author: ELLIOTT, J. MOUTON, J. LECHE, J. MOUTON, J. ELLIOTT, J.,

text:
    No.-
    First Circuit
    KENDALL v. GRAND LODGE OF THE BROTHERHOOD OF RAILROAD TRAINMEN
    (June 28, 1927. Opinion and Decree.)
    (March 7, 1928. Opinion and Decree on Rehearing.)

      (Syllabus by the Editor)

    1.Louisiana Digest — Corporations — Par. 293, 294.
    A corporation cannot do business within a state without its express or implied consent which may be given on such terms as the state may see fit to impose.
    2. Louisiana Digest — Corporations — Par. 301, 303; Insurance — Par. 168.
    A fraternal benefit society cannot take advantage of its failure to appoint the Secretary of State, upon whom all legal process may be served in accordance with Section 17 of Act 256 of 1912; by pleading that the Court has no jurisdiction over it because of its failure to observe these requirements.
    3. Louisiana Digest — Corporations—Par. 300, 301; Insurance — Par. 168, 172.
    A petition which contains no allegation that the contract for Fraternal Benefit Insurance was made in this state by an agent of the defendant foreign association or that it was entered into since said foreign association was doing business in Louisiana, does not state sufficient to show jurisdiction of the Court by service on the Secretary of State under Act 256 of 1912.
    4. Louisiana Digest — Corporations—Par. 301; Insurance — Par. 168, 172; Pleading —Par. 66.
    Allegations of the petition which merely show jurisdiction of the Court by implication are not sufficient, and consequently, an exception to the jurisdiction will be sustained.
    Appeal from the Parish of Washington.' Hon. Prentiss Carter, Judge.
    Action by Mrs. Grace T.- Kendall against Grand Lodge of the Brotherhood of Railroad Trainmen.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed but on rehearing judgment of District' Court reinstated.
    Ott & Rich, of Bogalusa, attorneys for plaintiff, appellant.
    Bascom D. Talley, of Bogalusa, attorney for defendant, appellee.

      LECHE, J. Dissents to original opinion.
   ELLIOTT, J.

Dissents to final opinion on rehearing for written reasons.

MOUTON, J.

In May, 1925, a beneficiary certificate was issued by defendant to Mart Kendall, deceased husband of plaintiff, who brings this suit for herself, individually, and for her minor daughter, Gloria, as beneficiaries thereunder.

Plaintiff alleged that the defendant association had no agent in this state on whom process could be served, and asked that it be cited through the Secretary of State.

Defendant excepted to the jurisdiction of the court, alleging that the court was without authority to cite it through the Secretary of State. The exception was maintained, and the suit dismissed.

Plaintiff appeals.

The constitution and rules of defendant association, domiciliated in Cleveland, Ohio, show that it is organized solely for the benefit of its members and their beneficiaries; that it has a lodge system and a representative form of government; that it provides for the payment of death benefits for physical disability and old age at 70, all in accordance with the provisions of section 5 of Act 256, 1912, p. 565. The defendant association must therefore be classed as a fraternal benefit society under that act.

Section 17 of that act provides that every society, domestic or foreign, shall before admission and before being licensed, appoint in writing the Secretary of State and his successors, to be its lawful attorney upon whom all legal process against it, shall be served.

The defendant association, without pretending at all that it had complied with this imperative requirement of Section 17 of said Act, came into court for the sole purpose of excepting to its jurisdiction on the ground that it had no power to cite it through the Secretary' of State. The appearance of defendant in the manner stated, carried with it an implied admission or confession that it had been doing business in the state without having appointed an agent, or the Secretary of State, as its agent for service of process of which it was charged in plaintiff’s original and amended petition.

A corporation cannot do business in a state without its express or implied consent which may be given on such terms as the state may see fit to impose. Old Wayne Mutual Life Association vs. Flynn, 66 N. E. 57. It may require as a condition precedent to do business in the state, that a corporation shall in writing designate an agent or put an officer on whom process against it shall be served. Ruling Case Law, Vol. 21, p. 1350, Verbo, process, par. 99. It is stated in connection with the above “that there is some conflict, however, as to whether a foreign corporation doing business within the state without complying with a statute requiring as a condition precedent the designation of a state official to accept service of process, is bound by service on such official. One view is that by doing business in the state the corporation necessarily submits to the service of process against it on the officer whom it must have designated had any designation been made, and the other, that by failing to comply with the statute, the corporation merely subjects itself to the penalties and consequences therein enumerated.” In a number of cases it is said in connection with the above quotation, that the principal of estoppel has been held controlling against a defendant excepting to the jurisdiction of the court by setting up the fact that it had not appointed one to accept service as required by the statute, the courts holding that defendant was estopped from setting up its own misconduct. It was so held in Showen vs. Owen Co., 133 Am. State Rep. 376; 122 N. W. 640. See also Penn. Fire Insurance Co. vs. Gold Mining Co., 243 W. T., p. 243, 61 Law Ed. 616. It is true that defendant did not set up here as a fact that it had not complied with the requirements of the statute by failing to appoint the Secretary of State for service of process. It was, however, charged in the original petition that it had not appointed an agent to whom process could be served. This charge necessarily included its failure to appoint the Secretary of State.

In an amended petition filed by plaintiff it was there directly alleged that it had failed to appoint the Secretary of State for service of process. Defendant renewed its exception to the jurisdiction without making reference to the charges of its failure to. make that appointment or designation. It must be held under the pleadings that its defense of want of jurisdiction is based on the fact that it has not appointed the Secretary of State or any agent in the state upon whom process could be served, and that the citation on the Secretary of State was without legal authority or power, as contended by defendant, and therefore, null. It is true that authorities referred to by us, were cases where corporations were involved. Here, the defense is urged by a fraternal association, not, it is true, organized under the laws of this State but which comes as hereinabove stated, under the provisions of Act 256 of 1912. This Act, under which defendant is basing its rights in our courts provides that before an association of its character can do business in the State, it must appoint the Secretary of State as its lawful attorney for the service of process. Such being the statutory requirement, we are of the opinion that defendant cannot take advantage of its own misconduct by pleading that the court has no jurisdiction over it because of its failure to observe the essential requirements of the statute.

The judgment appealed from is therefore avoided and reversed, and this case is remanded to the lower court to be proceeded with according to law, appellee to pay the costs of this appeal, those below to abide the decision of this suit.

LECHE, J.

Dissenting.

I dissent on the authority of Pennoyer vs. Neff, 95 U. S. 714; S. P. Company vs. Denton, 146 U. S. 207; Gouner vs. Missouri Valley Bridge & Iron Company, 123 La. 926, 49 South. 657.

ON REHEARING.

MOUTON, J.

A re-examination of this case has led the writer of this opinion to the conclusion that the vital question presented, is as to whether the defendant association was doing business in the State of Louisiana at the time the policy was issued to deceased. In the original petition of plaintiff, there is no allegation that the contract with the deceased was made in this State by an agent of defendant association, or that it was when entered into or since doing business in Louisiana. The fact is that plaintiff averred that defendant had no agent in Louisiana, and for that reason had service of citation made on the Secretary of State. The defendant promptly filed an exception to the jurisdiction of the court. Plaintiff, realizing, we presume, the lack of jurisdictional allegations, then filed a supplemental petition alleging that') defendant had failed to appoint the Secretary of State as its agent for the service of process and that it still continued to write fraternal insurance policies, which by implication carried with it the assertion that it was transacting business in this State when the policy was issued to deceased. This supplemental petition was served on the attorney of defendant under the provisions of Section 16 of Act 179, 1918, p. 339. Defendant again challenged the jurisdiction of the court in another exception, contending that it could not thus be brought into court, as its attorney had appeared solely to urge its plea of want of jurisdiction. Conceding that the service on the attorney was legally permissible, it is evident, however, that the plea to the jurisdiction which was renewed against the supplemental petition, could not have the effect of admitting as true the jurisdictional allegations which appeared for the first time in the amended petition and by implication. In an exception of no cause of action such allegations would be accepted as true, but not in an exception to jurisdiction in which the authority of the court is denied. If defendant association was doing or transacting business in this State, evidence or proof was therefore required to establish that fact to vest the court with jurisdiction. It could hardly be expected that defendant would offer proof of that character, and it is therefore clear that the duty of meeting this requirement devolved upon plaintiff.

In Act 54 of 1904, it is made the imperative duty of foreign corporations to file with the Secretary of State, the name of the agent or agents on whom process may be served. In case of failure so to do, these corporations may be sued in any parish of the State where they may be doing business. It must, however, be shown that they are transacting such business, otherwise our courts have no jurisdiction over them. Gouner vs. Missouri Valley Bridge & Iron Co., 123 La. 964, 49 South. 657. In the case of Peoples Tobacco Company vs. American Tobacco Company, 246 U. S. 79, a case originating in Louisiana, the court said:

“The general rule deducible from all our decisions is that the business must be of such nature and character as to warrant the inference that the corporation has subjected itself to the local jurisdiction and is by its duly authorized officers or agents present within the state or district where service is attempted.”

There is no evidence to show that defendant had in any way subjected itself to local jurisdiction in this case by engaging in business of such nature and character as to warrant that inference. In applying the foregoing doctrine we are assimilating the defendant association to a corporation, an endowment to which it is not legally entitled in the application of the principle involved. The defendant is, as we said in our original opinion, a Fraternal Benefit Society as designated by Act 256 of 1912. Under Section 17 of that Act, every such association, domestic or foreign, must, before being licensed to transact business in this State, appoint in writing the Secretary of State as its agent upon whom all legal process shall be served in any action or proceeding against it. This act does not, however, provide, as it is provided for under Act 54 of 1912 in reference to foreign corporations, that in the event of failure to designate an agent or agents in this State upon whom process shall be served, that such fraternal benefit society may be sued in any parish of the State where it may be doing business. Even if we consider it in the light of a foreign corporation it is impossible to escape the conclusion that it must, at least, appear that it is transacting business in Louisiana in order that it may be subjected to the jurisdiction of the State Courts. Taking the question presented from either angle, we must conclude that the lower court had no jurisdiction and properly dismissed the suit.

It is therefore ordered, adjudged and decreed that our original judgment he annulled, avoided and set aside, and it is further ordered and decreed that the judgment appealed from be re-instated and affirmed.

ON REHEARING.

ELLIOTT, J.,

dissenting:

Grace T. Kendall, widow of Mart Kendall, deceased, acting for herself and as tutrix for Gloria Kendall, her minor child, issue of her marriage with the said deceased, instituted suit against Grand Lodge of the Brotherhood of Railroad Trainmen in Washington Parish. She alleges that said Brotherhood is a fraternal organization with its principal office in Cleveland, in the State of Ohio. The suit is on certificate No. 432430, in Class C, issued by the Brotherhood to Mart Kendall, and the same with the endorsements thereon, is annexed to and made part of her petition. It calls for $1875.00 of which $875.00 is payable to Mrs. Kendall in cash, and the balance of $1000.00, is payable to Gloria, her minor child, in monthly installments of $30.00 each. The certificate provides that Mart Kendall is a member of Crescent City Lodge No. 669 o.f said Brotherhood, entitled to all the rights and benefits of membership and to participate in the beneficiary department Class C, for said amounts payable as above stated in case of his death. The petition alleges that Mart Kendall paid all the dues and assessments against him as a member, and that said certificate Was in full force and effect at the time of his death. That he departed this life February 4, 1926, intestate, in Washington Parish, Louisiana, where he resided, and which was his domicile at the time of his death. That she submitted to the said Grand Lodge, etc., of the Brotherhood, due proofs of his death, but that said Brotherhood on April 9, 1926, without any legal right or cause, arbitrarily and without notice to her, pretended and attempted to cancel said certificate, and so marked across its face, and refuses to pay same.

That said certificate was in defendant’s possession at the time, same having been transmitted to them with the proofs of her husband’s death. That said Grand Lodge, etc., has no agent in the State of Louisiana upon whom process can be served, and has not complied with the law of the State on the subject of fraternal benefit societies. She prayed that said Brothérhood be cited to the Secretary of State, and for judgment against them in her favor for $1875 payable as above stated. Citation issued and was served January 18, 1927, as prayed for. On February 11, 1927, defendant appeared through its attorney, in Washington Parish, and excepted to the jurisdiction of the court on the ground that defendant was not residing in Washington Parish, and that said court had no right, power or authority to attempt to bring it into court in that parish. That the court had no authority to cite defendant through the Secretary of State, and prayed that plaintiff’s suit be dismissed and rejected at her cost.

On March 29, 1927, Mrs. Kendall individually and as tutrix, with leave of the court, filed an amended and supplemental petition in which she alleges that said Grand Lodge of the Brotherhood of Railroad Trainmen had not appointed the Secretary of State its agent upon whom process could be served and had not qualified to do business in this State in order to write fraternal beneficiary certificates, and was not so qualified when the certificate herein sued on was written in this State, and notwithstanding its failure to so qualify, continues to write fraternal insurance in this State. That defendant had appeared through its attorney and excepted to the process served on the Secretary of State. She therefore prayed that citation and copy of the original petition he served on its attorney as provided for in Section 18, Act 179 of 1918.

Service was made as prayed for, and upon which defendant, on April 13, 1927, again appeared through its attorney and excepted to the citation, alleging in its exception that plaintiff could not take advantage qf its appearance solely for the purpose of excepting to the jurisdiction of the court, in that way. That it had never been cited. That it was a fraternal benefit society and not a corporation. That laws as to corporations did not apply to it, unless specifically named. That plaintiff’s attempt to_ bring it into court as a corporation was illegal, void and of no effect. That plaintiff was without right or authority to bring defendant into court in Washington Parish, and defendant finally prayed that the citation served on its attorney be revoked and set aside, and that plaintiff’s suit be dismissed at her cost.

While defendant is a fraternal benefit society provided for by Act 256 of 1912, and not a corporation, yet the result of its appearance in court is just like that of any other defendant, consequently its exception of April 13, 1927, stated by it to be an exception to the service of citation and original amended petition on its attorney, has no foundation on which to rest, for the reason that its appearance on February 11, 1927, had accomplished the object of citation. See Louisiana Digest, Vol. 2, p. 143, Section 47. Godchaux vs. Texas & Pacific R. R. Co., 151 La. 955, 92 South. 398. That appearance left nothing before the court except the question of jurisdiction. As for plaintiff’s amended and supplemental petition served on its attorney, the amendment did not, and it is not contended that same changed the substance of plaintiff’s demand. Therefore there was no need for serving it on defendant. The filing of same in the record, with leave of the court, is all the notice that the law provides for. C. P. Arts. 419, 420, 421, etc.; Flynn vs. Flynn, 21 La. Ann. 168.

The service of an amended and supplemental petition is only necessary when the amendment is in effect a new suit. Licquette Heirs vs. Pierce, 5 La. 361; Tremont Lumber Co. vs. May, 143 La. 389, 78 South. 650. Act 170 of 1918 refers to voluntary associations domiciled in the State only, and does not contemplate a situation like the present.

The photographic copy of Mart Kendall’s applieation for membership in defendant, attached to the certificate sued on, states that his address is Rio, La. A like copy of the report of the medical examiner, indicates that his examination took place at Bogalusa, La. The certificate was first payable entirely to Mrs. Kendall. It was subsequently changed, and made payable to wife and daughter. In making the change it is stated that they are residents of Bogalusa, La. We take cognizance of the fact that these places are in Washington Parish. This showing taken in connection with the averments above mentioned, is all that we have on the subject as to whether defendant, at the time of suit, was present and engaged in doing a fraternal benefit insurance in the State. Defendant in its appearance denies that it is a resident of the State, but it does not deny that the certificate sued on was written in the State, nor that it is continuing to do business in the State as alleged in plaintiff’s amended petition. No evidence was offered nor tendered on the • subject. The question of citation and of jurisdiction, was submitted to the Court on the allegations of the plaintiff and defendant, and is before us in the same way. The certificate purports to have been signed by the defendant in Cleveland, Ohio, but to have been accepted for Mart Kendall by Crescent City Lodge No. 689, which does not purport to be located there. It is stated in one of the photographic copies of the application for the cerifícate, that: “Any beneficiary certificate based upon this application shall be held to be a contract made in the State of Ohio, and subject to its law,” and purports to have been signed by Mart Kendall. But if the certificate was in fact written in this State, and the defendant continues to write fraternal insurance in this State, that fact must, in my opinion, prevail over the showing and statement above mentioned for the purpose of acting on the question of jurisdiction. A similar situation was before the Supreme Court in Payne & Joubert vs. East Union Lumber Company, 109 La. 706, 33 South. 739.

In that case there was an exception to the jurisdiction of the Court in personam on the ground that the defendant, a Mississippi corporation, could not be brought before the Court in Louisiana for such a (purpose. The Court acting on the pleadings held that it could.

The Act 256 of 1912 and the Constitution of 1921, Art. 13, sections 4 and 8, were in force and effect when the certificate sued on was issued.

It is defendant’s contention that even if the certificate sued on was written in this State, and even though it continues to write fraternal insurance in the State, as it has not appointed the Secretary of State its agent upon whom process can be served, and has not complied with the State law, which conditions the right to write fraternal benefit insurance in the State, it cannot be sued here on its liabilities and judgment rendered against it in personam thereon. That if the plaintiff desires to sue to compel payment of the certificate issued to her husband here, she must bring suit at Cleveland, Ohio.

The provision “After the promulgation, no one can' allege ignorance of the law,” C. C. Art. 7, applies to citizens of other states coming into and doing business in this State. The Act 256 of 1912, sections 16 and 17, provides as follows:

"That no foreign society transacting business organized prior to the passage of this Act, which is now authorized to transact business in this State, shall transact any business in this State, without obtaining a license from the Secretary of State authorizing it to do so, and filing with the Secretary of State a copy of its charter, constitution, by-laws, etc.” ,

The foreign society is also required, before transacting any business in. this State, to appoint in writing the Secretary of State and his successors in office, to be its true and lawful attorney, upon whom all legal process in any action or proceeding against it, shall be served, and in such writing shall agree that any lawful process against it, which is served upon such attorney, shall be of the same legal force and validity as if served upon the society, and the authority shall continue in force so long as any liability remains outstanding in this State, etc. The Act makes it the official duty of the Secretary of State, as soon as any process has been served on him, to forthwith forward by registered mail a duplicate copy of the same directed to its secretary or corresponding officer, etc.

In Gouner vs. Missouri Valley Bridge & Iron Co., 123 La. 964, 49 South. 657, the suit was based on an alleged quasi offense in which a citizen of this State had been killed while in the employ of the defendant. The Court held that an action in personam on that account could not be maintained against the defendant in this State, because it had completed its work, ceased to do business in the State, and had left the State before the suit was filed. The decision was also partly based on the fact that Act 54 of 1904 did not make it the official duty of the Secretary of State to forward to the defendant, notice of the process served on him. This defect in Act 54 of 1904 is corrected by section 17 of Act 256 of 1912. The difference between the present case and the one cited is that the present case is based on contractual liability, alleged to have been contracted in this State by a defendant engaged in contracting other liabilities of the same kind, at the time the suit was filed.

In Pennoyer vs. Neff, 95 U. S. 714, there was no citation except by publication. The Court held that no judgment could be rendered in personam against a non-resident cited in that way. But in the course of the same opinion, the Court says:

“Neither do we mean to assert that a State may not require a non-resident, entering into a partnership or association within its limits or * * * making contracts enforceable there, to appoint an agent or representative in the State, to receive service of process and notice in legal proceedings, instituted in respect to such partnership, association or contracts, or to designate a place where such service may be made and notice given, and provide upon their failure to make such appointment or to designate such place, that service may be made upon a public pfficer designated for that purpose or in some other prescribed way, and that judgment rendered upon such service may not be binding upon the non-residents, both within and without the State.”

Taking into account the provisions and requirements of Section 17 of Act 256 of 1912 and the Constitutional provisions heretofore mentioned, and the acts alleged against defendant, the case recognizes the authority of the Washington Parish Court.

Southern Pacific Company vs. Denton, 146 U. S. 202, is based on an act of Congress regulating the jurisdiction of the Federal Courts. The Court held in that case that the Acts of Congress on the subject of the jurisdiction of the Federal Courts prevailed over state legislation in conflict therewith.

In Premeaux vs. Henry Ford and Son, 155 La. 106, 98 South. 856, the Court held that on the record in that case, and according thereto, the defendants had not done, and were not engaged in doing business in the State.

In Peoples Tobacco Co. vs. American Tobacco Co., 246 U. S. 79, the court speaking of what constitutes doing business in a state, says:

“Each case depends upon its own facts. The general rule deducible from all our decisions, is, that the business must be of such nature and character, as to warrant the inference that the corporation has subjected itself to the local jurisdiction, and is by its duly authorized officers or agents present within the state or district where service is attempted.”

According to plaintiff:' “The certificate herein sued on was written in this State,” and defendant “notwithstanding its failure to sq qualify, continues to write fraternal insurance in this State.”

Peterson vs. Chicago, Rock Island & Pacific R. R., 205 U. S. 364, is not different as an authority from the case just mentioned.

In Hussey Tie Co. vs. Knickernocker Insurance Co., Circuit Court of Appeal, 8th Circuit, a person with authority to solicit insurance but without authority to write policies, obtained, and sent business to the home office in another state. The court held that such a solicitor was not an agent of the insurance company, and on the question of jurisdiction, held that soliciting of the kind did not amount to doing business in the state where such solicitor resided.

A similar difference exists between the present case and that of Minnesota Commercial Men’s Assn. vs. Benn, 261, 140.

Defendant also contends that the penalty and prosecution provided for by Section 31, Act 256 of 1912, is all that can be done to a. fraternal insurance company for failure to comply with the requirements of sections 16 and 17. The penalty and prosecution provided for in section 31 is against the offending individual who acts as agent. This provision was not intended to prevent a suit by a citizen against a defendant, present in the State, for the purpose of recovering of such defendant, what it owes him on a liability contracted in the State.

Repeated decisions hold, says the Supreme Court of Louisiana, in Trust Company, Receiver, vs. Germania Insurance Co., 106 L. 669, that a State may lay down the conditions upon which a foreign insurance company shall do business within its territorial limits and make provisions for service of process upon agents, and to acquire jurisdiction in the event of a suit to recover upon the policy issued. The question. has been considered in a number of decisions and it has been repeatedly decided that different from a natural person, a corporation cannot do business in another state without the latter’s consent, and that the state has full power to fix the conditions it seems proper. They (corporations) are bound by the statutory agency created, and in entering the state as a corporation, they are bound by and in terms of the statute fixing the agency in such cases. Citing 106 U. S. 350, and 172 U. S. 606, etc.

In St. Clair vs. Cox, 106 U. S. 350, the Court said:

“The statute may therefore impose as a condition upon which a foreign corporation shall be permitted to do business within her limits, that it shall stipulate that in any litigation arising out of its transactions in the state, it will accept as sufficient the service of process on the agent or persons designated, and the condition would be eminently fit and just. And such condition stipulated may be implied as well as expressed. If a state permits a foreign corporation to do business within her limits, and at the same time provides that in suits against it for business there done, process shall be served upon its agents, the provision is to be deemed a condition to the permission, and corporations that subsequently do business in the state are to be deemed to assent to such conditions as fully as though they had especially designated this agent to receive service of the process, etc.”

In Mutual Life Insurance Co. vs. Spratley, 172 U. S. 602, the Court said:

“In a suit where no property of a corporation is found within a state, and the judgment sought is a personal one, it is a material inquiry to ascertain whether the foreign corporation is engaged in doing business within the state.”

The subject of service on an agent designated by a state statute was discussed at length. The court quoted from Lafayette Insurance Co. vs. French, 18 H. 404. According to the case quoted, a statute of Ohio made provision for service of process on foreign insurance companies in suits founded on contracts of insurance there made by them with citizens of that state. The court commenting thereon said:

“We find nothing in this provision either unreasonable in itself, or in conflict with any principle of law. It cannot be deemed unreasonable that the State of Ohio should endeavor to secure to its citizens a remedy in their domestic forum upon this important class of contracts, made to be performed within the State,, and fully subject to its laws, nor that proper means should be used to compel foreign corporations transacting this business of insurance within the state, for their benefit and profit, to answer there for the breach of their contracts of insurance there made and to be performed. Nor do we think the means adopted to effect this object, are open to the objections that it is an attempt to improperly ’extend the jurisdiction of the state beyond its own limits, to a person in another state.”

The opinion says in another place:

“The law may and ordinarily does designate the agent on whom process is to be served. For the purpoe of receiving such service and being bound by it, the corporation is identified with such agent as its officer.”

And on page 619 says:

“A vast mass of business is now done throughout the country by corporations which are chartered by states other than those in which they transact part of their business, and justice requires that some fair and reasonable means should exist for bringing such corporations within the jurisdiction of the courts of the states, where the business is done, out of which the dispute arises. It is well said in R. R. Co. vs. Harris, 12 W. 65. When this suit was commenced, if the theory maintained by counsel for plaintiff in error be correct, however large or small the cause of action and whether it were a proper one for legal or equitable cognizance, there could be no legal redress short of the seat of the company in another state. In many instances the cost of remedy would have largely exceeded the value of its fruits. In suits local in their character, both at law and in equity, there could be no relief. The result would be to a large extent, immunity from all legal responsibilities.”

It appears from Mutual Reserve Fund Life Assn. vs. Phelps, 190 U. S. 147, that a statute of Kentucky made the Insurance Commissioner of that state the agent of life insurance companies of other states doing business in Kentucky, for the purpose of receiving and serving process, etc. Mutual Reserve Fund Life Assn, had done business in Kentucky and had consented that the Commissioner be its agent as provided for in .the statute. The Commissioner cancelled its license and notified the association that its authority to do business in Kentucky was revoked. After that time Mutual Reserve Life Fund Assn, had no agent in Kentucky and did no new business there, but continued to collect premiums and dues on policies already issued. Under these circumstances, Phelps alleging himself to be a creditor of the association on account of a policy issued while it held a license, brought suit thereon against the association in Kentucky, citing it through the Commissioner as provided for in the statute. The association did not appear and was condemned by default. It then appeared and attacked the judgment, alleging that the court had no jurisdiction, that the judgment was null and void, etc. The question was, whether the association having issued the certificate sued on, and having continued to collect dues and premiums thereon after its right to do business had been revoked, was still doing business and present in the state. The court says, page 158:

“It is true the association did not voluntarily withdraw from Kentucky, but was in effect prevented by the statute from engaging in any new business. Why this was done is not shown. It must be presumed to have been for some good and sufficient reason. It would be a hard construction of the statute, that because the state had been constrained to compel the association to desist from engaging in any further business, it also deprived its citizens who had dealt with the association, of the right tp obtain relief in its courts.”

The service on the Commissioner ancf the jurisdiction of the Kentucky court in personam was upheld.

It appears from Old Wayne Mutual Life Assn. vs. McDonough, 204 U. S. 8, that a Pennsylvania statute contained a provision making the Insurance Commissioner the agent of foreign insurance companies doing business in that state, and required them to file stipulation to that effect, authorized process to be served on the Commissioner, and gave to such service the same effect as if served personally on the company. Old Wayne Mutual Life, etc., did not go into Pennsylvania, nor comply with the statute, but issued a certificate of insurance in Indiana, and caused same to be delivered to the insured in Pennsylvania. Suit was instituted against Old Wayne Mutual Life, etc., on the certificate in Pennsylvania. The court on exception to jurisdiction of the court, held that Old Wayne Life, etc., had not done business in Pennsylvania, and that the court there had no jurisdiction, but said in disposing of the question, p. 21:

“Undoubtedly it was competent for Pennsylvania to declare that no insurance corporation should transact business within its limits, without filing the written stipulation provided for in its statute. It is equally true that if an insurance corporation of another state transacts business in Pennsylvania without complying with its provisions, it will be deemed to have assented to any valid terms prescribed by the Commonwealth, as a condition of its right to do business there, and it will be estopped to say that it had not done what it should have done in order that it might lawfully enter that Commonwealth and there exert its corporate powers.”

Decisions are then cited to the effect that if a foreign corporation enters a state, and enters into contracts therein without having complied with the statutory conditions of the state, without which it did not have the right to do business in the state, it will not be permitted to take advantage of its wrong. That it will be estopped to set up its non-compliance, for the purpose of escaping the jurisdiction in personam of the courts of the state, when sued there on its contracts entered into in that state and deemed to have assented to all the valid terms of the statute, as conditions of its right to do business in that state.

The rule applied to corporations in the cases cited and referred to, applies to fraternal benefit societies with equal reason.

In the present case the plaintiff alleges that the certificate sued on was written in this state, and that the defendant continues to write fraternal insurance in this state. The defendant came into court by its attorney, and without denying plaintiff’s averments, pleaded non-residence as its only objection to the jurisdiction of the Washington Parish Court.

Plaintiff’s said averments are strengthened by the certificate produced, and the disclosure appearing thereon. I think for the purpose of ruling on the power and authority of the court in the present situation, that said undenied averments in plaintiff’s petition must be taken as true. That defendant was present in the state at the time of the suit engaged in the business of writing fraternal insurance in the state. That the Grand Lodge of the Brotherhood of Railroad Trainmen must be deemed to have had knowledge of the law, Act 256 of 1912, and the Constitution of 1921, Art. 13, sections 4 and 8, at the time it entered the state and engaged in business therein, and to have assented to the conditions prescribed by said statute, on which it had the right to transact said business and enter into contracts with citizens of this state. That' defendant’s non-residence and the fact that it did not obtain a license, and appoint by written act the Secretary of State its agent upon whom process could be served in a suit against it on account of its liabilities contracted here, as it should have done under the law, cannot avail it for the ¡purpose of avoiding responsibility in personam to the Washington Parish Court. That in such a situation defendant is estopped to plead its non-residence and non-compliance witli the law for such a purpose, but stands subject to the power and authority of the court, just as effectively as if it had complied with the conditions of the statute in the matters mentioned. I therefore dissent, and contend that our first opinion and decree herein was correct, and that it should be reinstated and made the final judgment of this court.


source: Caselaw Access Project

author: MOUTO'N, J. LECHE, J.

license: Public Domain

text:
    No.-
    First Circuit
    PHILIP WERLEIN, LTD., v. SALLIS
    (February 15, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Sales—Par. 1, 9, 14, 15.
    Where there was a price fixed between the parties and a mutual consent for the thing sold beside actual delivery made and installments paid by the purchaser, there is a sale under Civil Code, Article 2439.
    2. Louisiana Digest — Sales—Par. 49, 62.
    An agreement in a contract of sale that the purchaser cannot remove the thing purchased without the written consent of the seller is merely a stipulation to secure payment for the credit portion of the purchase price for which the seller had .a vendor’s lien.
    3. Louisiana Digest — Sales—Par. 1, 49, 62.
    The stipulations of a contract providing that in case of default of payment by purchaser or in case of fire, storm or otherwise, or in ease of removal of the thing purchased from the premises, the whole amount of the purchase price would be considered due, are not repugnant' to a contract of sale.
    [4. Louisiana Digest — Sales—Par. 1, 4, 12.
    When a contract is made, the law governs its results and the parties to it cannot control its legal effects. Therefore, where a contract of sale is made and the “vendor” is referred to as “lessee”, the contract is one of sale, nevertheless.
    5. Louisiana Digest — Sales—Par. 49.
    Under Article 1764 of the Civil Code, accidental stipulations cannot destroy the primary obligation which devolved upon the purchaser of a ¡piano.
    6. Louisiana Digest — Sales—Par. 225, 232, 243.
    Where the evidence clearly shows that a . piano sold was not defective but merely needed slight repairs, there is no redhibitory defect to cause the rescission of the sale.
    7. Louisiana Digest — Sales—Par. 4.
    Under Art. No. 620 of 1877, a contract partaking of the nature of a sale and lease both, is considered as a sale pure and simple.
    Appeal from the Parish of St. Tammany. Hon. Prentiss Carter, Judge.
    Action by Philip Werlein, Ltd., against M. A. Sallis.
    There was ‘ judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    L. V. Cooley, of Slidell; W. L. Barnett, of New Orleans, attorneys for plaintiff, appellee.
    S. W. Provensal, of Slidell, attorney for defendant, appellant.
    LECHE, J., concurs for written reasons.
   MOUTO'N, J.

Defendant entered into the following .contract with plaintiff company in reference to a rebuilt Wurlitzer piano:

“New Orleans, La., December 1st, 1924.
“I promise to pay to the order of Philip Werlein, Ltd., Seven Hundred and Fifty ($750.00) Dollars with six per cent per annum interest from date until paid, as follows; Cash, $25.00; on installation, $75.00; balance, $27.00; on or before the 20th day of each and every month after the date hereof, in advance from January 20, 1925, being balance of purchase price of rebuilt Wutlitzer. Signed, Owl Restaurant, M. A. Sallis, proprietor.”

A detachable agreement attached to the foregoing appears in the words following:

“New Orleans, La., December 1st, 1924.
“I hereby acknowledge to have received in good order from Philip Werlein, Ltd., a rebuilt Wurlitzer made by Rudolph Wurlitzer Company, numbered 26888 with two rolls.
“I agree not to remove said instrument from the premises known as Owl Restaurant, Slidell, La., without the written consent of Philip Werlein, Ltd., except in case of fire and I will be responsible for all loss or damage that may accrue to said instrument while in my possession.
“I agree to return this instrument upon written demand at any time I have failed to make any payment when due, all payments that may have been made being considered as rent and for wear and tear of instrument.
“I do hereby agree that in case of default of any payment, or in case of total or partial destruction by fire, storm or otherwise, or in case of removal of said instrument from the premises occupied without the written consent of vendor or in case I shall default in my rent for the premises occupied by me, the whole amount will be considered due and exigible and in case it shall become necessary to institute legal proceedings for the recovery of the amount due, the said lessee binds himself to pay the fees of the attorney-at-law who may be employed for that purpose, which fees are hereby fixed at five per cent on the amount sued for. Insurance taken out by said purcka,ser on said instrument or on his household furniture in case of loss is hereby assigned to Philip Werlein, Ltd., all indebtedness out of any loss or damage incurred.
“There is no agreement to keep this instrument in tune. No agreement other than those embodied in the contract in all its parts including the subjoined agreement to sell will be recognized.
“(Signed)
“OWL RESTAURANT,
“M. A. Sallis, Prop.”

It' may be proper to remark here that a contract in the form of a promise to sell but without any agreement to buy, is subjoined to the foregoing contract. This promise is not signed by either plaintiff oí defendant, and is therefore not a factor in the determination of this suit.

The proof shows that the piano was placed in defendant’s restaurant where it was used for many months; that installments were paid at different times, reducing the claim from $750.00 to a balance of $387.83, for the collection of which this suit was brought, and the piano was seized under a writ of sequestration. The defense is two-fold.

(a) That there was no sale but 'an option to purchase and that defendant having reserved the right to return the instrument is not liable for the purchase price.

(b) That the piano had latent or redhibitory defects.

It clearly appears from the contract hereinabove reproduced that defendant agreed to the price of $750.00 for the piano, paid $25.00 cash, and promised to pay the credit portion of monthly installments, which, in the obligation he executed in favor of plaintiff company, he termed the balance on the purchase price. As hereinabove remarked, delivery of the piano was made, and in fact several of the installments were paid. It is evident under the promissory obligation thus executed by defendant in favor of the plaintiff company, that there was a price fixed between the parties, and a mutual consent for the thing sold. These three essential circumstances concurred to the perfection of the contract, and made it one of sale. C. C. 2439. In addition thereto, was the delivery of the piano and payment of the deferred installments on the credit portion of the price.

In the detachable agreement which is copied hereinabove, the defendant agrees not to remove the piano from the ¡premises without the written consent of the plaintiff. In a contract of sale, the vendor has by the nature of the contract, a vendor’s lien to secure the payment of the credit portion of the purchase price and independently of this privilege, a right' of action for the dissolution of the sale, if the buyer does not pay the price. C. C. 2561; Sutton vs. Mock, 18 La. Ann. 598; LeBourgeois vs. LeBourgeois, 28 La. Ann. 757. In making the stipulation that the piano could not be removed from the premises without its written consent, plaintiff was merely providing by agreement for the protection of his lien in case defendant defaulted in the payment of the price. In another part of this detachable agreement, is the following clause:

“I agree to return this instrument upon written demand at any time after I have failed to make payments when due, all payments that may have been made being considered as rent and for wear and tear of instrument.”

It is obvious that the written demand for the return of the piano provided for in that clause of the contract has reference to the plaintiff, and certainly not to defendant. It cannot possibly have reference to defendant as it cannot possibly be contended that he could make a written demand on himself to return the piano. As it is impossible to so construe that clause of the contract, there is no merit in the contention of the defendant that it had an option to purchase, and was not liable for the purchase price because he had “reserved the right- to return the instrument.”

In connection with our discussion of that clause in the detachable agreement it is proper to consider Article 2045 Civil Code, which confers on the vendor the right to dissolve the sale under the resolutory condition. In case the vendee does not comply with his engagement to pay the price, the sale may be dissolved by the vendor, but when it is dissolved under a proceeding of that character, he must restore to the vendee what he has received on the price. It was evidently for the purpose of avoiding the necessity of resorting to such a proceeding to annul the sale, and to escape the obligation of restoring the amounts it had received, that plaintiff company inserted that clause in the contract, which provided for the return of the piano upon written demand, with the stipulation that all payments made to the ¡plaintiff would be considered “as rent and for wear and tear of the instrument.”

The other stipulations in the detachable agreement which are pertinent to the subject under discussion are, that in case of default of any payment, or ih case of total or partial destruction by fire, storm or otherwise, or in case of removal of said instrument from the premises occupied, without the written consent of vendor, or in case the defendant defaulted in his rent of the premises, the whole amount of the purchase price would be considered due and exigible. There is nothing in these stipulations, which are, in our opinion, repugnant to a contract of sale, or which could be destructive of the obligations arising thereunder. It-is true that following these stipulations it is said in the agreement that the collection of the whole amount which may become due and exigible shall be placed in the hands of an attorney, and in referring to defendant the following language is used: “the said lessee binds himself to pay the attorney-at-law, etc.” The defendant is here termed a “lessee” but just ¡prior thereto he is called a “vendor.” Immediately after the use of the word “lessee” it is provided in the agreement that if insurance be taken out by said “purchaser” on said instrument, and in case of loss, the amount is assigned to plaintiff to “secure the purchase price.” In these stipulations, defendant, it is true, is referred to as the lessee, but the reference to him as “purchaser” and the stipulation that the insurance money in case of loss. of the piano should go to the plaintiff to secure the “purchase price,” makes it quite clear that plaintiff was correctly referred to as the “vendor” as he appears to be clearly designated in the promissory obligation of defendant, in which he agreed to the purchase ¡price, paid a cash amount, and bound himself to pay the balance in monthly installments, and actually paid about half of the stipulated price. This agreement by defendant in his promissory obligation had fixed legal essentials, which made the contract one of sale. When a contract is made the law governs its results, and the parties to it cannot’ control its legal effects. Cooley vs. Broad, 29 La. Ann. 345; Adams Mack Co. vs. Newman, 107 La. 702, 32 So. 38. The stipulations which were inserted in the detachable agreement did not affect the essence of the contract by which it was characterized as a contract of sale, and could not control its legal effects which were controlled by law. These stipulations were in the nattire of accidental stipulations, and as such, permissible, but could not destroy the primary obligations which devolved upon defendant as a purchaser of the instrument. C. C. 1764.

The other defense, is that the sale should be avoided on account of the latent or redhibitory defects of the thing sold.

The defendant, and his son, aged 17, testified to their dissatisfaction with the piano. The boy attempted to fix it or remedy what he conceived to be the trouble, but without success. The proof shows he has no technical knowledge which qualified him to remedy defects in musical instruments. His attempt to remedy what he conceived to be the trouble might have been more detrimental in its results than beneficial to the piano. Lawrence, a man qualified in the business of repairing and rebuilding pianos and pipe organs, testified in the case. He examined the electric -'piano and found that it needed re-winding and the softening of its tones. He discovered no defects in the instrument. He repaired or reinstated the shaft in the piano which he found had been worn out in the course of time. There is nothing in the record which militates against the truthfulness of the statement made by that -witness, which shows that there was no latent defect or redhibitory vice to authorize the avoidance of the sale of the piano. Plaintiff is therefore entitled to the payment of the balance due on its purchase price, as was decreed below.

LECHE, J.

Concurring:

The contract in this case evidences a sale pure and simple. In a sale the vendor transfers the ownership to the purchaser. C. C. 2439. Ownership imipliés the right to use, to enjoy and to dispose of one’s property in the most unlimited manner. C. C. 491. It therefore follows as a necessary corollary that one cannot sell or transfer the ownership of a thing and thereafter continue to exercise dominion over it, for that is inconsistent with a contract of sale, in which the purchaser. acquires the right to use, to enjoy and to dispose of in the most unlimited manner. To acquire the possession of a thing in order to use it and enjoy it, without the right to dispose of it in the most unlimited manner, is in the nature of a contract of a lease, or a contract of usufruct.

A hybrid contract partaking both of the nature of a sale and of a lease, in which the transferrer can hold the transferee liable for the price of the thing and at the same time retain the ownership of the thing in himself as' security for the price, is impossible in this State. The legislature, by Act 62, p. 102, of the acts of the Extra Session of 1877, so recognized, and it provided that such a contract should be considered as a sale pure and simple. See Forsman vs. Maee, 111 La. 28, 35 So. 372; State ex rel Bulkley vs. Whited & Wheless, 104 La. 125, 28 So. 922. See also Barber Asphalt Paving Co. vs. St. Louis Cypress Co., 121 La. 152, 46 So. 193.

Whatever stipulations there may be in the contract in this case, which restrict the right of defendant in the use, enjoyment and right to dispose of the thing, a Wurlitzer instrument, should not therefore be considered as converting the contract into one of lease, but should be ignored and considered as not written. If plaintiff had attempted to enforce any such stipulation, a different case would be presented, but it has only exercised its right as a vendor, and in so doing, treats as it may lawfully do, the contract as one of sale.

I concur in the decree.


author: ODOM, J.

text:
    No. 2978
    Second Circuit
    WILSON v. HUNT
    (February 14, 1928. Opinion and Decree.)
    (March 14, 1928. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Appeal—Par. 625.
    Finding of the trial court on matters of fact; namely, the amount allowed on defendant’s reconventional demand being clearly correct is affirmed.
    Appeal from the Fifth Judicial District Court of Louisiana, Parish of Richland. Hon. John R. McIntosh, Judge.
    Action by Carrie Wilson against C. V. Hunt.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    T. H. McGregor, of Rayville, attorney for plaintiff, aippellant.
    George Wesley Smith, of Rayville, attorney for defendant, appellee.
   ODOM, J.

Plaintiff alleges that she is the owner and in possession of the SE% of SW% and SW% of- SE% of Section 36, Township 18 North, Range 9 East, in Rich-land parish, Louisiana, and that on March 14, 1914, she transferred said property by notarial act to Wilber L. Causey, and that said Causey in turn transferred said property to the defendant, Hunt, in whose name the property now stands on the records of Richland parish.

She specifically avers that the sale from her to Causey was a simulation pure and simple, was made without a consideration and was never intended to convey title to Causey but was made to him under the specific agreement and understanding that he was not to become the owner thereof and was to return the property to her upon demand.

She further alleges that the transfer from Causey to the defendant was without consideration and with the definite understanding that she was the owner thereof and that Hunt agreed to restore the property to her.

She prays that she be decreed the owner of said land and that the defendant Hunt be ordered to transfer the same back to her and that the deed from her to Causey and the deed from Causey to Hunt be decreed null and void.

The defendant, in answer, admitted that the sale from plaintiff to Causey and from Causey to him were void and offered to restore the land to plaintiff.

But', in reconvention, he alleged that when he took the property from Causey he did so with the definite and distinct understanding with the plaintiff that he, Hunt, should pay for the plaintiff, certain debts which she then owed; that her creditors were pursuing her and that she had no funds with which to pay said debts; that plaintiff agreed that if he would pay said debts he should hold the land until such time as plaintiff could reimburse said amounts; that he paid for plaintiff, debts amounting to $363.70; that from the date on which he took over the property to 1921, he paid taxes on said property and on personal property which she owned, amounting to $499.70, all of which plaintiff agreed to- reimburse to him upon his surrendering said property to her.

He further alleged that plaintiff is indebted to him in an additional sum of $702.11, making her total indebtedness to him something over $1500.00.

He prayed for judgment in reconvention against plaintiff for the amount that he alleged was due him, and asked to be permitted to retain title to the land until said amount was paid.

The parties went to trial on the pleadings filed.

Plaintiff offered no testimony on her main demand, but relied upon the petition and defendant’s admission in answer as to the title of the land.

Defendant was allowed to offer proof of his demands in reconvention. On the trial of the reconventional demand, plaintiff disputed reconvenor’s account and claimed certain credits which reconvenor had not allowed her.

The lower court, after considering all the testimony, rendered judgment in favor of defendant on his reconventional demand for $833.79 with interest at 5%, and ordered him to convey said property back to plaintiff upon her paying, said amount.

Plaintiff appealed. Counsel for defendant, plaintiff in reconvention, say in brief, that 'he filed an answer to the appeal, asking that the judgment be increased. But we do not find a motion to amend nor do we find any note or minute of such motion. Therefore, we can grant the defendant no relief and can consider only the appeal as brought up by plaintiff.

OPINION.

The fact that plaintiff owns the land which she claims, is not disputed, and that part of the judgment which so holds is not contested.

But plaintiff contends that the judgment against her for $833.79, based on defendant’s reconventional demand is erroneous, and she asks that it be reversed.

The fact that plaintiff is indebted to the defendant for amounts paid by him for her is established beyond question. In fact, more than a year before the institution of this suit she admitted, through her' attorney, that she was due him something and she asked him to make up a statement of said amount. We find in the record, a letter dated May 6, 1924 (this suit was filed on October 16, 1925), written to defendant by counsel for plaintiff in which he says he had been employed by plaintiff to recover her land, and then says:

“Whatever she owes to you she will have to arrange to pay, and it is my understanding that when once you and she have agreed on the correct amount that she is due you, she will raise the money and pay you so that you may deed the place back to her. For this purpose she has instructed me to write to you and to ask that you furnish me an itemized statement as to what she is due you. As soon as you have done this I will go over it and submit it to her, and if there are any differences between you we will proceed to adjust them. Kindly make me an account between you showing all charges and credits. Thanking you to let me have this statement' at an early date, I remain, yours very truly.”

The whole controversy between these parties is over the correct amount due by plaintiff. Each side introduced testimony pro and con and built up a record covering about 125 pages. The course of dealing between the parties covers a period of several years and involves items of credit and debit and various settlements and relates to alleged agreements between the parties asserted by one and denied by the other.

The district judge, after hearing the witnesses, reached the conclusion that plaintiff is due defendant $833.79. As a preface to his judgment, he said:

“* * * the evidence and law considered, and the court having full personal knowledge of the integrity of the plaintiff in re-convention, it is ordered, etc.”

We have read and considered the testimony and our conclusion is that the finding of the district judge as to the amount due is correct.

It would subserve no useful purpose to go into detail as to the various items contended for by one side and disputed by the other. It all involves a question of fact which was passed on by the district judge, who saw and heard the witnesses, and, as he said, knew them personally.

His judgment is amply supported by the testimony, and is accordingly affirmed with costs.


author: WEBB, J.

text:
    No. 3163
    Second Circuit
    CARTER v. HOLLINGSWORTH REALTY CO., INC.
    (March 14, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    ON MOTION TO DISMISS APPEAL
    1. Louisiana Digest — Appeal—Par. 320, 325, 326, 516.
    Where the trial court under Art. 575 of the Code of Practice, dismisses the appeal for insufficient bond, and appellant fails to question the trial court’s ruling, the appeal must be dismissed.
    (Refer to. Act 112 of 1916. — Editor’s Note.)
    Appeal from the City Court of the City of Shreveport. Hon. David B. Samuel, Judge.
    Action by Mrs. L. M. Carter et al against Hollingsworth Realty Company, Inc.
    There was judgment for plaintiffs and defendant appealed.
    Motion to dismiss appeal Sustained..
    Poster, Hall & Smith, of Shreveport, attorneys for plaintiffs, apipellees.
    W. B. Massey, of Shreveport, attorney for defendant, appellant.
   WEBB, J.

. The defendant appealed from a judgment rendered against it and on rule filed in the trial court to test the sufficiency of the appeal bond, judgment was rendered declaring the bond insufficient and dissolving the appeal, in which ruling the defendant apparently acquiesced, and on motion duly made here to dismiss the appeal for want of bond, the defendant does not make any appearance.

The trial court was vested with jurisdiction to test the sufficiency of the appeal bond (Art. 575, C. P.; Goodrich vs. Bodley, 35 La. Ann. 525; Vredenburg vs. Behan, 32 La. Ann. 477) and the appellant having failed to question the correctness of the ruling, there is no bond, and the appeal must be dismissed. (Huppenbauer vs. Durlin, 23 La. Ann. 739; Baker vs. Shultz, 35 La. Ann. 524).

The motion to dismiss the appeal is therefore sustained.


author: ELLIOTT, J.

text:
    No.-
    First Circuit
    SCHWARTZ BROS. v. PETER SHAHEEN
    (February 15, 1928. Opinion and Decree.)
    (March 7, 1928. Rehearing Refused.)

      .(Syllabus by the Editor)

    1. Louisiana Digest — Fraud—Par. 10; Evidence — Par. 53.
    Under Civil Code, Article 1948, fraud must be proven by him who. alleges it.
    2. Louisiana Digest — Evidence—Par. 53, 59.
    Under Civil Code, Article 2232, he who contends that he is exonerated must prove the fact which has produced the extinction of the obligation.
    3. Louisiana Digest — Bills and Notes— Par. 217, 218, 220.
    Under Negotiable Instruments, Act 64 of 1904, Sections 24 and 29, “Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration, and every person whose signature appears thereon, to have become a party thereto for value.”
    4. Louisiana Digest — Bills and Notes— Par. 216; Fraud — Par. 10; Evidence— Par. 53.
    Whére the defense to a suit on promissory note is fraud, misrepresentation and error, the burden of proof is on the defendant to prove his defense.
    Appeal from the District Court, Parish of Tangipahoa. Hon.- Columbus Reid, Judge.
    Action by Schwartz Bros. & Co., Inc., against Peter Shaheen.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.

      Kemp & Buck, of Amite, attorneys for plaintiff, appellant.
    M. J. Allen and Ponder & Ponder, of Amite, attorneys for defendant, appellee.
   ELLIOTT, J.

Schwartz Bros. & Co., Inc., alleges itself to be the owner and holder of a promissory note for $696.61, with interest and attorney’s fees thereon, payable to its order, executed and signed by Peter Shaheen. It brought suit against the maker to compel payment.

Defendant admits signing' the note, but alleges in his answer that his signature to it was obtained through fraud and misrepresentation on the part of the plaintiff. That it was signed by him in error believing at the time, that ,he was signing a receipt for $2629.98, which the plaintiff owed him that day and paid him, demanding a receipt on said account. That the note is without consideration; that he did not owe the plaintiff at. the time.

There was judgment in favor of the defendant and plaintiff appealed.

The note is for the exact amount which was due Schwartz Bros. Co., Inc., at the time, by George Shaheen, defendant’s brother.

According to Mr. Adams, employee of plaintiff, defendant had verbally guaranteed the account of George Shaheen. Witness says that he made out the note in question and that Herbert Schwartz, an officer of plaintiff, asked defendant if he understood English, and defendant said that he did. That Mr. Schwartz then read the note to defendant and he signed it. That plaintiff owed defendant at the time $2629.98, and there was some discussion about taking out of it the amount due by George Shaheen. That defendant asked plaintiff not to do so, as he wanted to use the money for another purpose. That plaintiff finally paid defendant the full amount that it owed him and took from him this note, payable later, for the amount due it by George Shaheen. That defendant signed it, fully understanding that it covered the amount due plaintiff by George Shaheen.

Defendant, it seems, was unwilling that it be made known to his wife that he had' assumed responsibility for the amount due plaintiff by his brother.

The testimony of Mr. Adams is corroborated by that of Tony Marhay. This witness, Marhay, however, made statements to Sam Williams and Mrs. Sharbell some time previous to the suit, to the effect that defendant had not signed a note covering his brother’s account. He admits making the statement, saying that he had promised defendant not to let it be known to defendant’s wife. Be that as it may. Due to his statements to Sam Williams and Mrs. Sharbell, we leave his testimony largely out of view. Herbert Schwartz was not called as a witness; why it was not done, does not appear.

Defendant contends that he was unaware that he was signing a note and believed from the representations made to him by plaintiff, its agents, etc., that it was a recepit for $2629.98, which was paid at the time of the signing by the plaintiff.

Fraud * * * must be proved by him who alleges it. C. C. Art. 1948. * * * he who contends that he is exonerated must prove the fact, which has produced the extinction of the obligation. C. C. Art. 2232.

Defendant is not corroborated by a single fact or circumstance save statements made by Tony Marhay to Mrs. Sharbell and Sam Williams heretofore mentioned.

The testimony of Adams is supported by the fact that defendant is an active business .man, member of the mercantile firm of Williams Bros. & Shaheen, engaged in the sale of drygoods and general merchandise, and has been for seven or eight years or longer, and is evidently familiar with notes, checks, receipts, etc. On March 7, 1921, he signed a check for $3000.00 in favor of Tony Marhay, the amount being in fact a loan to the plaintiff.

His' business made him familiar with the appearance of figures, their meaning, and what they stand for in the matter of amount. Aside from his averments and testimony in the present case, nothing indicates that he could be easily imposed on, in the way claimed. We are satisfied that he can tell the difference between a receipt, note or check at sight.

The defendant has not, in our opinion, sustained the burden of proof as to the fraud, misrepresentation and imposition of which he complains.

As for the contention that the note is without consideration, the amount due the plaintiff by George Shaheen was a sufficient and valid consideration.

“Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration, and every person whose signature appears thereon, to have become a party thereto for value.”

Act 64 of 1904, Secs. 24 and 29; N. O. & Carrollton R. R. Co. vs. Chapman, 8 La. Ann. 97; Iberia Cypress Co. vs. Christen, 112 La. 448, 36 South. 490; First State Bank vs. Davis, 139 La. 725, 72 South. 185; cited in plaintiffs brief.

The judgment appealed from, is, in our opinion, erroneous. There should have been judgment in favor of the plaintiff 'as prayed for.

The judgment appealed from is therefore annulled, avoided and set aside, and it is now ordered, adjudged and decreed that there be judgment herein in favor of Schwartz Bros. & Co., Inc., and against Peter Shaheen for six hundred and ninety-six dollars and fifty-one cents, with interest at 6% thereon per annum from September 15, 1922, until paid, and 10% in addition thereon, as attorney’s fees.

Defendant and appellee to pay the cost in both courts.


text:
    No.-
    First Circuit
    AMACKER v. McCARTY, ET ALS.
    (February 15, 1928. Opinion and Decree.)

      (Syllabus by the Editor)
    1. Louisiana Digest — Sales—Par. 46, 334, 335.
    Where the provisions of a promise of sale specifies that purchasers shall have possession of the property as long as payments are made as provided, the burden of proof is on the seller to show that the purchasers, after having been invested with possession, surrendered it back to him.
    2. Louisiana Digest — Sales—Par. 46, 47.
    Purchaser under .a promise of sale complies with contract where all payments to be made thereunder were made, in time, before a fire occurred which necessarily divested purchaser of possession which he was entitled to under his contract.
    3. Louisiana Digest — Slander of Title— Par. 1, 5; Ownership — Par. 7; Sales— Par. 46, 47.
    A suit on a promise of sale in which purchasers of property were necessarily divested of possession by fire is not a slander of title but one involving an alleged forfeiture of a contract in which the question of ownership must be determined as presented.
    4. Louisiana Digest — Sales—Par. 47, 61, 324.
    Where property is purchased by promise of sale in which purchaser is given possession, the furniture of buyer being pledge for the payment of the property, but burns before all payments are made, the seller collecting the ¡proceeds of the insurance and distributing them, in view of Articles 2463 and 2563 of the Civil Code it must be considered a sale upon purchaser paying the balance due which the seller must accept and give title.
    Appeal from the District Court, Parish of Washington. Hon. P. B. Carter, Judge.
    Action by Charles F. Amacker against Henry McCarty, et als.
    There was judgment for defendant and plaintiff appealed.
    , Judgment affirmed.
    Miller & Richardson, of Bogalusa, attorneys for plaintiff, appellant.
    L. W. McDougal, of Covington, attorney for defendant, appellee.
   ELLIOTT, J.

Charles F. Amacker alleging himself to be the owner and possessor of that part of lots 36, 37, 38, 39 and 40 in block 188 of the City of Bogalusa, Louisiana, lying south of a line beginning on the west side of said lot 36, and 60 feet from the southwest corner of the same, and running thence east parallel with Okechobee Avenue to Shenandoah Street, brought an action of slander of title against Henry and Mrs. Ninnie V. McCarty, husband and wife, on account of the same. He alleges that on July 23, 1924, he entered into a contract with Mrs. McCarty to sell said property to her for $2200.00, payable $50.00 cash, and $50.00 on the 11th of August, 1924, and $50.00 every thirty days thereafter until the $2200.00 was paid in full. That she had never made the payments provided for in the contract and therefore had lost all rights which she might have had to said property under said contract." That said Mr. and Mrs. McCarty had caused to be recorded in the conveyance books of Washington Parish, a copy of said contract, thereby slandering his title and causing him damage to the extent of $1000.00. He prayed that they be ordered to either disclaim or assert title, condemning them to pay damages and ordering that said contract together with the registry in the conveyance book which had been made of the same, be cancelled. A certified copy of the contract was annexed to and made part of his petition.

The defendants filed an exception of no cause of action against his demand, but what became of it does not appear; we presume that it was abandoned.

Mr. McCarty for answer denied plaintiff’s averments and adopted the answer of his wife. Mrs. McCarty denies plaintiff’s averments of ownership and possession; admits entering into a contract with him as alleged; denies his averment that the payments provided for in the contract were not made, and alleges that said payments were made. She admits the recordation of the contract and her refusal to agree for it to be cancelled, and denies that plaintiff had been damaged by the registry.

She further alleges that there was a dwelling house on the property which, under the contract, was to be occupied by her and her family as a residence, and also to be used by her for the purpose of taking boarders and roomers. That insurance was taken out on said building to the extent of $3000.00 for the mutual protection of all parties to said sale. That on the night of October 5, 1924, the building .was destroyed by fire; that insurance thereon in amount $3000.00, was collected by the .plaintiff. That the amount collected, being in excess of the indebtedness due by her under the contract to the plaintiff, she was entitled to have from him a title to the property in accordance with the contract, but that he refused to execute the same. That her entire indebtedness to plaintiff under the contract and on account of said .property, had been paid by said insurance, leaving due her a balance of $900.00 which amount she claimed in reconvention.

■ She prays to be recognized as the equitable owner ^f.the property; that plaintiff be ordered to execute in her favor a ■ title to the same, and for judgment against him in reconvention for $900.00.

Mr. and Mrs. McCarty afterwards joined in a supplemental and amended answer, in which they allege that the property in question had been bought for their joint benefit; that the value of same had been reduced in proportion to the value of the building destroyed by fire; that the amount due under the contract should be credited with whatever sum the plaintiff 'had received under said promise to sell, and if anything remained due, they prayed to be permitted to pay it and take title.

There was judgment rejecting plaintiff’s demand. The court held that taking together what he had been paid and what he had collected, that he had received the amount due him under the contract, except to the extent of $90.00. He was therefore ordered to make defendants a title upon payment of the $90.00. In case he refused to do so, defendants were authorized to deposit the $90.00 in the registry of the court, upon which the judgment was to operate, as a title. Plaintiff appealed.

The plaintiff avers in article 2 of his petition that Mrs. McCarty was to pay $50.00 cash at the time the promise to sell was executed. This is a mistake; the promise to sell shows that there was no cash payment to be made. The contract bears date July 23, 1924, and the first payment to be made thereunder was $50.00 to be paid August 11, 1924.

Mrs. McCarty alleges in her answer, article 8, that plaintiff collected $3000.00 in insurance on the dwelling. This is a mistake; the amount collected was $2000.00. She also alleges that the dwelling was burned on the night of October 5, 1924. This is another mistake; it was burned early in September, 1924, probably about the 5th.

The questions of possession and payment are so connected, that we discuss them together. The promise to sell, which the plaintiff sues to have cancelled, contains the following provision:

“It is further understood and agreed, that in the event of default in any of the payments above mentioned, the property herein described shall at once revert to and belong to the said Charles P. Amacker, without the necessity of putting in default, and possession of said property shall be at once restored and any and all previous payments shall become forfeited; but the purchasers herein shall have possession of the above described property from date of this agreement and as long as the payments are made as herein provided.”

Mr. and Mrs. McCarty were thus placed in possession by the act of the plaintiff on July 23, 1924, their possession to continue as long as the payments provided for in the contract were made.

The burden of proof therefore is upon the plaintiff to show that defendants, after having been invested with possession, surrendered it back to him.

Plaintiff testifies that on Friday night before the fire, Mrs. McCarty told him, in response to demand on her for rent, that they were moving out; that the house would be vacated immediately, and would be given up because they were unable to •meet the payments. That she surrendered the house to him; that he could have possession when he desired, etc.

Mrs. McCarty propounded interrogatories to plaintiff. In answer to interrogatory No. 1, he says in part:

“A. This policy was issued to A. E. Knight, which policy had a provision therein, that the property was being bought under contract by Henry McCarty and this policy was intended to cover his interest. This policy was assigned from Knight to Amaqker, which assignment was made in July, 1924, and in August, 1924, the following endorsement was made upon the policy. That Henry McCarty is no longer buying the property and his interest is eliminated.”

In answer to interrogatory No. 3, he said in part:

“A. The policy was never issued to Henry McCarty. The policy first issued to A. B. Knight and -was later assigned to C. F. Amacker. Policy bore endorsement that Henry McCarty was buying property under contract, and that his interest was intended to be covered, and on or about August 1, 1924, the policy had the following endorsement placed upon it: Henry McCarty is no longer buying the property and his interest is eliminated * * *, Henry McCarty having defaulted in the contract of sale was renting property covered by contract and other property from C. F. Amacker.”

These answers are part of the record. Henry McCarty was not questioned about the elimination of his interest in the property and policy, as claimed in these answers. Nevertheless it appears from the answers, that Henry McCarty did not sign the endorsements and nothing appears indicating that he authorized the endorsements to be made. Plaintiff was not questioned on that subject.

Plaintiff’s testimony that Mrs. McCarty told him that she would give up the property, is corroborated by Mr. Knight. He .says that he heard Mrs. McCarty tell plaintiff that she could not keep’ the place and was going to move.' Plaintiff’s testimony on this subject and his answer to interrogatory No. 3, in which he says that the endorsement on the policy was to the effect that Henry McCarty was no longer buying the property, that his interest was eliminated; that he had defaulted in the contract of sale and was renting property covered by contract made on or about August 1, 1924, cannot be reconciled with the evidence satisfactorily showing that on August 10, 1924, the first payment provided for in the contract was duly and timely made by Mrs. McCarty and accepted, by plaintiff.

We think that the preponderance of the evidence shows that Mrs. McCarty did make the first payment provided for in the contract on August 10th. It was due on August 11th. This payment, timely made, had the effect under the terms of the contract, of continuing Mrs. McCarty’s possession until September 11, 1924. Before that time arrived the dwelling house burned. The evidence shows that the fire occurred several days previous to September 9th, probably about September 5th. It is so improbable that the defendant, after making the payment of August 10th, which gave them the right of occupying until September 11, 1924, had become plaintiff’s renters for the property before the fire, that we are unconvinced that she had become such. And as it is not pretended that any change in possession has taken place since the fire, we are satisfied and hold that defendants are in possession and have been continually, since it’ was delivered to them under the contract.

Defendants cannot therefore be regarded as plaintiffs in a petitory action. And the present action cannot for the same reason be regarded as one of slander of title, but as one involving an alleged forfeiture of a contract and in which the question of ownership must be determined as presented. See Atchafalaya Land Co. vs. Brownell-Drews Lumber Co., 130 La. 658, 58 So. 500, and Frost-Johnson Lumber Co. vs. Sailings’ Heirs, 150 La. 765, 90 So. 673.

The evidence shows that on September 9, 1924, Mr. and Mrs. McCarty assigned to plaintiff an insurance policy for $1000.00 on their furniture that had been burned in the house. This was two days before the second payment was due under the contract. The fire, according to Mr. McCarty, had taken place several days previous to the assignment. The plaintiff admits that he collected this policy, distributed the proceeds among Mr. and Mrs. McCarty’s creditors who had an interest in the same turning over some $400.00 out of it to Mr. McCarty. He denies that he took out of it and applied to the amount due him under the contract any portion of the amount collected. Mr. and Mrs. McCarty both testify that he did. Mr. McCarty testifies that he took out $230.00 and applied $200.00 of the amount to the sum due him under the contract and $30.00 to the payment of a dental bill. That plaintiff made out a written statement to that effect and gave it to him and that he delivered it to Mrs. McCarty. Mrs. McCarty testifies that she received the statement from Mr. McCarty and that it showed on its face that the plaintiff had taken $200.00 out of the amount collected on the policy and applied it to the amount due him under the contract to sell, and also $30.00 in addition due him on a dental bill.

The statement was not produced. Mrs. McCarty says that after the fire they moved to Baton Rouge, and then back to Bogalusa, and that in moving it was lost.

There is a provision in the promise to sell which adds probability to defendant’s contentions on this subject, as follows:

“The said Mrs. Ninnie V. McCarty further agrees that any and all furniture as well as other contents placed in the building now located on said property shall stand pledged for the payment of the amount to be paid monthly as hereinabove provided.”

As the furniture was pledged for the sums due monthly, plaintiff could assert a plausible claim to the proceeds of this policy.

The above probability is strengthened by the assignment of the policy executed by Mr. and Mrs. McCarty in favor of the plaintiff. The assignment says that it was made in consideration, of $1000.00 cash in hand paid by C. F. Amacker, but the evidence shows that plaintiff did not, in fact, pay anything. That it was made at his request for the purpose of enabling him to collect it. He admits that he collected the amount and that he distributed the proceeds to certain creditors of Mr. and Mrs. McCarty, who had an interest in the proceeds, took out a dental bill of $30.00 due him by defendants, and testifies that he turned over the remainder, some $400.00, to Mr. McCarty. We find that the plaintiff applied $200.00 of the amount collected on defendants’ furniture to the payment due him under the promise to sell.

The plaintiff would not likely have voluntarily taken on himself the work and trouble of making proofs, collecting and distributing the proceeds of this policy among different claimants unless he was getting something out of it for himself. He had collected $2000.00 on the policy on the house, and $200.00 is all that remained due him on account of the property. Plaintiff claims that the $2000.00 collected as insurance on the house belonged to him; that defendants had given up the property at the time of the fire, and had no interest in the policy on the house. We have found as heretofore stated, that defendants did not give up the property. “A promise to sell amounts to a sale,” etc. C. C. Art. 2462. Defendants had possession under a promise to sell, which in effect amounted to a sale. We think that the promise was in full force and effect at the time of the fire and had the effect of making the $2000.00 insurance, which plaintiff collected on the property of which the defendants were in effect the owners, extinguish the amount due by them on the property-under the contract.

The amount collected on the house and that on the furniture makes $2200.00, a total sum due under the contract. Plaintiff received $60.00 before the fire, making in all $2260.00.

The evidence does not show the dates on which plaintiff collected the $2200.00 in insurance. It may have been after September 11, 1924, but as a promise to sell amounts to a sale, the provision in C. C. Art. 2563 on the subject of completed sales may in a situation like the present one, be applied to a promise to sell. Also the authority conferred by C. C. Art. 2047.

No suit for the dissolution of the contract had been filed at the time the collections were made. Plaintiff himself applied to the amount due him under the contract, the $200.00 collected on the policy on the furniture, therefore the monthly term for the payments will be held to have been satisfied by the collections when received. The case of Southport Mill, Ltd., vs. Ansley, 160, La. 131, 106 So. 720, and cases therein cited are applicable.

The plaintiff having received the amount due him under the contract, should make defendants a title as he agreed to do.

The district judge estimated, though his reasons for judgment show that he felt some uncertainty about it, that the defendants still owed the plaintiff ninety dollars.

The defendants did not appeal, nor answer that taken by the plaintiff and pray for a correction. We will therefore affirm the judgment appealed from.

Judgment affirmed, plaintiff and appellant to pay the costs in both courts.


text:
    No.-
    First Circuit
    SMITH, Tutor, v. SALMEN BRICK AND LBR. CO., LTD.
    (February 15, 1928. Opinion and Decree.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Judgment—Par. 161, 152.
    A plea of res judicata and estoppel is properly sustained where a judgment on the same subject matter between the same parties had been previously decided.
    2. Louisiana Digest — Judgment—Par. 123, , 134.
    Although under Article -604 et sea- of the Code of Practice, a nullity of judgment must be demanded by direct action, a suit on the same subject matter decided by the same parties which does not contain an averment that former judgment is null, cannot be considered an action of nullity under those articles.
    Appeal from the District Court, Parish of St. Tammany. Hon. P. B. Carter, Judge.

      Action by Frank Smith, tutor of the minors, Harry Hoyle, et als., against Sal-men Brick and Lumber Company, Ltd.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Fred J. Heintz, of Covington; Wm. M. Ansley, of New Orleans, attorneys for plaintiff, appellant.
    B. M. Miller, of Covington, attorney for defendant, appellee.
   ELLIOTT, J.

Frank Smith, dative tutor for Harry, Jr., Thelma, Roderick, Rosa, Clara and William P. Hoyle, minor children of Harry Hoyle and Rosa Hoyle, his wife, brought a petitory action against Salmen Brick and Lumber Company, Ltd., for the purpose of recovering an undivided half interest in Lot 7, Square 4 Brugier’s Addition to the town of Slidell, Louisiana, and in the buildings and improvements thereon; and also to have recognized and decreed executory a minor’s general mortgage in their favor on the other half of the same, said mortgage resulting from the inscription of a certificate of the amount of the minors’ property, according to the inventory of the same on file in the office of the Clerk of the Civil District Court, Parish of Orleans, and recorded in the Parish of St. Tammany, where the property in question is situated.

• The defendant, Salmen Brick and Lumber Company, Ltd., interposed an exception of no cause of action or right of action and of res adjudicata and estoppel to plaintiff’s demand. The plea of res adjudicata and estoppel was based on the proceedings and judgment in the suit entitled Salmen Brick and Lumber Co., Ltd., vs. Rosa Seal Hoyle, individually, and as tutrix of the minor children of Henry Hoyle, No. 2772 on the docket of the District Court, Parish of St. Tammany. The District Court sustained the exceptions and the plaintiff appealed. ■

In this suit the petition of the tutor sets up ownership of the land in question, in the minors, by inheritance from their father and mother, both of whom are dead, and makes no reference at all to the proceedings mentioned. The proceedings were offered in evidence in support of the plea of res adjudicata and estoppel. Reference thereto shows that Salmen Brick and Lum-. ber Company, Ltd., brought suit against Mrs. Rosa Seal Hoyle, individually, and as natural tutrix of the above named minor children, on account of building material alleged to have been furnished for the purpose of erecting a house on the property in question, and claimed a privilege on the lot of ground as furnisher of supplies.

The defendant was cited individually and as tutrix to appear and answer plaintiff’s demand. She appeared by her attorney, individually, and as tutrix and contested plaintiff’s demand. The case was tried contradictorily with her, and judgment rendered against her individually and as tutrix, and in favor of Salmen Brick and Lumber Company, Ltd., for $182.85 'with interest, recognizing the privilege on the lot as claimed. In due time execution was issued on the judgment, the property described in the petition was seized and sold by the sheriff, and Salmen Brick and Lumber Company, Ltd., became the adjudicatee of the same at the sheriff’s sale. Salmen Brick and Lumber Company, Ltd., then instituted a rule in the same proceedings against Mrs. Rosa S. Hoyle, individually, and as tutrix of said children, calling on- her individually and as tutrix to show cause why the legal mortgage then existing on her half interest in said property in favor of her minor children, should not be cancelled. Service was accepted for her individually and as tutrix by a member of the bar, acting as her attorney. Judgment was then rendered against her individually and as tutrix ordering that the legal mortgage in question be cancelled.

Under the law, Code of Practice, Art. 604 et seq., the nullity of a judgment must be demanded in a direct action instituted for that purpose. Plaintiff’s petition does not contain any such demand. But jurisprudence has settled that if the petition of the plaintiff in this case, had alleged that the judgment in the proceedings in suit No. 2772 on the docket of the District Court of the Parish of St. Tammany were absolutely null and void, the averment would have been looked into and the fact ascertained. See Beland vs. Gibelin, 46 La. Ann. 326, 14 So. 843; Ford vs. Mills, 46 La. Ann. 331; Callahan vs. Fluker, 47 La. Ann. 427; Bankston vs. Owl Bayou Cypress Co., 117 La. 1053, 42 So. 500.

The record of the case No. 2772 on the docket of the District Court of St. Tammany Parish, and the two judgments therein rendered appear to be regular. The court that rendered them had jurisdiction.

The petition of the plaintiff in the present case contains no averments questioning the validity of the proceedings.

In Brinkston vs. Posey, 43 La. Ann. 924, 10 So. 6, and Moor vs. Petrie, 149 La. 910, 90 So. 252, cited in plaintiff’s brief, the proceedings under which the property was adversely claimed was directly attacked, therefore the cases do not support plaintiff’s position.

In Heroman vs. La. Institute of Deaf and Dumb, 34 La. Ann. 805; Succession of Begue, 112 La. 1048, 36 So. 849; Boudreaux vs. Lower Terrebonne Ref. & Mfg. Co., 127 La. 98-99, 53 So. 456; Krone vs. Krone, 138 La. 666-667, 70 So. 605, it was held that the judgment of a competent court, in which the defendant had been duly cited and which had become final, could not be attacked even though the judgment was erroneous.

The two judgments rendered in the case of Salmen Brick and Lumber Co., Ltd., vs. Mrs. Rosa Seal Hoyle, individually, and as tutrix of the minor children of Harry Hoyle, No. 2772 of the docket of the District Court of St. Tammany Parish, are final and cannot be inquired into now; no matter whether right or wrong.

In .the present case, the plaintiff cannot succeed in his demand, except by setting aside the judgments rendered in the suit mentioned. The plea of res adjudicata and estoppel was therefore properly sustained.