text:
    No. 2791.
    Louis Sulstrang v. Nicholas Betz.
    Real property in tlio name of a married woman belongs to the community, and stie can not ■maintain a petitory action to recover it without alleging and showing that she has acquired the community interest in the property since its dissolution.
    from the Second Judicial District Court, parish of Jefferson. Pardee, J.
    AT. F. Irivaudais, for plaintiff and appellee. Hyman & Oaaabat, for defendant and appellant.
   Ludeling, C. J.

This is a petitory action. The act, under which the plaintiff claims, shows that she was a married woman at the time of the purchase, and there is no allegation in the petition or elsewhere that she was separated in property from her husband, or that tbe price paid was a reinvestment of her paraphernal property; neither is there any evidence to establish either fact.

The property, therefore, did not belong to tbe plaintiff, but to the community. There is no evidence that since the community has ceased to exist, the plaintiff has acquired the rights of the community to this property. There is no necessity in this case to inquire whether or not there were irregularities or illegalities in the proceedings after judgment-, but preceding the sale, whereat the defendant bought, inasmuch as the jdaintiff, in a petitory action, must recover on the strength of his own, and not in the weakness of the defendant’s title.

It is therefore ordered and adjudged that the judgment of the lower court be annulled, and that there be judgment of nonsuit, dismissing her demands, with costs of both courts.

Rehearing refused.


source: Caselaw Access Project

author: Howe, J. Luheling, C. J.

license: Public Domain

text:
    No. 2403.
    James L. Lobdell v. Wm. H. Bushnell et al.
    A. commercial partnership, although, dissolved, still*exists for tho.purposes of liquidation, and the partitioning of the gains, and tho partners may be sued before the court of its domicile for such purposes, and they may be brought before tho court by attachment if they bo non residents.
    from the Fourth District Court, parish of Orleans. Titeará, J.

      JElmore & King, for plaintiff and appellant. Budd <& Grover and A. Boberi, ior defendants and appellees.
   Howe, J.

The plaintiff, residing in the parish of West Baton Rouge, instituted this action against Wm. H. Bushnell, alleged to be a resident of some of tbe northern or eastern States, T. W. Colwell, a resident of West Baton Rouge, and John S. Woodward, alleged to be a resident of New Orleans, for tbe settlement of a partnership which had existed between tbe plaintiffs and defendants.

The partnership appears to have carried on its business chiefly in New Orleans, but to have been dissolved about two years prior to the institution of the suit.

The defendant Colwell, by exception, declined the jurisdiction of the court in New Orleans, on the ground that he resided, as alleged by plaintiff himself, in West Baton Rouge.

A few days after the exception was filed, and before it was tried, the plaintiff suggested to the court that John S. Woodward, believed to-be a resident of New Orleans, really resided in Mississippi, and procured the appointment of a curator ad hoc to represent him.

The demand of the petition was for a judgment against the defendants in solido. The court overruled the exception, and, the cause having been tried on the merits, rendered judgment against the defendants in solido for $14,752 77, and the defendant Colwell alone appealed.

The facts above stated show that at the time the suit was begun the partnership had been dissolved for nearly two years, and that not one of the parties to the suit or to the parnership resided in the parish of Orleans.

It was impossible that the defendant, Colwell, residing in West Baton Rouge, could be legally sued in New Orleans, unless his case came within some of the exceptions to the general prohibition contained in the law of 1861, and now embodied in article 162, Rev. C. P. He could not even consent to be sued in New Orleans unless in these exceptional cases.

The exceptions referred to, as they existed at the time this suit was instituted, are now compiled in articles 163-8 of the Rev. C. P.; but in none do we find any authority for the case at bar.

It does not come under section 2 of article 165, for that refers to matters of partnership “as long as the partnership continues.” It does fall within section 6 of the same article; for, in the first place the defendants are not sued as “joint obligors,” 9 La. 547; and in the second place, if they were so sued the suit was not brought “ at the domicile of anyone of.them.” ♦

We are constrained to the conclusion that the exception should have been maintained.

It is therefore ordered that the judgment appealed from be reversed as to appellant, and his exception of domicile maintained, and that this suit as to appellant, be dismissed at plaintiffs’ costs.

On Rehearing.

Luheling, C. J.

On a re-examination of this case we are satisfied that we erred in sustaining the exception to the jurisdiction of the district court of the parish of Orleans.

The partnership, although dissolved, still continued for the purposes of liquidation, and a partition of the gains. And we think the partners may be sued at the domicile of tbe partnership for such purposes. Trolong de la Société 2, p. 472. Repertoire du Journal du Palais verbo Société, vol. 11 p. 827; 6 La. 685, Lincoln, Fearing & Co. v. Executor of R. Ball ; 13 La. 484, Culler v. Cochran, 3 N. S. 188.

But another sufficient reason for maintaining that the court a qua had jurisdiction is, that Wm. H. Bushnell, a nonresident, was sued by serving him personally with citation and petition, as to him the court had clearly jurisdiction; and the obligation sued on, although alleged by petitioner to be in solido, was a joint obligation, and the other obligors were necessary parties. C. C. art. 2085; 21 An. 265, Francis v, Laonie et al. The exception is therefore overruled.

On the merits the plaintiff has failed to make out a case. The evidence satisfies us that he imposed upon his associates by representing that he owned large quantities of cotton, which he was to put into the partnership at the prices for which other similar cotton could be bought, and that he failed to deliver any of the eottou to the partnership. It further satisfies us that the plaintiff did not put into the partnership the money required by the articles of partnership, nor did he give his services as required.

It is therefore ordered that the judgment as to the appellant be annulled, and that there be judgment in favor of J. W. Colwell against the plaintiff rejecting his demand with costs.


author: Howell, J.

text:
    No. 2414
    Byrne, Vance & Co. v. William Mithoff.
    An alias fien facias can not issuo where an injunction has hoen granted restraining the plaintiff and the sheriff from executing the original fian facias ^ and if a second fieri facias has improvidently issued, the proper action of the court a qua is to quash it
    PPEAL from the Sixth District Court, parish of Orleans. Cooley, J.

      Cooley & Phillips, for plaintiffs and appellants. Poselius & Phillips, for defendant and appellee.
   Howell, J.

The defendant having a judgment against the plaintiffs, caused execution to issue and property to be seized, whereupon the plaintiffs obtained an injunction on various grounds, prohibiting the defendant and the sheriff “from executing or enforcing or attempting to enforce the writ of fieri facias issued out of” said court. Upon trial the injunction was made perpetual. An alias fieri faeias was issued and the plaintiffs took a rule to quash and annul the same, on the ground that the defendant had. been “perpetually injoined and prohibited from enforcing the said judgment in his favor,” by the aforesaid judgment in the injunction suit. This rule was dismissed and the plaintiffs appealed. They base their proceeding on the assertion that the word on, as copied in the record, is or in the original judgment in the following sentence: “That defendant, William Mitlioff, and Thomas L. Maxwell, sheriff of the parish of Orleans, be and they are hereby prohibited and injoined from executing and enforcing or attempting to execute or enforce the writ of fieri facias on the judgment rendered by the late Sixth District Court” etc., and they have brought’ up the original judgment and the minute book of the court to establish their assertion.

Conceding that the word is or instead of on, we can not adopt the conclusion of the plain tiffs. They did not ask the judgment against them to be annulled, and the only question before the district judge in that proceeding was, in the language of the court, whether the writ of fieri facias, which issued therein, was authorized by the judgment. It is not denied, continued the judge, “that at some future time the judgment would warrant the writ; but it is contended that it was ■issued prematurely,” and be so held, saying, “I am of opinion the injunction must be perpetuated and the writ complained of be quashed.”

Construing the judgment, as we must do, with reference to the pleadings and questions before tho court, we are satisfied that the judgment was not injoined if it be permissible to in join a judgment and have it in vigor. The word or was evidently a clerical error, and the judge a- quo did not err in dismissing plaintiffs’ rule to quash the alias writ.

Judgment affirmed.


author: Ludelíng, C. J.

text:
    No. 2939.
    Succession of J. B. Navarro.
    A marriage which, has been. declared to be mill on account of an impediment in tho way of one of tho spouses, lias nevertheless its civil fruits as to the other party who was in good faith and contracted the marriage in ignorance of tho disabilities which affected tho •other, and also in favor of the issue of such marriage. C. 0.118.
    Good faith in contracts being always presumed, the burden of‘proof falls upon the party who alleges fraud or bad faith. A wife who contracted a marriage with her husband in Louisiana in good faith, can not, therefore, be deprived of her interest in the succession of her husband, because it is afterward established that her husband at the time was tho husband of a woman in tho kingdom of Italy, by a marriage which took place prior to her marriage in Louisiana, nor can her children, tho issue of such marriage, be deprived of tbeir inheritance from their father’s estate on that account.
    A PPEAL from the Second District Court, parish of Orleans. JDuvigneemd, J.

      G. Schmidt and Semmes <& Mott, for appellant. L. Oastera, Oarleton Hunt and A. L. Tissoi, for appellee.
   Ludelíng, C. J.

This is a contest for the property of Jean Baptiste Navarro, who was a bigamist. He was married in his native country, 'Italy, in August, 3 833, to Marie Massucco. He came to Louisiana in 1841, and in 1851 he was married by a justice of the peace in Louisiana, to Anastasio Lafrance, notwithstanding his first marriage was undissolved.

Anastasie died on or about tlie twelfth of January, 1869, and J. B. Navarro died on the twenty-first day of the same month and year. A son, Paul Augustin Navarro, issue of their marriage, survived them.

Marie Massuceo died on the twenty-third of October, 1870. She left a will, -whereby she constituted her brother Phillip Massuceo and her- sister Anna Maria Massuceo, wife of J. B. Taggiasco, her heirs and universal legatees.

Navarro left property here inventoried at §20,759, and three parties now before the court present their claims to it.

Marie Massuceo claims one-half of it as surviving widow in community, and her claim seems to be conceded to her in this court by both of the other parties.

Paul Augustin Navarro, by his tutor, claims tlie other half of the community, as the legitimate son of Jean Baptiste Navarro, while Mrs. Louisa Navarro Anselmi, sister of the said J. B. Navarro, claimed to be entitled to his entire succession, on the ground that he loft neither ascendants nor legitimate descendants, nor collateral relatives besides herself. The court a qua decided that each of the two wives was entitled to one-half of the community, and rejected the demand of Mrs. Anselmi. Prom that judgment she alone has appealed.

The only question for decision is the legitimacy or illegitimacy of Paul Augustin Navarro, the issue of the putative marriage.

- The Civil Code provides that “ The marriage, which has been declared null, produces nevertheless its civil effects as it relates to the parties and their children, if it has been contracted in good faith.” Art. 117. “If only one of the parties acted in good faith, the marriage produces its civil effects only in his or her favor, and in favor of the child born of the marriage.” Art. 118.

Good faith in contracts is always presumed; the onus of proof is on him who alleges fraud or bad faith. Rogron, Code Napoleon, expliqué liv. 1 Art. 201 Marcadé Droit Civil, vol. 1 tot. v. du marriage page 553.

After a careful examination of the evidence, we are satisfied that Anastasie acted in good faith in contracting the marriage with Navarro. Nothing in the record shows that she had ever heard, before her marriage, of his having a living wifo in Europe. The justice of tlie peace, who performed tlie ceremony of marriage, and other male witnesses, who had lived a long time in the place where the marriage took place, had never heard of his having a living wifo in Europe, and they believed him to be an unmarried man.

It seemed to bo conceded in argument that it was not proved that she lenew before her marriage that he had a wife in Europe, but it is insisted that this knowledge was communicated to her after the marriage, but before the conception of the child.

The only evidence on this subject is the testimony of the claimant, Mrs. Anselmi, herself. She says “In conversation with my brother’s wife, during my visit to the parish of Plaquemines, and after the marriage, my sister-in-law, Anastasia Lafranee, told me that she did not recognize myself and my mother as related to her. That her only relatives were on her mother’s and father’s side. I then stated to her: “You said we are not related to you, because you are aware that my brother is married in Italy, and if his wife comes here, this would not be at all agreeable to you.” She then answered that she did not care. She says this conversation occurred before the birth of the child is-due from the marriage of my brother with Anastasio Lafranee.” She can not fix the date of this conversation. She can not state whether it was a year or not after the marriage, nor how long after the marriage before the child was born.

Her memory is bad, and her testimony is vague and unsatisfactory.

If we were to give full credence to all she says, the evidence would fail to establish imoioledge in Anastasie that her husband had another wife living in Europe. It certainly does not prove that such knowledge was acquired before the conception of the child. 3 N. S., 438, Clendenning v. Clendenning ; 1 An., 105, Patton v. cities of Philadelphia and New Orleans ; 7 An., 252, Hubbell v. Inskatein et al.; 15 An., 137, Abston v. Abston.

We see no reason for disturbing the judgment appealed from.

It is therefore ordered and adjudged that the judgment of the lower court be affirmed, with costs of appeal.


author: Ludeling, C. J.

text:
    No. 2850.
    Mary E. Fellers and Husband v. Julia A. Brown and Husband, et als.
    The principal object of tbis action being to annul the plaintiffs’ own title to a plantation, the value of which exceeded the stun of five hundred dollars: Held — That the parish court was without jurisdiction ratione materia, to entertain the suit.
    from the Parish Court, parish of Iberville. Adonis Petot, Parish Judge.

      Mathews & Wailes, for plaintiffs. Barrow <& Pope, and W. B. Bobertson, for defendants.
   Ludeling, C. J.

On the sixteenth of November, 1869,.the plaintiff instituted this suit against her co-heirs for a partition of the estate of her father. She alleged that the dative testamentary executor of her father’s will had never rendered an account, and she prayed that the property of the estate be sold for the purpose of affecting the partition. On the fifth of December, 1870, she filed an amended and supplemental petition, alleging that the executor and administrator of the estate of her father was sued by herself for a legacy of fifty thousand dollars, with legal interest from August 4, 1862; that she obtained judgment for tlie stun claimed and caused a writ oiji.fa. to be issued under said judgment, and that, by virtue thereof, the sheriff seized, advertised and sold the Oakland plantation, and that she became the purchaser thereof. She avers that she believes that the said sale is an absolute nullity, and that the property is still the property of the succession of James N. Brown, and she prays that it may be sold as the property of the succession of J. N. Brown, for the purpose of making the partition.

The executor and the co-heirs of the plaintiff filed an exception to this suit, on the following grounds — that, by the testament of J. N. Brown, a special legacy was left to each of his children of fifty thousand dollars, to be paid to each, as he or she should attain the age of majority, that the plaintiff claimed her legacy under the will, and she received payment thereof j that Isaac D. Brown alone of the heirs has not received his legacy, that he has reached his majority, and he is entitled to receive his legacy, and that there are other debts due by the estate; they represent that application to sell property to pay said charges has been made, and the order to sell has been granted and the property advertised for sale. That the property of the estate can not be taken from the executor by the heirs, or a partition thereof, by Imitation, be made, until an amount sufficient to discharge the movable legacy and the debts be advanced by the heirs. To the amended or .supplemental petition the defendants excepted, on the ground of want -of jurisdiction of the parish court ratione materias. The exceptions were overruled, and upon the merits there was judgment declaring the sale of the Oakland plantation a nullity, and ordering a sale of all the property claimed to belong to the succession to affect the partition. From this order an appeal has been taken. We think the order such an one as might work an irreparable injury, and, therefore, the parties .may appeal from it.

There were a great many bills of exceptions taken to the ruling of "the judge a quo, but the views, which we entertain, relative to the issues raised by the pleadings, render it unnecessary to decide them.

The evidence shows that the executor was proceeding to sell a part of the property of the succession under a judgment of this court, to pay a movable legacy and debts, and that the succession was in course of administration. It would seem that the plaintiff ought not to be permitted, thus summarily, to set aside the legal proceedings of the executor under the sanction of this court, and in the lawful discharge of his duties, without first advancing the money necessary to discharge the legacy and debts. C. C. art. 1671.

Nor does the law or equity sanction her attempt to attack her own title, acquired at a judicial sale, provoked by herself, several years ago, and whilst she is in the quiet possession of the property as owner. .7 An. 617, 755; 4 La. 61; 15 La. 520.

The parties, who might have complained of any irregularities in the sale, have not complained, nay, in this suit they declare their willingness to perfect the title in any way which may be deemed essential. C. C. 1791; 13 An. 34, Sue. of Devereux.

From a careful examination of this case, we conclude that the direct and principal object of this suit was to annul the plaintiff’s own title to the Oakland plantation, the value whereof greatly exceeds five hundred dollars. The plaintiff, at the judicial sale, acquired title as a purchaser, and in a contest with the succession relative to. the title to said property, she is to be regarded as a stranger to the succession.

The parish court was without jurisdiction, ratione material, to try the matters presented in the amended petition. 21 An. 556, Rogers v. Morrison, executor et al.

It is therefore ordered and adjudged, that the judgment of the lower court be annulled, and that there be judgment dismissing the plaintiff’s demands with costs of both courts.

Rehearing refused.


author: Taliaferro, J. Lüdeling, C. J.

text:
    No. 2340.
    M. B. Irwin v. Levy & Dieter.
    Tlie purchase of cotton during the late war by parties residing within the Federal lines of military occupation from persons residing within the rebel lines was prohibited by act of Congress. An agent who left the Fodoral lines of military occupation and wont into the rebel lines and there made purchases of cotton which he shipped to the other side, is not therefore entitled to claim or rocovor from the persons who received the cotton any compensation for his services or to recover any part of the cotton or the proceeds thereof on account of a contract in relation to the purchase of the cotton, because such contract was illegal.
    from the Sixth District Court, parish of Orleans. Oooley, J.

      Face, Foster & F. T. Merrick, for plaintiff and appellee. ¡Samuel F. and O. L. Walker, for defendants and appellants. •
   Taliaferro, J.

The plaintiff sues for $28,088 04, alleged to be owing him on account of purchases of cotton made by him for the defendants, and which were delivered to them according to an agreement between the parties. The defendants put in a general denial, and in a supplemental answer, admitted that the plaintiff had some transactions in cotton operations with W. D. Smith, whereby he, under contract with Smith, did deliver to him a quantity of cotton at the time stated in plaintiff’s petition and the accompanying account; but that these were matters with which the defendants had no manner of connection, and on account of which they are in no manner bound. They further allege that for'all purchases of cotton made by the plaintiff on account of Smith, the plaintiff has been fully paid. Judgment was given in favor of the plaintiff for $5000, and defendants have appealed. From an examination of the record we deduce the following history of this case: In May, 1864, when the unusually high price of cotton had induced speculations in that staple the defendants, merchants of New Orleans, entered into an agreement with William D. Smith, a resident of the parish of Point Coupee, to purchase cotton on speculation, Smith to have one-third the net proceeds. The plaintiff, it seems, being an active, industrious man, and with some means of his own, was engaged by this partnership to go about through the country and make purchases of cotton, and have it delivered at eligible points for shipment j and for all cotton so obtained and delivered ready for shipment, he was to be paid forty cents per pound, Levy & Dieter to to furnish the money to pay for it. The general superintendence of the business was under the control of Smith. Irwin purchased cotton chiefly if not entirely in the parishes of Point Coupée and Avoyelles, and had it hauled to points on the Mississippi and the Atehafalaya, where it could be put on boats and brought to New Orleans. Levy & Dieter, it appears, did furnish $21,891, which went towards the payment of the cotton purchased by Irwin and the balance remaining was put by the lower court in round numbers at $5000 and judgment was rendered for that sum. The defense is placed on two grounds, viz :

First — -That defendants made no contract with Irwin; and they ignore him altogether as agent or in any other capacity. Second, that the traffic carried on at that time by parties living on opposite sides of the lines between the section of country under Federal control and that in hostility to the government, was unlawful, and any agreement in relation to such traffic null and void.

It is, we think, sufficiently established that the deiendants did contract with the plaintiff for the purpose stated. Smith himself testifies that Levy, one of the defendants, introduced Irwin to him at the house of Smith, and that it was agreed between Smith, Levy & Irwin that the latter should buy cotton, to be delivered to Smith, for which Levy was to leave money to pay for the cotton, and that he did leave money at that time to the amount of $4500, and arranged for Irwin to get other money in the hands of Haggard, and that Irwin was to get forty cents per pound for good cotton delivered on the eastern bank of theAtehafalaya river. This testimony is corroborated by three other witnesses, two of whom prove the delivery of the cotton by Irwin. The defendants allege payment of the indebtedness charged by the plaintiff, and thereby admit that the debt did exist.

Second — That the transactions in cotton between these parties being-in violation of a prohibitory law, the contract entered into by them is null, and can not be enforced by the courts. The plaintiffs meet this by evidence offered to show that these purchases of cotton were made-under special permits issued by B. F. Flanders, a treasury agent at New Orleans, and in conformity with the regulations of the Treasury Department at Washington, authorized to bo made by the fifth section of the statute, approved thirty-first of July, 1861, and the President’s proclamation issued in conformity therewith. But a rather vexed question of fact here presents itself, and that is, whether the cotton purchased by the plaintiff in these transactions was really purchased within the lines of military occupation of the Federal armies. For, conceding that the permits were properly issued, and that Irwin was in point of fact resident within Federal lines, which is not clear, still the permits only extended to the purchasing of cotton within those lines. A sharp contest was made by the iiarties in their evidence on this point. It is probable that the greater part of Irwin’s purchases were made west of the Atchafalaya. It is to be inferred from the testimony that during the expedition of General Banks up the Red river there wore few if any Confederate troops in that district of country, and some of the purchases, it seems, were made during that time. The interval of non occupation and control of that part of the parish of Avoyelles by rebel forces was brief; for immediately upon the retreat of General Banks all that part of the country with the exception of the port of Morganza, was occupied by them. It is not shown that there were Federal forces stationed at that time (excepting at Morganza), either in the parish of Pointe Coupóe or the parish of Avoyelles. The conclusion we are forced to come to from the evidence is, that there was not at the time of these purchases of cotton by the plaintiff such an occupancy by the Federal forces of the section of country within which the purchases were made, as would justify the belief that the transactions took place within the Federal lines, according to the purpose and intendment of Congress by the act permitting, under certain conditions, commercial intercourse in the insurgent States within those portions thereof under the control of the national armies. With this view of the case it results that the traffic of the parties engaged in this litigation being in contravention of a prohibitory law, it must be pronounced that the contracts they entered into in the course of their illicit trade are null and void, and that this suit can not be entertained.

It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed. It is further ■ordered that this suit be dismissed at plaintiff’s costs.

Wyly, J., being absent took no part in this decree.

On Rehearing.

Lüdeling, C. J.

After a careful re-examination of the evidence in this case, the conviction that the cotton was purchased inside the Confederate lines is forced upon our minds. We are, therefore, constrained to adhere to the conclusion heretofore announced in this case; and it }s ordered that the judgment rendered in this case on the twentieth of November, 1871, remain undisturbed.


author: Taliaferro, J.

text:
    No. 2612.
    Merchants’ Mutual Insurance Company v. New Orleans Mutual Insurance Company and others, and Merchants’ Mutual Insurance Company v. Louisiana Mutual Insurance Company et al.
    In case of tlio insurance of a cargo of cotton to bo shipped from the port of New Orleans to Havre, France, and the vessel arrives at the port of destination with a loss of only a part of the cargo, less than one-half, the rule is that the insured can not claim an abandonment, nor can a loss of a part of the cargo at the port of destination after a portion of it has been delivered at its destined port, be made a constructive total loss by abandonment, however large that part may be.
    A reassurer who has taken a part of the risk from the insurer, may urge all the defenses which the original insurer could urge, when sought to be made liable to the original insurer for losses sustained by the assured; and any of these defenses may he urged by the reassurer, although the assured may have consented to the constructive total loss by abandonment.
    from the Fifth and Seventh District Courts of the parish Orleans. Gollens, J.

      A. & M. Voorldes, for plaintiff and appellant. Lea, Finney & Miller, M. M. Gohen, Johnson & Dennis and A. Robert, for defendants and appellees.
   Taliaferro, J.

These suits were instituted by the Merchants} Mutual Insurance Company against seven other insurance companies on contracts of reinsurance entered into severally by each of these seven companies with the Merchants’ Mutual Insurance Company, the plaintiffs in this case. The history of this litigation seems to be this: Dupasseur & Co. were insured by the Merchants’ Insurance Company •on eight hundred and thirty-four bales of cotton, at the rate of $200 per bale, on board the ship Argean from New Orleans, bound to Havre, in France. The defendants reinsured the plaintiffs for the amounts respectively stated in their separate answers. The vessel arrived safely at the port of her destination and, after discharging a portion of her cargo in sound condition, of which three hundred and twenty-five bales of the cotton insured for Depasseur & Co. constituted part, took fire, which was ultimately extinguished by letting water into the hold. The remainder of the cargo was discharged in a damaged condition. When the news first reached New Orleans of the occurrence of the accident, the Merchants’ Mutual Insurance Company made several advances to the insured for an aggregate sum' of $104,000, subject to a future adjustment. In like manner the reinsuring companies made corresponding advances to assist the Merchants’ Insurance Company. In accordance with the usage and practice at Havre, a statement or adjustment of the loss was made by the “Tribunal du Commerce,” and by this adjustment it seems the several companies reassuring profess to have always been willing to abide. By this adjustment it appeared that the case was one of partial loss only. Dupasseur & Co., on their part, held that it amounted to a constructive total loss, and refusing when called upon by the Merchants’ Insurance Company to refund any portion of the large advances that had been made to them,, claimed an abandonment; the loss, as they asserted, having amounted' to more than fifty per cent. Suit was brought against them by the Merchants’ Mutual Insurance Company. Judgment was rendered in favor of Dupasseur & Co. as in case of total loss, but condemning them to-pay the sum of six thousand dollars, being the excess of the advances over the amount adjusted for constructive total loss. The reinsurers were then called upon by the Merchants’ Insurance Company to contribute according to their several undertakings in favor of the insurers in order to lessen the burden upon them. This they refused to do, and against four of the companies which engaged in the reinsurance, suit was brought in the Fifth District Court, and against the other three suit was instituted in the Seventh District Court.

In the Fifth District Court the case was tried before a jury of merchants. Four of the companies, it seems, contended that tho-amounts advanced by them subject to future settlement and adjustment exceeded the sums they were legally bound to contribute, and they set up reconven lion al demands for the overplus. The other three specified small amounts, which they admit they are bound to furnish to make up the sums they are legally bound to contribute, and wiiicli deficits they aver they have always been willing and ready to pay.

Judgment was rendered in the Fifth District Court in favor of the plaintiffs against those admitting they owed balances and for the sums-so admitted, and in favor of the Louisiana Mutual Insurance Company on its reconvontional demand for the amount alleged to have been in. excess of the sum it was bound to contribute. Iu tlie Seventh District Court judgmont was rendered against the plaintiffs and in favor of the defendants on their respective reconventional demands, the court treating the judgment of the plaintiffs against Dupasseur & Co. as a nullity, and also on the ground that there was not, and under the facts of tlie case there could not be, in regard to the damage sustained, by tlie ship taking fire, an abandonment and a claim by Dupasseur & Co. for a constructivo total loss. Front both judgments the plaintiffs have appealed.

The judgment in the case of the plaintiffs, The Merchants’ Mutual Insurance Company v. Dupasseur & Co. was, by consent of tho parties,, rendered by the court out of term timo and during vacation, viz: on the thirty-first of August, and was signed on the fourth of September. On the trial of the cases now before the court, the introduction of the judgment in question by the plaintiffs, as evidence was objected to by the defendants as'being res inter alias acta, and that they were not bound by it, not having been parties to it. There was a stipulation in the agreement of the parties that there should be no application made to tho court for a new trial. The defendants hold the judgment a nullity for tlie reasons assigned, and cite the ease of Culver, Simonds & Co. v. Leovy et al., 21 Au. 30G. It is, we think, clearly shown that the loss sustained by tho perils insured against did not amount to fifty per cent, of tho value of the cargo, and under tho rule of fifty per cent, of the party insured could nob make an abandonment. The loss, how-over, must be moro than one-half. Parsons on Insurance, '2 vol. pp. 126 and 127. There is an exception, too, both in regard to ship and goods where the vessel arrives at the port of destination, and any substantial part of tho goods insured arrives in safety at its destined port. 'Nor can a loss of a part of the goods at the port of destination be-made a constructive total loss by abandonment, however largo that part may be. Parsons on Insurance, vol. 2, p. 159. But it is argued that the abandonment by Dupasseur & Co. was accepted by tho Merchants7 Insurance Company, and therefore, whether rightfully made or not, could not be brought in question. Whatever might bo the effect in-such a case between tlie Merchants’ Insurance Company and Dupasseur & Co. wo think it would scarcely affect the reinsurers. It seems to bo well settled that reassurers are entitled to make the same defenses and to urge the same objections which might be made by tlio original insurers. 1 Story, 460; 2 Philips, sec. 2173. Reinsurers may have defenses against the original insurer which he could not have against the original insured. " 1 Parsons, 299. Reassurers are only liable for what the insurer is legally liable. 2 Philips, sec. 1751.

. The several companies who took the reinsurance, it is urged, had knowledge of the pendency of tho suit between the insurer and Dupasseur & Co. and they wore at liberty to intervene to protect their own interests; that they now make only the same defenses which they might have made in the original suit, and that they might have appealed from tho judgment, but which they have not done, and which it is alleged they were invited to do. That the defenses now set up by tho reinsured as to the want of right in Dupasseur & Co. to make an abandonment were made by the Merchants’ Insurance Company in the suit they brought against Dupasseur & Co. The plaintiffs contend that formal knowledge by notice in writing in matters of commerce and insurance is not required, but that knowledge howover-required is sufficient; and that tho reinsurers had knowledge of tlio suit brought against Dupasseur, although not notified of it officially. But notwithstanding the reinsurers knew of the pendency of the suit by common rumor, how can they be held bound by a judgment rendered in a suit to which they were in no manner made parties ? They were under no contract with Dupasseur & Co.; their obligatiou was with tho insurers to make good to a certain extent a liability that they might incur they were not called in warranty nor cited to appear in the case in any capacity. The invitation given them to appeal and their declining to do so did not preclude the insurers themselves from appealing, which it would seem they had no intention to do. They agreed with Dupasseur & Co. to submit the case to he determined during vacation, both parties waiving motions for new trials.

TJio plaintiffs insist upon the validity of that judgment, and that the defendants are bound by-it. We deem it unnecessary to pass upon the question of its validity, as we think the case with the defendants, irrespective of that judgment/

The vessel arrived safely at her port of destination, with her cargo in good condition. The damage and loss sustained by the fire which occurred before the vessel was entirely unloaded was partial, as accurately shown by the investigation and adjustment made by the tribunal at Havre. The amount for which the insurers were liable was far less than that for which they aim to make their reinsurers liable. They surely have no right to make such a demand. We think the judgments appealed from should be sustained.

It is therefore ordered, adjudged and decreed that the judgments herein appealed from, viz : The judgment of the Fifth District Court, rendered in the case numbered 348 on the docket of that court, and the judgment of the Seventh District Court, rendered in the suit numbered 998 on the docket of that court, bo affirmed with costs in both courts.

Rehearing refused.


text:
    No. 2547.
    Celeste J. Umrich v. Rosette E. Grow.
    . The only question that can bo examined on an appeal from an order of seizure and sale is: had the judge a quo sufficient authentic evidence before him to authorize the issuing of the writ. Costs incurred in protesting a mortgage note are regulated by law, and must be taxed as such by the court that issues the order of seizure and salo, and authentic evidence of such, costs is not therefore essential.
    from the Fifth District Court, parish of Orleans. Beaumont, J.

      Miles Taylor and James Brewer, forplaintiffandappellee. John A. Grow, for defendant and appellant.
   Howell, J.

This is au appeal from an order of seizure and salo, and the appellant makes the following assignment of errors:

First — There was no authentic.evidence before the judge a quo that the plaintiff had complied with the stipulation in the act of sale and mortgage, to have certain judicial mortgages inferior to the one under which the property was sold to defendant, erased according to law before the maturity of the first note given for the price and before the payment of the same.”

Second — There was no authentic evidence to prove the notarial fee for the protest (three dollars and seventy-five cents) and the cost of the copy of the act of sale and mortgage (five dollars).

First — Tlio first ground of error is one which should be made the basis of another form of action and the merits of which can not be examined on this appeal. It is so well settled as to need no reference to authority, that the only question which cau be examined on an appeal from an order of seizure and sale, is whether or not the judge had sufficient authentic evidence before him to issue the writ. By the law, the notarial act importing a confession of judgment, together with the note, where one is described in and identified with it, is sufficient. To require authentic evidence of the erasure of a judicial mortgage might deprive the creditor altogether of the right to the executory process; and if it should bo true that the judicial mortgages in this instance have not been ¿rased as contended, although defendant has paid nearly the half of its original amount, she is provided with a remedy. The note, on its face, is due.

Second — As to the costs objected to, they are regulated by law and declared to be costs of suit, and must be taxed as costs by the court in the same manner as other costs allowed by the court. Acts 1855, p. 163, $$ 4, 11, 13 and 19; R. S., $$ 750, 770.

Judgment affirmed.

Rehearing refused.


text:
    No. 2444.
    State of Louisiana v. Dubois, Cambre and Cominge.
    Tlie continuance of a criminal trial can not be claimed by the accused a second time od the ground of tlie absence of counsel.
    In a criminal case, tlie punishment of which is not capital, the jury may bo allowed to separate after they are empannolcd.
    from the First District Court, parish of Orleans. Abdl, J.

      S. Belden, Attorney General, for the State. Ernest Morel, for defendant and appellant.
   Ludeling, C. J.

Jules Dubois, John Cambre and Prosper Cominge were indicted for robbery; they were tried and convicted. From the judgment of the court, Prosper Cominge has appealed.

There is no bill of exceptions, no motion for new trial, nor motion in arrest of judgment; but in this court the following assignment of errors is made:

That he was ordered to trial in the absence of his counsel; that a former continuance, granted on the application of a codcfeudant, is no cause to refuse appellant a continuance on account of the absence of his counsel, and that the court should not have permitted the jury to separate after being empanneled, and, at the same time order the prisoner, who was under bond, to jail. The following is a part of the minutes of the court in the case:

The accused, Prosper Cominge, and the prisoners, Jules Dubois and Jolm Cambré, stating that their counsel was absent, and this case having been continued once before on that ground, the court appointed Ernest Morel, Esq., to assist the said Jules Dubois, John Cambré and Prosper Comingo on their trial; and said counsel being present in court accepted the appointment and assisted the aforesaid accused.”

We think the ruling correct under the circumstances. It is not impossible the counsel might have not attended by the prisoner’s -contrivance.

There was no error in permitting the jury to separate, after being empanneled in this case, it not being capital. And the imprisonment <of the accused, whether right or wrong, could have had no bearing on the trial of the case.

It is therefore ordered that the judgment bo affirmed, with costs of appeal.


text:
    No. 2563.
    M. Lara v. C. T. Nash et als.
    jiVil auctioneer wlio sells succession property under an order of court and receives tlio price ilierofor, is not a depositary for tlio purchaser. He can not, therefore, be held liable to the purchaser for the return of the purchase money in case the latter failed to receive the goods purchased, unless it bo shown that the purchase money is still in the hands of the auctioneer and is not claimed by any one else.

      A PPEAL from the Seventh District Court, parish of Orleans. OolI\. lens, J.

      John If. Bonner, for plaintiff and appellee. ITyman, Wallace and Jlandlm, for defendants and appellants.
   Howell, J.

The defendant Nash, an auctioneer, was employed by J. F. Woodman, executor of F. O. Woodman, to sell certain movable and immovable property of the succession to pay debt3, in accordance with an order of the Second District Court for the parish of Orleans, which order named the defendant as the auctioneer At the sale of movable property, consisting' mostly of furniture, that in the use of the family ■of the executor, was adjudicated to the plaintiff. After some delay and several calls for the money, he paid the price ($863 75), taking the receipt of the auctioneer. All the articles, it seems, remained on the premises where the sale was made until sold by the sheriff in some other proceeding. The plaintiff sues Nash, the auctioneer, and liis -official sureties, to recover the sum paid by him, on the ground that Nash received it as depositary.

How or why this property was sold a second time is not explained. The plaintiff purchased it at an auction sale, and about a month thereafter paid the price. It must be presumed be was thus satisfied as to its situation and his control over it. The auctioneer does not seem to Lave had possession of it, nor been called on for delivery, and we are unable to see upon what principle ho can be made -responsible to ■plaintiff, except perhaps upon a showing that the money is in his hands and claimed by no one else. This has not been done. On the ■contrary, the auctioneer shows that he has paid a portion to the executor ; that the succession owed him a large sum which he has compensated, and that the balance has been attached in his hands in a suit against the said J. P. Woodman. He certainly did not receive the money as the depositary of plaintiff, but as the price of succession property sold to pay succession debts, and he is bound primarily to the succession and the court ordering him to make the sale; and the -allegation of plaintiff, that the said sale was canceled by the court because the jiroperty did not bring two-thirds of its appraised value and was sold again by the sheriff by order of said court, if admitted by the vagueness of the answer, does not change the relation of the -auctioneer under the circumstances, to his principal.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment in favor of defendants, with costs in both ■courts.

Rehearing refused.


author: Wyly, J.

text:
    No. 3640.
    A. Rochereau & Co., Agents, v. Marcel Guidry.
    An attachment ic void if it is issued by a judge who has no jurisdiction over tlic case in which it is issued.
    A PPEAL from the Fifth District Court, parish of Orleans. Leaa-TJl mont, J.

      O. IS. Schmidt, for plaintiffs and appellees. Ohcwles Louque, for defendant and appellant.
   Wyly, J.

The plaintiffs sued the defendant for rent and for damages in the parish of Orleans, alleging, however, that he is a resident of the parish of St. James; they also attached certain funds belonging to the defendant in the hands of the garnishee, on the ground that he was about to assign and dispose of his property for the purpose of defrauding his creditors. The defendant moved to dissolve the attachment on the ground that the affidavit is untrue; that he was not about to assign or dispose of his property for the purpose of defrauding his creditors; and ho also excepted to the jurisdiction of the court, lie being a citizen of the parish of St. James.

The court decided that it had no jurisdiction of the defendant, because his domicile was in another parish, but held that it had jurisdiction of the thing-attached, and would hold it subject to the order of the court, having jurisdiction of the person of the defendant.

The defendant appeals.

Under article 162, C. P., as amended by act of 1861, the defendant should be sued before the judge having jurisdiction of the place of his domicile, except in tlie cases expressly provided by law. The casebeforo us is not within the exceptions mention in the Code of Practice.

The court was, therefore, without jurisdiction to grant any order binding on the defendant, because his domicile was in the parish of St. Janies.

The attachment, being merely a conservatory remedy, should have been issued by the court having jurisdiction of the case.

It is therefore ordered that the judgment appealed from be annulled,, and it is now ordered that the attachment herein be set aside, with, costs.


author: Ludbling, C. J. Wyly, J:,

text:
    No. 3305.
    M. A. Southworth v. City of New Orleans.
    Tlie act of 1870, which. makes tlie respective parishes defray tlie expenses of recording the' abstracts of minors5 mortgages, does not impair the obligations of a contract, and is not therefore void on that account. (
    The expenses of making and registering these abstracts are not debts of individuals, but they are charges imposed by law without the consent of the parties, and the General Assembly is competent to declare that such expenses shall be defrayed by the parishes.
    The city of New Orleans being the parish of Orleans, comes technically under the act of 1870, which imposes these burdens on the respective parishes. The recorder is only entitled to charge for ono registry of each abstract, although it may contain several mortgages, and not being required by Jaw to give a certificate, he cannot charge for it.
    from the Sixth District Court, parish of Orleans. Gooley, J.

      Horn,or & Benedict, for plaintiff and appellant. George-8. Laeey, City Attorney, for defendant and appellee.
   This case was tried by a jury in the court below.

Ludbling, C. J.

This is a suit to recover the value of services-rendered in recording the abstracts of inventories of the property of minors, whose tutors had not been required by law to give bond.

This claim is resisted on the following grounds:

First — “ By the act of 1869, the expense of recording ‘ the abstracts ’■ provided for in that statute, was made chargeable to the minor, tutor, or other responsible person, and to the property of the minor ; while,, by the act of 1870, the fees for such services were required to be paid-by the respective parishes in which such services were performed,, thereby subjecting the parishes to the liability of discharging the debts of a third party, contracted under the act of 1869, and as a consequence, compelling the tax-payers of the parishes, through au assessment on their property, to pay a debt, which by the law in force at the time it was contracted, rested upon private individuals.” This, it is contended, is unconstitutional, because it impairs the obligation of a contract. What contract 9 What obligation is impaired ? Surely there never was any contract between the minors (for whose benefit-the Legislature directed the abstracts to be recorded) and the recorders and clerks. The act of 1870 directed that the parishes should advance to the clerks and recorders the fees for doing the work imposed on them by law, and look to the property of the minors for reimbursement. We can see nothing in this which impairs the obligation of a contract. It is argued that the Legislature can not make parishes pay the expenses of making and registering these abstracts, because it would be making the parishes pay the debts of individuals. Yfe do not consider the expenses aforesaid properly debts of individuals — they are charges imposed by law without the consent of the parties — and the General Assembly may require that such charges shall be defrayed by the parishes. All the officers of the State and parishes, whose compensations are not fixed by the Constitution, might be paid by salaries fixed by the General Assembly; and thus citizens, who had no litigation in the courts, would be made to contribute to pay the debts of other citizens who had, if they be debts. There is no force in the position.

Second — The next objection is that the city of New Orleans is not embraced by the act of 1870, which says the parishes shall pay. The city of New Orleans is the parish of Orleans. Acts of 1870, page 30, section 2.

Third — The defendant urges that the act of 1870 provides that the recorder shall charge the same fees as “for other similar services,” and that for the registry of ordinary mortgages, SI 50 for each is allowed.

If the charge were made thus, the relator contends that his fees would be increased ten fold, as there were many mortgages included in many of the abstracts. This is an error. The law created a mortgage on the property of the tutor in favor of the minors, etc., and the law which required the registry of an abstract of the inventories only provided a mode to preserve the mortgage, and only one mortgage is thus recbrded by registering the abstract of the inventory in each tutorship, etc. The law does not require the recorder of mortgages to give a certificate in the matter, and he cannot charge for it. We are of opinion that by the terms “ similar services,” the Legislature intended that they should charge the State as for recording mortgages.

There is manifest error in the verdict and judgment in favor of the defendant. The judge a quo admits this in refusing to grant a new trial, but he remarks that “ the refusal of the motion will facilitate the final decision at once.”

This court has often said that it is the duty of courts to grant new trials when justice requires it. 4 M. 512 ; 3 N. 101; 4 N. 8.132; 2 La. 306; 15 La. 226; 1 R. 192; 7 R. 56; 10 R. 57; 2 An. 625; 6 An. 753. And a new trial is the proper remedy for an improper verdict. 4 M. 83. Won constat, that an appeal would have been taken if the judgmeat had been such as the judge a quo would have approved iu this case. A new trial should have been granted in this case.

The evidence shows that 2577 "abstracts” were recorded by the recorder of mortgages; and we think under the law lie is entitled to charge $1 50 for each one.

It is therefore ordered and adjudged that the verdict and judgment iu this case be set aside, and that there be judgment in favor of the plaintiff against the defendant for three thousand eight hundred and sixty-five dollars and fifty cents, with legal interest from the first of April, 1870, till paid, and costs of suit.

Wyly, J:,

dissmtmg. The plaintiff seeks under the statute of the ninth March, 1870, to compel the city of New Orleans to pay his cost bills for recording the abstracts of the inventory of the property of minors, required to be recorded prior to the first of January, 1870, by ■act of the eighth of March, 1869. I think the law of the ninth of March, 1870, is unconstitutional, in so far as it compels the parishes to pay the cost bills already due by the minors, for whose benefit the abstracts were recorded prior to the first of January, 1870.

At the time the statute in question wa3 passed, the debts for recording were already due ; they were the debts of private individuals; and debts which New Orleans had not contracted, and which in no wise enured to her benefit or advantage.

To compel the city to pay such debts, would be practically tbe taking of private property for private purposes. New Orleans is a judicial person, and its property is protected by tbe constitution like that of any other individual.

The State can not take private property for itself without indemnifying the owner thereof; it is not permitted to take it at all for .private purposes. It cannot take the property of A to give to B. Why, because the disposition of property belongs to tbe owner. And the State must become the owner before it can exercise the right of disposition, which is the main element of perfect ownership. And how is the State to get .the ownership of private property ?

Alone by expropriating it for some public purpose, and in paying the owner its value. If New Orleans be compelled under the statute of 1870 to pay the debts already due the plaintiff by certain private persons for services inuring alone to their benefit, it will be divested of the ownership of its money, which is its private property, without its consent and without any consideration whatever. It will simply be despoiled of its property for the benefit of private individuals.

If the city can thus be held to pay the debts of the individuals named in the act, why can it not he compelled to pay the debts of every other individual ?

And if it can be compelled by the Legislature to pay the debts of everybody, its private property is no longer the pledge of its individual creditors; it becomes the pledge of the creditors of everybody. In effect its property ceases to be private property; the ownership virtually passes to the Legislature, because the latter can freely exercise the right of disposition over it.

And the city can scarcely be considered the owner of the money in its treasury if the Legislature can freely exercise the right of disposition over it. To take money from the treasury of New Orleans to give to the plaintiff because certain persons happen to owe him, is virtually an expropriation of thp property of the city for the benefit of a private individual.

The principle involved in this case is one of great importance. On the solution thereof hangs the fate of the city so far as the right to possess property is concerned.

If the Legislature can take money ad libitum, from the treasury of the city, it can take any other property it may see fit and bestow it on whom it may seem proper.

The city will thus cease to be the owner of property, because the ■ownership is reposed in the person solely invested with the right of disposition. In my dissenting opinion in the case of the State ex rel. Hernandez vs. the City of New Orleans, lately delivered, I had occasion to express my views very fully on this subject, to wit: The right of the Legislature to compel New Orleans to pay a debt never contracted by her, and which in no wise inured to her benefit or advantage.

I will not repeat the argument, nor cite the authorities upon which it was based, but will simply refer to it in support of the position I take in this case.

For the reasons given, I feel bound to dissent from the opinion of the majority of the court.

See Cooley on Constitutional Limitations, page 230; 10 Allen, 585; 13 TFis. 37 - 37 Barb. 440.

IIowell, I*, con curs.


text:
    No. 3929.
    The State ex rel. Dezutter v. Judge of the Fifth District Court of New Orleans.
    A judge who has dismissed an appeal on the ground that the surety is not good, can not be compelled by mandamus to send up the record. The imoper remedy to prevent the judge from executing the judgment is by prohibition. 21 An. 113.
    for a writ of Mandamus.

      Leaumoni, J., respondent.. J. J. Foley, for relator.'
   Ludeling, C. J.

The relator asks for a mandamus to compel the Judge of the Fifth District Court of New Orleans to send up to this court the appeal taken by him in the suit No. 2210 of the docket of said court, on the ground that he had given a good bond according to law, but which the judge rejected as insufficient.

■ The record before us shows that a devolutive appeal was taken from a judgment against Dezutter for two thousand seven hundred and fifty dollars damages; that the order for appeal fixed the amount of the bond at one thousand dollars, and that a bond for that amount was executed with two sureties, who divided their responsibility. One of the sureties, the judge a quo thought not solvent. We have come to the conclusion that he is a good surety, after a careful examination of' the evidence taken on the rule. And we are constrained to remark that the sum of one thousand dollars for. a bond for costs to be incurred on appeal would seem to be excessive and unreasonable.

But we have often held that after an appeal has been taken and a good bond has been filed in the case, the remedy to prevent the judge a quo from exercising jurisdiction in the case is by prohibition. 21 An. 113, Johnson v. Judge of the Fifth District Court.

It is not the duty of the judge to send up the transcript of appeal.

It is therefore ordered that the complaint be dismissed with costs.


text:
    No. 2519.
    Celine Salvant, wife of F. Ettle, v. Jean Salvant.
    Th© written authorization of the husband to his wife to prosecute the suit is in time, if it is filed before the trial of the exception, that she is nob authorized.
    The settlement of a tutor’s account is purely a probate matter, and the parish court has jurisdiction of all such cases without reference to the amount involved.
    from the Parish Court, parish of Plaquemines. William If. Freseot, Parish Judge.

      F. Howard MoOaleb, for plaintiff and appellee. A. Gaeabat, for defendant and appellant.
   Ludeling, C. J.

This suit is instituted to oblige the defendant to-account for the management of her property as tutor, during her tutorage. She alleges he is indebted to her in the sum of $ 1360, with, legal interest from fifteenth July, 1854, when he received this amount on her account.

The defendant excepted on the grounds that he is not sued at his domicile, that the parish court is without jurisdiction, ratione materice, the amount in dispute exceeding five hundred dollars, and that the wife is not authorized to bring this suit by her husband. The husband’s written consent to his wife to prosecute the suit was filed before the trial of the exception. That is sufficient. C. P. 320; 10 An. 504; Howard v. Copley.

This suit was instituted in the court which appointed the tutor; that is the proper tribunal to compel him to account for his tutorship. 2 La. 57 ; 2 An. 277; White et al. v. Chancy, 2 La. 271.

The settlement of tutor’s accounts is purely “probate matters; ” and in such cases the parish court has jurisdiction without reference to the amount involved. “In all probate matters, when the amount in dispute shall exceed five hundred dollars, exclusive of interest, the appeal shall be directly from the parish to the Supreme Court.” Article 88 Constitution, and Article 87.

We think the judge a quo correctly overruled the exception.

On the merits there, seems to be no error complained of by the appellant, and an examination of the evidence satisfies us the judgment appealed from is correct.

It is therefore ordered that the judgment of the parish court be affirmed with costs of appeal.


text:
    No. 3718.
    J. M. Wells v. Bernard Erstein.
    A suit for tlie settlement of a partnership which, has been dissolved cannot be maintained by one of the partners if the oilier partner shows that a settlement of the partnership has been made.
    from the Ninth Judicial District Court, parish of Rapides. Orsborn, J.

      James Q. White, for plaintiff and appellee. Thomas O. Manning, for defendant and appellant.
   Wyly, J.

The plaintiff sues .for the settlement of the partnership which he says existed between him and the defendant in a dry goods and grocery business in Matamoras, beginning in August, 1864, and terminating in July, 1865, and in which he alleges he invested $2800. He also avers that the profits of the said copartnership from its formation to its close were considerable, amounting, as he believes, to about $2000.

The defense is that the partnership which was formed in New Orleans was illegal, because the shipping of goods to Matamoras was prohibited by the United States authorities at the time •, also, that the •defendant has long since made a full settlement with the plaintiff, The court gave judgment for plaintiff for $1400, and the defendant appeals.

The defense of settlement is a good one. It appears that the defendant made a final settlement with the plaintiff when the partnership ended in 1865, that the plaintiff examined the day book, the only one kept by the defendant, who was intrusted with the sole administration of the partnership, and after ascertaining that there was only $800 in gold coming to him, accepted that sum, and gave Ms receipt in full. The written article of partnership between them was then destroyed by mutual consent.

The plaintiff has failed to show that he made this settlement in error, or that the defendant practiced a fraud upon him in obtaining it. We therefore conclude by it:

That the defendant gave Kalmagel an interest in Ms share of the-partnership is no reason for the plaintiff to complain; it caused him no loss. Every partner may, without the consent of Ms partners, enter into a partnership with a third person for the share which he has in the partnership.” * * * Revised Code, 8871.

It is therefore ordered that the judgment appealed from be annulled and that plaintiff’s demand be rejected with costs of both courts.

Rehearing refused.


text:
    No. 3667.
    State ex rel. W. Hawksworth v. Crescent City Gas Light Company.
    Where shares of stock in a company have boon regularly subscribed for, and tho subscriber dies, and his universal legatee claims and is decreed by a final judgment of a court of competent jurisdiction to be the owner thereof, such shares of stock can not bo taken by another subscriber, especially if, at the time of tho second subscription, the books of tho company have been closed by a resolution of the board of directors.
    from the Eighth District Court, parish of Orleans. Dibble, J.

      William Grant and Hunton <& Grove}', for relator and appellant. Billings & Hughes, for defendant and appellee.
   Ludeling, C. J.

This is a suit by mandamus to compel the defendant to recognize the relator as the owner of fifteen hundred shares of the capital stock of the company, and to permit a transfer to be made thereof on the books of the company, and to issue proper certificates of stock to the transferees.

The defense is substantially that relator is not the owner of said stock, and has no right to make the demands insisted upon by him.

There was judgment against the relator dismissing Ms complaint, and he has appealed.

The evidence satisfies us that at the time the relator signed his name to the subscription books of the company a second time, it was with tlie view of appropriating tlie stock subscribed for by A. B. Long, wliioli was attempted to be canceled without authority, although with the consent of the executor of A. B. Long, who believed he could cancel this subscription. The universal legatee of A. B. Long, having asserted her rights to this stock, tlie court adjudged it to-belong to her, and no appeal has been taken from, that judgment. At the time the relator sighed for said second subscription tho subscription books had been closed by a resolution of the board of directors, and no subscriptions could lawfully be made at the time. There is no error in the judgment appealed from.

It is therefore ordered that the judgment be affirmed, with costs of appeal.


text:
    No. 3490.
    Succession of E. Cordeviolle.
    The courts of Louisiana, havo the undoubted power and right to aid in carrying into effect tho provisions of a will made by a citizen or subject of Franco, when a portion of the estate of the testator is situated within tho State, and to aid in the transmission of tlie funds of successions within her jurisdiction to the representatives of the succession abroad. This power is based on tho broad principle of the comity of nations, but it can not be exercised to the prejudice of domestic creditors,
    in this case it appears that tho testator resided in Paris, France, where he died, leaving an estate in France under the control of executors appointed by the will. For tho administration of the property in Louisiana a dative testamentary executrix was appointed. Under tho dispositions of the will the property was required to be reduced to cash as soon as practicable, tho same to be invested in particular securities in Paris for distribution. The dative testamentary executrix of tho Louisiana estate became the purchaser at the probate salo of some of the property, and refused to pay over the price or account for it in the account of her administration, on tho ground that she being an heir hada right to hold on to tho purchase money until her rights, as an heir, were definitely ascertained, and then only to account for the difference. Hold — That she was bound by the terms of the will, and as the will had directed that all the estate should be converted into cash as soon as possible, and bo invested in particular securities, in Paris, for distribution; that the executrix in Louisiana, being an heir, could not on that account retain the purcliasomoney in her hands until the distribution, which was directed by the will to be so invested for distribution, and that she must account for it the same as-other purchasers.
    A dative testamentary executrix, residing in Louisiana, and having under administration an ancillary succession in this State, which belongs to a foreigner residing in Paris, France, where the principal estate is situated, can not bo proceeded against by rule, to sell the balance of tho estate in her hands, nor will an injunction issue under a rule taken to prevent her from disposing of tho funds ornotes on hand.
    A PPEAL from tho Second District Court, parish oí Orleans. Duvigneaud, J.

      P. Oastcra, 8. K. Kennedy and Moselius <& Phillips, for appellants. A. Pitot, Charles Ponqué and K. Bermudez, for appellee.
   Howell, J.

Two appeals are embraced in this record. The first is taken by the widow of the deceased and tho Commune di Lavagna from a judgment on their oppositions to tho second provisional account filed by Mrs. Commaghre, the dative testamentary executrix. The second is taken by the said widow from a judgment on her rule upon the dative executrix, who joins in tho appeal by answer.

I. The oppositions are based on seven grounds, five of which are urged, before us:

First — The account is vague and omits all mention of the purchases made by the dative executrix, the price of which she unlawfully retains.

She withholds the price, because as heir she contends she has the right to do so, until the final settlement of the succession and hér portion thereof is definitely fixed, as provided by articles 1343 and 2625, R. C. C., and in this position she is sustained by the judge a quo.

Etienne Cordeviolle died in Paris, France, where he had resided many years, where he made his will, and where the principal succession is under administration by executors appointed by the will, and the one here is under the administration of Commagére, a sister of the deceased, as dative testamentary executrix. The whole estate of the deceased is disposed of under sp>ecial conditions and directions, and it seems that all the legatees have accepted, or propose to accept the legacies bequeathed to them. In the will several annuities are made to persons named, two of which are to take effect at the date of the testator’s death. One-third of his estate is bequeathed to his “,nearest relatives, subject to the application of the principles of the French law,” and two-tliirds to the Commune di Lavagna for certain purposes; both of said legacies are subject to the special legacies. It is made the duty of his executors, as soon as possible, to reduce all the property to cash and invest the proceeds in the three per cent. French funds, and to inscribe, in the name of each annuitant, as usufructuary, a title or certificate of such stocks, and in the name of the other parties for the worked property. It is further ordained that these titles or certificates of stocks shall remain deposited in the office of the notary at Paris, who shall be charged with the collection and payment of the income ; and further, that Ms heirs, living mostly in New Orleans, • United States, will be notified of the opening of Ms succession and required to present themselves in person, or by attorney, at the domicile of the executor in Paris, to receive whatever may come to them by succession and give acquittance.

As the rights of Mrs. Commagére are derived through the will, and she has taken an oath to execute its provisions, she is bound herself to conform faithfully to all those provisions, unless they should be violative of the laws of this State. We find in them nothing that is illegal.

In the case of Mourain v. Poydras, executor, 6 An. 151, the power and right of the courts of this State to aid in carrying out such provisions and generally to direct the transmission of the funds of successors of foreigners within their jurisdiction to their representatives abroad, on the principles of established comity between nations, were recognized as being no longer an open question; not, however, to be exercised to the prejudice of domestic creditors. No creditors are asserting any rights in this succession adverse to this doctrine, except those who derive their rights from the will, and by it they must be controlled in the mode of obtaining those rights. It follows that as the will directs all the property to be converted, as soon as possible, into cost, and invested in particular securities for distribution, in Paris, in the manner provided, Mrs. Commagére, whose duty it is faithfully to obey the directions of the will, can not avail herself of that provision of our law in favor of heirs who purchase at succession sales, to retain the price until their portions are ascertained. To do so would, in the circumstances of this case, defeat the will.

We do not undertake to decide in what cases this right of the heirs may be examined, but only that Mrs. Commagére can not do so in this case. It is her duty to place upon the account presented the sale of all the property purchased by herself, the same as if purchased by a third person, and account for the proceeds in the same way. The court, therefore, erred in authorizing her to retain the price. She should have included her purchases in the account even if she had the right to retain the price as claimed, and left the settlement of that question for determination at the proper time. Having been presented, however, in this proceeding, we have passed on it.

The suggestion that she might retain the price because she could have refused to comply with the adjudications on account of the widow’s endeavoring to have her mortgage recognized, is without merit. Having made the purchases, and not refused to comply, conceding she had a legal cause of refusal, she must account.

Second — The second ground of opposition is to the right of the dative testamentary executrix to commissions. It can not be presumed that the testator made the bequests to her as compensation for her services in administering, as she was not appointed by him. The amount to be allowed can not exceed two and a half per cent, on the whole amount of the estimate of the inventory as prescribed in article 1683 B., C. C.

Third — The charge of five hundred dollars by the surveyor, for surveys and plans of the property sold, is opposed as excessive. The testimony of the creditor himself, and another surveyor, does not authorize a charge of more than three hundred and twenty dollars, which, we think, is large.

Fourth — The auctioneer’s bill of two thousand dollars was opposed as excessive, and was reduced by the judge a quo to eleven hundred and thirty-six dollars and thirty cents, to conform to the fee bill as to the commissions on the sales — the said commissions being reduced from eleven hundred and sixty-nine dollars to three hundred and four dollars and seventy-five cents. There should be a further deduction of twenty-five per cent, of the sums charged, as paid to the newspapers-, as that deduction was made by tlie newspapers. Such deductions inure to the benefit of the principals for whom the advertisements are made. We must here say, we do not perceive the necessity of making out a separate proces verbal for each piece of property sold at one and the same sale, occupying about twenty-five pages of the record. It is a useless and unauthorized increase of expense.

Fifth — The next item opposed is in these words:

“Attorney’s fees for services rendered since the first account rendered, preparing, attending sale, etc., one thousand dollars.”

The judge below was of opinion, from the size of the record and “ the proceedings in this case ” before him, that the charge is reasonable. We must say that these proceedings do not impress us with the correctness of his estimate. The petitions for the sales, which are very short, and the contest over the account under consideration (and which we agree with opponents in designating as vague and unsatisfactory), do not appear to us to warrant such a charge. It is not to be supposed that the succession must pay the attorney of Mrs. Commagére for services rendered to her as legatee or heir, but only for services rendered her in her fiduciary capacity, and for such services in these proceedings we think five hundred dollars a fair remuneration.

The account must be amended so as to conform to the views we herein express, and for that purpose it will be necessaiy to remand the cause.

II. A rule was taken by the widow, pending the foregoing controversy, to compel the dative executrix to sell the property remaining unsold, and file a complete detailed account of her administration, accounting for the revenues and distributing all the moneys arising from the sales made in said succession; to prohibit her from disposing of the money and notes reserved by her except upon an order of court rendered contradictorily with the parties interested, and to produce her bank-book, kept according to law, and in default thereof to condemn her and her surety to pay twenty per cent, on any amount not deposited or withdrawn without authority, and damages.

The defendant in the rule excepted that the demands to forward the money to France, and to distribute it here, are inconsistent; that the question of her right to retain the price is pending, and that the proceeding by rule is not the proper mode to enjoin her from disposing of the funds; and she presented two bank-books.

The district judge being of opinion that, by the will, the assets must be distributed in France; that the dative executrix had already been decreed entitled to retain the price of the property purchased by her, and had filed a satisfactory supplemental account under the judgment on the oppositions, and had filed her bank-books as required by law, made the rule absolute so far only as to proceed with the sale of the property unsold, and to injoin lier from disposing of any of the funds of the estate, unless ordered by the court, and directing her, upon complying with the foregoing order of sale, to file a full, complete account of her administration.

The widow asks on appeal that her rule be made absolute in toto, while the dative executrix asks that the judgment be reversed so far as it makes said note absolute.

We agree with the district judge that the will, being unassailed, must be tlie law of the succession, and that it requires the proceeds of the whole property to be transmitted to France for distribution; but we have already expressed an opinion different from his on the right of the dative executrix, under the provisions of. the will, to retain the price of the property purchased by her. Nor do we agree with him in the opinion that the supplemental account gives a satisfactory statement of the affairs and condition of the succession, property, and funds under administration. It is her duty to carry out the provisions of the will as expeditiously as practicable, and be prepared to account to the representative of the succession in France, when properly called on. We do not, however, consider this rule such a call, its purpose being to some extent inconsistent with the true intention of the testator.

The judgment, which should be rendered on the oppositions to the accounts, it seems to us, will dispose of the foregoing questions, and the rule was therefore unnecessary as to them.

As to the question of enjoining the dative executrix by rule, we think the exception well taken. The law has provided ample remedies by other and more regular means of effecting this object.

It was proper, however, to call on her by rule to produce her bankbook and show that she had deposited all the funds of the succession as required by law. She has, it seems, kept her account with the bank in the names of herself individually and two parties, who are said to be her sureties, instead of in her official name. Article 1150, E. C. C., is very positive and stringent, and a failure to comply with it is attended with sworn penalties. The only amount which the appellant mentions as not having been deposited, is the sum of six hundred and sixty dollars, which, it is asserted in the brief, the executrix was condemned to pay as rent; but we are not referred to the proof of this assertion. The rules of court require such reference to be specially made, and it is quite necessary, when the record is very arge, and comprises various matters as in this case. We therefore do not feel justified in condemning the executrix and her securities to pay the twenty per cent, authorized by the above article. Whether or not the failure to keep a bank-book in her “official name.” will justify the enforcement of any other penalty, is a question not presented.

It is therefore ordered that the judgment on the oppositions to the account be reversed, and that this cause be remanded, and the dative testamentary executrix be required, within twenty days from the date, herself to file a full, fair and perfect account of her administration, according to law and tiie foregoing- views. It is further ordered that the judgment on the rule herein be reversed, and the rule dismissed without prejudice. The costs of said rule in the lower court to be paid by the appellant, Mrs. Cordevioile, and the costs of appeal to bo paid by the succession.

Rehearing refused.


author: Taliaferro, J. Howe, J.

text:
    No. 2401.
    John C. Barelli v. Emile Gauche.
    An action to annul a judicial sale of real property, on tlie ground of irregularities in the proceedings, can not be maintained against the purchaser, unless the parties claiming its nullity have paid or offered to reimburse the purchaser, the amounts of the mortgages resting on the property which he has paid since the purohase. In such a case it is held — that a tender of the amounts thus paid by the purchaser is an essential prerequisite to the prosecution of a suit to annul.
    from the Sixth District Court, parish of Orleans. Oooley, J.

      Fellows <& Mills, for plaintiff and appellee. J. H. llsley and Thomas Gilmore, for defendant and appellant.
   Taliaferro, J.

This is an action brought by the plaintiff to recover valuable real estate in the city of New Orleans, bounded by Camp, St. Francis, North and Poydras streets, embracing the ground upon which stands the edifice known as the Moresque Building. This property, it appears, was sold under execution in 1865, as belonging to the plaintiff; the execution having issued on a judgment obtained against him for the sum of seventeen thousand five hundred and eighty-three dollars and forty-nine cents, with interest, by Jamison. The plaintiff alleges that the sheriff’s sale, purporting to be an adjudication of the property to the defendant, is null and of no effect; that plaintiff was not thereby divested of title, and that the defendant consequently acquired none. The principal grounds alleged as rendering the sheriff’s sale null, are: That no seizure of the property was ever made by the sheriff; that the sale was made after the expiration of the fieri facias, no duly certified copy thereof having been issued within twenty-four hours after the fieri facias was returned; that the amount bid at the sale did not exceed the amount of prior mortgages, and no adjudication could legally take place. The answer is a general denial. The defendant avers that, as purchaser of the property sued for, he has paid in extinguishment of the price and in discharge of debts due at the time of the sale by the plaintiff, and bearing mortgage and privilege on the property, all that was legally exigible, a sum amounting to one hundred and forty thousand dollars, and which equity requires the plaintiff should have tendered to the defendant before the institution of this suit.

This plea in bar of the action must be sustained. No tender of the amount paid by defendant is shown to have been made, and this,, we think, was essential to enable the plaintiff to prosecute this suit. 6 N. S. 684; 8 N. S. 162, 175, 210 ; 3 La. 541; 12 An. 251; 21 An. 425, and authorities there cited. Rev. C. C. 1912.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed. It is further ordered that this suit be dissmissed at plaintiff’s costs.

. On Rehearing.

Howe, J.

Upon further consideration we are not inclined to change the judgment heretofore rendered by us in this case. G-ormley vs. Palms; 13 An. 213.

It is therefore ordered that the judgment heretofore rendered by us remain undisturbed.


author: Howe, J.

text:
    No. 2800.
    W. W. Hill v. Ober Atwater & Co.
    A promise to pay tlie debt of another must be in writing. Two partners engaged in the planting business, are both bound to the merchant who furnishes them with supplies to mate the crop for one-half their cost.
    from the Sixth District Court, parish of Orleans. Oooley, J.

      J. Mcvwlcms, for plaintiff and appellee. Given Campbell, for defendants and appellants.
   Howe, J.

Plaintiff brought suit for a balance alleged to be due him from defendants for proceeds often bales of cotton, shipped'by him to them in October, 1868.

Defendants filed a general denial, and afterwards a supplemental answer, setting up the existence of a planting partnership in 1866 and 1867 between the plaintiff and G. H. Dunn, the furnishing of supplies thereto by defendants to the amount of $557 54, the assumption of the whole of this debt by plaintiff and the appropriation by his authorization of the proceeds of the ten bales in question to the payment of this account. They admit a balance due of $72 15.

After examining the pleadings and evidence as a whole, we are satisfied that the defense has been established as to the half of the supplies furnished the plantation in which plaintiff had an interest with Dunn. But we cannot hold him bound for any assumption of the virile share of Dunn, for which he was not bound as a partner, because there is no written proof of this, his alleged promise, to pay the debt of another. 23 An. 747. His allusion to it in a letter is not clearly a promise. He speaks there of an understanding that he should settle the bill, wishes to have a copy of it, and says that after he receives it he will tell defendants what he “ will do.” In his next letter he complains that the bill thus rendered is incorrect. lie never finally told the defendants of any one else in writing what he would do. Charging him with one-half the supplies to Tally Place, the judgdment would be for $350 32, with interest from date of sale.

It is therefore ordered that the judgment appealed from be reduced to the sum of three hundred and fifty dollars and thirty-two cents, with interest from November 6, 1868, and costs of lower court; and that plaintiff pay costs of appeal.


text:
    No. 3651.
    Succession of Milton Taylor. Application of J. J. Taylor and P. A. T. Duncanson to be recognized as heirs.
    A judgment; which. recognizes one person as an lieir to an estate, and reserves the rights of all other persons to show their heirship in a legal way, cannot he pleaded as res judicata against other persons who afterward claim to he heirs. The fact that such a judgment has heen appealed from, and the appeal has afterward heen abandoned, does not conclude other persons from asserting their heirship judicially.
    from the Second District Court, parish of Orleans. Duvigneaud, J.

      W. W. Sandlin, for appellants. Labatt & Aroni, for appellee.
   Howell, J.

As stated by the appellee, “ the only question presented in this voluminous record is, whether John James Taylor and Phoebe Ann Duncanson are the children of Milton Taylor, and as such entitled each to one-third of the succession. Their pretensions were successfully resisted by appellee, who had previously been, by a final judgment rendered herein, duly recognized as the sole heir of her deceased father, and placed in possession of the succession. From this judgment there was no appeal,” and the appellee contends that the petitioners are concluded by it, because they applied for and obtained an appeal therefrom, and afterwards on their own motion in the lower court caused it to be dismissed.

The proceeding taken by the appellee, Mary Jane Taylor, wife of Milton Rogers, to be recognized as sole heir, and put in possession of the succession, was had contradictorily with the public administration alone, and the judgment thereon expressly reserved the rights of any heir at law, the evidence before the court developing the fact that the two applicants now before the court were also children of the decedent. The abandonment of the appeal from the said judgment, after the appellants had instituted this proceeding, did not give to the said judgment more force than it inherently possessed, and not being final as to the petitioners in its terms, has not become so by any act of theirs, or otherwise.

In our opinion the evidence which establishes the status of the appellee as the child of the deceased shows with equal clearness that the petitioners herein are also his children. The only contradictory evidence is a statement in a written document of memoranda or instructions to his executors, that the two petitioners are not his children. This, however, appears to us to have been written under the influence of displeasure, and to be outweighed by abundant evidence.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment in favor of petitioners, John James Taylor and Phoebe Ann Taylor, wife of Robert S. Duncanson, to recognize as heirs and put in possession, through their attorney in fact, William W. llandlin, of two-thirds of the succession of their father, Milton Taylor; and that so much of the order putting Mary Ann Jane Taylor Rogers in possession of all said succession be annulled. Cost of appeal to be paid by appellee, Mrs. Rogers.

Rehearing refused.


text:
    No. 2779.
    Dr. Samuel Choppin v. W. B. Harmon and Wife.
    A married woman is not bound either jointly or in 3olido with her husband for medical services rendered her during her illness.
    PPEAL from the Sixth District Court, parish of Orleans. Oooley, J.

      B. B. Borman, for plaintiff and appellant. B. & PT. Marr, for defendant and appellee.
   This case was tried by a jury in the court below.

Ludeling, C. J.

This suit was brought to recover $2000 for medi•cal services rendered to Mrs. Harmon. The husband and wife were both sued, and there was a verdict and judgment against both defendants in solido for $1000. The wife alone has appealed.

The services were rendered to the wife during the marriage, and there is no allegation or proof that the spouses were separated in property. The debt is a community debt, for which the wife is not personally bound. C. C. 2402, 2403.

The husband is bound to furnish her with medical aid when needed. C. C. 120. And it can not be said that the services thus rendered enured to her separate benefit”.in the sense which would render her personally responsible for the debt.

It is therefore ordered and adjudged that the verdict of the jury and judgment of the District Court be set aside, and it is further ordered that there be judgment in favor of Mrs. Mary Harmon against the plaintiff, rejecting his demands against her with costs of both courts.

Rehearing refused.


text:
    No. 3924
    The State ex rel. Thomas Lynne v. The Judge of the Seventh District Court.
    The decision of the judge a quo on a motion to set aside an appeal on the ground that th& surety on the bond is not good, will he reviewed on an application to the Supreme* Court for a writ of prohibition, and if the surety is found to be good, the order of the Judge a quo dismissing the appeal will be sot aside, and the writ of prohibition will issue.
    for a writ of prohibition.

      F. Howard McOaleb and F. Fwsselier, for relator. Oollens, Judge, respondent.
   Howe, J.

The application for a writ of prohibition in this case raises the question of the sufficiency of a surety on the appeal bond. He is bound for $2000, and declares under oath that he is worth, over and above his debts, from $7000 to $8000; and we think the evidence as a whole supports this estimate.

The fact that one piece of his real estate has been at some date, not fixed, asssessed at much less than the price he paid for it, and the further fact that the same piece of property is offered for sale under a mortgage, are not in themselves sufficient to show that this estimate is exaggerated.

Let the prohibition be made perpetual.


text:
    No. 3675.
    Alexander McNeil, Dutton, subrogated, v. Michael J. Hauck.
    When mortgaged property has been sold under judicial proceedings for tho benefit of tbe senior mortgage creditor, the purchaser may proceed by rule to have the posterior and junior mortgages canceled.
    from the Sixth District Court, parish of Orleans. Gooley, J.

      John H. Halsey, for appellant. Labatt & Aroni, for appellee.
   Taliaferro, J.

Dutton being subrogated to the rights of McNeil in a promissory note of Hauck’s to McNeil for $6500, and in a mortgage to secure its payment took out an alias writ of seizure and' sale and caused the property mortgaged to be sold on the third of April,. 1871. A previous order of seizure and sale having been taken out by McNeil, was stayed by the surrender of Hauck in bankruptcy. The alias writ was issued ou the second of February, 1871, two days after the property mortgaged was released and assigned to McNeil by the assignee in bankruptcy. Tbe seizure was recorded on the eighteenth of February, 1871. The wife of Hauck brought suit against him and obtained a judgment, which was duly recorded on the tenth of March, 1871. There was also, it seems, an act executed before a notary, acknowledging by her husband a general mortgage on his property. This act was recorded on the thirteenth of March, 1871. The sale being made, a rule was taken by Dutton against tbe wife and the recorder of mortgages to show cause why her general and judicial mortgages should not be canceled and erased from the records of the mortgage office on the ground of their being posterior in date to the mortgage under which the property was sold. An exception was taken on the part of Mrs. Hauck to the proceeding by rule against her, as her rights can only be divested by a direct action. This exception was overruled. On trial of the rule, judgment was rendered as prayed for by plaintiff in the rule, and the defendant has appealed.

We think the judgment was properly rendered. The seizure seems to have been regularly made and recorded on the eighteenth of February, 1871, some twenty days before the recording of the wife’s judgment. Besides this, it is shown that in the act of mortgage from Hauck to McNeil, Mrs. Hauck intervened and renounced all her rights on the mortgaged property. She seeks to repudiate that act as having been done in error and in ignorance of her rights, but we think unsuccessfully.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be affirmed with costs.

Rehearing refused.


author: Lcdeling, C. J.

text:
    No. 3767.
    L. F. Generes v. Mrs. E. J. Fluker et als.
    The Supreme Court will not revise a judgment of the lower court rendered on a rule to dismiss an appeal on the ground that the sureties are not good, if the evidence taken on the trial of the rule in the lower court is not legally before the appellate court.
    Bent due for the use of a plantation cannot be recovered from a married woman, unless it be shown that she rented the place, or authorized some one else to rent it for her; nor will an attachment lie against her property to compel the payment of the rent.
    from the Fifth Judicial District Court, parish of East Baton Rouge. Posey, J.

      Favrot & Lamon, for plaintiff and appellee. B. F. CTkaney, for defendants and appellants.
   Lcdeling, C. J.

A motion has been made in this case to dismiss the appeal on the ground that the sureties are not good for the amount of the bond. A suspensive appeal alone was taken, and no amount for the bond was fixed by the judge. When the bond was filed in the clerk’s office, a rule was taken by the plaintiff against the defendants to show cause why the bond should not be rejected. The rule was tried before the judge, who received the bond; and the appellee insists here that the appeal should be dismissed, as the evidence taken on the trial of the rule is in the record, and it shows that the bond was not a good bond. The evidence taken on the trial of the rule is improperly in this record, and we can not revise the judgment of the district judge in a matter not properly before us.

The motion to dismiss must be overruled.

This is an action to recover the rents of a plantation for the years 1870 and 1871, and the plaintiff obtained an attachment against defendants’ property under the act of 1868, on the ground that they were about to dispose of their property to defraud him. The objections urged by way of exception to the attachment are without any force, and the judge a quo correctly overruled them. The evidence supports the claim for rent against A. W. Fluker, but not against his wife. There is no evidence that she ever rented the property or authorized her husband to do so for her.

It is therefore ordered and adjudged that the judgment of the lower court against Mrs. E. J. Fluker be set aside and annulled and that the attachment against her property be dissolved with costs.

It is further ordered and adjudged that her rights to sue for damages be reserved to her; and that in other respects the judgment of the lower court be affirmed, appellee paying costs of appeal.

Rehearing refused.