author: Marr, J.

text:
    No. 7018.
    H. R. Wade vs. R. J. Loudon and Sheriff.
    In tlio absence o£ evidence as to the amount in dispute in a suit on appeal before this court, it will not be inferred that a sufficient sum is involved to give this court jurisdiction merely from the fact that there were two judgments of the district court enjoined. This court will not assume jurisdiction on an infe'rence.
    The dissolution of an injunction issued to restrain an order of seizure and sale, (in a case whore no allegation is made of defect or nullity in the judgment ordering the seizure and sale) loaves nothing more to be decided in the injunction suit, and hence, the court may properly order it to be stricken from the docket.
    APPEAL from the Thirteenth Judicial District Court, parish of East Carroll. Hough, J.

      A. W. Boherts for plaintiff and appellant.

      Montgomery & Deloney for defendants and appellees.
   The opinion of the court was delivered by

Marr, J.

In January, 1877, appellant obtained an injunction restraining Loudon and the sheriff from further proceeding in the execution of the judgments of the district court, numbers 6328, 6329, of the docket.

The injunction was granted upon the affidavit of one Hedrick, who styled himself agent and attorney in fact for IT. R. Wade, “that the allegations of the petition are true and correct to the best of his knowledge and belief; and that the said Wade is in ill health and is physically unable to appear to take out these proceedings.”

At the ensuing term of the court defendants moved to dissolve the injunction with damages, on the grounds:

1. That the plaintiff, Wade, at the time the affidavit was made by Hedrick, was present in the parish, and was residing within three miles of a justice of the peace, before whom he was amply able to appear and make affidavit.

5. That there has been no legal and solvent bond executed in this suit, and the same if given was not signed by any one authorized to do so.

According to the note of evidence there was no testimony offered on the trial of this motion, except that of a member of the bar, who stated merely that “fifty dollars is a moderate fee for dissolving the injunction in this suit.”

The judgment dissolved the injunction with fifty dollars special damages, and ten per cent per annum interest on the amount of the judgments enjoined, for the reason, as stated in the judgment, “the law and evidence being in favor of defendant.”

At the December term this injunction suit appeared on the docket; and counsel for defendant moved the court to strike it from the docket, as having been placed there in error, for the reason that the judgment dissolving the injunction disposed of the whole case.

The judgment as entered on this motion is, “that the matters in this suit were all tried and adjudicated upon on the trial of the motion to dissolve the injunction, and that this suit be now stricken from the docket.”

The appeal is taken from this judgment; and we can not inquire into any other or former judgment.

Appellees have moved to dismiss on the ground that it does not appear that the amount or value in dispute exceeds $500; and it is admitted by counsel for appellant, as an examination of the transcript proves, that there is nothing to show this material fact. The counsel thinks we ought to infer sufficient value from the fact that there were two judgments of the district court'enjoined. It is possible that each of these judgments may have been reduced by partial payments, so that the aggregate amount due on both would be less .than $500. Or, the amount sued for, in each case, may have been reduced by compensation, or reconvention, so that the amount of both judgments as rendered may have been less than $500. Where the jurisdiction of a court is limited, as the jurisdiction of this court, the jurisdiction must appear of record: and we should not feel at liberty to assume jurisdiction by inference. Where the value does not appear otherwise, it may be shown by affidavit; but it must be made to appear, satisfactorily, in any case where the jurisdiction of this court depends upon the amount, that it exceeds the sum $500.

The injunction asked for in this case was not for any defect or cause of nullity of the judgments which the sheriff was about to execute; and the prayer of the petition was “ that a writ of injunction issue, restraining said sale (the sale which the sheriff was about to make under execution); and that on trial the seizure be decreed illegal, and set aside and the injunction made perpetual.” It is evident, therefore, that the dissolution of the injunction with damages left nothing more to be decided in the injunction suit. The order of the court striking it from the docket caused no injury or prejudice whatsoever to appellant. If he has any cause of complaint, it is that his injunction was erroneously dissolved with damages; and he has not seen fit to appeal from that judgment.

The appeal is fatally defective on two grounds:

1. Because the amount or value in dispute is not made to appear in any manner:

2. Because the judgment appealed from, the order of the court striking the case from the docket, caused no injury or prejudice to appellant, since there remained nothing more to be tried, and nothing upon which judicial action, in that case, could have been taken.

It is not irreparable injury, nor is it any sort of injury, to either party for the judge to order a suit to be stricken from the docket six months after it has been finally disposed of by the judgment of the court.

The appeal is therefore dismissed with costs.


source: Caselaw Access Project

author: Egan, J. Manning, C. J. Egan, J.

license: Public Domain

text:
    No. 6732.
    Charles A. Harris vs. Antoine Dubuclet, State Treasurer.
    The Legislature is empowered to form a contract, to pay an 'annual rent for buildings necessary for the use of the State; and its power to buy a State-House is equally unquestionable, if the debt thereby created does not exceed the constitutional limitation.
    A Legislative act, which, after appropriating a certain sum for a certain legal purpose, payable in annual installments, provides that " out of all State taxes collected, one half of one mill on every dollar shall be set apart of the general funds as afund to meet" said sum, does not violate the third amendment of the State constitution, devoting the revenues of each year, (exeeptsurplus revenues) to tho expenses of that year. The off >ct of such an act is merely to diminish the general-fund tax by the amount it levies for the purpose contemplated in the statute.
    APPEAL from the Sixth District Court, parish of Orleans. Bightor, L

      A. L. Tucker, Anatole A. Ker, Breaux, Fenner & Hall, and Thomas J. Semines for plaintiff and appellee.

      H. N. Ogden, Attorney General, for defendant and appellant.
   The opinion of the court on the original hearing was delivered by Egan, J\, and on the rehearing by Manning, C. J.

Egan, J.

This is a mandamus suit, brought against the State Treasurer to compel him to pay out of the moneys in the State Treasury, to the credit of “ State-House Eund,” the nine certain warrants held by plaintiff, and filed with and made part of his petition, amounting to three thousand three hundred dollars, drawn by the Auditor of Public Accounts on the State Treasurer, and payable out of the State-House fund, appropriated fon the purchase of a State House by act number six of the Legislature in 1875, in favor of R. E. Rivers, Treasurer of the New Orleans National Building Association, and by him indorsed. These warrants cover a part of the purchase price of the St. Louis Hotel property. Sec. three of act number six of the General Assembly of 1875, providing for the purchase by the State of the St. Louis' Hotel property for a State House, appropriates the sum of $250,000 for the payment of said property.

Section four of the same act provides, “ That out of all the State taxes •collected one half of one mill on every dollar shall be set apart of the general funds by the Auditor and Treasurer, as a fund to meet the purchase price of said property; and the said funds, or so much thereof as shall have been collected, shall be paid to the vendors, at the times to be designated in the act of sale; provided said payments shall be made at least twice in each year.”

The answer of the Treasurer avers, that the contract out of which relator’s pretended action arises violates the third constitutional amendment proposed by the third Legislature in article number four of the second session of 1874, and adopted the same year,” which reads as follows : “ The revenue of each year, derived from taxation upon real, personal, and mixed property, or from licenses, shall be devoted solely to the expenses of said year, for which it shall be raised, excepting any surplus remain, which shall be directed to sinking the public debt. -All appro - priations and claims in excess of revenue shall be null and void, and the State shall in no manner provide for their payment.” It would seem that this constitutional amendment fixes at once and beyond the reach of legislative will the destination of the entire revenue derived from all sources of taxation for each successive year, first, to the payment of the expenses of the year for which the revenue shall be raised, and, second, if there shall be a surplus, that it shall be devoted to the creation of a sinking fund to meet the public debt. This would seem to provide for the exhaustion for the purposes named of the entire revenue for each year, to the exclusion of all other uses and purposes. But the amendment, after thus fixing 'absolutely and beyond legislative control the destination of the entire revenue for each year, goes further and provides that, “ all appropriation and claims in excess of revenue shall be null and void, and the State shall in no manner provide for their payment.” Thus in one breath the entire revenue is exhausted for the uses and purposes named, and in the next it is provided that all appropriations and claims, •in other words, all debts, contracts, or obligations, in excess of revenue shall be null and void, and the State is absolutely and positively prohibited from providing fen' their payment in any manner.

Whatever the motives which prompted this amendment to the Constitution, which followed immediately a period of the most profligate-expenditure of the public moneys which the State has ever witnessed, its ratification and adoption by the people sufficiently indicates that it was their will and purpose to put a curb upon this condition of things, and upon any disposition on the part of future Legislatures to indulge-in their repetition for any purpose whatever other than those named in the amendment itself. This récord does not disclose either the particular years from the revenue of which the four or five thousand dollars-shown to be in the State treasury to the credit of the State-House fund was derived; manifestly, however, it must have been since 1875, as the- ' -act of sale in the record dates the purchase of the St. Louis Hotel for a-State House on the tenth of March, 1875. Neither are we informed by the record of the amount of expenses of each or all of said years, nor whether they equal or exceed the revenues of the year, or leave any surplus after; but as, in any event, we have seen that the entire revenue-of each and, consequently, of every year is devoted by the constitutional amendment in question to other uses and objects, there was no room or place for the appropriation of “ one half of one mill on every dollar of all State taxes collected ” for any or all of the years since, “ to-meet the purchase price of said property,” and such appropriation attempted by article number six of 1875, being in violation of the Constitution, was and is null and void. Such appropriation was neither for the expenses of any year within the language and meaning of the amendment, nor was it the destination of any excess of revenue over such yearly expenses toward the creation of a sinking fund, or to sinking the public debt, within the language or meaning of the amendment, which is set up by the Treasurer as a reason for not paying the warrants held by the relator. The mere -fact that there is in the treasury a fund called “ the State-House fund,” and which has been erroneously reserved' or set apart heretofore as such, can not entitle the relator to take that-fund, or any part of it, from the treasury for a purpose prohibited by the amendment to the Constitution.

It is not pretended that any additional or special tax was levied or collected to pay for the State House, but only that a certain part or proportion of all State taxes should be set apart out of the general funds,”1 and not out of or as a special fund created or collected by law for this-specific purpose. This act is also violative of article 11-1 of the Constitution. It is, however, argued that the State can not retain, the property and refuse to pay the price. That may be very true, but that is not the question which we are called upon to determine in the present case. What we are called upon to determine is whether we-shall by our order compel the State Treasurer to pay the bonds of the relator issued for the purchase of the State House out of funds in his hands which are by the Constitution itself devoted to other uses, and which were never collected or received for the payment of the debt incurred in the purchase even if lawfully made.

It is therefore ordered, adjudged, and decreed that the judgment of the court below be avoided and reversed, and that the mandamus sued out by the relator be discharged at his cost in both courts.

On Rehearing.

Manning, C. J.

It appears from the recitals in the act of sale, that at the time the State became the purchaser of the St. Louis Hotel property, she occupied towards her vendor the position of lessee, under a lease executed 17th April,.1874, by virtue of which, the Building Association had leased to the State the property in question, for a period of nineteen years at an annual rent of $50,000.

The act of sale declares, that this recorded lease which operated as an incumbrance on the property, was extinguished by confusion, the lessee having become absolute owner of the leased premises. It also appears, that at the date of the act of sale, the property, in question was leased in part to other pe'rsons than the State, and by the purchase she was subrogated to the rights of the lessor as to these lessees. It also appears that the State occupied the property as a State House from April 17, 1874, the date of the lease, until March 10, 1875, the date of the purchase.

The lease for nineteen years was made under authority of the Act of March 16, 1874, which appropriated $38,000 to pay the rent of all public buildings, and authorized the-Governor and two other officers to lease in the name of the State “such public building or buildings for the various executive departments, and for the General Assembly, for an annual rental not to exceed $50,000, and for a period not to exceed twenty years,” and exempted the buildings from the obligation to pay State and parish taxes while occupied as a State House.

On April 3,1875 the General Assembly appropriated $7,000 to pay the rent of the State House for the first two months of that year. The property had been purchased March 10th.

It must be observed that the lease for nineteen years at an annual rental of $50,000, was authorized in March 1874, and was executed on the 17th. of the following month, while the Constitutional amendment was not adopted, and therefore did not become operative, until nearly a year afterward. The power of the legislature to make an agreement to pay an annual rent for the buildings necessary for the use of the State can not be doubted. Its power to do so at the time this lease was executed is unquestionable, and its power to buy a State House is equally unquestionable, if the debt thereby created does not exceed the constitutional limitation. There is no pretence that this purchase had that effect.

Our former decision was controlled by the application of the constitutional principle, as embodied in the amendment, that the revenues of each year must be applied to the expenses of the year, and that the State should in no manner provide for the payment of appropriations or claims in excess of that revenue.

The Act of 1875, after appropriating two hundred and fifty thousand dollars for the purchase of the property, enacts that “ out of all State taxes collected, one half of one mill on every dollar shall be set apart of the general funds as a fund to meet ” this purchase price, and this fund shall be paid to the vendors at the time stipulated in the act of sale, at least twice in each year. Acts, p. 28. The effect of this was to diminish the general-fund tax to 3£ mills, and to levy £ mill for the State-House purchase. It is not disputed that the Legislature could reduce the general-fund tax to 3£ mills, and levy a tax of £ mill for the State House, and this is what it did in effect, though not in those words.

Upon a closer examination of the terms of this enactment, we construe it to be, not an appropriation of $250,000 made in that year for an expense of that year, but a designation of that sum for a particular purpose and a dedication of it to a particular use, to be realized and applied through several years at the times specified in the act of purchase. It is not therefore amenable to the objection of being violative of the Constitutional inhibition. Instead of continuing to pay the large rental, stipulated in the lease, the State changed her obligation, with the assent of the other interested parties, into an agreement to pay another and smaller sum in annual instalments, and appropriates such sum as one half of one mill on the dollar will produce in each year for that payment. This is devoting the revenues of each year to the payment of the expenses of the year.

It is therefore ordered and adjudged that our former decree is set aside, and annulled, and that the judgment of the lower court is affirmed with costs.

Egan, J.

I adhere to the views expressed in the original opinion prepared by me as the organ of the court in this case. In my opinion the moment a general-fund tax is levied and collected the destination of every dollar of it is fixed absolutely and beyond legislative control by the third constitutional amendment. The attempt, then, to divert a part of it for the purchase of a State House or any other purpose,- however wise or proper in itself, involves a clear infraction of the Constitution, and so can not be considered as making that provision for its payment which the Constitution, article 111, requires when a debt exceeding §100,000 is incurred, because a pro vision, in the teeth of the Constitution is no provision at all. What the Constitution contemplates and requires is a legal and adequate provision.

Again, it is provided in the Constitution that the provision made to meet a debt at the time of its creation shall be irrepealable until it is paid, both principal and interest. Now who can or will for a moment pretend that the general revenue law of the State, passed some years before and not when this purchase was made and debt attempted to be incurred — by virtue of which alone the general-fund tax was levied out of which the provision for this purchase was made by the. act of the Legislature authorizing it — possesses that character of irrepealability contemplated by the Constitution! What was to prevent the Legislature from repealing it at any moment, and has it not in fact done so in the exercise of its absolute and unquestioned right ? What then becomes of that important feature of the act? It will not do to say that the new revenue law makes equally good provision for the collection of a general-fund tax. That is not the question. Suppose, for instance, the Legislature had repealed the revenue law, passed and in existence before this purchase, without enacting any other in its stead, or should to-morrow do the same thing with the act now in existence, which was passed since this purchase, how could its right to do so be questioned; and how, under the Constitution, could the relators be heard to complain ? If they did so, the answer would be immediate : “ The act repealed was not passed when your debt was incurred, nor to make provision for the payment of your debt; and we had and have, at any time, a perfect right to repeal it.”

It is, however, argued that because the price of the State House is payable in installments, that each installment is a part of the expenses of the year in which it falls due, and it is therefore competent for the Legislature to- appropriate to its payment so much as may be necessary out of the revenues of that year. If this be so, what is to prevent the purchase of a State House, or any other public property, for $2,500,000, instead of §250,000, and the absorption, to meet it, of all the revenues of the State in preference to, and disregard of, all antecedent creditors and debts, provided only the Legislature will resort to the device of making the purchase price payable in installments maturing each successive year until the whole be paid ? If this can be dqne, what is to prevent the State from embarking on a new career of acquisition of public property, the price of which shall absorb every available dollar of its revenue for years to ccme, and when its creditors, foreign or domestic, make complaint that their debts remain, and are likely to remain unpaid, by reason of the sinking fund, designed to be created by obedience to the provisions of the third constitutional amendment, being all absorbed by this new device, this new process of the State growing rich in newly acquired property, while its hungry and-starved creditors are turned away empty handed, and must be content with being told “ This is no debt which we have incurred in making these new purchases the payment of which is preferred to yours. It is only an expense of each successive year, legitimately payable out of its revenues even though it absorb them all and leave none for you or the payment of your debt.” Does not this exhibit the fallacy of the argument which leads to such conclusions?

The truth is, that it will require only a very cursory review of the legislation of the State, and of the Constitution itself, to show that the terms “ debt ” and “ exptenses ” as there used are no more convertible and synonymous than are the same terms when applied to any private person, in regard to whom, or by whom, what is more common than to hear it said, “My expenses are so heavy they leave nothing for the payment of my debts; ” or, “ My annual expenses are so great that I have nothing left to pay my debts at the end of the year.” Look at any Auditor’s or Treasurer’s report, at any appropriation bill, at aDy bill to make provision for the conversion or payment of any debt of the State, and the distinction will always appear. The very language of the third amendment to the Constitution itself makes and marks the distinction between debt and expenses, in that it devotes the revenues of each year in excess of the expenses of that year to sinking the public debt, without distinction also as to what debt, so it be a public debt. Art. Ill of the Constitution, which limits and controls the General Assembly in contracting a debt exceeding $100,000, and the various amendments and provisions of law for the funding, limiting, and reduction of the public debt, all mark the distinction with equal clearness. Indeed, it would seem almost useless to discuss the distinction, were it not that able and ingenious counsel have, in their efforts to sustain the claim of the relators, endeavored to induce the court to disregard it, and to consider the debt incurred in the purchase of the State House as so many items of expense of the years in which the several installments are to be paid by the terms of the contract. It can no more be said that the debt incurred in the purchase is an expense of the years in which the installments fall due, than of any other year in which they may be paid, or of all future time if unpaid.

There are two other considerations, both serious: one affecting the interest of the relator, and the other that of the State, which show the fallacy of the position assumed on behalf of the former. If relator’s claim be treated and regarded not as debt but as an expense of the years in which installments fall due, he would be wholly remediless, and could never be paid, according to the terms and prohibitions of the latter-part of the third amendment, in case the revenues of-those years fall short of the expenses ; while, on the other hand, if the claim be treated as an expense of those years it would be equally entitled to payment out of the revenues of the same with those ordinary expenses necessary to the very existence and operations of the government of the State, the wheels of which might be stopped in order that the relator’s .debt might be paid in a manner different from any other. The considerations of policy and of interest in the State in the maintenance of the purchase can not control or alter the principles of law applicable to this ease.

I adhere to the original opinion in this case, and dissent from the judgment now rendered.


author: Manning, C. J.

text:
    No. 7094.
    Succession of John Durkin. Opposition of Mortgage Creditors.
    Wliei-e a necessitous widow dies, without having received her portion oi $1000, under the act.oi 1852, her major heirs can not claim that portion from the husband’s succession. Only her children, and her remoter descendants who ar eminors and necessitous, are entitled to claim such portion.
    A PPEAL from the Second District Court, parish of Orleans. J. Tissot,

      Charles Luzenberg for the succession.

      Charles E. Schmidt for James McCracken, appellee.

      H. G. Morgan and W. H. Hunt for opponents and appellants.
   The opinion of the court was delivered by

Manning, C. J.

The sale of John Durkin’s property, which consisted only of certain lots in this city, realized, with a small sum for rents, seventeen hundred and forty dollars. The privileged claims, which by the way are ranked as ordinary ’ on the tableau of debts, amount to $>394.50, and with taxes, and some debts, really ordinary claims, and a mortgage debt,- swell the total indebtedness to near two thousand dollars, of which the mortgage alone is S1230 principal. The succession is therefore insolvent.

Durkin left a widow in necessitous circumstances, and four children, all majors. Very shortly after his death, his widow also died. The tableau of distribution,, filed by his-administrator, proposed that out of the assets, the privileged creditors should be first paid, and the residue should be applied to the extinction pro tanto of the mortgage debt. The major heirs opposed this distribution, alleging that their mother, being a widow in necessitous circumstances at the moment of their father’s death, became thereby eo instanü entitled to one thousand dollars, as the widow’s portion under the act of 1852, which upon her death shortly thereafter descended to her heirs.

The act of 1852 was not only carelessly and obscurely drawn. It was misnamed in its title, as providing a “ homestead.” A more fitting and descriptive designation is an act providing the necessitous widow’s portion of her husband’s estate.

We have before said, the right of a widow and minor children of a decedent to this Portion vests in them at the moment of his death. White’s Sue. 29 Annual, 702. It is now contended that having thus vested in the widow, the right to this portion became so absolute that her children inherited it from her. Thus a new question is presented, viz whether the major heirs of the necessitous widow, who has not received her portion under the act of 1852, can claim it as her heirs from the husband’s succession. It is obvious that they can not.

The argument of counsel has confounded the rights, secured to necessitous minor children by that act, with the supposed rights of inheritance of the widow’s children. These opponents are majors. The law is; — whenever the widow or minor children of a deceased person shall be left in necessitous circumstances * * the widow or the legal representatives of the children shall be entitled to demand and receive from the succession of their deceased father or husband * * * one thousand dollars * * and the surviving widow shall have and enjoy the usufruct of the money * * * after-wards to vest in and belong to the children or other descendants of the deceased.

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

Much stress is laid in the argument upon the fact that the widow never exercised, nor attempted to exercise, the right conferred by the act, and that in consequence, it expired with her. This argument was probably suggested by the circumstance that the phraseology of the law has been supposed to have some special significance when it uses the words, shall be entitled to receive, instead of shall receive. Robertson’s case, 2'8 Annual, 832.

We do not rest our construction of the act upon so narrow a basis, nor do we think the widow’s omission to claim her portion a matter of any consequence. Her omission has no effect beyond the personal one of non-enjoyment of the bounty. It can not prejudice the rights of others, but as we have seen, the only other persons who are participators w}th her of the bounty are the minor children, and her right is only usufructuary, and expires with her life.

The true meaning of the act is best discovered by inquiring what purpose the legislature had in view in passing it. Unmistakably, it was to give to the necessitous widow some immediate help from her husband’s estate, the enjoyment of which lasted during her widowhood, and on its termination, the bounty thus given was to vest, not in the deceased’s heirs of every description, but only in his descendants, who should be minors.

In the present case the opponents do not claim this portion of John Durkin’s estate as his heirs, or children, but their pretensions are manifestly based on the idea that thus much of his estate was severed from it, and became the property of Helen Durkin at the moment of his death, and she now being also dead, that they have succeeded to her right by inheritance.

Here again the intent of the act furnishes the clue to its proper understanding. The bounty was designed to accomplish a particular purpose, i. e. the relief of the widow’s necessities primarily, and as a secondary and remoter result, a beneficence to the minor children. No one else is eared for. ‘Whenever the widow, or minor children, of a deceased person are left in necessitous circumstances,’ are the only two contingencies, upon the happening of which, the law permits this specific sum to be taken away from that fund it had previously consecrated to-a purpose, equally sacred with that of taking care of wife and children, viz the payment of one’s debts.

The widow’s portion was not used nor consumed by her. There were no minor children, or minor descendants of any kind, who would have been entitled to it at the widow’s death. It therefore remained in the succession of the deceased husband, to be appropriated to the payment of his, and his succession’s debts, and so the lower court adjudged.

Judgment affirmed.


text:
    No. 7120.
    James Wood to the Court.
    The power of this court to issue writs of habeas corpus being confined to eases when we may have appellate jurisdiction, although no appeal be actually pending, it follows that we can not issue such a writ in a case where no fine has been imposed, and the solo proceeding in which the writ is asked, is a sentence of the lower court condemning the petitioner to imprisonment for contempt.
    A sentence of the lower court sending a party to prison for some act of contempt committed during the trial of a case, is no part of the case, and hence the amount in dispute in the case has no bearing oil the question of the jurisdiction of this court as to the sentence of the lower court in the matter of the contempt. Nor can an allegation that the imprisonment of the petitioner will damage him to an amount abovo the appealable sum, give this court jurisdiction.
    ^PPLICATION for a writ of Habeas Corpus.

      J. J. Foley for petitioner.
   The opinion of the court was delivered by

Manning, C. J.

The petitioner alleges that he is in prison under an unlawful sentence of the judge of the fourth District court of this city, condemning him to imprisonment for ten days for a contempt of court, and applies to this court in full Bench for the writ of habeas corpus.

It appears that a suit had been tried wherein Wood, and another person of the same name, were defendants, and the jury had left the court room to deliberate, when Wood assaulted Benedict, the lawyer of his adversary in the1 suit, and struck him with a stick. This was not done in the court room, in the immediate presence of the judge, but in the court building and in a, clerk’s office, the court being however in session. The judge sent Wood to jail for ten days, and very properly.

Our power to issue writs of habeas corpus is confined to “cases when we may have appellate jurisdiction.” art. 77 Const. It is very clear that we have not, and can not have appellate jurisdiction here. There is no fine imposed, and the sole proceeding or case in which the writ is asked, is that of the sentence, or order of imprisonment. It was a summary proceeding of the court, directed against the violator of its good order and decorum, the object of which was to vindicate its sacredness.

It seems to have been supposed that jurisdiction could be conferred upon us, by alleging that the party imprisoned is damaged more than five hundred dollars by his detention from his business and family, and yet again, by alleging that the “sum involved in the suit of Golding v. Wood in which the contempt was committed” is over five hundred dollars.

The contempt of court was not committed in a case. It is of no consequence whether a case was on trial, or what case. The contempt has no connection with the case of Golding vj Wood, except in so far as it may have been committed because of something said on that trial. The commitment is headed by the clerk with the name of that case, which is a mistake, and certainly does not make the contempt case a part of -the other. The amount involved in that case is not a matter having any connection with this. It certainly can not give us jurisdiction, nor can an allegation that the imprisonment of the petitioner will damage him in an amount above the appealable sum for the jurisdiction of this court to attach.

It is not essential to give us power to issue this writ, that we should have jurisdiction by an appeal actually pending, but the matter must be such that this court may have ultimate jurisdiction in the event that the proceedings of the lower court reach a stage when an appeal would lie.

The proceedings in the lower court are complete. There is nothing more for the court to do, and nothing it has done gives us jurisdiction.

By the court; — The application lor the writ of habeas corpus is refused.


author: DeBlanc, J.

text:
    No. 6986.
    B. W. Sewell vs. Chas. McVay, Executor. McGhee, Snowdon & Violet, Intervenors.
    A plea o£ prescription filed by a defendant impliedly admits the plaintiff’s ownership of the note sued on.
    Prescription does not run against a debt due by the husband to the wife, during the marriage.
    Prescription does not begin to run against a debt due by the father and natural1 tutor to his children, until his death, or their majority.
    Prescription does not run against a debt due by a father’s succession to his minor children, during their minority.
    A PBEAL from the Fifth J udiciai District Court, parish of East Ee-ix liciana. Brame, special judge.

      S. A. Moore and J. D. Wedge for plaintiff and appellant.

      Kennard, Howe & Prentiss, D. C. Hardee, and Kernan & Lyons for intervenors and appellees.
   The opinion of the court was delivered by

DeBlanc, J.

On the 30th of January 1861, Erank J. Haynes appeared before a notary public of the parish of East Eeliciana, acknowledged that he was indebted unto Joseph B. Gribble in the sum of sixty-three hundred and thirty dollars, and — to represent that indebtedness — subscribed and delivered to his' acknowledged creditor six notes drawn to liis own order and by him endorsed, the payment of which he secured by a conventional mortgage recorded in March 1861 and re-inscribed in March 1873. Mrs. Haynes intervened in said act, and — by her renunciation — gave to that mortgage precedence over whatever rights she herself had on the property hypothecated by her husband.

On the 13th of February 1866, Mrs. Haynes obtained against her husband a judgment for $4302.50, and — from that date — resumed the administration of her separate estate. On the 24th of November 1866, she became the owner — by purchase made for her and at the request of her husband — of one of the six notes delivered by him to Joseph B. Gribble, and which matured on the-23d of January 1862.

Mrs. Haynes died on the 28th of November 1871, leaving three children, who remained under the tutorship of their father until his death, on the 19th of March 1874. Bennett W. Sewell was appointed as tutor of said minors on the 8th of April 1876 — and, on the 10th, two days after his appointment, he proceeded on the note acquired by Mrs. Haynes on the 24th of November 1866, and — as tutor — obtained an order commanding the seizure and sale of the property mortgaged to secure the payment of said note.

In accordance with that order, said property was seized by the sheriff, but the sale of the same was enjoined by Charles MeVay, as testamentary executor of Frank J. Haynes, on the ground that the note sued upon was barred by the prescription of five years and the mortgage about to be foreclosed perempted by that of ten years. McGhee, Snowdon and Violet, alleged creditors of Frank J. Haynes, intervened in the injunction suit, joined the executor, and — as the latter — rely, in their petition of intervention, on exclusively the prescription of five and ten years. On the trial, the intervenors offered in evidence their judgment against Haynes, a copy of which was to be furnished. It is not in the transcript and we are nut inlormed when and for what amount- it was rendered.

The defence presented in the brief filed in behalf of the executor and intervenors is too broad to rest on their pleadings. They contest— in argument — Mrs. Haynes’ title to the note sued upon: her title is recognized by a judgment of this court rendered on the 28th of March 1870, and — were it otherwise — their pleas of prescriptions which can be considered but as their answers, to the proceedings by the tutor to procure and maintain the order of seizure and sale, impliedly admit — as they do not deny — the alleged, uncontradicted and well established fact that — - by inheritance from their mother — the wards of plaintiff are the owners of the note sued upon.

7 R. R. 467; 9 R. R. 518.

The only question to be decided and the only one raised in the pleadings is: Were said note and mortgage barred by the invoked prescriptions ? As to the mortgage, it has or at least appears to have preserved its rank, inasmuch as no other mortgage bearing on the property it affects, was recorded between its inscription in 1861 and its re-inseription in 1873. Its fate is — therefore—linked to and depends upon that of the note. As principal and accessory, they must stand or fall together.

Was the note prescribed on-the 10th of April 1876, when the notice of seizure and sale was served on McYay, as testamentary executor? It became due on the 23d of January 1862, during the war; the communications remained opened between the City of New Orleans' — the residence of Gribble, then the holder of said note — and the parish of East Feliciana — the residence of his debtor, until the 2d of May 1862 — three months and nine days. From that time until at least the 4th of May 1865, all communications were effectively interrupted between the City and the other sections of the State. From that date — when they were re-opened, to the 24th of November 1866, when Mrs. Haynes acquired her husband’s note, there lapsed one year, 6 months and 20 days. Whilst Gribble retained said note as Haynes’ creditor and up to the time when he purchased it for his debtor’s wife, there were two intervals of altogether one year and ten months during which he could have brought suit on the same.

This note — after its purchase in the name of and for the benefit of Mrs. Haynes, passed in the possession of the agent of Mrs. Alice O’Donnell, who — in February 1868 — filed an action against Haynes to recover its amount. In his answer to said action, he declared that the note sued upon had been bought and paid for by his wife, who intervened in that suit and also claimed said note as belonging to her. Her intervention was dismissed, her demand denied in the lower court. She appealed, and — by a decree of this court — was, eight years ago, recognized as the owner of the disputed note. The judicial assertion of her ownership by her husband, is evidently an acknowledgment by him of Ms indebtedness to her.

Husbands and wives can not prescribe against each other. That rule is clear, absolute, rational: it covers and protects — not as contended —only those obligations which result from the marital relation, but all others. As regards the actions specified in the 3540th article of the Code, the prescription of five years which runs against minors, interdicted persons and persons residing out of the State, is not applicable to a note due by the husband to the wife. Not being included in that sweeping clause, she is excepted from its effect, and that exception confirms the rule “that the spouses can not prescribe against each other” —and why ?

“II serait contraire á la nature de la société du mariage, que les droits de chacun ne fussent pas — l’un a l’égard de l’autre, respectes et conserves. Un époux prescrivant contre son propre conjoint, un époux oblige d’ager contre son conjoint pour interrompre une prescription, sont des choses qui rópugnent et que la loi ne pouvait certes pas permettre. La prescription est done suspendre ici pour toute la durée du mariage; qu’il y ait séparation de biens ou méme séparation de corps, peu importe, tant que subsiste la qualitó d’époux la prescription est impossible.

Marcadé de la prescription, p. 163. R. C. C. 3523.

At the date of Mrs. Haynes’ death, that note passed to her minor-children, and — from that date and as to their father and tutor — ceased to be the evidence of a claim actually demandable. Its maturity and the date of its payment were then postponed by law until their majority or their father’s death. He could not have sued himself, and had he done so and recovered the amount of the note, he would have received as tutor whatever he would have collected from and paid to himself as a debtor.

“La prescription est suspendue entre tout administrateur legal du patrimoine d’une personne, et cette personne, entre le pere administrateur legal et son enfant, entre le tuteur d’un mineur et son pupille, et quant a tous les droits — personnels ou réels, de l’enfant ou de pupille.

Marcadé, de la prescription, p. 165.

When — on the 19th of March 1874 — Haynes died, his children were under age, and — as the acceptance of his succession must be considered as having been made for them with benefit of inventory, by mere operation of law, from, that date and as to the claim which they have against said succession, no prescription did or could run against them. The Code so provides.

R. O. C. art. 977, 3526.

The note sued upon matured on the 23d of January 1862 — was purchased by and became the property of Mrs. Haynes on the 24th of November 1866, four years and ten months after its maturity; and — from that time until two days before the institution of this suit, the then incomplete prescription was continually suspended.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from is reversed, avoided and annulled; and, proceeding to render such judgment as should have been rendered by the lower court.

It is further ordered that the intervention filed in this case by McGhee, Snowdon and Yiolet is rejected, and that — as tutor of the children born of the marriage of Frank J. Haynes and Maggie Atkinson— Bennett W. Sewell, the plaintiff in this case, have judgment against and recover from the defendant, the succession of the said Frank J. Haynes, herein represented by Charles McYay, as testamentary executor, the sum of twenty-five hundred and thirty dollars, with interest thereon at the rate of eight per cent per annum from the (23d) twenty-third of January (1862) eighteen hundred and sixty-two.

It is further ordered, adjudged and decreed that the property mortgaged to secure the payment of the note sued upon, and described in plaintiffs petition, be sold — as the law prescribes — to satisfy this judgment; and that defendant and intervenors pay the costs incurred in "both courts.


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

text:
    No. 6934.
    John H. Catherwood & Co. vs. Wm. H. Shepard.
    If the last of the ten days allowed a defendant for answering falls upon a dies non, the whole of the next day is given to him to file his answer; and any judgment of default taken against him before the expiration of that day, is premature.
    ^PPEAL from the Fifth District Court, parish of Orleans. Rogers,

      Hornor & Benedict and F. W. Baker for plaintiff and appellee.

      Singleton & Browne for defendant and appellant.
   The opinion of the court was delivered by

Manning, C. J.

The service of process was made on the defendant on Dec. 22, 1877. Ten days were allowed to answer. The default was entered on January 2d following. From the judgment confirming that default, this appeal is taken.

Neither the day when the citation was served, nor the day when the delay expires, are counted as part of the ten. Code of Practice, art. 180. The first day of January was. the last of the ten days, and a default on •the second would have been well taken, but for the fact that the first of January is a legal holiday, upon which no judicial proceeding could be 'had.

In all cases where delay is given, either to do something, or to answer, neither the day of serving the notice, nor that on which the act is to be done, or the answer to be filed, are counted as part of the delay. Code of Practice, art. 318. But if the last day of the time, allowed for the performance of any judicial act, falls upon a dies non, the whole of the next day is allowed for the performance of the act. Fowler v. Smith, 1 Rob. 448. Garland v. Holmes, 12 Rob. 421. In this last case, the court say, the ten days allowed for a suspensive appeal expired on the first of January, which being dies non jnridicus, the whole of the next day was allowed.

The mistake in counting, made by the plaintiff, was probably caused by his supposition that the delay was for his benefit and by considering' that as he was the party to take or move for the default — and as ten clear days had elapsed, and the time within which he was prohibited from acting had elapsed — there was no legal obstacle to his moving on the eleventh day.

But it is from the other standpoint, the question of right must be regarded. The delay is accorded to the defendant to answer. It is he that is entitled to ten clear days to file his answer, and he is entitled to the last moment of the last day. He could not file it on the last óf the ten days, because that was the first of January, and therefore he had the whole of the second to file it. State ex rel. Mercier v. Judge, 29 Annual, 223. The default could not legally be taken until the third of January, and having been taken on the second, was prematurely taken. Therefore

It is ordered and decreed, that the judgment of the lower court is-avoided and reversed, and that this cause is remanded thereto for a new default to be taken and other proceedings to be had according to law,, the plaintiffs to pay all costs of, and after, default in the lower court,, and the costs of appeal.

' Concurring- Opinion.

Marr, J.

By the terms of the Code of Practice, defendant ivasrequired to answer “within ten days, to be counted from the time the citation has been served. * * * * In counting the ten days, neither the day when the citation has been served, nor the day when the delay expires, is included.” Articles 180, 318.

This means that ten clear days, excluding the day of the service of the citation, and the terminal day, are to be allowed to the defendant, before a default can be taken against him. The first day to be counted was the twenty-third -December; and the terminal day .was the first January, thus: 23 one, 24 two, 25 three, 26 four, 27 five, 28 six, 29 seven, 30 eight, 31 nine, 1 ten.

The same law that excludes the twenty-second of December, the-day on which the service was made, excludes the first of January, the-day on which the delay expired, and defendant had the whole of the next day, the second of January, in which to answer. The default, therefore, was premature; and the confirmation of it by final judgment was void.

Eor these reasons I .concur in the decree pronounced by the Chief Justice.


text:
    No. 6978.
    The State vs. William alias Bedford Burns.
    The addition of the words “ with capital punishment” to the verdict of a jury can not affect the verdict. The words are mere surplusage.
    Proof that a homicide was committed in any of the parishes of this State, is proof ' that it was committed within the State.
    The verdict of a jury in a murder ease will not be set aside on the ground that the court below refused to hear evidence to prove the desperate character of the deceased, when there is nothing in defendant’s bill of exception to indicate the nature of the evidence offered, except that the docoased was a man of desperate character, and nothing to show in what way that fact affected the prisoner’s conduct in the killing.
    APPEAL from the Eleventh Judicial District Court, parish of Jackson. Graham, J.

      Allen Barksdale, district attorney, for the State.

      E. E. Kidd for defendant and appellant.
   The opinion of the court was delivered by

Manning, C. J.

The prisoner was convicted of murder, and sentenced to death, the verdict of the jury being, ‘guilty with capital punishment.’

A new trial was moved on the grounds, that the verdict was contrary to the law and the evidence, and that it contained the addendum, ‘ with capital punishment.’

It was doubtless because our law gives to a jury the option of finding a simple verdict of guilty, or of qualifying it by the words, without capital punishment, that the jury in this case appended the words, ‘with capital punishment,’ which are surplusage, and only signify that their verdict was unqualified.

The prisoner offered on the trial to prove the ‘ desperate character’ of the person who was killed, which was denied, and further requested the court to charge, that proof that the homicide was committed in the parish of Jackson, was not proof that it was committed in the State of Louisiana, which was refused. The prisoner reserved bills in both instances.

A homicide, committed in any part of the territory of a State, is committed necessarily in that State. The greater includes the less, and courts take cognisance of the territorial divisions and subdivisions of the State, in which they exercise their functions, when these divisions are made by public authority.

The ruling of the court, excluding evidence of the character of the person on whom the homicide was committed, is sustained by the weight of authority. State v. Chandler, 5 Annual, 489. While, this is the general rule, we only announce an already recognized principle in saying, that there are exceptions to it. D’Angelo’s case, 9 Annual, 46. In a subsequent case, the evidence was excluded because there was nothing to shew it was brought within any exception to the general rule. State v. Brien, 10 Annual, 453.

And for the same reason it must be excluded in.this case. Whatever may be said of the reasonableness of admitting evidence of the violent or malignant character of a person who has been killed, when such violence or malignancy and the knowledge of it by the accused, constitute the justification of the homicide, it has never been doubted that the record must shew a state of facts to warrant its admission. The bill by the prisoner merely states that he “ offered to prove the desperate character of the deceased, to which the district attorney objected, and the objection was sustained for the following reasons, etc.”

In Brien’s case above cited, the court say, “ we find the evidence, under the facts stated in the bill, to be open to all the objections to which such evidence is generally liable.” There are no facts stated in the bill here. There is nothing in the bill to indicate the nature of the evidence offered, except that the deceased was a man of desperate character, and nothing whatever to indicate the connection of that fact with the defence of the prisoner, or in what way the existence of such a fact affected or controlled the prisoner’s conduct in the killing. The rejection of evidence of the bad character of the slain person is not error where the record does not shew a state of facts to warrant its admission. Queensberry v. State, 3 Stew. 308.

There is no error in the judgment of the lower court, and it is affirmed.


text:
    No. 6924.
    George M. Klein vs. Mrs. Buckner et al.
    The maker of a promissory note indorsed in blank, and acquired by the holder before its maturity, can not resist the payment of the note on the ground that the holder is not the real owner, unless ho alleges and shows that he has good defenses, or claims, against the real owner.
    An agent in whose hands a note has been placed for collection, may sue on it in his own name.
    APPEAL from the Thirteenth Judicial District Court, parish of Madison. Hough, J.

      E. D. & W. Farrar for plaintiff and appellant.

      Seale & Morrison for defendants and appellees.
   The opinion of the court was delivered by .

Marr, J.

This is an appeal, by the holder of a promissory note, from a judgment of nonsuit, in favor of the maker and the indorser.

The consideration of the note is fully proven, and the only question is as to the right of the holder, George M. Klein, to sue and recover in his own name.

The note is indorsed in blank by Brackett, the payee, and by Seale; and on the fifteenth November, 1875, the date of payment mentioned in it, Seale waived presentment and demand by writing on the back of the note, signed by him.

The judge assigned no reason for his judgment except that “the law and the evidence being in favor of defendants,” etc.

Interrogatories were propounded to George M. Klein, in answer to which he stated that he was Cashier of the Mississippi Valley Bank, a private copartnership composed of himself and four other persons: that the note sued on belongs to him individually in law: that when collected he will be accountable to his partners for their proportion; “but the legal title to the note is in me, and I owned the note at the time the suit was brought.”

It was proven that after the note was delivered to Brackett, signed by the maker, Mrs. Buckner, he asked Seale to indorse it, so that he might get the money on it; and it was also proven that soon after, probably on the same day, the bank of which Klein was cashier, discounted the note.

It is too well settled, it is too plain, as a legal proposition, to be questioned, that where a promissory note is indorsed in blank by the payee, suit may be brought on it, and payment enforced, in the name of any person, whomsoever, who is in possession. Of course, if the holder has stolen the note, or otherwise obtained it wrongfully, the real owner might claim it: or the defendant, having knowledge of the fact, might, if necessary for the protection of his own rights, allege that the holder was not entitled to recover, because of his wrongful possession; as, for instance, if the defendant has claims of defenses, as between himself and the real owner, he may allege that the holder, in whose name the suit is brought, is but the apparent owner, or that he sues for the benefit of the real owner.

In this case there is nothing set up, nothing suggested, which impairs, in the slightest degree, the right of plaintiff to sue for and recover the amount due on the note. Seale, in his amended answer, alleges that the note was held and owned by the bank, and “ that plaintiff as cashier, and in bis official capacity, and for said bank, holds said note, and that he is without any interest whatever in the subject matter of this suit.”

Here then we have a case in which the legal title would be in any holder by reason of the indorsements in blank; in which the holder is a partner in the bank alleged by defendants to be the real owner, and is, moreover, as cashier, the legal custodian o£ the proper securities belonging to the bank; and in whicli the defendants set up no right or claim or defense which they could not have urged, as effectually, in a suit on the note by Klein as they could have done if the suit had been brought in the name of the bank.

If the real owner of a note, which is indorsed in blank by the payee, and thereby made payable to bearer, places it in possession of any person whomsoever for collection, the right of such person to .sue and recover in his own name is as perfect as that of the real owner.

The judgment of the district court is avoided and reversed; and proceeding to render such judgment as that court should have rendered, it is now ordered, adjudged, and decreed that George M. Klein do have and recover of Mrs. Lucie Buckner and Jacob G. Seale, in solido, the sum of one thousand three hundred and forty-three dollars and thirteen cents ($1343 13), with interest at the rate of eight per cent per annum, from the fourteenth (14th) day of April, 1875, until paid, and costs in both courts.


text:
    No. 6905.
    The State vs. John P. Becker.
    The tender o£ a license tax. and its deposit in court by a defendant who is threatened by the State with seizure, and against whom an injunction has issued to restrain him from carrying on his business, are not such voluntary acts as will estop him from-pleading the unconstitutionality o£ the tax. and recovering the amount of the tax, if the same is adjudged to be illegal.
    The act of the Legislature imposing an additional license tax on saloon-keepers who give singing and dancing entertainments, in conjunction with their occupation of selling liquors, does not violate the constitutional requirement of equality and uniformity of taxation.
    Any change in the judgment of the lower court, desired by the appellee, must be asked for by him in a regular answer to the appeal. It is not sufficient to demand it merely in his brief.
    APPEAL from the Third District Court, parish of Orleans. Monroe, J.

      J. G. Egan, Assistant Attorney General, for plaintiff and appellee.

      B. B. Forman for defendant and appellant.
   The opinion of the court was delivered by

DeBlanc, J.

Defendant owns and conducts — in this City — a coffeehouse or beer saloon, in which theatrical plays, dancing and singing are performed — and, in accordance with paragraph 7 of the 1st Section of Act No. 14 of 1872, the Tax Collector notified him to call at his office and pay — as keeper of the aforesaid saloon and for last year — a license of $1000; or that — otherwise—he would proceed to recover it by seizure.

He refused to pay the license thus denlanded, and — on the 7th of September 1877, an injunction issued from the 3d District Court, prohibiting him to carry on his saloon. He was — besides—cited to appear before said court to show cause why he should not be condemned to pay to the State the amount of the license claimed. He appeared on the same day, alleged that he had tendered said, amount to the Collector, who had refused to accept it, renewed his tender in court, left it in the hands of the Clerk, and prayed to be discharged from further liability, on the ground that the action filed against him was premature.

The Judge on being informed of the tender and of its deposit, dissolved the injunction allowed against defendant, who now assails, as unconstitutional and as discriminating between his and similar callings, that part of act No. 14 which imposes different licenses on coffeehouses' and saloons where theatrical plays, dancing and singing are performed, those where no such performances are had, and on Bar-rooms in and out of steamboats.

The assistant Attorney General contends that defendant’s unrevoiced tender is a standing acknowledgment of his indebtedness to the 'State, and that' he can not be released from the payment of costs, by reason of his tender which is a confession of the debt, and be heard to deny and contest the liability that he has judicially confessed. Had defendant’s resistance to the payment of the license ceased when he made the tender, he would certainly have avoided all the costs of this litigation; but — Since his deposit with the Clerk — he has incessantly opposed the payment of the license, and — if he fails in his opposition — he must certainly bear the expenses of the appeal he has taken.

Do his tender and deposit preclude him from urging the unconstitutionality of the license imposed on his calling? They do not: the tender and deposit were made under circumstances which repel the presumption that they were voluntary: they were the direct and immediate consequence of a threatened seizure, of an injunction already allowed, the execution of which would have, at least, suspended defendant’s business.

“Taxes illegally assessed may always be recovered back, if the Collector understands from the payee that the tax is regarded as illegal, and that suit will be instituted to compel the refunding, and a payment made to release goods from seizure, or after threat of distress of goods, is a payment on compulsion.”

Cooley on Taxation, p. 568 and 569.

Does the act of 1872 imposing that license violate the 118th article of the State Constitution, which provides “ that taxation shall be equal and uniform ? ” Is the oalling of one who keeps a coffeehouse or beer saloon wherever theatrical plays, dancing and singing are performed free of charge, the same as the calling of one who keeps a barroom on a steamboat or elsewhere, without such performances ?

Defendant’s counsel contends that the music and dancing are mere accessories to the business of selling liquors by the drink, and that, as his client charges no entrance fee to his establishment, the tax imposed on his business is higher than that imposed on others engaged in a similar business, and — therefore—is neither equal nor uniform.

The Judge of the lower Court, considering that the injunction in behalf of the State was prematurely issued, dissolved it at its costs and rendered judgment against defendant for the amount of the license, and he has appealed.

The Legislature has, and not without reason, considered that there is a difference between the callings herein before referred to; for, it seems evident that, in such a saloon as that kept by defendant, the main attraction, the principal entertainment is the music, dancing and singing, the presence and performance of the dancers and singers. It is, in reality, a concert saloon with a barroom attached to it, or rather a combination of the two, and — though no admission fee is required to enter it — those who do so are induced and expected to spend, not merely in proportion to what they drink, but in proportion also to what they see and what they hear, and — we imagine — that expectation is seldom deceived. Many, who could take their drink at ten different places nearer than that where “ those accessories ” are to be found, pass those ten different places to go to the other. Were it not for the amount of the license — there would undoubtedly be an indiscriminate opening of such establishments in the City; and it has often been held that, in eases of that description, the object of the license is less to raise the revenue by taxation than to discourage the occupation.

Cooley on taxation, p. 410, and authorities cited by him.

“The constitutional requirement that taxation shall be equal and uniform throughout the State, does not inhibit the Legislature from, nor deprive it of the power of dividing the objects of taxation into classes, but it does command the law-making department of the government to impose the same burden on all who are in the same class.”

29th A. 284.

Defendant’s establishment belongs to a special class of coffeehouses and barrooms, and that part of the act of 1872 imposing upon it a license which differs in amount from those imposed on coffeehouses and barrooms which belong to another and a distinct class, does not conflict with any of the provisions of article 118 of the State Constitution.

It has escaped the attention of counsel to file an answer to the appeal, and ask a change of the judgment, as concerns that part of it which condemns plaintiff to pay the costs of the lower court. His printed argument alone refers to that fact, and — -as that argument is not the answer, or equivalent to the answer required by law, the change he thus seeks to obtain can not be allowed.

O. P. 592, 888; 5th A. 140, 38, 683; 1 A. 340.

It is, therefore, ordered and decreed that the judgment appealed from ié affirmed; the costs of the app.eál-to be paid by defendant.


text:
    No. 6884.
    Louis Bauer vs. Lochte & Cordes and Sheriff.
    The plaintiff is entitled to a suspensive appeal from a judgment dissolving an injunction with damages, on giving a bond for a sum exceeding by one half the amount of the judgment for damages.
    The surety on an injunction bond who has, in the decree dissolving the injunction, been condemned in damages in solido with his principal, can not be surety on the bond of the appeal from the decree.
    ^PPEAL from the Second Judicial District Court. Pardee, J.

      N. Commandeur for plaintiff and appellant.

      E. N. Whittemore for defendant and appellee.
   On Motion to Dismiss.

The opinion of the court was delivered by

Marr, J.

Louis Bauer enjoined a writ of seizure and sale, and gave bond with Ignatz Berger as his surety, in the penal sum of $500: On trial, the Injunction was dissolved, with twenty per cent damages, on $1500, the amount enjoined. Bauer took a suspensive appeal from this judgment, and gave bond with two sureties, Catrina Gugenheimer for $200, and Ignatz Berger for the entire amount, $525.

Appellees move to dismiss the appeal on the ground that the bond is insufficient:

1: Because the, amount enjoined is $1500, and the judgment dissolving the Injunction is for $300, damages, so that a bond for $2700 would be required:

2: Because the judgment for damages is against Bauer and Ignatz Berger in solido, and Berger can not be surety on the appeal bond; because he is a necessary party to the appeal.

First. The plaintiff in Injunction is required to give bond in an amount to be fixed by the court on granting the Injunction. If the Injunction be dissolved, without damages, the plaintiffs would be entitled to a suspensive appeal on giving bond for such sum as the court might fix, sufficient to cover the costs. The appeal does not arrest the seizure:

the Injunction did that; and the Injunction bond is the indemnity to which the defendant must look on the dissolution of the Injunction.

If the Injunction be dissolved with damages, plaintiffs would be entitled to a suspensive appeal on giving bond for a sum exceeding by, one half the amount of the judgment for damages.

Second. In Bowman vs. Kaufman, decided on the sixth March, the plaintiff in Injunction appealed from a judgment dissolving the Injunction, and condemning him and his surety in solido, in damages; and the surety on the Injunction bond, was the surety on the appeal bond. On motion the appeal was dismissed, on the ground that the surety on the Injunction bond, being a necessary party, either as appellant or as appellee, could not be surety on the appeal bond. See also Dumas vs. Mary, 29 An. 809.

The other surety, Catrina Gugenheimer, bound herself only for $200, and the appeal bond is not good and sufficient in law.

The appeal is therefore dismissed.


text:
    No. 6968.
    James Lusk vs. Succession of W. M. Benton.
    Ono administrator of a succession is not estopped by mistaken admissions in the pleadings o£ a suit made by a preceding administrator.
    The district court is utterly without jurisdiction of a suit by parties against the succession of their former tutor, then under administration in the parish court.
    ÁPPEAÍi from the Thirteenth Judicial District Court, parish of East Carroll. Hough, J.

      Montgomery & Deloney for plaintiff and appellee.

      J. W. Montgomery for defendant and appellant.
   The opinion of the court was delivered by

DeBlanc, J.

In 1853, on the 9th of April, Mary C. Lusk wrote her last will, and — by that will — left in charge of one Robert C. Gayle, her minor children and the administration of the property which, soon after, they inherited from her. Gayle was appointed as tutor of those children on the 12bh of July 1853. The inventory of their parents’ estates amounted — including the value of the slaves — to $11,601.70.

From the uncontradicted evidence adduced on the trial of this cause, Gayle disregarded the last wishes of Mrs. Lusk. In her testament, she expressly recommended that her children should receive a good education, and — whilst under the care of the executor of their mother’s will— they attended during three months of the year the schools of the neighborhood, and the balance o£ the time they worked in their tutor’s field, and were clothed and treated as slaves. Gayle converted to his own use the personal property and assets of his wards. When they left Gayle, James — the plaintiff — and Squire, his brother — had, between them, three mules valued each at fifty dollars.

Gayle died without having rendered an account either as executor or as tutor, and — on the 24th of April 1870, James and Squire Lusk filed in the district court for the parish of Carroll, a suit against his succession, in which they claimed as due to them by the deceased, as their tutor, the sum of ten thousand dollars. That suit was tried without opposition, and they obtained against said succession a judgment for §5495. That judgment was signed on the 5th of December 1870, and therein their legal mortgage is recognized as having- taken effect and bearing on their tutor’s property since the first of May 1853. At the date of said judgment, James Lusk was twenty-four years of age, and Squire younger. The latter twice sold his interest in said judgment; to his brother, on the 1st of November 1871; and, in that year, without mention of either the day or the month, to Warren M. Benton. Of these two transfers, not one was recorded.

On the 30th of January 1864, Bobert O. Gayle, who — in 1853 — had been appointed as tutor to James and Squire Lusk, sold to said Benton the plantation described in plaintiff’s petition, and the succession of Gayle being insolvent, plaintiff seeks to subject the plantation thus sold to the satisfaction of his and his brother’s legal mortgage, which' — he alleges — has been duly recorded.

Benton is dead. In answer to plaintiff’s demand, the first administrator of his succession admits that the deceased purchased from Gayle the plantation already referred to, but avers that he did so in good faith, without notice of the claim of James and Squire Lusk, and specially denies that any evidence of that disputed claim was ever recorded.

He also contends that — if it was recorded — the deceased has purchased from Squire Lusk, for one thousand dollars, his and his brother’s interest in the judgment which the latter is attempting to enforce against the property of said deceased’s succession, and that the transfer of that interest, if null as to James, is binding as to Squire. That, besides, plaintiff’s demand is fraudulent and collusive.

In a supplemental and amended answer, the last administrator of Benton’s succession contends:

1. That the judgment of the 5th of December 1870, which is the foundation of this suit, was rendered by a court having no jurisdiction of the matter in dispute and is an absolute nullity.

2. That when — in 1870 — they sued the succession of their tutor, James and Squire Lusk were both over thirty years of age, and that their claim and mortgage — if any they had — were then barred by prescription and extinguished by peremption.-

3. That said judgment was obtained by fraud and collusion with the administratrix of the succession of Gayle.

To the filing of the amended answer, plaintiff’s-counsel objected, on the ground that it raised new issues and contradicted the original answer, in which one of the administrators of the succession of Benton has claimed, as belonging to it, the judgment assailed as an absolute nullity by the last and amended answer. Plaintiff’s objection was overruled and he excepted.

In December last, plaintiff’s demand against the succession of Benton was allowed, and the plantation bought by said deceased from Gayle ordered to be sold to satisfy said demand. From that decree, the administrator has appealed.

The amended answer was properly admitted, and for one reason: plaintiff contests the reality of the apparent transfer to Benton of his brother’s interest in the judgment of the 5th of December 1870, and claims himself the very same interest, under a sale from his brother to him. By the decree appealed from, he alone is recognized as the transferree and owner of the whole of said judgment, and the last administrator of Benton’s succession was not bound by any mistaken admission of his predecessor, and by the fact that the latter attached to his answer a document, the recitals in which were not substantiated, and which may have been but the form, the projet of a transfer.

It is evident that the district court had no jurisdiction of the suit of James and Squire Lusk against the succession of their tutor, for what he owed them in that capacity; and that they should have proceeded in the parish Court .against the administratrix of said succession, to compel her — as such — to file an account of the tutorship of Gayle. It is only in that jurisdiction that his liability as tutor can be ascer-' tained and fixed. C. P. 998; 29 A.

In the suit of James and Squire Lusk against the succession of Gayle, mention is made in the statement of facts that a certificate from the Recorder showing the registry of the evidence of their legal mort■gage against their tutor, was offered and received on the trial — Besides, it does not appear that the rights and actions of plaintiff are barred by prescription, and they seem so legitimate that we are not disposed to conclude him by our decree.

It is, therefore ordered that the judgment appealed from is annulled and reversed, and this case dismissed at plaintiff’s costs in both Courts.

It is further ordered that plaintiff’s right to institute new proceedings against the succession of Robert C. Gayle and Warren M. Benton, is specially reserved.


text:
    No. 6954.
    S. T. Austin, Jr., vs. Citizens’ Bank and Sheriff.
    A mortgage creditor may proceed directly against the property subject to his mortgage, even though the property may have been sold ior taxes, and the tax title be in the name of a third person, when it appears from the evidence that such title is a fraudulent simulation, and that the original mortgage debtor, who had colluded with the purchaser at the tax sale, is still the real owner of the property.
    APPEAL from the Thirteenth Judicial District Court, parish of East Carroll. Hough, J.

      J. M. Kennedy and Thomas J. Semines for plaintiff and appellee.

      Armand Pitot for defendants and appellants.
   The opinion of the court was delivered by

Manning, C. J.

In February 1872 Jane Austin bought a plantation situated in Carroll parish from the Citizens’ Bank for about twenty thousand dollars, of which four thousand dollars was paid in cash or its equivalent, and the residue was on time. A mortgage and the vendor’s lien was retained by the Bank, and the purchaser besides assumed the obligations of a previous mortgagor of the same property, and renewed all the stipulations relative to stock notes, pledge, etc. usually made by that Bank in its sales and mortgages. No other payment of any portion of the purchase price was made, and in March 1876 the Bank proceeded to foreclose its mortgage through an order of seizure and sale, when the execution of that process was arrested by an injunction, obtained at the-instance of the mortgagor’s son. That is the suit now before us.

It appears that Mrs. Austin neglected to pay the taxes on the property, and in January 1875 it was sold by the tax collector and purchased’ by one C. E. Moss, who procured from the Auditor a confirmation of his tax title in the following November, and in January 1876 sold to the plaintiff in injunction. The petition alleges the plaintiff’s ownership by this chain of title, avers that it is valid and bona fide, that he is in no-manner bound to pay the debts of Mrs. Austin to the Bank, and that the: seizure by the Bank of his property, thus honestly and fairly acquired,, to compel the payment of the price which his mother is alone bound to-pay, is a hardship and grievance, wantonly inflicted upon him, which he prays may be assuaged by a judgment against the wrong doer for five thousand five hundred dollars as damages.

The Bank answers, that the plaintiff is not the legal and bona fide owner of the property, that he and his mother concocted the scheme, by and through which a nominal title was vested in him, for the purpose of defeating, or attempting to defeat, its mortgage and vendor’s rights— that its mortgagor, the mother of the plaintiff, implored time and leniency from the'Bank, and even after the tax sale, of which, she knew, asked for further delay of the enforcement of the mortgage, without acquainting her creditor with the pretended alienation by a tax sale, and for the purpose of deluding the Bank until that sale should be confirmed by the Auditor — that the plaintiff was the business manager, as well as son, of the mortgagor and debtor, through whose fraud and ill practices, which were participated in by her, the apparent title was acquired by him, which was in fact a simulation, the real title as well as possession remaining in the mortgagor, and Moss being interposed to impart a semblance of reality to the transition of title, who never had possession of the property and never pretended to exercise any control over it. Further defences are made, resting upon the pledge of the Bank, the relation of the State to it, etc. which need not be detailed.

Moss intervened, alleging that he was the creditor of plaintiff in injunction, and had his vendor’s lien and mortgage on the property to secure the payment of the price for which he had made the sale of January 1876, and prayed that the plaintiff be decreed to be the owner of the land subject only to his mortgage. His intervention is signed by aii attorney, bearing the same name as the plaintiff.

The fraud and cozenage of the transaction is manifest at every stage of it. . Mrs. Austin induced the Bank, in personal interviews with Its President, to forbear pressing the collection of its debt. The note ¡maturing in May 1873 had been long overdue, but her solicitations prevailed, and the leniency, touchingly besought, was gracefully and compassionately granted. The taxes of that year, due in 1874, were left unpaid, and plaintiff told the collector to sell the place for them, and Moss says, that the plaintiff told him just before the tax sale he (plaintiff) wished witness would buy the place, though he adds with artless candor, the plaintiff never told him to buy it for him (the plaintiff) nor for any one else in particular. And so when it was sold in the following January (1875) Moss bought at S365. During that year the President of the Bank renewed his demands upon Mrs. Austin for payment in a more peremptory manner than before, and in October, after the purchase by Moss of the plantation, Mrs. Austin writes — “ I can only state that now I have no money, not having commenced to gin the crop yet, but I expect to be in the city in Jany. and hope to be able to make satisfactory arrangements then.” Nothing is said about the tax sale.

A few days after this letter was written, the Auditor was applied to for the confirmatory title, and it was made, and Moss who had not taken possession before, obtained a judicial order therefor, and did take possession then according to his own account. It seems to have been done so quietly that the tenants of the place were not aware of it. Less than ninety days intervened between the date of the Auditor’s title to Moss, and Moss’ sale to Austin. The quantity of land was eighteen hundred acres. The price of this last sale was six hundred dollars cash, and one thousand dollars in a year.

Moss thinks, but is not certain, that the tax collector himself made the public auction at the tax sale, and adjudicated the property to him, but if mistaken, the deputy did it, and he accounts for the non-prod'uction of the requisite number of advertisements of the sale by stating the custom of the collector there to be to make one advertisement by means oí a printed slip, called an ‘ extra ’ of the local newspaper, but he is not sure that such slip was issued in this case, and it is not produced. The collector, testifying, says he had no communication with Mrs. Austin about the taxes or the sale, but only with her son, the plaintiff, to whom he said, ‘if you are not going to pay the taxes, I will sell,” and who answered ‘ go on and sell.’

The statement of the case, and the recapitulation of the evidence, foreshadows our judgment. The plaintiff intrenches himself behind our ruling in Lannes v. Work. Bank, 29 Annual, 112, and insists that his title must be held good until it is annulled in a direct action. But that principle holds good only as to those titles that are bona ficle and were acquired without fraud, or that are real and not simulated. Unquestionably a purchaser at a tax sale may acquire a good title to a valuable property for a small price, if the requisite formalities have preceded and attended the sale. If the owners of property, and owers of taxes, will now persist in withholding from the government their just and lawful contributions to its support there is a way provided to coinpel the payment of them by a forced §ale. Every country that relies upon legally imposed taxes, instead of forced loans and arbitrary exactions, for its maintenance and sustenance, recognizes and enforces the duty of the owner of property, which is protected, to assist in the support of the government that protects it.

But no government will permit its machinery, constructed to enforce the payment of public dues to the fisc, to be used to manipulate a fraud, and if the purchaser is a party to the fraud, he must share its punishment. It might be very different if he were wholly disconnected and unacquainted with it.

The purchase by Moss was nothing more nor less than a purchase by Mrs. Austin, the debtor and mortgagor, through her son, the plaintiff. The money paid, as the price at the tax sale, was only what she, as owner of the property, owed the State, and what she honestly and in good conscience ought to have paid without, and before, and to prevent a sale. If she could not pay it, the debt being exigeant and of so high a rank, she should have acquainted her creditor and mortgagee with its imminence, instead of observing the suspicious reticence which characterized her conduct. The creditor’s rights, as mortgagee and vendor, can. not be imperilled by the mortgagor’s collusive combination with others to interpose an apparent, but fraudulent obstacle in his way in enforcing those rights.

The injunction was improperly issued, but the defendant omitted to ask for damages. Therefore

It is ordered, adjudged, and decreed that the’judgment of the lower court is avoided and reversed, and the injunction sued out by the plaintiff is dissolved, and his cause is dismissed at his costs. It is further decreed that the Citizens’ Bank, defendant, recover of the plaintiff the costs in the lower court and the costs of appeal.