text:
    No. 8833.
    The City of Baton Rouge vs. C. Cremonini.
    "Where the transcript does not contain the ordinance or resolution of the town council, under which the appellant was fined, or information of any hind of the terms and scop© of tbtv f ordinance, the fault is imputed to the appellant, and his appeal will be dismissed*
    ^PPEAL from the Mayor’s Court, City of Baton Rouge, ChavroUeT

      C. G. Bird, City Attorney, for Plaintiff and Appellee. '

      Gross & Jones for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

The defendant seeks a reversal of a judgment of the maydr of the town of Baton Rouge, inflicting a fine of twenty-five dollars on him, and in default of payment sentencing him to jail for fifteen days.

We have no means of ascertaining whether this sentence was rightly o'r wrongfully inflicted. The offence is said in the briefs to have been a violation of an ordinance or resolution of the town council, but the ordinance or resolution is not before us, and indeed there is nothing in the record but the name and number of the case, the name Of the offence, the reasons for judgment, the judgment, the appeal bond, and order of appeal in obedience to our mandamus. New Orleans vs. Labatt, 33 Ann. 107.

We do not expect or require that transcripts of appeal from mayors’ courts shall be made with the particularity and fullness requisite in courts of record, hut obviously we must know the ordinance, for the violation of which punishment has been inflicted. The recital of the mayor is that a petition of citizens was adopted, by winch he means that something else was done than to receive the petition, and that what they asked to be prohibited was prohibited in some way. The defendant confidently expects a reversal of the judgment, and quotes the language of this Court stigmatizing what he says was a similar prohibition as an imperial rescript.” Municipality vs. Blineau, 3 Ann. 688.

The necessity for an inspection of the ordinance is thus made apparent. We do not know whether the prohibition is general or special, whether it established a uniform rule for all who were doing what is changed against the defendant, or was an exercise of arbitrary power upon a single person. Shreveport vs. M’Cune, decided at Monroe, uureported.

It was the appellant’s duty to have brought up a transcript, sufficient at least to have enabled us to ascertain if he had been illegally punished, and as ho has not done so,

The appeal is dismissed.

Rehearing refused.


source: Caselaw Access Project

author: Pociié, J.

license: Public Domain

text:
    No. 8806.
    Edwin H. Fay, Superintendent of Public Education vs. Allen Jumel, Auditor, and E. A. Burke, Treasurer.
    Tlie Superintendent of Public Education has no authority in law to’appear in person or by private counsel in any suit or other legal process in which he may be a party or interested iu his official capacity, but must be represented by the Attorney General or local District Attorney. Any suit instituted by such a ministerial officer in his official capacity, by » private counsel, shall be dismissed by the court ex proprio motu, or on motion. Act No. 21 of 1872.
    APPEAL from the Seventeenth District Court, Parish of East„Baton Rouge. Sherburne, J.
    J. 0. JSgcm, Attorney General, for Defendants and Appellees :
    The Superintendent of Public Education is prohibited by statute from appearing in court, either in person, by private counsel, or in any way except through the Attorney General, or District Attorney of the place where he is located. Act No. 21 of 1872, p. 61.

      Scan11 JP. Groves for Plaintiff and Appellant.
   The opinion of the Court was delivered by

Pociié, J.

Plaintiff brings this suit in his official capacity for the purpose of enjoining the disbursement of certain sums of money appropriated by Act No. 63 of 1882, for the benefit of the Mechanical and Agricultural College at Baton Rouge, of the University of Louisiana, and of the Colored University, in New Orleans, and he prosecutes this appeal from a judgment of the lower court dismissing his suit, on motion of the Attorney General and for the reason that plaintiff is therein represented By private counsel,, retained by himself, contrary to law.

The Attorney General’s motion is-predicated on the provisions of Act No. 21 of the legislature of 1872, which clearly controls the case.

The first Section of the Act positively prohibits the Auditor, the State Treasurer, or any other ministerial officer of the State, from appearing in court, either in person or by private counsel, in any suit in which such officer may he a party or may be interested in his official capacity, but in all such cases he must be represented by the Attorney General, if the suit is instituted in New Orleans, or by the local District Attorney in any of the parishes of the State. It authorizes the Governor or Attorney General, in case of necessity, to have such officer represented by an attorney-at-law.

The second Section prohibits any court of the .State from maintaining any suit in which such officer may appear in person or by private counsel, and requires the dismissal of such suit “ex officio or on motion,” as in case of non-suit, and provides that notice of such dismissal be served on tlie Attorney General or proper District Attorney, who may on motion reinstate such action, if he deem it expedient so to do.

The statement of these provisions of the law is a disposition of this suit, and it is difficult to conceive of the relief which plaintiff could possibly expect at our hands by means of his appeal. His counsel urges that the true spirit of the law is to shield the State against unnecessary expenses for costs of court and attorney’s fees, and that, therefore, the law is not applicable to a case where the ministerial officer, as in this instance, retains counsel at his own personal expense.

But the fact that the statute foi-bids such an officer from appearing in person in suits to which lie is a party in his official capacity, dispels the possibility of sucli a construction. The argument that a literal construction of the statute would make it amenable to Article 11 of the Constitution, which provides that all courts shall be open' for the redress of all grievances, when the very object of the Act is to secure a proper representation of the State in her own courts, is utterly too flimsy to stand before the mere breath of a refutation; - ■

There is no force in the complaint that the District Judge erroneously omitted to have the local District Attorney notified of the dismissal of the action.

The object of such a notice is fully satisfied by the appearance of the Attorney General, the highest legal officer, and the constitutional legal adviser of all the ministerial officers of the State, in the defense of the Auditor and Treasurer, made defendants in the suit.

We note plaintiff’s argument touching the hardships to which this statute might subject a faithful officer in his laudable desire to test the constitutionality of a law which may injuriously affect his ‘department■ but as long as the statute remains on the books, our plain duty is to apply it to proper cases.

The judgment of dismissal does not debar plaintiff of his right to properly submit the subject matter of his complaint to judicial action and determination.

The judgment of the lower court is, therefore, affirmed at appellant’s costs in both Courts.


author: Manning, J.

text:
    No. 8782.
    Picard & Weil vs. Louis Prival.
    A Judge oannofc change the minutes of his court to correct the errors of counsel, but tlie ' power is inherent in every court to oorreot its minutes, in chambers as well as in term, ao as to make them conform to the truth.
    In criminal oases, when the correction is applied for in ohambers by the State, notion must bo given the defendant, and vice versa, and in civil onuses, when the change affects the rights of parties to suits, and the application ooraos from one of them in chambers, notice must be given the other.
    An appeal taken by petition cannot he made returnable before the expiration of the delay computable for the distance from the domicile of the appellee to the placo where the appellate oourt is held.
    APPEAL from tlie Fifteenth District Court, Pavish of Pointe Coupee. Yoist, J.

      W. W. Lealce and Bobt. Semple for Plaintiffs and Appellees:
    Appeal taken by petition- and citation, which docs not give the appellee sufficient time to appear will be dismissed. C. P. 583,180 ; 8 La. 220 ¡ 12 La. 480, 483; 26 An. 747; 32 An. 692.
    The Judge a quo cannot eco parte in chambers ohange the minutes of the oourt, oorreoting an error of counsel.
    . A. Bonanchaud and James Vignes, Jr, for Defendant and Appellant.
   On Motion to Dismiss.

■ The opinion of the Court was delivered by

Manning, J.

The judgment was rendei’ed at the January Term, 1883, of tlie, Pointe Coupóe court, and on the 17th of that month a devolutive appeal was granted on motion of the defendant in open oourt, returnable to tlie appellate court of the State of Louisiana, sitting in the parish of Pointe Coupée on the 4th Monday of April pext, on said defendant furnishing bond in the sum of ten dollars.” The term closed on the day that appeal was granted.

. On the 27th of the same month an appeal was prayed by petition, Returnable to tlie Supreme Court on the second Monday of February, 1883, and it was ordered, and citation was served on the 31st. The second Monday was the 12th day of the month, and there was not sufficient time between these dates for the requisite delay.

This is one of the grounds of the motion to dismiss.

On January 30th, three days after the petition for appeal to this Court had beeu filed and the appeal granted as prayed, the defendant presented another petition, setting forth that he had in fact moved on the 17th for his appeal to be returnable to this Court, but through error and inadvertence the clerk had entered on the minutes that it was returnable to the Circuit Court, and he prayed a correction of the minutes accordingly, and an order was made to that effect.

This presents another ground for dismissal, put in this form—that the Judge is not authorized to change the minutes of his court' in' chambers, on an ex parte motion, to correct errors of counsel.

A Judge cannot change the minutes of his court at' any time to correct the errors of counsel, but the power is inherent in every court to correct its minutes, in chambers as well as in term, so as to make them conform to the truth. State vs. Folke, 2 Ann. 744. We have held in criminal cases it cannot be done in chambers on an ex parte motion of the State without notice to the prisoner. State vs. Revells, 31 Ann. 387. There seems to be no good reason why the same rule should not be applied to civil causes when the change affects the rights of parties to suits, and the application for it comes from one of them, and is made in chambers. No notice whatever was given to the plaintiffs.

The facts of this case, as developed by the dates of the several petitions, and motion, and orders thereon,-furnish the best argument for thus extending the rule.

The motion of the 17th states with elaboration the court to which the appeal was prayed in the words quoted above, and the amount of the bond is adapted only to that court. The defendant treated that motion as correctly entered by his petition on the 27th for an appeal to this Court, the obvious purpose of which was to repair that blunder, and it was only when it was discovered that the'effort to repair it had plunged him into another, that he sought to have the minutes of court altered to conform, not to the truth, but to his necessities.

The appeal taken by motion in open court is Dot before us, because it is by its terms returnable to the Circuit Court. The appeal by petition cannot be returnable here on the second Monday of February, 1883, because, owing to the distance of Pointe Coupée from this City, there was not sufficient time for the delay required by law. Code Prac. Art. 583.

The appeal is dismissed.


author: Todd, J.

text:
    No. 8829.
    Successions of Adolphe Vives and Eleanor Hébert, his wife.
    ■Where a man dies leaving a widow in necessitous circumstances and an insolvent estate, and tlie widow dies without claiming the $1,000 reserved to her by law, and the children of the deceased are all majors, hut there are minor grandchildren of the deceased, the offspring of a daughter who died previously to them, these grandchildren are entitled to the $1,000 from the succession, in preference to the major heirs or creditors.
    APPEAL from the Twenty-third District Court, Parish of Iberville. Cole, J.

      Ti. 1), Talbot for Opponents and Appellants:
    1. “ "When a necessitous widow dies without having received the portion of $1,000, under tlie Act of 1832, her major heirs canaot claim that portion from the husband’s sucoossion. Only children, and her remoter descendants, who are minors and necessitous, are entitled ' to claim suoh portion.” 30 An. p. GOO, Vol. 1.
    2. Grandchildren uuder tho tutorship of their father, a strong, healthy person, oannot be . regarded as in necessitous circumstances, and olaim said portion under the Act of 1852, the principle being identical with that laid down in 30 An. p. 1130.
    3. Evidence in support of claims in tho administrator’s acoount should be taken in writing and annexed to tho record.

      David N. Barrow, contra.

   On Motion to Dismiss.

The opinion of the Court was delivered by

Todd, J.

This controversy grows out of an opposition to the final account of the administrator of these successions.

The opponents, creditors of the deceased, are appellants from a judgment dismissing their oppositions.

There is a motion to dismiss the appeal on the ground of want of jurisdiction raMone materiw.

The fund to be distributed by the account exceeds one thousand dollars, and is still in the hands of the administrator, and the distribution of the entire amount is regulated by tlio judgment. We have, therefore, jurisdiction. Constitution, Art. 81.

The case does not come within the scope of any of the decisions cited by the appellees’ counsel.

Motion to dismiss is, therefore, overruled.

On the Merits.

The facts are these:

, Adolph Vives died in 1870 and, liis wife, Eleanor Hebert, in 1871, Emile Poché, administrator of their successions, filed his final account of his administration. In this account, after paying' certain privilege debts, he proposed to turn over the balance to the heirs of the deceased.

These heirs were all majors, except the three children of Cecelia Vives, who died before her parents.

In the proposed distribution, the minors were to receive one-fourth of the estate, the share of their deceased mother, and the three major heirs each a like.portion.

The administrator, in proposing this distribution, proceeded on the hypothesis tliat the widow of Adolphe Vives, Eleauor Hebert, being in necessitous circumstances at the death of her husband, became entitled to one thousand dollars from his estate, and which sum became hers absolutely, and on her death was transmitted by inheritance to her heirs, majors and minors alike.

The account was opposed by the creditors, on the ground that the heirs of Eleanor Hébert—neither the major nor minor heirs—were entitled to any part of said sum. That the. same liad never come into the possession of the necessitous widow, and if it had, that she would have possessed only as usufructuary, and at her death it would not descend to her children who survived her, because they were all of age, and her grandchildren, though minors, were not entitled under the law to receive the same.

The claims of Barrow & Pope, attorneys for the successions, were opposed as excessive.

This embraced the entire opposition.

There was judgment amending the account, by reducing the fees of Barrow & Pope, making part- of the law charges, and directing the balance of the funds, after settling the law charges thus reduced (this balance being less than $1,000) to be paid over to the minor children of Cecelia Vives, the grandchildren of Adolphe Vives and his wife, Eleanor Hébert.

As stated, the opposing creditors have appealed from this judgment. Messrs.'Barrow & Pope have moved an amendment to the judgment to the effect of increasing the sum therein allowed them for their professional services. With respect to such amendment it suffices to say, that having carefully examined the record and the evidence bearing on the charges in question, and whilst satisfied that the services-were of such a character as, under other circumstances, to entitle the claimants to a more liberal compensation than allowed, yet considering the smallness of the succession and that the entire fund realized from the sale of ail the property but little exceeds one thousand dollars, we cannot say that the estimate made by the Judge a quo of the fee in this instance was erroneous.

This leaves the only other question for our decision, that relating to the right of the grandchildren of the decedents to receive the amount that their grandmother, Eleanor Hébert, was entitled to claim from the'succession of their grandfather, Adolphe Vives.

The Act of 1852, after providing that the widow or minor children of a deceased person left in necessitous circumstances may claim from his estate $1,000, further declares in those words:

The surviving widow shall have and enjoy the usufruct of the money so received from her husband’s succession during her widowhood, afterwards to vest in and belong to the children or other descendants of said deceased.”

. The case of the succession of Johu Durkin, reported in 30 An. 669, was quite similar to the instant one. There the father and husband 'died. The widow survived him but a short time, without receiving or claiming the portion of the estate reserved to her as widow in necessitous circumstances. Upon her death it was claimed by her children of age. Their claim thereto was rejected. In the opinion therein delivered, Chief Justice Manning being the organ of the Court, referring to this Act of 1852, uses the following language:

“ The ‘ children,’ meant throughout the Act, are those descriptively mentioned in the first clause as ‘ minor children ’ of a deceased person, for whose benefit alone the bounty provided by the Act was intended. Of course, we understand the word ‘children’ here as having the largest import, and as including grandchildren and other descendants.”

Considering that the statute provides, in so many words, that upon the death of the widow and usufructuary the money “shall vest in and belong to the children or other descendants who are minors,” we conclude that the above construction of the law was the proper one. And so concluding, we are of opinion that upon the death of a widow in necessitous circumstances, her own children being all of age, her grandchildren, then minors and also in necessitous circumstances, are entitled to receive what she, their grandmother, could legally claim from the succession.

This was the opinion also of the Judge of the lower court; and finding no error in his judgment, it is affirmed with costs.


author: Fenner, J.

text:
    No. 8830.
    D. R. Carroll vs. J. G. Readheimer et als.
    ■Where an injunction was taken against an order of seizure and sale for tlie payment of the price of property, on the ground that suit had been instituted against the purchaser for recovery of the property, and when the evidence shows that such suit was actually pending at the date of the injunction, the fact that, before trial of the injunction, the eviction suit had been finally decided in favor of the title, and the consequent dissolution of the inj unction, could not render the sureties on the injunction bond liable in damages, because the injunction had not been “ wrongfully obtained.” C. P. 298, No. 9.
    APPEAL from the Eleventh District Court, Parish of Natchitoches. Pearson,-3.

      Watkins & Scarborough, for Plaintiff and Appellant.

      Egan & McEnery and W. H. Jack for Defendants and Appellees.
   The opinion of the Court was delivered by

Fenner, J.

D. R. Carroll, on November 23d, 1880, proceeded by executory process against H. M. Prothro, to enforce Ms mortgage and vendor’s privilege for the unpaid price of a certain plantation which had been sold by Carroll to Prothro. At that time a suit was pending against Prothro to evict him from the property under claim of nullity of the title conveyed to him by Carroll. This last named suit was brought on February 24th, 1879, and was finally decided by this Court maintaining the title, only in May, 1881. See Prothro vs. Prothro, 33 An. 599.

In January, 1881, Prothro applied for and obtained an injunction against Carroll’s executory process, on the following, amongst other, grounds:

1. That the aforesaid suit was ponding to evict him, and said Carroll had not offered to give him security against said eviction.

2. That there had been payments on the mortgage notes, for which credit had not been given.

On October 1st, 1881, judgment was rendered in this injunction suit, deciding that Prothro was entitled to a credit of $1,548.97, as of date May 4, 1878, sustaining and perpetuating the injunction to that extent and taxing all costs thereof to Carroll, and dissolving it as to the balance, with authority to Carroll to proceed with his order of seizure and sale for such balance.

: The present action is brought by Carroll against the sureties on Prothro’s injunction bond for statutory and special damages.

We agree with the District Judge that none should be allowed.

So far as statutory damages are concerned, the jurisprudence of this Court is now settled that Art. 304 C. P. does not apply to injunctions restraining execution of orders of seizure and sale.

As to the special damages it is apparent, from the statement heretofore made, that, at the date of its issuance, Prothro had an unquestionable right to the injunction. The Code of Practice expressly provides, that “the injunction must be granted * * on the application of any purchaser, whose property is seized for the payment of the price of a thing sold to him, whenever suit has been instituted against him for the recovery of the property.” C. P. 298, No. 9.

Such was the precise status when the injunction was applied for, and it was rightfully issued.

The eviction suit having terminated favorably to the title, before the case was tried, of course it formed no element in the decision of the cause. But that decision did not determine, expressly or by implication, that the injunction had been “ wrongfully obtained,” which, by the terms of the bond and of the law, formed the condition of the liability of the sureties.

This disposes of the case.

This dispenses us from determining whether Art. 298, No. 10, C. P., prohibiting injunction on allegation of partial payment, except to the amount thereof, applies to injunctions of executory process, or only of judgments which alone are named; and also whether, even if the Article applies generally, it would have effect under the circumstances of this case, where the credit to which the debtor was entitled, was a matter of unsettled account between him and the seizing creditor, of the amount of which he was ignorant. Carroll himself made an error of several hundred dollars in the credit which he directed to be made on the order of seizure and sale when lib learned that injunction was threatened. Prothro, knowing that he was entitled to a large credit which had not been allowed, and being ignorant of the amount thereof, was not in position to restrict his injunction to the credit claimed! It was Carroll’s duty, who had the means of fixing that amount, to have allowed the.proper credit before issuing his writ.

Judgment affirmed at appellant’s cost.


text:
    No. 8075.
    Joseph Raymond vs. Thomas Froeba et al.
    Where a person sells certain property to another, but retains a counter letter, showing that he sold only an undivided half of tins property, and subsequently the entire property is mortgaged and notes executed by the ostensible purchaser, for the benefit of the vendor, under one of which notes the property has been sold under executory process, held: that the original vendor, who alleged the simulation of the sale and that the note for which the property was sold under ex-ecutory process was void, and that the revendes of the property had more than reimbursed the parties in possession for all advances or payments on his account, had a right of action in asking for a recognition of his title to the property, the cancelling of the pretended sales, and an account from the parties in possession.
    Judgment reversed, exception of no cause of action overruled and case remanded. - - ,
    APPEAL from the Fifth District Court for the Parish of Orleans. Bogers, J.
    ■ Breaux di Ball and Albert Voorhies for Plaintiff and Appellant.

      Braughn, Bucle dé JDmleelspiel and JE. J. Wenele for Defendants and Appellees......... '' - ' ■ ■
   The opinion of the Court was delivered by

Todd, J.


author: Bermudez, C. J.

text:
    No. 8359.
    Henry Abraham vs. Widow Charles Lob.
    Specific compliance cannot be required from a purchaser of real estate where the title ten» dered is not clear and good, and not such as he is bound to accept.
    "Where a tutor sells at private sale his individual share of a piece of real estate, against which his minors’ mortgage stands recorded, the share is transferred burdened with the encumbrance, which continues to attach thereto until removed.
    Where the property, part of which was thus conveyed, is offered for sale under a judgment in partition, and it appears that the price corresponding to the minors’ share, is not paid to the tutor then in office, but that a similar sum was paid, years previous, to one who was then tutor, who had then no authority to sell, and who has since ceased to be such, and the sale is made on terms at variance with those fixed by the family meeting and approved by the court, the minors’ share was not divested and no title thereto did pass to the adjudicate©.
    The property of minors can be sold only upon the observance of legal exigencies and upon settlement of the price of sale with one having authority to receive the same and who can make the title.
    APPEAL from tlie Civil District Court for the Parish of Orleans. Monroe, J.

      Breaux & Hall for Plaintiff and Appellant.

      G. JE. Schmidt for Defendant and Appellee:
    1. By the statute of 1869 (Sess. Acts, p. 207) re-enacted in the Revised Statutes of 1870, as Sec. 2667, it was provided that* “when heirs of a succession hold property in common, and it is the wish of any one of them, or of a minor represented by his tutor or tutrix, to effect a partition, on the advice of a family meeting duly convened, etc., said property may be sold at private sale,” etc.
    This law clearly limited the right to a partition by private sale of property in which minors had an undivided interest, to the case of a partition between co-heirs of the same succes- ’ sion.
    It was not until the 16th February, 1878, that the said Sec. 2667 of the Rev. Statutes was so amended as to authorize a partition by means of a private sale whenever any persons (though not co-heirs as aforesaid) held property in common with minors. (Acts of Regula?’ Session of 1878, !KTo. 25, p. 47),
    The first part of the phrase, viz: “When heirs of a succession hold property in common,” applies to and controls what follows. It is as if the law had said: “ When heirs of a succession hold property in common and it is the wish of any one of them, or of the tutor or tutrix of such one as is a minor,” etc.
    While it is true that it is the province of the Courts, and not of the legislature, to construe laws, yet, the Courts have held, that the exposition of statutes by subsequent legislative bodies, has weight, though not a controlling authority, in regard to ihe construction of the statutes. Sedgwick on Stat. and Const Law, 2d ed., p. 214; Coutant vs. The People, 11 Wend. 511; Rex vs. Loxdale, 1 Burr, 447; Pike vs. Megoun, 44 Mo. 491.
    The construction we contend for is that given to the Statute of 1869, in the case of Durand vs. Dubuclet, 24 An. 156, the Court holding that the provisions of the Code and of the statute might well he incorporated in the same act, which would read thus; “ The sale of the property of minors shall be authorized by the Judge and made at public auction, after having been duly advertised in the maimer required for other judicial advertisements, unless it he the will of any of the heirs interested therein to have the sale made at private sale, in which event it may he .sold at private sale, on the advice of a family meeting,” etc,

      Besides, tbe law of 1869 authorized a private sale of property in which minors were interested with other heirs, on the advice of a family meeting, “for the appraised value of the property, said appraisement to be made and the terms of said sale to be fixed by the family meeting.”
    Now here, the family meeting merely declared that the price offered for the interest, real and personal, of the minors in the succession of their father, was a very fair one, and conducive to their interest. If this be considered substantially a valuation, it was a valuation simply of a specific interest in a succession, and not of the particular real property sought to be partitioned, and, therefore, there was not here the appraisement contemplated by the law and essentially requisite to the validity of the sale.
    Tho proposition at pp. 3 and 4 of appellant’s brief, that the minors held their interest in common with one another, and hence, that its sale could be effected under the Act of 1869, loses sight of the faot that tho title of the Act indicates that it is one passed to authorize the sale of minors’ property in a oertain way, in order to effect a partition. And yet, appellant, in his brief, p. 7, declares that no partition between the minors was here sought for.
    Hence, tho pretended private sale in October, 1871, of tbe minors’ interest in the real property in question here, was ineffectual to divest their title.
    Counsel for plaintiff, as stated by the Judge a quo, contended in tho District Court, (R. p. 201) . that the family meeting relative to the private sale, was not intended to authorize, without further and ulterior proceedings, the perfection of the sale of the minor’s interest, and that tho fair inference was, that said interest was to be thereafter sold at public sale; and yet, in this Court, thoir sole reliance is upon the alleged private sale.
    2. The so-called suit in partition brought in November, 1871‘ by tlio surviving commercial partners of David Rosenberg.-against his widow individually and as tutrix of bis minor children, before the late Second District Court for the Parish of Orleans, is conceded to have been brought before a court without jurisdiction ratione materia, and to have been unavailing to oonfer title. Boutté vs. Boufcté, 30 Án. 182; Buddeolce vs. Buddeoke, 31 An. 572.
    3. The subsequent suit, styled“in partition,”'in the Sixth District Court, conducted apparently as an original proceeding, never culminated in a real sale; its sole object being to go through certain forms with the view of confirming tho private sale previously made. No money, except the trifling sum of $50, or notes, wore realized under the pretended sale ordered in this oase. This proceeding lacked the essential features of a ratification or confirmation of acts tainted with illegality and already consummated. Rev. C. C. Art. 2272, (2252); Deouir vs. Lejeune, 15 An. 571.

      4. The Sixth District Court ordered the sale of the property to bo made on the terms recommended by tbe family meeting. Those terms were cash, yet the propet ty was advertised for sale for one-third cash, and the balance on a credit of one and two years in notes bearing 8 per cent, interest. So that, in fact, the alleged sale of the 18th January, 1879, under the decree of the Sixth District Court, was not made on tho terms required by that decree, and was therefore no judicial sale at all.
    5. Tho price not having been paid under the last so-called partition sale, there were no proceeds to be divided, and no partition thereof to be homologated, as required by Art. 1374, (1296) C. C., and Art. 1029. C. P.
    6. The pretended sale was treated as the end of the proceedings, and an anomalous motion made for its confirmation, when, even if there had been a real sale, it would’ only have been a preliminary step to tho partition.
    7. Actual partition of the proceeds of sale, and the homologation of said partition are necessary to the validity of every division of property effected by judicial authority between ’ minors and majors. The homologation is necessary to bind the wiuors. Suo. of Devereux, 13 An. 334.
    8. Another fatal objection to the title tendered defendant is, that it is encumbered with tho general mortgage of the minors upon tlieir mother’s undivided sixth.

      There never was any real judicial sale of the property to effect a partition between its owners; but even had there been such a sale, the minors’ general mortgage upon their, tutrix’ share would not have beeu shifted to the proceeds of sale, but would have continued to attach to the property, until replaced by a special mortgage, or until the rights of all the minors had been liquidated and satisfied at their majority or emancipation. Life Association of America vs. G-. L. Hall, 33 An. 49.
    9. .The defendant had the right to require, as she did, a valid and unencumbered title from the plaintiff, 11 La. 551; 6 !R. 324; 9 R. 414; C L. 484. Hone such was tendered her, and she cannot be kept in suspense and made to wait until the plaintiff shall succeed, if he ever can, in perfecting his title. She is therefore entitled to be relieved from any obligation under tbe proposed contract of sale, and the judgment of the court a qua should be changed into an absolute and final one in her favor.
   ■ The opinion of the Court was delivered by

Bermudez, C. J.

This is a suit for specific performance. Its object is to compel the defendant to comply with the terms of sale of certain real estate which she had agreed to buy.

The answer is, that one-third of the property does not belong to the plaintiff aind that he cannot give a clear and good title to it.

The lower court dismissed the suit, and the plaintiff appealed.

' Deeming the judgment one of non-suit, the appellee prays that it be amended, so as to make it final and absolute in his favor.

The plaintiff claims to have acquired the property in question from Simon Berkson, who himself acquired it, as adjudicatee, at a judicial sale made to effect a partition thereof. The parties, plaintiffs therein, were Scherck & Berkson, and the defendants were Mrs. Rosenberg,' a surviving wife, in community, and her minors, the issue of her marriage with her deceased husband.

• It appears that in 1871, tbe property in question was purchased, share and share alike, by D. Rosenberg and his commercial partners, Scherck & Berkson. Subsequently, in the same year, Rosenberg died, leaving a widow and minor children, his interest in the property being appraised at $3,333.33, and that in tbe partnership, at $8,867.91. After taking an inventory, tbe widow was confirmed as tutrix. It was then thought proper to sell the sixth interest of the minors in the succession of their father, to Scherck & Berkson. A family meeting recommended that it be so done for $5,250, which was settled for in cash and notes by tbe purchasers. The widow sold her sixth interest to the same parties for a like price.

It was subsequently considered that this transaction was tainted' with nullity and, consequently, that the title had not passed.

A suit in partition was then brought before the Second District Court, to arrive at a judicial sale of the property. Judgment was rendered to that end ; a family meeting was called to fix terms ; the prop-was advertised and adjudicated to Scherck & Berkson, and an act was passed to transfer title to them.

This proceeding was afterwards treated as a nullity, because the court had no jurisdiction in the premises.

In 1878, therefore, Scherck & Berkson brought suit before the Sixth District Court, for a partition, against the widow in community, who was then absent and who had married again, without having been retained in the tutorship of her children, and also, against those minors. A tutor was appointed to fill her place as tutrix. Sim ultaneously, they applied to the Second District Court for an inventory, appraisement and family meeting, both courts giving cumulatively similar orders. The terms of sale were cash; the property was advertised, one-third cash, the balance on a credit of one and two years for notes bearing interest.

The property was offered for sale and adjudicated to Berkson.

No cash was paid; no notes were furnished. The act of sale was executed by the auctioneer. It contains a recital of facts, made by Scherck & Berkson, in which they explain how and why no money and notes or consideration was furnished; the reason-being, that the money had been paid to Mrs. Rosenberg in 1871, at the time of the private sale, and when she was still tutrix.

The inscription in favor of the minors against their mother, as their tutrix, has never ceased to be extant on the mortgage register of this parish, and no order of court has ever been procured for its erasure.

There can be no doubt that the undivided sixth of Mrs. Rosenberg was sold by her ever since 1871; but it passed encumbered with the mortgage in favor of her children. However much, in the partition proceedings, that sale may appear to have been treated as a nullity, the same was none the less real and valid as to her. There is nothing in the record to show that title was ever reconveyed to her and that the money was ever returned by her. So that there never was any judicial sale of her share in the property.

Whatever the doctrine invoked be, that, by the judicial sale of encumbered real estate, the mortgage is shifted to the proceeds, it can receive no application in the present instance, in which there was no judicial sale whatever. This is glaring, for the reason that the sixth interest of Mrs. Rosenberg had passed by contract in 1871, long before the alleged judicial sale, and was not therefore divested at that time or in that mode.

Pretermitting what fatal irregularities are claimed to exist in the partition proceedings, it is undeniable that the price of adjudication, as regards the minors, was paid neither in cash, nor according to the terms of the advertisement, nor otherwise.

The argument that Mrs. Rosenberg had received that price in 1871, at the date of the private sale, which was treated by her and the purchasers as a nullity, cannot stand on its own bottom.

If the tutrix had then no right to sell, she had no right to receive the price, which it would have been her duty to return, as soon as the sale was considered and treated by all as.of no effect. How could, and did she then bind the minors in receiving that price?

The deed made by the auctioneer, embodying the recitals made by the original apparent purchasers, shows a sale without any consideration paid, and is, on its face, such as conveyed no title of ownership. The property of minors, no doubt, can be sold and an irrevocable title made to it, but this can take place only after the essential forms of the law have been complied with and on payment of the price of sale to one, at the time of sale, in authority to receive it and give acquittance therefor as the proceeds of the sale thus made.

In the present instance the statement refutes itself, that the price of the undivided sixth of the minors in the property, the object of this suit, alleged to have been judicially sold in 1879, wus paid to their mother and unauthorized tutrix in 1871, some eight years previous to the institution of the partition suit, in which it is alleged that it was, adjudicated, and who had ceased to be tutrix long before the pretended judicial sale.

The judgment of the lower court having passed upon a litigated controversy, in which both parties have as fully developed their means of attack and defense as was practicable, should be considered as finally and absolutely adjusting and setting at rest the differences at stake.

Viewing it in that light,

It is ordered and decreed that the judgment appealed from be taken as rendered in favor of defendant, rejecting plaintiff’s demand, and that, thus taken, it be affirmed with costs.

Fenner, J., recused, having been connected with proceedings on the subject matter of this suit.


text:
    No. 8795.
    Succession of John Frazier.

      An universal legatee, who lias also qualified as executrix, and who, in a proceeding to compel her to give bond, lias appeared and been condemned as executrix, and, on failing to furnish boud, has boon destituted, is bound to render an account as executrix to her succes* * sor duly appointed, and cannot, in a proceeding for that purpose, be permitted to deny her quality as executrix, and set up that she had accepted unconditionally as universal legatee and had held the estate, not as executrix, but as owner.
    REPEAL from the Twelfth District Court, Parish of Grant. Barhin,

      B. J. Bowman for Plaintiff and Appellee.

      Win. BL. Jaclc and Bobt. B. Hauler for Defendant and Appellant:
    Where one is at the same time universal legatee and executrix, she may take the succession, treat it as her own, and be no longer responsible as executrix, eren though she has also qualified in that capacity. Wells vs. Wells, 30 An. p. 937, on rehearing; Duplessis vs. White, 6 An. 514; 'Mumford vs. Bowman, 26 An. 413 ; Labatut vs. Ruett, 1 Woods, 144. ,
    “The universal legatee, by the death of the testator, is seized of right of the effects of the succession, without being bouud to demand the delivery thereof.” C. C. Art. 1609, (1602.)
    “Itistrue, one cannot he held as’heir, whether legal, abintestato, or instituted by will, without having accepted that quality, but it is equally true, that this acceptance may he either express or tacit.” It is equally obligatory and effectual in the one case as in the other. 30 An. 938; R. C. 0. Art. 988; 9 L. 146 ; 15 L. 527; 7 R. 183; 2 An. 339 ; 4 An. '571. :
    “ It is express when the heir assumes the quality of heir in an unqualified manner, in some authentic or private instrument, or in some judicial proceeding.”
    “ It is tacit when some act is done by the heir, which necessarily supposes his intention to accept, and which he would have no right to do, but in his quality of heir.”
    “ Nothing prevented her from accepting the succession purely and simply, and at once taking possession as heir. The fact of her selling the property in that capacity amounts to such' an acceptance; and the mention in the act, that she was executrix, was immaterial and, affected neither her rights, nor her obligations as heir, pure and simple.” 6 An. 514 ; 30 An. 939.
    One sued as executrix may answer that she is no longer responsible in that fiduciary capacity ; that she accepted the succession as universal legatee ; took possession of it at once, as such; has treated it as her own ever since, and that the creditor, if he be such, must pursue her individually. Same authorities, Old Code, Arts. 934, 935, 936, 938, 940, 981, 982, 988, 993.

      lies judicata results from the controversy being between the same parties, in the same capacity and for the same cause of action. It does not apply in this case.
    Estoppel may result from any judicial admission or allegation, hut must be specially pleaded, and is not here set up.
    Proceedings nnder Art. 1670, Revised Civil Code, cannot, by the terms of the Article itself/ form res judicata, as to anything bnt the bond and security in favor of creditors of the succession.
   The opinion of the Court was delivered by

Fenner, J.

This case is the sequel of that bearing the same title, reported in 33 An. p. 593. The question these determined arose upon a rule, taken by certain alleged creditors of the succession, upon Mrs. Matilda C. Frazier, as testamentary executrix, to show cause why she should not furnish bond and security, as executrix aforesaid, in a sum therein fixed and within a given delay, or, in default, be destituted as executrix. In answer to that proceeding, Mrs. Frazier appeared in the quality of executrix, and made sundry defenses thereto, none of which involved any disclaimer of her being executrix. The order asked was granted, and she appealed therefrom to this Court. We affirmed the judgment, as will be seen on reference.

Mrs. Frazier failed to furnish bond, as required by the judgment, and thereby, under its express terms, was destituted. H. McKnig'ht was then duly appointed and confirmed as dative, executor.

He obtained a rule upon Mrs. Frazier to show cause why she should not file an account. To this rule she answers, denying that she owes any account as executrix, and averring that, as universal legatee, she had accepted the succession unconditionally and, from the date of probate of the will, had possessed all the effects of the succession as owner.

, From a judgment condemning her to .file an account as prayed for, she prosecutes the present appeal.

It appears too obvious to admit of serious controversy, that this Court could not, without self-stultification, listen to the present pretension of appellant, denying her responsibility as executrix up to the date of her destitution. On a proceeding against her as executrix, in a succession in which she had been duly qualified and confirmed as such, to furnish bond or be destituted,, she appeared and defended as executrix, was condemned as executrix, submitted to destitution as executrix; a newexeeutorwas appointed in her stead; and now, upon this rule to account, she, in effect, says : “ all these proceedings are a farce; I ceased to be executrix years ago ; I accepted this succession unconditionally as testamentary heir from the date of the probate of the will; have held possession of all its effects, as owner, ever since; and the succession in which you have been litigating contradictorily with me, is, in fact, no succession at all, but was closed and determined almost as soon as soon as it was opened."

¡Had she assumed this position at the time when the proceeding was taken against her to give bond .or be destituted, the questions now raised by her might have received serious consideration ;■ but it is now too late.

= We find no necessity of discussing nice questions of res adjudieata and estoppel and the proper way of pleading them. These are all consecutive proceedings in the same judicial cause, viz : the succession of John Frazier. They are directly connected with each, other—the later being the sequence and logical result of the earlier proceeding. They fix irrevocably the status of appellant as executrix up to the date of her destitution. As such she owes an account to her successor, or to the court which appointed her, and that court did not err in ordering the same.

Judgment affirmed at appellant’s cost.


author: Poohé, J.

text:
    No. 8767.
    French Long vs. John A. Klein.
    In an action by tbo trausferree of a judgment against a judgment debtor, t-be latter will not be heard in charging the simulation and nullity of the transfer by the original creditor to the transferree, unless he shows not only that there was fraud between the contracting parties, but that he was injured thereby.
    To succeed in such a defense, the complainant must base his attack on the allegations and the proof required by our law of a complaining creditor in an action of revocation, or in declaration of simulation.
    APPEAL from the Eighth District Court, Parish of Madison. Lelony, J.
    J. '£. Stone and Spencer & Lúeas for Plaintiff and Appellee :
    A debtor sued by the transferred as owner of his indebtedness, cannot attack plaintiff’s title, where a payment by him to plaintiff would release him from his obligations, unless ho has equities which could be pleaded against the original creditor, he is without interest, to inquire into the transfer. McDowell vs. Cook, 10 An. 31, 32; Kearn vs. Goldsmith, 14 An. 349; Lableur vs. Hardy. 11 R. 394.
    A plea in compensation to admit evidence must he set forth with the «amo certainty as to amounts, dates, etc., as if the party opposing said plea were himself plaintiff in a direct action ; 2 R. 2163 R. 364 ; 9 R. 137; 3 An. 316 ; 5 An. 303; 6 An. 103; and the debt plead in compensation must be liquidated, due and demandable.

      JT. P. Wells for Defendant and Appellant.
   The opinion of the Court was delivered by

Poohé, J.

In the case of Spencer vs. Goodman & Bradfield et als., 33 Annual, p. 898, judgment was rendered in this Court annulling the sale of “ Willow Glen Plantation,” made to the defendants, Goodman & Bradfield, by John A. Klein, tbe defendant in this case, and condemning said Klein, warrantor in that case, to refund the purchase price received by him from his said vendees, with the exception of so much of the purchase price as represented the consideration of a portion of said plantation, to-wit: one hundred and fifty acres, for which the sale was maintained.

Plaintiff Long, as the transferree of Goodman’s rights to said judgment, seeks to recover the latter’s share of the purchase price, which is shown to be $5,093.78. By a supplemental petition, his co-owner of the judgment is made a party to this suit, and she prays for the same relief agaifist the defendant as may be awarded to Long. This appeal is taken by defendant from a judgment against him, in favor of Long and of Bradfield, but his defense in both Courts is levelled almost exclusively against Long’s right of recovery. His first complaint is, that liis warrantees cannot recover the full amount of the purchase price, but only a portion of the same, for the l’eason that the sale was maintained as to 150 acres of the lands in litigation in the suit for nullity of the sale.

This defense had been anticipated by plaintiff, who had alleged in his petition that he had tendered those 150 acres back to Klein, who had accepted the same, and the allegation being fully supported by. the record, that element is therefore eliminated from the case.

The defendant charges that the sale from Goodman to Long is a simulation, that Goodman is insolvent, and that so much of the purchase price as he may be entitled to recover from Klein, is compensated by the claim of Klein against him, arising from the fact that Klein and another party had bound themselves as counter-securities in favor of the securities on two appeal bonds furnished by Goodman & Bradfleld, in their appeal from the judgment in the case of Spencer vs. Goodman & Bradfleld, condemning them to pay to Carpenter, the real owner of the plantation, rents amounting to a considerable sum.

As the gravamen of this defeuse is the alleged simulation and nullity of the transfer of Goodman’s interest in the judgment against his warrantor to Long, it was incumbent on the defendant to make all the allegations and to administer the evidence which, under the law, would have been required of him as plaintiff in an action of revocation, or in declaration of simulation.

In such cases the complainant, to succeed, is required to allege and to pi'ove not only that both vendor and vendee acted with fraudulent intent and design, but that he was injured by the transaction. A stranger to a contract, showing no interest, either as a creditor or otherwise, cannot be heard with a view to annul and set aside an alleged fraudulent contract. This principle is so well established iu our law, and has been so uniformly applied in our jurisprudence, that it can now be considered as elementary. Baudin vs. Roliff, 1 New Series, 166; Monthly vs. His Creditors, 18 La. 384; Wedderstrand vs. Marsh, 11 Rob. 533; LaFleur vs. Hardy, 11 Rob. 494; McDowell vs. Cook, 10 An. 31; Wolf vs. Wolf, 12 An. 529.

The only efforts made by defendant to comply with the requisites of the law, in justification of his right to attack the sale complained of, consist of an allegation of the insolvency of Goodman, and of the knowledge thereof in Long, and of an intimation that he may become a creditor of Goodman, on account of his obligation to hold harmless the latter’s securities on his appeal bonds, without even specifying the amount of the alleged contingent claim, and without alleging that Goodman had not yet paid and satisfied the judgment for rents rendered against him in favor of Carpenter.

On the trial he made no attempt to prove the alleged insolvency of Goodman; and in support of his intimation that he was, or would eventually be, a creditor of the latter, he offered no other evidence but the appeal bonds and his written agreement to secure the sureties thereon.

Considering the vagueness of his allegations on this point; considering his failure to allege the non-payment of the judgment for rents and revenues, and considering that such claim, if it did exist, had not been definitely liquidated by tlxe judgment and could not, therefore, for want of equal dignity with plaintiff’s claim, be pleaded in recoilvention, we thiulc that the court below erred in allowing any evidence on behalf of the defendant on that part of his pleadings, and that plaintiff’s bill of exception to the ruling of the court was well taken.

Concluding, from the state of the pleadings and from the evideuce in the record, that defendant has utterly failed to show that he has been, or will be, injured by the alleged fraudulent and simulated transfer of Goodman to Long, we cannot recognize his right to thus attack this transaction.

He has been duly notified of the transfer; a judgment in favor of Long, and a payment of the same will be a full protection to him against any future claim of Goodman for the same cause of action, and hence, no injustice has been done to him in the case.

Judgment affirmed.

Rehearing l’efused.


text:
    No. 8811.
    Succession of Philip Hoggatt. Application for Rule.
    Where an appeal is taken from a judgment and the day after, the appellant dies, and, his death being unknown, by a rule filed after his death the appeal is set aside, and from the order setting aside the appeal another appeal is taken by his counsel, an appeal bond executed in his name by the counsel, the transcript of appeal filed in this Court, and the death of the appellant is here suggested, and his legal representative makes himself a party, held: that the proceedings in the lower court subsequent to the death of the party are void, there is no valid appeal before the Court, and the case will be stricken from the docket thereof. Which is accordingly done.
    APPEAL from the Eighth District Court, Parish of Madison. Delony, J.

      James T. Coleman for Plaintiff and Appellant.

      John B. Stone and J. G. Bawlces, contra.

   The opinion of the Court was delivered by

Todd, J.


text:
    No. 8787.
    J. L. Harris vs. L. E. Stockett.
    An interlocutory decree in tbe lower court, sustaining plaintiff’s motion to strike out of defendant’s answer a recouventional demand, not signed by tbe Judge, is not an interlocutory judgment causing tbe defendant an irreparable injury, and is, therefore, not appealable.
    When, in a petitory action, tbe defendant claims possession and use of a portion of the property in suit, under a contract or agreement with plaintiff, the title to the property and the possession of the main portion of the same are no longer in dispute, and will, therefore, not be considered as a part of the matter in dispute, which is thus restricted to the value of tbe right of occupation set up by the defendant.
    APPEAL from the Fifteenth District Court, Parish of Pointe Coupée. Yoist, J.

      Farrar & Montgomery and W. W. Lealce for Plaintiff and Appellee :
    An interlocutory order, not clothed with the forms of a final judgment and not signed by the Judge, cannot he appealed from. C. P. 566 5 20 An. 490, 583; State ex rel. Herd vs. Judge 8th Diet., East Carroll, not reported.
    An interlocutory judgment can be appealed only when such judgment may cause an “irreparable injury.” C. P. 566 ; 15 An. 336; 21 An. 634.
    When defendant has confessed, or judicially admitted the demand of plaintiff, cannot appeal. C. P. 567; 20 An. 137.
    Supreme Court is without jurisdiction to try a reconvontional demand for five hundred dollars. *
    A moneyed demand cannot be pleaded in reconvention or compensation against an action for title in a petitory action, even agaiust a non-resident. C* P. 376; 17 La. 181; 26 An. 38; 30 An. 1140.
    •Tbe opinion of counsel, that a case could not be tried at the next term of court, is no excuse to a party who, in consequence, neglects to be ready for trial, and is no ground for a continuance.
    A claim against a commercial firm cannot be pleaded in reconvention against an individual member of tbe firm.

      Men¡es & Parlange and B. B. Forman for Defendant and Appellant.
    Admission by defendant of parts of tbe claim sued for will not prevent defendant from appealing, unless plaintiff, upon confession, takes partial judgment for tbe amount confessed. Blache vs. Aleix, 15 An. 50 5 Conners vs. Ins. Co., 22 An. 330.
    Tbe amount due at tbe institution of the suit constitutes tbe matter in dispute; Wolff vs. Witherel, 21 An. 25; and not the amount left after illegal orders to strike out. Tbe amount sued, for renders tbe case appealable. Blum vs. Sallis, 24 An. 118.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Pociié, J.

This ease comes to us on two separate appeals taken by the defendant in a petitory action brought against her for the recovery of a plantation alleged to be illegally in her possession.

Her first appeal was taken from an interlocutory order or decree sustaining a motion of plaintiff to strike out of her answer a large recouventional demand, on the ground that the acts and dealings making the foundation of her demand were transactions of hers with two distinct commercial firms of which plaintiff had in turn been a member, and that her demand could not be entertained in the absence of the other members of said firms as parties to the suit.

Appellee’s grouud, that such an interlocutory order is not appeal-able, because it does not cause appellant an irreparable injury, is woll taken.

If the Judge erred in sustaining plaintiff’s motion to<strike out the recon ven tional demand, his ruling could have been reviewed in an appeal from the filial judgment in the case, and if erroneous, the ruling would have been reversed and the cause remanded, for the purpose of reinstating the recon ven tional demand for trial and adjudication. Hence, it follows that the injury complained of by appellant was not irreparable.

In the case of Fields, tutrix, vs. Gagné and wife, 33 An. 349, we reaffirmed the rule that, i,n such cases, “ if the decree of the appellate court can restore the parties, without the loss of any right under the pleadings, to the identical position which they respectively occupied before the rendering of the interlocutory order or decree complained of, the injury to either party is clearly not irreparable and, therefore, the right to appeal does not exist.” C. P. Art. 56(5; State ex rel. Selles vs. Judge, 33 An. 1283.

It further appears that the order complained of does not purport to be a judgment or finality; that it was not signed by the Judge, and was entered on the minutes as an ordinary interlocutory order during the process of a trial.

If it was intended as a judgment, final as to the issue thereby disposed of, it is unappealable, because it is not signed; if intended to be merely interlocutory, liable to be set aside by the court which rendered it, it is unappealable, because it cannot cause the party aggrieved thereby an irreparable injury.

The second appeal is taken from the final judgment rendered against the defendant in the case.

An outline of the pleadings will facilitate a proper appreciation of the ground urged for the dismissal of that appeal.

In her answer to plaintiff’s petition the defendant claims the right of possessing and enjoying, under an agreement with plaintiff, the dwelling house and appurtenances, and of fifty acres of cleared lands of the plantation sued for, and of certain animals and farming implements thereto belonging, during the year ¡882. She further sets up an agreement under which plaintiff had bound himself to make to her the necessary advances of money and supplies for the proper cultivation of the lands thus reserved for her use; and alleging plaintiff’s failure to comply with, his contract for said advances, she claims of him in reconvention damages in the sum of five hundred dollars, and she specifically disclaims possession of any other portion of said plantation. We must here note, that this part of her recon ven tional demand had not been included in plaintiff’s motion to strike out.

We agree with plaintiff, that under these pleadings the title and the possession of the main portion of the plantation were not contested by the defendant and, therefore, ceased to be a part of the matter in dispute, which is thus restricted to the value of defendant’s possession of the fifty acres of land, including the dwelling, from October 31st, 1882, to the end of that year, and to the claim of five hundred dollars damages.

Under her pleadings she owed no rent for the use of the property in question, and hence, in the absence of any evidence of the value of two months’ occupation, and enjoyment of the same, we have no data to rest an opinion as to the pecuniary value of that part of her demand.

Hence, it follows that under the pleadings the amount in dispute involved in defendant’s second appeal is not sufficient to give us jurisdiction, and that her appeal cannot be maintained.

It is, therefore, ordered that the two appeals taken in this case by defendant be dismissed at her costs.

Reheating refused.


text:
    No. 6384.
    The Citizens’ Bank of Louisiana vs. F. Huppenbauer.
    Where an exception to form, and the unconstitutionality of a law relied upon by plaintiff, are pleaded in the lower court, by which it is overruled, and the defendant, appealing from a judgment against him on the merits, fails to appear in this Court and to show how the exception is well founded, it will be considered as abandoned and will not be considered.
    Where a purchase-rat a tax sale establishes a prima fade title and no defense in made, possession of the property' will be ordered to be ''delivered.
    APPEAL from the Superior District Court for the Parish of Orleans. Lynch, 3.

      Armand Pitot for Plaintiff and Appellee.

      P. Egan for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.


text:
    No. 8789.
    Fabien Gaillard et al. vs. Celestine Bordelon, Widow, etc.
    Under Section 3724, Rev. Statutes, action does not lie against the surety on an administrator’s bond “ until the necessary steps shall have been taken to enforce payment against the principal.” Mere testimonial proof of the principal’s insolvency, in absence of judicial determination of that fact or liquidation of the claim contradictorily with him, will not excuse non-compliance with this condition precedent.
    APPEAL from the Twelfth District Court, Parish of Avoyelles. Blackman, J.

      A. H. Bordelon and Jos. B. Hornor <& F. W. Baker for Plaintiffs and Appellants:
    1. The simple acceptance of a succession is tacit, when some act is done by the heir (or legatee) which necessarily supposes his intention to accept and which he would have no right to do but in his quality of heir (or legatee). C. C. 988, 1013, 1614, 992, 999; 8 An, 431; 9 An 517; 7 An. 553; 5 An. 113; 6 An. 514; 21 An. 717.
    2. The heirs of a succession may maintain an action directly against the surety on the official bond of an administratrix of a succession. 5 M. 629; 5 L. 322; 16 U. 72; 8 L, 211; 10 L, 26 ; 28 An. 113.
    3. An action for an entire estate, such as a succession, is only barred by the prescription of thirty years. U. C. 3548,1030; 12 An. 97; C. C. 3526.

      Thorpe, Peterman & Thorpe and Albert Voorhies for Defendant and Appellee:
    1. Where one is testamentary executrix and universal legatee under a will, has qualified as executrix and has taken an inventory of succession effects, she cannot be held to have made a simple, tacit acceptance of the succession in her capacity of universal legatee, unless the act manifesting such acceptance was made before the taking of the inventory. Tacit acceptance is to be inferred only from acts the motives of which cannot properly be ascribed to any other purpose. C. 0.1013; 26 An. 413; 30 An. 935.
    2. Where one who is executor and universal legatee under a will, takes possession of the estate as executor, he will not be regarded as having possession in his capacity of legatee, nor can he, without judicial authorization, change the nature of his possession. 5 An. 643.
    3. C. C. Articles 999 (993) and 1013 (1006) harmonized.
    4. A party cannot proceed against the surety on an administrator’s bond until he has liquidated his demand, obtained judgment against the principal, and exhausted all means of payment from the principal, officially and personally. Rev. Stats. Sec. 3724; 6 Rob. 68; 4 An. 486 ; 14 An. 561-63.
    5. The confusion of right which extinguishes an obligation when the qualities of creditor and principal debtor unite in the same person, avails the sureties of the principal debtor, C.C. 2215.
    6. Prescription runs against a minor from the time of his emancipation by marriage. C. C* 368.
   The opinion of the Court was delivered by

Fenner, J.

Plaintiffs, as heirs of Joseph Gaillard, who died in 1852, allege that their mother, OdyleMarcot, qualified as administratrix of his succession and furnished bond with Jules Charles Desfossé as surety; that she received valuable property of said succession, which she converted to her own use, and died in 1881, without ever rendering any account of her administration ; that Desfossé, the surety on her bond, died in 1880, leaving defendant as universal legatee, who, they aver, had unconditionally accepted his succession, and is, therefore, liable for all its obligations. They bring this action against defendant as representative of Desfossé, surety, to recover the amount of their father’s succession.

Numerous defenses are interposed, of which it is only necessary to notice one, viz: that plaintiffs have no right to sue the surety on the bond until the necessary steps shall have been taken to enforce payment against the principal.”

Such is the express provision of the law, repeated in no less than six Sections of the Revised Statutes: Secs. 19, 1476, 2354, 3715, 3724, 3857. The provision is originally derived from an Act of 1842, (p. 302) amended by an Act of 1866, (p. 42). It has been frequently interpreted and enforced by this Court. Wilson vs. Murrell, 6 Rob. 68; Kemper vs. Splane, 4 An. 486; Canal Co. vs. Brown, 4 An. 545; Phelps vs. Sawyer, 7 An. 551; Lobit vs. Castille, 13 An. 563.

Reference to these cases will show what steps are necessary against the principal.

The authorities quoted by plaintiffs’ counsel all ante-date the passage of the law, except 28 An. 113, which was not a proceeding against a surety. They are obviously without application. The only proceeding which plaintiffs have taken against the principal is a suit instituted against her prior to her death, which had abated before trial, and had not been revived or determined. If her insolvency had been judicially determined in mortuary proceedings duly opened, the case might fall within the authority of Succession of Lynch, 14 An. 235.

But we find no precedent for accepting the mere testimonial proof of one of the plaintiffs, that she left no property, as conclusive on that question. The “ necessary steps to enforce payment against the principal,” positively required by law as a condition precedent to this action, are entirely wanting.

Judgment affirmed at appellants’ cost.


text:
    No. 8861.
    The State of Louisiana vs. Robert Butler.
    Whoro the transcript is not filed on the return day, or within the legal delay following it, the Court is impotent to grant an extension of time to file it.
    The failure to do so in this case is of defendant’s procurement. Sentenced to death, ho made his escape before the return day, and thus the transcript was not even prepared. Captured long after the last judicial day had thus elapsed, he must stand the irrevocable consequences of his rashness.
    Application for Order.

      John II. Dinhjrave for the Petitioner.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for authority to tile a trauseript of appeal, within a delay prayed to be allowed.

The defendant was indicted for murder, tried and convicted. From the sentence of death passed upon him, lie took an appeal, returnable to Shreveport at the last October Term. Before the return day he made his escape. No transcript was filed on the return day, or since. Recently the defendant was captured. He moves the Court now to extend the return day to the first Monday in June next, and make the appeal returnable at Monroe.

The application is unfounded. By not filing the transcript on the return day, or within the throe judicial days following it, and by not seasonably applying for an extension within which to file it, and not filing it in time, the defendant must be considered, juris and dejvre, as having abandoned it.

Far from showing that he was prevented from doing so by any event not under His control, he himself avers a state of facts showing that he has done a wrong, of which lie now seeks to take advantage.

He has trusted to chance the inexecution of the gloomy sentence of the law, but has doomed himself to the irrevocable consequences of his rashness.

This Court is without power to extend to him the relief sought. O. B. 57, fol. 155.

Application refused.


text:
    No. 8831.
    François Francisco vs. Leon Gauthier, Sheriff, et als.
    The teat of jui infliction of theSirpiome Court in a suit by injunction, wben tbe writ is obtained by tbe judgment debtor who is the owner of tho property seized, is the amount of tbe judgment iujoined. Alitci\ when a tbiid person obtains the writ to pievent the sale of bis own property to pay a judgment agaiust another.
    APPEAL from the Twelfth District Court, Parish of Avoyelles. J.

      B. J. Bucoté and B. J. Joffrion for Plaintiff and Appellant.
    Thorpe, Peterman <£• Thorpe and Albert Voorhies for Defendants and Appellees:

      The fu /a. enjoined by defendant therein being ibr lose than $1,000, the Supreme Court ia without jurisdiction. 32 An. 604 5 33 An. 1072.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Manning, J.

David Siess obtained judgment against the plaintiff Francisco for seven hundred dollars, which was partially satisfied by a sale of personal property under execution issued upon the judgment, the sum thus realized being $333.35. The plaintiff’s land was seized under an alias fi. fa., and he injoins the sale of it by this suit, alleging that the land is worth twelve hundred dollars.

A motion to dismiss is made, for that the judgment, the execution of which is injoined, is below the appealable sum.

Our appellate jurisdiction of a suit by injunction, when the restraining writ is obtained by the judgment debtor who is owner of the property seized, is tested by the amount of the judgment injoined. Holland vs. Duchamp, 12 Ann. 784; Smith vs. Merchants’ Mut. Ins. Co., 33 Ann. 1071. Aliter, when a third person obtains the writ to prevent the sale of his property under afi.fa. issued upon a judgment against another. Testart vs. Belot, 33 Ann. 603.

The judgmeht, the execution of which is injoined here, is very much below the sum necessary to give us jurisdiction and, therefore,

The appeal is dismissed.