author: Watkins, J. Nicholes, C. J.

text:
    No. 13,500.
    Annie T. Frith, Tutrix, vs. W. O. Pearce, Tutor, et als.
    Syllabus.
    In case a nuncupative testament by public act is held good as a nuncupative ' testament under private signature in other respects, the notary signing the act, and the person who signs the name of the testatrix on account of her physical disability, are competent witnesses, and may be counted as such.
    It appearing from the recitals of such an instrument, that the testatrix “was not able to sign her name on account of physical disability,” the requirements of K. C. C. 1582 will be complied with.

      On Rehearing.
    If a plaintiff, desiring to take an appeal from the judgment rendered on his peti tion, obtains an order for a “general appeal,” and perfects the same by executing a bond in favor of the clerk of court, the appeal brings up the entire judgment.
    The appellant cannot limit the scope of the appeal by a mere recital in the “condition” of the bond, that it is taken from particular parts of the judgment. If such was appellant’s intention he should have made the same known in the application for appeal and caused the order of appeal to be made accordingly.
    APPEAL from the Tenth Judicial District, Parish of Avoyelles —Couvillon, J. ad hoc.

      Joseph Clifton Cappel, for Plaintiff, Appellant.

      William Karris Peterman, for Defendants, Appellees.
   The opinion of the court was delivered.by

Watkins, J.

On rehearing by Nicholls, C. J.

Watkins, J. This is an action to have the nullity of a testament decreed, and, in the alternative that the validity of the same is maintained, that the legacies therein stipulated be declared void and of no effect, and not enforceable in law.

The testament is of the following tenor, viz:

“State of Louisiana, “Parish of Avoyelles.
“Be it known that I, William M. Ewell, notary public in and for the “State and Parish aforesaid, on the 10th day of November, A. D. 1892, “repaired to the house of Mrs. Sarah A. Frith, inhabitant of the said “Parish of Avoyelles and State of Louisiana, where, at her request and “dictation, the following instrument was written by me, the said notary, and declared by the said Mrs. Sarah A. Frith to be her last will “and testament, which was written by me, said notary, as dictated by “said Mrs. Frith, without turning aside to anything else, in presence “of the undersigned witnesses.
“1st. I want May Pearce to have one hundred acres of my cleared “land on the Talbot place.
“2nd. I want Minnie and Sadie Frith to have fifty acres of land “each on the Talbot place, cleared land.
“3rd. I want my sister, Mrs. Verlinda Marshall, to have twenty-“five acres of open land on the Talbot place.
“In testimony whereof, the said Mrs. Sarah A. Erith, not being able “to sign her name, on account of physical disability, her son, Thomas “P. Frith, signs for her, in presence of Aubrey Lee Johnson, John A. “Hollinshead and Wyatt K. Pearce, lawful witnesses residing in this “parish, and me, the said notary, after reading the same in an audible “voice, in the presence of the testatrix and said witnesses without interruption and without turning aside to other acts, this 10th day of “November, A. D. 1892.
“Sarah A. Frith, “Per Son, T. P. Frith.
“Witnesses:
“A. L. Johnson,
“J. A. Hollinshead,
“W. K. Pearce.
“Done and passed on the day and date aforesaid, and in the parish “aforesaid.
“William M. Ewell, “Notary Public.”

This document was admitted to probate as a nuncupative testament under private signature, and, as such, its validity was maintained by the judge a quo.

He decreed that the bequest made in favor of Mrs. Verlinda Marshall be recognized and enforced, but that those bequests that were made in favor of May Pearce and Minnie and Sadie Frith be severally decreed null and of no effect in law and that said legatees are prohibited from inheriting said bequests by reason of their renunciation and abandonment thereof and their acceptance of their respective shares in the succession of the testatrix as heirs at law.

From that judgment, the plaintiff, alone, has appealed, the cast defendants, as legatees, having contented themselves with making answer to the plaintiff’s appeal and requesting an amendment of the decree annulling the bequests in their favor.

The grounds upon which the plaintiff contests the validity of the testament are the following, viz:

1st. That the said testatrix did not sign or affix her signature to said will, and the signing by her son, T. P. Frith, Jr., renders said will invalid.

2nd. That it does not appear from said will that there were any declaration, on the part of said testatrix of her inability to sign, or the reason why, except the written statement of the notary himself purporting to give his own opinion, and not the declaration of the testatrix as dictated by her to him.

3rd. That the bequests to Minnie and Sadie Erith, who inherited by representation through their deceased father, Chas. E. Frith, and May Pearce, inheriting by representation through her deceased mother, Menerva Pearce, all of whom were forced heirs of said testatrix and named legatees in items first and second of said will, are null and void, for the reason that said will does not disclose that the said testatrix intended said legacies bequeathed to said heirs to be over and above their legitime, or over and above the legitime portion of other forced heirs.

4th. As a nuncupative will under private act that the requisite number of witnesses did not attest said will.

5th. It does not appear that said will was ever read by said testatrix to the witnesses, or by one of the witnesses to the rest in presence of said testatrix.

6th. And as the last ground, that the legatees, Minnie and Sadie Frith and May Pearce, having effected a partition of the entire succession, in utter disregard of the will, are now estopped from claiming any benefit under such invalid will.

As the discussion in the briefs, and oral argument as well, are chiefly addressed to the question of the validity of the will as a testament under private signature, we will observe the same course in its examination. .

Counsel for appellant insists, that the Judge a quo in sustaining the will as a nuncupative testament under private signature, improperly sustained the defendant’s contention to the effect that- both the notary and T. P. Frith were competent witnesses, same being necessary to make out the requisite number of five witnesses.

His statement is that “whilst the Supreme Court, in a few instances, have, in order to hold a will good under private act, declared the notary a competent witness thereto, this ruling can not be so extended as to permit such a flagrant violation of the articles of the Civil Code on this question.”

“The notary is a witness to the act as much as the other attesting witnesses ; he attests the signaure of both the testator and the witnesses. In other words, he is an official witness in every act pertaining to the execution of the will.”

This argument goes very far towards admitting that the notary who attests an instrument as a nuncupative testament by public act, may be treated as a simple witness to a testament under private signature, when same is so considered. “But,” he says, “this’ reason would not apply to the signature of one who simply writes the name of the testatrix. His affixing his signature is not conclusive proof that the will was either read by him, or in his presence. * * *

“ * * * This will purports to be signed by an agent or attorney in fact’; such agent can no more be called a witness than, could the testator himself. He does not,appear as attesting any part of the will; he simply affixes the signature! of the testatrix and witnesses. The act simply purports to be the act of the testatrix, and greater significance cannot be given such signature than the original signature of the testatrix. The article 1881 of the Revised Civil Code plainly points out the manner of affixing the signatures of those who are unable, or know not how to sign. It is by affixing their marks by the notary, or one of the attesting witnesses residing in the place.”

The contention, on the other hand, is that the signatures as appended to the testament, thus “Sarah A. Frith, per Son, T. P. Frith,” sub-serves all the requirements of the law touching the signature of a person who is incapable of signing as testator, as well as that of a competent witness thereto.

The name of the testatrix was written by her son, and he signed his own name for the express purpose of attesting her signature. .

Defendant’s counsel submits that “five names do actually appear signed to the instrument as persons present when it was executed, although it may appear that the entire five did not intend to officiate as witnesses, nevertheless, in order to maintain the validity of the will, they will be regarded as having acted in that capacity.

* * * * *

“Independent of any authority on the point, no good reason can be assigned against counting all of these five names as (the names) of witnesses. The law simply says that the testament must be executed in presence of five witnesses. Certainly, it is proven, both from the face of the will itself, and by the testimony aliunde, that those five persons were actual witnesses. They were all (present) during the whole making of the testament, and 'signed as being present at its execution.”

The following extracts from the testimony of the witnesses who were heard at the trial, support that proposition.

That of Dr. Hollinshead, one of the witnesses who attested the will, being that:

- “The notary, according to my recollection, was writing what she dictated, and the witnesses were all there, both as the .dictation was made and the writing was done. Immediately after the- writing was concluded, the notary read over what he had written to Mrs. Erith in the presence of -us all, and asked her if that was what she wanted, and she assented. The signatures were then immediately affixed. The foregoing matters were all gone through without any interruption of any kind. We were all standing around Mrs. Erith’s bed when she began to dictate to the notary, and we remained there until the dictation, writing and reading and signing were completed, in the manner I have stated above. All the formalities stated in the will were complied with as they are written in the will.”

That of Eev. A. L. Johnson is of similar import.

Another witness was Erith Pearce, a grandchild and heir of the testatrix. He was present when her will was) executed, and stated that “he heard her dictate, saw the notary write it, and heard him read it over to her after it was written. The dictation, writing and reading were all done in he presence of the witnesses to the will.”

“My grandmother,” testified this witness, “first dictated her will to the notary in the presence of the witnesses, who were all standing around her bed. He wrote it down as she dictated it, and then read over to her what he had written. He asked her if that was what she wished, and she assented. The will was then signed by the notary and by the witnesses, and by T. P. Erith for the testatrix. All these things were done without turning aside to anything else, the witnesses remaining about the bed from the time the formalities were commenced until they were concluded. I remember the incident' of my grandmother asking for the notary. When it was known that she desired to have a notary in order that he might write her will, Mr. T. P. Erith was standing at her bedside. He said: ‘Ma, it is unnecessary for you to make a will; any desire of yours will he fulfilled by me just as if you were) living.’ The other heirs of Mrs. Erith were present and heard this. There was a general assent among those in the room to this. I am twenty-four years of age. I am not a legatee under this will. All the heirs of Mrs. Erith were present in the room when the will was dictated, and executed. Henry Erith and I were the person's who went for the notary that night.”

The other witness heard for the probation of the will was Mrs. John Snelling. This lady, before her marriage, was Miss Bessie Murph, the testatrix’s granddaughter.

She testified that she was present when her grandmother’s will was executed, and swore as follows:

“I am not named as legatee in the will. I heard my grandmother dictate the bequests made in the will at the time the will was executed. After she had been told what her will was, she called me and told me that I must not feel that because she had left me out of her will, was because she didn’t care as much for me as the others; it wasn’t that at all, but that she had thought about it and thought I would have as much land as the other three girls without the extra amount. She meant this: I was the only heir of my mother, and in the case of the others, there were three of Ed. Erith’s children and three of the Pearces. I would get the share of one of her children, while the others would be divided into thirds. That is the reason why that the others were mentioned in the will and I was not.”

Dr. Hollinshead further testified as follows: “I saw Thomas P. Frith sign his mother’s name and his own to the will. Frith signed his mother’s name to the will, then we signed as witnesses, and then the notary Signed, according to my recollection. At the time this will was signed Mrs. Frith’s condition was very low; she could not possibly have signed the will.”

In addition to the statements made by witnesses, the recital of the testament is that at the request and dictation of the testatrix, “the following instrument was written by me, the said notary, and declared by the said Mrs. Sarah Frith to be her last will and testament, which was written by me, said notary, as dictated by said Mrs. Frith.”

In Wood vs. Roane, 35th Ann, 865, it was held that in the execution of nuncupative wills under private signature, the law authorizes the testator to cause his will to be written out of his presence and that of the instrumentary witnesses; that the person who has acted as the amanuensis of the testator for that purpose, is not disqualified on that account from officiating as one of the witnesses to the will, and can be counted as one of the five witnesses as required by law.

That proposition strikes us as perfectly sound, and it is applicable to both William M. Ewell, who signed the instrument as a notary, and T. P. Frith, who signed it as acting for the testatrix. Both were competent to sign as witnesses, and both did sign the act. The five persons who signed the act were all present when the will was dictated by the testatrix, and written by W. M. Ewell, as dictated, “after reading the same in audible voice in the presence of the testatrix and the said witnesses.”

Considering W. M. Ewell, as one of the witnesses, it was competent for him to write the will, and afterwards read it to the rest in the presence of the testatrix.

We are of the. opinion that there were five witnesses who signed the testament, and that, in that respect, same is valid.

Counsel for appellant contends that the will is void, because it contains no express mention made by the testatrix, herself, of her inability to sign same, or the reason of her inability so to do; and that the .mere declaration of the person who wrote same that the testatrix “was not able to sign her name, on account of physical disability,” was not a fulfilment of the requirement of the law.

The only formality that the law prescribes for the confection of a nun-cupative testament under private signature is that it be written by the testator himself, or by any person from his dictation; or even by one of the witnesses, in presence of five witnesses. “Or it will suffice if, in the presence of the same number of witnesses, the testator presents the paper on which he has written his testament, or caused it to be written, declaring to them that that paper contains his last will.” R. C. C. 1581.

“In either case, the testament must be read by the testator to the witnesses, or by one of the witnesses to the rest, in presence of the testator; it must be signed by the testator, if he knows how, or is able io sign” &c. R. C. C. 1582.

The law declares that “this testament is subject to no other formality than those prescribed by this and the preceding article.” Id.

Much stress has been laid in argument, on the provisions of R. R. C. 1579, but they apply to testaments received by public acts, and those only.

It is undoubtedly true that the will under consideration was drawn by a notary, who intended it for a nuncupative testament by public act,- but as the law declares that “it suffices, for the validity of a testament, that it be valid under any of the forms prescribed by law, however defective it may be in the form under which the testator may have intended to make it.” (R. C. C. 1590), we are at liberty to disregard the phraseology of the instrument incident to a notarial act, and deal with its substantial elements; and having done so, we find in the will the substantial statement, that the testatrix- was unable to sign her name “on account of physical disability.”

We are of opinion that that recital subserves all the requirements of the law.

We have been referred to no authority-on-this question, by counsel on either side, and those cited with reference to testaments received by public acts are not applicable, on account of the marked difference between the two articles of the code- that appertain to nun-cupative testaments.

Our examination has led us to the conclusion that the will is legal and valid.

With regard to the nullity of the legacies in favor of May Pearce and Minnie and Sadie Erith because of their having, participated in the partition of some of the succession property of the testatrix, hut little is said in the briefs of either party.

The record discloses the fact that such a partition was made, but it also shows that all of said legatees were minors at the time, and. represented in the proceedings by special tutors appointed to represent them therein.

The defendants’ counsel insists that the defendants can not be judicially estopped by such proceedings; and in that proposition we quite agree.

Zunts vs. Courcelle, 16th Ann. 98.

7 Am. and Eng. Enc. of Law, p. 4, and authorities cited.

This conclusion necessary results in the amendment of the judgment appealed from, so far as to reinstate the aforesaid legatees and to affirm it in all other respects.

It is, therefore, ordered and decreed, that the judgment appealed from be so amended as to reinstate and maintain the legacies in favor of May Pearce and Minnie and Sadie Erith, and that the same be, in all other respects, affirmed; and that all costs be taxed against the plaintiff and appellant.

On Rehearing.

Nicholes, C. J.

A rehearing was granted in this case, touching that portion of the judgment of this court herein before rendered, amending the judgment of the District Court, in respect to the legacies made in the will of Mrs. Sarah A. Erith, in favor of May Pearce, and Minnie and Sadie Erith, by which amendment the legacies in favor of those persons were reinstated and maintained.

The present suit was instituted by Mrs. Annie T. Frith, widow of Thomas P. Frith (a deceased son of Sarah A. Frith), in her capacity as natural tutrix of the minors, Alba G. Frith, Edwin T. Frith and Eleonora Frith, issue of her marriage with Thomas P. Frith. In her petition she recites the fact of the death .of Mrs. Sarah A. Frith, and that she left an estate aggregating in value more than five thousand dollars. That she had left certain persons (whom she names) as her forced heirs; that she had made what purported to be a last will and testament by public act (which instrument she described), by which said instrument she disposed of her estate, and that said will had been probated.

Plaintiff averred the said will to be absolutely null and void for want of the observance of the legal formalities, and she attacked the judgment probating the same.

She averred that the bequests to Minnie and Sadie Frith, who inherited by representation through their deceased father, Charles E. Frith, and May Pearce, inheriting by representation, through her deceased mother, Minerva Pearce, all of whom were forced heirs, were null and void for the reason that the will did not desdóse that the testatrix intended said legacies being bequeathed to said forced heirs, to be over and above thier legitime or over and above the legitimate portion of her other heirs as provided bylaw.

Should the court be of opinion that the judgment probating the will, was correct, she averred that said forced heirs, Minnie and Sadie Frith and May Pearce, were estopped from (availing themselves of) the probating of the will, for the reason that said heirs, appearing and acting through their representatives and tutors, Mrs. Annie T. Frith and W. O. Pearce, participated in the partition of the estate of the testatrix, Mrs. Sarah A. Frith, after her decease, and after the existence of said will and its contents had been brought to their notice and that of said representatives. That there was a legal and judicial partition of said estate among the said heirs, under the advice of family meeting, in which each heir was allotted his share, and that said will was treated by said heirs, legatees and family meetings as null and void, and the said legatees renounced whatever interest they might have had in and to said will, by participating and acquiescing in said partition. That the property bequeathed to Minnie and Sadie Frith and May Pearce and Mrs. Marshall exceeded by far the disposable part of said estate, and the bequests deprived the forced heirs of their legitime. Petitioner prayed for the citation of Minnie and Sadie Frith, through their tutrix, Mrs. Annie C. Frith, and May Pearce, through her tutor, W. O. Pearce, and Mrs. Verlinda Marshall, who was one o fthe special legatees in the will, and that there be judgment decreeing the last will and testament of Sarah A. Frith to be null and void and of no effect, and the heirs be allowed to retain their title and possession by virtue of the partition already made. She further prayed that should the will be upheld that the legacies to Minnie and Sadie Frith and May Pearce be declared nullities for the reasons set forth, and that said heirs and legatees be ordered to collate the same back to said succession for legal and equitable division, and in the event said will should be upheld in toto, that said legatees be ordered to contribute back info said succession sufficiently that the minor children of petitioner, who are forced heirs, might inherit and receive their legal portion.

Petitioner filed an amended petition, praying for citation upon May Pearce, directly, inasmuch as in. framing her petition she was ignorant of the fact that said minor had been emancipated; she prayed that service of the amended petition be made upon the other parties. •

The defendants, alleging that plaintiff’s petition contained various demands, which could not be cumulated, moved the court to order them to elect upon which of them they would proceed. ,

They afterwards answered, pleading first the general issue; they then admitted the execution of the will'and its probating, and averred the same to be legal. They averred that the plaintiffs, by the institution of the suit were thereby estopped from setting up an estoppel. They denied that the bequests made by the will exceeded the portion disposable by law by the testatrix, or that a decree reducing the same could be made in the pending proceeding. Further answering, they averred, should the court decide that the plaintiffs were not estopped by the institution of the suit from pleading estoppel against the defendants, May Pearce and Minnie and Sadie Frith, then that they were minors at the time of said partition, and, therefore, were not estopped by reason of said partition proceedings from asserting the validity of said last will and testament.

Mrs. Verlinda Marshall denied that she was a party to the act of partition. Defendants prayed that plaintiffs’ petition be dismissed and their demands rejected, and for all necessary orders and decrees, and for general relief.

Minnie Frith, one of the defendants, died, after having married Williamson Hynsón. She left a son, W. Ringgold Ilynson, who was made a party, through his father, his natural tutor.

On the 9th of Junaury, 1900, the court rendered judgment, declaring that “the law and the evidence, being against the demand of the plaintiffs, and in favor of defendant, Mrs. Verlinda Marshall, it was by reason thereof, adjudged, and decreed, that the last will and testa-; ment of Mrs. Sarah A. Frith, deceased, attacked in this suit, be recognized as a valid and legal nuncupative will under private signature, and that the bequest made in said testament to the defendant, Mrs. Verlinda Marshall, be recognized and enforced, and that she is hereby decreed to be the owner of twenty-five acres of open land on the Talbot place. It is further ordered, adjudged and decreed, that the legacies and bequests made by said testatrix, Mrs. Sarah A. Frith, by her said last will and testament, to defendants, May Pearce, Sadie Frith and Minnie Frith (the said Minnie Frith being the deceased wife of Williamson Ilynson, and who is herein represented by her said husband, in his capacity of natural tutor, of W. Binggold Ilynson, his minor son, issue of his marriage with saidMinnie Frith) are severally and respectively null, void and of no effect, and said legatees are debarrd from inheriting legacies under said will by reason of their renunciation and abandonment of said legacies, and their acceptance of their respective shares in the succession of said Mrs. Sarah A. Frith, as her heirs at law.

The following entry appears in the minutes of the District Court of the 16th January, 1900, Judge Couvillon presiding.

“Mrs. Annie T. Frith, Natural Tutrix, versus
W. O. Pearce, Tutor, et al.

On motion of plaintiff’s counsel,, made in open court, an appeal is granted in this cause, made returnable to the Supreme Court of Louisiana at its next regular session, to be held in the City of New Orleans, on the third Monday in April next, on her furnishing bond in the sum of one hundred and fifty dollars, for a devolutive appeal, and in the sum of five hundred dollars for a suspensive appeal.”

On the 16th of January, 1900, the plaintiff executed an appeal bond in favor of the clerk of court, in the sum of six hundred and fifty dollars. The bond declares that, “whereas the above, Mrs. A. T.- Frith, tutrix, has taken a devolutive and suspensive appeal', made returnable to the Supreme Court of Louisiana, from a certain final judgment rendered against her in the District Court in and for the Parish of Avoyelles, in favor of Mrs. Hardin Marshall, in said Number 9230 of the docket of said court, entitled Annie T. Frith, Tutrix, vs. W. O. Pearce, Tutor, et al., therefore, etc.”

When the record was lodged in the Supreme Court, William O. Pearce, natural tutor of May Pearce, Annie C. Erith, natural tutrix of Sadie Erith, and Williamson Hynson, natural tutor of W. Ringgold Hynson, and May Pierce, answered this appeal, praying that the judgment appealed from be amended, in so far as it annulled the legacies made to May Pearce, Sadie Erith and Minnie Erith.

The judgment of this court, in this case, which we are asked to reconsider, was rendered under these pleadings and circumstances. It is pressed upon us, that we should not have amended the judgment upon the application so to do. ,

It is claimed that the plaintiff’s appeal was simply from that part of the judgment which was adverse to their claims; that their appeal did not bring up that portion of it which annulled the legacies to May Pearce and Sadie and Minnie Erith; that these parties could have appealed themselves, if they were dissatisfied with the judgment, and could not seek relief therefrom by a prayer for an amendment. We are asked to alter our judgment in so far as it amended the judgment of the District Court, touching those particular legacies.

Opinion.

Appellant complains that this court erred, in amending the judgment appealed from at the instance and on behalf of Sadie Erith and May Pearce and Ringgold Hynson. She insists that the only appeal taken- by herself was from the judgment rendered in the District Court, in so far as it was in favor of Mrs. Marshall; that she did not intend to, nor did she appeal from the judgment, in so far as was against Minnie and Sadie Frith and May Pearce; that she certainly would not appeal from a judgment favorable to herself. An examination of the record discloses that the order for an appeal, following the language of the motion therefor was general; it did not refer to any particular part of the judgment, nor to the judgment, as it was in favor of or against any particular person. Appellant followed up the order of appeal by-executing an appeal bond in favor of the clerk of court, and so perfected her appeal as applied for. All the parties to the action) were, by these proceedings, made parties to the appeal. Appellant insists however, that the recital found in the condition of the bond, shows that the judgment she appealed from was the judgment against herself in favor of Mrs. Marshall. We do not think the scope of anappealtaken in manner and form as this was, followed by a bond in favor of the clerk of court, can be narrowed by a recital, such as the appellant relies on. The proper place to ascertain what appellant has appealed from, is the motion for the appeal, and the order granted under it. Any other course would be misleading, and might be greatly injurious to the other litigants. Appellant says that she can not legally be supposed to have appealed from a judgment favorable to herself. That statement is too broad. We have on several occasions sustained appeals of that character. A judgment may be apparently favorable to a person, and yet be, for some reasons, unsatisfactory to him. If she appeals from the judgment, the appellant is not called upon to enquire what the reasons may be for her conduct. We do not mean to say, that a person may not in some particular case so limit his prayer for an appeal as to control its extent. That is a matter unnecessary for us to discuss at length; but that particular course was not followed in this case. We think that this right to limit the scope of an appeal to a part of a judgment, if it exists, is subject itself, to limitations. If a person suing for five thousand dollars, obtains a judgment for twenty-five hundred dollars, he can not limit his appeal to the portion of the judgment against him; he can not split up his cause of action. When he appeals he brings the judgment up as an entirety and takes the risk of opening the door for the other side to have the judgment amended.

Appellees took considerable risk in this case by not appealing themselves. The situation of the parties to this litigation was this: Mrs. Sarah A. Frith executed a will in 1892, in which she made special legacies. 1st. Of one hundred acres of land on-the Talbot place, to May Pearce. 2nd. Of fifty acres of cleared land on the Talbot place, to Minnie Frith, and a like quantity to Sadie Frith. 3rd. Of twenty-five acres of open land on the Talbot place, to Mrs. Marshall.

The legacies were definite as to the quantity of the lands bequeathed, and as to the plantation on which they were to be taken, but indefinite as to their precise location.

This will was admitted to probate at the instance of Mrs. Marshall, by an ex parte proceeding.

Notwithstanding this probate,the legal heirs of Mrs. Sarah A. Frith proceeded to a partition among themselves of the Talbot place.

Mrs. Marshall was not a party to this partition. The partition wa3 made on the advice of counsel that the will was null and void for want of proper form.

It is quite likely that the will would thereafter have disappeared from further consideration, had it not been for the present suit. The appellees in this suit had taken no steps whatever, so far as the record shows, to claim anything under the will, nor to contest the binding force of the partition. ,

The plaintiffs seem to, however, have been dissatisfied with the situation and apprehensive that an attack from some quarter, (probably from Mrs. Marshall) would be made upon the partition, and without waiting for this attack, they took the initiative and brought the present action against Sadie and Minnie Frith, May Pearce and Mrs. Marshall, claiming that the former were estopped from contesting the partition and by their conduct were estopped from taking anything under the will. Plaintiffs’ main solicitude, it would seem, was to save the partition title from being set aside; the prayer of their petition being that “the will should be declared null and void, and that the heirs be allowed to retain their title and possession by virtue of the legal partition already made.”

Assuming the possibility of the District Court’s maintaining the will, plaintiffs prayed in the event of judgment to that effect, that the special legacies to' Minnie and Sadie Frith and May Pearce be declared nullities for the reasons set forth in their petition, and that the said heirs and legatees be ordered to collate the same back to said succession for legal and equitable division, and should the will be upheld in toto, they prayed that the said legatees be ordered to contribute back into said succession sufficiently for the plaintiffs, who are forced heirs of the deceased, to inherit and receive their legal quantum. Mrs. Marshall was made a party defendant in the case.

The suit, as we have seen, terminated in the District Court by a judgment in favor of Mrs. Marshall, recognizing the validity of the will of Mrs. Frith, recognizing Mrs. Marshall to be entitled to the legacy made to her therein, and further decreeing the legacies to Sadie and Minnie Frith and May Pearce to be severally and respectively null and void and of no effect, and said legatees debarred from taking anything under said will, by reason of their renunciation and abandonment of said legacies, and the acceptance of their respective shares in the succession of Mrs. Sarah A. Frith, as her heirs-at-law.

This is the judgment from which plaintiffs appealed, and to which Sadie and Minnie Frith and May Pearce asked an amendment. The judgment heretofore rendered by this court affirmed the judgment of the District Court, sustaining the validity of the will and amended it so as to maintain and reinstate the legacies in favor of Minnie and Sadie Frith and May Pierce. ■ •

We refused a rehearing, in so far as the validity of the will was concerned, and granted it on the other branch of the ease, our main object being to ascertain whether, under the circumstances of the case, Sadie and Minnie Frith and May Pearce were entitled to ask and have accorded to them an amendment of the judgment.

Looking over the entire situation we find that Mrs. Marshall had obtained a judgment recognizing her legacy of twenty-five acres of land on the Talbot plantation, and that she was not a party to the partition proceedings, which plaintiffs seem to be apprehensive may be attacked. So far as the record shows, Mrs. Marshall is in a legal position to question the partition. Should she attack it, all parties should get the benefit of the rescission. A partition ought not to stand as to one and be set aside as to another .(C. C. 1412).

Whether 'the plaintiffs would not be as much protected without this suit against any attack on the titles conveyed in the partition proceedings, wherein Minnie and Sadie Frith and May Pearce were parties, as legal heirs, by so appearing, as they would have been as holding an additional legacy under the will, and -whether this suit would aid them in this matter, may well be questioned. Zeigler vs. Creditors 49 Ann. 170; Benton and Milliken vs. Sentell 50 Ann. 877.)

The different demands made by the plaintiff in her pleadings, original, alternative and contingent, are so connected with each other and the rights of the appellees herein are so interlaced with those of Mrs. Marshall and the other heirs that it is difficult to separate them, and we think that Minnie and Sadie Frith and May Pearce were'authorized to deal with the judgment as an entirety. We think the situation is so involved, and so much out of the usual order, that justice to all parties would be best observed by affirming the judgment of the District Court, in so far as it recognized the validity! of the will of Sarah A. Frith, and by setting it aside, in so far as it decreed the “legacies made to Minnie Frith and Sadie Frith and May Pearce, to be severally and respectively null and of no effect, and said legatees debarred from inheriting said legacies under said will by reason of their renunciation and abandonment of said legacies, and their acceptance of their respective shares in the succession of Mrs. Sarah A. Frith as her heirs at law,” and by reinstating the legacies made by the said will to Minnie and Sadie Frith and to May Pearce, but leaving open to all parties for contest and adjudication in the future their respective rights and obligations under the said will, and as heirs-at-law of Mrs. Sarah A. Frith, except in so far as they are all closed by the present judgment.

For the re'asons assigned herein, our former judgment is amended so as, after reinstating the said legacies to Minnie Frith and Sadie Frith and to May Pearce, to leave open for all parties for contest and adjudication in the future their respective rights and obligations under the will, and as heirs-at-law of Mrs. Sarah A. Frith, except in so far as they are closed by the present judgment. As so amended, our former judgment will remain undisturbed.

This causa is remanded to the lower court for further proceedings according to law.

Provosty, J., takes no part, this case having been submitted prior to his taking his seat on this bench.


source: Caselaw Access Project

author: Bkeaux, J.

license: Public Domain

text:
    No. 13,767.
    F. M. Boynton vs. Equitable Life Assurance Society.
    Syllabus.
    In an action to recover the amount of a policy of insurance, the defense of suicide, to avail the company, must show that every reasonable hypothesis of accidental death is excluded by the evidence. The insured was alone and was found dead from a gunshot wound, which may have been accidentally Inflicted.
    On two occasions, the insured took opiates which caused him to be ill. This was some time prior to his death. It does not follow that they were taken with suicidal intent. They may have been taken to relieve pain. Those who attended the deceased in these illnesses did not seem at the time to have suspected that the drugs were taken with suicidal intent.
    The jury of the vicinage, and the district judge who heard the testimony and witnessed the handling of a similar giln to the one the insured was handling at the time of his death, came to the conclusion that the plea of suicide was not sustained.
    This court did not find ground sufficient to set aside the verdict and judgment
    APPEAL from the Eirst Judicial District, Parish of Caddo — Land, J.

      Thomas Fletcher Bell for Plaintiff, Appellee.

      Wise & Herndon for Defendant, Appellant.
   The opinion of the court was delivered by

Bkeaux, J.

Plaintiff claims the amount of a policy issued by the defendant on May 24th, 1893, for five thousand dollars. lie was the beneficiary named in the policy.

Defendant’s answer admits that the company issued the policy; denies that the premium had been paid, and sets up the plea of the intentional suicide of the insured. Defendant has abandoned the plea of failure of the insured to pay the premium.

Between seven and eight o’clock on the morning of March 13th, 1894, A. Boynton, after having taken breakfast with his family, consisting of four children — a boy, aged sixteen; a girl, aged eighteen, and two others, aged eleven and five, respectively, and to whom he had talked pleasantly during the meal, left the breakfast table, at which his children were still seated, and went into another room of the house. A few minutes after, a report of a, gun was heard. The eldest son was the first to enter the room and was closely followed by his eldest sister. The father was found sitting in a straight, high-backed, armless chair, leaning back. He was not conscious. He was taken from the chair and placed upon the bed in the room in which he was. His daughter removed his shoes from his feet. The son is not certain, but thinks he saw the gun, when he came into the room, lying across his father’s leg, with the muzzle turned toward the right, in a direction opposite to that in which he was leaning. The gun was a simple single-barrel, thirty-two-inch shotgun. The thumb-catch of the hammer was broken. The son had some time prior tied a string around the hammer, by which it could be cocked. The father and the son had been in the habit of shooting rats with it around the house. The soil had left it loaded the previous day, but it was not his habit, after using it, to leave it loaded. The gun was a “trick gun,” it seems, and required, as we understand it, some knowledge of its peculiarities to shoot it.

We are informed by the testimony that the deceased had not met with any severe misfortune in his immediate family, except the death of his wife about three years before, and that he was a kind father. He was forty-seven years old and was in good health. His only ailment at the time was that he had neuralgic headaches.

The defendant introduced testimony to prove that twice on former occasions, the insured had sought voluntary death. The first attempt, it was contended, was of a date some months previous to his death. He bought some morphine from a drug store near his home and said to the owner something about his going to use it to kill himself. On cross-examination, the witness, who is a merchant and sells medicines, changed and altered this part of his testimony, saying that the deceased said that this would about answer his purpose or about do the' work. The witness added, “I had no idea, though, that he meant what he said.”

On another occasion, he went to a boarding house in Shreveport and asked for a room to himself for the night, as he wished a quiet night’s rest. He was heard groaning during the night and a physician was called in by the proprietress of the boarding house. The next day, she inquired of him how he was. He replied that he was feeling very well, and said, “Why did you send for a doctor? I wanted to die.” 'His family troubles were more than he could bear, so he is reported to have said.

The testimony leads to the inference that his family troubles grew out of the conduct of his two brothers, who were, a few months before his death, charged with larceny, and were forced to leave the State to avoid a criminal prosecution. Upon evidence of which the foregoing is a summary, defendant seeks to have the judgment reversed.

The impression of the young son as to where the gun was when he entered the room, after hearing the fatal shot, we take as being correct. In our view, it does not necessarily follow that the deceased put an end to his own life intentionally. The son said that it was not usual 1o let the gun remain loaded, but that it was loaded the previous day after he had used it. The deceased may have taken it up not knowing that it was loaded and may have handled it as one sometimes handles an unloaded gun. There is nothing suggesting intentional suicide by one in taking up a gun. It may have been that he intended to use it for an entirely proper purpose. The freaks of a gun, when not carefully handled, are sometimes wonderful. We do not consider that the gun which deceased had, from the description of it, was entirely safe even when prudently handled. The string spoken of as tied around the broken hammer, is suggestive of danger when the gun was thoughtlessly taken up for any purpose. The theory of suicide is not the only one to be inferred from the testimony. Other conclusions may be arrived at equally as agreeable to reason.

Defendant contends that the suicidal intent was made evident, at least, twice not long prior to his death, as we have noted in the statement of the facts, once at his farm home and the next time in Shreveport. If we weigh his conduct indicating a desire to live, on the one hand, and the acts which defendant alleges were indicative of his desire to end his life on the other, the conclusion, we think, would be in favor of his desire to live.

This is not, it may be said, a correct test, for the reason that the least intent to take one’s own life is of more moment and more serious' than days and years passed without the least manifestation of suicidal intent. It is true, we know, that the desire to destroy one’s self is hardly comparable with the desire to live, as made manifest by wish and intention. But. here these manifestations of an intent to commit the suicide are not established with any degree of certainty. At the time, so little was thought of them that no one seems to have suspected anything of the kind. It was only after death that they were recalled from the oblivion to which they had been relegated. These incidents were not testified to by the witnesses as if they had considered that he had intended to put an end to his life.

Turning to the other — the natural desire to live — there are a great many considerations which may be taken into account as rebutting entirely the incidents before stated. We are informed that he was -m active and industrious man, kind and affectionate to his children, who, in return, felt the regard and affection due him. He was not annoyed by debt or anything else which would have -a tendency to embitter one’s life. This suit proves that he had at east one brother in addition to his children for whom he must have entertained regard. While, as n, self-respecting man, he was doubtless greatly annoyed by the charges brought against two of his brothers, that was not, of itself, enough to drive a man to extreme desperation. Some time had elapsed since the charges had been brought against these two brothers, during which he did not refer to them as cause which was driving him to the commission of such an act as suicide.

We are of the opinion that our decree is amply sustained by the decisions in Leman vs. Life Insurance Co., 46 Ann. 1189, and in the case of Denechaud vs. Trisconi, 26 Ann. 404.

The evidence does .not exclude the theory that the death was accidental.

Eor these reasons, the judgment is affirmed.


author: Blanchard, J.

text:
    No. 13,619.
    City of New Orleans vs. Mrs. Alice Chappuis.
    Syllabus.
    A house without the prescribed limits, as defined by ordinances of the city of New Orleans, which is being used for purposes of prostitution, may be proceeded against and closed to such purposes and its occupants forced to remove ; but whenever a house is denounced as one of ill-fame and notice to vacate is given, the occupant is entitled to raise and have tried the issue of the immoral use of the premises, or the character of the house, before conviction for not moving can legally be made.
    APPEAL from the Second Recorder’s Court, City of New Orleans— Marmouget, J.

      Samuel L. Gilmore, City Attorney, Arthur McGuirk, Assistant City Attorney, and M. Dracos Dimitry. Assistant City Attorney, for Plaintiff, Appellee.
    Defendant, Appellant, unrepresented by counsel in the Supreme Court.
   The opinion of the court was delivered by

Blanchard, J.

Defendant was proceeded against for violation of City Ordinance No. 13,032 as amended by Ordinance No. 13,485 Council Series. The time laid was July 2, 1900; the place, house No. 1021 Customhouse street.

The first section of the ordinance prescribes the limits within which, for the present, public prostitutes, or women notoriously abandoned to lewdness, may reside. To be more exact, it prescribes the limits without which they shall not reside and ply their vocation.

The second section makes it unlawful to rent or lease any house, building or room to any woman notoriously abandoned to lewdness, or for immoral purposes, outside of the limits prescribed in the first section.

The third section forbids abandoned women to stand upon the sidewalks in front or near the premises they occupy, etc., or to accost persons passing by, or to stroll about the city streets indecently attired, or to behave in public in such way as to offend good morals, etc.

The fourth section makes it unlawful for lewd women to frequent bar-rooms, etc. . ^

The fifth section makes it unlawful for any person to establish or conduct a house of prostitution or assignation without the limits prescribed in section one.

The sixth section declares that whenever such a house within or without the limits may becomes dangerous to public morals the Mayor may order the occupant of such house or room to remove therefrom within five days; prescribes how the notice of removal shall be given or served; and declares that any occupant of a house or room so notified to vacate who fails to-do so within five days shall be punished as prescribed in section eight of the ordinance.

The seventh section gives the Mayor power to close such houses, or room in the event the occupant fails to remove, notwithstanding the infliction of the penalty for not removing upon the notice given.

The eight section declares that any one violating the provisions of the ordinance shall be punished by the recorder having jurisdiction by fine not exceeding $5.00, or ten days imprisonment in default of payment, for the first offense; and by fine not exceeding $10.00, or twenty days imprisonment in default of payment, for the second offense, etc.

The ninth section declares each day any person continues to violate the provisions of the ordinance shall constitute a separate offense.

What one or moré of the many different acts and things, this ordinance describes and prohibits, the defendant was accused of violating does not appear.

The affidavit made charges her in general terms only with violating the ordinance.

When the case was called for trial it was- defendant’s right to require the prosecution to specify what particular provision or provisions of the ordinance she was accused of violating.

She did not do this, but, instead, filed a plea setting up the unconstitutionality and illegality of the ordinance and charging it to be unreasonable, oppressive, etc.

On the issue thus made, trial was had, with the result that she was convicted on the general charge of violating the ordinance, and this appeal followed.

This tribunal has not the jurisdiction to go into the evidence adduced and to determine the facts of the ease — whether from the testimony the accused is guilty or not.

Undoubtedly, many of the provisions of the ordinance attacked are constitutionally and legally valid, and since to that alone is our inquiry limited, and since we know not what one or more of'its provisions she stands convicted of having violated, we must needs sustain the conviction and dismiss the appeal.

We would say, however, it may well be that some one or more of the provisions of the ordinance might not stand the test of legality applied to same, especially in the manner of the enforcement thereof.

For instance, had it appeared from the record of this case that the Mayor had by ex parte order adjudged this woman’s house to be a house of ill-fame, and so judging had given her notice to vacate within five days, and she had failed to so vacate, and had then been proceeded against solely for not vacating, and had been convicted and fined on this charge, she might well be entitled to relief on appeal here.

The notice to vacate given by the Mayor, if a house be in use for immoral purposes, is well enough, but the occupant of the house is entitled to raise and have tried the issue of the immoral use of the premises or character of the house before conviction for not moving can legally be made. And when this issue is raised, it is incumbent on the prosecution to show the character of the house to be such as justifies the notice to vacate and warranting the conviction demanded for not vacating.

For the reasons herein given and those assigned in the opinion this day handed down in the cause No. 13,618 on the docket of this court, bearing the same title and between the same parties on a similar charge against this defendant, it is ordered that the appeal herein be dismissed at the cost of the appellant.


author: Monroe, J.

text:
    No. 13,806.
    City of New Orleans vs. August Faber.
    Syllabus.
    1. The ordinance of the New Orleans City Council, No. 312, N. C. S., adopted under the authority of Act No. 34 of 1900, in prohibiting private markets within thirty-two hundred feet of the public markets, violates none of the provisions of the State or Federal Constitutions, which are here invoked.
    2.' It is within the police power and legislative discretion of the City of New Orleans, under said act of the General Assembly, to require certain food com-modifies to be sold only in the public markets, and the fact that the ordinance in question may have the effect of compelling dealers in such commodities to go into the public markets or else to go out of business does not affect the validity of the ordinance.
    3. It is competent for the city, under existing laws, to authorize persons to build markets and to collect the revenues thereof for a fixed period in consideration of their conveying the property to the city — such markets to be under the control of the city and to be, in all respects, governed by the regulations applicable to other public markets.
    APPEAL from the Eourth Eecorder’s Court, City of New Orleans— Murray, J.

      Samuel L. Gilmore, City Attorney, and H. Garland Dupre, Assistant City Attorney, for Plaintiff, Appellee.

      E. Howard McOaleb, Emile J. Meral and E. Howard McGaleb, Jr., for 'Defendant Appellant.
   The opinion of the court was delivered by

Monroe, J.

Defendant, having been charged with the violation of City Ordinance No. 312, New Council Series, undertook to defend himself by setting up the unconstitutionality of the ordinance, and of the. law under the authority of which it was adopted; and, having been convicted and sentenced, has appealed directly to this court. The ordinance in question malms it unlawful for any person “to conduct a private market, or to sell at retail any fresh meat, fresh fish, game, ooultry or vegetables, except potatoes and onions, in any building, place, store, or stand, within thirty two hundred feet, walking distance, from any public market, in the City of New Orleans;” prohibits the sale of oysters and groceries in the public markets, and contains some other provisions which need not be specially noticed. The act of the General Assembly referred to (being Act No. 34 of 1900), authorizes the Council of the City of New Orleans “to pass such ordinances for the government and regulation of private markets, in the City of New Orleans, as they, in their discretion, may deem proper,” and to provide for the enforcement of the same, especially authorizing said Council to “prescribe the manner in which such private markets shall be kept, and the distance at which they may be located from all public markets.”

There is no dispute as to the facts, and the questions of law which are presented are not unfamiliar to this court.

1. It is said that the defendant had complied with the pre-existing law (Act No. 116 of 1888 and Ordinance No. 7607) and had established his business, in conformity thereto, within the populous district of the city; that he had thereby acquired rights which can not be divested by .subsequent legislation; and that, in so far as Act No. 34 of 190Q requires the removal of said business beyond said district, it is unconstitutional. Stated in other words, the proposition is, that because the defendant had established his business in conformity to the law and the ordinances in force prior to the adoption of Act No. 34 of 1900, he had thereby placed said business beyond the reach of the lawmaking power and had acquired a vested right to conduct the same business, in the same place, and in the same manner, forever. This proposition is untenable, and ignores the very premise upon which it rests. Thus, the defendant had established his business in conformity to Act 116 of 1888 and the city ordinance adopted under its authority. But that legislation was but the reassertion by the State and the city of the power to control, at discretion, the question of the location and regulation of private markets. In 1866 the General Assembly, by Act No. 134 of the session of that year, had authorized the establishment of private markets everywhere, subject to the police ordinances of the city. In 1874, by Act No. 31, private markets were prohibited within twelve squares of the public markets. In 1878, by Act No. 100, they were prohibited “within a radius of six squares” of the public markets. But the use of the word “radius” gave rise to some trouble, as a question of construction, and, in 1888, Act No. 116 was passed, prohibiting private markets “within a walking distance of six blocks from any public market; the said distance to be interpreted as meaning that represented by six blocks in a walk from the public market to a private market.” :When, therefore, the defendant established his market, agreeably to the provisions of this last mentioned act, and of the ordinance adopted under its authority, he conformed to a law which changed the pre-existing regulations upon the subject, with presumed knowledge of that fact, and of the further fact that the authority to make and unmake such law had always been exercised by the State and city as part of the police power, and had been uniformly recognized and enforced by the courts.

In the case of City of New Orleans et als. vs. Stafford, 27 Ann. 417, it was said:

“There is in the defendant’s case no room for any well grounded complaint of the violation of a vested private right, for the privilege, if' he really possessed it, of keeping a private market, was acquired subordi•nately to the right existing in the sovereign to exercise the police power to regulate the peace and good order of the city, and to provide for, and maintain, its cleanliness and salubrity. * * * We presume that it will not be denied that, under circumstances of peril and emergency, the law-maker would have the right to abolish or suspend an occupation imperiling the public safety. This power is inherent in him. He may exercise it prospectively, for prevention, as well as, pro re nata, for immediate effect. It is within his discretion when to exercise this power, and persons under license to pursue such occupation as may, in the public need and interest, be affected by the police power, embark in those occupations subject to the disadvantages which may result from a legal exercise of that power.”

See also Morano vs. Mayor et als., 3 La. 219; First Municipality vs. Cutting, 4 Ann. 335; State vs. Gisch, 31 Ann. 544; City vs. Wolf, 36 Ann. 986; State vs. Natal, 38 Ann. 967; State vs. Natal, 39 Ann. 419; Gossig et als. vs. City, 41 Ann. 522; State vs. Garibaldi, 44 Ann. 809; Natal vs. State of Louisiana, 139 U. S. 621.

Judge Dillon says, upon this subject: “Many of the powers exercised by municipalities fall within what is known as the police power of the State, and are delegated to them to be exercised for the public good. Of this nature is the authority to suppress nuisances, preserve health, prevent fires, to regulate the use and storage of dangerous articles, to establish and control markets and the like * * * every citizen holds his property subject to the proper exercise of this power, either by the State Legislature, directly, or by public or municipal corporations to which the Legislature may delegate it.” Dillon on Municipal Corporations (4th Ed.), Vol. 1, § 141.

2. It is urged that Ordinance No. 312 N. C. S. is unconstitutional, in that it deprives the defendant of his liberty and of his property without due process of law. This objection is answered by the opinion of the Supreme Court of the United States in the case of Natal et als. vs. State of Louisiana, 139 U. S. 621, as follows, to-wit: “The plaintiffs in error were severally complained of, tried, convicted and sentenced in a Eeeorder’s Court of the City of New Orleans, for keeping a private market, in violation of paragraph- 4 of an ordinance of the city, copied in the margin,-and passed under the authority conferred by the Statute of Louisiana of 1878, Chapter 100, as follows (quoting the statute): “The eases were consolidated and on appeal to the Supreme Court of the State the judgments were affirmed (39 La. Ann. 439). The plaintiffs in error contended in the Recorder’s Court, and afterwards assigned for error, that their privileges and immunities as citizens of the United States had been abridged, and that they had been deprived of liberty and property without due process of. law, and had been denied the equal protection of the law, contrary to the fourteenth amendment of the Constitution of the United States. The case is too plain for discussion. By the laws of Louisiana, as in States where the common law prevails, the regulation and control of markets, for the sale of provisions, including the places and distances from each other at which they may be kept, are matters of municipal police, and may be entrusted by the Legislature to a city council, to be exercised as, in its discretion, the public health and convenience may require. (Citing authorities). The ordinance of the City of New Orleans prohibiting the keeping of a private market within six squares of any public market of the city, under penalty of a fine of twenty-five dollars and of imprisonment of not more than thirty days if the fine is not' paid, was within the authority constitutionally conferred upon the City Council by the Legislature of the State. A breach of such an> ordinance is one of those petty offenses against municipal regulations, which, in Louisiana, as elsewhere, may be punished by summary proceedings before a magistrate, without trial by jury. * * * Judgment affirmed.”

3. But it is said that the defendant in this case, and others similarly situated, will be compelled to abandon the private market business because the ordinance complained of will force them into the uninhabited sections of the city, where such business will be unprofitable. The Act of 1874, as we have seen, prohibited private markets' within twelve squares of the public markets, a greater distance (as compared with a smaller population) than the thirty-two hundred feet prescribed by the present ordinance. The act was, however, held by our predecessors in this court to be constitutional. City vs. Stafford (supra). And, if it be true, as was said by the Supreme Court of the United States, in the case cited above, that “the regulation and control of markets for the sale of provisions, including the places and the distances from each other at which they may be kept, are matters of municipal police and may be entrusted by the Legislature to the City Council, to be exercised as, in its discretion, the public health and convenience may require,” it is plain that the distance between public and private markets may as well be fixed at thirty-two hundred feet as at twelve, or nine, or six, squares; and the fact that a particular individual is unable to find a place beyond the prescribed limit within which he can conduct his business profitably does not aftect the question, since, in the exercise of the power and discretion vested in it, the Council might, at once, and in direct terms, prohibit the sale of provisions elsewhere than in the public markets. Mr. Tiedman, in a late work entitled “State and Federal Control of Persons and Property,” Vol. 1, p. 557, says: “Not only has the Legislature exercised the power of confining the prosecution of certain trades to certain localities, but it has very often, particularly in respect to the vending of fresh meat and vegetables, prohibited the plying of the trade in any other place than the market which is established' and regulated by the government. This regulation is very common in all parts of this country, and has frequently been the source of litigation,- but it has generally been held to be reasonable.”

And he cites a number of authorities in support of the view thus expressed, and quotes in extenso from the opinion in “City of New Orleans vs. Stafford,” as forcibly presenting the “reasons which justify this police regulation.” Judge Dillon writes to the same effect, viz: “The States, under their police power, may delegate to municipal corporations the authority to establish or authorize the establishment of markets, and it is competent to such corporations, under proper grants of power, to enact ordinances prohibiting sales and purchases of marketable articles, except at designated market places. * * * In England, the regulation of markets by by-laws, has long been exercised, and such by-laws are sustained as being reasonable and conducive to the health and good government of the municipality. In this country, the practice is almost universal on the part of the Legislature to confer upon the municipal agencies more or less authority with respect to markets and market places, and such grants are not so strictly construed as those which invest the corporation with a power of a more extraordinary or unusual character; at least such is the case unless a monopoly in favor of private individuals is sought to be sustained, against which the courts strongly lean.” Dillon on Municipal Corporations (4th Ed.), Vol. 1, § 1380.

“There can be no doubt,” said this court, “that the city, under the legislative permission, can forbid the opening of markets at designated places, and such forbidding is an exercise of its power to regulate markets.” State vs. Gisch, 31 Ann. 544.

4. It is claimed that the ordinance in question unjustly discriminates in favor of certain persons who have obtained contracts to establish markets within thirty-two hundred feet of the public markets. It appears from the( record that the city saw proper to arrange for the establishment of markets in a few localities where they were, presumably, needed, by making contracts whereby certain individuals agreed to build such markets and to convey the same, with such ground as they were to be built upon, to the city; and thereafter to maintain such markets, subject to all the regulations applicable to public markets, on condition that in lieu of a sum of money to be paid byt the city, in cash, such persons should be allowed to recover the price, or value, of the property by collecting the revenues of the markets, as fixed and regulated by the city, during- a certain number of years. In other words, they are lessees who give the property in consideration of their leases instead of paying a fixed amount per annum or a proportion of the revenue. The validity of a contract such as that described has been affirmed by this court in the following terms, to-wit: “A municipal corporation has the power to contract with an individual to authorize him to build a market-house, rent stalls and collect dues during a specified period, with the consideration that the land, which is his property, and the improvements upon it, shall be conveyed to the city, and that the same, at the expiration of the term, shall be turned over, absolutely, in good order, to the corporation. The land and constructions become municipal property at the signing of the contract, and the ownership becomes absolute at the expiration of the time, in the city. The market thus put up is a public market and any private market-found within the prohibited distance of six squares from it is there kept in violation of law.”

State vs. Natal, 41 Ann. 807; State vs. Gisch, 31 Ann. 544; State vs. Sarradat et als., 46 Ann. 700; State vs. Kientz, 52 Ann. 950.

Judge Dillon refers to the case of LeClaire vs. Davenport, 13 Iowa, 210, in which, overruling Davenport vs. Kelly, 7 Iowa, 102, it was held that a corporation, invested by its charter with power “to erect market-houses, to establish markets and market places, and to provide for the government and regulation thereof,” was authorized to pass an ordinance delegating to individuals the right to erect market-houses and. to charge rent for the stalls, without reserving to itself the control of the same, and lie dissents from that doctrine. Dillon on Municipal Corporations (4th Ed.), Vol. 1, § 385. But neither he, nor any writer, nor any adjudged case, so far as we are informed, questions the authority of a corporation, having the power to regulate markets, to farm them out, provided the control of the rates charged and of the markets is reserved to the corporation. The counsel for the defendant, in arguing that the provisions of the City Charter of 1870, authorizing the city “to establish markets and to farm out the revenues thereof, have been repealed by the charters of 1882 and 1896, and in referring to the latter acts as governing the validity of the ordinances, which are in evidence, authorizing the building of markets by individuals, have apparently lost sight of the existence of Act 116 of 1888, which they, nevertheless, invoke in behalf of their client, and which does not appear to be in conflict with, and hence does not appear to have been repealed by, either of the acts last above mentioned. State vs. Natal, 39 Ann. 439. The right of the City of New Orleans to farm out the markets has, however, always beeni recognized as resulting from provisions more general than those contained in, the Acts of 1882 and 1896, and, in the ease of State vs. Natal, 41 Ann. 887, it was held to have been included among the powers conferred by the charter of 1856 as “necessary for the proper administration of a municipal government.”

5. It is said that it is the purpose of the ordinance which is here complained of to force the defendant into one of the markets last above referred to, or into a market operated by the city, in order to create a monopoly in favor of the grantee of such market, or to increase the revenue of such grantee, or of the city.

The answer to this is, that the establishment of public markets and the prohibition of private markets are within the legislative discre-. tion, and the exercise of such discretion can not be inquired into by the courts, unless the law-maker has exceeded his power, or fraud is imputed, or there is a manifest invasion of private right. That neither the State, in the adoption of Act No. 34 of 1900, nor the city, in the adoption of Ordinance No. 312 N. C. S., have exceeded their powers, respectively, is perhaps sufficiently evident from what has already been said and from the authorities cited. More than fifty years ago, Chief Justice Eustis, as the organ of this court, said: “The right to establish markets is a branch of the sovereign power, and the right of regulating them is necessarily a power of municipal police.” Citing Blackstone’s Comm., Vol. 1, p. 274; Domat Droit Public Lib. 1, Sec. 3. First Municipality vs. Cutting, 4 Ann. 336.

And, as far back, almost, as our jurisprudence goes, there are reported cases between the City of New Orleans and the farmers of the markets or of the duties imposed upon vendors of provisions. Griffon vs. New Orleans, 5 N. S. 279; Mayor et als. vs. Peyroux, 6 N. S. 155.

“But,” asks the learned counsel for the defendant, “why is it within the legislative discretion to deal with persons engaged in the lawful business of private market keeping otherwise than with those engaged in any other lawful business, and do we not reach the limit of legislative power before reaching the point at which such business is suppressed?” The answer to this, we think, is also to be found in the authorities cited. There are certain trades and occupations which, for various reasons, by consensus of, opinion among all civilized peoples, fall within what is called the “police power,” and the reason for their doing so is so deep-seated as to have become a matter of law as well as of fact. Quoting again from an author who has already been referred to, he says, speaking of police regulations: “The instances of this kind of regulation are very numerous. Slaughter-houses have been confined to certain localities; the sale of fresh meat and vegetables has been prohibited, except in the public markets, where the article exposed for sale may be conveniently inspected. In the same way may the manufacture of pressed hay, the maintenance of dairies, the cultivation of land within the limits of a town, and the storage of cotton and of other combustible material, such as oil and gun powder, be prohibited in the densely settled parts of the city, and the prosecution of such trades be confined to less dangerous localities. In the same way, etc., etc.”

State and Federal Control, etc., Vol. 2, p. 740.

It follows from this that the question, whether it is advisable, from a sanitary point of view, to restrict the sale of fresh meat and vegetables in New Orleans to markets which are controlled by the government and which are subject to police inspection, is not one which, for the purposes of a case pending in court, can be affected by the opinion of this individual or that one, since, as a matter of law and of settled jurisprudence, it is a question, the determination of which, from the foundation of the State, and under the dominion of seven Constitutions; has uniformly been held to belong to the legislative department of the government. If it were shown, as is claimed by the defendant, that the purpose and effect of the ordinance under which he is prosecuted is to establish a monopoly, the courts, by the terms of the act authorizing said ordinance, and, under the Constitution, might come to his relief. But the fact that all dealers in the commodities specified in the ordinance may be obliged to transact their business in the public markets is not the establishment of a monopoly within the meaning either of the act in question or of the Constitution, since the markets are open to them all, upon the same terms, and the charges are regulated by law. It might with equal propriety be said that the State or city enjoys a monopoly in exercising any other governmental function, as in the administration of the wharves, or of the system of quarantine, and the claim would be well founded in a limited sense, but not; as we apprehend, in the sense in which the term is used in the argument which we are now considering. IIow far this court would feel authorized to interfere upon a claim supported by evidence that the revenues derived from the markets are larger than are necessary for their maintenance is a matter which need not be considered, as we find no such evidence in the record.

Judgment affirmed.


author: Nicholls, C. J.

text:
    No. 13,833.
    State of Louisiana ex rel William N. Grunewald vs. the Judges of the Court of Appeals for the Parish of Orleans.
    Syllabus.
    The Civil District Court having dismissed plaintiff’s suit for want of jurisdiction rations materias by reason of the amount of the matter in dispute not being shown to exceed one hundred dollars, he appealed to the court of appeals. The latter court dismissed this appeal for the reason that the suit was not for the ownership but for the possession of real estate, there being no evidence before it of the value of the “right of possession.”
    Under such circumstances the Supreme Court will not, under its supervisory jurisdiction, mdndamus the court of appeals to take jurisdiction of the appeal.

      ^ PPLIGATION for writ of mandamus.

      Rufus E. Foster for Eelator.

      L. Be Poorier for Eespondents.
   The opiuion of the court was delivered by

Nicholls, C. J.

Statement of the Case.

Nicholls, C. J. Relator filed a petition in the Civil District Court for the Parish of Orleans, in which he alleged that he was the owner of a certain jot cf ground in the Parish of Orleans, which he described, which was well worth the sum of three hundred and fifty dollars; that one George S. M. Gilbert, also a resident of this city, had entered upon the said lot without any right or warrant of law, and had erected thereon a building, and was at present occupying same to petitioner’s great detriment; that he had repeatedly notified George S. M. Gilbert to vacate said lot, and to remove therefrom the building erected thereon by him, but that he failed and refused to do so.

That he had had offers for said lot, but had been prevented from selling it by the trespass and occupancy of Gilbert, and had been damaged thereby in the sum of fifty dollars, and which sum he was entitled to recover; that the use of said lot was well worth the sum of five dollars per month and he was entitled to recover that amount from the ninth day of June until the said lot should be vacated.

In view of the premises he prayed for citation on said Gilbert, and that judgment be rendered against him, condemning and ordering him to at once vacate and remove from the property of the petitioner the buildings erected thereon by him, and to pay to petitioner fifty dollars as damages for the trespass on petitioner’s property, and five dollars per month for the use of said lot from June ninth, 1899, to date, making thirty dollars, both together being eighty dollars, with legal interest from judicial demand, and for all costs and general relief.

The defendant excepted that the District Court was Without jurisdiction rations materias» The exception was sustained and the suit dismissed.

The plaintiff appealed the ease to the Court of Appeals. The defendant excepted to the jurisdiction of that court rations materiae. The exception was sustained and the appeal dismissed. Thereupon relator applied to this court for a writ of mandamus, directed to the judges of the Court of Appeals, commanding them to take jurisdiction of said appeal. The judges of the court having been ordered to show cause why the writ of mandamus should not issue as prayed for, answered that:

1st. Because under Art. 98 of the Constitution of 1898, respondents have no appellate jurisdiction of a demand for possession of property when the value of said possession is below one hundred dollars.

2nd. Because under the allegations of relator’s pleadings the ownership of the property of which he demands possession is in no manner involved, and the value of the property can not be made the test of the appellate jurisdiction of respondents’ court.

They further referred the court to the reasons assigned by the Court of Appeals for* dismissing the appeal found in the copy of its judgment, which relator had annexed to his application for the writ of mandamus. In this judgment the court declared that its appellate jurisdiction, where the matter in dispute is less than one hundred dollars, is solely in eases arising in the City Court (Arts. 98 and 143, Constitution of 1898.)

Article 133 of the Constitution of 1898 declares that “The Civil District Court (for the Parish of Orleans) shall have exclusive and general probate jurisdiction in all cases where the amount in dispute or'the fund to be distributed shall exceed one hundred dollars, exclusive of interest; and exclusive jurisdiction in suits by married women for separation of property, in suits for separation from bed and board, for divorce, for nullity of marriage, or for interdiction, and in suits involving titles to immovable property, or to office or to other public position, or civil or political rights.; and in all other cases, except as hereinafter provided, where no specific amount is in contest, and of all procedings for the appointment of receivers or liquidators to corporations or partnerships And said court shall have authority to issue all such writs, process and orders as may be necessary or proper for the purposes of the jurisdiction herein conferred upon it.”

Article 143 of the Constitution of 1898 declares that “There shall be a First City Court in New Orlans * * * Said court shall have exclusive original jurisdiction * * * in all cases where the amount in dispute of the fund to be distributed does not exceed one hundred dollars, exclusive of interest, including Suits for ownership or possession of movable property not exceeding that amount in value; and suits of landlords for possession of leased premises, when the monthly or yearly rent, or the rent for the unexpired term of the lease does not exceed that amount, subject to an appeal in all cases to the Court of Appeals for the Parish of Orleans”

Article 98 of the Constitution of 1898 declares that “The Courts of Appeal, except as otherwise provided in this Constitution, shall have appellate jurisdiction only, which jurisdiction shall extend to all eases, civil or probate, when the matter in dispute or the funds to be distributed shall exceed one hundred dollars, exclusive of interest, and shall not exceed two thousand dollars, exclusive of interest. ,By Article 104 of the Constitution the Courts of Appeal have authority to issue writs of mandamus, prohibition and certiorari in aid of their appellate jurisdiction.

Opinion.

Relator sought relief from the action of the Civil District Court, dismissing his suit for want of jurisdiction rationae materiae by 'an appeal to the Court of Appeals for the Parish of Orleans. Unless the latter court had appellate jurisdiction over the action in the Civil District Court, it was powerless to grant relief either by appeal or by mandamus. The Court of Appeals declined to pass upon the ruling of the District Court as to its own jurisdiction; and held that relator’s suit was a demand for the possession of property, and that it had no appellate jurisdiction of such a demand, when the value of said possession is below one hundred dollars; that its appellate jurisdiction, where the matter in dispute is less than one hundred dollars, is solely in cases arising the City Courts.

Tiie object of relator’s suit is to obtain the removal from certain real evaie, which he alleges belongs to himself and to be worth three hundred and fifty dollars, of one Gilbert, who he avers had entered upon the lot without any right or warrant of law, and had erected thereon a building, and was occupying the same to his great benefits In addition to seeking to have the removal of Gilbert from the premises, relator asked judgment against him for fifty dollars by way of damages, and five dollars per month for the use of said lot from June 9th, 1899. to the date of the filing of his suit — that is a judgment of eighty dollars, with legal interest from judicial demand.

The district judge having refused to entertain jurisdiction, for the reason that the matter in dispute was less than one hundred dollars, and, therefore, less than the amount needed to give his court original jurisdiction, we looked at once to see whether it was an action such as would fall under the original jurisdiction of the First City Court. Relator’s suit is not one for the ownership or possession of movable property not exceeding one hundred dollars, nor is it, under the allegations of relator’s petition, a suit by a landlord for the possession of leased premises, for no lease of any kind is referred to. Eeference being made in the article of the Constitution, defining the jurisdiction of the City Court, only to suits for the ownership or possession of movable property and only to suits for the possession of real estate in the special ease of leased premises, we think that suits touching the ownership or possession of real estate, other than suits of the

If this be true, the Court of Appeals could not have appellate jurisdiction of that court.

If this be true, the Court of Appeals could not have appellate jurisdiction over relator’s action, as one to be taken to it by appeal from the City Court. If the City Court has no original jurisdiction over the relator’s action, he would be without any court of jurisdiction whatever, to which to have recourse, unless the Civil District Court were open to him. Viewing relator’s demand solely from the standpoint of the monied demand which he makes against Gilbert, the Civil District Court would have no jurisdiction, but the City Court would; but viewing the money demand in connection with and incidental to a demand for judgment condemning Gilbert to remove from the real estate, the City Court would have no jurisdiction of the suit in its entirety, for it has no power to enter a decree for the possession of immovable property, and unless the Civil District Court have jurisdiction, relator would be left remediless, as we have said.

In defining the jurisdiction of the Civil District Court Article 133 declares that it shall have jurisdiction “in all other cases (than those specified) where no specific amount is in contest.” We think that under that clause of the article relator’s demand for a judgment of ouster against Gilbert, coupled with his monied demand, might give the Civil District Court original jurisdiction; that the specific amount in money in contest might not exclude consideration of the other feature of the case for the purpose of fixing- jurisdiction. Eeaching this conclusion absolutely would not determine, however, the particular issue presented to us on this application, for, granting that the Civil District Court has original jurisdiction of the case, it would not necessarily follow that the Court of Appeals has appellate jurisdiction over it.

In their reasons for declining .to pass upon the question of its own jurisdiction, decided by the Civil District Court, that court says:

“The petition clearly intimates platintiii’s estimate of the value of the possession to he restricted to the amount claimed as damages, and as damages for the use of a specified time of six months. Our appellate jurisdiction, where the matter in dispute is less than one hundred dollars, is solely in cases arising in the City Oourt. Though the property 'is alleged to be worth $350, the issue tendered us is not one of own■ership, but of possession. The title could only be considered incident'ally as fixing the character of the possession (48 Annual, 417), and the value of the right of possession must be the test of jurisdiction (50 Annual, 162.)

This court has on several occasions recognized- the difference between the value of the right of possession “and the right of ownership” as affecting jurisdiction, and declared that the value of the property, whose possession was in controversy, was not the test of the value of the right of possession. (See 52 Annual, 704, Macedonia Baptist Church vs. Dickerson, and authorities cited). Relator placed his case on appeal before the Oourt of Appeals (so far as the record shows) without affidavit or evidence of any kind showing the value of the “right of possession” to be for an -amount greater than the monied demand claimed in his petition.

Therefore, there was nothing to disclose to that court that “the matter in dispute” was over one hundred dollars, and such evidence lacking, it dismissed the -appeal. Relator applied for a rehearing, but still did not (so far as the record shows) supplement the averments of his petition by any affidavit or showing of additional value. We can not say that under such circumstances the Oourt of Appeals erred in dismissing the appeal. We understand from the record that the appeal was not dismissed on motion in limine, but after an examination of the pleadings and the evidence before it. We should not, as matters stand, direct a mandamus to issue to the Oourt of Appeals. If wrong there be, up to the present time, it is wrong on the part of the Civil District Oourt in refusing to entertain orignial jurisdiction. This court itself, up to the present, is unable to say whether, in point of fact, the Court of Appeals had appellate jurisdiction. On the face of the papers in that court, the Civil District Oourt, we are inclined to think, had original jurisdiction. In view of the possibility of the Court of Appeals being able to sustain its action relator applied contingently to this court to issue a mandamus to the judge of the Civil District Court, Division “B,” commanding him to take jurisdicton of the cause.

Action on that application was, of course, postponed until the situation of the cause with reference to the OouriJ of Appeals should first be disposed of. Being of the opinion that relator’s application for a mandamus to the Court of Appeals is not well grounded, that branch of the application as presently based, is refused. It is ordered that the judge of the Civil District Court, Division “B,” do show cause within ten days from the service of this order upon him, why a writ of mandamus should not issue to him as prayed for in relator’s petition.


author: Breaux, J.

text:
    No. 13,776.
    George P. Lowry et als. vs. West Monroe Lumber Company, Limited.
    Syllabus.
    In an action to set aside a sale made at public auction, on the ground of simulation, it is attempted to have it decreed that a new corporation was a mere locum tenens of an old corporation indebted to plaintiffs and which superseded the old corporation only for (plaintiffs aver) the purpose of buying the property of the latter in order to escape the payment of its debt.
    The simulation charged is not sustained against the corporation, which was the seizing creditor in the first suit. The mortgage of this creditor primed all others. The transactions between the seizing creditor and the new corporation have no appearance of being simulated and are not subject to the action en declaration de si/multation.

    APPEAL from the Sixth Judicial District, Parish of Ouachita— Hall, J.

      Andrew Augustus Gunby for Plaintiff, Appellant.

      Hudson, Potts & Bernsiein for Defendants, Appellees.
   The opinion of the court was delivered by

Breaux, J.

The plaintiffs, George P. Lowry and the Goldman and Massur Company, Limited, who are judgment creditors of the Ouachita Excelsior Saw and Planing Mills, Limited, bring this suit against the defendant to have a sheriff’s sale of the property of the Ouachita Excelsior Saw and Planing Mills, made on the 21st day .of May, 1898, declared void as a pure simulation. In the same, action, plaintiffs sue to have it decreed that the West Monroe Lumber Company, Limited, is a simulation.

In the alternative, plaintiffs ask that it be decreed that their claim for the sum of three hundred and sixty-three dollars, with interest, as claimed, is due by the last named company. This cause was before us in a prior suit. .The judge of the district court had rejected the demand of the plaintiff. From this judgment, plaintiff appealed, and, on appeal, this court affirmed the judgment of the district court. Fay and Egan Co. at al. vs. Monroe National Bank, 51 Ann. 613. On rehearing, we amended our decree only as relates to the amount prayed for by the plaintiff in the alternative.

In the cited case, we reviewed the evidence now before us on the second appeal. The only new testimony is that of Judge Gunby, who testified regarding the value of the property of the Ouachita Excelsior Saw and Planing Mills that was sold at public auction by the sheriff on the day before mentioned, and the testimony of a judgment creditor cf the company.

The value of the property, testified to by the first witness has, of itself, little bearing on the question involved. Nor do we think that the other facts testified to by him are sufficient, of themselves, to justify us in granting the relief asked.- If plaintiff’s theory of the case were followed, then it would be of importance, but as we do not think that theory is-sustained, for reasons hereafter given, we pass to the testimony of the other witness who testified on the second trial.

The witness, Haynes, is a stockholder in the West Monroe Lumber Company, Limited. He says that he sold a judgment he held against the Excelsior Saw and Planing Mills to L. D. McLain, before the sale involved in this suit, for stock in the West Monroe Lumber Company, Limited. By this witness plaintiff sought to prove that none of the stockholders in the West Monroe Lumber Company, Limited, had paid anything for the stock. The witness answered that he did not know.

The judgment of the district court' rejected plaintiff’s demand, and, as relates to the alternative demand, stated before, reserved to plaintiffs the right to sue the proper parties. ■ From that judgment plaintiffs prosecute this appeal.

In our view, the sheriff’s sale of the property of the Ouachita Excelsior Saw and Planing Mills, made on the date before stated, was not a simulated sale. It is abundantly made evident by the testimony that the amount claimed by the Ouachita National Bank was due to that bank. The mortgage it held was a valid mortgage due by the said company. This bank sued out a writ of seizure and sale and had the property sold in accordance with its rights as a mortgage creditor. This mortgagee had the same right of foreclosure as any other mortgage creditor could have had. True, the president of the bank was a director of the Ouachita Excelsior Saw and Planing Mills, but they were separate entities, owned by separate interests and were entirely distinct corporations. The lumber company, beyond all question, owed the amount of the mortgage. It follows from this that all the proceedings were regular up to the time that the property was adjudicated to the West Monroe Lumber Company, Limited.

Plaintiffs charge that the Ouachita National Bank permitted the West Monroe Lumber Company, Limited, after this sale, to become its debtor for the price, that is, that instead of requiring cash, it accepted a mortgage for the price. We believe that such is a fact, that it is sustained by the testimony. It is reasonable to infer that an agreement was made to that end between the Ouachita National Bank and the West Monroe Lumber Company, Limited, prior to the sale. It does not follow, however, because of such an agreement, that the transaction is a simulation. If, in the course of these dealings between the hank and these lumber companies, it happened that some one gained an advantage, it does not afford a right to have the sale decreed a simulation, for the contract, it is evident, had some reality.

Plaintiffs, in their petition, aver, in substance, that the West Monroe Lumber Company, Limited, is only the alter ego of the Ouachita Excelsior Saw and Planing Mills. In any event, it does not appear that a knowledge of that fact, if it be a fact, was traced to the Ouachita National Bank. As between the two corporations, we do not think that the charge made was sufficiently sustained in these proceedings to enable us to treat the West Monroe Lumber Company, Limited, as a mere dummy, not entitled to legal existence. The evidence is conflicting, but its preponderance is not of such a character as to justify us in presuming it a mere simulation. The stockholders of the West Monroe Lumber Company are not the same as the stockholders of the Ouachita Excelsior Saw and Planing Mills. The management has changed and the trend of its organization and business is not that of a mere simulated concern. We therefore do not think we could feel justified in pronouncing a decree which would put an end to its existence as a corporation.

With reference to the alternative demand, about three hundred and sixty-three dollars, plaintiffs’ brief is silent. We have examined the testimony on the subject, and have not succeeded in arriving at the conclusion that judgment should now be granted for the amount claimed.

Eor reasons assigned, it is ordered, adjudged, and decreed that the judgment appealed from is affirmed.

Rehearing refused.