text:
    No. 983.
    Wood & Roane vs. Thompson Wood.
    It is not indispensable) tliat tho Petition of Appoal should contain a prayer for Citation on Apuolloe.
    Acceptance of service of Citation of Appeal by Counsel will be presumed to be authorized by Appellee, until the contrary is shown according to law.
    The right to filo a Transcript of Appoal within the three judicial days following the fixed return-day, has become a rule of practice, acknowledged by the jurisprudence of the State, which this Court will not disturb.
    It is not necessary that the original of the Petition of Appoal be annexed to the Transcript. A coi>y is sufficient.
    The only question before this Court in an Appeal from an Order of seizure and sale is, whether thoro was legal and sufficient evidence before the Judge to justify his fiat In such acaso, the evidence being in the Record, no assignment of error is necessary.
    Executory process cannot issue unless on authentic evidence of the debt and mortgage.
    ARREAL from the Fourteenth Judicial District Court, parish of Oua-chita. Parsons, J.
    Franklin Garrett for Plaintiffs and Appellees :
    First — Citation is a sine qua non; the evidence thereof is the sheriffs original return filed in the Supreme Court. If the law permits the counsel of an appellee resident to waive citation, the original waiver must be filed in the same court. Courts cannot presume so vital a fact. 13 An. 620.
    Second — The “return-day” does not mean two days more, or three clays. “ Within the time ” means to and inclusive of the fixed day, but not two days beyond it. 11 M. 433 : 12 M. 505 ; 1 N. S. 573.
    Third — -The original petition of appeal “ must” be filed in the Supreme Court — not a copy of it.'
    Fourth — Where appellant relies on an error on the face of the record, he must file a written assignment of the error, “ otherwise his appeal shall be dismissed.” 6 La. 143 ; 1 La. 52 ; 1 Rob. 460 ; 4 Rob. 147.
    Fifth — The courts of Louisiana are courts of statutory law, and not dependent on precedent for that law. Nothing is stare decisis in>. Louisiana but the statute, the law. Judges Martin and Bullard declare the true doctrine in 3 M. 52, and 14 L. 483 : “ It is the business of the legislature to make the law, and the duty of every court to pronounce it, as they find it.”
    Sixth — Because one judge (or a number of judges) has mistaken the-law, furnishes no legal reason for another judge or judges to commit, the same mistake, purposely, and without the excuse of want of knowledge of the true meaning of the plain text of the law.
    Seventh — If the court construe rigidly the law against the appellee*, with even-handed justice you must mete the same measure to appellant.
    Cobb & Gunby for Defendant and Appellant:
    First-Executory process cannot issue on a mortgage executed sous-seing privé. C. P. 733.
    Second — Executory process cannot issue in favor of the third holder of' a mortgage note payable to the order of the mortgagee, unless there-is authentic evidence of the indorsement. 24 An. 476.
    Third — The third holder of a mortgage note payable to two mortgagees; cannot proceed thereon unless the note is indorsed by both payees-
   On Motion to Dismiss.

The opinion of the Court was delivered by

Bermudez, C. J.

The.plain tiffs and appellees have filed two distinct, appearances, tending to a dismissal of the appeal.

In the first, they complain that they have not been cited according: to law.

In the second, cautiously reserving all rights under the motion? they say that the petition of appeal and transcript were not filed on the return-day appointed by law ; that the petition of appeal is not-annexed to the transcript, and was not filed in this Court as required by law ; that the appellant has filed no assignment of error in this Court.

We propose to examine the first ground of complaint, for it is only on the theory that appellees are in court, by a proper citation, that they can be heard to urge the grounds embodied in their additional appearance.

The question is, therefore: Have the appellees been cited to answer the appeal ?

The appeal was asked by petition, filed on the 13th of Decembers 1879, containing a distinct prayer that the plaintiffs be cited. This was-unnecessary, 4 A. 434; 12 A. 332. See, also, Seghers vs. Soulé, N. R.. O. B. New Orleans, 45 fol. 15; also, Vredenburg vs. Behan, lately decided ; also Murphy vs. Factors’ Co. N. R. (1876.)

On examining that petition, as found in the transcript, we And on it the following indorsement:

“ Service accepted and citation of appeal waived this 15th day of December, 1879.
“FRANKLIN GARRETT,
“Attorney for Wood & Roane.”

The validity of this indorsement was not admitted in the argument of the cause by the counsel whose act it purports to be.

The indorsement is found on the petition of appeal, filed on the 13th of December, 1879, and which is covered by the clerk’s certificate, which appears to be in due form, at the end of the transcript.

We cannot assume that the indorsement was not genuine; the clerk, who is presumed to know the signature of attorneys practicing before the court, would not have accepted the document with a forged signature; the counsel, whose signature the indorsement purports to exhibit, would have loudly denounced it, and properly too. There was no want of authority on the part of the counsel to make that indorsement. Acceptance of service by an attorney of record will be presumed to have been authorized by his client, unless the latter, by his own affidavit or otherwise, shows that the attorney transcended his authority. 3 A. 258 ; 9 M. 88 ; 10 M. 639 ; 12 R. 95 ; 3 A. 558; 5 A. 118 ; 10 A. 66 ; 5 N. S. 343 ; 8 N. S. 2 ; 1 A. 397.

In the present instance the petition was signed by the counsel who represents the appellees in this Court. We are satisfied that there was an authorized waiver of service of both petition and citation, on behalf of the appellees, by their attorney of record, and that the motion to dismiss on the ground of want of citation is untenable.

Passing now to the other reasons asserted for the dismissal of the appeal, we hold :

First. That the appeal being made returnable on the second Monday of June, 1880* to this Court, at Monroe, which was the 14th of June, the transcript filed on the following day was in time. The right to file a transcript within the three judicial days following the fixed return-day seepis to be impliedly accorded by law, and has almost invariably been so recognized. The jurisprudence on that point is so ancient, that it has become a rule of practice throughout the State, which, far from disturbing, we formally indorse. We deem it useless to refer to authorities, which are very numerous and admitted by counsel to exist.

Second. It was not necessary to annex the original of the petition to the transcript, or to file it in this Court. Copies have been held to be sufficient. 4 N. S.; 12 L. 465.

Third. It is not required in a case like that before the Court, in which exeouim'y process was asked and granted for the seizure and sale of real estate to pay the debt claimed, that an assignment of error be filed.

The only question presented in such a ease is : whether there was legal and sufficient evidence before the judge to justify his flat. Where the evidence in a case is of record, no assignment of error is necessary on appeal. 6 B. B8 ; 26 A. 709.

The motions to dismiss are overruled.

On the MeRits.

We find that the evidence before the judge is an act under private •signature, recorded in the office of the parish recorder ; that the notes filed with the petition are countersigned by the deputy recorder, on the -day of registry of the act, at the solitary instance of one of the subscribing witnesses.

An order for executory process cannot issue, unless on authentic ■evidence of the debt and mortgage.

C. P. 732 et seq.; H. D. p. 646, vo. Ex. Process, 1 (a) (b) p. 651, III. (a) L. D. p. 288, vo. Ex. Process, 1II. III.

It is therefore ordered that judgment of the lower court be reversed, and that these proceedings be dismissed with costs.

On Application for Rehearing.

The brie! filed on behalf of plaintiffs, on this application, condenses the able argument of their counsel on the trial of the case. The spirit and the letter of the laws, the rulings bearing upon the questions presented, have been subjected to a severe criticism on his part.

Were the argument offered on questions never before agitated, the views urged might have received indorsement, but the subjects reviewed have so long ago, and so frequently since the beginning, been presented, thoroughly discussed, and so pointedly determined, that the rules which the previous Courts have recognized have settled the practice with such solidity that it would be dangerous, probably hurtful, to endeavor to shake them. It would even be useless to do so, as they are generally received, and have perhaps supplied deficiencies, which, otherwise, might ■be claimed to exist, to the mystification of both Bar and Bench.

Our attention was specially invited to 32 A. 29. That case has reference to an extended and not to an 07-iginal return-day for the filing of the transcript. The authorities in the “report of the case,” quoted by the appellee, and by the Court, are to the effect, that the appellant is not entitled in such extension case to the three days of grace allowed when the appeal is first made returnable.

The application for a rehearing is disallowed.


source: Caselaw Access Project

license: Public Domain

text:
    No. 971.
    Robert E. Brannin vs. J. W. Womble, Sheriff, et al.
    In a suit against husband and wife, in which he takes an Appeal, whether he is acting for himself individually, or as head and chief of the Community, or as legal agent of his wife, he can stand alone in judgment and his wife is not a necessary party to the Appeal,
    when, at the time a special mortgage was granted on an undivided portion of a plantation, the mortgagor only owned the undivided portion mortgaged, the subsequent acquisition by him of the rest of the undivided property, will not render the said property subject to the exemption of the Homestead.
    APPEAL from the Twelfth Judicial District Court, parish of Franklin. Smith, J.
    A. W. Moore for Plaintiff and Appellee.
    Boatner & Liddell for Defendant and Appellant:
    . First — That the act of mortgage bearing upon an incorporeal — an undivided interest in a plantation — bore upon a class of property not falling within the terms of the Homestead Act, and hence not subject to its provisions.
    Second — That any change in the disposition or nature of the property mortgaged is inoperative as to us, and that we have the legal right to enforce the contract according to its terms. 14 An. 47.
    The value of the property sought to be exempted is far in excess of the limit fixed in the exemption law.
   The opinion of the Court was delivered by Bermudez, C. J.

On Motion to Dismiss.

Plaintiff moves to dismiss the appeal herein on the following grounds:

1st. The order of appeal is defective, in not stating in whose favor it is granted.

2d. The appeal-bond is signed by J. A. Morris, one of the defendants, and the name of Emily A. Morris, the other defendant, does not appear, either in the bond or in the order of appeal.

3d. The appeal-bond is not signed by Emily A. Morris, the other defendant, or any one representing her.

4th. As Emily A. Morris is not appellant, she is appellee, and, as such, has no interest in disturbing the judgment of the District Court.

5th. J. A. Morris can only prosecute the appeal, so far as his interest is involved, separate and disconnected from that of Emily A. Morris.

In order to test the strength of these objections, we are authorized to ascertain from the pleadings who are the parties to this litigation.

The petition avers that, under execution issued in the case of J. A. Morris and Emily A. Morris against R. E. Brannin, the sheriff has seized and is about to advertise and sell real estate which is the homestead of plaintiff; that an injunction is necessary to prevent s.uch sale, and ■concludes by asking that relief, and that the sheriff and said parties be cited, and that finally the property be declared exempt as alleged.

The answer filed to this petition is made in the names of J. A. Morris and of Emily A. Morris, his wife. They aver how and why the property is not exempt, and pray that the injunction be dissolved.

The judgment perpetuates the injunction, and orders that "John A. Morris and his wife Emily A. Morris pay costs of suit and proceedings.”

It is evident, therefore, that John A. Morris and Emily A. Morris are husband and wife, not separated in property, and that they are treated by Brannin as his judgment creditors.

Now, the amount for which judgment was rendered in their favor Is due either to Morris individually, or to the community between them, or to Mrs. Morris. In either case, Morris had a right to stand in judgment alone, and his wife was an unnecessary party. The proposition is self-evident. C. P. 1; R. C. C. 2104 ; C. P. 107.

What their becomes of the objections upon which the motion to dismiss is founded ? At one breath they vanish into thin air.

I. The motion is made in the name of defendants. This includes at least the real defendant. The appeal must always be considered to be granted to him who applies for it. It is not necessary that the name of the appellant should be mentioned in the order of appeal. If it were otherwise, the omission could not be attributable to the appellant, but ±o the Court, and the appellant could not be held responsible.

II. The bond of appeal embodies the name of J. A. Morris. It was mot necessary that it should contain any other.

III. It is signed by J. A. Morris, the only real defendant. It is not required that it be signed even by him, still less by any other.

IV. Whether Mrs. Morris be appellant or appellee, is immaterial, ■as she is not a n eoessary party.

V. J. A. Morris claims, either for himself personally, for himself as head and master of the community, or for his wife as her legal agent. Morris having a standing in court to obtain judgment, has also a standing to remove impediments thrown in the way of recovery.

The motion is overruled.

On the MeRits.

On the 1st of May, 1874, Brannin borrowed $6207 from J. A. Morris and Emily A. Morris, and secured payment by mortgage on his undivided three fourths of certain lands. On May 81, 1876, the matured debt remaining unpaid, suit was instituted via ordinaria to recover its •amount, with mortgage. Upon averments, the defendant claimed that the property, being his homestead, was exempt from seizure. Judgment was rendered on the 9th of June, 1877, recognizing the money demand and mortgage claimed, but pretermitting the homestead question. Execution having issued on the 21st of May, 1878, the sheriff, on the 27th of May following, levied it on the undivided share mortgaged. On the 17th of December, 1877, Brannin had purchased the remaining undivided fourth, until then belonging to others.

On the 17th of August following, Brannin brought the .present proceedings, averring the issuance and levy of the writ on said undivided three fourths, his acquisition of the last fourth, prior to the seizure, and, making required averments, showing that the property then exclusively his, is exempt from seizure as his homestead, he prays for an injunction to avrest the sale of it and for a judgment declaring the property free from liability for debt.

The answer in the abstract is, substantially, that the undivided portion seized is not exempt; that the status of such share at the date of the mortgage cannot be subsequently changed or affected by any act of the plaintiff, to the prej udice of the mortgage debt previously existing, without the participation of the creditor ; that the property claimed as exempt exceeds $‘2000 in value, the upper limit fixed by law; that plaintiff is the owner of considerable movable property.

After trial of the issues presented, the property in question was declared to be the homestead of the plaintiff and so exempt from seizure, •and the injunction issued was made perpetual, at defendants’ costs.

The judgment thus rendered is now before us for review.

We consider the question to be: Has the undivided share which the plaintiff has hypothecated to secure the sum loaned him, and which was liable to seizure and sale at the time the contract was formed, ceased to be encumbered, and so responsible for the debt incurred, because the plaintiff has, since the mortgage was consented, acquired the remaining undivided portion belonging to others, thus becoming the sole owner of the whole property ?

We will not inquire into the motives which induced the Legislature to adopt the Homestead Act, upon which the plaintiff places his case. It is a law of relief, which exists in almost every State of the Union, to the enforcement of which the courts will lend their aid, but in proper cases only. The reasons which animated that body on the occasion were in-pired by considerations of public policy. It is sufficient that the power to pass it existed, and that it was exercised.

In order to appreciate this case intelligently, it is highly -useful to consider and bear in mind the circumstances of fact and of law under which the contract was entered into in 1874.

The Homestead Act at that time had been in force since 1865. It had been interpreted by the highest judicial State authority, and the construction put upon it had become part of the contract. It is elementary that the laws and their exposition, in force at the date of the formation of covenants, are to be considered as having been kept in view, as-an important, a vital ingredient, by the contracting parties.

In Todd vs. Gordy, 28 A. 668, dealing with a question of homestead, under the act of 1865, the Court said, alluding to the debtor: “His creditors contract with him with reference to the character, value, and condition of his residence and adjoining land.”

It would be cumbersome to transcribe here the Homestead Act. R. S. 1691, 1692.

On the first of May, when the contract was formed, that act had received a judicial interpretation.

In conformity with the established principles regulating the effects-of exemption laws and of all laws for the benefit of debtors to the injury of creditors, the Court held that the act in question, being in derogation of common right, should be strictly construed.

Guillory vs. Deville, 21 A. 686, decided in 1869. This ruling was subsequently affirmed in 28 A. 667, at least.

The question afterward arising, in a case in which an undivided' share in real estate had been mortgaged, whether such portion was-exempt from seizure, under the Homestead Act, the Court held that it could not be comprised within the compass of that law, and could be subjected to the debt.

This doctrine was first announced in Henderson vs. Hoy, 26 A. 156, was affirmed in 28 A. 365, 608, and is a rule of property.

The act under consideration might have been framed with more-perspicuity, but its obscurity is not dangerous to those concerned, and' does not prevent it from being well understood.

It was not every one who could claim the benefit of the law; it was not every property that could be brought within its pale. The claimant was required to be the owner of the property, to occupy it as his residence, to derive support from it, to have person or persons dependent upon him for maintenance; the property was not to exceed $2000 in value; the claimant’s wife was not to own or be in actual enjoyment of property, in her own right, exceeding in value $1000. Unless all these elements concurred, the claim for exemption was to be without foundation. As was well observed by the counsel of plaintiff in his learned brief: “ When all these conditions and pre-requisites cumulate in one person and show the existence of a state of facts contemplated by the legislature in the enactment of the exemption law, then, he can, with confidence, claim the benefit of the law.”

Such was not the condition of things at the date of the contract under consideration.

The plaintiff was not in 1874 the sole owner of the property described in his petition. He owned three undivided fourths thereof, and mortgaged that share, which was then liable to seizure, for the debt. "When the sum was borrowed, it is legitimate to suppose that the plaintiff induced the lender to part with his money on the, representation that an undivided share in real estate had just been held by the highest judicial authority not susceptible of being claimed as exempt from seizure under the Homestead Act, and that, trusting and yielding to that consideration, the lender made the investment, deeming it safe and well protected.

There was then a contract legally formed, the specific performance of which was to be the re-imbursement of the money, by seizure and sale of that undivided and unprivileged share if necessary. Under this agreement, rights were created, acquired, and vested, and obligations were incurred ; R. C. 0. 1757, 3278, 3282 ; obligations which no State, not even in convention assembled, could impair or divest in the least degree, without a flagrant violation of the paramount laws of the land, which no court could sanction.

How can it be, with the least plausibility, advanced, as a sound proposition of law, that the debtor could, by any subsequent act of his, affect obligations which the State itself, in the utmost exercise of its powers, could not validly alter to his advantage and to the injury of his creditors ?

How can it be pretended that the State has delegated to one of its citizens the right of derogating from the obligations of his contract, when the State itself was powerless to do so ?

It can well be said, nevertheless, that when the parties contracted they did so subject to the contingency that might arise in the future rendering it advantageous for the debtor to avail himself of the benefit of the homestead law. . This theory was recognized in 26 A. 149, but with this remarkable difference, however, that the Court assumed to make it a necessity for the debtor to assert immunity under the act.

Where a party lends money to one who is the owner of rural property, taking a mortgage on the land, when the owner does not occupy the property as his residence, does not derive support from it, has no one dependent upon him for maintenance, and is unmarried, such lender makes the loan and accepts the mortgage subject to the contingencies that the debtor may bring the property within the meaning and purport of the act, by occupying it as his residence, by deriving support from ii> by having some one dependent on him for maintenance, by marrying a person destitute of means. He "takes his chances,” as is said in common parlance.

It was from that stan'd-point that in Euqua vs. Chaffe, 26 An. 148,, so confidently relied upon by the plaintiff, the Court held that the property in that case could be exempted under the homestead law. It was not the residence of the debtor at the time the mortgage was placed upon it. It became so afterward, prior to seizure.

A similar consideration has influenced the Court in all the cases in-pari materia in which widows, with and without minor issue, left in necessitous circumstances, claimed the one thousand dollars allowed by law to surviving consorts in penury.

In the Succession of Marc, 29 A. 415, which goes to the furthest limit, the Court held: That the surviving widow, although a former concubine, and only married a few days before her husband’s death, is-entitled to all the rights enjoyed by any other widow under the homestead law, and so would rank, and thus practically exclude altogether,, in that insolvent estate, a mere mortgage creditor, however ancient, who - had contracted with the mortgagor when he was a bachelor, and could not be, owing to his advanced age, suspected of bosoming the remotest aspiration after the felicity which usually proves consequent upon connubial life.

We are at a loss to perceive .how the theory established in 26 A.. 148 can be invoked as authority for the determination of the issue now before us. The'disparity between the two cases is glaring. The fallacy consists in viewing them as being similar in all material elements.

In that case, when the mortgage was consented the debtor was the sole owner of the land upon which a claim of exemption, under tho homestead law, was predicated. In the present instance, he was not the sole owner of the property upon which the claim is now sought to be-located.

The debtor, in such a case as is now presented to us, had agreed to a mortgage which attached to a thing upon which a homestead claim could no more be made at the time than it could be asserted had he hypothecated a ship or other vessel, which is mortgageable under our system, according to the usages of commerce.

R. C. C. 3289, 3305.

In 6 La. 214, an undivided portion of real estate having been mortgaged and the property subsequently amicably partitioned, the Court properly held : That this could not affect the right of the mortgagee,, who could proceed to enforce his claim, regardless of the partition. 14 A. 47. This doctrine was indorsed in 25 A. 397, and 31 A. 393. It would seem to flow from this theory, that if the mortgagor cannot impair the rights of the mortgagee, even by compelling him to resort to a different remedy proceeding, he can still less destroy his claim to a mortgage by asserting rights to exemption under the homestead act arising from the subsequent acquisition of the undivided portion previously belonging to others.

The conventional mortgage on the undivided three fourths could not, under any circumstance, by its own force and virtue extend to the last fourth, when purchased; how could, then, this last fourth, when acquired, and because acquired and added to the three undivided fourths and forming a unit, annihilate the mortgage on those three undivided fourths ?

Further discussion of the subject is unnecessary. Strictly, the mere statement of the proposition upon whicii this case is based carries its own refutation.

We, therefore, hold the negative of the question, and declare that the character or status of the undivided share mortgaged has not changed by the acquisition on the part of the plaintiff of the remaining fourth.

In ruling as we do, we have the satisfaction of feeling that we have based our judgment on the moral maxim of the law, that no one ought to enrich himself gratuitously at the expense ' f another. R. C. C. 1965.

The views which we have expressed dispense us from passing on the alternative defenses set up to the action.

We cannot dissolve the injunction with damages, as we do not think that this is a case in which any should be allowed. The plaintiff does not appear to have acted rashly. .His views were indorsed by the lower court; interest accrues on the claim ; under the mortgage-act the fees of the attorney employed to foreclose the mortgage are to be paid by the debtor; the costs of the litigation, from the beginning, will have to be borne by the plaintiff in this case, and will be onerous.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be reversed; and, proceeding to render such judgment as should have been rendered,

It is ordered, adjudged, and decreed that the demand of plaintiff be rejected, with judgment in favor of defendants ; that the injunction issued be dissolved ; that the writ arrested be proceeded with, and that the three undivided fourths of the real estate described in the petition and act in the suit wherein execution issued, be seized and sold in satisfaction of the .claim liquidated' in said case, and that plaintiff in this case pay costs in both courts.

Messrs. Justices Todd and Levy dissent from this opinion and decree, on the merits, and reserve the right to give their reasons hereafter.


author: Levy, J.

text:
    No. 967.
    State of Louisiana vs. M. David Johns.
    An Indictment is defective for duplicity and uncertainty and will be quashed, when, in one and the same Count, the accused is charged with the two distinct offenses, defined respectively in sections 791 and 794 of the Revised Statutes, to wit: that of stabbing any person with intent to commit murder, and that of inflicting with a dangerous weapon a wound less than mayhem.
    PPEAL from the Sixth Judicial District Court, parish of West Car- . roll. Brigham, J.
    D. J. Norwood, Ed. E. Newman, District Attorney of the Sixth District, and E. G. Hudson, District Attorney of the Fifth District, for the State, Appellee.
    David Todd and Bichardson, McEnery & Polk for Defendant and Appellant.
   The opinion of the Court was delivered by

Levy, J.

M. David Johns was prosecuted under information filed by the District Attorney in the Sixth Judicial District Court for the parish of West Carroll, in which he is charged with assault with a dangerous weapon and with stabbing one Levi C. Massingill with a dangerous weapon, with intent to commit murder, and with inflicting upon the said Massingill with said dangerous weapon a wound less than mayhem. The accused pleaded not guilty, and was tried by jury ; the jury rendered a verdict of guilty, and the accused was sentenced by the court to ten years imprisonment at hard labor in the State Penitentiary. Motions for new trial and in arrest of judgment were made and denied, and the accused has appealed.

The first and salient objection urged by the defendant, and on which he asks a reversal of the j udgment of the lower court, is, that the information under which the conviction and sentence were had is defective because of an illegal joinder of offenses therein. The information sets forth and charges as follows : That the prisoner, M. David Johns, “ did willfully, maliciously, feloniously, and of his malice aforethought, stab one Levi C. Massingill, then and there in the peace of the State of Louisiana, with a pocket-knife, the said pocket-knife being then and there in the hands of the said M. David Johns, and the said pocket-knife being then, and there a dangerous weapon, with intent to commit the crime of murder. And the said M. David Johns, at the said time and place, with the said dangerous weapon, to wit, a pocket-knife, did then and there feloni-ously, maliciously, and of malice aforethought, inflict upon the body of the said. Levi O. Massingill,'then and there being in the peace oi the State oí Louisiana as aforesaid, a wound less than mayhem, contrary to the form of the statute of the State of Louisiana in such case made and provided, and against the peace and dignity of the same.”

The crime of stabbing any person with a dangerous weapon with intent to commit murder is denounced in section 791, Revised Statutes of Louisiana, and that of inflicting a wound less than mayhem upon another person with a dangerous weapon in section 794. The crimes are separate and distinct, and different penalties attached to the several offenses. Being of the same generic class, and growing out of and connected with the same alleged act, it was doubtless competent to join these offenses in the same indictment, but the text-books and decisions of our own Court are clear that they cannot be joined in the same count. In this case the indictment contains but one count, and it cannot be successfully contended that the offenses charged are cumulative offenses denounced in the same statute. State vs. Markham, 15 An.' 498, and authorities therein cited. In the case of State vs. Eant, 2 A. 837, the Court held that where the offense charged is cumulative “ a general verdict of guilty in such an indictment would be sustained by proof of any one of the acts charged;” and in State vs. Banton, 4 A. 32, that “ the general rule is, that several distinct offenses cannot be included in one count of an indictment; it is subject, however, to numerous exceptions. The rule appears to be well established, in relation to penal statutes, that when the statute enumerates several offenses connected with the same transaction, or the intent necessary to constitute such offenses disjunctively, they may all be alleged cumulatively in one count, and in that event must be charged in the indictment conjunctively.” In State vs. Ford, 30 A. 311, it is well settled that only one substantive charge can be laid in each count. Thus it has been held, where an indictment containing one count charges the defendant with rude behavior in a meeting-house, and with disturbing public worship, these two distinct offenses joined in the same count were fatal to the indictment. 2 Mass. 163. “Two distinct offenses, requiring different punishments, cannot be charged in the same count. Such an indictment is defective for duplicity, and a conviction upon it will be reversed for error.” 1 Parker’s Crim. Rep. 481.

The duplicity and uncertainty which characterize the indictment in this'case are to our minds manifest. It may well be asked, where the two offenses, one of stabbing with intent to commit murder, and the other inflicting a wound less than mayhem, are charged in the same count, and a general verdict of guilty is rendered, for which of these crimes did the jury find the prisoner guilty ? And as one section of the statute denounced a certain offense and a certain penalty, and the other section another offense and a different penalty, under which section is the penalty applied ? The elementary principle in criminal practice and pleading, that all offenses shall be stated and charged unmistakably and with certainty, and the penalty for their violation plainly expressed, so that the accused may be thoroughly and distinctly informed and advised why and to what extent he is in jeopardy, should be rigidly adhered to, and its violation or a deviation therefrom would involve the upheaval of our settled criminal jurisprudence.

As the indictment is held by us to be defective, as above stated, and as these defects are fatal, it is not necessary to consider the other objections and pass upon the other questions presented in the brief of counsel of the accused.

For these reasons, and adopting the precedents of this Court in case of State vs. Palmer, recently decided by this Court, and State vs. Curtis, 30 An. 814, State vs. Morrison, 817,

It is therefore ordered, adjudged, and decreed that the verdict of the jury be set aside, and the judgment and sentence of the court be annulled, avoided, and reversed, and that the information under which the-accused was prosecuted be quashed, and that M. David Johns be detained in’custody to await the further action of the District Attorney and the grand jury of the parish of West Carroll, and until discharged in the due course of law.


author: Bermudez, C. J.

text:
    No. 978.
    State of Louisiana ex rel. J. M. Cientat vs. the Judge of the Twenty-Fourth Judicial District Court.
    There is no doubt that a District Court, after improvidently granting a Suspensive .Appeal,, ■where none should have been granted, may rescind the Order and issue Execution on the judgment appealed from.
    From the rescinding action of the Court below, tbe Execution debtor woitld be entitled to relief in this Court bv Appeal; and upon refusal of such Appeal, he would be entitled to a Mandamus and Prohibition.
    His proper remedy, in such oases, is by Injunction.
    But he is not entitled, in an original application for relief in this Court, to the "Writ of Prohibition to arrest an Execution said to have been illegally issued.
    .APPLICATION for Writ of Prohibition.
    Branch K. Miller for Relator.
    John S. Tully and Sambola & Dueros for Defendant.
   The opinion of the Court was delivered by

Bermudez, C. J.

The relator applies for a prohibition to prevent the defendant judge from executing against him a judgment rendered by the court over which the defendant presides.

His grounds of complaint are :

That a judgment having been so rendered against him, he took a suspensive appeal from it, furnishing a proper bond and surety therein, returnable to this Court, in New Orleans, on the first Monday in November next, and that since the appeal was taken and perfected, execution has issued against him for the satisfaction of the judgment complained of, and thatj unless a prohibition issue to the District Court to prevent further proceedings, he will sustain irreparable injury.

It appears from the face of the proceedings that the judgment was rendered on the 3d of April, 1880, and that the order for a suspensive appeal was made on the 31st May following, more than ten days, it is claimed by the appellee, a defendant herein, after the adjournment.

The first question which presents itself is one of jurisdiction.

The petition for relief does not affirmatively show that the matter in dispute in the ease in which the judgment appealed from was rendered exceeds one thousand dollars, exclusive of interest.

It is true that the Distribt Judge made the order of appeal on a petition w! ich declares that the matter in dispute exceeds the amount required by the Constitution to give this Court jurisdiction ; but that petition does not state that this amount was that claimed in the suit in which the judgment appealed from was rendered. The relator was condemned as surety on an injunction bond. It may well be that he considers that it is sufficient to vest this Court with jurisdiction over his cause of complaint that the bond, which may be for less than one thousand dollars, was furnished in a case in which the amount in dispute exceeds one thousand dollars, exclusive of interest. In this he would be gravely mistaken. The insufficiency of^the averment necessary to show prima facie that we have jurisdiction would have justified us in withholding the restraining qjder asked, though we might have granted a rule to show cause, which would have proved a lame relief, under the circumstances, for the question of the immediate issuance of the restraining order is one of vital importance to the relator.

Unwilling, however, to decline the application on that ground, which may be deemed too technical, and assuming that the case in which the judgment complained of was rendered is one in which the matter in dispute exceeds one thousand dollars, the next question presented is, whether we can determine, in the form presented, the character of the appeal granted the relator.

The rule is well established that when an order of appeal, particularly a suspensive appeal, is made, and the required bond has been furnished by the appellant, the lower court ceases to have any further control over the case, the moment that the appeal is perfected, save to test the sufficiency of the bond and of the surety. The case passes from the court of first instance to the appellate court, and the first court must transmit the transcript to the latter court, that the judgment may be reviewed. 10 R. 152, 8 A. 434, 17 A. 186, 21 A. 44, 114, 24 A. 600, 27 A. 684, C. P. 575, 4 L. 205, 7 L. 448, 15 L. 391, 13 L. 574,1 R. 527.

Whether a court of original j urisdiction, after granting a suspensive appeal, when none should have been allowed, either because the delay within which it should have been asked has elapsed, or because the case is unappealable, can recognize its error, rescind its order, and prevent execution to issue, is a question that should present no difficulty.

It cannot be claimed with any plausibility, that an ex parte order of this description, improvidently made, can defeat for any time the right of the judgment creditor to an execution in satisfaction of his liquidated demand. 4 A. 3 ; 5 A. 366, 518 ; 12 A. 175 ; 21 A. 44, 114, 55.

The appellant, in case of error by the lower court, which must primarily determine the question, would be entitled to relief in this Court in a proper case and proceeding, when the matter falls within our jurisdiction. 21 A. 114, 44. The case before us is not an appeal, but an original application for relief. The last question presented is whether the relator has placed himself in a condition to claim relief at our hands.

His petition does not set forth with sufficient fullness the circumstances in which he may be placed, and which if expressed might entitle him to protection. The Court cannot supply the deficiency caused by unaverred facts.

He does not aver that the District Judge has rescinded the order made by him for a suspensive appeal and directed execution to issue, which may be the case either because the appeal was asked too late, or because the case is not appealable, or because the bond is not sufficient, or because the surety was not good and solvent as the law requires.

Had the judge so acted and the relator felt aggrieved, his remedy would have been a suspensive appeal from th^rescinding order, and in case of a refusal on the part of the judge to grant the same, the relator could have asked us for a mandamus coupled with a prohibition, on a proper showing. 21 A. 114, 44 ; Vredenburg vs. Behan et al., 32 A.

In the absence of any averment of the kind, we are left to infer that the execution alleged was issued by the clerk at the instance of the judgment creditor.

In such a case the relator would be entitled to an injunction on proper grounds to arrest the process. His right would be to apply for it to the District Judge, but. he does not allege that he has taken any such steps before the lower court, and that any petition of the sort was declined, and that in consequence he will suffer injury from the execution of the writ charged with having been illegally issued. He asks us to exercise an original jurisdiction which we have not, and which pertains exclusively to the lower court, that is, to arrest an execution said to have been illegally issued. His remedy is to apply to that court for an injunction. 21 A. 114, 44 ; 12 A. 175 ; 5 A. 366.

Were the lower court, on a proper application, to refuse such injunction, the relator would not be left remediless, but it cannot be expected that we should intimate the mode of relief.

The views expressed in this opinion will, we trust, harmonize the scattered and apparently contradictory jurisprudence of the State on the questions now decided.

It is ordered that the application for a prohibition be refused at relator’s cost.


author: Bermudez, C. J,

text:
    No. 982.
    F. P. Stubbs vs. J. E. McGuire, Sheriff, etc.
    This Court has no jurisdiction of a case in which the constitutionality or legality of a tax of $50, is not in question, hut only the legality of the mode of payment of said tax-
    APPEAL from the Third Ward Magistrate’s Court, parish of Ouachita. Trousdale, J.
    Stubbs & Stillman for Plaintiff and Appellee:
    First — The present license law repeals all parts of-former license laws which provide for the seizure and sale of property to enforce payment of licenses.
    Second — There is no law now in force which authorizes such seizure and sale.
    Third — If there is such a law, article 210 of the Constitution prohibits such seizure and sale until the expiration of the year 1880.
    Fourth — Warrants for the salaries of constitutional officers are receivable for licenses for the year in which the salaries are earned.
    F. G. Hudson, District Attorney, for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J,

The defendant, who is sheriff of the parish of Ouachita, and ex officio tax-collector for the State and parish, having given plaintiff, who is a licensed and practicing attorney, residing in said parish, a notice requiring him to pay him fifty dollars in lawful money for Ms license for the year 1880, due the State for the practice of his profession, the plaintiff tendered him in payment a warrant for fifty dollars, duly issued to a constitutional officer for part of his salary for the same year, contending that under act 48 of 1877, such warrant is so receivable. The sheriff declined to settle in that mode; considering that it is made by law his duty to receive nothing but lawful money in satisfaction of such claim.

Complaining that the sheriff and ex officio State and parish tax-collector threatens and is about to resort to summary means of coercion, which would illegally interfere with and prevent the further conduct of his business, the plaintiff obtained, on showing, from a justice of the peace in the city of Monroe a preliminary injunction against the sheriff and tax-collector. After issue joined and .trial, judgment was rendered perpetuating the injunction and condemning the defendant to receive said warrant in payment of said license.

From the judgment so rendered the defendant has appealed.

Tne question which presents itself, at the threshold of this litigation, in this Court, is one of jurisdiction.

The Constitution of 1879, article 81, extends the jurisdiction of this Court, among other instances, “to all oases in which the constitutionality or legality of a tax shall be in contestation, whatever may be the amount thereof.” * * * * ,

The constitutionality or the legality of the license in the case before us, if it be a tax, is not at all contested. On the contrary, the plaintiff in injunction avers that he has offered to pay the license.

We have read attentively the able and interesting brief of the District Attorney on this subject of jurisdiction, but, while we give full credit to the ingenuity which it displays, we cannot concur in its conclusions, so as to construe the constitutional article to mean, unqualifiedly, that our jurisdietion extends to “ all cases in which the constitutionality of any tax-law, or impost-law, whatever, is in contestation, and to all cases in which the legality of any tax, toll, or impost, as demanded of the tax-payer, is in contestation, whatever may be the amount thereof.”

It is true that there is a difference between the article under consideration ahd that which existed on the same subject matter in the former Constitution. That difference consists in the enlargement of the powers of revision of this Court of a judgment in a case in which the constitutionality or legality of a tax is involved, by permitting the Court to consider both the law and the facts of the case. The change may have been made to cover the ruling in 27 A. 722, in which the Court held that the Court would not pass upon the facts in a case in which the validity of a tax was agitated. Be that so ; but, from this circumstance, it cannot be inferred that the jurisdiction of this Court was extended beyond the power to pass upon the legality or constitutionality of the tax in contestation. It merely authorizes the Court to consider whether, under the law and the facts, the tax is or not constitutional or legal. We must, without further light, treat the ruling in 21 A. 751 as made in a case within the ordinary appellate jurisdiction of the Court, in point of amount and otherwise.

The difficulty which arises is as to the mode in which license may or must be paid.

We are at a loss to see how, even if we had jurisdiction over the case, a decision merely on the mode of payment could assist in determining the constitutionality or legality of the license, in a case in which such constitutionality or legality does not occur, but, on the contrary, is admitted. We consider that we have no jurisdiction over the case.

It is therefore ordered that the appeal herein be dismissed, and the case stricken from the docket of this Court.


author: Poché, J. Todd, J.

text:
    No. 977.
    State of Louisiana vs. Green Red, alias Green Redding.
    Acfe No. 7 of the Legislature of 1880, providing for the fixing of the first terms of the District Courts under the Constitution of 1879, construed as suspending, for those terms of Court che operation of that part of Act No. 44 of 1877, which required the drawing of the jury fifty days before the session of the Court.
    This Court cannot take cognizance of objections urged by the Appellant for the reversal of the verdict oí the jury and judgment of the Court below, unless those objections have been incorporated in a Bill of Exceptions,'which must be precise and explicit, and not to be aided by inferences, in default of which the presumption is that no error has been committed.
    APPEAL from the Fifth Judicial District Court, parish of Ouachita. Richardson, J.
    E. G. Hudson, District Attorney, for the State, Appellee.
    J. T. Strother for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

Green Red, who has been indicted, convicted on a charge of murder, and sentenced to death, seeks on appeal to reverse the verdict of the jury and the judgment of the lower court, on the following grounds:

First. That the grand jury which found the indictment, and the petit jury which tried the case, were taken from a venire drawn in less than fifty days before the session of the court at which the accused was indicted and tried, as required by Act No. 44 of 1877.

Second. That the judge of the lower court erred in ordering tales-men jurors to be summoned for the trial of the cause, for the reason that twelve jurors of the regular venire, empaneled to try another case, were in an adjoining room deliberating on a verdict, and that, therefore, the panel was not exhausted so as to justify the summoning of tales-men.

Third.- That’ the accused objected to the introduction in evidence of his voluntary declaration made before, and taken down in writing by, the parish judge, acting as committing magistrate, because the document did not show affirmatively by the certificate of the magistrate that the accused had made his declaration without threats of punishment, hope of reward, or other improper inducements.

1. The accused urged his objection to the manner of drawing the jury by a motion to quash the indictment, and by a challenge to the array. The venire shows that the jury was drawn by virtue of, and in obedience to, Act No. 7 of the Legislature, approved February 20th, 1880, which provides for a term of the District Court for the parish of Ouachita, to be held on the first Monday of April of this year, and requires that it shall be a jury term ; it further requires that a jury be drawn for that term, according to existing laws.

Now, as Act No. 44 of 1877 was the only law then existing directing the mode of drawing juries in the State, and because that act requires the performance of that duty at least fifty days before the next term of the District Court, counsel for accused contends that the jury, in this case drawn on the 27th of March, for a term of the court, and to begin on the 5th of April following, was illegal and null, as the drawing thereof was in violation of that provision of Act No. 44 of 1877.

The Legislature, in enacting a law on the 20th of February, ordering terms of court to be held in certain parishes in this State on the first Monday of April following, knew that its act could become operative in any and all of these parishes only twenty days after promulgation, and that no drawing of juries thereunder could take place fifty days before the session of such courts, and yet the act positively orders the drawing of juries for all such terms of court.

We cannot adopt an interpretation or construction of the law which places the Legislature in an attitude of stultifying itself by requiring the performance of acts rendered impossible by the very nature of things.

Such a construction is repugnant to all precedents, and condemned by our jurisprudence,' which discountenances an interpretation which would defeat the object of a statute.

The evident object of this statute was to establish terms of the District Courts in the State, to begin with a jury term for certain parishes on the first Monday of April of this year.

The interpretation contended for by counsel for the accused would have defeated that object of the statute which required a jury term of the District Court in Ouachita parish on the first of April last.

We are, therefore, compelled to conclude that the Legislature intended for those jury terms of court to suspend the operation ot that part of the act of 1877 which required the drawing of the jury fifty days before the session of the court.

If any doubt could remain on the mind, it is easily dispelled by a mere reference to the repealing clause of the act, which repeals all acts in conflict therewith. The objection to the legality of the jury is, therefore, untenable, and we rule that the jury was legally drawn in compliance with Act No. 7 of 1880.

The other two grounds of error are incorporated in a document purporting to be a bill of exceptions, which is signed by the District. Judge, iu which it is related that counsel for (he accused objected to the swearing in of talesmen as jurors, on the ground that the panel was not exhausted, and that there were other jurors of the regular venire deliberating on a verdict in another cause.

It is further related in that document that the accused objected to the introduction as evidence of his voluntary declaration taken before the parish judge, because the certificate of that officer faded to show that no threats, promises, or other inducements were used to draw out the declaration.

Bnt nothing in the instrument or in the record informs us whether the objections of the accused were sustained or overruled by the judge ; neither does the document contain any of the reasons given by the judge for his ruling, as it may have been.

And, besides, the voluntary declaration objected to was not attached to tlio document ttyled a bill of exceptions, and is not evon to be found in the transcript.

Eor all of which reasons wo can take no cognizance of the objection urged by the accused in this form, which objections should have been incorporated in a bill of exceptions, which must be precise and explicit, not to be aided by inference, in default of which the presumption is that no error has been committed. We see no error in the proceedings, and we shall not disturb the verdict of the jury and the sentence of the court. ■ .

It is therefore ordered, adjudged, and decreed that the verdict oft->the jury be maintained, and that the judgment of the lower court be affirmed.

Concurring Opinion.

Todd, J.

I concur in the decree just rendered ; but I think that the objections made to the bill of exceptions taken to the ruling of the judge <a quo touching the talesmen jurors are not tenable. The very fact that .-such bill was presented and signed is conclusive to my mind that the (ruling of the judge was adverse to the accused. The consent of the •opposite counsel must be presumed, considering the silence of the bill •••as to any objection made by tliem, and the fact to be presumed, that the bill was read and signed in their presence and in open court. I ’think, too, that it is sufficient that the bill should show the objections «nade to the motion filed, and that the judge can, if he chooses, add the treasons for his ruling, but that it is not sacramental that the reasons for the ruling should appear in the body of the bill, where the objections ■are distinctly set forth. I concur in the opinion as to that part of the 'bill that relates to the voluntary declaration of the accused on his preliminary examination, and I concur in the decree because I think there was no force in the objections made touching the empaneling of the Salesmen jurors.


author: Bermudez, C. J. Levy, J. Bermudez, C. J.

text:
    No. 980.

      W. J. Q. Baker vs. Henry Frellsen. W. J. Q. Baker vs. T. P. Richardson, Sheriff, et al. Consolidated.
    JL Motion to dismiss the Appeal will be denied when the reasons urged, by Appellee require an investigation into the facts and merits of the case.
    ■a'A compromise between creditor and debtor, by which the amount of the debt, the terms and mode of payment, the rate of interest and the nature of the securities are changed, does not effect a novation, unless the intention of the parties to novate the obligation is particularly expressed.
    Xhe surety on an Injunction bond is discharged by an agreement entered into, without his consent, by the Plaintiff and Defendant, to have the case tried at chambers and decided after Court term.
    *2Tudgment on the Exception of Ho cause of action, when it maintains the Exception, constitutes Res judicata as effectually as if rendered on the merits of the case.
    APPEAL from the Fifth Judicial District Court, parish of Ouachita. F. P. Stubbs, Special Judge.
    W. J. Q. Baker, propria persona, and Joha T. Ludeling for Plaintiff sand Appellee:

      The parties, by their Compromise, have novated the original debt, and the vendor’s privilege, which secured it, was not transferred to the new debt. Jacobs’ Law Dictionary, vol. 4, p. 279. C. C. 2189 et seq-Pothier, vol. 1, p. 438, No. 546 et seq. Domat, 2305.
    Plaintiff is entitled by law to his homestead. 28 An. 333.
    Boatner & Liddell for Defendant and Appellant:
    First — When it appears that the husband and wife in a former injunction, decided adversely to them, each claimed the homestead, the plea of res adjudicata will be maintained when the husband alone, in a second injunction, issued on the same judgment, again claims a homestead on the identical land. 9 An. 208 ; 12 An. 613 and 199 ; 30 An. 230, 441; 5 La. 244.
    ■Second — In a suit to annul a judgment from which an appeal has been taken on the ground of error and fraud, patent in the record, the plea of lis pendens will be maintained against the suit to annul when the petition in the suit to annul sets forth the same grounds as the petition of appeal. The remedy is by appeal. 30 An. 793; 23 An. 147 ; 9 An. 197, 428 ; 17 An. 726.
    Third — In order to annul a judgment for fraud, the evidence must be clear and positive. 11 La. 139.
    Fourth — When it appears that the debt, the basis of the judgment, is for the purchase price of the property, and when that debt is secured by mortgage retained in the notarial deed to secure the vendor, or any bona fide owner of said notes, the judgment of the court may properly decree the recognition and enforcement of the special mortgage and vendor’s privilege, unless it is specifically renounced.
    Fifth — The renunciation of the vendor’s privilege will not be presumed ; its renunciation must be clear and explicit.
    Sixth — Though the vendor’s privilege do not exist, yet if it appear that the debt for whi?h the property is pursued is for the purchase price thereof, the debtor cannot maintain a homestead on the property. 28 An. 415,183.
    Seventh — Novation is not presumed ; the intention to novate must be clearly deducible from the terms of the agreement.
    Eighth — When a debt is merely divided into installments and the interest thereon reduced, there is no novation.
    Ninth — The testimony of the attorney who drew up the judgment is properly admissible to disprove an allegation of fraudulent intent in writing up said judgment.
    Tenth — One pursued by the innocent third holder of notes representing the purchase price of a piece of property will .not be allowed to introduce evidence to destroy the title of his vendor and his own in order to defeat said claim. C. O. 2185-7-9-90 ; Pothier (559); 3 An. 600 ; 4 An. 281; 9 An. 228; 29 An. 841; 26 An. 691; 13 An. 549 ; 10 Rob. 418.
    Eleventh — -When an injunction is manifestly taken without good ground^ and for the purpose of delay, it will be dissolved with damages.
    Twelfth — When the parties to a suit enter into a written agreement that the judge shall decide the case in chambers and file his judgment in the clerk’s office, and said agreement is spread on the minutes of the court, a judgment rendered in accordance therewith, as between the parties, will be valid.
    Thirteenth — Where a judgment contains a stay of execution, the judgment debtor is in default by the terms of the contract if he fails to pay the installment according to the terms of the judgment.
    Fourteenth — It is not to be presumed that a clerk would issue an execution except when legally authorized to do so.
    Fifteenth — The judgment debtor who enjoins the execution upon the ground that it issued prematurely must allege and prove the facts necessary to sustain his defense.
    The opinion of the Court on the l\lotion to Dismiss was delivered by Bermudez, C. J.
    The opinion of the Court on the Merits was delivered by Levy, J.
    The opinion of the Court on the Application for Rehearing was delivered by Bermüdez, C. J.
   On Motion to Dismiss.

Bermudez, C. J.

The plaintiff, Baker, having, in aid of a suit previously instituted, obtained an injunction to arrest a suit against him, furnished the bond required, with John T. Ludeling as surety therein.

Parties plaintiff and defendant being desirous of having the suit determined, agreed that it could be heard and decided, at chambers, after the adjournment of the court and term time.

The document signed to that effect was noted on the minutes. It was not signed by the surety on the bond for the injunction.

In furtherance of the agreement, the case was taken up, decided, and the judgment was signed by a judge ad hoc at chambers, without any knowledge or participation on the part of the surety.

The judgment was, that the injunction be dissolved without damages. From this judgment an appeal was taken by petition, and citation was served on the surety on the injunction bond. He now moves this Court to dismiss the appeal, because he was no party to the consent that the ¡ease be tried at chambers, and is not bound by the judgment so rendered.

0£ whatever relief the irregularities charged may be to the surety, they cannot be inquired into on a motion to dismiss, as they necessitate ■an investigation into the facts of the case as presented by the appeal. Tlie validity of those objections will be tested and passed upon when the merits of the case will be considered and determined.

Motion overruled.

On the MeRits.

Levy, J.

These two suits are consolidated, and the issues involved :are, in the main, common to both.

In suit, 1415, vs. Frellsen, the plaintiff alleges that in the judgment rendered in suit No. 1281 (Nos. 1219 and 1358 being consolidated therewith) the following words were fraudulently interpolated and interjected, with the intention to defraud and damage him, and he prays that said judgment be amended and set aside on account of error and fraud, and that the execution issued thereon be quashed.

In suit No. 1416, plaintiff averred that suits No. 1219 and 1358 had been merged in suit No. 1281, and that the judgments therein and the debts mentioned in them had been novated. He further avers that the mortgage recognized in the judgment in No. 1281 is the only security which the judgment creditor has for the payment of the debt created by the agreement entered into between him and Erellsen, said creditor, on the 6th of January, 1877-; that “through error and fraud” the words' “and vendor’s privilege” were incorporated and interpolated in said judgment in suit No. 1281; that if the debt, created by the agreement, is not a new debt, it is usurious, because to make it up all the interest of the old debt to the first of January, 1877, was added to the principal to make the aggregate of the new debt, and therefore the interest is usurious ; that he has not been put in default. He further alleges that he has already instituted an action to annul said judgment, and that he is entitled to a homestead on 160 acres of the plantation,- to include bis residence, and that no vendor’s privilege or debt due for the price of 'said property exists thereon. He prayed for an injunction restraining the sheriff from proceeding further with the execution and with sale of the property, and that the judgment in suit-No. 1281 be annulled for error and fraud.

We had intended to discuss at some length the various questions raised by the plaintiff and involved in this case, but a reference to the •record, in which we find the able and lucid opinion and reasons for. judgment of the special judge by whom this case was tried in the lower •court, dispenses us therefrom. In that opinion he says: “lam inclined to think that the plea of res adjudicata of defendant is good as to all the allegations and issues except those upon which the nullity is demanded, but prefer to examine the case on its merits as presented. Plaintiffs theory is that only the vendor’s lien can defeat this claim to a homestead. That though he purchased the property from Pargoud and gave a special mortgage to secure the payment of the price, a part off which was evidenced by the notes held by Frellsen, yet that the original' debt he owed Frellsen was extinguished by the compromise of 6th January, 1877, and with it fell the vendor’s lien, as it was not expressly mentioned in the act of compromise.” As to the plea of novation, and whether the old debt was extinguished, he says: “ Novation is not presumed ; the intention to make it must clearly result from the terms of the agreement. C. C. 2190. Unless the intention evidently appears, a. novation is not to be presumed. So, if subsequent to the contracting of a debt, some act passes between the debtor and the creditor allowing a further time, or appointing a different place for payment, or authorizing-a payment to some other person than the creditor, or agreeing to take something else in lieu of the sum due, or by which the debtor engages to pay a larger sum or the creditor to accept a smaller sum ; in these and similar cases, according to the principle that novation is not to be presumed, it should be decided that no novation had taken place and that the parties intended only to modify, augment, or diminish the obligation, and not to extinguish the old debt and substitute a new one,, unless the contrary is particularly expressed. Pothier on Obligations, par. 659.

“In this case Frellsen had notes of plaintiff, the consideration of which was the Limerick plantation, specially mortgaged to secure them. He had a judgment recognizing the validity of his debt and mortgage, and from the nature of the debt the privilege of the vendor. In making-the transaction of January 6,1877, 1 cannot find any express waiver of this right, nor does it appear evident that Frellsen intended to extinguish, give up, or discharge his lien, mortgage, or debt. On the contrary, from reference, more than once, in this contract, to the notes as being part of the purchase price, it is evident that the intention was to perpetuate every security he had for the payment of his debt.

12 Rob. 219, Citizens’ Bank vs. Cuny et al.

“ 3 An. 600, Bonn vs. Mahle.

“ 4 An. 281, Short vs. City of New Orleans et al.

“ 9 An. 228, Patterson vs. His Creditors.

“ I am forced to the conclusion that by the act of compromise the-debt of Frellsen was not novated, and therefore hone of its accessories' were extinguished or impaired.

“That the privilege of the vendor, as it springs from the nature of the debt, exists by force of law, and need not be expressly stipulated, it®, renunciation must not be doubtful, but the language must clearly imply that the creditor intended to give up this right. Having arrived at this, conclusion, it no longer remains an important question as to whether the words ‘ vendor’s lien, etc.,’ were properly or improperly used in the-judgment. As there was no novation and the right springs from the nature of the debt, it is immaterial whether it be expressed in the judgment. The demand for the nullity of the judgment in 1281 must therefore be rejected, and the injunction as a necessary result must be di&r solved.”

For these reasons, the special judge dissolved the injunction, but. refused to allow damages.

We concur in the opinion and reasons which we have quoted above..

The same issues being involved, and the same parties being before-the Court in the case decided by our predecessors of this Court as im this, we think the judgment rendered on the appeal in which the claimi for homestead was set up by the plaintiff herein is to be regarded as res: adjudicata upon that question.

We are also of opinion that the recognition of the vendor’s privilege, as complained of by the plaintiff, is not ground for annulling the-judgment in 1281. The incorporation of these words gave the defendant herein no greater rights over the property seized than if they had been omitted. The homestead right was affected by the debt for the-purchase price, and a debt for the purchase price created by operation of law a privilege upon the property affected bysuch debt. The insertion in the judgment, by the attorney who drew it up, in no manner added to the rights of the creditor or took any thing away from those of the debtor. The other allegations in the petition of plaintiff for the injunction in No. 1416 are without weight, and do not justify the perpetuation of the writ.

The motion to dismiss, made by J. T. Ludeling, the surety on the-injunction bond, having been disposed of as to its form, we proceed to-its consideration on the merits. The surety on an injunction bond ha® incurred obligations, but has certain rights which cannot be taken away from him without his consent. He is entitled to see the case tried according to law; a judgment rendered on the confession of the principal of his bond would bind the principal, but would not affect the surety. The case in which the bond is furnished should be called and disposed! of in open court, under the forms and with the delays prescribed bylaw-His obligations must be strictly but legally construed. They consist la satisfying any judgment which the principal may be condemned to pay. ■It cannot be supposed that it ever entered the mind of the lawgiver and. of sureties in such cases that a judgment rendered on the confession o£ the principal, or without his having been regularly dealt with, could saddle a responsibility on the surety on such bond. We think that the omission to have proceeded regularly in obtaining the judgment rendered and to have ventured its validity on the agreement mentioned, •entitles the surety, made appellee, to ward it off, and that he cannot be held responsible and liable on a judgment thus obtained. The point presented is a novel one, but is not, when tested by the rules of clear reason and justice in the absence of any express law or formal jurisprudence on the subject, of difficult solution.

So far as the plaintiff in injunction is himself concerned, the facts of this case, as shown in the record, in our opinion call for the imposition of damages in the dissolution of the injunction.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be affirmed so far as it dissolves the injunction at plaintiff's costs and rejects the demands of the plaintiff, W. J. Q. Baker ; and it is further ordered, adjudged, and decreed that the said plaintiff, W. J. Q. Baker, be condemned to pay, for his wrongful injunction, damages to the amount of twenty per cent on the amount of two thousand dollars, the alleged value of the homestead claimed, and that said plaintiff, ap-pellee, do pay the costs of this and the lower court, and that there be judgment in favor of J. T. Ludeling, the surety on the injunction bond, with his costs.

ON REHEARING.

Bermudez, C. J.

We have again given our attention to the questions of novation, of res judicata, of homestead, and of the surety’s liability, involved in this case.

We do not consider that the circumstances of the case, as the record has brought them up, show that any novation has taken place, as claimed by the plaintiff. The transaction in no way altered the essence of the identity of the original contract, although it may, to some extent, theoretically indifferent, but practically significant for the plaintiff, have modified the nature of the contract, as to time and mode of enforcement of the payment of the debt. The act of compromise is perfectly reticent touching any express or even implied novation, either as to creditor’s debt, or securities, or debtor, under any phase under which the case can be viewed.

We cannot infer, from the act of compromise, that the vendor’s privilege was either intended to be or was actually abandoned and waived. It is a guarantee which attaches so tenaciously to the nature ,o£ the contract of sale on term, that the Roman law says that it adheres •to the very entrails of the thing, adheret visceribus rei. It exists-until it has been formally and unequivocally relinquished. See the Bacchus ■case, 4 A. 313.

The question of privilege or no privilege of vendor js practically of no significance in a case like'the present one, in which a claim to a homestead is asserted where the purchase price is unpaid.

Much stress is laid for .a rehearing on the argument that the judgment of the previous court (Spencer, J.), dissolving with damages the injunction issued at the instance of Mrs. Baker and of her husband, does not constitute res judicata, because the suit was dismissed on an -exception of “no cause of action,” and that such dismissal does not constitute res judicata.

Exceptions of this class are of two sorts : 1st, those which tend to the dismissal of-a suit because the allegations essentially necessary to warrant on proof the judgment prayed for are wanting ; 2nd, those which tend to the dismissal of a case in which, although all the essential allegations have been set forth, the judgment asked, even on full proof of the averments, cannot be rendered at all] unless in violation of law. In the former ease, it is within the sound discretion of the court to permit an amendment of the petition. It is generally exercised in favor of the amendment.

In the latter case, where it is found from the face of the petition, all of which must be taken for Irue, for the purpose of the exception, that the allegations, because self-destructive and irremediably insufficient, would not entitle the plaintiff to the relief sought, the exception is sustained, and the petition is usually either dismissed or rejected. In the first case, when the word “ dismissed ” is used instead of the word “ rejected,” it will be construed as meaning the latter, when sufficiently ■explained by the pleadings or by the reasons for judgment.

The exception of no cause of action, when’ affirmed, constitutes res judicata as effectually as if judgment had been rendered on the trial of the merits, after a full hearing of contradictory evidence on behalf of both parties. If it did not so mean, and was not so construed, then it would amount to a nonsuit, and the plaintiff would have authority to institute new proceedings. Why permit him to repeat uselessly allegations which'if proved would not entitle him to recover?

In the case invoked by the defendant as constituting res judicata, the main question presented was : Is the plaintiff in that case, and' in default of her, her husband, entitled to have the property seized for the payment of a debt secured thereon declared exempt as a homestead ? The petition in the case shows that the consideration of the judgment on which execution had issued, and which the injunction had arrested, was the purchase price of the identical property in question, such price remaining unpaid. The court held, in formal language, that where the purchase price of the property claimed as a homestead was not paid, the property will not, under the homestead law, be declared exempt from seizure and sale for the satisfaction of that purchase price. As a rule, courts, when dismissing a suit for want of sufficient proof in support of sufficient averments, should add the words as in case of nonsuit, lest the omission may be a cause of contrariety. The judgment sustained the exception of no caluse of action, and expressly rejects (C. P„ 319) the demand, and because the demand is thus disposed of and a writ of injunction issued on an inadmissible and illegal demand, which, on its face is discountenanced and disallowed, the Court dissolves the injunction with damages. This judgment terminates and set at rest forever the differences of the parties in relation to the matter agitated in the case before us, which is the homestead matter. C. P. 319 ; 5 N. S.. 664; 8 L. 187 ; 4 A. 231.

In deciding this case on its merits, we have enunciated clearly enough the same principle, that where the purchase price of the property claimed to be exempt under the homestead law has not been paid, the exemption will not be recognized. The non-payment of the price of sale is a good cause for the rescission of the contract. It is not until the price has been paid that title of ownership unconditionally vests in the purchaser. It is not, until then, that he can claim to have the property exempted from the payment of his debts, as his homestead.

In the case before us, the circumstance which existed when the first suit was brought, in which the judgment now pleaded as res judicata was rendered, remains unchanged.. The purchase price has not been paid. The property, therefore, even if the first case and judgment in it had no existence, could not be pronounced as exempt, were it only for that reason. We consider that the judgment maintaining the plea of res judicata is correct. Interest reipublicce ut sit finis litium.

We give credit to the ability with which the matter was presented from a different stand-point, but regret our inability to change our views in a case in which the plaintiff in his advanced age and troubles is entitled to sympathy. The letter and spirit of the law are, that the land unpaid for shall not be claimed as a homestead by the purchaser, unless the purchase price shall have first been paid. The principle of the moral law is, that no man can be permitted to enrich himself gratuitously, at the expense of another, against the latter’s will. It is our. sworn duty to construe, apply, and enforce the law which the assembled wisdom of the people has enacted as we find it in the statute-book, regardless of persons and of the consequences befalling its just enforcement. Dura lex, sed lex.

Further considering the matter, but on the defendant’s application for a rehearing, we find, after a careful examination of the record, that. it establishes the correctness of one of the points raised by the appellant as to the amount at issue, the execution to enforce the payment of which was enjoined. We find that the injunction restrained the enforcement of the writs as to all the property seized, and was not confined to the homestead claimed. The plaintiff in execution, appellant herein, is therefore, in our opinion, entitled to damages measured by the whole amount which was covered by the injunction, and not alone to the alleged value of the homestead. We shall therefore correct the judgment in this regard.

We adhere to our previous opinion and decree so far as it affects the claims for damages against John T. Ludeling, the surety on the injunction bond. He was before us in this appeal, having been duly cited. We could not examine the matters set forth in the motion to dismiss in that proceeding, but had to do so on the merits of the case.

We held that the judgment against Baker was not binding on Lude-ling, because he was not a party to the agreement whereby the case was to be decided in chambers, out of term-time, and because, for the reasons stated in our former opinion, he could not be liable. This appeal is from the judgment dissolving the injunction. If Ludeling was not bound by the agreement and by the judgment, which was irregular and nugatory as to him, and that very judgment could alone fix his liability herein, how can we assess damages against him, unless we arbitrarily supply what we deem to be a fatal defect ? The consent of the parties to the trial of the matter in which Ludeling was sought to be made liable, in the manner in which it was tried, without his assent, and the appellant having selected and adopted such course, we think operates as a discharge of the liability of the surety on the injunction bond, and that issue is distinctly presented in this appeal.

It is therefore ordered, adjudged, and decreed that our former decree herein be set aside, and that the judgment of the lower court be affirmed, so far as it dissolves the injunction and rejects the demands of W. J. Q. Baker, plaintiff, and refuses to allow damages from John T. Ludeling; but that in other respects it be reversed; and it is now ordered, adjudged, and decreed that the appellee be condemned to pay for the wrongful injunction ten per cent damages on the whole amount of the execution enjoined, and as set forth in the writ issued in suits Nos. 1219, 1358, and 1281, consolidated, and that W. J. Q. Baker, appellee, pay the costs of the appeal and of the lower court.


author: Todd, J.

text:
    No. 970.
    J. E. McGuire, Tax-Collector, vs. John P. Parker.
    Section 12 of Act "No. 119 of tlic Legislature of 1880, imposing a license-tax of $25 per montli upon all travelling agents from other States offering any species of merchandise for sale or selling tbe same, violates paragraph 1 of Section 2 of Article 4 of the Constitution of the United States, and is, therefore, null and void.
    APPEAL from the Fifth Judicial District Court, parish of Ouachita. Richardson, J.
    E. G. Hudson, District Attorney, for Plaintiff and Appellant.
    Stubbs & Stillman for Defendant and Appellee :
    First — Section 12 of Art. 119 of 1880 violates par. 1 of sec. 2 of Art. 4 of the Federal Constitution, by abridging the privileges and immunities of the citizens of other States. Cooley on Taxation, p. 64 ; 4 'Wash. C. C. 371; 14 Ala. 627 ; 22 Ark. 556, 564; 11 Allen, 268 ; 12 Wall. 418; 27 Mo. 464 ; 14 Mo. 237.
    Second — That it violates par. 3, sec. 8 of Art. 1 of the Federal Constitution, which vests in Congress the sole power to regulate commerce among the several States. 4 Wheat. 316, 425 ; 7 Minn. 140; 8 Wail. 139 ; 1 Otto, 278.
    Third — It violates Art. 203, Constitution of 1879. 10 An. 56 ; 11 An. 68 ; 13 An. 56 ; 14 An. 318 ; 20 An. 585; 21 An. 301.
    Fourth — . It violates Art. 206, same Constitution, in that the license-tax is not graduated, but fixed and absolute.
   The opinion of the Court was delivered by

Todd, J.

This is a proceeding under section 17 of Act 119, approved April 10, 1880, instituted by the sheriff and tax-collector of the parish of Ouachita, to collect from the defendant a license-tax, State and Parish, of twenty-five dollars per month for each, imposed under the 12tb section of said act upon “ all traveling agents from other States offering any species of merchandise for sale or selling the same.”

The defendant resists the payment of this license upon several grounds, among which we find the following : ■

That the imposition of this license violates paragraph one of section two of article four of the Constitution of the United States, which declares “ that the citizens of each State shall be entitled to all privileges and immunities of the citizens in the several States.”

There was judgment for the defendant, and the plaintiff has appealed.

The question presented is whether the section of the statute imposing this license violates this clause of the Federal Constitution.

This provision affords one of the most important constitutional guarantees for the protection of the citizen.

It was, doubtless, intended to secure to the citizens of each State the. enjoyment, every where within the limits of the Federal Union, of those fundamental privileges which belong of right to the citizens- of all free governments, and to prevent an unjust discrimination on the part of any State against citizens of another State in the full and free exercise of these privileges.

■We gather from the decisions of the Federal and State Courts that among the privileges and immunities this provision was intended specially to secure were the enjoyment of life and liberty, the right to acquire and possess property of every kind, to pass through and reside in any State for the purpose of trade, the right to sue in any of the State Courts, and to sell or dispose of property, real or personal, and all such similar immunities. With respect to these privileges, it was designed to place the citizens of all States upon a common basis of entire and perfect equality.

The increased inter-State trade and commerce of late years has developed a class of business men, now recognized as a distinct profession or calling, known and designated as “commercial or traveling agents,” who travel throughout the different States as representatives of commercial houses, and sell goods and merchandise by orders. This class of agents is made the subject of legislation by the section of the statute above referred to. Some of them are citizens of this State, and some of other States.

The section in question imposes a license of twenty-five dollars a month on “ traveling agents from oilier States,” but exacts no license or tax upon the same class of persons who are citizens of this State. And the question again recurs, does this violate that provision of the Federal Constitution which declares that “the citizens of each State shall be entitled to the privileges and immunities of the several States ? ”

Privileges and immunities are synonymous terms. Privilege signifies a peculiar advantage, exemption, immunity; immunity signifies exemption, privilege.

When we consider the meaning of these terms, and reflect upon the important object sought to be accomplished by this constitutional provision, so essential, not only to unrestricted trade and intercourse between the States, but even to the -liberties and highest privileges of the citizens of a-common country, we are bound to conclude that a requirement of a State law that discriminates so glaringly against citizens of other States and in favor of the citizens of its own State, is designed to defeat the objects and purposes which, this wise constitutional provision was intended to secure, and, therefore, violates the spirit of the clause invoked. Nor is this a new question; for we are supported in this conclusion by the highest legal authority.

Cooley in his work on Taxation, page 64, says :

“ The Federal Constitution provides that the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States. Among these privileges is that of being exempt in other States from higher taxes or impositions than are paid by the citizens of such other States. Under this provision, while it is entirely admissible to levy taxes upon the business and property of non-resident traders within the State, it is not competent to require them to take out a license and pay therefor a sum greater than that demanded of residents. Different methods of procedure may be expedient in order to secure uniformity of taxation as between residents and non-residents, and these are not objectionable, if uniformity is the purpose, and they have a tendency to secure it.”

It has been held, by the Supreme Court of the United States, that the clause of the Federal Constitution referred to relieves citizens from the disabilities of alienage in other States. It inhibits discriminating legislation against them by other States. It insures to them in other States the same freedom, privileges, and immunities possessed by the citizens of those States in the acquisition and enjoyment of property, and secures to them the equal protection of their laws in their lawful pursuits.” Paul vs. Virginia, 8 Wall. 168 ; Ward vs. Maryland, 12 Wall. 418 ; Carfield vs. Coryell, 4 Washington C. C. 371, 380.

And again:

“ The main object of this clause was to prevent each State from discriminating in favor of its own people, or against those of any other. It secures not only absolute equality of rights and privileges with every citizen of each State, but all such privileges and immunities in any State as are by the laws and constitution thereof secured and extended to her own people ol the same class.” Davis Pierce, 7 Minn. 13.

It is with reluctance that we declare null any provision of the law establishing the revenue system of the State, but we are compelled to yield to the weight of authority on the subject.

There are several other questions raised by the pleadings, but the views we have expressed on this first point presented, which are conclusive of the case, render It unnecessary to discuss them.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be affirmed with costs.