author: Egan, J.

text:
    No. 6449.
    Succession of Celestine Dorville, Widow of Felix Henry Loze.
    Tlie executor of a succession -which embraces a plantation among its assets is authorized to employ a competent person to take charge of the plantation, and keep its improvements in proper repair, when it appears from the evidence that it was impracticable to lease the place, and that the services of the keeper enured to the benefit of the property in his charge. A reasonable compensation to the keeper, in such a case, will be allowed as a privilege debt of the succession.
    APPEAL from the Second District Court, parish of Orleans. Tissot, J.

      John 8. Tully & C. E. Schmidt, for appellant.

      J. Euvigneaud and W. E. Murphy for appellee.
   The opinion of the court was delivered by

Egan, J.

This is an appeal by one Dorville from a judgment of the Second District Court of Orleans, disallowing an account in his favor of $689, less a credit of $310, for which amount he was placed upon the account and tableau as a privileged creditor, the same being for fees as keeper of the residence and farm of decedent, a short distance below the U. S. Barracks, and near the Slaughterhouse, on the river front, under employment as such by the executor by special contract at the rate of $1 per day from seventeenth December, 1873, until the property was sold in the fall of 1875, the sixth of November. There is no dispute as to the time during which the appellant acted as keeper, and for which he charged in the account. The opposition is based upon the alleged fact that no keeper’s fees at all should be allowed, because it was not necessary to incur the same — that other persons than Dorville could have been had to act as keeper without charge, and that the place could and should have been rented or leased out and thus the expense of a keeper avoided. The contract with Dorville and the regular and faithful rendition of the stipulated service by him are clearly proved, and not denied by any witness or contradicted by any evidence.

The duties of the keeper were to take care of the farm — to keep in repair the fences, which were numerous, old, and in bad repair. Besides the front and side fences, the latter of which were common to adjoining farms, there were several cross fences, besides the back fence. He also was charged with the duty of caring for and selling fruit from the place, of which there was considerable quantity and variety, and also to attend to the cattle and pasturing of 'cattle for pay upon the place, for which purpose pastures upon it were designed and used, it being very near the Slaughterhouse, and, therefore, convenient for that purpose.

The keeper performed all these duties faithfully and to the satisfaction of the executor, who frequently visited the place, and who required of Dorville, and was furnished by him. with a regular account of all cattle pastured upon the place, which furnished with the fruit sold, considerable revenue. Dorville also supervised one or two small tenants on the place, and collected the rent from them for the executor. The latter swears that he selected him because he knew him to be a man upon whom he could rely, and that he was a thoroughly honest man. The mere repair and keeping up of the numerous fences in their condition, and which it is evident was absolutely required in order to save the heavy expense of new fencing, and for the care of the place, occupied the keeper from four to six hours each day. His attention on the place was constantly required for its mere preservation, and that of the fruit, cattle, etc., and he could not and did not, by reason of this employment, seek or pursue other occupation for a livelihood. He was a relative of decedent, and liad lived upon the place with her prior to her death, and it seems to us that he was every way a suitable and efficient person for such employment, and that he performed his duties faithfully.

It is true that two or three witnesses swear that they either had or knew of other farms upon which there were either no keepers or persons who lived upon them for the privilege of cultivation and were charged with the duty of keeping up the fences. These places were not, however, used for purposes of pasturage for hire, nor is their similarity in the nature and extent.of the fencing upon them shown, neither is it stated that there was upon them fruit, either to be sold or cared for, nor is any thing said of the character or number of the houses upon them. Some of them are said to be several miles from the city, and they did not belong to successions, but to living persons who could themselves see to or care for them and make their own contracts. One witness mentions the proximity of this farm to the Slaughterhouse and to the city railroad as reasons why it did not require a keeper, and why one living upon the place could have got other employment.

We think the facts stated, together with the other evidence in the record of the uses to which the place was put (to afford pasturage to the cattle designed .for slaughter) and the exposure of the fruit and everything about the place to plunder, loss, or destruction, from its being in a thoroughfare and near much frequented places and with ready facility of approach, really made the employment of a keeper all the more necessary. Indeed, the evidence shows that Dorville was more properly a managing agent than a mere keeper. As to the charge that the executor ought to have lived on the place, his reason for not doing so is very satisfactorily shown.

The Citizens’ Bank had a mortgage upon it which was continually threatening foreclosure and under which the property was ultimately sold after having been once before seized at a time when the property would have been sacrificed and when a sale was only prevented through the intervention of the executor in order that the property might bring a better price. The wisdom of this course is demonstrated by the fact that in the opinion of both parties it appears the property would not, when first seized, have brought more than, if so much as the mortgage debt; while, when it was sold, it brought very considerably more; enough to give rise to the present controversy by a creditor who otherwise would have had no interest. '

The executor testifies that he could not make a yearly lease of the house or farm by reason of the constant threat and danger of foreclosure, and that he tried to effect a lease by the month and failed, as we can understand he might well do with a predial estate.

Another witness swears to the difficulty of making a lease otherwise than by the year, while the fact stated by the opponent’s witnesses that they knew of other neighboring farms which were occupied and kept simply for the privilege of cultivation and with the obligation to take care of the fences without charge but also without revenue, (a fact which we can readily understand at that time of depression and prostration of material interests of every kind), really furnishes in itself a strong and satisfactory reason with the others already stated why the executor did not lease the place. He says he tried and could not do so; these facts support him in his statement; no witness contradicts the fact stated. It is not shown that any one was ready or willing to lease the place, and we have nothing to weigh against this uncontradicted affirmative, positive evidence, except negative testimony and the mere opinions of other persons, unsupported by any affirmative fact that the place could have been leased.

The executor appears to have exercised both good judgment and discretion in the selection of Dorville as keeper, and both he and Dorville appear to have been careful of and watchful over the trusts confided to them; there is nothing to impugn the good faith of the executor in regard to the employment and payment-of a keeper. Much greater loss might well have occurred to the succession and creditors had he not done so, and even had he leased the place we doubt whether greater advantage wouid have resulted to the succession. Indeed, from the extent and bad condition of the fencing and the leaky condition of the roof of the house, not only was the difficulty of leasing increased, but from the public and exposed position of the property, all of the improvements were exposed to waste and perhaps absolute destruction by fire or plunder for fuel and other purposes, in close proximity as it was to the city proper and to public places, and on a public thoroughfare. The reasonableness of the price paid and value of the service rendered are sufficiently established, and the employment seems to have been proper under the circumstances of this case to have been made in the exercise of a reasonable discretion on the part of the executor, and to have been both designed and to have resulted in benefit to the succession. The mere fact that the executor had filed two former partial accounts of the succession in which this claim does not appear, does not, in the face of the facts in the-record, afford any sufficient reason of objection to his placing it upon this, his final account and tableau, and with its proper rank as a privieged claim, it being a reasonable, and, we think, a necessary expense in-caring for and preserving the property of the succession, and the keeper having also, while discharging that important duty, added to the revenues of the estate.

It is therefore ordered, adjudged, and decreed that so far as relates to the claim of Dorville, as keeper of succession property, and any payments made to him by the executor on that account, that the judgment of the court below be avoided and reversed and the claim be re-instated upon the account and tableau as a privileged debt or expense of the-administration as originally entered upon it by the executor, and that he be ordered to pay the same as stated by him in due course of administration as such.

It is further ordered that the opponent pay the costs of his opposition in both courts.


source: Caselaw Access Project

license: Public Domain

text:
    No. 6485.
    George W. Bancker vs. W. Harrington & Co. et al. Temple S. Coons & Co. Intervenors.
    Lands situated in another State can not be seized in a garnishment proceeding, instituted here.
    The assignment of its assets for the benefit of its creditors, made by a defunct partnership to an individual member of a new partnership succeeding to the former business of the old concern, will not make the new partnership liable to the defunct partnership for the value of any of its assets, and therefore not amenable to a garnishment at the suit of any creditor of the defunct concern.
    APPEAL from the Sixth District Court, parish of Orleans. Saucier.

      A. & W. Voorhies, for plaintiff and appellant.

      Clarke, Bayne & Bsnshaio for intervenors.

      A. Filié, curator ad hoc, for defendants and appellees.
   The opinion of the court was delivered by

Egan, J.

Plaintiff, lessor, sued the defendants, lessees, and their sureties, for the lease given of the Arkansas Press, in the city of New Orleans. A large quantity of cotton in the press at the time, belonging to other persons, and standing on the books of the cotton press in the name of Temple S. Coons & Co., commission merchants, for the several owners, was provisionally seized. Some of it was subsequently released by order of the plaintiff, and the remainder was released on the bond of the intervenors. This cotton was not liable to seizure, or to plaintiffs privilege as lessor, and all controversy in regard to it has been abandoned by plaintiffs counsel in this court in his oral argument. An attachment was sued out by supplemental petition and garnishment proceedings instituted against Temple S. Coons & Co. and the members of said firm — Coons and L. O. Bridewell. They answered, denying any indebtedness to, the defendants or the possession or control of any property or assets • belonging to them. ' Their answer was traversed, and the traverse referred to and tried with the merits. Harrington & Co. had been agents for the Mississippi State Grange, and as such, and as commission merchants, had received the cottons provisionally seized for account of the several owners. They failed and suspended business, and turned over all the cottons conveyed to them by the Patrons of Husbandry to Bridewell, an officer of the Grange, selected as its agent to receive the cotton from Harrington & Co., who also made to Bride-well an assignment and delivery of their books, accounts, etc., for the benefit of their creditors of the Grange with whom they were largely in arrears. This assignment was accepted, and Bridewell with the aid of his firm proceeded to administer and control those assets for the benefit of those for whose benefit the assignment was made; with the consent and under the direction of the Grange he also turned over the cottons delivered to him by Harrington & Co. to Temple S. Coons & Co., who were selected as the new agents and commission merchants of the Grange and its members. All this occurred before the attachment of plaintiff. The books of Harrington & Co. were produced' and examined, and reported upon by experts appointed by the court. From that report, and from the books, it appears that Harrington & Co. were indebted to some of their patrons, and others indebted to them, and while the books and accounts show a considerable sum in mere figures due to Harrington & Co. it is also shown that their indebtedness to those for whose benefit the assignment and delivery of their books, claims, etc., had been made was nearly as large; that the debtors were nonresidents, scattered over a large extent of country, many of the accounts small, and, so far as appears, that they were, like the book accounts of other similar concerns, of comparatively little practical avail. Bridewell, when on the stand as a witness, swears that through the influence of the Grange he might be able to collect some of them, but that after his investigations into the affairs of Harrington & Co. he regarded the assets turned over to him as of very little avail, evidently not nearly sufficient to pay the parties for whose benefit he held them. Aside from these there was transferred a tract of land in Mississippi, which, even if worth its estimated value, and if that value was realized, was insufficient to pay the beneficiaries under the assignment. That, however, is immaterial, as land lying in Mississippi could not be seized in Louisiana by process of garnishment or otherwise.

Under the facts presented, it is immaterial to inquire, as we are invited to do by plaintiff’s counsel, whether the books of Harrington & Co. have been kept and balanced properly or not, as, even accepting his view of the question, it would npt change the result, for the reasons before stated. There is nothing in the evidence then to contradict the sworn answers of the garnishees, and nothing to impugn their good faith in their dealings with the matters in controversy. Neither the intervenors nor Coons had any transactions or dealings with Harrington & Co., nor had Bridewell, as a member of his firm, any. As agent for the Grange and assignee for the benefit of the creditors of Harrington & Co. he received the cotton and turned it over to this firm, the new agents selected, and used his firm also for his convenience in managing the assets turned over under the assignment. There was judgment below in favor of the plaintiff against the defendants for the lease price and interest, and against him in favor cf the intervenors and garnishees and dissolving the attachment and setting aside the provisional seizure.

It is correct, and is therefore affirmed, with costs, of appeal to be paid by the plaintiff, who alone has appealed.


text:
    No. 6747.
    William A. Gordon vs. Miss Marie C. Goulé.
    The Second District Court for the parish of Orleans is without jurisdiction of a suit, brought by the purchaser of property at a tax sale, to be put in possession of the property.
    APPEAL from Che Second District Court, parish of Orleans. Tissot, J.

      Henry Denis for plaintiff and appellee.

      J. Caldwell Peirce and J. S. Whitaker for defendant and appellant.
   The opinion of the court was delivered by

Egan, J.

The plaintiff instituted this proceeding in the Second District Court of the parish of Orleans to be put in possession by the sheriff of property alleged to have been purchased at tax sale and described in the act of sale exhibited by Mm as “ a certain lot of ground in square number one hundred twenty-five, bounded by Rampart, Basin, Customhouse, and Bienville streets, having thirty-five feet front on Rampart street, with one hundred and twenty-eight feet in depth.” The number of the lot is not given, and it would be impossible from this description to locate it with sufficient certainty to guide the court in adjudging or the sheriff in giving possession if the matter were properly before us; as it is not. The defendant excepted to the jurisdiction of the Second District Court ratione materias. The exception should have been maintained. The jurisdiction of the Second- District Court is exclusively probate. Const, art. 83.

It can not be supposed that it was the purpose of the Legislature to enlarge the jurisdiction of that court, so specifically defined and limited in the constitution itself, by the terms used in act forty-seven of 1873 or act 105 of 1871, both general statutes for the.forced collection of delinquent taxes, and regulating proceedings against delinquent taxpayers and their property, when that object or subject is not expressed in the title or body of either act. No such intention can be legally inferred from the general use of the terms “ district or parish court ” in the fourth section of the former act, nor of the terms “ any district or parish judge” in the third section of the latter.

These are the provisions of law relied upon to sustain the plaintiff’s demand. It is unnecessary to pass upon the other questions raised in the record.

It is therefore ordered, adjudged, and decreed that the judgment of the court below be and it is annulled, avoided, and reversed; that the defendant’s exception to the jurisdiction of the Second District Court of Orleans be sustained and the plaintiff’s demand dismissed with costs of both courts.


author:
Manning, C. J.
     Spencer, J.

text:
    No. 6580.
    Sarah and Austin Woolfolk vs. Mrs. Emily Woolfolk.
    The parish court is without jurisdiction oí a suit for partition between the surviving widow and the heirs of the decedent, when it appears that the widow had accepted and disposed of her interest in the community, and that the heirs, who are of age, had unconditionally accepted the succession and been put in possession of its property. In such a ease the succession no longer exists.
    No intervention can be filed in a suit for a partition, after judgment decreeing the partition has been rendered. That judgment is definitive, and hence the suit can not be considered as pending until the final decree homologating the partition.
    Parties wlio intervene in a partition suit can not be considered as third opponents to the execution of the judgment in the suit, unless they either claim to be owners of the property on which the judgment is sought to be executed, or claim a preference on the proceeds of its sale.

      A suit for the nullity of a judgment can not be brought by way of intervention, or third opposition. It must be brought in the ordinary form, by petition and citation.
    No valid judgment can be given in a proceeding wherein no citation issued to, and no answer, or appearance was made by the defendant.
    APPEAL from the Parish Court of Iberville Parish. Cole, J.

      Merrick, Race & Foster, and Samuel Matthews, for plaintiff and appellees.

      Semmes & Mott, A. S. Herron, and Barrow & Pope, for intervenors and appellees.
   The opinion on the original hearing was delivered by Manning, C. J., and on the rehearing by Spencer, J.

Manning, C. J.

Elise Labauve, Joseph Hernandez and others, judgment creditors of Emily Woolfolk, have appealed from a judgment of the Parish court of Iberville, dismissing their interventions wherein they seek to annul the decree of partition rendered by that court, and oppose the homologation of the proceedings founded upon it.

As our opinion is based upon the incompetency of the Parish court to render the decree of partition, we shall confine our recital of the facts to those bearing upon the question of jurisdiction.

Austin Woolfolk the elder died on 20th. of February 1847, owning property in Maryland, Tennessee, and Louisiana. He left five minor children, issue of his marriage with the defendant, to wit, Samuel who died prior to May 2 1861, unmarried, intestate, and without issue— Joseph B. Woolfolk, Louisiana T. Woolfolk, Austin Woolfolk, jr. and Sara Woolfolk. He bequeathed to his wife and minor children his property in Louisiana, to be held by them as they would have held it under the law of Louisiana, had he died intestate. The defendant, their mother, was confirmed as their natural tutrix by the proper court of Iberville parish on 26th. of February 1847, that parish being the domicil of the decedent. On 2nd of May 1861, the surviving children (Samuel being dead) were either of age, or had become sui juris by dispensation from the disabilities of minority through judicial emancipation.

At the close of the war in 1865 Emily Woolfolk had become pecuniarily embarrassed, as was also Joseph B. Woolfolk, the eldest son. Judgments for large sums had been obtained against her, and were duly recorded in the proper office of Iberville parish, and operated as judicial mortgages on the Mound plantation in that parish. That property being thus incumbered, Emily Woolfolk, by notarial Act of 20th. September 1805, sold to her son Austin all her community interest, and all the succession rights which she had inherited from her deceased son Samuel, in and to the property inventoried in the succession of her husband, also deceased, and on the same day, .Joseph B. Woolfolk sold to the same party all the succession rights, inherited by him from his father, and from the deceased Samuel. The inscription of the judgments of Hernandez and other opponents was anterior to the sales, and whatever consequences followed from these judicial mortgages, the sales did not include, nor did they divest the defendant of her usufruct, as surviving widow in community, of that half of the community property which belongs to the children. She owned the other half absolutely. The judicial mortgages affected both of these'interests.

John Patrick, an adopted son of the elder Woolfolk, and Austin recovered judgments against Emily Woolfolk on 11th May 1866, the former for $2442,70 and the latter for $8424 with interest, and issuing executions upon them, seized and sold the usufructuary interest of the defendant in the community property, and became the purchasers thereof, each in proportion to his respective judgment. On 21 January 1869, John Patrick sold the usufructuary interest thus acquired to Austin Woolfolk, who thus becoming owner of the entire usufruct of his mother, sold to his sisters Sara and Louisiana on 10th. February 1869, one undivided third thereof to each. Austin and the two sisters thus became owners in equal parts of the usufruct.

But before the purchase of the defendant’s usufructuary interest by Patrick and Austin, she had made a lease on 1 March 1866 to Patrick of the Mound plantation for four years from 12 January 1866, which remained in force until the same month of 1868, when it was rescinded by mutual agreement.

On the 9th. of November 1866, the Woolfolk children, including Joseph, instituted suit against their mother, as executrix to compel her to account for her administration of the succession, and they also prayed to be decreed the owners of an undivided half of all the property of the •succession situated in Iberville parish, and of one half of the sum due from her to the succession for moneys received from the proceeds of sales of property, and from other sources,, which they alleged was $86,-■015. They also claimed a tacit mortgage on the immovable property of their mother to date from 26th. Eeby. 1847. Judgment was rendered against her without opposition, and it was decreed that Austin, and his sisters Sara and Louisiana, were the owners of one undivided half of the property inventoried in the Succession proceedings in the following proportions, viz Austin was owner by inheritance and by purchase of 42-160ths — Louisiana and Sara by inheritance, each of 19-160ths.

This decree also adjudged that these three, and Joseph, recover of their mother $39,877.57, each, his or her virile share, and that their legal mortgage, securing that sum dated from 20th. Eeby 1847, and operated upon all of the defendant’s property that was susceptible of mortgage.

Zenon Labauve, a judgment creditor of the defendant, having recorded his judgment on 3rd June 1865, and thereby acquired a judicial mortgage, appealed from this decree, in so far as it allowed the legal mortgage above mentioned, and this Court reversed the judgment quoad that mortgage, and declared that the only effect of a judgment upon this demand of the children in that suit was to close the administration by Mrs. Woolfolk as executrix, and fix the amount in her hands as usufructuary. Woolfolk v. Woolfolk, 20 Annual, 513.

This decision appears to have been unsatisfactory to all the parties to that suit. On the 10th. of February 1869 they entered into an agreement, wherein Mrs Woolfolk renounced the benefit of the plea of res judicata so far as the legal mortgage asserted by the children against her in that suit was concerned, and in consideration of $2000, she transferred to them whatever usufructuary rights she possessed, recognized the validity of the judgment of this Court so far as it fixed the sum of money due by her, and consented to an immediate judicial partition of the common effects. This agreement divested her of her usufructuary rights on and in the amount of the monied judgment recovered against her by her children, and she had been previously divested of these rights on all the residue of the community property by the judicial sale under the executions of Austin Woolfolk and John Patrick, and by the sale to Austin of 20th. Sept. 1865 she had divested herself of all interest as owner of her half of the community property, or as heir of her deceased son Samuel.

Having thus prepared the way for a partition, the suit to effect it was suspended until 7th. of June 1869. In the meantime however, viz on 1st March of that year, the defendant and her son Austin rescinded the sale of 20th Sept. 1865. She returned, or professed to return to him, the original consideration of that sale, $14,532, and the motive inducing the rescission is stated in the Act to be ignorance of the nature and extent of the incumbrances on the property existing at the time the sale was made.

Having thus re-invested their mother with the ownership of one half of the community property, and her share in the succession rights of her deceased son Samuel, this suit for partition was instituted on 7th. of June 1869 in the Parish Court for Iberville by Austin Woolfolk and his two sisters Louisiana and Sara. Joseph B. Woolfolk was not a party thereto, although interested as co-proprietor of the judgment for over thirty nine thousand dollars, recovered against the defendant as executrix, already mentioned.

The plaintiffs in this partition suit allege that the defendant had received in cash $83,952.76, and that therefore she should take in the partition less that sum, and the remaining property should be sold to equalize the lots. They allege that the defendant, as partner in community, was entitled to one half, or 80-160 -parts of the common property, and as heir of Samuel to 4-160 parts thereof — that Austin was entitled in his own right to 16-160 parts, and as heir of Samuel to 3-160 parts, and as assignee of Joseph to 16-160 parts, and that Louisiana and Sara were each entitled to 19-160 parts. They pray for a judicial partition of the common property, and also of the sum of $83,952.70 due by their mother, and further for recognition of a legal mortgage in their favor on all the property of their mother that was or is susceptible of mortgage.

The defendant permitted judgment by default to be entered against her, and there was a decree for a partition, and requiring the notary to take into consideration as part of the entire mass, the sums of money received by the defendant from sales of property, and from other sources. These sums constituted .the amount of $83,952.76 above stated.

The common property was advertised for sale, and it was enjoined by the creditors. Pending the. litigation Austin Woolfolk died, bequeathing to his mother all she was entitled to receive as his forced heir, and the remainder of his estate to his brother Joseph and his two sisters. Although Joseph thus became interested in the common property, he was not made a party to the partition suit, nor was Austin Woolfolk’s succession represented except through a testamentary executor.

At this juncture, the injunction whicli had delayed the sale was dissolved, Woolfolk v. Woolfolk, 24 Annual, 282, and the common property was sold on 3rd. December 1874 for twenty-five hundred dollars. It was appraised for a much larger sum. The purchasers were Joseph and the two sisters in equal undivided shares. On the 5th. of same month the notary made a partition, whereby the hitherto common property was allotted to the plaintiffs in this suit and the defendant was settled with by allowing her credits on her indebtedness to her children.

At this stage of the proceedings, Mrs. Labauve and other judgment creditors filed interventions, and opposed the homologation of the partition on various grounds, and among them, that the partition was null and void ab initio for the reason that the succession of Austin Wool-folk the elder had been closed long prior to the institution of the suit— ■ that the heirs, all being of age, had accepted the succession unconditionally, had entered into possession of the common property, and that they held it as co-proprietors with their mother, who had also accepted the community, and therefore the Parish Court had no jurisdiction of the partition suit.

The petition for emancipation of the.minors — the sale from Joseph to Austin — the lease and its rescission — the sale from Mrs. Woolfolk to Austin and its rescission — the suit of the children against their mother for an account of her administration of the succession, and the judgment rendered in that suit — all show that the succession of Austin Woolfolk the elder was closed, and that the parties had taken possession of the property, and disposed of it as owners. And this being true, it was no longer a succession that was sought to be partitioned, but common property of several owners of large value, and the Parish Court had not therefore jurisdiction of the suit for partition.

If the Court had no jurisdiction to decree a sale for partition, it is manifest that the purchasers at the sale made under that decree acquire no title therefrom. If they have any title, it can only be by the voluntary transfer of the parties, and hence none of the effects flowing from a judicial partition are produced. It is true that Mrs. Woolfolk, the defendant, may be estopped from questioning the validity of the sale, because she allowed the decree to be executed. It is also true that Joseph B. Woolfolk, who became a joint purchaser with his sisters, may be precluded from attacking the partition proceedings, but these estoppels operate against them, and have no greater effect than voluntary transfers. They do not change the character of the partition. They can not make that a judicial partition, which derives its force and effect from their consent alone.

It follows that the judicial mortgages of the opponents have not been displaced by the sale under the decree for a partition, and have not been transferred from the property to the proceeds. And therefore,

It is ordered, adjudged, and decreed that the judgment of the lower court is avoided and reversed, and that there be now judgment in favor of the Intervenors maintaining their oppositions and interventions, and dismissing the suit for partition at the costs of the plaintiffs therein.

On Rehearing.

Spencer, J.

The facts in this case, so far as detailed in our former opinion, need not again be repeated. In that opinion we held that the parish court of Iberville was without jurisdiction, ratione materice, in the matter of the partition in this cause, for the reason that the widow having accepted and disposed of her community interests, and the heirs being of age having unconditionally accepted the succession of Austin Woolfolk, Sr., taken actual possession of its effects without opposition, after a decree recognizing their respective rights and liquidating their claims against the widow executrix, there was no longer a succession to be partitioned. We see no reason at present to change our opinion as then expressed, but in the view we now take that question need not be considered.

In the application for rehearing there have been pressed upon our attention preliminary questions of practice which did not receive our consideration before. The decree of partition in this case was rendered in 1869, fixing the respective rights of the co-proprietors in the property, settling the accounts between them, ordering a sale to effect the partition, and referring the parties to a notary. In August, 1874, Mrs. Labauve, Hernandez, and the Union Bank, claiming to be judicial mortgage creditors of the Widow Emily Woolfolk, defendant, filed a third opposition to regulate the effects of the sale as to themselves and claiming the proceeds of her share by preference. The sale for partition took place December, 1874, and was immediately followed by a notarial act of partition. No proceeding for homologation appears ever to have been taken. In April, 1875, Mrs. Labauve and the other opponents dismissed as in case of nonsuit their said opposition, and on same day filed another proceeding, styled an amended opposition and intervention, in which they oppose any homologation of the partition (no proceeding to homologate, however, was pending), and pray that the judgment of partition ■and all proceedings thereunder be annulled for want of jurisdiction rattone materias in the parish court, etc. Copies of this intervention and opposition ” were served on plaintiffs and defendants, but no citations were issued. So far as appears, there was never any judgment by default entered upon this intervention against the defendants therein, nor was it ever put at issue by any appearance or answer. The minutes show, however, that the matter was assigned for trial, without objection so far as appears, and that a mass of evidence was offered by the parties pro and con, the trial consuming several days. There was judgment defintively dismissing “ the intervention and opposition,” and from that judgment this appeal is taken.

Under this state of facts, it is material to inquire what was the nature and character of this proceeding by Mrs. Labauve and others.

First — Was it an intervention, and if so was it in due form of law ?

Second — Was it a third opposition and in due form of law?

Third — If neither an intervention or third opposition, was it an action of nullity or revocation, and in due form ?

Fourth — Where the law requires that suits be brought in the ordinary form, by petition and citation, and that they be put at issue by default, or by appearance and answer, can .parties waive these forms of law, in toto, and try a case without any issues being legally formed ?

First — In the nature of things and by express letter of the law, O. P. arts. 389 and 391, intervention is permissible only whilst the suit is pending between plaintiff and defendant. If the suit has terminated and judgment has been rendered, no intervention therein is possible. It is urged, however, on the authority of Stokes' vs. Stokes, 6 N. S. 350, that a suit for partition is only terminated by the decree of final homolgation, and that the judgment decreeing the partition, fixing the rights of ownership of the parties, and adjusting the collations between them is only interlocutory.

We think that the weight of authority as well as of reason is against the dictum of Stokes vs. Stokes. We consider that case overruled by Traverse vs. Rose, 10 L. R. 500; 11 L. R. 494; McCullom vs. Palmer, 1 Rob. 512 ; Blanchard vs. Blanchard, 7 An. 529, and other cases subsequent.

We are at a loss to understand why a judgment rendered upon issues regularly formed by petition and answer, passing upon the titles of the litigants, decreeing their respective portions in property, and fixing their indebtedness to each other, wants any of the essentials of a definitive decree. The rule or motion to homologate a partition when made is in some sort a new proceeding, requiring notice to the parties, and to be followed by another decree. We do not understand that upon trial of such rule one can again bring into question the matters adjudicated in the original judgment of partition ; but the contest is confined then to things done in execution of it. It is doubtless true that until this decree of homologation and confirmation is rendered the partition can not be regarded as or have the effect of a judicial partition; but that does not prevent the decree of partition, in so far as it adjudicates upon the rights of the parties, as between themselves, from being final.

In this case, the decree of partition having been rendered long before the so-called intervention, and no proceeding for homologation being pending at the time it was filed, there was no suit, and therefore-there could be no intervention.

Second — Nor can their demand be considered as a third opposition to the execution of the judgment of partition. Such opposition is permissible only in two cases—

1. When the decree is being executed upon property of which opponent claims to be the owner;

2. When opponent claims preference on the proceeds of sale. C. P. 396 et seq.

The parties do not occupy either position, and are not, therefore, their opponents.

Third — The demand is ot fact one in nullity or revocation of the decree of partition. As such it should have been brought in the ordinary form, by petition and citation.

C. P. Art. 610.,— “The party praying for the nullity of a judgment, before the court which has rendered the same, must bring his action by means of a petition; and. the adverse party must be cited to appear as in ordinary suits.”

Fourth — “ The joining of issue is in fact the foundation of tho suit. * * * It is only after this is done that the suit begins.” C. P. 359.

“ Judgments may be annulled if the defendant has not been legally cited, and has not entered appearance, joined issue, or had not a regular judgment by default taken against him.” C. P. 606, No. 4. See, also, 2 L. 171; 7 N. S. 285 ; 10 An. 147.

We are not prepared to say, in the presence of these provisions, that in courts of record, as ours are, parties can by silence waive and dispense with these essential legal forms, and try cases, as it were, without forms or pleadings. To tolerate such practice would be to strip judicial proceedings of all certainty, and render insecure property and rights resling upon judicial titles and decrees, and would lead to infinite confusion.

We think that the orderly conduct of judicial proceedings, as well as the public interest, require that we adhere to the rules of the Code and of the jurisprudence. The proceeding of Mrs. Labauvo and the other so-called intervcnors should have been dismissed as in .case of nonsuit, being improperly brought and never put legally at issue.

It is therefore ordered and decreed that the judgment heretofore rendered by this court be set aside; and it is now ordered that the judgment appealed from, dismissing said (interveners’) demands (definitively) be reversed ; and it is now ordered that the samo bo dismissed as in case of nonsuit; appellees paying tho costs of appeal, and appellants those of the court below.


author: Manning, C. J. Spencer, J.

text:
    No. 3504.
    M. Musson & Co. vs. A. Foster Elliott.
    Where cotton is nominally sold for cash, but tho pi'ice is not paid on delivery of tho cotton, and tho vendor receives on tho following day a part of the price, and accepts security for tho balance, ho thereby waives any privilege he may have as vendor, and is estopped from soauestoring the cotton in the hands of a subsequent bona /¡de vendeo, or pledgee of the cotton.
    APPEAL from the Seventh District Court, parish of Orleans. Collens, J.

      Clarke, Bayne & Benshaio for plaintiffs and appellants.

      JS. W. Huntington for defendant and appellee.
   The opinion of the court was delivered by

Manning, C. J.

The plaintiffs sold one hundred and eighty-nine bales of cotton to Nevins & Co., the weighing and delivery thereof being -completed on 21st. of December 1869. It was a cash sale, and the full amount was $21,371.76 Nevins did not pay cash as agreed on. The plaintiffs demanded it on the 21st., and throughout that day and the next were importunate, and threatened seizure of the cotton. Shortly before 3 o’clock on the 22nd they were paid $15,741. by Hopkins the ■agent of Nevins & Co. who thus details the manner of payment; — “at the urgent solicitation of Mr. Musson and to stop sequestration of the cotton, and interference with the regular course of the shipment, holding Mr. Nevins’ procuration, I drew the bills of exchange sold to Mr. Elliott, and on handing them to him with the shipping document ■annexed, I received from Mr. Elliott a cheque for the balance due, five thousand dollars having been previously paid on account. The cheque was drawn to order of Nevins & Co., wras endorsed by me as per pro. and handed by mo to Mr. Musson immediately in the office of Elliott. Afterwards, and in order to satisfy Mr. Musson for the balance, we handed him also bills of lading, two series, as security or until Mr. Nevins was able to come out and make a final settlement with him.”

The payment of five thousand dollars, of which Hopkins speaks, was an advance of that sum made by Elliott to Nevins on the 17th. or 18th. of same month, and is claimed by the defendant to have been made on this purchsae, which was made at that date, though the weighing and delivery had not been completed until later. The plaintiffs deny that this advance or loan to Nevins had any special reference to this purchase, or if it had, that it could affect them. Mus-son & Co. allege that the residue of the price, viz $5,630.76 was never paid, and on the 27th. of December they instituted this suit, and, sequestrated the cotton, which was then on board the ship in this port.

The cotton was released on bond, and early in January following, the defendant moved rules to quash the sequestration on the grounds that the affidavit did not state when the cotton was delivered to Nevins & Co., nor that it was an agricultural product of the United States, and that the privilege of plaintiffs was prescribed by the lapse of five days from the delivery of the cotton to Nevins, and was barred by want of registry, and that the cotton was in Elliott’s possession at the time of seizure by transfer and sale from Nevins. It was agreed that the merits should be tried under these rules, and there was judgment for defendant.

The facts as disclosed in the evidence are, that the cotton was sold on the 17th. Dec. and the terms were cash. On the 18th. Nevins & Co. obtained from Elliott a promise to cash their sterling exchange to the amount of $20,741. and received $5,000 of that sum then, giving a receipt in the form of a pledge. The exchange was to be drawn against about two hundred bales of cotton. The cotton sold by the plaintiffs (189 bales) was weighed and delivered on 21st. We have already stated the occurrences of the following days.

We do not find it necessary to decide whether the seizure was within the five days, designated by the act of 1855 as the time within . which the vendor of ‘agricultural products of the United States’ shall be entitled to enforce his lien by seizure, nor whether the lien and privilege upon movables, such, as bales of cotton, needs to be recorded to ensure its preservation to the vendor.

It is abundantly shewn that the sale óf the cotton, made on the 17th., was perfected by the weighing and delivery on the 21st., and that the purchaser Nevins did not comply with the terms of sale, and that Elliott was fully aware of it. The plaintiffs made ineffectual efforts to obtain Nevins’ compliance with the terms of sale on the 21st. He had been taken ill, and was not to be seen. These efforts were renewed on the 22nd, when Elliott gave to Nevins’ agent the cheque for 815,741. in Mus-son’s presence, to whom it was immediately transferred. The bills of lading for the cotton were at that moment in Elliott’s possession to Musson’s knowledge, and it was equally well known to him that the money was paid by Elliott because'he-held the. bills. The money would not have been paid without them, says Hopkins. Musson said this was only a part of the price. There was a balance of over five thousand dollars. He demanded all of it. Elliott said it was all he owed Nevins, and would pay no more. Nevins was so ill as to create alarm, and time pressed. Then Hopkins bethought himself of satisfying Mr. Musson’s demand by placing collateral with him. Nevins had two bills of lading for nineteen bales and thirty bales respectively, already on shipboard — on a different ship from that carrying the 189' bales — and he handed them to Mr. Musson as security, or until Nevins could come out and make a final settlement.

Musson took them — received them from Nevins as security for the unpaid portion of the price on the same day, and shortly after he had • received from Elliott over fifteen thousand dollars, made on the faith of the bill of lading of the cotton he had sold to Nevins. He supposed forty-nine bales would yield about five thousand dollars, and so they would, had cotton preserved the prices then obtaining. Speaking as a witness, he says; — my dissatisfaction in not receiving full payment was expressed to Mr. Hopkins since the 21st, and when receiving the money due on account. The expectation of the balance being paid to me the next morning was one inducement to delay collection of the balance until then, when Mr. Nevins was expected to come to his office. I was handed by Mr. Hopkins bills lading to order but not endorsed for nineteen bales and thirty bales cotton on board the “Gardner Colly” which were worth, he supposed, in round numbers five thousand dollars.

But Mr. Nevins came to his office no more. He died early on the 23rd, and his death changed the whole aspect of the affair. The nineteen bales sold in England for only $1200 nett, and the unpaid vendor of the thirty bales seized them and there is a suit over the proceeds, so that the expedient devised by Hopkins to cover the deficiency of Nev-ins’ payment was ineffectual, and Mr. Musson precluded himself, or his firm, from proceeding against the cotton bought by Elliott from Nevins to compel the payment of that deficiency. Whatever rights he may have had as vendor were waived by his actions on the 22nd, and he is estopped from subjecting the cotton to his demand under the circumstances appearing in the evidence, about which there is no dispute. The case in many features resembles Laughlin v. Ganahl, XI Rob. 140. No one has been at fault but the plaintiffs, and no one else should suffer for it. Lee v. Galbraith, 5 Annual, 343.

Judgment affirmed.

Concurring Opinion.

Spencer, J.

I am not able to agree with the court in its reasons for judgment in this case.

Admitting that Musson received from Elliott the balance, $15,741, due by Elliott to Nevins & Co. on the purchase or transfer of bills'of lading of the cotton, and that he accepted from Nevins & Co.’s agent bills for forty-nine bales of cotton as collateral for the balance due Mus-son & Co., I am unable to infer from those facts that he renounced or waived the vendor’s lien which ho undoubtedly had on the cotton in Elliott’s hands.

Nemo preesumitur donare. Renunciations are not to be presumed from acts done, unless those acts are inconsistent with the rights alleged to have been renounced.

Musson & Co. undoubtedly had a vendor’s lien on the cotton for five days from its delivery. His vendee sold or pledged this cotton to Elliott. Musson threatened to seize the cotton under his privilege. Elliott very naturally sought to free the cotton from this undoubted claim, and paid, or caused to be paid, to Musson & Co. the balance of the price in his hands due to Nevins & Co ; and Musson just as naturally received the sum so offered, and, with equal good sense, accepted the bills for forty: nine bales tendered him as collateral by Nevins & Co. But I see in this no evidence of renunciation. On the contrary, it had the effect of reducing the debt of Musson and increasing his security. Because I accept from the vendee of my vendee what the former owes to the latter, as the price of the sale between them, do I thereby relinquish my privi-' lege on the property for any balance'due me? Is such an act inconsistent with an intent 'oirmy part to still -loók to the property for'the balance due me ?' >A sells- to B a piece of land retaining the vendor’s' lien. B sells it to O. -A threatens'to seize for his money. 0, having in hand a part of the price still due to B, hands it over to A, who receives it. This act would esfop A from denying the sale from B to 0, but not from asserting his. privilege on the property, because the existence of that sale is not inconsistent with the existence of A’s privilege. . Nor was the acceptance of the bills for the forty-nine bales of cotton as collateral any waiver, renunciation, or estoppel, of the vendor’s lien of Musson & Co. By taking additional security one does not lose or renounce the security he already has.

I think, however, that the plaintiffs, Musson & Co., have lost their recourse on this cotton in the hands of Elliott, by failure to assert their privilege “loithin five clays after the.day of delivery. ” The delivery was completed on the twenty-first. Excluding the twenty-first, the day of delivery, the five days' elapsed at the close of the twenty-sixth. The. sequestration was taken out on the twenty-seventh.

The general rule is that the vendor’s privilege is defeated by sale of the movables subject to it — C. C. 3227 — but, by exception, it continues for five days “ after the day of delivery ” in sales of agricultural products. Idepi. It is said, however, that this delay of five days is not a prescription, or subject to its rules. The Civil Code, after treating of the prescription relative to the acquisition of property, proceeds in articles 3528, 3529, et seq. to treat of the prescription which operates a release from debt. Art. 3529 says: “ This prescription has also the effect of releasing the owner of an estate from every species of real rights to which the property may have been subject, if the person in possession of the right has not exercised it during the time required' by law. ” Whilst this article was framed more particularly with reference to real estate, and real rights thereon, it serves to show that the effect of this prescription operates not only for the release of persons from their obligations, but also to extinguish incumbrances and obligations bearing upon things.

There was a vendor’s lien in favor of Musson, bearing as an incumbrance on this cotton. The law declares that if the right to that privilege is not asserted within five days after the.day of delivery it is lost, at least as against a third holder of the property. In other words, an action to enforce it is barred by lapse of time. The property is discharged from the lien, the incumbrance “ by the effect of time,” and this is.prescription. C. C. 3420.

Article 3430 Civil Code declares that prescription is “ acquired after the last day allowed by law has elapsed.” The twenty-sixth was the last day allowed by law for an action to enforce the plaintiff’s privilege.

The Code of Practice treats in the main of the rules of procedure-in courts of justice. We think the rule of art. 318 C. P. can not be extended to a case like this. It manifestly refers to mere matters of practice in the courts.

As I have said, I think the five days of art. 3227 C. .C. constitute a prescription. As such it is not interrupted or suspended by the occurrence of dies non.

I therefore concur in the decree of the court in this case.


author: DeBlanc, J.

text:
    No. 5461.
    James J. O’Hara vs. City of New Orleans.
    No peremptory exception filed in this court will be noticed, unless filed while the-trial o£ the case is still pending. It is too late to file such an exception alter the case is submitted.
    Under a contract with a city corporation to do certain work, a contractor cannot claim compensation for new, and additional work done by direction of a city-official, without the consent of the city, which was not stipulated for in the contract expressly, or by implication, and which cost more than the work actually contracted for.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      H. G. Morgan for plaintiff and appellant.

      B. F. Jonas, City Attorney, for defendant.
   The opinion of the court was delivered by

DeBlanc, J.

On the twentieth of November last this ease was submitted to the court, and — on the twenty-third a plea of prescription was therein filed by defendant’s attorney. At that date, this case had passed from the control of the parties and their attorneys, and no additional plea could then have been regularly filed in the same. It is true-that prescription may be pleaded in the Supreme Court, but when ? On the trial of the appeal and before its submission.

As justly remarked by Mr. Justice Slidell, the English translation of article 316 of the Code of Practice is not correct; the French text is in these words: “ Les exceptions péremptoires qui concernent le droit, peuvent ótre allegues en tout état de cause, avant le jugement définitif;. mais elles doivent étre opposés spécialement, et assez a temps pour que. -la partie adverse puisse faire la preuve contre eux, s’ il y a lieu.”

The last paragraph of article 902 of said Code authorizes the party to whom the plea of prescription is opposed in the Supreme Court, to ask the remanding of the cause for trial upon that plea.

The letter of these articles indicates that, in the appellate as well as in the lower court, such a plea should be filed on the trial, at any stage of the trial, and before submitting the cause to the court. Otherwise, how construe that part of article 346 which provides “that the peremptory exception shall be pleaded in time to allow the adverse party to bring his evidence, etc. — and that part of article 902 which gives to that party the privilege of having the cause remanded ?

The plea of prescription urged by defendant was not filed at any stage of the trial, but after the trial and can not be considered.

On the eighth of June 1869, James J. O’Hara contracted with the city of New Orleans, to grade and shell Locust street, from Felicity Road to Washington street, for a price fixed in the contract. He complied with his engagement, and — on the twenty-eighth of March 1872, he accepted — from the City Surveyor — as a final settlement between him and the city, a certificate attesting that he was then entitled to the per centage which, as a guarantee and for the space of one year, the city usually retains on the stipulated price of work done under its contracts That price was $6391 83, and was due in the following proportions, to wit: By the proprietors of the lots on the front of which the work was

done................................................... $5216 09

By the city................................................. 1175 74

$6391 83

In 1873, on the twenty-eighth of February, James J. O’Hara brought this suit against the city alone, to recover from it the sum of eighteen hundred and twenty dollars, for extra work he alleges he has done in filling certain ditches bordering a portion of Locust street, which he graded and shelled under the already mentioned contract. That, under his agreement with the city, those ditches were to be dug and not filled, but that — owing to the delay which he experienced in obtaining from the city officers lines and levels which they were bound to furnish him, owing also to the construction of side-walks on Locust street one year after his engagement, he was compelled to fill, instead of digging the ditches alluded to, and that he had so done under instructions from the City Surveyor.

We admit that, when certain work is stipulated to be done under the directions of a street commissioner, that officer has authority to have extra work done, where it has been rendered indispensable by the action of the City Council subsequent to the making of the contract, and where, without such extra work, it would be impossible to comply with the contract — but, under no .circumstances, can an official order any new, any additional work, the cost of which, and so far as the corporation is concerned, would far exceed the cost of the work specified in the contract.

In "plaintiffs bill, that prepared after the completion of his work, and which bears the date of the twenty-eighth of February, 1871, the amount charged against the city for grading and shelling the street is $1175 74. That amount was paid, and two years after the completion of the work, long after the payment of the account presented in 1871, plaintiff sued the city for $1820, the alleged value of extra work, and which exceeds by more than one third the whole of that part of the price for which the city was bound under the original contract.

The filling of ditches was certainly a fraction of the work delivered, received and settled for in 1871, and though — in the execution of the work — there may have been a difference between that which was specified and that which thereafter became necessary, it was at the date of the delivery and approval of the work that plaintiff should have claimed for all he had done, for all he considered himself entitled to. There was, between him and the city, but one contract — that of the eighth of June 1869 ; the Oity Surveyor testifies that ho never authorized or directed plaintiff to do any other work than that called for by his contract. In so doing, he would have exceeded the bounds of his authority. For the work to be performed under the aforesaid contract, only one price could have been asked, only one price was to be paid, and — for the price agreed upon and fixed, plaintiff receipted in full, without reserving his non-asserted right to an extra compensation.

The views already expressed dispense us from discussing and passing upon the bills of exception taken by plaintiff: for, admitting that every answer excluded by the lower court would have been favorable to his cause, the excluded evidence would not have changed our conviction that he can not recover against the city, because:

1. If he performed any extra work, he did so — not at the request of the city — but, as he contends, at the 'request of the City Surveyer, and that official could not have legally substituted — to the parties’ original contract — another, a different, a more onerous contract, one binding that corporation — without its knowledge or consent — to pay, for extra work, more, much.more than it had agreed and bound itself to pay for the whole of the work.

2. In strict accordance with its obligation, the city has paid for every foot of work charged against it, in plaintiff’s own account; and the terms of his receipts, in 1871, and 1872, for what he has done under the contract of 1869, and for whatever he then claimed and accepted as due to him under said contract, are alone sufficient to defeat his action.

The judgment appealed from is affirmed with costs.


author: Spencer, J.

text:
    No. 6818.
    State ex rel. E. Borland, Jr., vs. the Judge of the Second Judicial District.
    When the plea oí prescription is filed in a suit, not as an answer, hut as a peremptory exception, it will not have the effect of setting aside a judgment oí default previously rendered in the suit; and on the overruling of the exception, thus filed, the plaintiff is entitled to introduce his proof to confirm his default, and to compel the judge a quo to hear his proof and pass on his application to confirm.
    APPLICATION for a mandamus.

      JS. Howard Mg Caleb for relator. •

      Sambola & Diteros for defendant.
   The judgment of the court was delivered by-

Spencer, J.

The facts upon which relator bases this application for mandamus are as follows :

In the suit of E. Borland, Jr., vs. Effingham Lawrence, plaintiff had judgment by default entered on tenth May, 1876, against defendant bn his failure to answer. On twenty-fourth day of October, 1876, defendant filed, as a peremptory exception founded on law, the plea of three and five years prescription, and prayed “ that the judgment by default be set aside and plaintiff’s petition dismissed without the necessity of a trial on the merits, and for general relief, etc.”

“ November 5, 1877. — On calling the docket of civil cases at issue the same were fixed as follows, to wit: 2284 — E. Borland, Jr., vs. E. Law- • rence, for Thursday, November 8,1877.”
“November 8, 1877. — Borland vs. Lawrence, 2284. This case was this day regularly taken up for trial on defendant’s exception, etc.”
“When after hearing the evidence and argument, the exception being submitted, the court took the same under advisement.”

On the trial of this exception plaintiff offered the notes sued on and other documentary evidence, but on objection of defendant that the evidence could only be received to show interruption of prescription, “ the court sustained the objection on the ground that the allegations of the petition are taken for true.”

On the next day,'ninth November, the court ordered defendant’s peremptory exception to be overruled. Thereupon, we are informed by a bill of exceptions, the counsel for plaintiff “moved the court to confirm and make final the judgment by default herein entered,” tendering in support and proof of his demand the notes, mortgage, and other documents in the record. The judge refused to permit the evidence tobe filed or to entertain or hear the motion and evidence tendered, and refused to hear and determine the case on its merits, for the reason that the case is not at issue, the judgment by default having been set aside on defendant filing his exception of prescription, and said exception having been overruled, there was no default to confirm, and that plaintiff must put the ease at issue by again taking another default or waiting for defendant to file his answer.

We may here remark that we have a certified transcript of the case before us, and although defendant in his exception prays that the default be set aside, we find no order of court to that effect. Nor would the court, under the view the judge took, have been authorized to make an order setting aside the default. There is no law for setting aside a default by filing an exception. It is the filing of “ the answer” which operates and authorizes setting the default aside. See C. P. 314.

If the plea of prescription was a peremptory exception founded on law, and not an answer, then the default was not, and could not be, set aside thereby. The defendant filed it as an exception and asked its consideration as such and as avoiding the necessity for trial of the case on its merits. The court considered, treated, and tried the plea as an exception, without any objection on plaintiff’s part, so far as the record discloses. We incline to think that the exception of prescription may, when pleaded before answer, be tried as an exception, that is separately from the merits; but if pleaded after answer, it must be tried with the merits. C. P. 336, 345, and 346. We think, therefore, that the court properly tried the plea in this case as an exception.

But as we have seen, after that exception was tried and overruled, the case being on default, and the legal delays having expired without defendant having answered, by article 312 Code Practice plaintiff had the right to “ a definitive judgment * * * provided he proved his demand.” But the judge refused to hear his motion for final judgment, or to receive or consider the evidence he tendered in support thereof, and declined to hear the case on its merits. Relator thereupon makes this application for a mandamus to oompel the judge to proceed to hear and determine said cause, and complains that his refusal is a denial of justice. We think relator is entitled to the relief sought, to the extent of compelling the judge a quo to entertain his motion, to receive and consider his evidence, and to pronounce judgment upon the case. See 13 An. 483. Relator asks that he be compelled to render judgment in the case, upon the evidence as tendered on ninth November, 1877, and as detailed in his bill of exceptions. Subsequently to relator’s application for this mandamus, the record shows that defendant filed an answer. This subsequent act can not vary relator’s rights. We must pass upon them as they existed at the time of his application to us. But as we can secure relator the rights claimed, to wit: a trial of his case, without going to the extent asked, and without cutting defendant off from any legitimate defense he may have—

It is ordered, adjudged, and decreed that the mandamus herein issued be made peremptory, and that.the judge of the Second Judicial District Court for the parish of Plaquemines do, on the first day of the next term of his said court, proceed to hear and determine plaintiffs motion for confirmation of default in the case of'“E. Borland, Jr., vs. Effingham Lawrence,” No. 2284 of the docket of said court, and to render judgment therein according to law. If, however, previous to said first day said defendant has filed an answer, then that on said first day the said judge fix said cause for trial, in accordance with the rules of his court, and that he proceed to try the same according to law and without unnecessary delay, and to render judgment therein. It is further ordered that defendant herein pay the costs of this proceeding.


text:
    No. 6665.
    Duncan Stewart vs. Charles Lacoume.
    Tho exemptions of property from seizure provided for by article Oil of the Code of Practice, and by the acts of 1872 and 1871, do not apply in favor of lessees, as against their lessors.
    'The surety on a forthcoming bond can only claim a release from his obligation, because the sheriff has made a return of tho ft. fa. issued against the principal of the bond before the return day of the writ, by showing that ho was injured thereby. And even then ho can only claim a. release to the extent of the injury proved.
    The surety on a bond for tho release of property provisionally seized by a lessor, becomes liable from the moment he fails to return the released property to the sheriff, when the latter, under a ft. fa. against the principal on the bond, makes a demand on tho surety.
    APEAL from the Fifth District Court, parish of Orleans. Rogers, J.

    Kennard, Howe & Prentiss for plaintiff and appellee.

      Hornor & Benedict for defendant.

      St. M. Berau.lt for warrantors.
   The opinion of the court was delivered by

DeBlanc, J.

For rent due him by W. J. A. Hughes, Duncan Stewart obtained a judgment against him, with right of pledge on the property, which had been provisionally seized to satisfy said rent. On the twentieth of September 1875, the property seized was released on a forthcoming bond subscribed by said Hughes, as principal, and by Charles Lacoume, as his surety.

On the twenty-second of September 1875, Hughes sold to Charles Lacoume, the furniture and effects subject to plaintiff’s pledge, and which — two • days before — had been released on bond. On the first of October, Hughes removed all of said furniture and effects from Stewart’s house, to one leased by him from Charles Campbell, and — after-wards — took a rule to set aside the seizure, on the ground that the value of said property was under $600, and exempt by law from seizure by the lessor. On the third of November, that rule was tried and dismissed.

On the twenty-fifth of December, the sheriff of the parish of Orleans received a writ oí fieri facias issued on plaintiff’s judgment against Hughes, and — in his return on that writ — he states that he (■.ailed on the principal and the surety on the forthcoming bond, to point out property for seizure, but that none was pointed out. That Hughes said he would surrender the effects which had been provisionally seized from him, but failed to deliver them in the custody of said officer, who — on the eighth of February 1876, returned the writ of fieri facias, with the endorsement “nulla bona.”

It was after that return that the present suit was brought against Charles Lacoume, as surety on the bond. In his answer to that suit, he contends :

1. That, though he instructed the sheriff to seize the furniture which had been released on bond, and informed him where said property was and could be found, the sheriff refused to seize it.

2. That said property was and remained exempt from seizure, and no bond could have been required for its release — and, if it was not exempt, his obligation as a surety has been destroyed by the sheriff’s refusal to seize the effects subject to the lessor’s pledge, and by the premature return of the writ of fien facias.

To that portion of defendant’s answer, in which he claims that the property provisionally seized is now, and was — when provisionally seized — exempt from seizure, plaintiff opposes the plea of res judicata, and bases that plea upon the fact that, in his suit against Hughes, the same exception was urged by the latter, tried and finally determined against him, and that the judgment dismissing that exception can not be collaterally attacked by Charles Lacoume. That plea is untenable.

The bond sued upon is made, payable to Eugene Waggaman, the sheriff of the parish of Orleans, by whom it was transferred to plaintiff, and its condition is “that, if the defendant — W. J. A. Hughes — shall satisfy such judgment as may be rendered against him in the suit pending at that time between him and Stewart, then the obligation evidenced by the bond to be void, or else to remain in full force. ”

It is evident that the exemptions provided for in the 644th art. of the Code of Practice, and in the acts of 1872 and 1874, do not apply to lessees. The exemptions in their favor 'are specially mentioned in art. 2705 of the R. O. O. and the titles of the aforesaid acts which are, the first “ An act to amend article 644 of the Code of Practice, ” and the other “ An act to amend the act ” so entitled, exclude the supposition that, in adopting both or either of. them, the-Legislature intended to amend article 2705 of the Civil Code.

Was Lacoume released by the fact that the writ of fieri facias issued against Hughes, was returned before the seventieth day? He was not, or — if he was — he has failed to show it. Had he proven that, on account of that premature return, any property of Hughes which could have been seized in the interval from the date of that return and that fixed by the writ for said return, is no longer subject to said writ, or had he proven that he has been, in any way, injured by said action, he could certainly claim that — to the extent of the injury sustained — he has been discharged from his obligation as a surety. This, he has not done.

We consider, as Lacoume does, that the bond which he subscribed in favor of the sheriff is and could be but a forthcoming bond. Whether it was or not, and by whatever name that bond may be called, has his obligation as a surety arisen, and — if it has — when ? His obligation arose when, with the writ in hand, the sheriff went to him and asked him to point out property for seizure. He should — then—have returned the property which, by the forthcoming bond, had been taken from the custody of the sheriff.

Did he do it ? He said, on the trial, that he had been informed, but did not know, that the sheriff had refused to seize the furniture which had been released on bond, on the ground that it had become subject to the rights of another lessor. As to Hughes, he testified that “he told the sheriff to get the furniture — that it was in house No. 427 Josephine street.”.

Prom two of the deputy sheriffs, we learn that Hughes and Lacoume were notified that the property would have to be brought back to the warehouse and delivered to the sheriff for identification. This was not done, and the condition of the bond was violated by the principal and his surety; and that surety, in whose name stands the title to the released property, and who has already obtained judgment against his warrantors on a bond of indemnity furnished by them to protect him against the effects of his own bond to the sheriff, was justly held liable.

The appeal, in this case, was not a frivolous one, and plaintiff is not entitled to the damages he claims.

The judgment of the lower court is affirmed with costs.


text:
    No. 6446.
    Fannie C. Bienvenu vs. E. T. Parker, Public Administrator.
    The legal representative o£ the minors’ heirs o£ a decedent may enjoin the administrator o£ the succession from selling any property o£ the succession, to satisfy a j udgmont against the decedent which is null and void.
    APPEAL from the Second District Court, parish of Orleans. Tissot, J.

      Chas. S. Bice for plaintiff and appellant.

      A. Bóbert and W. O. Denegre for defendant.
   The opinion of the court was delivered by

Spencer, J.

Plaintiff, alleging herself to be the widow of Aristide Bienvenu, and natural tutrix of his children, minors, represents that E. T. Parker, public administrator, administering her husband’s estate, has obtained from the Second District Court of Orleans an order, and has advertised for sale all the real estate of said succession, to pay a judgment for which said deceased nor said property is liable. She alleges that the said judgment is a nullity, and that she has sued to have it so decreed ; that it was rendered without citation against her husband and for a prescribed debt; and that the sale of the property therefor would irreparably injure her said children, who are sole heirs of their father. She therefore prays an injunction, which upon her oath and bond was granted.

Defendant took a rule to set aside the injunction : first, for insufficiency of the surety; second, that the petition discloses no cause of action ; and, third, because of the things charged in the petition beiDg barred by res adjudícala.

The rule was tried on the second ground, that the petition disclosed no cause of action. The judge sustained the rule and dissolved the injunction, and plaintiff appeals.

For the purposes of the trial the allegations of the petition are to be taken as true. If they are true — if the administrator is seeking to sell the real property of the estate to pay a debt that does not exist, he is seeking to perpetrate a great wrong on the minors Bienvenu — a wrong which courts can not sanction.

The judge a guo has not given us the benefit of his views, nor have the counsel stated them. If it is true that the judgment against Bienvenu was rendered without citation, it is an absolute nullity, and that nullity may be invoked by any one interested in doing so, and in any form of action, and whenever it is opposed to them.

We think the petition does show a cause of action.

It is therefore ordered and decreed that the judgment appealed from be annulled and reversed, and that this cause be remanded to be proceeded with according to law, appellee paying .costs of appeal.


text:
    No. 6639.
    John F. Follett et al. vs. Spencer Field, President, et al.
    ■When it appears that the partios in charge ot the property and affairs of a corporation, as liauidators of the same, have been elected as such by the stockholders of the corporation, and their election has not been set aside, and no fear of fraudulent action on their part is alleged, no court is authorized to displace them, and appoint a receiver in their stead.
    APPEAL from the Fourth District Court, parish of Orleans. Houston, J.

      H. E. Tipton and Hornor & Benedict for plaintiff and appellees.

      Bentick Egan for defendants and appellants..
   The opinion of the court was delivered by

DeBlanc, J.

The plaintiffs are stockholders of the Ocean Dry Dock Company, a corporation domiciled in the town of Algiers. They brought this suit against the President and Secretary of said company, for its dissolution and liquidation.

This suit was filed on the twenty-first of February, 1877. On the same day plaintiff filed a rule, admitted by the court, in and by which defendants were ordered to show cause — oh the twenty-eighth of February, 1877 — why a receiver should not be appointed to take charge of the affairs and property of the Ocean Dry Dock Company, as prayed for in their original petition.

To that rule defendants excepted, on the ground that it was irregular and unauthorized by law — that it disclosed no reason for the interference of the court, and that the facts alleged by plaintiffs could not be tried in the summary form presented in said rule.

On the seventh of March, 1877, the rule was made absolute, and A. A. Woods appointed receiver of .the Ocean Dry Dock Company, to collect its assets, take charge of, and care for its property, to demand and take possession of its books, papers and records.

The tenth article of the company’s charter provides that “ when the period shall arrive for the winding up of the affairs of the company, whether at the expiration of said charter — on the sixteenth of March, 1893 — or if sooner determined upon by the stockholders, such liquidation shall be conducted by three stockholders duly elected by a majority in amount of the stockholders at a meeting to be convened for that purpose, etc.

In this ease, a meeting of the stockholders was called, to take place on the fifteenth of February, 1877; and by whom and for what purpose was it called ? By plaintiffs themselves and to consider the propriety of dissolving and liquidating the company. At that meeting, the dissolution which seems to be anxiously desired by every one of the stockholders, was pronounced by five of them, representing — as contended by defendants, á3é shares out of 830.

Plaintiffs admit that they appeared at said meeting, but charge that they were refused — by' defendants — a hearing, oyer of the books and papers of the company, which were retained and controlled by said defendants. That — for those reasons — they retired from the meeting, taking with them a majority of the shares of stock of said company. It was then that, in accordance with the tenth article of the charter, Spencer Field, J. B. Williams and N. C. Folger were elected liquidating commissioners.

Under their own allegations, it appears that plaintiffs could have controlled the meeting of the fifteenth of February. The reasons given by them why they retired from it do not justify their course — for, on that day and on that occasion, considering their own allegations, they could have obtained not only the dissolution desired by all and opposed by none, but, besides, they could have chosen the liquidating commissioners, whose election is expressly provided for in said charter.

There can be no doubt as to the power of courts to appoint receivers to liquidate the affairs of an insolvent corporation; but when and under what circumstances? When there are no persons to take charge of, and conduct the affairs of said corporation. These are the very words of one of the decisions relied upon by plaintiffs’ counsel. 1st Paige 387.

In this case, three of the stockholders of the dissolved company appear to have been elected as its liquidating commissioners; and — were their election set aside as null — it is doubtful that, under the parties’ contract, a receiver could be appointed. The validity of that election is contested in the principal action, and — in that action, may be inquired into.

It is clear, however, that — whilst that election stands unreversed, and no charge of apprehended fraud is made against said commissioners, the appointment of a receiver is not only premature, but unauthorized.

One of the reasons given for the judgment in the rule is “ that the company is without credit and means to care, ad interim, for the property — a dock which needs pumping and other attention, to prevent it from sinking.” The appointment of a receiver would not add to the credit and means of the corporation.

The sixth article of the charter provides that, “ unless removed for cause, two of the plaintiffs, Thomas G-. Mackie and John F. Follett, shall be — until the expiration of said charter, the managers of the Dry Dock, and shall have power to purchase all materials necessary, make all contracts, employ all workmen and exercise a general supervision over the workshops of said company.” With that important power in their hands and under the circumstances already related, can they justly claim the appointment of a receiver ? We believe not.

It is, therefore, ordered, adjudged, and decreed that the judgment of. the lower court appointing Alfred A. Woods as receiver to the Ocean Dry Dock Company be and it is hereby revoked, and plaintiffs’ rule to appoint a receiver dismissed at their costs in both courts.


author: Marr, J.

text:
    No. 6693.
    Thomas J. Meshew, Avendano Bros. Subrogated, vs. S. F. Gould. Rule on Sherriff’s Keeper.
    Au agent, or depositary, in whose hands certain property attached in asuit has been placed for keeping and sale, by the parties claiming adverse rights in the same, can not be compelled by the attaching creditor, on a mere rule, to deliver said property, or proceeds of the same, to the sheriff. No action can be had against the depositary in such a case by the attaching creditor until his rights have been fixed by a decree rendered contradictorily with all other parties assorting an interest in the property.
    APPEAL from the Fifth District Court, parish of Orleans. Rogers, J.

      Qeoi'ge L. Bright for plaintiffs and appellees.

      Cotton & Levy for sheriff’s keeper and appellant.
   The opinion of the court was delivered by

Marr, J.

The plaintiff, Meshew, issued a writ of attachment against the property of S. E. Gould, and attached a flatboat load of staves. The attachment was made on the twenty-sixth of January, 1875.

On the twenty-eighth of January an agreement was made as follows :

“Thos. J. Meshew, Avendano Bros. Subrogated, vs. S. F. Gould. No. 6293, Fifth District Court.
“ Whereas, by virtue of a writ of attachment issued in the above suit, the sheriff has attached a boat load of staves, and Traylor & Knight claim about 18,000.
“And John E. Binns claims the balance of the staves seized by the sheriff, of which 3000 staves he alleges to have bought from Henry Bohannan, and 3000 made by himself (Binns) which he can identify, being on top and unmixed with any of the staves claimed to have been gotten out by Gould.
“Now, neither party admitting the claim of the other, it is agreed, to simplify the matter, and to save expense, that the sheriff shall appoint James H. Mehaffy keeper of áll the staves, and he is authorized to sell the staves, the net proceeds of which he shall deliver to the sheriff.
“Traylor & Knight and John E. Binns will make their claim before the court.
“Mehaffy will sell each lot separately and render a separate account..
“ This agreement to amount to nothing more than to substitute the money for the staves, Mehaffy agreeing to discharge his obligations as well as he can,
“New Orleans, January 28,1875.
Thomas J. Meshaw, per T. Avendano,
John E. Binns,
Stephen Traylor for self and Knight,
James H. Mehaffy. ”

On the eleventh of April, 1877, plaintiff took a rule on Mehaffy as follows:

“On motion of George L. Bright, attorney for plaintiff, and on showing to the court that J. H. Mehaffy was appointed keeper of the property attached, and took possession thereof:
“ It is ordered by the court that said J. H. Mehaffy show cause •on Saturday, twenty-first inst., why he should not deliver to the sheriff the property attached and intrusted to him for keeping. ”

If Mehaffy had paid no attention to this rule, and the court had passed upon it ex parte, it should have been dismissed. On its face there is no suggestion of fact which discloses any right or cause of action in the plaintiff to demand the specific thing which he asks the court to do. The rule shows that the property attached was intrusted to Mehaffy for keeping; and it states no reason for taking it out of his keeping, no right in plaintiff to provoke such an order.

The exhibition of the agreement of the twenty-eighth of January, 1875, makes the case more conclusive against the plaintiff. This .agreement shows that Traylor & Knight claimed a part of the property attached ; and that Binns claimed the remainder. These several claimants selected Mehaffy as depositary of the property, and charged him to sell it and deliver the proceeds to the sheriff. By its terms the agreement was for the benefit of all, not for the interest or convenience of the attaching creditor alone, whose right was not admitted, but was denied and contested. Plaintiff could not have maintained an action, in any form, to take this property out of the keeping of Mehaffy, without a rescission of the agreement; and the agreement could not have been rescinded without the consent of all the parties in interest, or by judicial proceeding contradictorily with all of them.

The rule simply fails to disclose any right of action. The agreement goes one step further and shows that plaintiff had no such right. No such right could have existed in him, or in any other one of the parties to the agreement.

Mehaffy, however, appeared, and he excepted to the rule, on the grounds:

1. “The sheriff should be made a party to the rule, as a part of the proceeds of sale have been paid over to him, and the balance thereof retained for expenses incurred and paid out by this relator.”

2. “The parties in interest appointed exceptor their agent to sell the property attached, and this is not the remedy to compel him to render an account. ”

“ And should these exceptions be overruled, then your relator answers -that he has sold all the property turned over to him as per the written agreement,” etc., and he goes on to show what disposition he made of the proceeds.

Eor the purposes of this decision we need not inquire whether Mehaffy, under the agreement, is to be treated as the sheriff’s keeper, or whether he is to be considered merely as the depositary of property in litigation, selected by the several claimants, and occupying the relation of agent towards them: because, under the first hypothesis, for any neglect or misconduct of the sheriff’s keeper, with respect to the property, the parties in interest would look to and pursue the sheriff, not his keeper ; and under the second hypothesis, it is manifest that a rule can not be maintained against an agent or mandatary to compel him to render an account of his agency.

The proceeding by rule is not the proper mode of instituting suits. If the parties choose to make up and try the issues on a rule they may certainly do so ; but if exception be taken, the proceeding must be dismissed ; and the complaining party remitted to his action, in the ordinary and appropriate form, by petition and citation.

The object of the rule is not to compel Mehaffy to perform any stipulation of the agreement. It is, specifically, to compel him to deliver to the sheriff, in kind, the property which he was charged, not merely to keep, but, also, to sell. If the property still remained in the hands of Mehaffy the plaintiff could not thus interfere with the rights of the other parties, and make their agreement nugatory by preventing the sale by the chosen agent of them all. If the property had already been sold it would no longer have been possible for Mehaffy to deliver it to the sheriff: and the court had no power or authority, under the rule, to compel Mehaffy to account for and deliver the proceeds to the sheriff, because no such thing was demanded in the rule.

But suppose the proceeding were regular: what are the rights of the plaintiff? The record does not inform us what disposition has been made of the attachment suit, nor of the claims of Traylor & Knight and Binns to the property attached. The plaintiff will have no right to touch the property attached, or any part of the proceeds, unless and until there shall first be rendered a .júdgment in his favor, against' Gould, with lien and privilege on the property attached; and against Traylor & Knight and Binns disallowing their claims to that property, in whole or in part.

The property in question had been shipped and consigned to Mehaffy by Binns. The account filed by Mehaffy shows that he had sold all of it and had paid to the sheriff all the proceeds that remained in his hands, after deducting certain advances and charges which might well be allowed as between him and his consigner and Traylor & Knight. It is eminently improper, therefore, that any proceedings should be had, or judgment rendered, against Mehaffy at the instance of the attaching creditor alone, until his rights and those of Binns and Traylor & Knight, with respect to the property attached, be determined. No judgment rendered in such a proceeding would conclude the other parties in interest; and if Mehaffy’s liability should be fixed, in this proceeding, and he be ordered to pay over a certain sum to the sheriff, in the event that Binns and Traylor & Knight should make good their claims, in whole or in part, Mehaffy would be subject to like proceeding at their instance, to compel him to account to them, and pay over to the sheriff another and additional sum.

We think the district judge erred in maintaining the rule, and in rendering judgment against Mehaffy; and that the exception of Mehaffy should have been maintained and the rule dismissed.

This decision is not intended to have the effect of a final determination of the rights of the attaching creditor, or of the claimants of the property attached. Their rights, whatever they may have been, at the time of the taking of this rule, either under the agreement of the eighteenth of January, 1875, or otherwise, against Mehaffy, or against the sheriff, are reserved, and remain wholly unimpaired by the decision now rendered.

It is, therefore, ordered, adjudged, and decreed that the judgment appealed from be reversed, avoided, and annulled, and that the rule herein taken be dismissed with costs in both courts.