text:
    No. 10,496.
    Eyma Brown et al. vs. The Texas and Pacific Railway Company.
    Jf a railroad crosses a common road on tlie same level, the traveler on tlio latter and tlie railroad company are under the common obligation to do all in their power to prevent a collision.
    From the character and momentum oí a railroad train, and the requirements oí public travel by moans thereof, it can not be expected that it shall stop and give way to an approaching wagon. Tlie train has the preference and right of way.
    But it is bound to give due warning of its approach.
    Hence it is negligence on tlie part of the, engineer runn ing the train to omit to give such warning, by sounding tlio whistle at the distance required by the rules of tlie company.
    But on tlie other hand those who travel on the common road, and are approaching a railroad trade, are bound to exercise due care and ordinary diligence to ascertain if a train is approaching, even if to their knowledge of tlio road’s schedule no train is due at that particular time.

      Before attempting to cross a railroad track, they are bound to use their senses— to listen and to look — in order to avoid any possible accident from an approaching- train.
    Hence, it is negligence on the part of such a person to attempt to cross arailroad trac-lc, which is several feet above the level of surrounding fields, on which there are no obstructions to view or to sound, in broad daylight, and to fail to look cither way on the track or to listen to the noise made by an approaching train running at great speed. In such a ease, as his negligence has contributed to the accident, ho can not recover damages against the railroad company.
    A PPEAL from the Twenty-Third District Court for the Parish of lx Iberville. Talbot, J.

      R. N. Sims, G. A. Gondran and A. Talbot for Plaintiffs and Appellees. _

      Hoioe & Prentiss for Defendant and Appellant.
   The opinion of the court was delivered by

Poché, J.

This is an action in damages by the father and the mother of one Blizé Brown, for the death of the latter, which resulted from a collision between a passenger train of the defendant company .and a plantation cart driven by the deceased.

The defence is a general denial, and the plea of contributory negligence.

The railroad company appeals from a judgment of 810,000, based •on the verdict of a jury.

The accident occurred on the 6th of March, 1889, at about 2 o’clock p. m. , on a large sugar plantation situated on the Mississippi river, extending to the rear between lateral lines, and which is crossed from one of said lines to the other by the road bed.

There are on the plantation several roads, extending from the front to the rear thereof, which cross the railroad, and which are elevated at each intersection to a height sufficient to reach the level of the road bed, so as to facilitate the passage over the same.

On that day the deceased, Blizé Brown, who was a laborer on that plantation, was engaged in hauling seed cane from the front to the rear of the field, and in that work he ha I to use one of the roads which intersected the track as hereinabove stated. The cart which he drove was hitched to four mules, two leading together, .and two together as wheel mules, one of the latter being ridden by the driver.

As a special passenger train, running from New Orleans west, at the rate of thirty miles an hour, approached that plantation, Brown, the deceased, was driving his empty cart from the rear or swamp side of the railroad to the front or river side of the plantation, and, as his team was in the act of j crossing the track, the collision occurred, by which three of the mules were killed outright, and by which he received the injuries which caused his death some fifty hours later. Plaintiffs’ theory of the case is that the accident is attributable exclusively to the fault of the company and of its employés, and that the deceased is entirely free of any charge of' negligence or want of proper care in the premises.

Their contention is that it was gross negligence on the part of the engineer to have failed to blow his whistle at one-quarter of a mile before reaching the crossing, as he was required by the rules of the company, and for failing to give any other warning of the approach of his train, which was an extra train, running and passing at that point at an unusual hour, at which time no trains of any description, or in any direction, were due according to schedule.

They further contend that for these same reasons the deceased, whose work necessitated his frequent crossing of the railroad track, and who knew no train was to be expected from New Orleans before late evening, and that the first train due on that day was to come from an opposite direction, on its way to New Orleans, and would be due only at 3:30 in the evening, was not held to a greater degree of care and caution than that which he had exercised on the occasion.

On many of the questions of fact involved in that contention the evidence is very conflicting.

But the preponderance of the testimony in the record is to the effect that as Brown approached the railroad track he was driving his team at a slow trot, but as he began to ascend the elevation leading to the crossing, his mules moved at a walk, which was their gait when struck by the engine.

He was looking straight ahead, and he did not see the train or hear’ its noise.

"When he was at a short distance from the track he was seen by the fireman, who had just then taken his seat on the same side of the engine as that on which the team was moving, having a moment before been engaged in putting coal in the furnace.

As soon as he saw Brown he began to ring his bell, and observing that the latter was still approaching the track, he sang out to the engineer that a team was approaching, but Brown was then only about ten feet from the track.

The engineer, who sat on the opposite side of the engine, the regular place of that employ^, did not, and says that he could not, see Brown on account of the intervening boilers, and he saw only the two lead mules, and that only at the moment of the collision. On the warning of the fireman, the engineer at once sounded his whistle, .applied the air brakes, and reversed his engine. But it was too late, and the collision occurred.

It is admitted by the engineer in his testimony that he did not •sound his whistle one-quarter of a mile before preaching the crossing at which Brown was struck, and that his only alarm whistle was ¡sounded at about half a mile distant from that point, and that it was really the whistle for a platform on the adjoining plantation.

That testimony therefore goes a great way to fasten proof of negligence on the engineer, who is thus shown to have neglected or failed to comply with the rule of the company itself, by which he was required to have sounded his whistle at a quarter of a mile before reaching the crossing at which the accident occurred.

But the question is yet open as to the contributory negligence ■charged to the deceased.

It is in proof that the road bed was elevated about four feet above the level of the surrounding fields, that at that season of the year there were no plants growing or grown, no weeds or undergrowth of any kind, or other obstacle to'obstruct the view of the road, which laid high and clear, open to uninterrupted view for at least half a mile either way from the crossing. The whole scene was in a large, open field in full cultivation, without the slightest obstacle to noise or sound, and it was on a clear day, with sunshine, at about 2 o’clock p. m., that the accident occurred.

It is therefore clear and unquestionable that the deceased was in no way deprived of every facility to see the approaching train, or to hear the loud noise made by it in its rapid motion at the rate of thirty miles per hour.

But it is in proof, and it is not denied by plaintiffs, that as he approached the road, and before attempting to cross it, Brown looked right straight ahead, without turning his eyes either way, although his mules slackened their gait as soon as they reached the elevation hereinabove described, which was at least a reminder of the proximate crossing.

It is no answer to this suggestion to say that the train was a special train, running at an unusual and an unexpected hour. It is in proof that special or extra trains were not of unfrequent occurrence on that road. And common prudence would dictate to any ordinary man that a train might be expected at any time on a railroad of vast extent in full and active operation, especially at its busy season, as was the case here.

The relative duties of persons in charge of trains on railroads, and of travelers who have occasion to cross such railroads, are well defined in jurisprudence and are thoroughly understood in all American courts.

And we commend our learned brother of the District Court for having adopted and embodied in his charge to the jury the following simple and clear exposition of those rights and duties, made by the Supreme Court of the United States in the [case of Improvement Company vs. Stead, 95 U. S. 161:

“ If a railroad crosses a common road on the same level, those traveling on either have a legal right to pass over the point of crossing, and to require due care on the part of those traveling on the other, to avoid a collision. Of course, these mutual rights have respect to other relative rights subsisting between the parties. From the character and momentum of a railroad train, and the requirements of public travel by means thereof, it can not be expected that it shall stop and give precedence to an approaching wagon to make the crossing first; it is the duty[[of the wagon to wait for the train. The train has the preference and right of way. But it is bound to give due warning of its approach, so that the wagon may stop and allow it to pass, and to use every exertion to stop if the wagon is inevitably in the way.” * * *

“ On the other hand, those who are crossing a railroad track are bound to exercise ordinary care and due diligence to ascertain whether a train is approaching. They have, indeed, the greatest incentives to caution, for their lives are in imminent danger if collision happen, and hence it will not be presumed, without evidence, that they do not exercise proper care in a particular case. But notwithstanding the hazard, the infirmity of the human mind in ordinary men is such that they often do manifest a degree of negligence and temerity entirely inconsistent with the care and prudence which is required of them, such, namely, [as an ordinary prudent man would exercise under the circumstances. When such is the ease,. they can not obtain reparation, even though the railroad company be in fault. They are the authors of their own misfortune.”

In another case the same [exalted tribunal announced practically the same principle in the following language, as condensed in the syllabus of the case of Railroad Company vs Houston, 95 U. S. 697:

“ The neglect of an engineer of a railroad train to sound its whistle ór ring its bell on nearing a street crossing does not relieve a traveler on the street from the necessity of taking ordinary precautions for his safety. Before attempting to cross the railroad track, he is bound to use hjs senses — to listen and to look — in order to avoid any possible accident from an approaching train.”

In his work on contributory negligence, Beach, culling the same rule from “a multitude of decisions” formulates the doctrine thus:

“When one approaches a point upon the highway, where a railroad track is crossed upon the same level, it is his plain duty to proceed with caution, and if he attempts to cross the track, either on foot or in a vehicle of any description, he must exercise, in so doing, what the law regards as ordinary care Under the circumstances. He must assume that there is danger, and act with ordinary prudence and circumspection upon that assumption.” Sec. 63, page 191.

“In attempting to cross, the traveler must listen for signals, notice signs put up as warnings, and look attentively up and down the track.”

“Statutes and municipal ordinances in every jurisdiction prescribe specifically the duty of railway corporations in respect to railway crossings; but no failure on the part of the railroad company to do its duty will excuse any one from using the senses of sight and hearing, upon approaching a railway crossing, and whenever the due use of either Sense would have enabled the injured person to escape the danger, the injury is conclusive evidence of negligence, without any reference to the railroad’s failure to perform its duty.” See. 64, page 195.

See also Wood’s Railway Law, 1312; 75 N. Y. 281; Salter vs. R. R. Co.; Murray vs. Railway Co., 31 An. 492; Childs vs. R. R. Co., 33 An. 154; Houston vs. V. S. & P. R. R., 39 An. 796; Weeks vs. R. R. Co., 40 An. 800.

As applied to the case in hand this reasonable rule required that Brown, in attempting to cross the railroad track, should have looked up and down the track; by so doing he would inevitably have seen the train which was in full view for nearly a mile, without the slightest obstruction. And that obligation is not affected by the fact that the train was a special or extra train; that circumstance may have mitigated the degree of his negligence, but it could not screen his conduct from the imputation of some negligence. Had he listened as he approached the crossing he would certainly have heard the train -as it thundered along in the open field at the rate of thirty miles an hour with no obstruction to sound, and making a noise, which one of the witnesses compares to that made by “a drove of cattle going across a bridge.”

It is in proof that one of plaintiffs’ witnesses who was half a mile ■off, that another who was at a distance 'of one hundred yards, a third who was three hundred yards off, and a fourth who was at a distance of several hundred yards, and who was walking toward Brown, on the same road and on the opposite side of the track, all saw and heard the train before the accident; and that the attention of one of them was attracted to the train by the noise which it made.

There is no pretence that Brown was defective in hearing, or near sighted, and it is passing strange that he should have neither seen or ■heard the approaching train. Plaintiffs’ counsel suggests that his mind was absorbed in thoughts about his work. This is very probably the case, and it turns out to have been his misfortune and the loss of his parents, but it is legal negligence which clearly ■contributed to the deplorable accident which cost him his life, and which is a bar to plaintiff’s right of recovery in this case.

It was negligence on the part of the engineer to have omitted to sound the whistle at a quarter of a mile before that crossing; but that omission did not render the accident inevitable if, on the other hand, Brown had been sufficiently prudent and careful when he approached the crossing.

It is in proof that his mules came from a slow trot to a walk at about twenty feet from the track. Had he seen or heard the train it was yet time, and it would have been easy for him to have stopped his team and thus have ■ avoided the accident.

When the train hands first saw him they used every means in their power to avoid the collision, bnt it was no easy matter to stop a train moving at the rate of thirty miles an hour, and there was no obligation on the part of the company to slacken the speed of its trains at the numerous plantation cross roads intersected by its track. When the fireman first saw Brown he rang the bell, and he naturally supposed that the team would be stopped before reaching the crossing; but as the team kept on approaching, the engineer, who could not see Brown from his place, was then warned, and he applied the brakes and reversed his engine, but it was too late. At that point nothing more could have been exacted of them. We therefore conclude that Brown’s negligence, or want of care, contributed to the accident, and that therefore his parents can not recover-in the present action.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed; that the verdict of the jury be set aside, and that plaintiff’s demand be rejected and their action dismissed at their costs in both courts.


source: Caselaw Access Project

author: Fenner, J. Bermudez, O. J.

license: Public Domain

text:
    No. 10,482.
    Mrs. Mary C. Duruty and Husband vs. Anthony Musacchia.
    Tile presumption of law that property bought during marriage in the name of either spouse attaches to purchases in the name of the wife, although the act contains all necessary recitals as to the paraphernality of the funds with which the price was paid.
    A purchaser from a married woman can not be compelled to accept title until this presumption has been overcome by proper proof, and when it appears that a judicial mortgage is recorded against the husband, the purchaser may require such mortgage creditor to be made a party.
    If the mortgage creditor be an absentee, he may be properly brought into court through a curator ad hoc, the proceeding being substantially one in rem, having for its sole object to fix the status of the property, and to determine the validity of his apparent lien upon it in ordor to enforce a contract respecting the same.
    A judgment against a non-resident, properly represented in a litigation by a curator ad hoc, involving the effect of a judicial mortgage inscription on real estate in this State, ought to be explicit on its face of that effect, to bind the absentee.
    The Act of 1878, authorizing the sale of property owned in part by minors at private sale, does not require the fulfilment of the prerequisites for a judgment in partition at public auction of property, in which minors are concerned as co-owners.

      The consent o£ the co-proprietor of age, and that of a family meeting on behalf of the minors, with the concurrence of the tutor and the homologation of the proceedings by the court, authorize the sale of the property at private sale.
    Interest exceeding five per cent can not be allowed on a sum actually due, in the absence of written evidence of an agreement to pay such.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      ■J. C. Gilmore and S. L. Gilmore for Plaintiffs and Appellees:
    A sale of separate and paraphernal property of the wife acquired during marriage, will be enforced when it is incontrovertibly established in a suit against the purchaser, that it was purchased with her separate and paraphernal funds, of which she retained the administration free from the control of her husband. The purchaser must submit to this proof and accept the title if unobjectionable. Bachino vs. Coste, 35 An. 570, and authorities cited; Sentamant vs. Soule, 33 An. 609.
    A mortgage creditor of the husband is not a necessary party in the controversy, but when an absentee, and made party by supplemental petition, and represented by a curator ad hoe, will be concluded as to any interest in the issue. 32 An. 313; Stockmeyer vs. Weidner, 32 An. 10G, etc.
    A private sale of succession property in which minors and majors are interested, under the provisions of Act 25 of 1878, page 17, will be upheld, and need not be preceded by a formal judgment and decree provided for in ordinary partition proceedings. Act 25 of 1878, page 17; E. S., Sec. 2667; Durand vs. Dubuclet, 25 An. 155.
    The purchaser is not chargeable with the subsequent disposition of the proceeds or personal rights of the minors against their tutor growing, out of the tutorship. Sadler xs. Henderson, 35 An. 826; Taylor’s Digest, pages 517, 518.

      Buck, Dinkelspiel & Hart for Defendant and Appellant:
    I. Property belonging to minors, as a rule, can only bo sold at public auction. E. C. C. 310-312.
    To effect a partition it may be sold at private sale. Acts of 1878,17 ; 21 An. 155.
    3. Property sold to effect a partition can only be sold when the provisions of law regarding partitions are strictly complied with, and when there is a formal judgment of partition. 10 An. 571; 11 An. 33; O. B. 27, folio 210.
    ■3. A purchaser of real estate, from a married woman, can not be compelled to accept title thereto, without there being a separation of property between the spouses, where tho community owes debts, and there are judgments.recorded against the husband, unless the creditors of the husband are made parties to the proceedings. 35 An. 570.
    1. An absentee can not be brought into court through the appointment of a curator ad hoe, except in certain enumerated cases, among which the one above mentioned is not embraced. 35 An. 1181; 95 U. S. 711.
   The opinion of the court was delivered by

Fenner, J.

The plaintiff, a married woman, with the authorization of her husband, sold to the defendanta piece of property, of which he refused to accept the title tendered, on the following grounds:

1. That the property having been purchased by Mrs. Durruty during marriage, although bought in her name and although the act fully declares that it was bought with her separate funds, is presumed to be community property, and that he can not be compelled to take the title until that presumption is judicially rebutted.

Our decision in Bachino vs. Coste, 35 An. 570, certainly imposes upon the married woman, in such case, the duty, and upon the purchaser from her the right to require her, to rebut this presumption, and to rebut it contradictorily with those having a right to dispute her title, such as the forced heirs of the husband, if he be dead, and his judicial mortgage creditors.

In this case, a certificate of mortgage in the husband’s name was produced, showing a judicial mortgage for a large amount, recorded in the name of Leon Hernandez, who, it was shown, was an absentee residing in Prance.

Thereupon, a petition was filed making him a party, and appointing a curator ad hoc to represent him, who appeared and filed answer in that capacity and represented him on the trial.

It is not disputed that the proof administered by Mrs. Durruty clearly and conclusively established every fact essential to maintain the paraphernality of her title and her full right to sell; but defendant claims that the judgment to that effect is not binding on Hernandez, because he was not legally made a party, and that the attempt to make him a party by substituted service on the curator ad hoc, was not “due process of law.”

Reference is made to the decision of this court in Loughlin vs. Ice Company, 35 An. 1184, and to the decision of the United States Supreme Court in Pennoyer vs. Neff, 95 U. S. 714, and sundry other cases.

An examination of those decisions very clearly shows that this case is an exception to the general rule formulated therein, which applies only to actions strictly in personam.

Thus Justice Field, as the organ of the court, expressly says: “ Such service may be sufficient in cases where the object of the action is to reach and dispose of property in the State, or of some interest therein, by enforcing a contract or a lien respecting the same, or to partition it among different owners, or when the public is a party, to condemn and appropriate it for a public purpose. In. other words, such service may answer in all actions which are substantially proceedings in rent. But where the entire object of the action is to determine the personal rights and obligations of the parties, that is, where the suit is merely in personam, constructive service in this form upon a non-resident is ineffectual for any purpose.” Pennoyer vs. Neff, 95 U. S. 727.

It is obvious, in this case, that the sole object of the proceedings, as against Hernandez, is to define the status of this property, to determine the validity of his apparent lien upon it, in order to enforce a contract respecting the same. He can not be reached for personal service, and unless he could be brought in by such substituted service, his mere absence would have the effect to place and to keep this property out of commerce. We therefore hold that he was validly brought into court through service on the curator, and will be concluded by the judgment.

The character and responsibility of the gentleman appointed as curator forbid our attaching the slightest importance to the suggestion that he has neglected any duty due to his client. Although his answer was filed soon after his appointment, it may well be inferred that he had communicated with the absentee and was advised of his wishes, without which he would not have so acted; and in every event, he is amply responsible.

2. Defendant further objects to the validity of Mrs. Durruty’s title, because derived in part from minors whose title was divested by proceedings conforming to the requirements of law. It was a private sale made to effect a partition under the special provisions of Act No. 25 of 1878. We have critically examined the proceedings and .find them to conform in every respect with the requirements of the act.

The casé of Succession of Dumestre, 40 An. 571, did not involve proceedings under or purporting to be under this act, and has no application here.

The suggestion of defects in further proceedings in course of the partition after the sale to Mrs. Durruty, and her full compliance with the terms thereof, brings up matters with which neither she nor defendant have the slightest concern.

We consider that the decree of the court properly adjusts the rights of the parties as to the interest on the price. Defendant was not in default for non-payment of the cash portion of the price until the date of the judgment, and therefore owes interest from that date only. As the act stipulated 7 per cent, as the rate of interest on deferred payments, it is but just that he should pay that rate on the cash portion from the date of his default.

Mrs. Durruty died during the pendency of the suit and her heirs were regularly made parties in her stead; but by oversight the judgment was rendered in the name of Mrs. Durruty. It is agreed by all parties that this clerical error shall be corrected in our decree.

It is therefore adjudged and decreed that the judgment appealed from be amended by substituting the names of Louise Marie Durruty and Marie Ursule Durruty as plaintiffs in the judgment for that of Mrs. M. O. Durruty, and that as thus amended the same be now affirmed at appellant’s costs.

On Application for Rehearing.

Bermudez, O. J.

The defendant complains that there is error in the judgment herein rendered in this:

That if it be true that the judgment binds Hernandez, made a party, it ought to show that fact expressly.

That the formalities for the transfer of the property, as required by law, have not been observed, so as to bind the minors, from whom it in part derived.

That the judgment allows seven per cent, on the portion of the price which was to have been paid cash, while it could allow the legal interest only, as there was no consent to pay more.

I.

The ruling in Flower’s case, 23 How. 132, has no bearing in the instant ease, and Hernandez is surely bound by the judgment against him, represented by a curator ad hoe, to the effect that his judgment against Durruty, the husband, does not affect the property of Mrs. Durruty, the wife.

The District Court, however, ought to have made a decree in its judgment affecting Hernandez, and, as it has not done so, the omission can be supplied here. Otherwise, in orderto ascertain what the effect of the judgment here is, it would be necessary to consult the. reasons which do not form part of the decree.

II.

We held that the formalities for the sale of the property of minors at private sale had been observed, and deemed that statement sufficient to determine the issue on that point.

In the case of Boesch vs. Association, decided this day, in which thé proceeding was a kindred one, we again hold, that a sale of property, of which minors are part owners, can take place without being preceded by a formal judgment, as is provided for in partition suits for a sale at public auction.

It is enough, where the co-proprietors agree, that the family meeting And the necessity or propriety of the sale advantageous to the minors, and that, with the concurrence of the tutor, the court homologate the deliberations and order the sale, for the price fixed by the family meeting.

in.

The District Court erred in compelling the defendant to pay seven per cent, interest on the cash instalment. In the absence of any written evidence of an agreement, the defendant can be made to pay legal interest only. R. C. O. 1940, 2924.

It is therefore ordered that our previous decree herein be amended iso as to read as follows:

•It is ordered and decreed that the judgment appealed from be amended by reducing the interest on the cash portion from seven to five per cent., and by declaring that the judgment of Leon Hernandez against Jean Honoré Durruty, for $18,750, on the 1st of June, 1886, in the United States Court, does not affect the property described in the petition and forming the object of this suit; and that thus amended, the judgment appealed from be affirmed at appellee’s cost; and it is further ordered that our previous decree thus modified remain undisturbed.


author: Watkins, J,

text:
    No. 10,557.
    Wade R. Young, for use, etc., vs. A. M. Upshur et als.
    1. A citizen o£ the State of Mississippi, having instituted a suit, in the ordinary form, in a civil court in the State of Louisiana, against citizens of the District of Columbia, averring her title to an undivided half interest, in joint ownership with defendants, in a certain suit and judgment, the domicil of which is in the parish where the suit is brought, though pending on a writ of error from the United States Supreme Court — Held: that an exception to the jurisdiction of the court, ratione personce, tendered by a curator ad hoc, appointed to represent the absentee defendants, is not good; that substituted service of citation is effectual; and judgment rendered thereon will bind defendants as to the property to be specially affected thereby.
    2. In such suit, judgment is evidently sought as a moans of reaching such property or of affecting an interest therein. It is, therefore, in the nature of an action in rem, in so far as it purports to enforce a contract in reference to a specific interest in property within the ultimate jurisdiction and control of the court of first instance; and final judgment, when rendered, will be binding on the non-resident defendants, within and without the State.
    PPEAL from the Ninth District Court for the Parish of Tensas. Young, J.

      Wade R. Young, m propria persona.

      Hugh Tullis, Curator ad hoc*

   The opinion of the court was delivered by.

Watkins, J,

The plaintiff, claiming to be the owner of an undivided one-half interest in a certain judgment rendered by this ■court on appeal from the parish of Tensas, in the suit entitled Mrs. Annie M. Upshur et al. vs. Mrs. Mary E. Briscoe et al., by purchase from the plaintiffs therein, who are citizens of the District of Columbia, and which is still pending on writ of error in the United States Supreme Court, complains:

1. That in the notarial act of transfer said plaintiffs, as transferrers, bound themselves not to interfere with her as the transferee of an interest therein, in the conduct and management of said suit, in any manner; 2- thgt said vendors and transferrers refuse to execute and comply with their agreement and disavow their title so made, and contrary to their obligation, are attempting to effect a compromise of the matters in litigation, in violation thereof and to her great injury. Therefore she instituted suit in the parish of Tensas and prays for a judicial recognition and enforcement of said contract of sale and her ownership of one undivided half interest in said judgment.

The defendants being absentees in the sense of R. C. O. 3556, No. 3, the court granted an order appointing for them a curator ad hoe, in pursuance of the provisions of Article 56 and corresponding provisions of the Code of Practice, upon whom substituted service of citation was made. The curator excepted to the jurisdiction of the court ratione personal, on the ground that defendants have not been cited personally, and have not been brought into court by any process of the court issuing against property of theirs within its jurisdiction.

• This exception was sustained, the suit dismissed and the plaintiff has appealed.

The question is whether this proceeding constitutes judicial process within the meaning of the Fourteenth Amendment to the Federal Constitution. The leading case is Pennoyer vs. Neff, 95 U. S. 730. In that case the Supreme Court announced the governing principle to be that substituted service of citation “is effectual only when, in connection with process againstthe person for commencing the action, property in that State is brought under the control of the court and subjected to its disposition by process adapted to that purpose, or when the judgment is sought as a means of reaching such property, or (of) affecting some interest therein; in other words, when the action is in the nature of a proceeding in rem.” Page 733.

Then proceeding to specify what, in that sense, a proceeding in rem is considered to be, the court say: “ It is true that, in a strict sense, a proceeding in rem is one taken directly against property, and has for its object the disposition of the property, without reference to the title of individual claimants; but, in a larger and more general sense, the terms are applied to actions between parties, when the direct object is to reach and dispose of property owned by them, or of some interest therein. Such are eases commenced by attachment against the property of debtors, or instituted to partition real estate, foreclose a mortgage, or enforce a lien. So far as they affect property in the State, they are substantially proceedings in rem, in the broader sense we have mentioned.”

As preparatory to the utterance just quoted, the court said:

“ Such service may, also, be sufficient in cases where the object of the action is to reach and dispose of property in the State, or of some interest therein, by enforcing a contract, or a lien respecting the same, or to partition it among different owners, etc. In other words, such service may answer in all actions which are substantially proceedings in rem. But when the entire object of the action is to determine the personal, rights and obligations of the. •defendants, that is, when the suit is merely in personam, constructive service is sufficient for any purpose.” P. 32V.

Within the “larger and more general sense,” in which the court treated actions in rem, we think this action comes clearly.

It is not an action in personam. Its object is to obtain judicial recognition and enforcement of a specific interest in tangible property situated in the parish of Tensas, in this State. The defendants are averred to be the plaintiff’s vendors and joint owners of the property in question, and she complains that they are about to dispose of same to her prejudice, and in direct violation of their contract.

Evidently, judgment is sought for the purpose of reaching the property in question, or of affecting an interest therein, by enforcing a contract respecting same, within the meaning of that opinion. This appears conclusive in the light of the concluding part of it, in which the court was careful enough to announce, that it was not their intention to say “that a State may not require a non-resident entering into a partnership or association within its limits, or making contracts enforceable there, to appoint an agent or representative in the State, to receive service of process and notice in legal proceedings, Instituted with respect to such partnership, association or contracts; * * * and that judgments rendered upon such service may not be binding upon the non-residents, both within and without the State.”

On the face of plaintiff’s petition it appears that by virtue of defendant’s sale to her of an interest in a judgment, they became joint owners thereof, and that their contract is enforceable in the courts of this State quoad that property.

Laughlin vs. Ice Company, 35 An. 1185, is not a similar ease. In that case we held that substituted service of citation was insufficient for the purpose of subjecting a foreign corporation, unrepresented by an agent in this State, to a personal action sounding in damages upon the simple averment that it owned property in this State. In that view we are still firm, and deem it perfectly consistent with the jurisprudence of this court, as expounded by our prodecessors; and that the jurisprudence is consistent with the principles of Pennoyer vs. Neff.

Dupuy vs. Hunt, 2 An. 263, was an action for the recovery of slaves,, or their value, against two defendants; one a citizen of Mississippi, the other of Louisiana. The former was cited through a curator ad hoc and he excepted on the grounds assigned here, and the court said:

“ If the absentee leaves his property without an administrator of agent; if it be attached at the suit of a creditor; or, if an absentee becomes a necessary party to a suit between other persons lawfully in court, in furtherance of justice, the law authorizes a curator to be appointed to represent him. There is something on which the jurisdiction of the court is based, and the judgment rendered would be within the recognized and ordinary prerogatives of the judicial power.”

The principles stated in that case were substantially followed in many subsequent opinions, and notably in Peterson vs. McRae, 3 An. 101; Jelks vs. Smith, 5 An. 674; Ackley vs. Lyons, 6 An. 648; Ferguson vs. Thomas, 6 An. 218; Prindle vs. Williams, 9 An. 34; Stephens vs. Graves, 9 An. 239.

But in Field vs. Newspaper Company, 19 An. 36, a departure was taken, the principles announced in the quoted eases being recognized, but misapplied to a strictly personal action. In the more recent cases of O’Hara vs. Booth, 29 An. 817; Morris vs. Bienvenue, 30 An. 878, and Fly vs. Noble, 37 An. 669, those earlier cases were followed, and they are ih keeping with Pennoyer vs. Neff, to which our jurisprudence has been conformed. McKenzie vs. Bacon, 38 An. 764; Laughlin vs. Ice Company, 35 An. 1184; Heirs of McGehee vs. McGehee, 41 An. 657; Durruty vs. Musacchia, 42 An.-.

Our conclusion is, that the case stated is one in which substituted service of citation is effectual, and that a judgment pronounced thereon contradictorily with the curator ad hoc will bind the absentee defendant quoad the property in controversy, and that the judge a quo incorrectly sustained the curator’s exception, and dismissed the plaintiff’s suit.

It is therefore ordered and decreed that the judgment appealed from be annulled and reversed; and it is further ordered and decreed that the suit be reinstated, and the cause remanded for further proceedings according to law and the views, herein expressed.


author: McEnery, J.

text:
    No. 10,558.
    C. H. Starns et al. vs. Lavinia A. Hadnot et als.
    Under Act No. 102 of 1868, providing- for the establishment of destroyed records in the court house at Alexandria in Rapides parish, the record and judgment in the suit has the force and effect of the original record destroyed and is the best evidence of its contents.
    A judgment rendered by a court of competent jurisdiction where the proper parties have been cited must have full force and effect' until set aside by a ' direct action. It can not be attacked collaterally.
    APPEAL from the Twelfth District Court for the Parish of Grant. Coco, J.

      R. J. Bowman for Plaintiffs and Appellants.

      White & Thornton for Defendants and Appellees:
    “ In relation to property, the law only regulates the conjugal association in default of particular agreements, which the parties are at liberty to stipulate as they please, provided they be not contrary to good morals and under the modifications hereafter prescribed.” C. U., Art. 2325.
    “ Every matrimonial agreement must be made by an act before a notary and two witnesses.” O. C., Art. 2328.
    “ Every matrimonial agreement can be altered by the husband and wife jointly before the celebration of marriage; but it can not be altered after the celebration.” O. C., Art. 2329.
    “ The partnership or community of acquets or gains needs not to be stipulated; it exists by operation of law in all cases where there is no stipulation to the contrary.”
    “But the’parties may modify or limit it; they may even agree that it shall not exist.” O. O. 2332.
    In the case of Hanley vs. Drumm, this court said: “ But it is said the parties by their subsequent acts and conduct have shown that it was not their intention to make this $4000 community property. The answer to this is, that marriage contracts can not be changed or altered after marriage, even by formal agreement, much less by indirection, by acts and declarations.” 31 An. 110, 111.
    “It was contended that,notwithstanding'the stipulations to the contrary, donations may be made to the wife which will be her separate property.”
    “ We do not consider the question whether, notwithstanding the stipulation to the contrary in the marriage contract, the wife may receive donations which will be her separate property before us. Such a stipulation may have been a condition precedent to the marriage.” Desobry et als. vs. Sehlater et als., 25 An. 429.
    That case arose under the following stipulations in the marriage contract: “Article 3. The parties to this contract * * * covenant and agree that all the property brought by them in marriage or which may fall to them or either of them by succession or donations during the marriage, shall be held by them in common, on a title similar to that of acquets and gains.” * * * 25 An. 426; Edwards vs. Edwards. 25 An. 201; Barrow vs. Stevens, 27 An. 343; Eabre vs. Sparks, 12 R. 31; Succession Mossy, 4 An. 337; Succession Ooco, 32 An. 325.
    “When the paraphernal property is administered by the husband, or by him and the wife indifferently, the fruits of this property, whether natural, civil or the result of labor, belong to the conjugal partnership, if there exist a community of gains. If there do not, each party enjoys as he chooses, that which comes to lais Rand; but the fruits and revenues which are existing at the dissolution of the marriage belong to the owner of the thing which produced them.” C. C., Art. 2386.
    Under Sec. i “ of the Clause of Separation of Property,” our Civil Code expressly provides that the marriedpersons may stipulate that there shall be no partnership or community between them. And in that case it declares that the wife preserves the entire administration of her property and the free enjoyment of her revenues, and also:
    “ When the wife, who is separate in property, has left the enjoyment of her property to her husband without any procuration, he is not answerable for the fruits until a demand of them be made by his wife, or if it is not made, until the dissolution of the marriage. He is not accountable for the fruits which have been previously consumed.” C. C., Art. 2396; C. C., Arts. 2392, 2393, 2394, 2395.
   The opinion of the court was delivered by

McEnery, J.

This is a suit to partition the community alleged to have existed between Martha E. Lewis and her husband, A. G. Lewis.

They had been previously married, and Mrs. Lewis had children by her former marriage. Both had property when married.

The plaintiffs are the children of .the first marriage; the defendants are the children of Mr. and Mrs. A. G. Lewis.

The defendants excepted' to the demand of plaintiff upon the ground that there was a marriage contract entered into before the marriage between Lewis and Mrs. Starns, which provided that there •should be no community of aquets and gains, and for the additional reason that Mrs. Lewis had before her death portioned all her property among her children by both marriages.

The exception was referred to the merits to stand as an answer. By agreement the issue is to be confined to the question of the right of plaintiffs to a partition which involves the fact whether or not there was a marriage contract which stipulated there should be no community between the spouses.

There was judgment in favor of defendants, from which plaintiffs appealed.

To prove the marriage contract the defendants offered in evidence the record and judgment in suit No. 1426 of the District Court of the parish of Rapides, entitled Martha E. Starns vs. Alfred C. Lewis, her husband, which revived the marriage contract between her and her husband.

The marriage contract had been passed before Le Gros, a notary public for the parish of Rapides, and had been by him deposited and recorded in the recorder’s office of that parish. The original was so deposited and recorded.

The suit of Mrs. Starns vs. Her Husband, Lewis, was brought in pursuance of Act No. 102 of 1868, providing for the revival of destroyed records by the burning of the court house in Rapides .parish in May, 1864, by the Federal troops, when they set fire to and destroyed the town of Alexandria.

Sec. 2 of said act is as follows: * * * “That hereafter any person desiring to establish any deed, bond, mortgage, judgment, or any writing whatsoever, which was of record or deposited in any office in said parislTand destroyed by the burning of the court house in May, 1864, may have the same established by applying to the judge of the district by petition, setting forth the contents and description of the deed, bond, mortgage, judgment, or any writing whatsoever, which he, she or they may wish to establish, with as much specific certainty as possible, which' petition must be served on the maker, or other party or parties in interest of the said maker or other party or parties in interest residing in the parish of Rapides.” * * *

The act (Sec. 3) requires the judge to render judgment establihing or not such deed, etc., as the evidence proves to have existed.

The recorder’s office was in the courthouse and the records of the office were destroyed.

The plaintiffs objected to the introduction of this record and judgment, “on the ground that it is not the best evidence and no basis had been established for its offer.” The record is the best evidence of its contents. The act referred to authorized the suit to establish the existence of a lost or destroyed record, and the judgment reviving and establishing the same has the same effect as the original writing which was destroyed.

The plaintiffs object also to the suit, because Lewis, the defendant acknowledged service and confessed the facts. He had, under the act, no other alternative. In proceedings to establish the destroyed record, the defendant is required to admit the facts, or to deny them under oath.

This judgment is not impeached for any reason that would render it an absolute nullity. It must have full force and effect until set aside in a direct action. The judgment was rendered by a court of competent jurisdiction and the proper parties were duly cited. It can not be attacked collaterally. 30 An. -947.

There is a large amount of testimony introduced and objected to by both parties to establish or deny the existence of the marriage contract. But we deem it unnecessary to review it and go beyond the record in the suit of Starns vs. Lewis, husband.

The judgment in the case established the existence of the marriage contract, and the stipulation therein that there should not be a community between the spouses.

The judgment appealed from is therefore affirmed.


author: Bermudez, C. J.

text:
    No. 10,500
    The Exposition Railway and Improvement Company vs. Canal Street Exposition Railway Company. Joseph L. Harris, Garnishee.
    Subscribers for stock of an incorporated company, whose capital is fixed at a certain sum, whose shares are limited to a certain number, and whose charter provides that payment shall be made as may be determined by the Board of Directors, cannot bo compelled to pay until the whole capital has been subscribed for and the Board has called for [payment, unless it is shown that, by their acts, they have waived their rights, in those regards.
    A judgment creditor issuing execution and seizing in the hands of a garnishee, can not champion and exercise against him any claim which the defendant could not legally have urged.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      W. 8. Benedict and Frank N. Butler for Plaintiff in Rule and Appellant.

      T. J. Semmes & Legendre for Defendant and Appellee:
    1. A paper given in escrow does not become binding until conditions are fulfilled. Ooolc, .stockholders, Sects. 71; 81 Pa. 31; 31 111. 36; 15 Ohio St. 328; 101 111. 57; 11 111. 06.
    2. Until a subscriber is accepted by the company bo is not a stockholder, lllorawelz Oorp., Sec. 60.

      3. If charter fixes amount of capital and does not provide that company may commence business with less than the whole capital subscribed, no stockholder is liable to pay, in case the company makes contracts before the entire capital is subscribed. 87 N. Y. 608:1 Morawetz Oorp., Secs. 137,138; Green's Brice, 106 (n.); 6 Eng. and Am. Oorp. Cases, 1S3; 10 La. 76 and 1S6; 12 La. 87.
   The opinion of the court was delivered by

Bermudez, C. J.

This is an appeal from a judgment dismissing a rule traversing the answers of a garnishee and releasing the latter' from liability.

The plaintiff, having obtained a judgment for $12,500 against the defendant company, issued execution and under it garnisheed Joseph L. Harris, propounding interrogatories on facts and articles.

In his answer to the fourth interrogatory, the object of which was to ascertain from him the amount of his subscription for shares of stock in the defendant company and] how much he had paid for them, the garnishee says that he never subscribed for the stock of the company, nor took any shares therein; that it is true he signed a paper purporting\to be an agreement to subscribe for stock; said paper was presented to him for signature by Mr. Minnegerode, but it was distinctly agreed and understood at the time this respondent signed the paper, that said paper was not to be delivered to the defendant, nor was it to become an operative agreement to take stock in the defendant company, unless and until other persons should subscribe the same on a similar paper, so as to make the subscription to the enterprise a subscription for $40,000 [to be paid in cash, and also unless and until a contract should be entered into with Rogers, Ballentine & Oo., responsible contractors, to build the road, and take in part payment $25,000 in stock of the company, which amount of stock, with the cash subscription, would make up the'total amount of ■the capital stock fixed by the charter, to-wit: $65,000.

The respondent says that the conditions above mentioned were never fulfilled, and on the 4th of December, 1884, Mr. Minnegerode, by letter of that date addressed to this respondent, informed him that he was at liberty to rescind his subscription, which this respondent did by letter of the 8th of December, 1884, a copy of which is annexed. And this respondent not only never participated in the affairs of /the defendant company, but was really ignorant that it had organized or done any business under its charter.

The respondent says that the capital of the company was fixed by the charter at $65,000, and that inlaw it had no power to commence operations, or to bind by its acts any subscriber for stock, until and unless the whole amount of the capital stock had been subscribed, and this respondent avers that, at no time, was one-third of the capital stock of the defendant company taken or subscribed for, conditionally or otherwise.

The letter referred to in'the answer is as follows:

New Orleans, December 8, 1884.

O. Minnegerode, Jr., Esq., Dear Sir: On my return, after a short absence from the city, I found your favor of 4th inst., and in reply beg to say that besides your own identification with the enterprise you have on hand, I wasjmainly induced to subscribe to same owing to Mr. Rogers’ connection with the undertaking; therefore, in view of his withdrawal, coupled with the misfortune of yesterday’s newspapers publishing the failure of the concern, together with the fact of so short a time remaining in which to put the work through, I beg to accept your offer, and accordingly to cancel my subscription to the stock of your company, and remain, etc., J. L. Harris

The charter of the company is dated 19th November, 1884, and recorded 20th of that month. Article 9 is as follows:

“ The capital stock of the said association is hereby fixed at $65,000, divided into 650 shares of §100 each. All stock subscribed shall be paid for at such time and on such terms as the Board of Directors may determine, provided that all such stock subscribed shall be fully paid for by the 1st of February, 1885.”

The subscription paper signed by Harris is as follows:

We, the undersigned, hereby agree to subscribe the amounts set opposite our names to the capital stock of the Canal Street and Exposition Railway Company — 25 per cent, to be paid in cash and the balance in three instalments of 25 per cent, each, at intervals of ten days each after first payment.

J. L. Lyons, 25 shares ------- $2,500 00

Samuel H. Kennedy, 25 shares ------ 2,500 00

Warder Gumming, 10 shares - 1,000 00

J. L. Harris, 25 shares ------ 2,500 00

New Orleans Railway Supply Company, by John C. Febiger, 10 shares........ 1,000 00

John C. Febiger, 10 shares ----- 1,000 00

From that list it appears that the number of shares which the parties who signed it agreed to subscribe for, was 105, of the value of $10,500.

There is nothing to show that the party who presented the paper-for signature had any authority from the company to solicit subscriptions; that the paper ever was delivered to the company; that the subscriptions were -accepted by the company; that the company was authorized to proceed to business and levy assessments upon a partial filling up of its capital and before its entire stock was taken up; that the Board of Directors ever determined to call for any payment of the stock subscribed for; that the garnishee has ever done any act, from which it can be inferred that he has waived his right to insist upon the fulfilment of those conditions precedent.

If the party who presented the list for subscriptions represented the company, then, what passed between him and the garnishee and which is stated in the uncontradicted answer to the interrogatories and verified by proof, is binding on the company, as the whole constitutes one and the same transaction. If so binding, the company would have no recourse against the'garnishee, as a subscriber, and that which it could not do, the plaintiff in writ, who stands in its shoes, can not urge. The answer, which can not be divided, justifies an exoneration O. P. 365.

The quoted article of the charter, coupled with the caption of the subscription list which followed it, irresistibly forces the conclusion that it never entered the mind of the subscribers to pay until the entire stock had been taken and until the directors had called for payment. The contingencies not happening, no liability is incurred.

As was quite well said in Stoneham Branch R. R. Co. vs. Gould, 2 Gray, 277, Mass.:

“It is a rule, of law, too well established tobe now questioned, that, when the capital stock and the number of shares are fixed by the act of incorporation * * * no assessment can be lawfully made on the shares of any subscriber until the whole number of shares has been taken. This is no arbitrary rule. It is founded upon a plain dictate of justice and the strict principles regulating the obligations of contract.”

In Littleton, Manufac., vs. Parker, 14 N. H. 543; Oldtown & L. R. R. Co. vs. Veazie, 39 Me. 571; Sandford vs. Handy, 25 Wend. 475, and numerous other cases, it was likewise held, that the entire stock must have been taken ^before the subscriptions can be binding, or any legal assessments made. Also Morawetz on Oorp., Nos. 137, 138, and notes.

In a recent case, in which a kindred question was elaborately and thoroughly investigated, all the authorities having a bearing upon it having been critically examined, the New York Court of Appeals held in the same manner. Bray vs. Farwell, 81 N. Y. 600, 615.

Judgment affirmed.


author: Poché, J.

text:
    No. 10,474.
    Salvador Oteri vs. C. H. Parker, State Tax Collector.
    The charge by a tax debtor Unit the assessment of property situated in the City of New Orleans, is illegal, null and void, because it was made by a single assessor, without the action or concurrence of a majority of the Hoard of Assessors, as the law requires, docs not involve a mere matter of form, which must be invoked during the time or limitation prescribed by law, and it involves a radical defect which maybe urged or setup whenever an effort is made to collect the tax based on such an assessment.
    Jiut if the record shows that the tax rolls have been deposited in the office, where the records of the parish are kept, the assessment will be presumed to have been correctly made, and the burden of proof is on tlio tax debtor to make up his charge of illegality.
    The charges of illegality of an assessment on the grounds that the assessor failed to visit or examine the. property assessed; that the assessment rolls had not been legally authenticated; that some of the property was not the tax debtor's exclusively, but that it was owned by him jointly with others, do not involve radical defects, but simply matters of form, which should be judicially invoked before, the 1st of November of the year in which the. respective assessments were made.
    Art. 211 of the Constitution which provides that “ taxes on movable property shall bo collected in the. year in which the assessment is made," can not be construed as implying a prohibition from attempting to collect sncli taxes during the following, or in a subsequent, year.
    The failure to collect such taxes in tlio year in which the assessment is made, does not operate a remission of the same.
    Vessels are subject to State taxation like any other property; and as sncli are liable. to seizure for taxes levied and duo thereon.
    A tax collector has no authority in law to seize for taxes property other than.thnl which was assessed without first complying with the provisions of Sec. 34 of Act No. 83 of 1888. V. & A. Meyer vs Tax Collector, 41 An. 440, affirmed.
    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      Gurley & Mellen for Plaintiff and Appellant.

      Walter H. Rogers, Attorney General, and Wynne Rogers, Attorney for Tax Collector, for Defendant and Appellee.
   The opinion of the court was delivered by

Poché, J.

Plaintiff resists the payment of State taxes levied against his property for the years 1884, 1885, 1886, 1887 and 1888, amounting with interests and costs to the total sum of $3604.60.

Eor the enforcement of said taxes the defendant tax collector had seized, and was proceeding to advertise for sale, certain property of plaintiff, consisting mainly of the contents of a store stocked with fruits, and of fixtures, horses and vehicles attached to said store, and also a certain steamship then moored at the port of New Orleans. Whereupon plaintiff sued out an injunction to restrain the defendant from further proceeding in the enforcement of the aforesaid taxes, on account of numerous illegalities in the assessment, and in the mode of collection adopted by the tax collector.

The defence is a general denial, coupled with a demand of 20 per cent, statutory damages. From a judgment dissolving his injunction with 20 per cent, damages, plaintiff appeals.

His contention presents the following points for discussion:

1. That the assessments are illegal, null and void, because they were made by one single assessor, instead of being subject to the action of the Board of Assessors in and for the parish of Orleans, as required by law.

2. That the assessments were not preceded by an examination by any one of the assessors of the property listed, as the law requires.

3. That the assessment rolls, on which said taxes were levied, were not legally authenticated.

4. That under the requirements of the Constitution, taxes on movable property must be collected in the same year in which the assessment is made, and that therefore the taxes levied in the years 1884,. 1885, 1886 and 1887 can not be collected in the year 1888, as attempted in this ease.

'5. That some of the property assessed-as his was not owned exclusively by plaintiff, who was joint owner of the same with others, whose names do not figure in the assessments.

6. That the seizure of a vessel as herein sought to be effected is in the nature of a proceeding in rem, which is regulated by the rules of admiralty proceedings, which, as such, is beyond the power of a State officer, and beyond the reach and scope of State legislation.

7. That in violation of the Constitution, and in disregard of the statutes regulating the mode of collecting State taxes, the defendant has seized property other than that which had been assessed and on which the taxes were due.

I.

Counsel for the tax collector objected to the introduction of any evidence intended to show the illegality or insufficiency of the assessment on the ground that suits to test that question should, under the law, have been brought before the 1st of November of each year in which the respective assessments had been made.

The statutes invoked by counsel, which prescribe a limit of time for the action of tax payers, in the courts, touching the assessment of their property, have reference to suits to test the correctness of such assessments;” and hence they can not be construed as applying the same limit or restriction to actions or suits presenting questions of alleged radical defects in .the assessments, sufficient to operate the absolute nullity of the same.

Of such a nature is the defect presented under the first heading of plaintiff’s complaint as hereinabove classified. If the assessments, were made by a single assessor, without the action of the board, or of a quorum thereof, there has been no assessment within the purview of the law.

Hence it follows that the door was legally open to such an investigation, and that evidence on that point was properly admissible.

But the evidence offered is not sufficient to support plaintiff’s allegations on this point.

But the evidence offered is not sufficient to support plaintiff’s allegations on this point.

Plaintiff’s main reliance is on the minutes of the Board of Assessors from 1884 to 1888, both inclusive, which are in evidence in the original, and which do not show affirmatively that the assessments of his property were passed upon by the board in any one of the years involved in this case.

While it is true, as plaintiff contends, that in the parish of Orleans the assessment of all property liable to taxation must be made by the] board, composed’of seven assessors, or by at least four of them, it does not require that they shall keep minutes showing their action on each and every particular assessment.

From the immense amount of taxable property contained in a city of 250,000 inhabitants, such a requirement would have necessitated a record so cumbersome that it would have been practically impossible or at least absolutely unwieldy; and the law never requires impossibilities.

The statutes under consideration must have been thus construed by the assessors, whose minutes show that a quorum at least met daily from the first of January of each year until the assessment had been completed. These minutes also show what action was taken by the board on all proposed assessments in which applications had been made for reductions, or in which other objections had been made by the tax payers.

Such entries were necessary in the interest of the complaining parties in cases which would subsequently reach the courts, but similar entries were not required by law, and were not necessary in all assessments which involved no discussion, and in which the report of each particular assessor met with no opposition or objection. In the absence of proof to the contrary, the entry of such assessments in the assessment book kept for each assessment district, coupled with the fact that the rolls had been deposited in the proper office, must justify the presumption in law that such an entry was the act of the board. Act 96 of 1882, Secs. 35 and 36. But the minutes kept by the assessors are not entirely silent on the subject as argued by plaintiff.

At the end of each assessment year, and at the last meeting of the board for that year, the minutes contain an entry in the. following language or in words to the same effect, to-wit: “The assessment rolls of the several assessment districts in the parish of Orleans having been filed with the Recorder of Mortgages, * * * and there having no further business to transact, the meeting adjourned, subject to the call of the president.”

Such entries afford conclusive evidence of the fact that the entire assessment work was carried on under the supervision and control of the board, and that the assessment of each district had been subjected to its action within the requirements of the law.

We therefore conclude that there had been an assessment of plaintiff’s property for each of the years involved in his contest.

II.

His second complaint, which presents the alleged omission of an .examination of the property listed by the assessor of the district, does not affect the existence vel non of the assessment, and is therefore a matter which could have been urged only by a timely recourse to judicial proceedings, preceded by a preliminary objection made to the Board of Assessors or standing committee on assessment of the city of New Orleans. Act 96 of 1882, Sec. 27; Act. 107 of 1884, Sec. 9; Act 98 of 1886, See. 27; Shattuck & Hoffman vs. New Orleans, 39 An. 206; State vs. V. & A. Meyer, 41 An. 436; Red River and Coast Line vs. Parker, 42 An. (not yet reported).

III.

The complaint that the assessment rolls were not legally authenticated does not either involve a radical defect, and it must therefore meet the same fate as the objection last disposed of. Act 96 of 1882, Secs. 35 and 36.

IV.

It is next.contended that as taxes on movable property must be collected in the same year in which the assessment is made, it follows that taxes levied on such property in the years 1884, 1885, 1886 and 1887 can not be enforced in the year 1888.

Such-an argument would tender a premium to tax resisters, and would soon strip the State of a very great part of her much needed revenue.

The reliance is on Art. 211 of the Constitution, which reads:

“ The tax shall be designated by the year in which it is collectible, and the tax on movable property shall be collected in the year in which the assessment is made.”

The object of this provision was to authorize the collection of taxes on movable property with more celerity than that of immovable property, in view of the more perishable character of the movable property, and of the facility with which such property may be removed, concealed or otherwise disposed of to the detriment of the State’s recourse thereon for the collection of her revenue.

But nothing in the article can be fairly invoked as the basis for an argument that such taxes are remitted or released if not collected as therein indicated. We are not disposed to consider plaintiff’s contention on this point as serious.

V.

The contention that some of the property assessed in plaintiff’s name was not owned exclusively by himself, but owneo. by himself conjointly with others, involves only the correctness of the assessment, and can not be urged at this time.

VI.

The sixth ground of complaint affects the mode of collection adopted by the tax collector, and is likewise untenable. The fallacy consists in assimilating the seizure of a vessel for taxes due thereon to a proceeding in admiralty.

The right of the State to tax vessels is not contested, and it is settled that the right exists. Transportation Company vs. Wheeling, 99 U. S. 273.

Now, as contended for by plaintiff himself to be hereinafter considered, the tax on any kind of property must be enforced by seizure of the property on which the taxes are due (Const., Art. 210), itfol-' lows that a vessel on which a tax 'is due may be seized for such tax as any other kind of property, and by the same mode provided by law. Manifestly such a seizure can not be construed as a proceeding in rem, to be governed by admiralty rules of practice.

In the case of State vs. Judge Watts, 7 L. 440, it was held that an action for partition between the joint owners of a vessel was not an admiralty proceeding, a fortiori does it follow that the collection of a State tax levied on a vessel is not such a proceeding.

In the case of Avrill vs. Steamer Alabama Belle, 20 An. 432, the question now under discussion was considered, and on abundant authority the rule was formulated as follows: “The admiralty jurisdiction depends on the nature of the contract, and is limited to claims and services purely maritime, and touching rights and duties appertaining to commerce and navigation.”

The case of the Moses Taylor, 4 Wallace 411, which is the only authority invoked by plaintiff’s counsel in support of their contention on this branch of the controversy, involved the construction of a statute of the State of California, which purported to authorize State courts to entertain actions m rom in the enforcement of maritime contracts, and hence the statute was annulled to that extent by the Supreme Court of the United States. Hence they are stripped of all assistance from that source, and the conclusion is that the point can not be sustained.

VII.

But the next contention, which is their seventh point, is well founded. It is not contended on the part of the State that plaintiff, the tax debtor, has parted with, concealed or disposed of any of the property assessed, which was all movable, and on which the taxes were due.

Now it appears from the record that the property assessed to plaintiff consisted of horses, mules and other animals, of carriages and vehicles, of stock in vessels, of money loaned, of money in hand, and of merchandise and stock in trade, and that the property seized by the tax collector consisted of contents of stores composed of fruits and of furniture, including a safe, and horses and vehicles, and by a separate seizure for the same taxes a certain vessel named the il Pizatti.”

It is therefore manifest that the seizure includes property other than that which had been assessed, and that the tax collector had made no effort to comply with the provisions of Sec. 54 of Act 85 of 1888, which would be his only authority for seizing property other than that which had been assessed, and on which taxes were due.

The question as presented here came up before this court in the case of V. & A. Meyer & Co. vs. tax collector, reported in the 41st Annual, page 440, in which it was said:

“ In this case the collector, having seized other property than that assessed, and having shown no effort to reach and seize the property assessed, has not brought his proceeding within the exceptional ease of the statute and was properly enjoined from proceeding therewith.”

Under the provisions of Art. 210 of the Constitution, as interpreted,by the Legislature in Sec. 54 of Act 85 of 1888, and following the judicial exposition of both in the decision just quoted, we feel impelled to hold that the seizure by the tax collector as made in this •case can not be sustained.

In justice to the District Judge who took a different view of this point of the controversy, we must state that our decision in the Meyer case was read on the same day that his judgment in this case was rendered, and that therefore he had had no opportunity of considering our conclusions on questions which are directly involved in both cases.

Our conclusions are therefore that the judgment of the District Judge correctly maintained the legality and binding effect of the various assessments complained of by plaintiff, and in overruling the ■objection to the mode of seizure of the vessel, as falling with the rules of admiralty practice, but that it is erroneous in so far as it sustains the- seizure of property other than that which was assessed without compliance with the provisions of Sec. 54 of Act No. 85 of 1888.

The point made in argument that the State and parish taxes had not been extended upon each of the rolls to be delivered to the recorder, * * * has not been considered in this opinion for the reason that it had not been made in the pleadings.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended as follows:

The judgment is reversed in so far as it dissolves plaintiff’s injunction, which is hereby maintained on the ground of non-compliance by the tax collector with the provisions of Sec. 54 of Act 85 of 1888.

And 'it is ordered that in all other respects said judgment be affirmed at the costs of defendant on appeal.

Rehearing refused.


author: Eenner, J. McEnery, J.

text:
    No. 10,447.
    Succession of Marie Louise Cass.
    Deficiencies in the transcript, not referred to in the certificate of the clerk, which is full and complete, furnish no ground for dismissal of appeal, unless caused by the fault of appellant or his counsel, which is not established in this case.
    Where the tutor and the minors permanently leave the State and acquire a residence in another State, the tutorship is ended. In such a case the courts of this State have no jurisdiction of a suit to remove the tutor.
    The domicil of the minors being that of the tutor, the jurisdiction in which the domicil is situated is charged with the appointment of the guardian and tutor.
    If the minors own property in the State, in the absence of a guardian appointed at their domicil, the courts of this State have jurisdiction to appoint a tutor to administer said property.
    Where the minors reside and have their domicil in the State, the permanent absence of the tutor ipso facto vacates the tutorship, and it is not necessary to bring a suit to remove him from the tutorship. The judge can immediately appoint a tutor in his stead.
    APPEAL from the Civil District Oourt, Parish of Orleans. J.

      W. 8. Benedict for the Under Tutor, Appellant.

      John Bassich, Jr., for the Tutor, Appellee:

      Wliero a person removed with his minor children from the State oí Louisiana to Chicago, Illinois, with the intention o'f acquiring a domicil there for himself and them, followed by a residence in said latter State from June —, 1885, to June H, 1889 (nearly five years), and he so continues to reside; and the said person, being the father and natural tutor, has registered and voted in said State of Illinois, and he was employed there during said period, and his children go to and wore registered, during said time, in the public schools at Chicago, Illinois. Held animo et facto, ho is domiciled at and a citizen of Illinois, and the courts of Louisiana are divested of jurisdiction over him and his minor children. Rev. C. C,, Arts. ,38, 11, 16; Story’s Confl. of Laws, See. 16; 28 An. 213; Board of Health YS. South-worth, 29 An. 253; 32 An. 679; Interdiction of Dmnas, and authorities.
    Under the above circumstances a change of the father and natural tutor's domicil operated a change of the minors’ domicil. Rev. C. O., Art. 39.
    That a father and natural tutor of his minor children has the absolute right to remove from tlio State with his minor children and thus change his and tlioir domicil from Louisiana to Illinois, without forfeiting the natural tutorship, and by so removing- to divest the jurisdiction of the Louisiana courts and vest the Illinois courts with same is no longer an open question. 1 An. 523; Bailey vs. Morrison, 12 An. 686; 11 An. 566; 2 Roh. 119; 29 An. 531, 535; and 1 Martin O. S. 716; Delacroix vs. Boisblanc; 9 An. 351; N. S. 382.
    Whether or not the minors have property at the abandoned domicil (encumbered or unencumbered) to administer, does not affect the right of the natural tutor to acquire a domicil elsewhere with his minor children, and no other tutor can ho appointed by the courts of the last domicil. 3 La. 186, Roland vs. Stephen.
   On Motion to Dismiss.

The opinion of the court was delivered by

Eenner, J.

The transcript is verified by a full and complete certificate of the clerk. The motion to dismiss is based on alleged deficiencies in the transcript. 1

Such deficiencies do not authorize dismissal of the appeal, at least in advance of submission of case for decision, unless caused by the appellant.

The affidavits filed exonerate the appellant and his counsel from any fault in the premises.

Either party may, on the proper application, complete the record by certiorari.

Motion overruled.

On the Merits.

McEnery, J.

This suit was instituted in 1885, by John N. Wilberding, under tutor, against C. L. O. Oass, natural tutor of Ms minor children, to have him removed from the tutorship.

The ease was placed on the dead docket, but revived in 1889. After the institution of the suit' in July, 1885, the natural tutor permanently left the State and acquired a domicil in Chicago in the State of Illinois. When he left the State of Louisiana he carried his minor children with him, and they have remained with their father at his new domicil since they were taken beyond the jurisdiction of this State.

The natural tutor filed an exception to this action, when it was revived, alleging that he had permanently left the State of Louisiana, taking his children with him, and had acquired a residence in Illinois, and the court was therefore without jurisdiction to entertain the suit.

There was judgment maintaining the exception, and the plaintiff has appealed.

The fact of the tutor Oass having left the State and acquired a bona fide residence in Illinois is fully established. As he took his children with him the domicil of the father became the domicil of the children. The law places no restraint upon the movements of the natural tutor. He has the absolute right to remove from the State and carry his children with him, and acquire a residence in another State. 9 Mart. 543; 4 Mart. 715; 7 La. 543.

In changing residence from one parish in the State to another the tutor does not lose the tutorship. The tutor is always within the same territorial jurisdiction, and does not lose his citizenship. The new domicil in the State of the tutor becomes necessarily the domicil of the minor. State vs. Godge, 2 R. 418; 4 An. 523; 12 An. 586; 14 An. 566.

But where the tutor immigrates to another jurisdiction and acquires a domicil there, he ipso facto forfeits the tutorship under the laws of Louisiana.

By leaving the State permanently and making his residence elsewhere, he ceases to be the tutor of the minors, as though he had died.

There is-no necessity of a judgment removing him from the tutorship, and if the minors reside in the State, it is the duty of the judge to appoint another tutor in his stead. R. C. C., Art. 314; Succession of Bookter, 18 An. 157: Bailey vs. Morrison, 4 An. 523.

If a suit had been instituted by the under tutor, some of the minors being still in the State, against the tutor to remove him.for any of the causes specified in Act. 82 of 1880, amending Art. 303, C. 0., and he had moved from the State permanently, in the interest of the minors still residing in the State, the suit for removal could be prosecuted to a final judgment. The act of changing domicil could not deprive the minors who had never left the territorial limits of the State of the protection of the jurisdiction which conferred the tutor ship. So far as these minors, still living in the State and under the protection of the laws, are concerned, the jurisdiction of the court would be asserted in order to remove the tutor and appoint another to take care of their person and estate, still within the territorial jurisdiction of the State. Lyons vs. Andrews, 15 An. 685.

In the instant case the tutor has permanently left the State and has taken all of his minor children with him, and their domicil is now in the State of Illinois. So far, then, as the tutorship is concerned it is absolutely ended in this jurisdiction. It makes no difference whether it was terminated before or during the pendency of the suit, as there is now no reason why the court should appoint a tutor to take charge of the person of the minors. The courts in this State have no power to compel the father to return the minors to his former domicil, and there is no process they can issue that could bring them here so as to be subject to.this jurisdiction.

The tutorship being ended by the permanent absence from the State of both tutor, and minors, the courts here have no jurisdiction in the matter of the tutorship so far as it relates to the custody and care of the minors.

The domicil of the minors being that of the father, natural tutor, the jurisdiction in which the domicil is situated is charged with the appointment of the guardian and tutor.

The general administration of the minors’ estate is confided to the guardian appointed at their domicil. As the minors own and possess property in Louisiana, in the absence of a guardian appointed at their domicil, it may become necessary to appoint a tutor for special purposes of administering the property. Harnan et al. vs. McCauley, 9 L. 567.

When such a contingency arises there is no doubt of the jurisdiction of the court to act in the matter and appoint the tutor for this special purpose.

Judgment affirmed.