmission to the proceeds, which for the purposes of distribution take the place of the property. This being an inevitable deduction, it follows-that the rank of the mortgage existing on the property need not be preserved after the sale, as it only thereafter exists quoad the proceeds. To obtain the opposite view would not only involve a logical absurdity, that it was the duty of the ranking mortgage creditor to preserve his mortgage as regards property upon which it no longer bore, but also to hold that the act of the first mortgage creditor in attempting the legal enforcement of his rights had destroyed them. That this reductio ad' absurdum cannot be escaped is obvious ; for if the mortgage on the-property be raised by operation of law, and the bond given to the first mortgage creditor as evidence of his pro tanto right to the proceeds be concurrent with the bond given a second mortgage creditor for his pro-tanto share, then, by operation of law, the first mortgage creditor would have destroyed the rank of his mortgage. The true theory is, that the proceeds are as it were considered in place of the property, and the mortgages attach to them with the rank which they had on the property. Now, where the sale is made on twelve-months credit, the bond evidences simply a right to take the proceeds with rank as fixed by the sale, and hence, with priority of rank in favor of the mortgages in their-order. Nor can it be said that as re-inscription-would have been necessary to preserve the rank of mortgages on $he property, therefore, the proceeds taking the place of the property, it was alike required. The-rights were fixed by the sale, and as long since said by this court: “ Where property has been sold under execution to pay mortgage debts, the mortgages upon the property to which the price was to be applied. are extinguished as far as the property is concerned, and the rights of parties are transferred to the funds.” It is not, therefore, necessary to re-inscribe the mortgages to prevent their inscription being barred by ten-years prescription.’ Wright, Williams & Co. vs. Trustees of the Bank of the United States, 7 A. 123 ; 8 A. 505 ; 13 A. 559.

These reasons dispose of the question presented from a purely abstract view. There is, however, a question of fact which renders them not entirely applicable. Alphonse St. Amand was the seized debtor; at the sale on twelve-months credit the property was adjudicated to himself and A. Bonanchand, they thus becoming undivided co-proprietors. The doctrine that the mortgages are transferred to the proceeds does not obtain where the seized debtor becomes the purchaser. Offut vs. Hendsley, 9 La. 1. Such a sale is considered a mere prolongation of time with security. 9 La. 99; 12 R. 206. This being granted, we consider that quoad his purchase the original mortgage remained on the property, and its re-inscription was necessary to preserve its rank, and that hence a pro tanto distribution follows as to one half of the proceeds. Of course our opinions above expressed are restricted to the case before us, and are not to be extended to cases arising where from the nature of the sale the fact that it was not made by the first mortgage creditor might possibly give rise to the application of other principles.

The judgment below is reversed, and, rendering such judgment as should have been rendered below, it is ordered that the plaintiff be recognized as entitled to take by preference over the third opponent one half the fund, the other half to be distributed pro rata between the plaintiff and the third opponent, the costs of appeal to be borne by the third opponent, those below by the plaintiff.

Rehearing refused.


author: Spencer, J.

text:
    No. 7807.
    Succession of A. G. Payne.
    Tlie decision in succession of S. 0. Rhea, 31 A. 323, affirmed.
    j^PPEAL from the Parish Oourt of East Feliciana. Brame, J.
    T. B. Lyons for appellant:
    Tho judgment was rendered by a judge interested therein. 31 A. 323; Const. 1868, article 90.
    Appellee unrepresented.
   The opinion of the court was delivered by

Spencer, J.

D. C. Hardee, executor of said succession, rendered bis final account thereof, which was duly advertised and homologated by the parish court. The tutor of the minor heirs of Payne appeals, and urges the nullity of the judgment of homologation, for the reason that the judge of the parish court who homologated the account was himself put down thereon as a creditor for one hundred dollars, and was, therefore, incompetent to try the case. Such is the fact, and the judgment must be annulled. See succession of S. O. Rhea, 31 A. 323.

It is therefore decreed that the judgment appealed from be annulled, and this cause is remanded to the court a qua, to be proceeded with according to law. Appellee paying costs.


author: Manning, C. J. Marr, J. Marr, J. Spencer, J.

text:
    No. 7224.
    Flash, Lewis & Co. vs. L. Schwabacker & Co. A. Levy, Intervenor.
    By a rulo of court a second rehearing is not permissible; but when a case is before the court on rehearing, and when the court of its own motion dismisses it for want of jurisdiction, it will, on having it brought to its attention that its action resulted from a manifest error of fact, set aside the order of dismissal, and proceed to determine the case on its merits.
    "When the claim of an intervenor was for the ownership of things seized, amounting in value to more than $1000, this court has jurisdiction.
    The creditors of consignor cannot seize goods after he has lost control of them, by remitting the bill of lading to consignee.
    j^PPEAL from the Sixth District Court, parish of Orleans. Rightor,

    McG-loin & Nixon for plaintiffs and appellants :
    Eirst — Where a third opponent claims to be the owner of a specific thing, the value of that thing is the test of the jurisdiction of this court. 25 A. 651 ; 12 A. 48 ; 11 R. 217 ; 28 A. 432 ; C. P. 398.
    Second — The intervenor contends that this motion to dismiss comes too late, after a decision and the re-opening of the case. This would be correct if the motion were made on any other ground than the lack of jurisdiction ratione material. If -the transcript were deficient, for instance, or if there had been no citation of appeal, or if the bond were informal, we would be precluded from objecting thereto at this time ; and the reason of that is that we would be presumed to have waived those formalities by going to trial on the merits ; but where the court is absolutely without jurisdiction, it will itself, without motion, at any time, take notice thereof, and dismiss the appeal. 16 L. 182 ; 7 A. 492 ; 13 A. 336 ; 19 A. 276 ; 22 A. 400 ; 24 A. 94.
    Third — Levy has intervened in our suit because, as he alleges, we have seized his property. The only interest that he has in this suit, aud the only part he will be allowed to take in it is, to test the question whether the property seized is his or not. With questions oí the jurisdiction of the court, or the regularity oí the attachment or sufficiency of the affidavit, he has nothing whatever to do. 20 A. 174 ; 8 M. 55 ; 27 A. 239 ; 4 N. S. 488 ; 21 A. 118 ; 8 R. 123 ; 3 L. 183 ; 21 A. 643 ; 13 A. 222 ; 28 A. 241; 3 A. 222 ; 5 N. S. 501; 19 L. 154; C. P. 392-3 ; 12 A. 341.
    Fourth — Goods in the hands of a consignee, who is the mere agent of the consignor, may be attached by the creditors of the consignor.
    The emus is upon' Levy as intervenor to clearly show his- title to the gold and drafts in question. 24 A. 90; 8 L. 146 ; 5 L. 486 ; 7 A. 587.
    There could be no transfer of the drafts to Levy, until the parties to them had been notified thereof. A mere order to deliver notes is not a transfer of them. Lassiter vs. Bussy, 14 A. 710 ; 15 A. 654; 24 A. 90.
    Fifth — The affidavit in an attachment suit setting forth that defendants reside out of the State will be taken as true until disproved. 9 R. 94; 24 A. 284.
    Sixth — A defendant who resides out of the State is liable to attachment, even if he is a member of a commercial firm domiciliated in this State. 10 A. 726; 28 A. 526 ; O. P. 240.
    Seventh — But the curator has answered to the merits, and has thereby put it out of his power to file an exception which goes to the dismissal of the attachment, on grounds which might have been urged on a rule to dissolve. 7 M. 360; 8 R. 30; 8 R. 428 ; 1 A. 372; Ealer vs. McAllister, 14 A. 821.
    Eighth — The curator cannot be heard. His only standing in this court is as an appellee ; and it is well settled that the judgment of the lower court cannot be reversed by the Supreme Oourt as between appellees. See Converse, Kennett & Co. vs. Steamer Lucy Robinson, etc., 15 A. 433 ; Lallande vs. McRae, 16 A. 193 ; Succession of Egana, 18 A. 263 ; Noble & Kaiser vs. Powell, 20 A. 121; LeBlanc et al. vs. LeBlanc, 20 A. 206 ; Bolsee vs. Hederick, 20 A. 307 ; Bowman vs. Kaufman, 30 A. 1021, and authorities there cited.
    F. L. Richardson for defendants and appellees :
    Defendants desire to reply to only one point raised by plaintiffs in their brief.
    They claim that defendant being an appellee cannot be heard to ask for a reversal of the entire judgment, for the reason that he can only pray for the partial reversion of the judgment, under article 592, C. P.
    This question was decided adversely to the position of plaintiffs in Oger vs. Daunary, 7 U. S. 657, where the court held:

      “The object of the legislature in this article was to save the appellees the trouble and expense of a distinct appeal where the case was brought up by the adverse party. It would be strange to allow the appellee a relief without a second appeal in case of a partial error, and deny it to him in case the judgment was wholly erroneous.”
    D. C. & L. L. Labatt for intervenor:
    First — Service of supplemental petition on a garnishee is not sufficient to bring him into court when no copy of the original petition has been served on him. 17 L. 547 ; C. P. 251.
    Second — Non-resident debtors having a commercial domicile here cannot be attached. 2 A. 962.
    Third — Intervenor urges that, if under the answers of garnishees the court had no jurisdiction, it is clear that the sheriff could not confer jurisdiction by taking the property out of the hands of garnishees, for that purpose, even under written instructions from plaintiffs. The sheriff' had no order of court to authorize him to take the property inquired about out of the hands of garnishees, and it was their duty to have retained it until its ownership was determined, and which their answers failed to disclose. The testimony in the record shows it was duly shipped and consigned to A. Levy, as his property, to liquidate pro tanto a bona fide indebtedness. A written receipt or bill lading was issued, and in intervenor’s possession at the time of the seizure (see p. 243), and the rule of law is that “ where the owner has lost his control over the property and cannot change its destination, and when the title to it has been legally vested in another, his creditors cannot attach; but whenever the owner can sell and deliver the creditor can attach.” Armor vs. Gockburn, 4 N. S. 667 ; 7 N. S. 139; 4 L. 183 ; Hepp vs. Glover, 15 L. 461; 18 L. 321, 447 ; 2 R. 251 ; 5 R. 124; 12 R. 409 ; 3 A. 78 ; 8 A. 45 ; 4 R. 517 ; 2 L. R. 514 ; 13 L. 570.
    Fourth — Another principle invoked by intervenor is that by the Statutes of the United States, p. 776, sec. 3988, it is made the duty of the captain, before breaking bulk, to deposit all letters and packets in the nearest post-office ; and the plaintiffs cannot be permitted to get illegal possession of letters and packages of money thus transmitted any more than if they were to seize letters in the post-office before their delivery. It is upon this principle that property fraudulently or surreptitiously brought within the jurisdiction of the court must be returned to the place where it lawfully belongs. 14 A. 441; 4 A. 108 ; 6 A. 207 ; 5 A. 710; 8 A. 369 ; 24 Wend. 369 ; 12 Pick. 270.
    Fifth — When the undisproved answers of garnishees declare that they have no property in their hands belonging to defendant, the actual seizure of goods in their hands by the sheriff will not give the court jurisdiction. 8 O. S. 511; 6 A. 782.
   The opinion of the court was delivered by

Manning, C. J.

The plaintiffs sued for the recovery of $2,473.80 and took out process of attachment, under which a package of gold coin, in amount $235, was seized. A curator was appointed to the defendants who excepted to the jurisdiction, which was overruled, and the general issue was then pleaded. Levy intervened claiming the owner-ship of the gold ; the plaintiffs had judgment against all parties. The Intervenor appealed. The defendants did not appeal.

The defendants’ curator has not filed an answer to the appeal, nor prayed the amendment of the judgment. In his brief he asks for its reversal. He cannot be-heard to do this. He is appellee. If he desired the reversal of the judgment he should have appealed from it.

The intervenor is not interested in the judgment on the principal demand, and we are not therefore to consider it. The right to the gold •coin is the only question before us, and our jurisdiction of the principal demand carries with it jurisdiction of this smaller sum. Colt v. O’Callaghan, 2 Ann. 189 and cases there cited.

The following bill of lading or receipt was given by the captain of the vessel for the coin ;

Beceived Buatan Nov. 24,1875, from Mr. g. Bernstein one package ■said to contain two hundred and thirty-five dollars in gold, to be delivered to Mr. A. Levy care Hoffman, Marks, & Co. New Orleans. Wm. W. Byan Capt. Schooner Anita.

Levy had received this bill of lading before the attachment was levied, and urges that hence the property of the consignment was vested in him. The plaintiffs concede “ there is but one question before the court, and that is, to whom did the gold seized by the plaintiffs belong. If to the defendants, then the judgment of the lower court must 'be maintained ; if to the intervenor, then'it must be reversed.”

The object of a great part of the testimony was to prove that Levy was but an agent of the defendants, and that the shipment was to them, =and the property of the gold was in them continuously. The package lhad written on it, can be delivered to Mr. Bideau,” and he was a clerk ■of the firm in New Orleans. The testimony is too voluminous to be recited. We have drawn from it the conclusion that on the receipt by Levy of the bill of lading the property of the gold vested in him, and .neither the defendants nor their creditors could seize or attach it to his prejudice.

It is indisputable that creditors cannot attach the property of their .debtor after he has lost all control over it. The package of gold had been consigned to Levy, and the bill of lading was in his hands when-the creditors of the consignors attached it. Whether the consignment, was to pay a debt due Levy or some third party, it is equally true that the consignors could not have changed the destination of the gold after the bill of lading had reached the consignee. If a consignor direct his goods to be sold for the payment of one of his creditors, and the consignee promises to do so, the goods are not liable thereafter to be attached for another debt of the consignor. Armor v. Cockburn, 4 Mart. N. S. 667. This is a stronger case. It was money sent to pay certain debts of the consignors.

This principle has received the assent of this court in numerous: decisions which may be consulted -to shew the different circumstances in which it has been applied. Babcock v. Malbie, 7 Mart. N. S. 137. Hepp v. Glover, 15 La. 461. Bank v. Morton, 12 Rob. 409. Oliver v. Lake, 3. Annual, 78. Hill v. Simpson, 8 Annual, 45, and cases there cited.

It is therefore ordered adjudged and decreed that the judgment of the lower court against the intervenor A. Levy is avoided and reversed,, and that he now have judgment against the plaintiffs upon his demand and for the costs of his intervention in the lower court and the costs of' appeal.

Marr, J.

Under the writ of attachment issued in this case, a>, package of gold coin, containing $235, and another package containing-three drafts, each for $400, were seized. Intervenor claimed the ownership of both packages ; and he alleged in his petition that the package-containing the’drafts exceeded $500 in value. He appealed from the judgment rejecting his intervention; and gave bond in the sum of' $3000.

In the oral argument in this court it was stated by plaintiffs’ counsel, in good faith, we have no doubt, that the only matter in dispute was-the package of gold coin. This was not denied, at the time; and the-impression of every member of the court was that, by some agreement-between the parties the title to the drafts had been eliminated from the-controversy; and that it was an admitted fact, disclosed by the record,, that the dispute was narrowed down to the ownership of the gold coin.. Our original decree, and the order dismissing the appeal, proceeded’ upon this hypothesis, which we did not consider it necessary to verify by searching through the pages of the three large transcripts containing the history of this litigation.

Counsel for intervenor has called our attention to the facts that the judgment rejecting the intervention necessarily passed upon the title to the drafts as well as upon the title to the coin ; that the bond, of appeal presupposes a value in controversy far beyond that of the coin; and that the title to these drafts is in dispute on appeal.

After a final decree on the merits, and the granting of a rehearing-a motion to dismiss an appeal could not be entertained, as such. But every court is compelled, ex officio, to take notice of its want of jurisdic-tion, ratione materice, at any stage of the cause, and whenever the-suggestion is made; and while, after the granting of a rehearing, motion to dismiss could not be entertained, the court would be compelled, of its. own motion, to dismiss the cause, if it had not jurisdiction. We dismissed the appeal, in this ease, as of our own motion, upon the fact assumed in the original opinion, that the amount in dispute was only $235.

By a rule of this court a second rehearing is not granted ; but all' the orders and decrees of this court are subject to the control of the court until they have become irrevocable by the lapse of six judicial days, or by the issuing of the mandate to the court of first instance, where this delay is not required. What the court may do, on the application of parties litigant, and what it may do of its own motion, in order to correct manifest error in its own proceedings, are things wholly different. As we dismissed the appeal in this case of our own motion,, without regard to the merits, for supposed want of jurisdiction, it is. our province now, of our own motion, to revoke, vacate, and annul the ■ order of dismissal, upon the suggestion that we have proceeded upon-a misapprehension of the facts upon which the jurisdiction depends, in. order that we may ascertain from the record what the amount in dispute actually was at the time the appeal was taken ; and may deal with the case, on the rehearing, as the facts may require.

It is therefore ordered that the opinion and order dismissing the-appeal for want of jurisdiction be revoked, vacated, and annulled ; and; that this cause be re-instated, and restored to the position which it-occupied by the submission on the rehearing, as if the opinion and5 order of dismissal now revoked, vacated, and annulled had not been, rendered.

ON REHEARING.

Marr, J.

The rehearing in this case was granted solely upon the-question of jurisdiction.

Under the writ of attachment issued at the suit of plaintiffs against-the property of defendants, a package of gold coin, amounting to $235„„ was seized. Alexander Levy, who was not a party to the suit, intervened by way of third opposition, and claimed to be the owner of the-coin; and he appealed from the judgment rejecting his claim. Obvi— -ously, therefore, the matter in dispute is the ownership of this coin ; :and there is no other controversy between plaintiffs and Levy.

On the authority of Colt vs. O’Callaghan, 2 An. 189, and the cases 'there cited, we held that the amount demanded by plaintiffs of defendants was the test of appellate jurisdiction.

The Code of Practice, articles 895 et seq., authorizes a third person to arrest the order of seizure or the judgment rendered in a suit, or to ■regulate the effect of such seizure so far as it relates to him, for two ■causes:

1. When he pretends to be the owner of the thing which has been ■■seized.

2. When he contends that he has a privilege on the proceeds of ■the thing sold.

Article 398 provides that when the third opposition is based upon "the first of these causes, the pretended ownership of the thing seized, ■“such opposition shall be considered as a separate demand, distinct from the suit in which the order was granted.”

The demand of Levy, in this case, was, therefore, a separate demand or suit, and the matter in dispute in that separate demand would seem to be the test of jurisdiction. We yielded to what we believed to be settled jurisprudence in regarding the amount demanded by plaintiffs of defendants as the test.

In Colt vs. O’Callaghan, 2 An. 189, the report is meagre; but the parties intervening are styled “ intervenors,” from which we infer that they did not claim to be the owners of the thing seized ; but asserted a privilege on the proceeds. This was the case in another suit between the same plaintiff and defendant, 2 An. 984, in which the jurisdiction was maintained on the ground that the intervenors had united in their petition of intervention ; that the aggregate amount of their claims exceeded the appealable limit; and that “the value of the thing seized,” ;as well as the amount of plaintiff’s demand, also, exceeded the limit.

The two cases referred to in Colt vs. O’Callaghan, 2 An. 189, are Hart vs. Ludwick, 8 La. 164, and Buckner vs. Baker, 11 La. 459.

In the first of these cases, plaintiff demanded some $2400; and ■attached defendant’s interest, one fourth, in a steamboat. The boat was ■sold, and the proceeds were in the hands of the sheriff. The intervenors were privileged creditors, for wages, etc.; and the plaintiff appealed from the judgment maintaining the interventions. One of the intervenors moved to dismiss, on the ground that his demand was below the ap-pealable amount. The court said:

“We are of opinion that the amount claimed by plaintiff * * * imparts to the suit its character in relation to its susceptibility of being •the object of an appeal; that is, so far as regards the plaintiff, all the incidents in the suit are subject to an appeal.”

In Buckner vs. Baker, the plaintiffs, ordinary creditors for some $2500, attached a steamboat, which was sold ; and the contest was between the seizing creditors and the intervenors, who claimed the right to have their privileged demands for wages, aggregating $600, paid out of the proceeds. The appeal was by plaintiffs from the judgment maintaining the claims of the intervenors. The court maintained the jurisdiction on the authority of Hart vs. Ludwick, and upon the same grounds.

There is an obvious distinction between those cases in which a fund is to be distributed according to the rank and priority of the several •contesting creditors respectively and those in which a third person opposes the seizure on the ground that the property seized belongs to him. In the first class of cases it has been held, perhaps it may be' considered as finally settled, that the amount claimed by plaintiff, and the amount of the fund to be distributed, must control the question of jurisdiction ; but in the second class, where the contest is not as to the distribution of a fund, but as to the ownership of a particular object seized, the amount demanded by plaintiff is not the matter in dispute; and it cannot be the test of jurisdiction. The demand of the third opponent is a separate and distinct one, in which the matter in dispute is the right to the specific thing seized, which he claims as owner ; and no appeal lies from the judgment determining that right, where the value •of the thing is below the appealable limit.

The want of jurisdiction is apparent on the face of the record ; and we erred in our former conclusions.

It is therefore ordered that the original opinion and decree herein .rendered be set aside and reversed ; and that this appeal be dismissed.

Spencer, J.

Having re-instated this case upon the docket, it only remains to consider the questions presented on the rehearing.

The intervenor claimed the ownership of three drafts of $400 each, and a package of $235 in gold, which had been attached by plaintiffs in their suit against defendants. The judgment appealed from rejected intervenor’s demands in ioto, thereby denying his ownership of the drafts, as well as of the gold. It is manifest his interests as asserted and adjudged exceeded $1000, and that we have, therefore, jurisdiction.

On the merits, we are satisfied with the correctness of the legal principles announced in our first decree.

It is said that there was no bill of lading for the gold. This is a mistake. The receipt of the vessel for this package is in the record, and by it the vessel agreed to transport and deliver the package to the-consignee.

It is also shown that Levy was in receipt of duplicates of the drafts at and before the time of the attachment.

It is therefore ordered and decreed that the judgment appealed from: is, so far as concerns the intervenor, annulled and reversed, and it is now decreed that said intervenor be and he is declared owner of the' package of gold ($235), and of the drafts attached in this case; that said attachment is set aside, and that intervenor recover the costs of his intervention in this court and the court below.


text:
    No. 7799.
    In the Matter of the Estate of John F. Altemus.
    Mere illegality in the appointment of an administrator or curator, will not vitiate the acts done under it. The acts of the officer in such case are valid, although he should have been illegally appointed.
    The fact that the officer appointed to administer a vacant estate is styled an administrator, instead of curator, does not render void his acts. The duties of these two officers are substantially the same.
    The legality of the appointment of an administrator cannot be questioned by way of opposition to his account.
    The appointment of one who is at the same time an ordinary and a commercial partner of-deceased, as administrator or curator is not absolutely void.
    In the settlement of the accounts of the administrator or curator of a vacant estate, minor heirs who are absentees, are properly represented by the attorney of absent heirs, and a tutor ad hoc should not be appointed for them.
    Courts of probate have no jurisdiction to settle the accounts of the liquidator of a partnership, but they havo jurisdiction of the settlement of the accounts of an administrator, and where the administrator incidentally brings into his account the details of an extrajudicial settlement made of the interest of deec.-tsed in a partnership, the probate court has jurisdiction to ascertain and determine whet her the administrator has accounted for all the effects of deceased, and therefore incidentally to inquire into the partnership settlement.
    A PPEAL from the Parish Court of Iberville. Cole, J.
    Samuel Matthews for administrator and appellant:
    First — The legality of the appointment of a tutor, curator, or administrator, who has been duly appointed and has qualified, cannot be collaterally questioned. 30 An. 268.
    Second — Where a partnership between two persons was not exclusively commercial, the surviving partner has a preference over every one else to administer the succession of the deceased partner. C. C„ 1122, 2825,1121.

      Third — The administration of a succession which has been closed cannot be re-opened and a new one provoked on the ground that the one who administered did it under the name of “ administrator,” 'instead of curator. C. O. 1019,1139,1140 ; 15 An. 250.
    Fourth — Minors are properly represented by a tutor ad hoc, and not by an attorney of absent heirs, in proceedings to homologate an administrator’s account. 12 L. 81.
    Geo. Wailes and Barrow & Pope for defendants and appellees :
    First — Until an heir be recognized, and admitted as such, he has no action to compel the curator to account or to deliver to him the property of the succession. Stein vs. Bowman, Curator, 9 La, 284 ; 11 La. 182.
    'In 4 R. p. 43, where the question was, as stated by the court, “ whether the applicant, as universal legatee of James Lilly, can be allowed to proceed, ex parte, to cause himself to be recognized as such, and to take possession of the estate,” the court said, answering the question in the negative. C. C. 1181,1193,1194,1216 ; C. P. 1000-1-2-3-9.
    ■Second — The succession of Altemus, being a vacant succession, cannot be represented by an administrator. An administrator is only appointed to a succession where the heirs being present, or absent, and represented, accept the succession with benefit of inventory. See C. C. 1043 to 1049. The administrator represents creditors. The curator of the vacant estate represents the estate, which under the civil law is a fictitious entity. 9 L. 142 ; O. 0.1097.
    'Third — An absentee must be represented by a curator ad hoe, not by an advocate. -13 An. 405.
    Fourth — Roth was the commercial partner of Altemus. Art. 1122 (1115) is prohibitory.
    'The partner or partners of a commercial house having accounts to render to the heirs of their deceased partner, “ can, in no ease, be appointed curators to the vacant succession, or that of the absent heirs of the deceased.” Hence his appointment was an absolute nullity. 6 An. 565; 1 An. 267 ; O. O. 12, 2895 ; 15 An. 343; 18 An. 24 ; 2 An. 492 ; 30 An. 806.
    Fifth — On a dissolution by the death of a partner, the surviving partners cannot sue for debts due the partnership, unless they obtain authority from the proper tribunal or be joined by the representatives of the deceased ; nor can they sue as surviving partners for the use of all. 3 L. 358 ; 7 L. 196 ; 19 L. 402 ; 13 L. 484 ; 16 L. 31; 1 R. 54; 9 L. 150; 18 An. 260 ; O. O. 1131.
    ’.Sixth — It is faintly said the estate of Altemus is not a vacant estate! Both petitions deny it. No heirs have yet been made known to the-court. Certain persons have claimed to be heirs, and passed extrajudicial acts purporting to sell their interest, but they have not yet proved themselves such. Certainly, no heirs presented themselves within ten days. O. C. 1101 (1093). But why, if the succession is-not vacant, was Geo. Wailes, attorney for absent heirs, appointed and cited ?
    That there is a greater distinction than that of a name, is shown by the-following: A curator of a vacant succession or of absent heirs. must give a bond for one fourth over and above the inventory, bad debts excepted. C. C. 1126 (1119), 1127 (1120), 1128 (1121). The commercial partner, claiming to administer, must give bond to the curator of the vacant estate.
    The powers of a curator of a vacant estate and those of an administrator are not the same. An administrator, only representing the creditors, cannot maintain a suit for partition, but a curator to the vacant estate, or of absent heirs, can, and it is made his duty to-institute such a suit, where the deceased holds property in common with others. C. C. 1135 (1128).
    The curator of the vacant estate represents a different entity or person from an administrator, so that whether'or not there was such a representative becomes of vital importance to the rights of persons in the settlement of successions.
    Seventh — Until a curator of the vacant estate is appointed, the attorney for absent heirs is the only person having authority to represent the estate. O. 0. 1213 (1207); O. P. 1009.
   The opinion of the court was delivered by

Spencer, J.

John E. Altemus died in the fall of 1878, in Iberville, where he resided. He was a member of the commercial' Arm of Roth,. McWilliams & Go. of that parish, and was also a partner with Roth and McWilliams in planting; so that Roth was at the same time a commercial' and an ordinary partner of Altemus. The heirs of Altemus, it seems, resided out of the State, but were not unknown. They were his father, mother, seven brothers, a sister, and a niece.

In September, 1878, Roth made formal application for administration of said estate, reciting the above facts, and prayed to be appointed administrator, and that an attorney of absent heirs be appointed and an inventory made. After due notice and delay, he was appointed and duly qualified as administrator. George Wailes, attorney-at-law, was named attorney of absent heirs, and a full and elaborate inventory made of the assets of the commercial firm and its liabilities, and also- of the property owned by the ordinary partnership, in both of which Alte-mus owned an interest of one fourth.

On 26th June, 1879, Roth as administrator, rendered in the probate-court his final account, representing that all the debts of the partnerships had been paid, that the major heirs of Altemus, representing-16-18ths of his estate, had sold their interest therein to petitioner and McWilliams, and that the remaining 2-18ths belonged to two minors, for-whom he prayed a tutor ad hoc to be appointed. He presented in his» account a statement of the personal debts of deceased and those of the-administration, and prayed permission to pay them, and that upon doing-so he be discharged and his account homologated. E. B. Talbot,, attorney-at-law, was appointed tutor ad hoc for the absent minors. Talbot, as tutor ad hoc, opposed the allowance to Desobry, the notary, for-making inventory, as excessive.

Desobry thereupon filed an exception to Talbot’s capacity to stand in judgment, on various grounds. Geo. Wailes, attorney of absent heirs, having been cited, appeared, and for answer, and as cause why the account should not be homologated, shows :

First — That the succession of Altemus is a vacant succession, and that Roth was a commercial partner of deceased ; that the said succession can only be settled by a curator duly appointed ; that Roth has-not been, and cannot legally be, appointed such curator, as the law forbids the appointment of a commercial partner; and that his acts as administrator are therefore null and void.

Second — That in so far as said account purports to liquidate the affairs of the commercial firm of Roth, McWilliams & Co., the parish court is without jurisdiction.

The court sustained these exceptions, rejected the account, and dismissed the petition of Roth, administrator. It also sustained Desobry’si exception, and dismissed the opposition of Talbot, tutor ad hoc. There • are therefore presented for our consideration four questions, to wit

First — Where the heirs of deceased are all absentees, is the appointment of an administrator, instead of a .curator, absolutely null ? i

Second — Where a person occupies toward the deceased the double-relation of a commercial and an ordinary partner, is his appointment as .. administrator or curator, as the case may be, absolutely void ?

Third — Is the appointment of a tutor ad hoc for absentee minors,, in matters relating to the accounts of successions, illegal ?

Fourth — Had the parish or probate court jurisdiction of the account rendered in this case ?

It seems to be conceded, and indeed we do not think it can be-denied, that unless the appointments of administrator or curator, as the case may be, in cases put in our first and second inquiries, are abso-iutely void, the acts done by them in such capacities are legal and binding ; for it is now elementary that the mere illegality of the appointment will not vitiate the acts done under it. This is so true that the law will not allow a suspensive appeal from a decree appointing such officers ; but declares that such decree shall have immediate effect, notwithstanding the appeal, and therefore regardless of the legality or illegality of the appointment. See C. P. 1059 : also, Succession of Dugart, 30 An. 268.

We are not prepared to admit that mere absence of the heirs makes an estate a vacant one. C. C. art. 1095 defines a vacant succession as -one “when no one claims it, or when all the heirs are unknown, or when all the known heirs to it have renounced it.” Now the heirs may all reside out of the State, and yet none of these conditions exist. But if we concede the vacancy of the succession, we do not think that the appointment of an officer to administer it would be rendered void by the fact that he is called administrator instead of curator. Art. 1097 ■ O. C. says that “vacant successions are managed by administrators appointed by courts, under the name of curators.” Substantially there is no difference between the functions of an administrator and curator. Their duties are the same. C. C. 1049. True, the courts have sometimes said that “vacant estates” are fictitious beings, representing the deceased, its owners, until acceptance or renunciation by the heirs. May not the same be said of a succession accepted with benefit of inventory, ■ or where the heirs claim time to deliberate for acceptance or renunciation ? The estate is so distinct an entity in that case that the heir preserves all his rights against it, may sue it and otherwise treat it as a ■ stranger to him. And yet such an estate is represented by an administrator eo nomine. There is nothing of substance constituting a differ- • ence between the duties and functions of an administrator of a succession, . accepted, or pending its acceptance by the beneficiary heir, and those of a - curator of a vacant succession. It will be a sad day for the security of titles in Louisiana when its courts, on the strength of fancied differ- • enees of duty between these officers, declare void their acts because • done under one name rather than under the other. It not unfrequently happens that it is difficult, if not impossible, to ascertain whether a man’s heirs live within or without the State — in other words, upon opponent’s theory, whether the estate is vacant or not. A curator is appointed, . and it turns out that the heirs or some of them are present in the State. An administrator is appointed, and it happens that the heirs are absent. It is often the case, too, that there is doubt as to who is the heir, one , present or an absentee. Is it possible that in cases such as these the settlement of successions and the resulting titles are affected with radical . nullities because the court made an error in the name of the adminis-itrator appointed to administer? When the court decrees that there •shall be appointed an administrator or a curator, as the case may be, •and appoints hita, that decree by the express terms of the law must .have immediate effect, and all acts done under it are valid, and bind the ■estate, and the appointment is good until that decree is set aside by appeal or action of nullity. 0. 0.

We therefore answer our first inquiry in the negative.

Second — What we have already said goes far to answer the second question. Under the principle we have just announced, that decrees ■appointing officers to administer successions must have effect until •annulled, and that the acts done by the person appointed are valid although their appointment be illegal, it is manifest that the acts of Roth cannot be treated as absolutely void. It is equally manifest that his appointment cannot be collaterally attacked. It must be questioned, if at all, not by way of opposition to his account, but by direct action. The law says that one who is debtor of the minor cannot be appointed 'tutor. It excludes him. C. C. The law also directs that the nearest male relative having the requisite qualifications shall be tutor in certain ■cases. C. C.

Would the appointment of this relative be absolutely void if it should turn out that he was, perhaps unknown to himself, at the time of his appointment debtor of his ward ? What security would there be 'for the public if such doctrines were maintained? So, in the present •case, Roth was,- as an ordinary partner, called by preference to the administration, but as a commercial partner he was excluded. C. C. •

The court by decree appointed him. That decree is valid, and must have effect until annulled in one of the ways provided by law.

Third — We think that the absent heirs, whether minors or majors, ■qre in the settlement of the account of the administrator or curator properly represented by the attorney of absent heirs. O. P. 1009. The ■ appointment therefore of a tutor ad Two was improper and unnecessary. It is unnecessary to decide what would be the proper appointment for ■cases of partition and other actions against minors. The case before us is one of account, and article 1009 O. P. seems to provide for that •case, and makes no distinction between absentees, whether minors or ■majors.

Fourth — It is very certain, and we have held, that courts of probate have no jurisdiction to settle the accounts between the deceased and "the surviving partners of a commercial partnership. See Executors of Patterson vs. Mendelsohn & Newman, 31 An. 152. But we do not understand that this is a proceeding to settle the accounts of the liquidator of a partnership. It is an account of the administration of the Individual estate of Jno. F. Altemus. The administrator has assumed. and undertaken to settle extra-judicially the affairs of the partnership,, and in his accounts as administrator he incidentally sets forth the-manner in which it has been settled, and the mode by which the interest of the deceased therein has been ascertained. There has been no legal; administration of the partnership affairs. The administrator does not seek the authority of the court in that regard. He says the partnership consisted of such assets and owed such debts, which have all been paid; that there remain certain partnership effects, of which deceased owned one fourth, with which he charges himself, as part of the individual estate of Altemus. We do not understand the law as making a special and separate liquidation of the commercial partnership indispensable. It is a privilege which the surviving partner may claim, but is not obliged to exercise. If he do not see fit to claim the privilege,, the administrator of the estate of the deceased partner must of necessity take charge and control of the decedent’s interest therein ; this-would necessitate the administrator charging himself, in account, with the share of the deceased in the assets, and crediting himself with the debts paid, etc.

Of course, prudence would require him to effect this settlement and separation of the deceased’s interest therein through the courts of ordinary jurisdiction. But if he chose to do so extra-judicialiy, he must be prepared to show affirmatively that what he has done is legal, and that the estate has suffered no loss thereby. The probate court certainly has jurisdiction to ascertain and determine whether the administrator has-accounted for all the property of the estate, and has legally disbursed its funds. In the instant case Altemus owned one fourth undivided in. certain effects. The court can compel the administrator to show what disposition he has made of them, and condemn him to pay therefor if he has acted improperly therein.

We think the court has jurisdiction. In conclusion, we are unable-to see the relevancy at present of the question as to who are the heirs of Altemus. It will be time enough to raise that question when the administrator has settled his account, and the estate is to be turned over to, or partitioned among, the heirs. If the parties who sold to Both & McWilliams are not heirs, their purchase amounts to nothing, and' cannot prevent the real heirs from taking the estate.

It is therefore ordered and decreed that so much of the judgment appealed from as dismisses the opposition of Talbot, tutor ad hoc, is-affirmed. That in all other respects the judgment is annulled and reversed ; and it is ordered that this cause be remanded and re-instated on the docket, and that the court a qua proceed to hear and determine-the matter of the final account of the estate of Altemus, presented by Both, administratpr ; that the costs of appeal be paid by the succession...