author: Nicholls, C. J.

text:
    No. 12,610.
    Union National Bank of New Orleans vs. Henry Hyams, Transferred and Consolidated with Firemen’s Building Association vs. Henry Hyams.
    Garnishment proceedings taken out in a ease after and under final judgment therein, in one sense maybe said to be'incidental to the main suit as they are based thereon, but they are separate and distinct proceedings with new parties, and must be dealt with as such; they are not brought before the Supreme Court through an appeal taken from the judgment in the main suit.
    A building association to whom one of its stockholders is indebted for stock sub scription, and also on a note secured by mortgage, can not be forced by a junior mortgagee to impute partial payments made by the debtor upon the mortgage debt when under the contract between the parties they were to be imputed to the stock indebtedness. Richard vs. Building and Loan Association, 19 An. iSi.

    ON APPEAL from. the Oivil District Oourt for the Parish of Orleans. Théard, J.

      Garleton Hunt for Union National Bank, Plaintiff, Appellant.

      Dart & Hernán for Firemen’s Building Association, Plaintiff, Appellee.

      Lazarus, Moore & Luce for Defendant Hyams and for Mrs. Violet Strauss Hyams, Intervenor and Opponent, Appellees.
    Argued and submitted January 26, 1898.
    Opinion handed down March 7, 1898.
    Rehearing refused June 30, 1898.
    On the 31st of July, 1890, the Firemen’s Building Association sold to Henry Hyams for six thousand dollars certain property described- in the act of sale. Hyams was at that time a stockholder in the association, owning thirty of its shares. In representation of the price the purchaser executed his note for six thosuand dollars payable to the order of the association six years after date (with privilege of renewal) bearing interest at six per cent, from date, which interest was payable weekly, in accordance with the charter of the association and the penal clauses stated in the act of sale. In order to secure payment of the note with its interest, Hyams specially mortgaged, in addition to the vendor’s privilege retained, the property purchased under the clause de non alienando. The act of sale contained the usual clauses as to attorney’s fees, insurance, taxes, etc.
    It was agreed between the parties that if the purchaser should pay the interest on the note weekly and also the instalments due upon the note punctually, then the principal should not become due until the value of the thirty shares of stock should become equal to the amount of said indebtedness with all interest and costs that might be due upon the same, at the happening of which event the stock and said indebtedness should cancel each other, the stock and indebtedness being alike extinguished, and thereupon the association should cancel the stock, and give the purchaser full receipt and acquittance and surrender the note. In case the purchaser should, fbr the term of six months, fail to pay the weekly instalments due on the stock, or the instalments of weekly interest, or any portion thereof, or any or all costs and fines that might be due by him, such failure, it was agreed, should at once, without demand, without putting in default and as penalty, make the note, with all back interest, become immediately due and exigible by executory process. It was further agreed that any forfeiture of stock under the provisions of the charter should have a similar effect, these clauses being declared • to be penal and imperative, and to obviate the necessity of putting in default. It was further agreed that if at any time before the value of the stock should be equal to his indebtedness the purchaser should desire to pay, settle and cancel the indebtedness he should have the right to transfer to the association his stock, with interest and accumulations thereon, in part payment of such indebtedness, provided he paid in cash the balance of such indebtedness, and on such transfer being made the association should cancel said stock and give to the purchaser a proper receipt and acquittance and surrender to him the evidence of his indebtedness. In the event of the note becoming due and exigible, and the value of the stock not being equal to the amount of the indebtedness, the association bound itself to renew or extend the note, in accordance with the terms of the charter.
    On the 2d of October, 1895, the Firemen’s Building Association obtained executory process for the payment of their mortgage note of six thousand dollars. The property went to sale under the seizure on the 27th of November, 1895, one Jessie W. Atkinson becoming the purchaser for the price of six thousand and twenty-five dollars. The return of the sheriff upon the writ showed a balance of five thousand five hundred and sixty-four dollars and fifty cents, after payment of costs, which amount he declared he held in his hands, subject to orders of court, by reasons of third oppositions filed in the proceedings and execution levies upon the funds.
    One of these oppositions was filed on January 26, 1896, on behalf of the Union National Bank of New Orleans; another on November 12, 1895, by Mrs. Violet Hyams, wife of Henry Hyams. The bank in its opposition claimed to be a creditor of Hyams by reason of a judgment obtained by it on the 7th of February, J894 (duly recorded), for five thousand dollars with interest, and by reason of holding as owner through payment with legal subrogation, a judgment which had been obtained by the Rosetta Gravel and Paving Company against Hyams for three hundred and sixty-nine dollars, payment of which judgment, it was alleged, was secured by privilege. The bank claimed to be entitled to be paid out of the proceeds of the property seized over the seizing creditor and all other parties.
    Mrs. Hyams, in her opposition, claimed to be the owner of the property through a transfer made to her on the twenty-third day of August, 1893, by way of a “ dation en paiement ” in part payment of paraphernal claims due her by her husband. She averred that by reason of this ownership which she acquired subject to the prior special mortgage rights of the association she was entitled to be paid by preference over all parties other than the plaintiff in executory proceedings, any surplus which might be left after paying the amount called for by the writ of seizure.
    Anticipating an attack which might render an alternate or contingent prayer for relief necessary, she averred that she had a claim against her husband which, by virtue of the registry thereof, had become secured in her favor by mortgage. That this claim would become operative and in full force should the rights of ownership which she asserted be not maintained. This mortgage claim she advanced contingently, praying for its payment by preference over all parties other than the association. She denied that the Rosetta Gravel and Paving Company’s judgment was secured by privilege.

      At the time of this sale the property was standing also under seizure made on the 4th of June, 1894, upon the judgment of the National Bank against Hyams, but its sale under that writ had been stayed by an injunction taken out on the 9th of June, 1894, by Mrs. Hyams, claiming ownership under the dation en paiement made to her.
    The issues raised in that injunction suit were not passed on therein, for the reason that before they could be taken up the property was sold in the executory proceedings, and the contentions of the parties were discussed under different conditions.
    In the intervention and third opposition filed by the bank in the executory proceedings, it alleged that it had been advised that the mortgage upon which the Firemen’s Building Association was proceeding, had been satisfied by defendant by credits on the stock subscription and by other payments made by him, and that there was a balance due him by the .association, amounting to which the bank was entitled to have so appear, and which it would establish on the trial of the opposition.
    On the 13th of March, 1896, the Union National Bank directed the sheriff to make a seizure under the writ of fieri facias which had issued in its suit against Hyams. The sheriff had, on the 4th of June, 1894, under that writ, seized the property which Hyams had mortgaged to the Building Association, and had advertised it for sale, but the sale had been enjoined (as stated) on the 9th of June, 1894, at the instance of Mrs. Hyams. Under this direction of the bank the sheriff seized in the hands of the Firemen’s Building Association all goods, rights, credits, etc., which it might have in its possession, and simultaneously served upon it interrogatories (such as are usual in garnishee proceedings), which it had been ordered to answer. It may as well be stated here as well as anywhere, else that the association, through some neglect or inadvertence, failed to answer these interrogatories; that, on motion of the bank, they were taken for confessed, and a judgment was rendered in its favor against the garnishees for five thousand dollars, but that on a rule taken before the judgment was signed, it was set aside on the 17th of June, 1897, and the interrogatories were subsequently answered; that the bank contested this action of the court, but that that issue has not yet been definitely disposed of, and that the question whether that action is properly before the Supreme Court for review on this appeal is one of the matters submitted to the court.

      At the instance of the bank the case of the Union National Bank vs. Henry Hyams was consolidated with that of the Firemen’s Building Association vs. Hyams. While these matters were in progress Mrs. Violet Hyams had brought suit against her husband, claiming a separation of property, and praying judgment on a moneyed demand which she advanced. In this suit of Violet Straus vs. Henry Hyams, she obtained judgment on the seventh day of September, 1894, as prayed for. Under that judgment she caused a fieri facias to issue and under that writ the sheriff made a general seizure in the hands of the Firemen’s Building Association on the second day of October, 1894. The Sheriff simultaneously served upon it interrogatories as garnishee, which the court had ordered it to answer at the instance of Mrs. Hyams. The association on the fifth day of November, 1894, answered that it held in its possession thirty shares of its own stock, which was standing, however, in the name of Mrs. Violet Hyams, wife of Henry Hyams, and that the stock was pledged to it to secure its loan of six thousand dollars to the husband of Mrs. Hyams.
    On the first day of May, 1895, Mrs. Hyams took a rule on the association to show cause why under its answers the stock mentioned should not be sold and applied to the enforcement of her judgment and execution. No action on that rule was taken in that particular proceeding, but in the intervention and third opposition which Mrs. Hyams filed in the suit of the Firemen’s Building Association vs. Hyams she recited the fact that a partial payment had been made to her by her hushand on the paraphernal claims which she held against him through the dation to her of the property under seizure, and of which she claimed to be the owner subject to the mortgage rights of the building association; that she had thereafter obtained a judgment of separation of property from her husband coupled with a money judgment for the balance of her paraphernal claims remaining unpaid; that under a writ of fieri facias issued under that judgment the sheriff had seized the stock pledged as collateral to secure the debt of the bank, 'and that said stock had also been seized through the garnishment proceedings.
    That by reason of said seizure and garnishment she had acquired a lien and privilege upon said stock and a right to subject it to the payment of her claims and judgment; that the stock was severable and subject to seizure; that the association had no right to credit said stock upon the debt due for the purchase price of the property and she opposed any such credit. .

      In addition to her prayer for payment out of the proceeds of the property seized and sold she contingently prayed that her lien and privilege upon the shares of stock resulting from the seizure and garnishment be recognized and enforced, and that the same be sold to satisfy the said lien and judgment.
    The bank and Mrs. Hyams each answered the third opposition filed by the other In the suit of the Firemen’s Building Association vs. Hyams. The bank attacked the judgment of separation of the wife against the husband as being an absolute nullity by reason of its non-execution promptly according to law, and the privilege claimed by her under her seizure and garnishment on the ground that she had not traversed the answers of the garnishees within the time prescribed by law for her doing so.
    Mrs. Hyams pleaded the prescription of one year as against these attacks upon her, and in her answer tc the third opposition filed by the bank denied that it had ever made a legal seizure of the stock under the writ of fi. fa. which had issued on the 4th of June, 1894, averring that the seizure and garnishment proceedings taken thereunder were absolutely null and'void, as the sheriff had at that time no writ of fi. fa. in his hands under which the seizure and garnishment could be made, the writ having expired long before that date.
    On the 17th of June, 1897, as has been stated, the court rendered judgment in the matter of the rule taken by the Firemen’s Building Association on the bank to set aside the- judgment it had obtained pro confesso setting aside the judgment.
    On the same day (17th June, 1897), it rendered judgment overruling the pleas of prescription filed by Mrs. Hyams, also an exception of no cause of action which had been filed by the Union National Bank.
    It further decreed that the intervention and third opposition of the bank be maintained to the extent only of ordering that out of the proceeds of the property sold under executory process there be paid to it by preference the sum of three hundred and sixty-nine dollars and sixty-five cents and costs, but that in all other respects the opposition be dismissed. It further decreed that the balance of the proceeds of sale be applied to the payment of the mortgage claim of the Firemen’s Building Association against Henry Hyams, which claim is for six thousand dollars with interest thereon, together with attorney’s fees, insurance, premiums, taxes and costs.

      It further decreed that the pledge made by the defendant, Hyams, to the association of all instalments paid and to be paid on thirty shares of the capital stock of said association standing on its books in the name of his wife, Mrs. Violet Hyams, represented by certificates Nos. 1301 and 1719, be recognized and enforced, and that the balance of said association’s claim against Henry Hyams be paid by preference out of the said pledged instalments on said thirty shares of stock. It was further decreed that the third opposition of Mrs. Violet Hyams be maintained in so far only as to recognize the valid.ity of the seizure and garnishment made by her of the said thirty shares of stock and to order that the same be sold in due course of law to satisfy the judgment obtained by her against her husband, Henry Hyams, for the sum of two thousand eight hundred and thirty-six dollars, with costs, and with privilege and mortgage dating back to August 31,1893; that in all other respects the said opposition be dismissed.
    The following entry appears on the minutes of the court of June 23, 1897:
    Civil District Court, Division E ” — Consolidated Cases. Firemen’s Building Association 1
    vs. VNo. 47,152.
    ' Henry Hyams. j
    Civil District Court, Division “ E.”
    Union National Bank op New Orleans'!
    vs. VNo. 41,258.
    Henry Hyams. J
    “ On motion -of Carleton Hunt, attorney for the Union National Bank of New Orleans, and on suggesting to the court that there is error to the prejudice of said bank in the judgment rendered in the above named cases. June 17, 1897, and signed June 23, 1897. It is ordered hy the court that the bank be allowed a suspensive appeal from said judgment, returnable in the Supreme Oourt on the first Monday in November, 1897, and that the amount of the bond of appeal be fixed at six hundred dollars.”
    The bank furnished, on the. same day, an • appeal bond, with the same caption as that of the motion for an appeal, the recitals of which bond were, that the bank had that day filed a motion of appeal from a final judgment rendered against said bank in the suits of Firemen’s Building Association vs. Henry Hyams, No. 47,152, Union National Bank of New Orleans vs. Henry Hyams, No. 41,258, consolidated cases, Nos. 47,152, 41,258 of the Civil District Court for the parish of Orleans, on the seventeenth day of June, 1897, and signed on the twenly-third day of June, 1897. Mrs. Violet Hyams moved in the Supreme Court that the judgment be amended as follows:
    That the act of dation en paiement to her entered into on August 23, 1893, be maintained, and she be declared the owner of the property therein conveyed and entitled to the proceeds thereof.
    If the said act of dation is not maintained, and her levy upon the stock under the fieri facias and garnishment proceedings and under her judgment are not maintained as under the judgment of the lower court, that her privilege resulting from the registry of the act of dation en paiement of August 23, 1893, and her tacit mortgage resulting therefrom, be recognized and enforced on the property and its proceeds. That the demand of the bank to be subrogated to the judgment of the Rosetta Gravel Paving and Improvement Company, and to have the paving lien and privilege recognized and enforced on the property and its proceeds, and paid by preference, be rejected.
   The opinion of the court- was delivered by

Nicholls, C. J.

The first question we are called on to consider is whether the action of the District Court, setting aside the judgment which the Union National Bank had obtained the Firemen’s Building Association pro confesso for neglect to answer the interrogatories propounded to it, is before us for review. Appellant contends that it is; the Firemen’s Building Association that it is not. Though this action of the court was taken on the 17th of June, 1897, the same day in which the final judgment appealed from was rendered, it was not embodied therein, but was made the subject matter of a separate and distinct ruling. The judgment in the main case was signed by the District Judge — the action taken upon the rule to set aside the pro confesso judgment was unsigned. The motion for an appeal, the order of appeal and the bond of-appeal all refer to the judgment appealed from as being that rendered on the 17th of Jnne and signed on the 23d of June. We do not think the ruling of the court on the motion to vacate the judgment in favor of the Union National Bank against the association is before us as part of the final judgment appealed from. Appellant contends that granting this to be so, it comes properly before us as one of the interlocutory orders given in the case of the Bank against Henry Hyams. The final judgment rendered, in that particular case is not before us — the association was not a party to that suit — it became connected with it only through proceedings in garnishment originating after the main suit had been finally disposed of. It is true that those proceedings had their origin by reason of the suit of the Bank against Hyams, and in one sense they may be said to be incidental to it, but none the less they are separate and distinct proceedings between new parties and they must be dealt with as such, for the purpose of settling and determining the rights of those parties inter se under them, particularly when the judgment rendered therein was pro eonfesso for a neglect to answer interrogatories. We do not think this particular matter is before us on this appeal. The issues really before us are those raised under the executory proceedings of the association directed against the property mortgaged to it, and the proper and legal distribution of the proceeds of the sale of that property under the third oppositions of Mrs. Violet Hyams and the Union National Bank touching those proceeds.

Three distinct actions are referred to in these proceedings: 1. The suit of the Firemen's Building Association vs. Henry Hyams; 2. The Union National Bank of New Orleans vs. Henry Hyams; 3. Mrs. Violet Strauss vs. Henry Hyams. The two former suits were consolidated, bnt the third was not.

The third opposition of the Union National Bank, claiming the proceeds of the sale made in the executory proceedings of the association was filed after the sale of that property had been made under the writ of seizure. The bank, though having a judgment and a judicial mortgage on the property, and. though it was holdmg it under seizure prior thereto under its own writ of fi. fa., did not attempt to enjoin the sale upon the ground that the mortgage upon which the proceedings were being carried on had been extinguished by payment, but permitted the sale to be made and then claimed the proceeds under its judgment, its mortgage and its seizure. Preter-mitting any discussion whether under such circumstances the bank could urge that the sale had been made under a mortgage which had no existence and that it could therefore rightfully and legally claim the proceeds, we proceed to examine the ground upon which this alleged payment is made to rest. We find appellant’s contention to be that the bank shouid be forced to impute and apply the various payments made by Henry Hyams under his contract of the thirty-first day of July, 1890, upon the mortgage note which he executed on that day, and not in manner and form as provided for in that contract and by the terms of the charter of the association of which Hyams was a stockholder. That question was presented and decided in Richard vs. Southern Building and Loan Association, reported in 49 An. 481 adversely to the position taken by the appellant.

The decison in that case controls the decision in this. We think the judgment of the District Court on that branch of the case correct. We think it also correct in decreeing that the Union National Bank of New Orleans be paid by preference the sum of three hundred and sixty-nine dollars and sixty-five cents out of the proceeds of the said by reason of being owner through payment, with legal subrogation of the judgment with recognition of privilege obtained by the Rosetta Gravel and Paving Company against Henry Hyams. The opposition to that portion oi the judgment has been substantially abandoned. The affirmance of the judgment appealed from in these two respects disposes of the entire fund produced by the sale of the property mortgaged to the association. Notwithstanding that fact the District Court passed upon various contentions raised by the bank and Mrs. Hyams concerning matters outside of the application of the proceeds of the sale of the mortgaged property

No written reasons are assigned for the judgment, and those contentions are not specifically and separately passed on, but the decree itself indicates what the views of the court upon them must have been. The court obviously sustained the judgment of the wife against her husband, and the seizure made by her thereunder through her seizure and garnishment proceedings directed against the building association, against the attack made upon them by the bank, and held that the Union Bank took nothing in respect to the seizure of the stock by its own seizure made in 1896, under the writ of fi. fa. which had issued in 1894, in execution of its judgment and by the garnishment proceedings taken out in 1896 upon the supposed continued existence and vitality at that time of that writ.

The stock in question has not been .sent to sale up to the present time. Both parties claim priority of privilege over the proceeds of the sale of that stock when it shall havejbeen made, by reason of claims by each of legal seizures thereof. That of Mrs. Hyams, made in the suit of Violet Strauss vs. Henry Hyams, is first in order of date. The record of that suit is not before us. We are not advised that the bank has ever intervened in that suit or taken any direct action against the claims of Mrs. Hyams. The parties have attacked each other collaterally in a suit in which the thing itself over which their respective contentions are now being made was not itself involved-in the suit. Thesharesof stock pledged by Henry Hyams to the association were not seized by it, and they have not been sold. The conclusions reached by us as to the application of the proceeds of the sale of the real estate render it unnecessary, we think, to pass at this time upon the respective pretensions of the parties in relation to the stock. We think the ends of justice will be best subserved by leaving those matters open for future adjustment. That purpose will be attained by affirming the judgment appealed from in so far as it deals with the proceeds of the sale of the property mortgaged, and simply reversing it as to other points. The effect of this simple, partial reversal will be the replacing of the parties in the position which they respectively occupied prior to the rendition of the judgment appealed from, free to take such proceedings and to ask such relief as they may conceive themselves legally entitled to.

We are very free to say that our present impressions are adverse to the right of the bank to make the general seizure it did in 1896, and to take out the garnishment proceedings which it did at that time under the writ of ft. fa. which it had caused to issue in 1894, in execution of its judgment against Hyams. The sheriff had'made a seizure of specific real estate under that writ and had advertised and was about to sell the same when the sale of that particular property was stayed by an injunction. The injunction was not general, restraining him from executing the writ at all — its effect was limited, and he was free to seize any other property of the debtor which was subject to seizure. We scarcely think a new seizure made in 1896, under a writ of fi. fa., issued in 1894, sustainable, though a seizure made within the seventy days (the date fixed by Art. 642 of the Code of Practice for the return of writs of fi. fa.), might remain effective-for the purposes of a sale of the property.

Eor the reasons herein assigned:

It is hereby, ordered, adjudged aud decreed, that the judgment appealed from in so far as it decrees that the proceeds of the sale of the property seized and sold in the matter of the Firemen’s Building Association vs. Henry Hyams, be paid by preference to the Union National Bank of New Orleans to the extent of three hundred and sixty-nine dollars and sixty-five cents, and the costs of the third opposition filed in said suit by said bank, and in so far as it decrees that the balance of the proceeds of the sale aforesaid be applied to the pamyent of the mortgage claim of the plaintiff incase No. 47,152, the Firemen’s Building Association against Henry Hyams, which claim is for six thousand dollars and interest thereon at the rate of six per cent, per annum, from May 12, 1894, until paid, together with five per cent, attorney’s fees on the aggregate of said principal and interest— sixty-nine dollars and sixty cents insurance premium — thirty-seven dollars and sixty cents State tax — four dollars costs of copy of mortgage act, and all costs of suit be and the same is hereby affirmed.

It is further ordered, adjudged and decreed that except to that extent the judgment appealed from be and the same is hereby annulled, avoided and reversed, and the parties re placed in the position which they respectively occupied, just prior to the renditton of the judgment appealed from, free to take such proceedings, and to ask such relief as they may conceive themselves legally entitled to. Costs of appeal to be divided between Mrs. Violet Straus, wife of Henry Hyams, and the Union National Bank of New Orleans.


source: Caselaw Access Project

author: Blanchard, J.

license: Public Domain

text:
    No. 12,873.
    Elizabeth Davis vs. W. S. Kendall.
    1. Where the true object oí a sale with the right of redemption was to secure an existing indebtedness, the court called upon to interpret and give effect to the agreement, properly held the parties to their intention by decreeing the title asserted not one from which ownership resulted, but as a kind of security for the debt due.
    2. But to effectuate this security the sale was, for this purpose, a ceding away — a transfer, a conveyance — of the fee of the estate by the vendor to the vendee to-that extent that, after the appropriate registry thereof, the vendor could neither sell normortgage to another the same property, to the prejudice of his vendee. And, if this be so, it follows that neither could rights attach there on by operation of law, like a legal or judicial mortgage, to his prejudice.
    /"'ERTIFIED from the Court of Appeals, First Circuit, by the Judges vJi thereof applying for instructions.

      Submitted June 28, 1898.
    Opinion handed down November 21, 1898.
   The opinion of the court was delivered by

Blanchard, J.

This was an appeal from the District Court, Parish of Lincoln, to the Court of Appeals, First Circuit.

On consideration by the latter Court the judgment appealed from was reversed, and a decree handed down in favor of defendant and appellant.

An application for rehearing by plaintiff followed, and, thereupon, the Judges of the Court of Appeals certified to this Court the following proposition of law, arising in said cause, concerning which they ask instruction for its proper decision:—

“Whether a sale with the right of redemption intended and declared by the Court to be one merely as security for debt, duly recorded in the Conveyance records, ranks a legal mortgage subsequently recorded in the mortgage records, in a contest over the proceeds of the sale of the property.”

•The judgment of the District Court had decreed priority of payment to the legal mortgagee.

The Court of Appeals reversed this judgment, holding the vendee in the nominal vente & réméré to be entitled to recover by preference the amount due him, sustaining its view in an exhaustive and forceful opinion by Pugh, J., transmitted with the question certified.

The facts as gathered from this opinion are as follows:—

S. 0. Davis executed in favor of W. S. Kendall an act of sale purporting to convey certain real property, with reservation of the right of redemption.

The time for redemption having elapsed without its exercise, Kendall brought an action to be declared the owner of the property. After contest the court of the first instance rejected his demand of ownership, but reserved to him his right, as against the property, to enforce his contract as one of security.

On appeal to the Oourt of Appeals this judgment was affirmed.

Whereupon Kendall instituted suit against Davis, praying that his contract be recognized and enforced as security against the property, and that the same be seized and sold to satisfy his claim. Judgment followed in accordance with this prayer, execution issued thereon and the property was seized and sold, Kendall becoming the purchaser thereof for an amount less than his judgment.

Davis’ wife (present plaintiff), some nine months after the redemption sale to Kendall, appeared before the clerk of court and made affidavit of certain indebtedness due her by her husband on account of paraphernal funds received by him, and caused this affidavit to be inscribed in the mortgage records as evidence of her legal mortgage against the property of her husband. *

A year later she, with her husband, appeared before a notary and a document was executed by the husband, accepted by her, wherein he made to her a dation en paiement of the property embraced in the sale to Kendall, in satisfaction of the amount claimed by her in the affidavit aforesaid.

This was the situation at the time the property was sold under the Kendall judgment.

It appears that Mrs. Davis made an effort to stay by injunction the Kendall proceedings, but failed to obtain the writ. Why — it is not stated.

Later she instituted suit, asserting ownership of the property, reciting the proceedings by which she acquired its title, its seizure and sale illegally under Kendall’s judgment, etc., and concluded with the prayer that “ she be declared the owner of said land, and, i{ not, that her mortgage be recognized and enforced.”

In the decree that followed trial, Kendall’s title, not hers, to the property was recognized, but she was adjudged to hold a legal mortgage for part of what she claimed from her husband, and the same was made executory against the property in the hands of defendant, Kendall.

The latter’s appeal to the Circuit Court was sustained and plaintiff’s demands rejected on the ground that the registry in the conveyance records of defendant’s title, decreed to be a security, primed the legal mortgage of the wife recorded posterior thereto in the mortgage records.

Then followed the application for rehearing, and, pending disposition thereof, the certification aforesaid here.

If the true object of the sale with the right of redemption was to secure an indebtedness antecedently or presently contracted, it was proper and right for the court, called upon to interpret and give effect to the agreement, to hold the parties to their intention, and decree the title held not one from which ownership results, but as a kind of security for the debt due.

But to effectuate this security it was, for this purpose, a ceding away — a transfer, a conveyance — of the fee of the estate by the vendor to the vendee to that extent that, after the appropriate registry thereof, the vendor could neither sell nor mortgage to another the same property to the prejudice of tfie first party.

'And, if this be so, it follows that neither could rights attach thereon by operation of law, like a legal or judicial mortgage, to his prejudice.

The contract between these parties was a legal one — a sale with the right of redemption being recognized by the law. C. C. 2567, et seq.

It was entered into for a lawful purpose, and while the intention was not the indefeasible divestiture of the ownership of the.vendor and its absolute investiture in the vendee it was the present and temporary, though actual, assignment of the fee in the land to the vendee, to be held by him as security for the sum representing the purchase price of the sale. This assignment of the title took the property off the conveyance and tax-assessment records as that of the vendor and placed the same on those records as that of the vendee, as well as defeated, so long as the fee remained in the vendee, the attaching of subsequent rights of sale or hypothecation, to his prejudice, in favor of any third person, emanating from the vendor.

It may well be, however, that rights in favor of such third person might accrue thereon, taking rank after those of the vendee.

When the legal mortgage of the plaintiff herein was inscribed in the mortgage records, it could not and did not attach to the land in question, for the conditions existing did not admit of it then nor subsequently. Neither the legal title nor the fee were at that time or subsequently in the husba’nd who owed the debt from which the wife’s legal mortgage resulted. And the legal title and fee remained in the husband’s vendee until he was repaid the sum representing his purchase price. He could not be divested of the same, directly or indirectly, until this money was returned to him.

It follows, therefore, that when he, first having sued in vain to be declared owner of the land, is awarded a judgment for the amount due him, with recognition of his security rights, and an order to sell in satisfaction thereof, and a contest arises over the proceeds of this sale between himself and the wife claimihg the legal mortgage, his rights must be adjudged superior to hers.

Or, the property having gone to sale under his judgment, at which sale he buys' the sheriff’s title (as was the case here), the wife can not .succeed in a subsequent petitory action, seeking to be declared its owner on the strength of the elation made to her by her husband as hereinbefore set forth. His title, first from the husband and then from the sheriff, must be adjudged superior to hers.

See Wolf vs. Wolf, 12 La. An. 529.

Farmer vs. Mangham, 31 La. An. 348.

Carter vs. Williams, Adms., 33 La. An. 261.

Leblanc vs. Bouchereau, 16 La. An. 12.

Williams vs. St. Stephen, 2 N. S. 22.

Collins vs. Pellerin, 5 La. An. 99.

Ware & Son vs. Morris, 23 La. An. 663.

Calderwood vs. Calderwood, 29 La. An. 658.

Thibodaux vs. Anderson, 34 La. An. 797.

Bailey & McKie vs. Chase, 18 La. An. 732.

Crozier vs. Ragan, 38 La. An. 154.

Howe, Executor, vs. Powell, 40 La. An. 307.

Zacharie vs. Buckman, 8 La. Rep. 308.

For the reasons assigned, this court is of the opinion that the question certified by the Court of Appeals must be answered in the affirmative, and that Kendall’s rights under the case as presented must be held superior to those of the plaintiff, Elizabeth Davis.

And it is ordered that this ruling be certified to the Honorable Court of Appeals, First Circuit, for its guidance.


author: Blanchard, J. Nicholls, 0. J.

text:
    No. 12,932.
    State of Louisiana ex rel. Nick Ramsay vs. Judge Third District of Louisiana.
    Application for mandamus to compel signing of bill of exceptions.
    A rule of court requiring bilis to be signed the next day after the taking of same is a proper and reasonable one, but its strict observance should not have been insisted on under the circumstances of this case.'
    It is no ground for declining to sign a bill that opposing counsel disputes the statement of facts embodied in the same, it being within the power of the judge and his province to liimself embody a true and controlling statement of the facts in the bill in his reasons for making the ruling excepted to.

      QN APPLICATION for a Writ of Mandamus.

      J. W. Holbert and John A. Richardson for Relator.
    Respondent Judge pro se.

    Submitted October 31, 1898.
    Opinion handed down November 21, 1898.
   The opinion of the court was delivered by

Blanchard, J.

The writ is sought to compel the respondent Judge to sign a bill of exceptions.

The relator was recently on trial in the Parish of Claiborne under an indictment for murder, was convicted of manslaughter, and from a sentence at hard labor has taken an appeal to this court.

The bill of exceptions was taken to a ruling of the judge in the course of the trial, and the averment is that it is necessary to his defence in this court and to the completion of the record sent here.

One J. M. H. Taylor being called as a juror was sworn on his voir dire, and examined touching his fitness to serve in the case. The questions propounded and the answers thereto were taken down in short-hand. At the conclusion of the examination and cross-examination, the State announcd its acceptance of the juror, whereupon the accused challenged him for cause. This challenge being overruled, an exception on part of the accused was noted and a bill reserved. This occurred late in the evening of the day of trial, October 10th. On the morning of October 12th, at motion hour of the court, the accused through counsel presented his bill of exception for the signature of the Judge. To this the Judge replied that the rules of court required bills of exception to be presented the morning after the taking of same, and, accordingly, the bill in question had not been seasonably presented, it being one day late. To this counsel for accused replied that it was through no fault or laches of the accused or his couusel the bill had not been presented earlier, that the stenographer had been so busy with other court matters it had been impossible for him to transcribe the examination of the juror Taylor on his voir dire from the stenographer’s notes, that this was necessary as the examination was an essential part of the bill annexed thereto, and that the bill had been prepared and presented at the first opportunity after the transcribed notes had come into possession of counsel for accused.

The Judge, thereupon, announced he would consider the question of its signature, and took possession of the bill with others reserved in the case.

These áre the averments under oath of the relator, who goes on further to say that he remained thereafter under the impression the Judge had, later, signed the bill in question, along with the other bills in the case, and that he and his counsel did not ascertain otherwise until the transcript of the case for appeal was being made out, when the bill, being missed, was searched for and found unsigned in the back of the Judge’s docket. He states this was after the court had adjourned for the term.

To the rule to show cause why the mandamus should not issue the Judge replies that the facts of the case are not correctly given by the relator, and proceeds to give his version of the occurrence.

In substance he says that Taylor was called as a juror late in‘the afternoon (five o’clock) of the 10th of October, not “ late in the evening,” and that shortly afterward court adjourned for the day; that when the bill was presented on the morning of the 12th, counsel for the State objected to its being signed as presented because the statement of facts in the bill embodied only the questions propounded to Taylor by counsel for the accused and his answers thereto, and did not contain the questions and his answers thereto, propounded on part of the State; that the bill, with this objection, was handed to him (the Judge) and on examining the bill he called the attention of accused’s counsel to the fact that the bill was presented too late under the rules of court; that counsel replied the bill had been prepáred as soon as the short-hand notes had been transcribed and he had been furnished with a copy thereof to be annexed to the bill; that he (the Judge) had heard nothing of the stenographer being too busy with other court matters to render it impossible to seasonably transcribe the notes; that he knew the fact to be otherwise and the notes could have been copied in time for the bill to have been presented on October 11th; and that on Oetobor 15th, before adjourning the sitting of the court, he announced his ruling on the onjection to the bill sustaining same, and he supposed relator’s counsel had heard him as he was present. He annexes a copy of the rule of his court relating to the time for presenting bills of exception for signature, stating, in that connection, that frequently attorneys, for reasons assigned, obtained extensions of time, and that he (the Judge) sometimes signed bills presented after time if there was no disagreement between counsel as to the facts, and if the facts were stated as he recollected them, but that he had always declined to sign bills when there was a dispute as to facts.

We think the bill should have been signed. All the doubts should have been resolved in favor of the accused in this as in other respects. When the bill was presented on the morning of the 12th the objection- of counsel for the State was leveled at the bill as drawn, not at the time of its presentation. If the bill, to make it fair and perfect, should have embodied, or had attached to it, a fuller reproduction of the examination of the juror Taylor on the voir dire, it was within the power of the judge to require it to be done, or he could have embodied same in his reasons, written in the bill, for making the ruling he did as to the competency of the juror, and thus have obviated the objection of the State. Nor does it appear that the statement of counsel for the accused, made when the bill was presented, that he had not been able seasonably to procure a copy of the examination, was controverted at the time. If it had been, he might have verified the same by a statement then and there from the stenographer, and the opportunity should,, at least, have been given him so to do, by the then raising of the issue of fact. , ’

To afterward deny the bill on the ground that he might have procured Taylor’s statement sooner, when his averment in this respect was unchallenged at the time he made it, was a ruling erroneous under the circumstances. And to deny the bill because it was not full enough in its recitals of Taylor’s examination, when it was in the power of the judge to order the whole examination on the voir dire into the bill, was also erroneous.

If the transcription of the notes could not have been had sooner, it furnished' good ground for not holding the accused or his counsel to the strict observance of the rule of court, and the judge’s reply to the relator’s application for the writ shows that while the rule existed, and is no doubt a proper one, its enforcement had not always been insibted on. Besides, it was clearly within his discretion, in a proper case, to depart from it, and we think the facts here make out a case where he could reasonably have done so.

For the reasons assigned it is ordered that the mandamus applied for be made peremptory, and that respondent judge sign the bill of exceptions annexed to relator’s petition, with full reservation of the right on his part to add to it the whole of the examination of the juror Taylor on his voir dire, and such statement of facts and reasons as he may chose to give for his ruling holding the juror to be competent.

It is further ordered that when thus executed the bill of exceptions be filed in the record of the case of the State vs. Nick Ramsey, No. , on the docket of the District Court in and for the parish of Claiborne, and be copied as part of the transcript of appeal in that case, the filing to be of date October 15, 1898, mono pro tunc.

And that costs herein incurred be borne by respondent.

The Chief Justice and Mr. Justice Breaux dissent.

Dissenting Opinion.

Nicholls, 0. J.

The relator seeks to obtain from this court, under its supervisory jurisdiction, a writ of mandamus to compel the District Judge in and for the parish of Claiborne to sign a bill of exception accompanying his petition, and to which is annexed certain questions propounded to and answered by one J. M. H. Taylor, who was tendered as a juryman in the case pf the State vs. Nick Ramsey, reeentiy decided, in which case relator was the defendant, and in which he stood charged with murder. Relator’s claim is that Taylor, being called as a juryman, was sworn on his voir dire. That relator’s counsel cross-examined him, and caused the shorthand reporter to take down the questions asked and answers -made by him under cross-examination. That after this was done, the State accepted Taylor as a juryman and defendant challenged him for cause. That the court overruled the challenge for cause, to which ruling defend, ant excepted — this occurring late in the evening of October 10. That on the morning of October 12, at motion hour, defendant, through counsel, presented his bill of¿exception for signature, but the court, after looking over the bill, stated that the rules of his court required that bills of exception should be presented the next morning after taking the same at motion hour, and that this bill was not so presented, it being the second morning. That defendant’s counsel stated that it was no fault of defendant or his counsel that the shorthand reporter was so busy with other court, matters that it had been impossible for him to write out the evidence from his notes, and that the bill had been prepared and presented at the first opportunity after the evidence was given them to be annexed to the bill. That the judge stated he would consider whether or not he would sign it, and he took possession of the same with others. That relator thought the judge had signed the bill and had signed it with the others, and that he and his counsel did not detect, Or find out otherwise, and that it had not been filed as a part of the record until the transcript was being made up for appeal, when on examination it was found on the back of the judge’s docket unsigned; that this was after the court had adjourned for the term; that by these facts is shown a refusal of the judge to sign the bill. Relator avers that it was the duty of the judge to have signed the bill, or given his reasons for refusing to do so; that it is his right to have the same signed and receive the benefit thereof; that the court can make no rule which would deprive an accused person of a fair and impartial trial, when non-compliance with same is not to be attributed to any fault or laches of defendant or his counsel. In answer to a rule served upon the judge to show cause why the mandamus asked for should not be issued, the District Judge states that the relator does not give the facts of the case correctly, and gives them as follows:

Taylor was called on the afternoon of Monday, October 10, about 5 o’clock, and not “ late in the evening,” as stated by relator, and shortly after court adjourned until next morning. When the bill was presented at motion hour, on October 12, Mr. E. H. McClendon, an attorney for the State, objected to its being signed as presented, because the statement of facts in the bill contained only the ques - tions propounded by defendant’s counsel to Taylor and answers thereto, and did not contain 'any statement of Taylor’s answers to questions propounded by the attorneys for the State. The bill of exceptions and this objection were handed to me at the same time, and on looking at the bill I called the attention of defendant’s counsel to the fact that the bill was presented too late — a rule of court requiring that bills of exception be presented the morning after being reserved. ■ To this counsel stated that the bill had been prepared and presented as soon as the shorthand reporter had furnished the typewritten copy of Taylor’s examination to attach to the bill. That he (the judge) heard nothing of the shorthand repoi'ter’s being so busy with other court matters it had been impossible for him to write the evidence from his notes; that it was to his, the judge’s, personal knowledge that the shorthand reporter could have furnished, the typewritten copy by 8 o’clock P. m. October 10, and in ample time for counsel to have prepared his bill for presentation at morning hour, October 11. That on the 15th of October, before adjourning the sitting of the court, he announced from the bench that he had not signed and ordered this bill to be filed; that relator’s counsel was present, and he (the judge) supposed he. heard what was said, and he knew of no reason why relator or his counsel should suppose the bill had been signed and filed. That the rule of court on the subject was as follows:

“Bills of exception to the ruling of the court must be presented at or before motion hour on the day after they are reserved, except, those reserved on the last day of the term, and those must be presented on said last day.”

The judge states that this rule was adopted in 1888; had been-printed with other rules of the court, which had been furnished to-members of the bar, who had never before complained of the same. That it was adopted so that bills should be presented while matters were fresh in the minds of all parties, though attorneys had frequently, for reasons assigned, obtained an extension of time. That he had sometimes signed bills presented to him after time if there was no disagreement between counsel as to the facts, and if the facts were stated as he recollected them, but that he had always declined to sign bills where there was a dispute as to facts.

That relator’s counsel had full knowledge of this rule; had ample time to prepare and present their brief in accordance with the rule, or for cause shown, might have had time extended, and in not doing so were guilty of laches and a total disregard of the rule of court.

That relator had not been deprived of any right whatever by any act of the judge; that, on the contrary, his counsel’s not presenting the bill in time, and not stating all the facts in sa'id bill, was the reason why the bill of exceptions was not signed and made a part of the record. That he declined to sign the bill for the reasons set forth. That it was necessary that he should compel an observance of the rules of his court. That he had a right to adopt rules, not contrary to law, and he knew of no law which this particular rule violated. He referred the court to Art. C. P. 145; Green vs. Dakin & Dakin, 15 La. 152; State ex rel. Gervais Leche vs. Waggner, 42 An. 54. Just. before closing his answer the judge declared: “Should the court make the mandamus peremptory I hereto annex my reasons for overruling the challenge of the juror, Taylor, for cause, and in that event ask that it be considered just as though filed in the bill of exceptions attached .to relator’s petition. I do this so that if the rule in contest be declared void, and it can not be enforced, the.trial of the case of State vs. Ramsey may not be delayed.”

The reasons so assigned were as follows: “In his answers to questions propounded by counsel for the State Mr. Taylor very emphatically declared that he had no interest either for or against the defendant; that he had no feeling in the case whatever; that he was not related to the defendant or the ■ deceased, and that while he had a fixed opinion he stated emphatically that he could lay that opinion aside and try the case fairly and impartially on the law and the evidence adduced on the trial. The court has known J. H. M. Taylor for twenty years, knows that for the last two or three years he has been engaged in a business which carried him away from the town of Homer a large proportion of his time and had that confidence in him as a man which satisfied the court that he could try the case fairly and impartially.

“The challenge was made by counsel for defendant for cause without stating what the basis of the cause was and L ruled on it solely on the question of the juror’s ability to lay that opinion aside and try the case impartially on the law and the evidence adduced on the trial.”

The unsigned bill of exceptions annexed to relator’s petition recites that in trying the case the name of J. H. M. Taylor was drawn from the box in selecting the jury and he was called. That on his ¡voir dire he made the answers to the questions propounded to him which were annexed to and made part of the bill. That he was accepted by the State, and on being submitted to the defendant he! was challenged “ for cause.” That the court overruled the cause! And forced the defendant to exercise one of his peremptory chal-I lenges. To which ruling the defendant excepted and tendered his bill of exception after submitting same to the counsel of the State, pray-l dng that it be signed and made part of the record. |

To this bill were annexed questions propounded to and answeredj by Taylor as follows:

“J. H. M. Taylor sworn:
“ Q. You live in the town where the homicide occurred?
“A. Yes, sir.
Q. You were here on the night of the homicide?
“A. Yes, sir.
“ Q. You came down to where the homicide occurred that night?' “ A. Yes, sir.
“ Q,. You were present at the coroner’s inquest?
“ A. No, sir.
“ Q. You were present at the commitment- trial?
“ A. I heard Mr. Kelley’s evidence and I read his statement in the paper.
“ Q,. You heard a good deal of talk around town on the night of the homicide?
A. Yes, sir.
Q. You assisted in laying out the deceased and burying him?
A. Yes, sir.
“ Q,. This trial has been had three or four times now, which trial was it that you heard Mr. Kelley’s evidence.
“A. Well, I think it was the last trial.
Q,. You knew Mr. Kelly to be a witness to the transaction.
“A. Yes, I heard him say so.
Q. Have you any bias or prejudice for or against the accused.
“ A. No, sir, I have none.
“ Q. You say you heard Mr. Kelly’s evidence, did you hear the testimony of any other witness?
“ A. Yes, sir; I heard I think a part of Mr. Ledbetter’s; maybe I just walked in the court room two or three times while the trial was going on. I heard part of the argument of the two trials.
Q. From all this you have formed an opinion?
“ A. Yes, sir.
Q. At this time is that a fixed opinion?
“ A. Well, of course it is a fixed opinion now. Yes, sir.
Q. If you are sworn as a juror, Kelley’s evidence being the same, your opinion would remain the same?
“ A. Well, of course, if the evidence was the same that opinion would be unchanged.
Q. Well, Mr. Kelley’s evidence would have to be different from what you have heard on the former trial to change your opinion?
“ A. Yes, sir, and some others.
Q. Are you satisfied that you can disregard the opinion you have now and the evidence you have formerly heard, and try this man fairly and impartially on the evidence here?
“A. I think so.
“ Q,. The question is, do you know that you can do it?
“A. Yes, sir. '
“ Q,. The evidence of Kelly being the same?
“A. Yes, sir.”

The only question before us upon this application is whether the District Judge improperly refused to sign the bill of exceptions reserved and tendered by defendant’s counsel. In justification of his course the judge calls our attention to a rule of his court which he informs us was not complied with, requiring that all bills of exceptions reserved during a trial should be tendered during motion hours of the day. Relator claims that it was impossible for him to have complied with the rule, inasmuch as the court’s stenographer was unable, by reason of other business, to make out from his notes the answers made by the juror to the questions propounded to him. The judge denies the correctness of that statement. Be the fact as it may, the judge informs us that the rule in question is not an absolutely fixed and arbitrary rule enforced by him on all occasions, independently of all attendant circumstances, but simply a general rule adopted in the interest of exact and prompt administration of justice, requiring the tendering of the bill in the time stated, but subject to be relaxed on application for extension of time. The judge states that no extension was asked for and no explanation made to him, as should have been done. He furthermore states that when the bill was in fact presented to him objection was made on the part of the prosecution to its being signed, on the ground that the stenographer’s notes covered only the questions propounded and answers made on cross-examination of the juror on his voir dire, and not those on the main or original examination by the State.

The rule of the District Court referred to, as explained by the judge as to its enforcement, is not an unreasonable one. I think relator’s counsel should have asked for an extension of time if there were facts calling for the same. If the judge refused, counsel could then have made issues of fact and brought them up under bill of exception. I do not think it was essentially necessary for relator to have awaited the writing out of the stenographer’s notes to have prepared and tendered a bill. He could have made out a detailed statement of facts by way of recitals in the bill, declaring that the same would be verified by stenographer’s notes, to be thereto attached, and he could have attached the notes afterward (identified and verified with the bill). The bill as drawn up and forwarded with relator’s petition contains no recitals as to what the questions asked and the answers thereto were, but leaves that to be shown by stenographer’s notes to be attached. These notes when attached were objected to, on the ground that they were partial, covering only the questions and answers upon the cross-examination. It is quite possible that they covered what was in reality the important part of the examination, but that is mere conjecture on our part. I think the whole of the examination of the juror on the voir dire should have been taken down and preserved, and not a fragment. The judge had the right, but was not under the legal obligation to modify the bill. I can not say that the judge failed to perform his duty in declining to sign the bill under the circumstances disclosed. It would, however, have been better for him to have in writing, at the foot of the bill, refused to sign the same and given his reasons therefor.

For these reasons, I think relator’s application for a mandamus should be refused.

Breaux, J. concurred in the dissent.


text:
    No. 12,911.
    Mrs. Emma Henkle vs. Mrs. Florence Bussey, Wife, and C. A. McGowan, Husband. In Re C. A. McGowan Applying for Certiorari, or Writ of Review, to the Court of Appeals, Third District, State of Louisiana.
    Certiorari, under Constitution, Art. 101, will not issue to review decisions of Court of Appeals as to questions of fact. {In re Ingersoll, 50 An., recently decided; In re McLain, 50 An., recently decided; Tn re Murff, 50 An., recently decided).
    Applicants to Supreme Court for certiorari under Art. 101 of the Constitution from decisions of Courts of Appeal, should assigntheir particular grounds of complaint, and specify wherein, in their view, the decisions sought to he reviewed depart from the jurisprudence of the State.

      Foster & Broussard for Petitioner.

      W. F. Blackman and Julian Moioton, Respondent Judges, for themselves.
    Submitted on briefs November 7, 1898.
    Opinion handed down November 21, 1898.
   The opinion of the court was delivered by

Nicholls, C. J.

In re McLain et al., No. 12,903 of the docket of this court, it was held (affirming In re Ingersoll, recently decided, and In re Murff, No. 12,996, recently decided), that the writ of certiorari authorized to issue under Art. 101 of the Constitution, was not intended to enable parties to review in the Supreme Court decisions of the Courts of Appeals on mere questions of fact.

The decision which relators seek in this proceeding to have reviewedns a decision of the Court of Appeals of the Third Circuit in a petitory[aetion based upon the evidence adduced.

In the brief filed on behalf of the relators counsel say:

“We have quoted at length (the evidence) from the record only for the purpose of showing that the judges of the Circuit Court have drawn wrongful conclusions from the same, and only for the purpose of showing that they, in coming to their conclusions, have never referred to the salient .parts of the evidence, but to only disconnected parts thereof apparently justifying their conclusions. We admit the propositions they lay down to be correct ones of law.”

Under such conditions we must decline to review the judgment of the Court of Appeals. In the Murff case this court said:

“ This writ of certiorari was not given to clothe the court with appellate jurisdiction, but to issue only in exceptional cases, mainly to secure uniformity .of jurisprudence.”

In matters of this character we expect not only that the legal principles upon which the case sought to be reviewed was decided should not be admitted to be correct, but that general^ they should be specially attacked, and the claimed departure of the Court of Appeals in their decisions from the jurisprudence of the State should be specifically pointed out to us.

For the reasons herein assigned it is hereby ordered, adjudged and decreed that relator’s application for a review of the judgment of the Court of Appeals of the Third Circuit, referred to in his petition herein, be and the same is hereby dismissed.


author: Nicholls, O. J.

text:
    No. 12,865.
    State of Louisiana vs. Thelesmar Marceaux et al.
    The overruling by the District Court of a challenge for cause of a juror tendered to the accused for acceptance floes not furnish ground for reversal of verdict and sentence, when the acctised has not, at the time when the jury has been completed, exhausted his peremptory challenges.
    • A witness, ISenoit, was permitted by the court, over defendant’s objection, to testify that he was engaged by the accused to assist him in driving cattle, and started with him under such employment; that while so engaged, the latter made a proposition to him that they should steal a drove; that on witness declaring he could not do so, accused replied that that was nothing; that they could buy a few head and pick up some along the road; that he (the accused) had been carrying on that business for the last six years; that he had once cleared four thousand dollars in four months in that way; that witness at once left the service of the accused, and both returned to witness’ house, where the two parted; that on parting with witness, accused said, he would go and meet one Bell, and they would gather a drove. Defendant’s ground of objection was that the conversation in question was not made at the time of the taking of the cattle for which he stood charged with larceny, and for which he was then on trial, and it did not form part of the resge$t<c having been made prior to the date of the alleged offence, and that said satements attributed to him were not admissions on his part of guilt of the offence with which he was charged. The court admitted the testimony, not to show a distinct crime, but to show intent, knowledge and system, and to show the admissions and statements made by accused as to the character of the business in which he was engaged. The court declared that the evidence showed a great similarity in the way the cattle alleged to have been stolen were taken, with that detailed in Benoit’s testimony.
    The ruling* of* the District Court was correct.
    The testimony detailed a proposition made by the accused to the witness, then in his employ driving cattle, to join him in stealing cattle in a certain way, which proposition was followed very shortly afterward by accused being charged with having stolen cattle in his possession taken in the way which theproposition suggested they should be taken. The evidence was pertinent, relevant and admissible to show intent, and to give character to the nature of the defendant’s possession of the cattle held by him. It showed an admitted pre- - meditated plan to steal cattle generally, followed almost immediately hy his having stolen cattle in his possession.
    The sheriff who arrested the accused testified, that the accused when arrested “looked like a man who had been up all night as if he had no sleep; his leggings were all wet and muddy.”
    Defendant objected to the answer, but the court permitted it to stand. The court stated the answer was elicited by the defence in the cross-examination of the i sheriff, and was not in reply to a question of the District Attorney,
    That it was pertinent for the State to show as a corroborative link in the State’s evidence the condition and general appearance of the accused on that morning. Defendant objected that “the witness was submitting his opinion, not facts to the jury.” The general rule is, that witnesses must state facts and uot opinion, but the rule is subject to many exceptions, and under the facts of this particular case the answer was properly permitted to stand.
    A District Attorney is not justified in his argument to the jury in calling attention to the fact that the accused had not testified in his own behalf. His doing so is reversible error, which is not cured by the court’s telling the jury “ that the right of an accused to testify was a privilege accorded to him which he had a right to exercise or not, as he saw fit; and that ii he testified, lie subjected himself to all the rules which applied to other witnesses, and that his failure not to testify if he choose not to do so, was not to be construed for or against him;” and by the District Attorney’s stating to the jury, that the instruction . given them by the court was the law.
    f\N APPEAL from the Seventeenth Judicial District Court for the ^ Parish of Vermilion. Be Baillon, J.

      M. J. Cunningham, Attorney General, and Minos T. Qordy, District-Attorney, for Plaintiff, Appellee.

      Edwards & Green, J. A. Chargois, L. L. Bourges, A. & Chas. Fontelieu (Sigur, Milling & Sanders, of Counsel), for Defendant, Appellant.
    Argued and submitted June 18, 1898.
    Opinion handed down June 25, 1898.
    Rehearing refused December 5, 1898.
   The opinion of the court was delivered by

Nicholls, O. J.

Defendant, indicted for larceny, was convicted and sentenced to hard labor in the penitentiary for two years. He urgés, in reversal of the verdict and. judgment, that having been indicted prior to the going into operation of the Constitution of 1898 he was, over his protest, tried and convicted by a petit jury of five-

His counsel contends that Art. 116 of the Constitution of 1898 required legislative action fo put it into operation; that it was not self-operative.

This identical question has just been decided by us adversely to appellants’ position. See State vs. Caldwell et al., 50 An., recently decided. He urges that the court illegally sustained the State’s challenge for cause o’f the juror Senac, who, on his voir dire, had stated that his father and the mother of the accused were first cousins. It is contended the relationship between the parties did not fall within the prohibited degrees.

The court, in its addendum to appellant’s bill on this point, stated that Act No. 99 of 1896 did not fix the degree of relationship that the law provides; that the judges of the District Court shall have discretion to decide upon the competency of jurors in particular cases when, from physical infirmity, or from relationship, or other causes, the person may be, in the opinion of the judge, incompeteut to sit upon the trial of the particular cause. That defendant had then eight peremptory challenges left, having challenged only four jurors peremptorily. That the right of peremptory challenging was a right to reject and not to select. Citing State vs. Shields, 33 An. 1410; State vs. Farrer, 35 An. 315; State vs. Creech, 38 An. 480; State vs. Durr, 39 An. 752; State vs. Carries, 39 An. 931; State vs. Lewis, 41 An. 590; State vs. Covington, 45 An. 979; State vs. Nash & Barnett, 45 An. 1143; State vs. Porter, 45 An. 661; State vs. Tibbs, 48 An. 1281.

It is not claimed that at a later stage of the proceedings defendant exhausted his peremptory challenges.

The authorities cited sustain the position taken by the State, that appellant’s complaint touching the sustaining of the challenge to this juror is not well grounded.

Appellant further complained that a witness (Benoit) was illegally permitted to testify to certain conversations between himself and the accused prior to the alleged commission of the offence on the 20th of December, 1897. Benoit’s testimony was taken outside of the hearing of the jury, and subsequently he testified as a witness. The testimony was substantially “that in November or December, 1897, accused stayed all night at witness’ house; that the-next morning he told witness that he had come there to gather a drove; that he had before this proposed to witness that he should buy a drove, and on his saying he did not have the money, he said he would buy it and they could send it to New Orleans. The witness, without stating that accused then asked him to accompany him on his trip to buy or gather cattle, and that he had consented to do so, and that they started upon their trip for that purpose, leaves it clear that he intended’to convey that such was the fact, for he went on at once to say that “ when they (accused and himself) got on the other side of Bayou Plaquemine there was a fine forest about a mile wide where they found a drove of cattle, and they stopped to examine the quality of the cattle; that accused then and there made a proposition to him to steal a drove. That on witness telling him he could not do it, he said that that was nothing; that they could buy a few head and pick up some along the road as they went. That he said he had been carrying on that business for the last six years. On his making this statement witness proposed that they should turn and go back to his house; that they did so, getting there at night; that upon arriving they unsaddled their horses; that they took supper together, and after supper they parted, accused saying ‘he would go and meet Joe Bell, and they would gather a drove.’ That accused told him that in four months he had cleared one thousand dollars in that way.”

Defendant objected to the giving of this testimony on the ground that “it was not made at the time of the taking of the property for which he was charged and for which he was on trial — for the further reason that it did not form part of the res gestas, having been made prior to the date of the alleged offence for which defendant was not on trial, and that the said statements attributed to defendant were not admission of guilt on his part of the offence charged and for which he was on trial.”

The court assigned the following reasons for overruling the objec - tions: “ The defendant was seen driving a herd of cattle early in the morning of December 14, 1897, between Perry’s Bridge and Abbe-ville. It turned out that the cattle belonged to five different persons. After the discovery of the larceny accused left the parish and remained absent until arrested by the sheriff, near Obelin, in Oalcasion parish. The evidence was admitted, not to show a distinct crime, but to show intent, knowledge and system, and to show the admissions and statements made by the accused as to the character of the business in which he was engaged. It was admitted for no other purpose. The evidence showed a great similarity in the way the cattle alleged to have been stolen were taken and as detailed in the testimony of Benoit.”

Accused did not object to particular specified portions of the testimony, but to the whole. We think the testimony was properly introduced for the purpose stated.' It detailed a proposition made to the witness by the accused to join him in stealing cattle in a certain way, which was followed very shortly afterward by accused being charged with having stol.en cattle in his possession, taken in the way it was suggested they should be taken. It might well happen that a person driving a herd of cattle belonging to himself on the highway, should by accident, take into the drove cattle belonging to other persons, and the question of intent would be the all-controlling factor* in the case touching guilty possession. We think that a statement by accused of proposed, future action on his part bo steal cattle — to “buy some” and “gather in others,” was pertinent, relevant and admissible testimony to show intent and to characterize the subsequent possession of the cattle which we assume he had been shown to have had in his possession not belonging to himself and “ gathered in” in that way. The object was not to show that these particular cattle were stolen, but to show a premeditated plan thereafter to steal them generally.

Appellant complains that the sheriff of the parish being on the stand, the District Attorney asked him: “ What was the appearance of the defendant, Marceaux. that morning? Oould he look you in the face?” and that, although defendant objected thereto, on the ground that the answer would be the opinion of the witness, the question was permitted to be asked by the court, the answer being that “ he looked like he had not slept any the night before; it was plain to see that he was guilty.”

The court says “ the sheriff did not make the answer attributed to him in the bill to the question objected to; that he answered the question as follows: He looked like a man who had been up alj night; as if he had had no sleep; his leggins were all wet and muddy.’ The court says the cattle alleged to haye been stolen were seen in the possession of the accused early that morning, between,Perry’s bridge and Abbeville, and, after putting the cattle in a wooded pasture, the accused came to Abbeville, where he was met by the sheriff, and the question was directed to the condition or general appearance of the accused at that time. It was pertinent for the State to show, as a corroborative link in the State’s evidence, the condition and general appearance of the accused on that morning. The answer objected to in the bill was elicited by tbe defence in the cross-examination of the sheriff, and the answer was not in reply to the question propounded by the District Attorney.”

The correctness of the court’s statement “ that it was [in the case at bar] pertinent for the State to show, as a corroborative link in the State’s evidence, the condition and general appearance of the accused on that morning ” is not called in question. We have, therefore, to assume that the question was relevant to the issue, and to ascertain (such being the case) whether the particular objection raised that the State was illegally seeking through it to have submitted to the jury, not facts, but a mere opinion of the witness, was well grounded.

It needs no special citation of authorities to support the general proposition that witnesses must state facts and not opinions. A number of decisions of our own court on this subject can be found in Hennen’s Digest, verbo Evidence, subdivision XVI, page559. The rule, however, is subject to very numerous recognized exceptions. Jones on the Law of Evidence, Vol. 2, Sec. 362, refers to the subject in this manner: “We shall ñrst call attention to a class of exceptions where the opinions of ordinary witnesses are received. It often happens that it is impossible for a witness to detail all the pertinent facts in such a manner as to enable the jury to form a conclusion without the opinion of the witness. Indeed, the witness may not be able to separate the facts and indications from which he has formed a conclusion from the conclusion itself. From many of the illustrations given below it will appear from the necessity of the case the opinions of ordinary witnesses must often be received. For example, the opinions of those not experts may be received as to the disposition or temper of animals, as to matters of color, weight, quantity, light, darkness, the state of the weather and similar facts, the state of feeling existing between different individuals, the appearance of individuals, the age of persons, the reputation of parties or witnesses, when under other rules of evidence such reputation becomes material. * * * So ordinary witnesses have been allowed to express opinions as to whether another person seemed to be suffering pain, or whether he seemed nervous or sad, or in pain or good health, or whether a person’s mind seemed to be clear or had failed or whether he needed medical attendance, or in what manner a person had acted, or whether a child was fully developed. Although some of the illustrations just given approached very closely to the border line, it is not to be inferred that the opinion of ordinary witnesses are competent as to those subjects which require special study and skill — for example, to distinguish between different forms of disease, or to state the causes and consequence of eases. A common illustration of the same principle is the admission of the opinion of witnesses as to the state of intoxication or sobriety of others. The witness is allowed to describe the words, acts and gestures, or he may omit such particulars and state his conclusions.”

A question of this character was disposed of, with many citations of authorities and full assignment of reasons, by the Supreme Oourt of Alabama in Thornton vs. State, 21 Southern Reporter, 356.

In that case the court held that where the sheriff had testified that he met the defendant after the homicide he could state that “ defendant iooked frightened when he saw him.” If the fact of the “ defendant’s appearing frightened” was a pertinent and relevant qustion in that case it was obviously out of the power of the witness to have conveyed to the jury any circumstance which would have enabled them to have determined themselves whether, in point of fact, he looked frightened or not. The only way in which that fact oould be proved was by the conclusion reached by the sheriff, conveyed to them under his oath. We are of the opinion that the testimony was properly admitted.

Appellant charges and complains that the District Attorney in his closing argument to the jury said to them: “Why did not Mar•ceaux [defendant] go on the stand and testify on his own behalf .if he was not guilty; he had the right to do so. He did not do it because he knew better,” etc. That counsel interrupted him, objecting to such statement on the ground that he had no right to make such a statement to the jury, as it tended to prejudice it against the accused, and that under the law it could not be inferred that accused was guilty because he did not testify in his own behalf; that the objection was overruled and the District Attorney was permitted to proceed with his argument. The court says it made no such ruling as was charged; that when interrupted the District Attorney had not finished his statement. In his opening (not his . closing argument) the District Attorney made the following statement: Why did not Telesmar Marceaux go on the stand and testify in his own behalf; he had the right to do so; he did— and at this point counsel for defendant interrupted the District Attorney and objected to the statement. The court informed counsel for defendant that it would instruct the jury fully on this point, and then and there told the jury that the right of an accused to testify was a privilege accorded to him, and which he had a right to exercise or not as he saw fit. If he testified he subjected himself to all the rules which applied to other witnesses, but that his failure to testify, if he chose not to do so, was not to be construed for or against him. That the District Attorney did not persist in his. argument on this point and did not finish the sentence, but told the jury the instruction given them by the court was the law. The court stated that in ts charges to the jury it instructed them fully upon this point in the following language: “The court instructs the jury that while the law provides that a person charged with a crime may testify in his own behalf, yet he is under no obligation to do so, and the law expressly declares that his failure to testify shall not be construed for or against him.”

The complaint made by the accused that the District Attorney improperly commented upon his failure to testify is based upon the provisions of Act No. 29 of 1886, which, while granting a party accused the privilege of testifying in his own behalf, provides that his failure to testify should not be construed for or against him.”

He contends that the object, purpose ahd spirit of the law is to prohibit the District Attorney from calling the attention of the jury to the subject, as otherwise a statute intended for the benefit of the accused would be converted into a positive injury to him; that prior to the statute an accused person not having the power to testify, his silence was a protection to him, but that now it would forcedly prejudice the jury against him.

The State urges that the District Attorney merely started to hold accused responsible for not establishing a certain fact that fell under the principle, that when a fact is particularly within the knowledge of a party who fails to establish that fact, he is responsible whether his ability to establish it depended on his own or any other evidence under his control; that when defendant’s counsel objected the District Attorney desisted — the judge instructed the jury that failure to take the stand was not to be construed.against him; that the District Attorney endorsed the soundness of that instruction and withdrew the-remark. That as shown by the statement of the judge this occurred in the opening argument and not in the closing argument as claimed. by counsel for appellant. That the action in the matter was in accord with that endorsed in State vs. Ohevis, 48 An. 575, and appellant has no cause for complaint. Reference is made to State vs. Johnson & Butler, 48 An. 87; State vs. Anderson & Blackstone, 45 An. 654; State vs. Mack, 45 An. 1157, and State vs. Duck, 35 An. 764.

The facts in State vs. Chevis, 48 An. 577, are not similar to those of the case at bar. The District Attorney in the Ohevis case made no allusion to the failure of the defendant to take the stand as a witness; he simply argued to the jury that the burden of proof, as to a certain point was upon defendant, and it being a matter peculiarly within his knowledge, and the defence not having met the burden, the fact involved was to be taken adversely to defendant. In the present case the District Attorney, according to the bill of exceptions (the recitals of which are not denied) when he was stopped from saying more had already said to the jury: “ Why did not Marceaux go ort the stand and testify in his own behalf — he had the right to do so — he-did — ” The failure of the defendant to go upon the stand to testify (not his failure to place other parties on the stand, or his failure to introduce evidence to establish a certain fact) was the subject of direet comment, and the jury’s attention was specially called to-the fact that no obstacle stood in the way, “ as he had the right to-do so.” There is no doubt of the existence of the fact that the jury’s attention was called by the District Attorney to appellant’s not having taken the stand in his own behalf.

If the remarks were illegal, they certainly had been made when the District Attorney was stopped from further comment by objection from defendant’s counsel. Two questions arise — first, whether the remarks were illegal and wrong; and, second, whether if illegal and wrong, the subsequent action of the court in its charge to the jury and the admissions of the District Attorney to that body, cured the illegality, and did away with the wrong and prejudice which may have resulted from the same. In Reddick vs. The State, 21 Southern Reporter, 490, the Supreme Oourt of Mississippi held, that under-the article of the Code of the State forbidding the prosecuting attorney to comment on the failure of accused to testify in his own behalf, such comment thereon was ground for reversal of a conviction, though the court directed the jury to disregard it. It said: “ It is true, that immediately on the prisoner’s counsel excepting to the language of the counsel for the State, the court instructed the jury that the District Attorney was prohibited by law from commenting on the defendant’s failure to take the stand in his own behalf, and that the jury must not consider any such comment. But this action of the court could not and did not undo the wrong already done. The statute absolutely forbids any comment on the failure of the accused to testify, and it is the right of every person charged with the crime to insist that he enjoy this statutory immunity from criticism by hostile counsel, and the disregard of this plain statute, and the decision of this courtuponit, must reverse the judgment appealed from.” The court cited Yarbrough vs. State, 70 Miss. 593, 12 Southern Reporter, 551, as authority to the same effect.

The only difference between the two Mississippi cases from that before us is in the language of the statutes of the two States. The Mississippi law declares that “ the failure of the accused in any case to testify shall not operate to his prejudice or be commented on by counsel,” while the Louisiana statute is to the effect that the “ failure (of the accused) to testify should not be construed for or against him. ”

In the one case the prohibition is direct and positive; in the other it is inferential and consequential, but strong and clear.

In our opinion, the terms of the law convey with them a mandate from the State to her officers charged With the enforc'ement of the laws (a direct mandate to the judge and an implied one to the District Attorney), that what was intended by the lawmaker as a privilege should not be permitted to be made to be turned into an instrument of attack upon those for whose benefit, and not for whose injury, the law was enacted.

We are in accord with the Supreme Court of Mississippi when it says that the wrong once done can not be undone by mere admissions of the District Attorney or attempted correction by the court.

Once granted that a simple retraction suffices to replace matters as they were, and the law would become practically a dead letter; the thing prohibited could be accomplished by easy methods without possibility of rectification through the courts. “Comment was made, unfriendly comment, too; and prejudice may have been operated against the accused, and so he has not the trial he was entitled to under the law.” (See on this subject Wilson vs. U. S. 149, U. S. 60; Hunt vs. State, 28 Texas, 149 [12 S. W. 737] ; Johnson vs. State, Texas Crim. App. [20 S. W. 980] ; Braxell vs. State, Texas Crim. App. [24 S. W. 414] ; Richardson vs. State, Tex. Crim. App. (26 S. W. 723) ; Dawson vs. State [Iowa], 55 N. W. 97.)

For the reasons assigned, the verdict of the jury and the judgment of the court thereon are set aside and the cause remanded for further proceedings according to law.

Justices Breaux and Miller dissent.

Rehearing refused December 5, 1898.