author: CLAIBORNE, J.

text:
    No. 10,885
    Orleans
    RUTLEY v. HONOR & CO.
    (October 3, 1927. Opinion and Decree.)
    (October 31, 1927. Rehearing Refused.)

      {Syllabus by the Court)

    1. Louisiana Digest — Master and Servant— . Par. 154, 160 j:
    Every plaintiff suing his employer under the Employers’ Liability Act, No. 20 of 1914, as amended, must prove, as a condition precedent to recovery, that the injury he complains of was caused by an accident and not by other causes.
    (The recent Amendment of Act 20 of 1914 is Act 85 of 1926. — Editor’s note.)
    Appeal from Civil District Court. Hon. Wm. H. Byrnes, Jr., Judge.
    Action by Peter Rutley against J. B. Hon- or & Co.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    Feitel & Feitel, N. H. P.olmer, of New Orleans, attorneys for plaintiffs, appellee.
    ■ Lemle, Moreno & Lemle, of New Orleans, attorneys for defendant, appellant.
   CLAIBORNE, J.

This is a suit by a longshoreman under the Employers’ Liability Act.

The plaintiff alleged that he was employed by the defendants to work upon a wharf handling creosote cross ties; that his duties consisted in binding together a number of cross ties and placing a chain around them to load them upon a ship; that his occupation was hazardous; that on June 29th, 1926, while he was assembling and stacking cross ties the chain which bound the ties together broke and caused a piece of creosoted timber to strike him upon the head, spilling creosote upon his body, and into his left eye; that his eye was burnt, causing him to lose the complete sight of said eye; that as a consequence he has been unable to do work of any character; that prior to the accident he was earning $45 a week; that on July 13th, 1926, the Employer’s Casualty Co., on behalf of the defendants, tendered him $15 for the week ending July 13th, 1926, which he refused, believing that he was entitled to more; that he is entitled to .65 per cent of $45 for a period of 100 weeks; that he was so weakened for a period of nine weeks following the accident that he was unable to do any work and that he is entitled to an additional compensation of 65 per cent on $45 per week for nine weeks; that he has been under the constant care of eye specialists since the accident, and •will need spectacles for which he is entitled to am additional $250.

For answer, the defendants admitted that they had employed the plaintiff for handling cross ties, as alleged by him; and that the Employers’ Casualty Co. had tendered plaintiff $15, as alleged, which was as much as he was- entitled to. They denied all the other allegations, which may be summar; ized as follows:

1st. That' plaintiff’s occupation was hazardous. . ..

2nd. The accident and its consequences.

3rd. That plaintiff was unable to do any work of any kind.

4th. That he had been earning $45 per week prior to the accident.

5th. That he is entitled to an additional $45 for nine weeks.

6th. That they owe medical services more than they have already furnished.

There was judgment in favor of plaintiff for $20 a week for sixteen weeks and three days, commencing June 29th, 1926, and for $150 for medical services.

The defendants have appealed, and plaintiff joined in the appeal.

Taking up the defenses seriatim:

I. Section 2 of Act 20 of 1914 classes among the hazardous occupations:

“The operation of vessels * * * loading the cargoes of vessels.”

If not defendants, at least defendants’ insurers, conceded that the employment was hazardous by tendering $15 compensation.

Summers vs. Woodward Wight & Co., 142 La. 241, 76 South. 674.

Johnson vs. Vernon Parish Lbr. Co., 151 La. 663, 92 South. 219.

II. The accident is established.

The plaintiff thus describes it:

“Q. What happened to you?
“A. The cross tie fell from the load and knocked a piece of creosote and it knocked me on the forehead.
“Q. Peter, did anything else happen to you?
“A. Creosote got in my eye and face and all over my arm.
“Q. What did the creosote do to your eye?
“A. Burned, my eyes, and put out my left éye and skinned all the skin around the left eye and face1.
“Q. What wag the condition of your eye on the day it got burnt, that you got creosote in it?
“A. It was in bad condition; I couldn’t hardly see anything when I left the wharf; looked like I had, the blind staggers; couldn’t see.
“Q. What color was it?
“A. When I looked in the glass at Dr. Philips’ my eye was red and looked like it was burnt out with creosote.
“Q. And it peeled the skin out, on the outside of the eye?
“A. Yes, sir; on the left side * * * it peeled a place off my cheek; here on the right side.
“Q. Are you sure of that?
“A. Yes, sir. It peeled my face in two or three different places.
“Q. When you went to see Dr. Brown, was your eye better or worse than when you went to see Dr. Philips?
“A. It couldn’t be no better, from the time I went to see Dr. Philips to the time I went to Dr. Brown, because it was hurting me the same.
“Q. What time of day did you get hurt?
“A. About 10 o’clock.
“Q. What time of day did you see Dr. Philips ?
“A. Something after 12.
“Q. You saw him some time after 12 and saw Dr. Brown about 25 minutes after that?
“A. Yes, sir.
“Q. You say these cross ties had just come out of the creosote mill?
“A. Yes, sir; they had just hauled them on the wharf.
“Q. They were wet and drippy?
“A. Yes, sir. When the sun shines on them they get soft, you know, really soft.
“Q. What was the condition of your arms?
“A. My arms peeled. I showed Dr. Brown. Peeled from here to the wrist.” (He never suffered from his eye before.)

The cut on the forehead was cured in about two weeks; but for that he could have gone back to work after two weeks.

E. C. Matthews, in the accident insurance business, insured plaintiff; saw him at his house a few days after the accident: his eye was burnt, also his hand, and his forehead; one eye was very red and inflamed, does not know which eye. He paid plaintiff $7 a week on the certificate of Dr. E. M. Brown for burns by creosote; he had a bandage on his forehead and on his eye.

W. E. Smith is a train porter, also an accident insurance agent; he insured, plaintiff and paid him on Dr. Brown’s certificate; he saw plaintiff the evening of the accident; he had a plaster on his forehead and his eyes were running water, red, and burnt, and all his arms were burnt; the skin peeled off; he has brand new skin there and also on his face; both of plaintiff’s eyes were red and running water for a week or more.

Sidney Peyton runs a grocery near plaintiff’s home; saw plaintiff’s eyes the day after the accident; they were red and dark all around the face; the next two or three days after the arms began to peel; plaintiff came around his club practically all the time when he didn’t do anything; both eyes were very red; and dark around there; plaintiff always paid his bills.

Eugene Scott, laborer on levee, lives one block from plaintiff; saw him the night of the accident; his eyes were red, both eyes; his face and arm were burnt; he was crying, water was running from his eyes; he earns an average of $25 a week.

Dr. H. N. Blum, for plaintiff, testified that plaintiff’s left eye is near-sighted; his condition is one which suggests corneal dystrophy; such types are found in old ¡people and in people whose eyes are blind by other diseases; there are lots of people with only one eye who don’t know it.

“Q. You don’t know whether there was a burn as a matter of fact?
“A. I don’t know anything about it.”

Dr. Park Howell, for plaintiff, testified:

He saw the plaintiff only one month after his accident; he noted a superficial opacity of the cornea of his left eye; he also noted that eye was myopic; he was able to see about 20-100; ¡he is not blind; creosote in that eye would affect it as it would any other eye; if he had not been informed that the eye had been injured by creosote he would not have been able to determine that it was due to a burn; there was absolutely no symptoms present by which he could say that the condition of the eye was brought about by a burn; a burn by creosote would cause the eye to be red, swollen, tearing, and the eye more or less tightly closed and spasmodic; the cause of dystrophy is not known; it might be caused by a burn; he saw plaintiff about 20 days after the. accident.

“Q, Are you prepared to swear that this condition of Peter Rutley’s eye w;as due to an accident, and could not have been due to natural causes?
“A. Absolutely not.
“Q. You do know there were traces of burns in Peter’s eyes; whether causd by creosote, you don’t know?
“A. No, I couldn’t say that, that it was burned; nobody could say positively. They might have an opinion. But there were opacities which might have been caused by burns.”

On behalf of the defendant, the following witnesses were examined:

Dr. M. Earle Brown testified:

According to his office record, ¡plaintiff, ■aged 31, entered his office on June 29th, 1926; he had a gauze one inch long and % inch wide struck over his forehead with a piece of adhesive plaster to cover a skin wound; plaintiff told the details of the accident and said that the blood ran down his face and he placed both hands to his eyes, creosote entering them in this manner; both eyes were quiet; there was no evidence of inflammation; vision in the right eye was normal; in the left eye the patient was able to count his fingers three feet from his left eye; the left eye showed an opacity resembling dystrophy; the eye was highly myopic; the diagnosis was zonular opacity of the left cornea (dystrophy) compound myopic astigmatism; this condition was due to a disease of the eye and not to an accident; there were none of the symptoms of an eye burnt by creosote.

“Q. Are you willing to swear that that man received no injury and got no creosote in his eye on that day?
“Á. I am willing to swear that X do not believe that he got creosote in his eye on that day, none at all.”

He “did not find any evidence of injury and that eye didn’t look like it was injured”; he didn’t think the eye had any creosote in it; he does not believe that the present condition of plaintiff’s eye could be produced by creosote entering his eye; at the time he saw the plaintiff there was no evidence of any burns from creosote on his face either the skin around his eyes or elsewhere around the face.

A. R. Evans, bookkeeper for defendants, testified that longshoremen earn an average of $15 or $20 a week.

Dr. Z. T. Young, witness for defendant, testified that he had been employed by plaintiff’s attorneys to examine plaintiff’s eyes; that he examined them and gave the attorneys a written report; he saw the plaintiff on July 26th and 27th; he said: “My diagnosis in this case, or rather in my opinion, the diagnosis was corneal dystrophy; specifically speaking, zonular opacity of the cornea in a near-sighted eye with choro-retinial atrophy chronic”; it did not look to him like a recent condition; he knows of no instance where a burn caused myopia; his opinion is that the condition of plaintiff’s eye existed before any creosote got into it.

Dr. W. R. Buffington, for defendant, visiting eye surgeon of the senses hospital, professor of eye diseases at Tulane University, holds clinics at Charity Hospital for Tulane students three times a week; sees 60 to 100 cases each time; examined plaintiff on July 15th and 16th at request of Dr. Brown; plaintiff gave him his history of the case; witness found no evidences of inflammation of the left eye; found plaintiff to have a highly myopic or near-sighted eye, astigmatism eye; this condition had existed long before the accident; an eye showing so much opacity resulting from an injury to the cornea where all inflammation symptoms shall have passed away at the end of two weeks is inconceivable; in the process of repair those symptoms could not possibly disappear in two weeks; it will take ten days or two weeks for the peeling off of the corneal epithelium or covering of the eye to peel off or separate from the healthy tissue; it cannot get stationary in two weeks, a man may have a. bad eye without knowing it, and accidentally discover it; it would have been “a physical, or probably better a physiological, impossibility, if plaintiff’s eye had been burnt with creosote, for the condition of his eye when he saw it to have existed, for the inflammatory symptoms to have disappeared, and for the conditions to have assumed a status that we call old, that is stationary; there was a burn, we will say, of the cornea; the burn destroyed tissue; now it would take, that is just physiologically, a number of days for that burnt tissue to separate from the healthy tissue; now after that is done, peeled out, the reparative process has to go on; and in as extensive an injury as this is the reparative process .would take many weeks to restore it to a stationary status”; the insurance company paid him for this consultation.

Dr. J. R. Hume, for defendant, testified that he had his office in the same suite as Dr. Brown; Dr. Brown requested him and Dr. Grandberry to look at plaintiff to see the eye, to see if we could determine if there was any inflammation present. There was not.

It was admitted that if Dr. Carl Grand-berry was present he would corroborate Dr. Hume as to the condition of plaintiff’s eye.

Dr. M. Earle Brown on the first visit of plaintiff to him had given him four certificates of eye burn with creosote with which plaintiff obtained reliefs from his insurance companies. Dr. Brown explains that those certificates were given on the faith of statements made to him by plaintiff and as a result of tentative diagnosis of the case prior to his own investigation, as is the custom in the profession.

After the trial of the case the court appointed Dr. J. Brown Le Rose, expert, to examine the plaintiff and the record, and to make a report of the result of his investigation. In that report the doctor says in part:

“The optic disc seemed excavated as in glaucoma, with a myopic crescent or conus to the temporal side * * * . To revert to the corneal pathology and avoiding details, the changes there found were typical of those of a zonular distrophy. * * *
“This patient presents a case of high myopic astigmatism and also a glaucoma, as previously stated. Whether or not a small amount of creosote entered the eye, I am not at this date able to determine. There are no evidences of such- a burn at this time, but only those of a definite clinical entity known as Zonular Keratitis or Dystrophy * * * . In my opinion, it would be highly improbable that a burn of the cornea should simulate in its remaining opacity such a definite change as evidenced by a Zonular Dystrophy found in a diseased eye, as is markedly present in the case of Peter Rutley.”

Dr. Wm. D. Philips remembers nothing of the plaintiff or of his case, but he has his'office record, which is as follows:

“Injured June 29th, 1926. Struck on head .by piece of wood while unloading truck on wharf; contusion and laceration of forehead. Serum given. Referred to Dr. Brown. Two weeks (July 13th). Discharged July 13th, 1926. To return to work July 14th, 1926.”

We have thus reproduced a part of the testimony which satisfies us that not only plaintiff has not made it reasonably certain that the infirmity of his eye is due to the accident or to creosote in his eye, but, in the language of the trial judge in his reasons for judgment, “that the vast preponderance of evidence in this case negatives the fact that the condition of plaintiff’s eye is a result of the accident”. There is no necessity of discussing the testimony; it speaks for itself.

Maynard vs. Red River Oil Co., 162 La. 1, 110 South. 68.
Orange National Bank vs. Southern Pac., 162 La. 223, 110 South. 329.
Toca vs. Rojas, 152 La. 317, 93 South. 108.

But what has been made certain is that plaintiff was struck on the forehead while performing services incidental to, and in the course of, his employment, and suffered injuries which incapacitated him from work, as he says himself, for the period of two weeks, and that he consulted physicians- as a consequence of those injuries. The testimony of the plaintiff is that he earned an average of $45 per week; that of the defendant is that the average earnings of plaintiffs’ class is $25 a week.

We will adopt the mean between the two and under Section 8 of Act 43 of 1922 grant the plaintiff sixty per cent of $35 during two weeks or $42' compensation. After the healing of the wound in the forehead there was nothing to prevent the plaintiff from going back to work. He states so himself. Neither his eye, nor his vision was affected by any creosote if any got to his eye.

. His eye fifteen, days after the accident was as good, or as bad, as it had been before the accident. There was nothing then in the condition of his eye which did not exist before the accident and there is nothing to show that he could not have returned tq work fifteen days after as he had worked before. If he did not work, being able to do so, he had only himself to blame; and if he worked he certainly cannot claim compensation.

But we are of the opinion, with the trial judge, that plaintiff is entitled to compensation for doctor’s fees for ascertaining that the creosote was not the cause of the infirmity of his eye.

It is, therefore, ordered that the judgment herein be amended by reducing the amount allowed the plaintiff from twenty dollars per week for a period of sixteen weeks and three days to twenty-one dollars per week for a period of two weeks commencing June 29th, 1926, and as thus amended that the judgment be affirmed, the defendants to pay the costs in both courts.

Judgment amended and affirmed.


source: Caselaw Access Project

author: •CLAIBORNE, J.

license: Public Domain

text:
    No. 9925
    Orleans
    WILSON v. LYON LUMBER CO.
    (June 20, 1927. Opinion and Decree.)
    (October 3, 1927. Rehearing Refused.)

      (Syllabus by the Court)

    1.Louisiana Digest — Master and Servant —Par. 160 g; Minors — Par. 10.
    No prescription runs against the minor claiming under the Employers’ Liability Act No. 20 of 1914 as amended, so long as such minor is unprovided with a tutor.
    2. Louisiana Digest — Pleading—Par. 63; Master and Servant — Par. 160 i.
    A plea of prescription will not be noticed unless it is specially and specifically made.
    3. Louisiana Digest — Minors—Par. 177; Master and Servant — Par. 160 e.
    None but the tutor can act judicially for the minor.
    4. Louisiana Digest — Emancipation—Par. 3.
    A decree of emancipation cannot be attacked collaterally.
    5. Louisiana Digest — Master and Servant —Par. 160 j.
    When the plaintiff, “a well-developed and nourished negro male,” falls upon his hip from an elevation of fifteen feet upon an iron truck and then suffers from arthritis of the hip, the conclusion is that the. cause of the arthritis is the fall, in the absence of any other cause.
    (The recent amendment of Act 20 of 1914 is Act 85 of 1926. — Editor’s note.)
    Appeal from Twenty-eighth Judicial District Court for the Parish of St. John the Baptist. Hon. Prentice E. Edrington, Judge.
    Action by Eddie Wilson against Lyon Lumber Co.
    There was judgment for plaintiff and defendant appealed.
    Judgment amended.
    J. V. Chenet, of New Orleans, attorney for plaintiff, appellee.
    Leslie P. Beard, of New Orleans, attorney for defendant, appellant.
   •CLAIBORNE, J.

This is a suit for compensation under the Employers’ Liability Act.

The plaintiff alleged that he was a minor fully emancipated by judgment dated June 12, 1922. This suit was filed December 23, 1922.

The injury was suffered September 20, 1920. The defendant pleaded the prescription of one and two years. The petition for emancipation alleged that plaintiff was a natural child not provided with a tutor. A special tutor appointed to him consented to his emancipation.

The plea of prescription is based, upon Section 31 of Act 20 of 1914, p. 60. It reads:

“That in case of personal injury (including death resulting therefrom) all claims for payments shall be forever barred unless within one year after the injury or death the parties shall have agreed upon the payment to be made under this Act, or unless within one year after the injury proceedings have been begun as provided in Sections 17 and 18 of this Act. Where, however, such .payments have been made in any case, said limitations shall not take effect until the expiration of one year from the time (of) making the last payment.”

But Section XVI of Act 20 of 1914, p. 56, provides:

“No limitation of time, in this act provided for, shall run, so long as such incompetent or minor has no curator or tutor as the case may be.”

This clause has been re-enacted in the amending Act 38 of 1918, p. 58.

We conclude, therefore, that prescription was suspended during the minority of the plaintiff and until he was emancipated.

Defendants’ attorney in his argument and in his brief relies upon the prescription of fifteen days and six months established by Section 11 of the Act of 1914, as amended by Act 243 of 1916, p. 517. But this prescription was not pleaded and defendant cannot avail itself of it. The particular prescription relied on must be specially pleaded, or it will not be considered.

“Although the note may on its face be prescribed by five years if the plea of four years be set up it will not be maintained.” Allot vs. Aubert, 20 La. Ann. 510; Mansfield vs. Doherty, 21 La. Ann. 395; Areeneaux vs. Benoit, 21 La. Ann. 676; Gaines vs. Succession of Del Campo, 30 La. Ann. 246; 6 La. Dig. 33, S. 63, p. 205; S. 218, 207, 219.

It is also argued that plaintiff, having been informally adopted' by Lottie Wilson, wife of Anderson King, since his infancy, they had the legal right to act for him in court and otherwise so as to interrupt prescription. The reverse has been decided in Mayes vs. Smith, 11 Rob. 503, wherein it was said:

“A judgment would not be res judicata as to the minor, unless represented by a duly qualified tutor., Nor would the defect be cured by suing in his name assisted by his father.’'

The defendants further alleged “that the decree of emancipation of the plaintiff was irregular and not according to law because in the emancipation proceedings appeared the consent of one Lottie King who represented herself as the ‘adoptive’ mother of plaintiff and on the trial of the cause the said person who appeared in said emancipation proceedings for the purpose of giving her consent and complying with the requisites of the Revised Civil Code, denied relationship in any degree with plaintiff”.

The answer to that objection is that the judgment of emancipation makes full proof until set aside by appeal or action of nullity. 1 H. D. 583, No. 4, 1462; Hoover vs. Sellers, 5 La. Ann. 182; Thibodaux vs. Thibodaux, 5 La. Ann. 598; Duson vs. Dupree, 32 La. Ann. 896; Beauregard vs. Lampton, 32 La. Ann. 827.

A judgment emancipating a minor cannot be attacked collaterally. Johnson vs. Alden, 15 La. Ann. 505.

The plaintiff alleged that the defendant owed him the amount allowed by the Employers’ Liability Law on account of a physical injury sustained by him as a workman for said company; that the defendant is engaged in the sawmill business, being a hazardous occupation; that on September 20, 1920, plaintiff was employed by said company and while working he was standing on an overhead joist disentangling boards on a chain carrier installed over two adjoining joists about four feet apart, when his foot slipped and he fell down from an elevation of fifteen feet upon his left hip upon the iron bar of an iron truck about one foot high on a plank floor beneath; that he suffered a severe injury of his left hip joint which physicians at the Charity Hospital have diagnosed as a traumatic arthritis of the left hip; that immediately after his fall and under directions of Mr. Prescott, defendant’s foreman, plaintiff was taken for medical attention to the local office of defendant’s physicians, who prescribed some liniment to rub his hip; that plaintiff remained in bed for a week when he was advised by defendant’s physician not to lie down but to go back to work; that plaintiff tried to work for a short time but had to quit; that he remained under the treatment of said doctor for over a year when he was advised that he had rheumatism; that he consulted Dr. Donaldson, who advised him that he was suffering from an injury of the hip; that he next consulted Dr. James Pearce under whose advice he went to the Charity Hospital in New Orleans on March 26, 1922; that the physicians there diagnosed his case as “traumatic arthritis of the hip”, that is an injury resulting from some violence; that his leg was put in a splint of plaster of Paris which he is wearing to this day; that “he has been and is still unable to work and that his said injury has produced a temporary total disability to do work of a reasonable character”; that his contract of hiring with the defendant was under the operation of Act No. 20 of 1914, as amended, commonly known as the Employers’ Liability Law; that at the time of his injury plaintiff was earning $3 a day or $18 a week of six days; that under Section 8, Paragraph 1 (a), of Act 247 of 1920, amending the Act of 1914, the defendant owes plaintiff sixty per cent of said wages from September 20, 1920, during the period of his disability not exceeding 300 weeks; that the defendant also owes him $74.92 amount of fees paid to Doctors Donaldson and Pearce, and drugs and transportation to Charity Hospital.

For answer the defendant admitted that it was a corporation engaged in the sawmill business; but denied all the other allegations of the petition, even plaintiff’s falling as alleged.

In a supplemental petition the plaintiff alleged that since the filing of his petition he is advised that his injury has produced a shortening of his hip and total permanent disability to do work of any reasonable character and that he is entitled to compensation for 400 weeks instead of 300.

Defendant excepted to the filing of this supplemental petition on the ground that it was filed too late after issue joined and after testimony of a witness for plaintiff had already been taken.

The plea of prescription was overruled, and there was judgment in favor of plaintiff for sixty per cent of his weekly wages or $10.80 per week for 400 weeks, subject to a credit of $367.36 and for $74.92 for medical services and drugs.

The defendant has appealed.

The facts of ■ this case as stated by' plaintiff and his witnesses are as follows:

The plaintiff, Eddie Wilson, was the son of Daniel Riely and Adeline Dorsey; was born in Lutcher, Louisiana, in 1903 or 1904; his mother died when he was three months of age and he was adopted informally by his stepmother, Lottie Wilson, now wife of Anderson King, and went to live with her in Garyville, Parish of St. John the Baptist; he began to work for the defendant company when he was about fifteen years old laying strips in the stackers; September 20, 1920, he was working on a chain carrier that carries lumber to the stackers on an upper floor about ■fifteen' feet from the ground floor; the upper floor was an open scaffold with joists about four feet apart with a chain running on it; he slipped through the joists and fell to the ground floor, his left hip striking an iron truck about twelve inches high; that was about fifteen minutes after five in the evening; two of the workmen, Sam Thompson and Sam Lawes, came to his assistance, lifted him .up, supported him on their arms, and carried him to the office of Dr. Murphy, regular physician for the defendant, the Lyons Lumber Co.,, with Dr. Parker; the doctors put sticking plaster upon him; the two workmen then brought him home and put him to bed; he remained in bed about a week; he then returned to the doctor’s and complained that his hip was hurting him; the doctor gave him a bottle of liniment to rub his hip; the next day he returned to the doctor’s, who passed a “shocking” machine over his hip; he walked around with a stick for about two weeks; and lay in bed for about three weeks when he called on the doctor again; the doctor told him he. had rheumatism in his hip, and to go back to work, and not to walk with a stick, for if he remained quiet-'his hip “would draw up”; he tried to work and made one week and his hip did not feel better; he went back to Dr. Murphy who passed the “shocking” machine over his hip again; the doctor told him again that he had rheumatism and that his blood was “dirty” and he needed some “shots”, and three “shots” would cost $30; he had no money and he tried to go back to work but he was not able; he made one or two days a week; he bought a bottle of the famous prescription and took ten bottles at $1.04 a bottle, but he felt no better; one morning as he was going to work Mr. Prescott caught up with him; Mr. Prescott is foreman for the defendant; he said to. plaintiff that he , would arrange to send him to the Baton Rouge Hospital; Mr. Prescott opened an account for him at the drug store and “sent a straw boss” for him to get his medicine there; that was in November, 1921; about November or December, 1921, he got so weak he could not work any more; so he sent his stepmother to Mr. Prescott to see about sending him to the hospital; he told her to see Mr. Weicks, the company’s treasurer; Mr. Weicks said he would send the company’s doctor to see him and that if the doctor said his sickness was caused by the fall that they would send him to the hospital; they sent to him Dr. Parker, who examined him and said he had “tubercular rheumatism in the hip”; he remained under the treatment of the company’s doctors for about a year, and when he felt' no better and got down to bed, he sent for Dr. Donaldson, who treated him three months; Dr. Donaldson did him no good, so he called in Dr. Pierce, colored, from Lutcher, who made one visit'; Dr. Pierce told him his medicine would not “reach his misery”, his hip was hurt and to- go to the Charity Hospital in New Orleans; he went there on„March 26, 1922-; they took an X-ray picture of'his hip, and on April 15 they put a plaster of Paris all around his waist; he stayed in the hospital in bed up to May 26; after that he went home with the plaster on and stayed six weeks; he returned to the hospital, where they took off the plaster and put another one on; he returned home, and after another six weeks he went back to the hospital, where they took off the plaster and put "on a third one shorter and looser; they took the last plaster off on December 13; his leg did not then hurt him any more; but he could not use it any longer as it was stiff.

Dr. Theodore O’Ferrell and Dr. Simon put the plaster on; he saw the former two months ago; he told plaintiff to come back; that his hip was getting along .all right, .but that he would never be able to use it any more as before; plaintiff was always strong and healthy before his fall; his wages up to that date were three dollars a day and six days a week; at present he has no pains in the hip, but he cannot stand a long time; when he went back to work at the mill after his fall he worked one or two days a week; his hip hurt him so 'much he could not work; since his fall he has not been able to do any work of a reasonable character because his hip is stiff, and he cannot stoop down to the left foot and he cannot stand on his leg too long because it gives way; he lives in New Orleans since September, 1923, with his brother; he never had any venereal disease; since December 15, 1923, he has found work cleaning up a drug 'store at $8 a week; when he worked for the defendant after the accident he got $1.50 a day.

The plaintiff identified a certificate dated June 1, 1922, signed by Dr. Parker, physician for the defendant company, addressed to the Unity Industrial Life Insurance .Association,', reading partially as follows:

“Name of member: Ed Wilson.
“10 Nature of injury or accident: Prob. dislocation of hip.
“11 Date injury was received: Sept. 20, 1920.
“12 How was it sustained? Fell from scaffold.
“13 What external evidence is there of of injury? Loss of function.
“14 Is disability now total or partial? Total.
“15 In your opinion how long should disability continue from this date? New weeks.
Signed: “MURPHY AND PARKER.”

Sam Thompson, one of the two workmen who picked up the plaintiff, corroborates the plaintiff up to the time he helped to carry the plaintiff to Dr. Murphy’s office.

Sam Lawes, the other workman, corroborates the plaintiff up ter the same time.

Anderson King, husband of Lottie Wilson, corroborates plaintiff as to his birth, his age, his informal adoption by Lottie Wilson, his fall, his visit to the doctors, their advice to plaintiff to work, the plaintiff’s visit to Dr. Donaldson, whose opinion was that plaintiff was not suffering from tubercular rheumatism; he took the plaintiff to the Charity Hospital; the opinion of the doctors there that plaintiff’s hip was injured by a fall; that it was not tubercular rheumatism; the putting of plaintiff in plaster three times; that he was in bed at the Charity Hospital; the doctors at the hospital were O’Ferrell and Simon.

Lottie Wilson, wife of Anderson King, corroborates plaintiff and her husband; the injury to plaintiff, his sickness, suffering; his consultations with Drs. Murphy and Parker and Donaldson and Pierce and their advice; the plaster upon his hip and leg.

Dr. H. Theodore Simon is a licensed physician,- a graduate of- Tularie Medical School, visiting orthopedic surgeon of the New Orleans Dispensary and chief orthopedist of the Presbyterian Hospital in cooperation with Dr. J. T. O’Ferrell; orthopedy is a specialty of diseases of the bones and joints; he treated the plaintiff at the Charity Hospital from the latter part of March, 1922, up to the prese'nt time, January 20, 1923; Eddie Wilson complained of pains and stiffness in the left leg; he said that while he was working in a sawmill he had fallen; he diagnosed the case from what Wilson told him and by the aid of physical examination; Dr. O’Ferrell did also; they were of the opinion that there was an inflammation or arthritis of the left hip; an X-ray of the hip was made which showed evidence of an area of absorption of the head of the femur and the corresponding acetabulum; from these points a diagnosis of traumatic arthritis of the left hip was made; traumatic arthritis means an inflammation of a joint due to trauma or injury; the injury must necessarily be of a fairly sufficient violent means to produce inflammation of the joint; a Wasserman blood test was made which was negative; in other words, there was no evidence of syphilis; then the hip was put in a solid plaster of Paris preventing any motion; at the end of six or eight weeks the plaster was removed and another similar cast was put on; three changes of cast' were made; two or three weeks ago the plaintiff returned; the plaster was removed; there was no pain in the hip; but there was no motion in the joint; he applied an X-ray and found the areas of destruction still existing and evidence of ankylosis or boney union in the joint; he did not then have the free use of his leg and hip as he did prior to the injury; there was pain when the plaster was removed; ankylosis means an absolute loss of motion in the joint, and is permanent; in other words, he knows that the plaintiff will never have motion in this joint; assuming that it is true that the plaintiff fell, as he states, from an elevation of fifteen feet upon an iron truck upon the floor, he concludes that his illness was caused by the fall; if prior to the fall the plaintiff had been healthy and no other cause was assigned for his condition, it would be an absolute certainty that his trouble was flue to the fall in the absence of any other cause being assigned; what he said was clear to him, owing to the destruction of the cartilaginous surface the head of the femur is no longer free to move in its socket; the symptoms existing in the plaintiff would become apparent a few hours after the trauma or after several months depending upon the amount of inflammation or destruction, and would continue until proper treatment was administered; the condition would not be aggravated by the fact that the injured person had suffered from a venereal' disease, the symptoms would be different and the X-ray findings would be different; he is aware that plaintiff had been afflicted with gonorrhea; it is of no importance in this case; a person suffering from traumatic arthritis could not do hard work if the symptoms had developed to such an extent as to cause severe pain; after the Wasserman test it was found that the blood was all right and free from syphilis.

Dr. John F. O’Ferrell has been practicing sixteen years, is a graduate of Tulane University and is chief of the Orthopedic Surgical Service of the Charity Hospital; in that capacity he examined the plaintiff; he had a traumatic arthritis of the left hip, which means an inflammation of the joint produced by a blow; supposing that the plaintiff fell from an elevation of fifteen feet upon an iron truck below, he would say that that was the cause of the condition of his hip; he had no reason to doubt plaintiff’s statement; he found no other cause for the diseased condition of plaintiff’s hip; Dr. H. T. Simon was his assistant; they made a Wasserman test and it was negative; the report of the Charity Hospital dated May 22, 1922, signed by Dr. Wm. W. Leake, Superintendent, contains a correct record of his examination of plaintiff made jointly with one of the assistants of his staff; he found no syphilitic trouble that could have been the cause of the disease of plaintiff’s joint; luetic or syphilitic means the same thing, infection; that Wasserman test determined that there was no luetic or syphilitic infection; plaintiff was under his treatment from March, 1922, to May, 1922; during that time he saw plaintiff a number of times and some one in his service saw him every day or two; he applied the plaster himself and his assistant, Dr. Simon, applied a couple of plaster casts; the plaintiff had no rheumatism; all reputable surgeons avoid the term “rheumatism” because that has no real meaning as applied to disease; nowadays they try to be more specific nd speak of arthritis, because it refers definitely to an inflammation of the joint; he examined the plaintiff about thirty days ago; his present condition is a permanent injury; he is not able to do any work of a reasonable character as a laborer because he has this limitation of the motion of his hip; there is no such thing as gonorrheal arthritis; the clinical manifestations are entirely different from the type of arthritis seen in plaintiff.

The Charity Hospital report spoken of by Dr. O’Ferrell is partly as follows:

“Name Eddie Wilson.
“Admitted: 3-26-22.
“Discharged: 5-22-22.
“Diagnosis: Arthritis left hip. Traumatic. Physician: O’Ferrell. Complaint: Sore hip. Negative for syphilis. Gonorrhea about one and one-half years ago; one year ago last September had a fall on his left hip and ever since then he has had trouble with hip; it aches all the time, a dull aching pain; pain worse in cloudy and bad weather; cannot bear any weight on his leg; well-developed and nourished negro male; head and neck negative, heart regular, no enlargement and no murmur; lungs negative; abdomen negative; left hip appears to be some swollen; pain on pressure over acetabulum; pain on fixing the hip; joint is movable, but cannot bear any weight on it. X-ray report: Skiagraph shows slight irregularity of inferior border of acetabulum and head, probably due to traumatic arthritis; no destruction; Wasserman test, negative. Report of consultant: This case appears to be an arthritis of the left hip, iprobably luetic; fixation of plaster is indicated recommended for Wassermann of blood; case transferred to orthopedic service.
“Signed: WM. W. LEAKE, M.D.,
“Superintendent.”

Carroll G. Delery testified that he kept a store in Garyville; that since he heard plaintiff had a fall he saw him “limping, pulling on one leg”, sometimes he walked with a stick, at other times without; plaintiff lives a few acres from the store.

Lottie King said that the plaintiff was not able to do any hard work at all; he cannot even put on his clothes; his hip is stiff; in order to sit down he has to bend his knee back, he cannot stoop at all; she dressed him and put on his shoes this morning; she had to dress him ever since he came out of the hospital with the plaster cast.

The plaintiff swore that his hip was stiff; that he could not stoop to tie his shoes; that he could not stand on his hip long; that he was working at a drug store sweeping and dusting and could not do work as a laborer as before; he works from 8 to 6 P. M.; he walks to his work in the morning and walks back home, fourteen blocks each way.

Anderson King said that someone had to put plaintiff’s pants on in the morning and thread his shoes on the left side; his left leg is stiff; he cannot do work of ordinary character; he cannot chop wood.

On behalf of the defendant two witnesses only were examined:

H. C. Cotham testified that for the last fifteen years he had been employed by the defendant company; for the last five years in the office; in that capacity he knew the plaintiff; the plaintiff earned $3.20 a day at the time of his fall and $1.50 after that time; from the time of his fall, September 20, 1920, until he left the employment of defendant in December, 1921, the mill worked 2773% hours, of which the plaintiff worked 2300 hours, for which he was paid at the rate of 15 cents an hour, or about $429.42.

' J. P. Prescott was superintendent of assorting and drying for the defendants; he Knew the plaintiff who worked for the defendants a couple of years previous to 1920; the time given to the plaintiff by the witness Cotham is correct; after his fall he saw the plaintiff engaged in pulling lumber on a few occasions; he complained of a stiffness in the leg; there was nothing that distinguished him from other laborers while he was working; he was capable of doing the work he was hired to do; he worked under him about fourteen months; compared with the average employee the employee the plaintiff made the same time.

There was judgment in favor of plaintiff for 60% of $3 per day, or $10.80 per week, from September 20, 1920, not exceeding 400 weeks, with interest on oeach weekly installment, subject to a credit of $367.36 and for $74.92 for medical expenses.

The defendant has appealed.

The evidence exonerates the plaintiff and his witnesses and “aides or instigators” from the charge of fraud, perjury and malingering so lavishly addressed to them by the defendant’s counsel in his brief. While there may be contradiction and discrepancies in the testimony of some of plaintiff’s witnesses we are justified in attributing them to the ignorance of country negroes and to errors on ■ their part rather than to intentional falsehoods. While the plaintiff has exaggerated the extent of his injuries, as is usually done in all cases of this kind, we believe that the fall suffered by him was the cause of all his trouble, that it produced in him a partial disability to do the work he was employed in at the time of his fall and a disability to do laborer’s work. If he worked while in the employ of the defendants, it was because he had been advised so to do by the two physicians of the defendants in order to avoid permanent stiffness of the hip joint. These two physicians, Drs. Murphy and Parker, were not examined as witnesses upon the trial of this case. The presumption is their testimony would not have been favorable to the defendants. When the plaintiff’s sufferings became so acute that he could not follow the treatment recommended by the doctors of the defendants, Murphy and Parker, he left them and consulted disinterested or better informed physicians, Drs. Donaldson and Pierce, and under their advice he proceeded to the Charity Hospital in the city of New Orleans.

Drs. Murphy and Parker admitted that the plaintiff was injured in his hip. But they told him he had rheumatism, syphilitic rheumatism or tubercular rheumatism. Drs. Simon and O’Ferrell deny that the plaintiff had rheumatism of any kind; having submitted the plaintiff to the Wasserman test, they found no trace of venereal or tubercular infection. Further than this they both testified that the plaintiff was suffering from traumatic arthritis of the hip, produced by a blow; and they gave as their opinion that arthritis of the hip produced by venereal diseases had entirely different symptoms. They also gave as their opinion, which is sound in law as well as in medical science, that assuming that the plaintiff suffered a fall, the arthritis could be attributed to that fall alone, in the absence of any other probable cause. See the case of Rousseau vs. T. & P. Ry., 4 La. App. 691, and numerous cases there quoted.

Neither Dr. Murphy nor Dr. Parker was called to testify that plaintiff had not been affected by his fall.

When under the advice of Drs. Donaldson and Pierce, plaintiff repaired to the city of New Orleans; at the Charity Hospital he was advised at once that he was suffering from traumatic arthritis and treated accordingly. The only treatment to relieve his suffering was plaster casts; these were applied with the results intended. But the consequences, foreseen or not, brought on stiffness of the hip and leg, with all its infirmities; in other words, permanent partial disability; in consequence of which the plaintiff could no longer do the work he was engaged in prior to his fall, or any laborer’s work.

Plaintiff is therefore entitled to the benefits of the Employers’ Liability Acts. Act 247 of 1920, p. 467, governs this case. Section 8, Subsection (c), reads as follows;

“The injury producing partial disability to do work of any reasonable character, sixty per cent of difference between wages at the time of the injury and wages which the injured employee is able to earn thereafter during the period of disability, not, however, beyond three hundred weeks.”

At the time of the injury the plaintiff was earning $3.20 a day, or $19.10 a week; after the injury he continued to work at the mill, however irregularly, and received pay at the rate of $1.50 a day or $9 a week; the difference between the two is $10.20, 60% of which is $6.12.

He then went to New Orleans and on December 15, 1923, obtained work at a drugstore at $8.00 per week; the difference between the two is $11.20; 60% of which is $6.72.

It is therefore ordered that the judgment appealed from be amended by reading as follows:

It is now ordered that there be judgment condemning the defendants, the Lyon Lumber Company, to pay to the plaintiff, Eddie Wilson, the following amounts:

1st. The sum of six and 12-100 dollars per week from September 20, 1920, until December 15, 1923, with five per cent per annum interest on each weekly payment;

2nd. The further sum of six and 72-100 dollars per week from December 15, 1923, with five per cent per annum interest on each weekly payment during the period of disability not exceeding three hundred weeks;

3rd. The further sum of seventy-four and 92-100 dollars with five per cent per annum interest from December 1 1921, till paid;

The whole, subject to be credited by four hundred and twenty-nine and 42-100 dollars as of date of December 31, 1921, by shortening the period of payments.

The defendants to pay costs of the District Court and the plaintiff the costs of appeal.

Judgment amended.


text:
    No. 9896
    Orleans
    STATE OF LOUISIANA, Appellant, v. PEOPLE’S INDUSTRIAL LIFE INSURANCE CO. OF LA.
    (October 17, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Courts—Par. 164.
    When, through mistake, an appeal is returned to this court instead of to the Supreme Court, this court will transfer the appeal to the Supreme Court by virtue of Act 19 of 1912.

      (Syllabus by the Editor)

    2. Louisiana Digest — Appeal—Par. 20.
    The Court of Appeal will notice its want of jurisdiction without pleading.
    Appeal from Civil District Court. Hon. Porter Parker, Judge.
    Action by State of Louisiana, appellant, against People’s Industrial Life Insurance Co. of Louisiana.
    There was judgment for defendant and plaintiff appealed.
    Case transferred to Supreme Court.
    E. M. Heath, of New Orleans, attorney for plaintiff, appellant.
    H. W. Robinson, of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

This is a proceeding by rule for a license of three thousand five hundred fifty-seven and- 92-100 dollars, for the years 1921 and 1922, with two per cent per month interest on $1687.92 from March 1, 1921, and two per cent per month on $1870 from March 1, 1922, till paid, and ten per cent attorney’s fees on both principal and interest.

The defendant excepted that it could not be proceeded against by rule and that it was entitled to petition and citation.

The exception was maintained, and the suit dismissed by judgment rendered November 17, 1924.

Prom this judgment the plaintiff appealed to this court.

In this court the counsel for defendant calls our attention to the want of jurisdiction of this court.

This court will notice its want of jurisdiction without pleading 1 La. Dig. 243, 244.

By Section 29 of Article VII of the Constitution of 1921 p. 46, this court is given jurisdiction of all cases of which the Supreme Court is not given jurisdiction. By Section 10 of the same Article VII, p. 39, the Supreme Court has appellate jurisdiction in civil suits when the amount in dispute shall exceed two thousand dollars exclusive of interest.

It is therefore evident that this court is without jurisdiction and the appellant so admits it; and under Section 1 of Act 19 of 1912, p. 25, he prays this court to transfer this appeal to the Supreme Court. He is entitled to that relief.

It is therefore ordered that this cause be transferred to the Supreme Court, provided that appellant shall file in said court within fifteen days from this date a transcript of this cause prepared in accordance with the rules prescribed by said court for transcripts of appeal from the district courts to said court, together with a copy of this order; otherwise that the appeal herein be dismissed.

Case transferred to Supreme Court.


text:
    No. 9912
    Orleans
    BRUGIER v. RITCHIE
    (October 17, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Brokers—Par. 17, 18.
    A broker who is employed to buy certain property is entitled to a commission when he has obtained the consent of the owner to sell and the sale takes place; and even if the sale does not take place owing to the fault of the prospective purchaser, he owes the com- . mission when by the agreement of sale he had bound himself to pay the broker a commission if. he failed to comply with the agreement.
    Appeal from Civil District Court, Hon. H. C. Cage, Judge.
    Action by Josephine E. Brugier against Hugh Ritchie.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    B. M. Miller, of New Orleans, attorney for plaintiff, appellee.
    Daniel Wendling, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

This is a suit for real estate broker’s commission. It is brought on the following agreement:

“Mrs. O; R. Brugier,
New Orleans, August 1st,. 1923.
I hereby offer Twenty thousand dollars for the property No. 1513 St. Charles Avenue. * * * Terms and conditions: Cash. * * * I agree to pay you a commission of Three per cent should I fail to comply with this agreement, if accepted. * * *
(Signed) Hugh Ritchie.”
“N. O., August 2nd, 1923.
We accept the above offer, agreeing to pay you a commission of three per cent.
(Signed) Charlotte Claren (and others).”

The plaintiff alleged that the defendant Ritchie was indebted to her in the sufn of $600 for the following reasons: That she is a duly qualified real estate broker; that prior to August 1, 1923, Charlotte Claren and others were the owners of the property No. 1513 St. Charles Avenue, and, in writing, had placed said property in her hands for sale for the price of $20,000; that on August 1st the defendant signed the above agreement which was also signed by the owners of the property; that the title to said property was examined and approved by notaries selected by defendant; that the owners of the property had an act of sale prepared and notified defendant to appear and sign said act, which he failed to do, and also failed to pay plaintiff her commission.

She prayed for judgment against the defendant for $600.

The defendant alleged that the above agreement did not embody all the terms of her agreement with plaintiff; that as the sole inducement to him, plaintiff told him that he could apply to any homestead and borrow as much as it would, lend him on the property and that she, the plaintiff, would procure for him a second mortgage whereby the agreement would be carried out; that if she was unable so to do defendant would pay her no commission; that defendant was able to borrow only $16,000; that after calling on plaintiff to procure the second mortgage, she was unable to do so, in consequence of which the sale fell through; that except for the above agreement defendant would not have made the offer to buy; that the plaintiff was guilty of fraud in making the above representations; that she assured defendant that she could obtain a second mortgage.

There was judgment in favor of- plaintiff and defendant appealed.

. Upon the trial of the case, counsel for defendant put him this question:

“Mr. Ritchie, did not Mrs. Brugier, before the signing of this agreement, have a verbal agreement with you, that if you would buy the real estate referred to in her petition, that if you were able to buy for $1.6,000 she would obtain the difference from the homestead?”

Plaintiff objected to the question upon the ground that it was' an attempt to alter, vary and add to a written contract. The court maintained the objection. It is unnecessary to pass upon this objection, as later the plaintiff, without objection, testified that the defendant “Mr. Ritchie had never asked her to take a second mortgage in his life,” and that the question of a second mortgage never came up, and that it was not true that she told the defendant that it would be a “boost” for her to put up her sign upon a St. Charles Avenue property. This testimony was not contradicted by the defendant, although he testified in the case. The sole question, therefore remains, did the contract sued on entitle the plaintiff to a commission under the contract and the circumstances of the case?

We have not been favored with a brief in behalf of plaintiff and appellee. But the jurisprudence consecrates the following principle: A broker who is employed to buy certain property is entitled, to a commission when he has obtained the consent of the owner to sell and the sale takes place; and even if the sale does not take place owing to the fault of the prospective purchaser, he owes the commission when by the agreement of sale he had bound himself to pay the broker a commission if he failed to comply with the agreement.

No. 7848, Orl. App.

McWilliams vs. Stackhouse, 1 La. App. 253.

Palmisano vs. Stewart, 3 La. App. 66.

Dauterine vs. West India Transportation Corp., 3 La. App. 319.

Prince vs. Mrs. St. Auvin, 5 La. App. 567.

Stoer vs. Pearson, 5 La. App. 609.

The defendant refused to pass the sale and gave no reasons for his refusal. Under the law and the text of his agreement he owes the plaintiff a commission. 'The trial judge so decided and his judgment is affirmed.


author: JONES, J.

text:
    No. 9891
    Orleans
    LAFAUCIA v. WAGNER
    (September 17, 1927. Opinion and Decree.)
    (November 14, 1927. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Surveyors and Surveys — Bar. 27. ,
    A judgment non-suiting plaintiff as to costs of a survey, ordered by the Court in a suit to establish boundary, will be affirmed where the evidence shows plaintiff had refused to try to settle the matter out of court.
    Appeal from Division “E” of the Civil District Court. Hon. Wm. H. Byrnes, Judge.
    Action by Anthony Lafaucia against Gustave Wagner.
    There was judgment for defendant, and plaintiff appealed.
    Judgment affirmed.
    J. B. Rosser, Jr., and Prank R. Lucia, of New Orleans, attorneys for plaintiff, appellant.

      Wm. A. Shaw, of New Orleans, attorney for defendant, appellee.
   JONES, J.

This is a suit to fix the boundary line between two adjoining lots in this city.

In his petition plaintiff, after averring an endeavor to adjust the dispute out of court, embodies a prayer for injunction to prevent defendant from destroying the then existing fence, along with a prayer for the appointment of a surveyor by the court to fix the boundary line at defendant’s cost.

Defendant, after pleading the general issue and specially denying that plaintiff ever tried to settle the matter amicably, prayed that suit be dismissed at plaintiff’s cost.

There was judgment for plaintiff perpetuating the injunction, fixing the boundary line according to the survey of the court’s expert for about half of the disputed line and ordering defendant to pay the costs of the suit, but plaintiff was non-suited as to his claim for costs of survey and also as to his claim for the determination of the other half of the boundary line in dispute.

From this judgment plaintiff alone has appealed and defendant has not answered the appeal.

In his oral argument and brief plaintiff admits his satisfaction with the judgment as to the boundary, but disputes the validity of the judgment insofar as his claim for surveyor’s costs was non-suited.

Plaintiff’s liability for costs of survey is, therefore, the sole question before us.

The evidence shows that plaintiff received a registered letter from defendant’s attorney, asking for an amicable adjustment of the dispute, but that plaintiff did not answer it and filed suit instead.

It has been repeatedly held by this court and the Supreme Court that the defendant in a boundary suit owes the entire cost of the survey where he has refused to adjust the matter out of court, when amicable demand was made beforehand by plaintiff.

See

Capo vs. Blanchard, 1 La. App. 3.

Andrews vs. Knox, 10 La. Ann. 604.

Lawes vs. Watson, 12 La. 216.

Gaude vs. Williams, 47 La. Ann. 1326, 17 South. 844.

It has also been held that the costs must be divided where there is no proof of amicable demand on one side and refusal to pay on the other.

Gaubert vs. Gaubert, 1 La. App. 719.

Tircuit vs. Pelanne, 14 La. Ann. 215.

Attorney for plaintiff refers us to the case of Williams vs. Close, 14 La. Ann. 737. In that case the facts were different, because the survey was made in a. cause then pending over the opposition of the defendant, whereas the defendant in this case far from opposing a survey, actually had one made at his expense and vainly tried to get plaintiff to settle the matter entra judicially.

As plaintiff has entirely failed to prove any demand for amicable settlement prior to suit and as defendant has shown that plaintiff refused to answer his letter seeking such a solution of the difficulty, we must affirm the opinion of the trial judge.

For above reasons the judgment is affirmed, costs of this appeal to be paid by appellant.


text:
    No. 9651
    Orleans
    CLESI v. COONEY
    (February 28, 1927. Opinion and Decree.)
    (March 28, 1927. Rehearing Refused.)
    (May 23, 1927. Writ of Certiorari and Review Granted by Supreme Court.
    See ,164 La. —, 114 So. 584.)

      (Syllabus by the Court)

    1. Louisiana Digest — Brokers—Par. 18, 19.
    Where a contract confers upon a real estate agent the exclusive right to sell a property during a specified time, the agent is entitled to a commission if, during the time, the owner himself sells the property.
    2. Louisiana Digest — Judgment—Par. 28.
    Under S. 4 of Sec. 1 of the several Pleadings and Practice acts the judge may render summary judgment on rule whenever he shall be of the opinion that the plaintiff is entitled to judgment upon the petition and answer.
    Appeal from the Civil District Court, Division “D”. Hon. Porter Parker, Judge.
    Action by N. J. Clesi against P. A. Cooney.
    There was judgment for plaintiff and de. fendant appealed.
    .Judgment affirmed.
    W. J. Guste, attorney for plaintiff and appellee.
    Dart & Dart, attorneys for defendant and appellant.
   OPINION

CLAIBORNE, J.

Plaintiff obtained judgment against the defendant upon his answer.

The defendant appealed.

Paragraph “fourth” of Section 1 of Act 157 of 1912, p. 225, and of Act 300 of 1914, p. 611, and of Act 27 of 1926 reads as follows :

“At any time after the answer is filed the plaintiff may by rule submit to the court the question of his right to a judgment upon the petition and answer. For. the purpose of the trial of such rule all material allegations of fact contained in the petition and not.denied in the answer, and all allegations of fact contained in the answer shall be deemed and taken as true. * * * If upon the consideration of the petition and answer as above provided the court shall be of the opinion that the plaintiff is entitled to a judgment, it shall proceed to render and sign such judgment in the same manner and form and with the same effect as if a trial had been had upon evidence regularly addressed and such judgment shall constitute for all purposes a definite judgment, etc.”

The petition in this case is as follows:

I. “That P. A. Cooney * * * is justly and truly indebted unto your petitioner in the full sum of $1620 for this to-wit:
II. “That on the second day of May, 1923, the said P. A. Cooney entered into a written agreement with your petitioner, N. J. Clesi, whereby the defendant, P.' A. Cooney, did appoint your petitioner, N. J. Clesi, as the sole and exclusive agent for the sale of the property at the corner of St. Charles Avenue and Felicity street in the square bounded by Prytania and Polymnia streets, in consideration of petitioner’s agreement to render the usual services of a real estate agent in procuring a buyer for the said property.
III. “That said agreement and exclusive proposal stated if your petitioner found a buyer or proved instrumental in finding one, or should the above mentioned property be sold by defendant, P. A. Cooney, or any other person during the term of said exclusive authorization to sell, the said P. A. Cooney, would nevertheless pay your petitioner 3% commission on the purchase price for services rendered by petitioner, said commission being earned and payable when the agreement to purchase was signed and that said exclusive authorization to sell and agreement should •remain in force for thirty days, that is, until June 2, 1923, all of which will more fully appear by reference to said agreement which is filed herewith and made part hereof.
IV. “Petitioner now avers that on the basis of this agreement he diligently and earnestly attempted to dispose of this property, advertising same at his expense, soliciting offers and holding conferences with various parties and prospective buyers relative to same.
V. “That he advised defendant on. several occasions of his ability to dispose of this property at the sum of $55,500, but that defendant declared to petitioner that he would not be satisfied with same; that despite the work performed by petitioner, and despite his endeavors and despite his offer to defendant to dispose of the property at the sum of $55,500, the said P. A. Cooney did, on or about the 11th day of May, 1923, before the expiration of the exclusive contract with petitioner, and without the knowledge or consent of petitioner, enter into a contract with one P. A. Ferrara for the sale of said property for the price and sum of $54,000; that the said contract with P. A. Ferrara provided defendant with a purchaser for the property who was ready, willing and able to purchase the property in question at the price of $54,000, and that according to the exclusive contract of defendant with petitioner, in view of defendant's agreement to pay petitioner 3% commission, if defendant, nevertheless, sold said property himself, or if the said property was sold by some person other than your petitioner, the petitioner is, therefore, entitled to be paid by defendant the said commission of 3% or the sum of $1620.”

After the exception of “no cause and no right of action” had been overruled the defendant filed the following answer:

“Now comes P. A. Cooney, made defendant in the foregoing case, and with full reservation of the exceptions heretofore filed and answering herein only because ordered to do so by this court, and without waiving the exceptions, says:
I. “That he admits that he is of age and a resident of New Orleans, but denies all the other allegations contained in paragraph one of said petition.
II. “That he admits entering into the written agreement of May 2, 1923, which is referred to in paragraph two, and denies all other allegations contained in Article two of the petition save such as may be hereafter admitted.
III. “Respondent shows that he is not required to answer the statements made in this paragraph because the same are conclusions of the pleader, and, therefore, he denies all of these conclusions, and denies all other facts which will vary or otherwise alter or change the contract which he is sued on, the original of which he has annexed to this article of the petition, and which respondent admits to be the original agreement.
IV. “For lack of definite information concerning the allegation contained in Article four, respondent denies the same.
V. “Respondent denies all the allegations contained in Article V of said petition, save such as may be hereafter admitted. Further answering this article, respondent shows that, while it is true he did enter into an agreement with P. A. Ferrara under date of May 11, 1923, under which said Ferrara had the right to buy said property at the price and sum of $54,000, on terms of $20,000 cash, balance in one, two and three years, represented by notes bearing interest at the rate of seven per cent per annum; that said contract or agreement with said Ferrara did not in any way interfere with the contract between respondent and said plaintiff; that respondent notified plaintiff of this fact and told plaintiff that he, respondent, was ready to live up to the terms of his contract and to deliver the property to any purchaser that said Clesi might produce, who would pay $60,000 cash, as provided for in said agreement; that instead of producing or attempting to produce any one at $60,000 cash, that said Clesi has never lived up to his contract aforesaid, has never produced any person who would pay $60,000, and has not otherwise tendered performance under said agreement of May 2, 1923, and that this was also true on June 2, 1923, the date on which the contract of employment ceased; that therefore having performed no services within the contemplation of the contract, plaintiff is without right to claim anything from your respondent.”

After this answer plaintiff took a rule upon the defendant to show cause “why judgment should not be rendered in favor of the plaintiff on the face of the pleadings”.

■The rule was made absolute and judgment was rendered against defendant as prayed for.

The defendant has appealed.

It will be noted that the defendant denied. only the following allegations: that he was indebted to the plaintiff; that the plaintiff attempted to dispose of the property, or that he was able to sell it for $55,500.

But the defendant admitted the contract sued on, and admitted that he had entered “into an agreement with P. A. Ferrara under date of May 11, 1923, under which said Ferrara had the right to buy said property at the price and sum of $54,000.

The contract sued on was dated May 2, 1923, and provided that the defendant, Cooney, appointed the plaintiff, Clesi, his sole and exclusive agent for the sale of his property until June 2, 1923, and that should the property be sold by defendant during that time that he “would nevertheless pay plaintiff 3% commission on the purchase price * * * said commission being earned and payable when the agreement to purchase was signed”.

Defendant on May 11, within the time of the . contract, signed an agreement with Ferrara to sell him the property for $54,000.

All the conditions upon which the plain,tiff depended to become entitled to his commission have happened. Defendant sold the property during the life of plaintiff’s contract.

In the case of Clesi vs. D’Angelo, No. 10,586 of this court, decided December 13, 1926, we said:

“Where a contract confers upon a real estate agent the exclusive right to sell the property during a specified time, the agent is entitled to a commission if, during the time, the owner sells the property himself or through an agent.”
“It is a recognized rule that a party wrongfully discharged from his employments may treat the contract as performed and' recover the contract price as the measure of his damages.” See also Viguerie vs. Davus, No. 10,431 O.B.K. 71; 12 Orl. App. 385; Freeman & Freeman vs. Torre Realty & Improvement Co., 157 La. 1097, 103 So. 334.

The contention that plaintiff did not procure a buyer at $60,000 is untenable. Judgment goes against the defendant because the defendant, by selling the property, put it out of the power of plaintiff to procure a buyer at any price.

The plea that defendant’s agreement to sell Ferrera did not in any way interfere with the contract between the plaintiff and the defendant, does not appear to us serious.


text:
    No. 9577
    Orleans
    MULLING v. JONES
    (January 31, 1927. Opinion and Decree.)
    (February 14, 1927. Rehearing Refused.)
    (April 25, 1927. Writ to Supreme Court Granted.)
    (November 28, 1927. Opinion and Decree of Supreme Court on Writ of Certiorari and Review; affirmed.
    See 164 La. —, 114 So. 725.

      (Syllabus by the Court)
    1. Louisiana Digest — Judgment—Par. 238, 240.
    A rule is the proper proceeding to reinstate an inscription which has been erroneously cancelled by the sheriff.

      2. Louisiana Digest — Judgment—Par. 139, 238.
    A judgment setting aside a sheriff’s sale has the effect of reinstating the parties in the same position they occupied before the sale, and of reviving a fieri facias and the inscription thereof in the mortgage office which had been cancelled by the sheriff by virtue of said sale.
    3. Louisiana Digest — Judgment—Par. 232; Mortgages — Par. 37.
    An erroneous cancellation of the inscription of a mortgage does not affect the mortgagee; the inscription remains unimpaired even as against an innocent purchaser with a clear mortgage certificate.
    4. Louisiana Digest — Mortgages—Par. 37, 48.
    A distinction exists between the failure to record a mortgage and an illegal erasure of an actual inscription. But a third party who is aware of the illegal cancellation of an inscription cannot avail himself of such cancellation.
    5. Louisiana Digest — Judgment—Par. 277.
    The prescription of judgments is interrupted by all the other methods of interruption provided by law in addition to the method mentioned in C. C. 3547.
    Appeal from Civil District Court. Hon. Mark M. Boatner, Judge.
    Action by Ed. Mulling against Clara Jones.
    There was judgment for defendant and plaintiff appealed.
    Judgment amended and affirmed.
    P. W. Maloney, Edward Rightor, Geo. Montgomery, and W. O. Hart, of New Orleans, attorneys for defendant in rule, appellee.
    Charles J. Rivet, of New Orleans, attorney for mover in rule, appellant.
   CLAIBORNE, J.

On May 28, 1912, on defendants’ confession of judgment there was judgment in favor of plaintiff against the two defendants in solido, Adele Maloney, wife of Henry M. Hoyle, and Mrs. Agnes Maloney, wife of Prank Leland, for five thousand three hundred and fourteen and 67-100 dollars with legal interest from January 10, 1912, till paid.

On May 29, 1917, plaintiff issued a fieri facias on said judgment.

Under said writ the sheriff on same day seized;

“All the right, title, and interest of Mrs. Adele Maloney, wife of Henry Muller Hoyle, and Mrs. Agnes Maloney, wife of Prank Leland, in and to the following described property to-wit.”

Then follows a description of two properties, one No. 201 and 203 Camp, and the other on Valmont street.

The sheriff then caused the seizure of said property to be duly recorded in the office of the Recorder of Mortgages for the Parish of Orleans on May 29, 1917, in Bk. 1193, p. 512.

The property seized as above described was advertised for sale. On July 19, 1917, further proceedings under the writ were stayed by order of the Supreme- Court, and subsequently on December 13, 1917, by an injunction. The injunction was dissolved on May 7, 1919, by judgment of the Supreme Court, and the sheriff readvertised the property.

On May 26, 1919, he returned the writ and obtained a copy thereof from the clerk.

On July 17, 1917, the two defendants in the above suit, Mrs. Hoyle and Mrs. Leland, filed a petition in this suit in which they alleged that the confession of judgment and the judgment above mentioned were null for reasons therein stated, and they prayed for the nullity of the judgment and the setting aside of the seizure thereunder and for an injunction arresting the sale.

On July 18, 1917, judgment was rendered against Mrs. Hoyle and Mrs. Leland dismissing their suit.

This judgment was reversed by the Supreme Court October 29, 1917 (Mulling vs. Jones et al., 142 La. 300, 76 So. 720), and a mandamus issued commanding the district judge to grant an injunction, which the judge did.

Mulling then answered ,the petition for ' an injunction and prayed for judgment “maintaining the judgment and decree rendered and signed on May 28, 1912, and the writ of execution and seizure”.

On June 4, 1918, judgment was rendered in favor of plaintiff Mulling and against Mrs. Hoyle and Mrs. Leland, dismissing their suit to annul the judgment of May 28, 1912, and condemning them to pay to Mulling $5314.67 with interest subject to a credit of $4473.96.

This judgment was affirmed by the Court of Appeal under No. 7459, Tessier 129, on March 6, 1919, and a writ refused by the Supreme Court. A writ of error to the Supreme Court of the United States was also refused by the Court of Appeal.

The sheriff then proceeded with the advertisement of the property as seized and described by him and on June 12, 1919, adjudicated it to Meyer S. Dreyfous for account of Abraham S. Shushan for the price of $1700, and made a title to him under date of July 7, 1919, and registered the same in the Conveyance Office in Book 310, p. 212, on the same day, and cancelled the inscription of the writ of fieri facias in the Mortgage Office in Book 1193, p. 512.

On June 13, 1919, before Shushan had paid his bid, Mrs. Hoyle and Mrs. Leland filed a rule in which they alleged that the seizure and sale of their property was illegal, among other reasons “because of the fact that the ownership of movers in the said real estate was not seized, except such interest as they might own therein, and on further suggesting that the law requires that the said interests should be set out”; and they prayed that Mayer S. Dreyfous and E. Mulling show cause “why the proceedings leading up to the said adjudication and the said adjudication itself should not be declared to be null and void and the same cancelled and annulled”.

By judgment rendered June 24, 1919, the above rule was dismissed. From this judgment Mrs. Hoyle and Mrs. Leland appealed.

By judgment rendered June 4, 1923, the Supreme Court reversed the above judgment and decreed that “the adjudication complained of be annulled and set aside, at the cost of Shushan and Mulling in both courts”. Mulling vs. Jones et al., 153 La. 1091, 97 So. 202.

In the Supreme Court in the above case, on May 11, 1923, G. L. Deano filed an affidavit in which he attested that he had investigated the two properties advertised for sale herein and that two-sevenths thereof were worth $8000; that he would have bid at the sheriff’s sale, but he had no way of ascertaining exactly what would come to him in case he was the purchaser, nor could anyone else from reading the advertisement.

There was an.admission that the “Clara Jones” mentioned as defendant was a fictitious person, and that the name was used only for the purpose of screening the defendants, Mrs. Hoyle and Mrs. Leland.

On May 1, 1923, a rule was filed on behalf of Edward Mulling, through E. J. Bowers, Aty., in which he alleged that the judgment herein rendered on May 28, 1912, was null, having been rendered without the sanction or knowledge of Mulling, and that he never had any claim against the defendants, and that they were not indebted' to him in any sum, and he prayed that said judgment be annulled and - set aside as well as all the subsequent proceedings thereunder against Mrs. Hoyle and Mrs. Leland.

B. Bennett, transferee of Mulling, and Harry Latter, transferee of Bennett, resisted this rule on the ground that Mulling had no further interest in the judgment, as was well known to E. J. Bowers.

On the trial of the rule Mulling admitted that he had signed the transfer. His counsel withdrew the rule.

On June 21, 1923, Adele Maloney, divorced wife of Henry Miller Hoyle, and Agnes Maloney, wife of Prank Leland, the defendants herein, through their attorney, Paul W. Maloney, sold their two-sevenths interest to Guy L. Deano.

On October 25, 1923, Harry Latter filed a rule in which he alleged all the facts hereinabove stated, more particularly the issuance of the fieri facias, the seizure by the sheriff of the property above mentioned, the recordation of the seizure in the Mortgage Office, the adjudication of the property to Shushan for account of the mover, Harry Latter, who did not pay any of the price, the cancellation of the writ of fieri facias from the Mortgage Office by the sheriff by virtue of said sale, the judgment of the Supreme Court setting aside the adjudication; the continued existence of the fieri facias unsatisfied; the vain action of the sheriff in cancelling from the Mortgage Office the inscription of the writ of fieri facias by virtue of an adjudication which had been annulled and the revival of the inscription by reason of the cancellation of the adjudication. The mover concluded by praying that Mrs. Hoyle and Mrs. Leland and Guy L. Deano and the civil sheriff, and the recorder of mortgages show cause why Harry Latter should not be recognized as the assignee of plaintiff Mulling and why the writ of ■fieri facias and the seizure and the recordation thereof in the Mortgage Office should not be declared to be in full force and effect and the cancellation thereof by the sheriff to have been null and void, and why the sheriff should not proceed to readvertise the undivided two-sevenths of defendants in the two properties hereinabove mentioned. to satisfy the claim of Harry Latter.

The defendants in rule, Mrs. Hoyle and Leland, pleaded misjoinder of parties, that the rule was not sworn to, no cause of action, and that the proceeding should have been by petition and not by rule; that Latter is estopped for having held out Shushan as the owner of the property. In addition to these exceptions they filed a lengthy answer embodying practically a general denial of all the allegations of the rule.

Guy L. Deano filed the same exceptions as the above two defendants, and an answer denying all the allegations contained in plaintiff’s rule except his ownership of the properties.

On the trial of the rule the deputy sheriff testified that he still held • the alias fieri facias in his hands unsatisfied; the only credits were three items amounting to $4473.96.

Judgment was rendered February 11, 1924, making the rule absolute only in so far as “to recognize Harry Latter as assignee of the plaintiff and to be entitled to the further execution of the judgment herein, and in all other respects the rule was discharged.”

Harry Latter’ appealed. Such is the Odyssey of this case presenting the questions now under consideration.

In this court the defendants, Mrs. Hoyle and Mrs. Leland, have asked that the judgment be amended by dismissing the rule as a whole.

I. The objection to the proceeding by rule is without weight.

The proceeding was ancillary to the main action and an incident thereof. C. P. 755; Larthet vs. Hogan, 1 La. Ann. 330; Bank of Louisiana vs. Delery, 2 La. Ann. 649; Merrick vs. Robert McCausland, 24 La. Ann. 256; Blair & Co. vs. Taylor, 25 La. Ann. 146; Dutrey vs. Laguens, 28 La. Ann. 753; New Orleans Natl. Bank vs. Raymond, 29 La. Ann. 358; Morris vs. Cain’s Executors, 34 La. Ann. 665; Bayhi vs. Bayhi, 35 La. Ann. 528; Bussiere vs. Elias Williams, 37 La. Ann. 387; Phillips vs. Feliciana Cotton Oil Co., 48 La. Ann. 406, 19 So. 258; Schminke vs. Their Creditors, 50 La. Ann. 511, 23 So. 712; State vs. C. S. Jackson & Co., 145 La. 254, 82 So. 213.

II. As far as the defendants, Mrs. Hoyle and Mrs. Leland, are concerned, there can be no doubt that the sheriff was authorized to proceed with the execution of the fieri facias. The writ had issued and had been levied upon “all the rights, title and interest of both defendants in' and to two pieces of property” fully described in the notice of seizure. This notice of seizure was recorded in the Mortgage Office, according to law; at the expiration of the fieri facias the sheriff secured a copy from the clerk. This copy lasted as long as the property seized remained unsold. The Supreme Court set aside the sale made by the sheriff; but this judgment did not affect the seizure nor the inscription thereof. On the contrary, the moment the judgment annulled the sale, it revived the inscription which had been erroneously cancelled by the sheriff under a sale decreed to be null. In other words, as the sheriff was authorized to cancel inscriptions only in execution of valid sales; if the sales were invalid his cancellation was unauthorized and null. The party in whose favor the inscription was made was not bound by an illegal cancellation. The sale having been set aside and anulled all things were reinstated in the condition in which they were prior to the sale, the seizure and the inscription were" revived as of that date. Germaine vs. Mallerich, 31 La. Ann. 371 (374).

Non a morte sed a somno resurgit.

“The annullment or rescission of the sale would have the effect of placing the parties in the position they held before the sale, each party being restored to the rights he had then had, and abandoning those which had ineffectually been transported to him.” N. O. Ins. Assn. vs. Labranche, 31 La. Ann. 839 (841), 7 Orl. App. 270.
“The title by which the holder of a mortgage note sought to acquire the mortgaged property, being anulled, confusion and extinguishment cease' and the mortgage still exists.” Spencer vs. Goodman & Bradfield, 33 La. Ann. 898 (909), affirmed in Dawson vs. Thorpe, 39 La. Ann. 368, 1 South. 686.

In the case of Chaffe vs. Morgan, 30 A. 1307, the plaintiff, Chaffe, was a mortgage note creditor of the defendant, Morgan. In payment of the note Morgan sold the mortgaged property to Chaffe, and obtained from him a receipt in payment of the note. At the suit of Schultz, a mortgage creditor of Morgan, this sale was set aside. Schultz then presented this receipt to the recorder of mortgages and caused the cancellation of the mortgage inscription. Chaffe then brought suit to enforce his mortgage and the inscription thereof.

The court decided that the sale having been annulled the mortgage and the inscription revived in favor of Chaffe, quoting several authorities.

7 Toullier, S. 144; 2 Larombiere, p. 286; 33 Dalloz Rep., p. 235; S. 1946, specially New Orleans Insurance Assn. vs. Labranche, 31 La. Ann. 842.

III. But Deano argued, and his contention was maintained by the district judge, that as far as he was concerned the inscription was cancelled and could not be revived to his prejudice, and that he was protected by a clear mortgage certificate which accompanied the act of sale to him. Such is not the law. Deano is in no better position than Mrs. Hoyle and Mrs. Leland. As far back as 1844 in the case of Macarty vs. Landreaux, 8 Rob. 130, the court said, on p. 135:

“The vested right which a mortgagee has acquired by the registry of his mortgage, is surely not held at the will and pleasure of the recorder of mortgages. This officer cannot by his own act destroy the mortgage of a party, and substitute to it the guarantee of his personal or official responsibility.
“He can have no control over a mortgage when it has been duly recorded. It becomes the property of the mortgagee from whom it can be taken only in one of the modes pointed out by law. This court has held that the certificate of the recorder of mortgages forms only prima facie evidence of the facts stated in it; that it is not conclusive and may be contradicted. The mortgagee may show that the certificate is untrue; that the recorder acted on insufficient evidence, and without his consent, or, in case of an erasure by judgment, that he was not a party to the action brought, or proceeding instituted to cancel his mortgage. In such cases the mortgage, we think, exists unimpaired, even against the innocent vendee, who has bought on the faith of a certificate that there was no mortgage on the property. It has been urged that as conventional mortgages have effect against third persons only from the date of their inscription upon the books of the recorder of mortgages their effect necessarily ceases the moment the inscription is erased. It is true that it is the enregistering alone which gives effect to mortgages against third persons; therefore if a mortgage is not recorded at all, or is recorded for less than its real amount, the mortgage creditor acquires no right as to third persons, except for the amount mentioned in the registry made by the recorder. 4 R. 5. But it is otherwise, we think, when a correct registry has been the case. Its effect does not cease because the recorder, through error or design, has erased it, and delivered a certificate declaring that it no longer exists.” Affirmed in De St. Romes vs. Blane, 20 La. Ann. 424; Horton vs. Cutler, 28 La. Ann. 331 (334).
“The erroneous cancellation of the inscription of the mortgage securing this genuine note can of course have no effect upon, or, in other words, cannot prejudice any rights Nienaber might have, and no contention is made in that regard.” Levy vs. Desposito, 133 La. 129.
“When a tax sale is annulled the mortgage upon the property will revive with the rank it held at the date of the sale.” 31 A. 839.
“Where the records of mortgages were fraudulently cancelled without the consent of the mortgagee such cancellations had no effect to free the lands in the hands of third persons who acquired the property in good faith relying upon the clear record from subjection to the mortgages.” Gallagher vs. Conner, 138 La. 633, 70 So. 539. Citing all the cases above quoted from — Macarty vs. Laudreux, 8 Rob. 130, to State vs. Langford, 133 La. 120, 62 So. 597.

But Deano cannot be considered a third person in this case. He filed an affidavit in the Supreme Court in the suit to annul the adjudication on May 11, 1923, less than one month prior to the judgment of the Supreme Court of June 4, 1923. He must have known of the judgment and its legal consequences. He purchased on June 21, 1923. In Bacheman vs. Chaperon, 15 La. Ann. 4, the court said:

“An erasure of a mortgage, procured through fraudulent means, should not protect the property from the operation of the mortgage in the hands of a third possessor, to whom knowledge of the fraud is brought home by the evidence to the satisfaction of the jury.”

IY. The plea of prescription against the judgment of May 28, 1912, is not well founded. It has been the subject of constant litigation since 1917 and by judgment of June 4, 1918, its validity was recognized. In interpreting Article C. C. 3547, the Supreme Court decided that the statute of 1853, amending C. C. 3547, did not provide an exclusive mode of interrupting the prescription of judgments, but left such prescriptions subject to all the other modes of interruption provided by law. Succession of Patrick, 30 La. Ann. 1071; Calhoun vs. Levy, 33 La. Ann. 1296; Levy vs. Calhoun, 34 La. Ann. 413; Succession of Saunders, 37 La. Ann. 769.

It is therefore ordered that the judgment appealed from be amended by decreeing the writ of fieri facias and the seizure and the recordation thereof in the Mortgage' Office mentioned hereinabove to be in full force and effect and the cancellation threof by the sheriff to be null and void, and that the sheriff proceed to re-advertise the undivided two-sevenths of the defendants herein in the two properties hereinabove mentioned to pay and satisfy the claim of Harry Latter specified in the writ of fieri facias subject to all the credits mentioned in the judgment of June 4, 1918.

It is further ordered that as amended said judgment be affirmed at the cost of defendants in both courts.

Judgment amended and affirmed.