author: Nicholls, O. J.

text:
    No. 11,807.
    W. H. Michel et al. vs. Ernest H. Stream.
    A declaration that one has never been divested of his ownership and possession may be true as a legal proposition and conclusion of law, as to his ownership, and yet not true from that standpoint as to his possession. 0. 0., Arts. 496, 3434, 8435.
    Ownership may remain in the original owner and the possession both actual, civil or constructive, be lost to him. Possession being the less important right is more easily lost than ownership.
    Parties advancing claims, in determining which questions of possession enter as a factor in their favor, are called on to malre a much stronger showing as against persons in actual possession of property under claims of ownership than they are against those same parties urging the same claim of ownership while entirely out of possession.
    A plaintiff not in possession can not force a defendant in possession to assume the attitude of a plaintiff in a petitory action; such defendant has aright to stand on his possessi on.
    When a plaintiff, so far from calling the defendant to set up title and justify under it, selects for himself certain transfers as being those under which defendant holds, and asks that the defendant be prohibited from setting up those particular transfers, the action will be held as a disguised personal action of nullity directed against a specifically named chain of title, and barred by ten, if not by three or five years’ prescription.
    APPEAL from the Civil District Court for the Parish of Orleans King, J.

      Lloyd Posey for Plaintiffs, Appellants.

      D. B. H. Ohaffe and Geo. O. Preot for Defendant, Appellee.
    Submitted on briefs November 7, 1895.
    Opinion handed down January 6, 1896.
    Rehearing refused February 10, 1896.
    The demand of plaintiffs is for judgment quieting them in the possession of one undivided half of the property in controversy, prohibiting and enjoining defendant from asserting or claiming as owner their undivided half of said property, and decreeing the inscription of said sale of the whole of said property to the defendant Stream,, of May 18, 1893, to be null and void, and that it be ordered canceled and erased in so far as the one undivided half of petitioners-is concerned, and in so far as it may be claimed that Stream’s title purports to divest petitioners’ half interest in said property, and for general relief.
    On the 26th of October, 1894, a judgment by default was entered against defendant, the minutes reciting that defendant had failed to-answer, though cited.
    On the same day defendant, without setting the default aside, file.d two exceptions. In the first he excepted that plaintiffs’ petition sets forth no good cause of action against exceptor; in the second he . pleaded as a peremptory exception the prescription of two, three,, five and ten years in bar of plaintiffs’ action.
    The District Oourt sustained the plea of prescription of ten years,, and gave judgment in favor of defendant and against plaintiffs, dismissing their suit. Plaintiffs appealed.
   The opinion of the court was delivered by

Nicholls, O. J.

We find in the record an agreed statement as to-certain facts, which declares—

“It is admitted that John Ohaffe & Sons and William H. Ohaffe &. Co. have paid all the taxes on the property since, their acquisition of the property in 1882, and it is admitted that William H. Ohaffe & 0o., Limited, acquired such property by purchase from the heirs of John Ohaffe and from the members of the firm of John Ohaffe & Sons; and it is admitted that Oharles F. Buck purchased the property in controversy March 22, 1870, at a sale made by Moses Fox, constable of Eighth Justice’s Oourt, parish of Jefferson, acting under a fl. fa. of said court, issued in the matter of the Oity of Jefferson vs. Michel, No. 466 of the docket of said court.

It is agreed that the above admissions and statements of fact shall be used and shall take the place of the legal evidence omitted from the transcript.”

W e have been considerably embarrassed in ascertaining precisely what the legal situation is as presented to us by the parties in this case. Plaintiffs have obviously framed their petition with direct reference to leaving the character of their action and demand in doubt under their pleadings. They set up the purchase of the property by their father in 1858, his death in 1864, the opening of his succession in 1864, the death of their mother in 1867, the fact of petitioners’ heirship to their parents as two of four children. They then aver that they have never ceased to be the owners of an undivided half of the property, and have never been divested of their ownership and possession of the same; that notwithstanding their ownership and possession, the defendant claims to be the owner through certain acts of transfer, which they designate as pretended transfers.

It will be noticed that there is no direct averment by the plaintiff» that either their parents or themselves, or any one else, has ever had actual and corporeal possession of the property; on the contrary, they aver that, at the time of their father’s purchase, the land' was entirely vacant and unimproved, and they aver that it is still so. It is true that plaintiffs refer to their possession, but in an indirect way; evidently referring to their father’s original constructive possession. On the other hand, they do not admit that defendant has, or ever had, possession. One of the features of a petitory action is, therefore, absent from the case.

The defendant, instead of pleading prescription after answer, presented that question by way of exception when the case stood ou default. He neither sets up title, nor possession in himself, in his pleadings, and all that we know, as to either title or possession, is what is referred to in plaintiffs’ petition, and in the evidence found in the record, introduced by consent.

We were first inclined to think that both parties had, independently of the pleadings, gone to trial as if the defendant’s pleas of prescription had been pleaded aequirendi causa, and after answer, and as if defendant had made specific affirmative allegations as bo the existence of the various elements going to support that kind of prescription, but we think defendant intended to plead, not by way of acquisition of the property through prescription, but in bar of plaintiffs’ action, and that the evidence and admissions in the record were admitted only, in so far as they could be utilized for that purpose, as going to show that defendant was in possession of the property, and traced his ownership and possession back to a tax title in order to get the benefit of the shorter prescription accorded to purchasers in possession under tax titles.

Whatever advantages plaintiffs could have derived from the manner and circumstances under which defendant pleaded they have waived.

Taking the case as we find it, we do not think plaintiffs occupy the position before us of parties in possession of the property to which they refer in their petition.

Plaintiffs’ father unquestionably became the owner of that property by purchase in 1853, but it was then vacant and unimproved, and, in so far as he and his heirs are concerned, it has always so continued. The only posses ,ion. which they have ever had has been the legal or constructive, or what might possibly be called intellectual possession, springing simply from the fact of purchase, and the last manifestation of any claim or act of ownership by them, of which we have knowledge, is that evidenced by the succession proceedings in the succession of John J. Michel, in 1864. Plaintiffs’ declaration that they have never been divested of their ownership and their possession may be true as a legal proposition and conclusion of law as to their’ ownership, and yet nob true from that standpoint as to their possession.

Article 496 of the Oivil Code declares that “ the ownership and possession of a thing are entirely distinct.

“The right of ownership exists independently of the exercise of it. The owner is not less the owner because he performs no act of ownership, or because he is disabled from performing any such acts, or even because another performs such acts without the knowledge or against the will of the owner. But the owner exposes him - self to the loss of his right of ownership in a thing if he permits it *0 remain in the possession of a third person for a time sufficient to enable the latter to acquire it by prescription.”

Article .0. O. 3484 declares: “That since the use of ownership is to have a thing in order to enjoy it and to dispose of it, and that it is only by possession that one can exercise this right, possession is, therefore, naturally linked to the ownership. Thus, possession implies a right and a fact; the right to enjoy annexed to the right of ownership, and the fact of the real detention of the thing that is in the hands of the master or of another for him;” and—

Article O. 0. 3435 declares: “That although the possession be nat-uraly linked with the ownership, yet they may subsist separately from each other; for it may happen that the actual possessor is not the true owner.”

It is a matter of every-day occurrence for the possession of a thing to be severed or separated from the ownership of the thing. The ownership may remain in the original owner and the possession, both actual, civil or constructive, be lost to him. Possession being the less important right is more easily lost than ownership.

Referring to possession, Art. 3444 of the Oivil Oode says: “To retain the possession of a thing, when a man once has it, it is not even necessary that he should have such positive intention; a negative intention suffices, that is, it suffices that the positive intention, which he had in acquiring possession, shall not have been revoked by a contrary intention, for so long as this revocation does not take place, the possessor is supposed always to retain his first intention unless a third person has usurped or taken from him the possession, or he has failed to exercise an actual possession during ten years.”

From this it will be seen that the Oode recognizes the existence of an “abandonment,” as it were, of the right of even the constructive or civil possession, resulting from ownership, not necessarily working an abandonment of ownership, but possibly modifying and affecting very materially the rights of the owner, though ownership may be retained and possession resumed. This condition of affairs, if rights or claims of third parties under color of title should have intervened, may be attended with serious (sometimes insurmountable) difficulties. So long as the original owner of property holds it in actual possession, he occupies a position of great advantage as against adverse claims advanced against him. As he loses his grasp upon the possession, he surrenders this vantage ground, and when, in order to retake his own, he should be forced to have recourse to judicial proceedings, he may find himself successfully met by pretensions which originally would have been held utterly without foundation or merit. Preséription acquirendi causa and liberandi causa may cut off the enforcement of his rights.

Parties advancing claims in determining which questions of possession enter ás a factor in their favor are called on to make a much stronger showing as against persons in actual possession of property under a claim of ownership than they are as against those same parties urging tbe same claim of ownership while entirely out of possession.

If at the time of a tax sale, and at the time when the adjudicatee at such a sale seeks to avail himself of his rights acquired thereunder, the owner is in actual possession, the purchaser finds himself under the necessity, in case of opposition, of having recourse to legal proceedings to be placed in possession. It is true that we have held that possession may be taken extra-judicially, if it can be done peaceably and without fraud (Martin vs. Langenstein, 43 An. 789), but in cases where the fact of possession becomes an important factor in the determination of rights as between the original owner in possession and ah adverse claimant, the latter is generally held to-show an originally existing actual possession. One possession should have driven out or ousted the other.

Where the original owner has abandoned or lost the civil possession of his property under Art. 3444 of the Oivil Oode there is not the same necessity for strictness as there would be under different circumstances.

There being a vacancy, as it were, in the possession, no existing possession to oust, acts of possession of á much lighter character can be more freely admitted as a basis for. cutting off a remedy than would be exacted under different conditions. Giddens vs. Mobley, 37 An. 417; Green Bros. vs. Witherspoon, 37 An. 753; Barrow vs. Wilson, 38 An. 214; Lecomte vs. Smart, 19 La. 489; Dodeman vs. Barrow, 11 An. 91.

Referring to possession, Art. 1924, Civil Code, says: “ What shall be considered as a delivery of possession is determined by rules of law applicable to the situation and nature of the property,” and Art. 2247, Civil Code, says: “What a delivery of possession is depends on the nature of the property; it may be constructive or actual.”

We have frequently had occsion to refer to the important bearing-which the fact of possession has in the determination of the rights of parties in matters of tax sales, where the prescription of three years has been invoked in bar of an attack upon the tax title. Breaux vs. Negrotto, 43 An. 426; Smith vs. City, 43 An. 726.

In the Am. and Eng. Ency. of Law (verbo Tax Titles), Sec. VIII, p. 736, it is said: “In many of the States there are what are known as special or short statutes of limitations, conferring the right to institute actions for the recovery of real estate sold for the non-payment of taxes to a period of time much shorter than that which existed at the common law for the trial of land titles. The design- of these statutes is to encourage purchasers at tax sales by forcing an early determination of the legality of the sale and of the title founded thereon. The statutes designate the time from which the period begins to run, the mostusually being from the time the deed is recorded. * * * Asa rule these provisions operate in favor of the party in possession to bar the title of whichever party — the original owner or the tax title claimant — is during the period prescribed under the necessity of resorting to legal proceedings to obtain possession.” (See on this subject Waddill vs. Walton, 42 An. 766; Lambert vs. Craig, 45 An. 1110.) “ When neither party is in actual possession, a valid tax deed draws after it constructive legal possession, and makes it incumbent upon the original owner to bring his action within the period prescribed, and failing to do this the title of the grantee in the tax deed becomes perfect as if he had been in actual possession.” (Am. and Eng. Ency. of Law, as cited above.)

A mere possession through stale intention in the former owner should yield to unmistakable affirmative signs of claims and evidences of ownership exhibited by the adjudicatee under his act of adjudication. (See Hooter vs. Tippett, 5 N. S. 110; Rachal Irwin, 8 N. S. 332; Cavalier vs. Moss, 2 An. 584.)

In Barrow vs. Wilson, 39 An. 403, this court, speaking of the prescription of three years fixed by the 5th Section of Act No. 105 of 1874, said: “ It is distinctly a statute of prescription. It operates, not upon the rights of parties. It does not purport to validate a. title which would otherwise be invalid. It simply limits the time-within which the owner of the original title shall be allowed to assert, his rights against the purchaser at a tax sale. * * * It is a mistake to treat this statute as one intended to cure defects in tax titles. It is a statute of prescription, barring an action regardless of- the merits or demerits of either side.” The same view of the statute was taken in McDougall vs. Monlezun, 39 An. 1010.

The plaintiffs in this suit did not, ignoring the tax title altogether, institute a petitory action against defendant as being in possession of the property, and drive the defendant to set up his title and plead the prescription of ten years acquirendi causa.

Had they brought such an action and defendant had set up the tax title as one of the links showing a divestiture of plaintiffs’ original ownership, and the title so set up was shown to be affected with absolute radical nullities, a different case would have been presented than the one before us.

The plaintiffs, assuming that they were still in possession of the property and that defendant was not, made a direct, though utterly vague and insufficiently stated attack upon what he declared was defendant’s title, in which, as a link thereof, was a tax title under which he held by derivative transfers. Had the plaintiffs been correct in their assumption that they were in possession, it may be that they could have successfully eluded the plea of prescription directed against their attack, but they were not in possession; on the contrary, defendant and his authors were sufficiently so to avail themselves of the plea.

It is admitted that all taxes have been regularly paid by them as they were imposed since their acts of purchase. It is shown that there has been constantly on the place a sign informing the public that the property was held for sale by them and directing parties desiring to purchase where to find them.' It is shown that the present defendant has paid for a sidewalk in- front of the property, constructed by the city authorities and charged to him as owner of the grounds; also that he has partially filled up the lot. We think that he had obtained, under the circumstances of this case, a sufficient foothold upon the lots to drive plaintiffs to an action against him for recovery of ownership and possession. This is not an action of jac-titation or slander of title. Plaintiffs are not in possession of the property and defendant has the right to stand on his possession. Plaintiffs can not force him, in defence, to assume the attitude of plaintiff in a petitory action. So far from calling upon defendant to set up title and justify under it, plaintiffs selecting themselves certain transfers as being those under which he holds, pray that he be prohibited from setting that particular title up. They have, in our opinion, directed their attack against the defendant in a manner which has opened to him the exception of the prescription of the action.

There is nothing in this case which strikes us as exceptional and as barring the plea.

As brought, plaintiffs’ action is, in our opinion, a disguised personal action of nullity directed against a specifically named chain of title originating in a tax title barred by ten, if not by three or five years’ prescription. Herr vs. Martin, 90 Ky. 377.

Were we to take a different view of the action we would sustain the judgment appealed from, on the ground that plaintiffs have in their petition disclosed no cause of action.

We find nc warrant in law for a person out of possession to proceed against a party in possession under claim of ownership, as attempted by the plaintiffs in this case, prohibiting him from setting up a particular title designated by the plaintiffs themselves as defendant’s source of title, and ordering the erasure upon the records of the inscription evidencing his claim of ownership.

Plaintiffs say that the tax sale, under which Buck claimed to have been owner of the property, was a nullity and conveyed no title; that John Chaffe & Co.’s rights, acquired by them from Rees, was through a quit-claim deed without warranty; that Chaffe & Co. acquired in bad faith and with notice of the nullity of the title; that this bad faith of Chaffe & Co. continued until John Chaffe & Co. sold to W. H. Chaffe & Co. on April 10, 1889, and that prescription has not accrued since that time.

Grant that the tax title was per se subject to attack, it by no means would follow that upon it, as a basis of title, could not be built up substantial and effective rights. That there was, as a fact, an adjudication at a tax sale directed against the property as the property of John J. Michel or owners to Buck, which was placed of record ; a sale from Buck to Rees, which was placed on record, and successive conventional recorded transfers from Rees and others down to the present defendant is admitted. The record showed at least a claimed divestiture of the title in the original owner and a vesting of that title in the purchaser at tax sale and the parties holding under him.

It will not be questioned that the land itself was liable to taxa-' tion, whether it belonged to the Michels or to Buck, or to Rees, and whether it was in the possession of the Michels, Buck or Rees. When the assessor came to assess the property, he was authorized, when he found (as we must assume he found) a recorded divestiture of the Michel title and a placing of the same in Rees, under and through the Michel title, to assess the property in the name of Rees. He was not called on to examine into the effective force of the tax proceedings. We have so held in the case of Prescott vs. Payne, 44 An. 650, and that of Gee vs. Clark, 42 An. 918, so that, although the tax adjudication may not have vested title in Buck, it none the less may have justified an assessment in the name of Rees. It Rees and those holding the property after Rees did not pay the taxes, the State may have been justified in proceeding to a sale of the property under an assessment in the name of Rees. The original tax deed and the subsequent acquisition of the property by Rees and others under it would have a very important bearing should the property ever pass to a purchaser under a tax sale directed against the property under an assessment against Rees, as showing that the assessment was not made against one a stranger to the property, but against one holding it as recorded owner under a derivative title from the original owner, Michel.

We know of no warrant which the plaintiffs would have in prohibiting the purchaser at such sale from setting up the original tax deed and subsequent conveyances under it as links in his chain of title. Not only is the condition of things which we have just supposed, possible, but we have reason to believe that it actually occurred in reference to this very property.

It would appear from the copy of an act, which we find in the record, that under a sale made for delinquent taxes under an assessment of taxes made upon the property while Rees stood as its recorded owner, it was sold, in 1885, to John Chaffe, one of the purchasers from Rees. Plaintiffs say that this act was never introduced in evidence, and is not properly in the record, and we can not act upon it. We do not act on or pass upon it at all. We refer to it simply by way of illustrating the fact that an action such as plaintiffs have brought, and as brought, is not a proper one, and as fortifying its in the opinion that neither of the parties to this litigation dealt below with the action as either a petitory action or an action of jactitation.

Plaintiffs in their brief urge that John Chaffe & Co. purchased the property in bad faith. We think that, although the question of possession of the property enters into this ease as presented, that under an exception in bar of the action the character of the possession as to good or bad faith does not.

They further claim that the act from Rees to John Chaffe & Sons was only signed by Rees, and that it was stipulated in the act that Chaffe should thereafter accept the sale by notarial act. John Chaffe & Oo. unquestionably accepted the sale, paid taxes on the property and finally sold it. We do not think the mode of acceptance was important, or that the plaintiffs are concerned as to the relations between Rees and Chaffe & Sons. Citizen’s Bank vs. Webre, 44 An. 384.

The judgment appealed from is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    No. 11,906.
    William G. Vincent vs. Mrs. C. M. Philips, Tutrix Administering.
    A vendee oí property having* died leaving unpaid a portion of the price due by him, the vendor brought suit upon the resolutory condition to have the sale dissolved for the non-payment of the price, making defendants in the suit the widow administering the succession of the deceased as tutrix of their minor children, and individually as widow in community. Defendant, in her two capacities, answered, and a judgment was rendered setting aside the sale, and liquidating and adjusting the claims and counter claims of the parties. A creditor of the deceased appealed from the judgment contesting the right of the tutrix, as such, to represent the succession in the suit, and- setting up various grounds for the reversal of the judgment itself. The Supreme Court held that the suit was properly brought against the tutrix, and, at the instance of the appellant, amended the judgment adversely to the plaintiff in some respects. A rehearing was applied for and refused.
    On the day the rehearing was refused an ordinary creditor of the succession gav.e bond under an order he had obtained for a devolutive appeal, had the record brought up a second time, and attempted to have the original judgment reversed or amended. Plaintiff pleaded res judicata, basing himself on the judgment rendered on the first appeal. The court dismissed the appeal, holding that the first appeal settled the law of the case; that the court having decided that tutrix as administering the succession was the proper defendant in the suit for a dissolution of the sale, she, in that suit, and on the first appeal, represented the mass of the creditors, and the second appellant, a mere ordinary creditor, was not entitled to an appeal to reopen the case upon the merits.
    APPEAL from the Fourteenth Judicial District Oourt for the Parish of Pointe Coupée. Talbott J.

      W. W. Leake and Branch K. Miller for Plaintiff, Appellee.

      Yoist & Claiborne and W. B. Sommerville for S. P. Walmsley, Appellant.
    O. 0. & A. Provosty for Administratrix, Appellee.
    Argued and submitted December 17, 1895.
    Opinion handed down January 20, 1896.
   The opinion of the court was delivered by

Nicholls, O. J.

On June 20, 1894, the plaintiff, Vincent, brought suit for a dissolution of the sale of a certain plantation which he had sold to Marshall P. Philips. The suit was brought against Mrs. 0. M. Philips, individual^7, and as tutrix of her minor children, issue of her marriage with Marshall P. Philips, the vendee, in her capacity as tutrix administering her husband’s succession.

Defendant answered, and on the 6th of July, 1894, the District Court rendered a judgment dissolving the sale, and adjusting and liquidating the rights of the parties.

On the 4th of August, 1894, the widow qualified as administratrix of the succession.

On the 17th October, 1894, .the Metropolitan Bank presented a petition to the District Court, in which, alleging itself to be a creditor of the succession, and aggrieved, in various ways specified therein, as such by the judgment of July 6, it applied for and obtained an appeal therefrom. The plaintiff, W. G. Vincent, and Mrs. 0. M. Philips as tutrix administering the succession, and as administra-trix of the succession, were cited to answer the appeal. The plaintiff moved to dismiss the appeal on the ground that all the parties to the judgment appealed from had not been cited or made parties, and that appellant had not alleged or shown a direct pecuniary interest in an amount sufficient to give jurisdiction to the Supreme Court. In an opinion reported in 47 An., p. 1216, entitled Vincent vs. Philips, this court remanded the cause to try and decide two issues, defendant’s indebtedness and the insolvency of the succession of Philips. The objection made to the appeal on the ground that all che parties to the judgment appealed from had not been cited or made parties was overruled, the court holding that the only-parties to the judgment were the plaintiff and the defendant, and they had been cited.

When the case was returned, this court found that the succession of Philips was insolvent, and that the appellant had an appealable interest. It therefore maintained the appeal. The appeal was fixed for trial, argument heard, and a decision rendered in the case on June 3, 1895. A rehearing was applied for, but refused on June 29, 1895. The case will be found reported in 47 An., p. 1238. Our decree amended the judgment appealed from by deducting five thousand dollars from the amount allowed to the plaintiff, leaving him indebted to the succession in the sum of five thousand and fifty-six dollars, instead of fifty-six dollars, but in all other respects it affirmed the judgment. On December 22, 1894, the administratrix filed a provisional account, iu which she averred that the Oakland plantation (the property in question) had passed out of the succession by the effect of the judgment referred to, but that an appeal had been taken by a creditor which was still pending. She further stated that the movables on that plantation, made immovable by destination, had not passed out of the succession by that decree, and that she had sold the same. In her accounts she debits herself with the price of certain mules from that plantation.

On the 28th of June, 1895, S. P. Walmsley, by petition, applied for an appeal from the judgment of Juiy 6, 1894, alleging that he was a creditor of the succession and was aggrieved thereby. An appeal was allowed him, and on his prayer the plaintiff, Vincent, and the defendant, Mrs. O. M. Philips, were cited to answer the appeal. Walmsley furnished his appeal bond on the 29th of June, 1895. Mrs. Philips was cited as tutrix administering the succession and as ad - ministratrix of the succession. Citation of appeal was served on Vincent on July 5, 1895, and on Mrs. Philips on July 3, 1895.

Vincent filed in this court a plea of res adjudieata and estoppel, based on the judgment of this court in the matter of the appeal of the Metropolitan Bank. In the event that plea be overruled, he then asked that the judgment appealed from be amended by allowing him eight instead of five per cent, on the revenues of the Oakland plantation, thus entitling him to seventeen thousand eight hundred and forty dollars, instead of eleven thousand one hundred and fifty dollars.

In reference to the amendment of the judgment, appellant maintains that an appellee can not ask for an amendment of the judgment appealed from except by way of answer to the appeal, and, if appellee demand the reversal of the judgment, he shall file his answer at least three days before that fixed for argument; otherwise it shall not be received. Citing C. P. 894, 895 and 902.

There is a much more serious obstacle than this in the way of an amendment of the judgment. If plaintiff were to be held entitled to an increase, it would be greatly to the prejudice of the succession and its creditors. The administratrix of the succession, the succession representative, is not an appellant, but an ap-pellee. As representative of the mass of creditors, it is evident she thought it better to leave matters as _ they were than to risk an appeal, and through and under it an adverse amendment. We do not think appellant is authorized to stand in judgment for the purposes of an amendment in favor of Vincent and against the succession. As matters stand we do not see how, under the decisions of this court, it would be possible to amend the judgment as between Vincent and the succession of Philips, both being appellees. But if the judgment could not on appeal be altered in these respects, wherein it might be prejudicial to the plaintiff, it is difficult to see how either on principles of either daw, justice or equity, it could be altered in favor of the succession, for practically if appellant were successful in any' respect on the appeal, it would not enure to his individual or special benefit, but to all the creditors. He presents himself before us, not as a creditor holdiug any special relations to the succession, or to the property involved in this litigation, but as a mere general creditor. Appeals such as that sought here would, if allowed, destroy the principle of mutuality. There doubtless are cases where this principle would not be a controlling factor in determining a right of appeal, but this case does not fall within the line of exceptional cases. 2 New Series, 524, 525, Bargebut et al. vs. Their Creditors.

Again, if this particular creditor could have the judgment modified, so could' any other creditor, and we would have a succession of separate appeals by individual creditors from the same judgment on the same record and evidence. These appeals would be substantially nothing more nor less than rehearings of our original opinion— each appellant urging errors and attempting possibly to raise new points, or to more forcibly present those already made and passed on. In the matter of the appeal of the Metropolitan Bank, the appellant urged that the defendant, as tutrix administering, was not authorized to stand in judgment in a suit for a resolution of the sale. That was an objection which we think he was authorized to raise. The judgment of the lower court was open to- review on that issue, but this court having decided that the tutrix was authorized to stand in judgment as administering the succession, that decision must stand as the law of the case. No possible argument could alter our opinion on that point. Her status was therein fixed and settled. If the tutrix was authorized -to stand in judgment in that case, as we hold she was, she represented in that suit the mass of creditors — certainly the general creditors, and the peculiar condition in which we find this case forces upon us the consideration, though no motion to dismiss is made, whether the appellant is in law entitled to appeal in order to reopen the case on its merits. In this connection it will be noticed that the administratrix herself has acquiesced in the judgment, also that appellants appeal was necessarily a devolutive appeal. That he furnished bond on the very day the rehearing in the Metropolitan Bank was refused, and that Vincent was not cited until after our decree on the appeal of the bank was made final by the refusal on rehearing. As between the succession represented by the administratrix and Vincent, more than a year has now elapsed since the rendition of the '.udgment of the District Court and the judgment has become final. When at the instance of the Metropolitan Bank Mrs. Philips was, as administratrix, made an appellee, she, as such, represented all the creditors of the succession, and the judgment in that case bound them all — certainly all who did not occupy some exceptional situation as a creditor and in reference to the particular property and in the absence of fraud. (See Condee vs. Lord, 2 N. Y. 269.)

The plaintiff, vendor of the property, was entitled, to find a defendant against whom he could institute proceedings for a resolution of the sale, and it would have been utterly impracticable for him to have made all the creditors of the succession parties defendant. They could have intervened below for the protection of their interests, if they deemed them not well defended nor liable to be so.

Several cases of this court have attracted our attention on this subject, among them the case of Lacroix vs. Menard, 7 Martin, N. S., 346 and 347; The State vs. Judge, etc., 12 Rob. 320; Succession of Pomeroy, 22 An. 518; Conery, Jr., vs. Waterworks Co., 42 An. 442, 443, 444; Gillespie vs. Scott, 32 An. 767; Heroman vs. Louisiana Institute of Deaf and Dumb, 34 An. 813; Taylor vs. Carroll, 28 An. (N. R.); Louque’s Digest No. 10, p. 347 (Opinion Book 45, page 64); Ross vs. Enaut, 46 An. 1250; Gasquet vs. School Directors, 45 An. 342; Trounstine & Co. vs. Ware, 39 An. 939; Paland vs. Railroad Co., 44 An. 1003; Desmaries vs. Police Board, 42 An. 799; Dupre vs. Board of Police, 42 An. 801.

The question of res judicata, and that of the capacity of the appellant to appeal for the purposes for which he appeals, run closely together when applied to the facts and circumstances of this case.

Another view of this matter which suggests itself to us is whether, when the Metropolitan Bank undertook, as a general creditor, to appeal from the judgment, he did not in reality, though not professedly, act for and on behalf of himself and all similarly situated. Hawthorne vs. Beckwith, 89 Va. 786. The best consideration we can give to this case leaves us convinced that the appeal taken by the Metropolitan Bank must be taken to have settled the law of the case and to have fixed the rights of all parties in respect to this suit, whether it be strictly and technically res judicata or not. Klauber vs. San Diego St. Car Co., 98 Cal. 105; Semple vs. Anderson, 9 Ill. 546; Stacez vs. Vermont Cent. R. Co., 32 Vermont, 552; Lee vs. Stahl, 13 Colorado, 174; Encyclopedia of Pleading and Practice, verbo Appeal, Subdivision, “On Second Appeal—Law of the Case,” page 373 et seq.

This conviction carries with it as its consequence that we are constrained to dismiss the appeal.

The appeal is dismissed.


author: McEnery, J.

text:
    No. 11,977.
    Succession of M. J. Giddens.
    One who is not a creditor of a succession has no right to demand that the administrator of the same shall file an account of his administration.
    When the community is dissolved by the death of one of the spouses, the survivors and the heirs are each seized of one undivided half interest in the community property, subject to the rights and privileges of the community creditors. This interest can be mortgaged or sold, and is therefore subject to seizure bya judgment creditor of the heir or of the surviving spouse.

      A PPEAL from the Ninth Judicial District Court for the Parish of ^ Red River. Hall, J.

      J. G. Egan for Rawlins, Plaintiff, Appellee.

      J. E. Pierson for Defendant, Appellant.
    Argued and submitted December 21, 1895.
    Opinion handed down January 6, 1896.
    Rehearing refused February 10, 1896.
   The opinon of the conrt was delivered by

McEnery, J.

This case was appealed by D. M. Giddens from a judgment ordering him to file a final account of his administration of the succession of his deceased wife. He administered the same as tutor of his minor children.

For a fuller understanding of the issues involved, reference is made to the case of Rawlins vs. Giddens, reported in 46 An. 1136, and the decree on the application for a rehearing, same volume, p. 1145. In the decree on the rehearing our former decree was avoided and the judgment appealed from reversed, except that part of it against D. M. Giddens for the debt of the plaintiff, Rawlins. The right of the plaintiff, Rawlins, was “reserved by proper proceedings, to force a final settlement and liquidation of the community between D. M. Giddens and his deceased wife, Mary J. Armi-stead, and to subject to satisfaction, according to law, for his judgment, the interest of his debtor thus ascertained.” Under this decree the plaintiff proceeded against the tutor and administrator to compel him to “file a full and complete and fair account of his administration.” The necessary order was issued. D. M. Giddens, the tutor administrator, filed an exception to the petition of no cause of action, as he has no right to compel any account of, the succession of M. J. Giddens; that he does not show that he is a creditor of the said succession or an heir of the deceased. He further excepted that the two sons of D. M. Giddens. the sole heirs of said succession, had not been made parties. There is a community between D. M. Giddens and his deceased wife to settle. This the decree announces in the case of Rawlins vs. Giddens, before referred to.

A party not a creditor of a succession has no right to provoke the appointment of an administrator to it, and if an administrator has been appointed, one not a creditor of the community, or of the succession, has no right to compel the administrator to file an account. The relations between D. M. Giddens and his minor children do not concern the plaintiff, and the plaintiff is without authority to compel him to account to them, although his proceeding may be intended to ascertain the eventual interest of the tutor .in the community property, which he is administering. The moment the eommufityis dissolved, the rights of the surviving spouse and the heirs are fixed. If the community owes no debts, the surviving spouse and the heirs are each seized of an undivided half interest. If the succession is in debt, the interest is eventual, but not beyond the reach of the individual creditors of each, subject to the superior rights and privileges of the creditors of the community. All the rights of the heirs may be seized in the succession, subject to the debts and charges.

Code Practice, 647; Noble vs Nettles, 3 Rob. 152; Mayo vs. Stroud, 12 Rob. 105; Dearmond vs. Courtney, 12 An. 251: Boisse and Husband vs. Dickson, 31 An. 747; Heirs of Fly vs. Noble, 37 An. 667.

The surviving spouse and the heirs can mortgage their undivided share or interest, as they own the same in full ownership, subject to the usufruct in favor of the former, and always burdened with the claim of the creditors. Dickson and Husband vs. Dickson, 36 An. 453. They can therefore sell or dispose of the same.

It is such a right of interest as can be seized and sold on execu - tion by a creditor of the surviving spouse, or of the heirs.

In such a case the purchaser would stand in the same relation to the community or the succession as the debtor would have done on a full and complete settlement of the same. He would be in a position on the final settlement, if there was anything left, to demand a partition and receive the interest which he had acquired. If he purchased the interest of the surviving spouse he would hold in indivisión with the heirs, and be in a position always, as they are, to protect the interest which he had acquired.

The plaintiff did not correctly interpret our decree in the reservation of his rights “to force a final settlement and liquidation of the community.” It was merely suggestive as to the proper remedy. The -proceedings adopted by the plaintiff would not have the effect of a partition suit in separating the interest of his debtor from that of the heirs, and rendering thé specific interest subject to seizure for the satisfaction of his debt. The provoked account might be final and complete; The account might show what was due the heirs and the property in the succession in which the heirs have an interest. They could, if they so desired, still hold it in indivisión with the tutor or administrator in the same manner as if the community had owed no debts and the heirs had been placed in possession in conjunction with the surviving member of the community; The judgment creditor of one of the spouses would be compelled to seize the undivided interest of his de tor, and the purchaser would eventually be driven to a suit for the partition of the property held in indivisión by him and the heirs.

It is therefore ordered that the judgment appealed from be annulled, avoided and reversed, and it is now ordered that the plaintiff’s suit be dismissed, with the reservation in his favor, as announced in the decree in the case of Rawlins vs. D. M. Giddens et als., No. 11,480 on the docket of this court, and reported in 46 An. 1146.

Mb. Justice Watkins recused.


author: Wateins, J.

text:
    No. 11,964.
    Louis E. Ball vs. Julius Levin & Co.
    Joint owners of a saw-mill plant, having tortiously and wrongfully entered upon the partnership premises on a Sunday when the other joint proprietor was absent, and removed therefrom certain important parts of the machinery essential to the operation of the mill, and carried them awny, for the expressed purpose of preventing the latter from operating the mill, and kept them away for more than a month, during which time the mill was idle.

      Held, That the co-proprietor, who has thus had his rights invaded and prevented from operating the plant, is entitled to actual and punitive damages commensurate with his loss and injury.
    APPEAL from the Tenth Judicial District Court for the Parish of Rapides. Andrews, J.

      Robert P. Hunter and H. L. Daigre for Plaintiff, Appellee.

      White & Thornton for Defendants, Appellants.

      Argued and submitted December 18, 1895.
    Opinion banded down January 6, 1896.
    Rehearing refused February 10, 1896.
   The opinion of the court was delivered by

Wateins, J.

This is .an action in damages ex delicto, and the plaintiff demands one thousand three hundred and twenty-six dollars actual, and one thousand dollars punitive, or vindictive damages.

There was a trial by jury and a verdict for seven hundred and fifty dollars, in favor of the plaintiff, and after an unavailing effort tc obtain a new trial, the defendants have appealed.

In this court plaintiff answered the appeal, and requested that the amount of damages awarded be so increased as to allow him the full amount claimed; and contemporaneously therewith he filed a motion, in which he demands judgment against the defendants for the additional sum of “ twenty per cent, of such judgment as may be finally recovered in this * * * court ” in his favor, as damages for a frivolous appeal.

The petition alleges that plaintiff was sole owner of the Magnolia saw-mill, situated in the parish of Grant, operating it at a daily average profit of thirty-nine dollars; and that on the 9th of September, 1894, he s,old to the defendants an undivided one-half interest in the plant.

It further represents that defendants, just as soon as they purchased the half interest of said mill, did maliciously, clandestinely, illegally, wrongfully and tortiously remove from said mill a part of its machinery, to-wit: the cylinder-head and steam chest valve, and so crippled the mill that petitioner could not run same from the month of September to the 24th of November, 1894, causing the mill to stop, and preventing its operation;” and causing the loss and damage he has complained of, and for which he prays judgment.

The answer is, practically, a general denial, coupled with an averment that defendants did no unlawful act.

The antecedent history of the transactions leading up to the incident complained of may well be given, as throwing some light on the matter in controversy.

On the 28th of October, 1893, the'.plaintiff and R. B. May. purchased the saw-mill jointly, for the sum of twenty-one hundred dollars on terms of credit, and therefor they executed in favor of the defendants, as vendors, fourteen notes, of one hundred and fity dollars each.

Thereafter, May sold his interest to R. L. Ball, the brother of plaintiff, and they erected the buildings, placed the machinery in position and set it in motion. They paid three of the purchase notes, and were, to all appearances, operating the plant profitably.

Subsequently R. L. Ball sold his interest to Louis E. Ball, the plaintiff; and the latter conveyed to the defendants, Julius Levin & Co., on the 10th of April, 1894, above specified — the plaintiff retaining, under the new arrangement, charge of the operation of the mill, and the defendants assuming control of the financial department of the saw-mill business.

The price agreed on was one thousand six hundred dollars, and that was by the parties attributed to plaintiff’s notes in favor of the defendants, squaring accounts between them — less about one hundred and seventy dollars.

The plaintiff being in arrears to the hands at the saw-mill, and without means to operate the business satisfactorily, it was agreed that the defendants should advance the money and reimburse themselves out of the current cash receipts.

Under this arrangement the mill was operated with partial success, but not without some misunderstandings and disputes between the individual joint co-proprietors.

Ultimately defendants made up their minds to discontinue the business and dissolve the partnership; and accordingly they gave the plaintiff due notification to that effect.

The proposition met with his disapproval.

In this condition of affairs the transaction chiefly complained of by the plaintiff, as resulting in his damage and injury, arose.

As a witness, the plaintiff says:

“My brother and I prepared to start the mill under that agreement, and, before we could start, they [Messrs. Seiss and Levin, two of the defendants] came, on Sunday, while I was awa'y. I didn’t see this done, but was informed of it. They took off the valve, and the packing out of the cylinder. The valve they took off was one out of the steam chest, and the packing rings out of the cylinder. That disabled the machinery so that it could not run. That was done on Sunday, while I was away.”

Again:

“ After this machinery was disabled it was a difficult matter to replace those valves and rings. It was quite expensive, and would have to take time. I think it was about the 9th of September, 1894, that they disabled the machinery. The mill was closed from the 9th of September to about the, 24th of November.”

Again:

“During the time, from the 9th of September to the 24th of November, I was there and anxious, ready and willing to go on and operate the mill. There was nothing to prevent me doing so besides .the mill being disabled.”

This witness and his brother testify that since the mill was sold to C. E. Ball & Son, in November, 1894, it has been continuously operated at a profit.

Mr. Seiss, one of the defendants above mentioned, as a witness makes this statement, viz.:

“ I, together with Mr. Jacob Levin [another member of the defendant firm] and Mr. Roberts went to the Magnolia saw-mill and removed the portions of machinery mentioned. I don’t remember the date, but it was some time in the early part of September. It was on Sunday. We determined to remove this machinery on the Saturday before. I wish to correct my previous statement and say that it was on Sunday morning that we determined to remove the machinery. Mr. Jacob Levin came to me at Levin, with word from Mr. Julius Levin, to go there and remove that machinery — to remove such parts of it as would prevent Mr. L. E. Ball from operating the plant. We went there that day and made the removal. We brought this removed part to Levin.

I took this machinery openly, in broad daylight; there was no one present at the time but a little boy * * * It would have cost thirty-five dollars or forty dollars to have replaced this machinery, and it would have taken ten or fifteen days to have done it.”

This is the testimony for the defendants in chief; and it not only corroborates that of the plaintiff, but places the transaction in a bolder, broader light. It is an open, frank avowal of a most unwarranted trespass upon the plaintiff’s property during his absence, without his knowledge, and to his great injury and detriment. It was done in pursuance of an agreement between the defendants. Such portions of the machinery were detached from the mill “as would prevent Mr. L.' E. Ball (the | laintiff) from operating the plant.” This trespass was planned, agreed upon and consummated on Sunday, when no one was present but a small boy, and they openly and publicly carried the pieces of machinery away — entirely beyond the reach of the plaintiff, and kept them for more than six weeks, during which time the mill remained idle and could not be operated.

True it is that the mill had not been in operation for some weeks prior to the date it was dismantled; but the plaintiff was in readiness to operate it at all times, and was only prevented from doing so by the defendants. And the immediate cause of the tortious and unwarranted action of the defendants in dis uantling the mill was the announced determination of the plaintiff to open up the mill.

As the result of these transactions the plaintiff was constrained to consent to a sale of the plant to third parties.

It is quite evident that defendants had no right “ to take the law into their own hands;” and we think plaintiff is entitled to some remuneration, and that defendants should be made to pay for their unwarrantable trespass upon his rights.

But we think the verdict of the jury is excessive and should be reduced to the sum of three hundred dollars; and that, as thus reduced, the judgment -ppealed from should be affirmed.

It is therefore or.dered and decreed that the verdict of the jury and the judgment thereon based be reduced to the sum of three hundred dollars, and that, as thus reduced, the same be affirmed.

It is further ordered and decreed that the plaintiff be taxed with the costs of appeal.


author: Nicholls, C. J.

text:
    No. 11,864.
    Emma Steppe vs. Charles Alter and James O’Rourke.
    Every one is bound to keep bis buildings in repair, so that neither their fall nor that of any part of the materials composing them may injure the neighbors or passengers under penalty of all losses and damages which may result from the negl'ct of the owner in that respect. The owner of the building can not free himself from this primary obligation by leaving to an insurance company, which, carrying a policy on the building had elected, after a fire, to make repairs upon it, to determine the necessity of and the extent of repairs. He can not, as between himself and the public, shift responsibility from himself to the insurance company. The insurance contract may fix and determine ihe rights and obligations of the parties thereto, but it is not a measure for the rights of the public, nor a criterion by which to test the liability of the owner to it.

      A PPEAL from the Civil District Court for the 'Parish of Orleans, i l Ring, J.

      Lloyd Posey, Horace E. Upton and Joseph N. Wolfson for Plaintiff, Appellee.

      Semmes & Legendre, Branch K. Miller and II. H. Price for Alter, Defendant, Appellant.
    Argued and submitted December 6, 1895.
    Opinion handed down December 16, 1895.
    Rehearing refused February 10, 1896.
    Plaintiff, while at work in the employ of the Gulf Bag Company, doing business at Nos. 82, 84'and 86 South Peters street, was hurled down and buried beneath the ruins or debris of a falling wall. By the fall of the wall upon her she was bruised severely — three of her ribs were crushed in and broken; her left leg was sprained, and her right leg badly broken in two places. She was shocked and badly hurt. She was immediately taken to the Charity Hospital, where she remained from about 20th June, 1892, until August 4, 1892 She was removed to the Touro Infirmary, where she remained until the ist of January, 1893.
    The injuries received by her resulted, and were directly occasioned by the falling of the wall above referred to, which was a wall in common separating the building of the defendant, O’Rourke, occupied and leased by the Gulf Bag Company, from the adjoining building No. 80 South Peters street, owned by the defendant. The demand was for twenty-five thousand dollars damages.
    , The suit against O’Rourke was discontinued before trial. There was judgment for plaintiff for six thousand five hundred dollars, and defendant Alter appeals.
   The opinion of the court was delivered by

Nicholls, C. J.

The facts connected with the falling of the wall which gave rise 1o the present litigation were brought to our attention in the matter of Knoop vs. Alter and O’Rourke, reported in 47 An. 570. Some testimony not adduced on the Knoop trial was introduced in the present case, but it is not of such a character as to alter, our views as to the legal responsibility of the defendant for the consequences of that occurrence. Defendant renews his argu-. ment that the Home Insurance Company having under its policy of insurance elected to repair and rebuild the premises No. 80 South Peters, and having taken control and possession of the property, he had no control or direction of the work, that the property and work being under the exclusive control of the company and its agents, under such circumstances the only parties to whom plaintiff could look for redress, if there were fault and injury, would be those engaged in the work. He cites in support of his position, Camp vs. Wardens, 7 An. 321; Gallagher vs. Southwestern Exposition Association, 28 An. 944; Sweeney vs. Murphy and Murphy, 32 An. 628; Peyton vs. Richards, 11 An. 62; Davie vs. Levy, 39 An. 555.

In the first three of these cases the plaintiffs were “employees” of persons who had contracted with the owner of property for the construction of buildings. The rights and obligations of parties were tested in view of relations of “master and servant” and “fellow servants,” and as viewed from the standpoint of privity of contract.

In Camp vs. Wardens, 7 An. 327, Mr. Justice Rost, referring to the effect which the fact of “employment” has in passing upon questions of liability for personal injuries, said: “ This did not result from any arbitrary rule; it is deducible from elementary principles of law. There is no contract between the owner of the house and the neighbor or passenger which can at all modify the fundamental rule that every man is bound to use his own property so as to cause no injury to others, and he is accordingly held responsible to them,for slight neglect in the use or care of it. The case is different with regard to servants and overseers.”

In the case at bar there were no relations springing from employment of the plaintiff, either by Alter or the Home Insurance Company. She is a stranger or third party as to both.

In Peyton vs. Richards, 11 An. 62, plaintiff’s slave, while walking along the sidewalk of Camp street, in front of a building which was in process of construction, was killed by the falling of cast iron columns and entablatures which formed the front of said building. The evidence showed that the property belonged to Dr. Farrell, and that John MeVittie was the undertaker of the building. McVittie made a special contract with Newton Richards (whom plaintiff had made defendant in the case) to put up the iron front of which Mc-Yittie furnished the materials, and Richards made another special contract with one Thompson tó do the same work. Thompson himself performed the work with the assistance of laborers hired and paid by himself. Just as the work was completed the iron columns and plates.fell to the ground in consequence of not being sufficiently propped with pieces of wood under the horizontal pieces, as was usual and customary. The court held that Thompson, by whose fault, negligence or unskilfulness the accident happened, was not the servant or overseer of Richards, and that the latter was not liable to the plaintiff. The suit was not directed against the owner of the building.

In Davis vs. Levy, 39 An. 555, plaintiff attempted to hold Levy, who was engaged in the business of running a coal yard, responsible for personal injuries received from the act of one Harris (with whom he had contracted for taking coal from a barge on the riv<-r to his yard), in improperly constructing, in order to perform his work, a run or bridge over the public street. Defendant was not sued for failure to perform any duty incumbent upon him as owner of the coal yard, but as being substantially the party who had put up the obstruction in the street.

The position of the defendant in the present case is substantially that because he had'entered into a contract of insurance with an insurance company by which he was to be indemnified to a certain amount in case of fire, the company reserving the right at its own option of repairing or rebuilding the property, he was relieved from the obligation as the owner of the property of keeping constantly advised as to its condition and situation as connected with the safety of his neighbors or of the public.

This is a general primary obligation imposed on him by law of which he can not divest himself by a contract with others, by which they and not he are to decide and determine the extent and character of his obligations. The contract between himself and those parties may serve as the criterion and measure of rights and obligations between themselves, but does not measure the rights of third persons and determine his liabilities to them. It was defendant’s duty, both before the fire and after the fire, to see that his building was in a safe condition. It was specially his duty to examine the building after the fire, to see how that occurrence had affected its situation. If at any given moment a building is unsafe, it is a matter of no moment to the general public whether the danger from it is occasioned by fire,- by water, old age, or improper construction. Defendant in his testimony says the insurance company took charge of the property immediately without saying anything to him; he did not undertake to repair the building — he did not undertake anything at all; he turned over the property to the company for the purpose of repairing and reconstructing what was necessary; he had nothing to do with the repairs; he held the insurance company responsible; he told them so; be wanted them to make him whole; he never gave any order or direction to anybody employed; he never assumed any control of the work; he told the foreman (Moore) he had nothing to say in regard to the matter; he did not care about hearing anything of it.

Now it is precisely this indifference to the situation and failure to give any orders or direction in regard to the building — this unwillingness to hear anything about the condition of affairs which has given rise to defendant’s present position. He very erroneously believed that the fact that he had taken out a policy of insurance with the Home Insurance Company, and that that company would make repairs, relieved him of all liability in the matter — that he had nothing to say in regard to the matter, and could safely wash his hands of the whole affair. Counsel say that by no rational construction could Alter be made responsible for the builder’s want of judgment. We are of the opinion that the error of judgment (if such it was), as to the extent of what was necessary to be done to .place the building in safe condition, must be held to be Alter’s error of judgment — he had no right, as far as the public was concerned, to transfer to others the duty of determining what should be done for purposes of safety. The company had interests of its own adverse to the owner — it was interest.-d in making the repairs as light as possible, at as small an expense as possible, while the rights of the public exacted that the repairs should be made as full and complete as security to others required. Defendant chose to permit the company and its employees not only to do certain work, but to decide and determine that certain other work need not be done. In adopting the last decision Alter made it his own. The situation is no wise affected by the fact that there was a contract between the insurance company and Alter. If Alter had in direct terms requested the company to send a man to the building to see what repairs were needed for purposes of safety, and it had sent its builder, Walther, for that purpose, who reported that everything was safe, when, in point of fact, it was not, unquestionably Alter could not shelter himself behind the erroneous report of the builder. (Howe vs. New Orleans, 12 An. 482.) This is practically .what has happened in this case, the case supposed differing only in degree.

In Gallagher vs. Southwestern Exposition Association, 28 An. 944 (cited by defendant), the court refers to the fact that the whale work had been confided to a contractor. We do not think that expression was accidental, but had in view cases where less work was contracted for than the necessities of the situation demanded for safety. We are of the opinion that the judgment appealed from, decreeing the defendant Alter legally responsible to plaintiff for the personal injuries which she received as set forth in his petition, is correct. The extent of his responsibility is a different matter.

Before the case went to trial the plaintiff was interdicted by reason of insanity, and her curator was made party as plaintiff. During the trial testimony was permitted (over defendant’s objections) to be introduced to show the insanity of the plaintiff, its character as to probable duration and its cause. Defendant objected that evidence was not admissible under the pleadings, plaintiff having filed no amended nor supplemental petition setting up the facts which were sought to be proved. During the trial (and over defendant’s objection), the judge, the jury and the clerk proceeded to the Louisiana Retreat (an institution for the care and custody of insane persons), situated in New Orleans, “for the purpose (so the minutes say) of viewing the plaintiff, and for the purpose of taking the testimony of the Sister in charge.” The record shows that the 'plaintiff was brought in and examined at the Retreat, and the testimony of several of the “Sisters” of the institution was there taken. Defendant complains greatly of this proceeding as one intended solely to rouse the sympathy of the jury. He argues that the large amount granted to the plaintiff was greatly due to this visit to the Retreat.

The evidence in this ease establishes beyond question the physical injuries received by the plaintiff, and traces them to the falling of the wall of No. 30 South Peters street. We think the sufferings which she underwent; were undoubtedly very great. We think, independently of any question of insanity, that her ability to provide for her own support and comfort was permanently affected and lessened, if not entirely cut off. We do not think that plaintiff’s insanity has been established as having been the result of injuries received by her at the time of the falling of.the wall, with the certainty which the law requires.

It may be that the facts are as plaintiff contends, but the period which intervened between the accident and the insanity was too long, and the existence of producing causes prior to the accident too possible to justify us in considering plaintiff’s position on this point legally established. The fact that none of plaintiff’s family were placed upon the stand to controvert the theory of plaintiff having been at one time struck on the head by a flat-iron is an unfavorable ■circumstance. It is true that that theory rests upon the slightest of foundations — the statement of the insane person herself since her insanity to her attending surgeon, but as he stated in his testimony •such declarations, even coming from an insane person, are frequently true. We think that the antecedent condition of plaintiff as to her mental condition should have been gone into by the plaintiff as part of the proof, and that in so doing it would have been very easy to have negatived the existence at any time of such a blow on the head as was stated. We must throw out of consideration, in determining this case, the insanity of the plaintiff. We are of the opinion that the jury did otherwise, and based its verdict to a considerable extent upon that fact.

We would have been forced to reduce the verdict, independently ■of any consideration of the visit of the judge and jury to the Louisiana Retreat, and of the testimony there taken, but we think it right, however, to say that that visit should not have been made, nor that testimony taken. The physical condition of the plaintiff' had been fully proven — it really was not an issue in the case — the fact of her insanity.was a conceded fact, and was, besides, established by judgment. The only thing which the jury could “view” through the visit was the fact itself of a depression in the head spoken of by the .witnesses, which had been fully testified to. The jury were not experts, and would be no further advanced in their deliberations by seeing this depression than they would be by following the'testimony of the experts, which had been taken before them. We agree with the defendant that the visit to the Retreat had no good legal reason, to be based upon, and that its only effect would be to prejudice the-jury against the defendant and cause them to swell the damages. "We think a judgment for the sum of four thousand dollars would -fully meet the ends of justice and of law.

It is therefore ordered, adjudged and decreed that the judgment, appealed from be amended by reducing the amount for which judgment is rendered in favor of plaintiff against defendant from sixty-five hundred dollars to four thousand dollars, and, as so amended,, that it be affirmed.'


author: Watkins, J.

text:
    No. 11,902.
    Basile Economides vs. J. H. Hinrichs et al.
    Ia case the City Council grants to any person a lease of a market stall or stand, in the vicinity of a market of the city, revocable at its pleasure, the tenure of the lessee, or of any sub-lessee, is necessarily precarious.
    And, in case any stall or stand shall remain unoccupied during three days consecutively, the lessee of the'market shall hold the same abandoned and subject to the demand of any other applicant.
    APPEAL from the Civil District Court for the Parish of Orleans.. King, J.

      James J. MeLouglilin for Plaintiff, Appellant.

      Kerr & Duvigneaud and Horace E. Upton, Geo. W. .Flynn, Assistant Oity Attorney, and E. A. O’ Sullivan, Gity Attorney, for Defendants, Appellees.
    Argued and submitted December 2, 1895.
    Opinion handed down January 6, 1896.
    Rehearing refused February 10, 1896.
   The opinion of the court was delivered by

Watkins, J.

This action is for the recovery of three thousand' dollars damages against the lessees of the city markets in New Orleans, the Oommissioner of Police and Public Buildings and his bondsmen, and the police officer on duty at the market, as trespassers and wrongdoers, bound in solido.

From a judgment in favor of defendants the plaintiff has appealed.

His averment is, that he is the owner and proprietor of a certain stand, with counters, fixtures and appurtenances thereunto belonging, situated at the upper end of the French Market, and has op - erated same for along time, where he sold cakes, candies, soda-water and confections.

That on or about the 15th of August, 1894, during his absence-some of said defendants, assisted by others, forcibly broke open and' took possession thereof and his property therein contained, and refuse to return same, although repeatedly demanded of them.

He avers that said unlawful seizure and appropriation of his property was malicious and calculated “ to injure him in his business and1 in the estimation of the community, and in his own wounded feelings in the full sum herein claimed and set forth.”

He alleges that the party making said seizure acted as the agent, of the market lessees, and that he has converted the property to his own use and leased the premises to another; and that the commi-sary of the market aided and assisted in the seizure and occupancy of his stand, acting under the instructions cf the Commissioner of' Police and Public Buildings.

His estimation of the damages sustained is as follows, to-wit:

First — Actual value of property seized and detained, five hundred dollars.

Second — Loss of trade and business, one thousand dollars.

Third — Loss of credit, etc., one thousand five hundred dollars.

Several answers were filed, generally pleading the general issue. Some of the defendants urge the plea of no cause of action.

The market lessees and Commissioner of Police aver that the acts complained of were performed by them in the exercise of the police power vested in the city of New Orleans and for the promotion of the public health, and that any injury the plaintiff has suffered in consequence thereof is damnum absque injuria.

The proof shows that originally permission was given to Paul Mailhes to, open and operate a soda water stand at the end of the French market, “revocable at the pleasure of the council.” Ordinance No. 6435, C. S., date June 7, 1892. Plaintiff claims to have acquired under Mailhes. But he admitted in his testimony that Ire afterward sold it to an Austrian, whose name he could not recall, about two years ago; and that afterward “ he gave it back to him.” That he subsequently sold it to Mr. Waterman, of the soda water company, and that he subsequently sold it back to him; or, rather,, farmed it out to him in the way of a lease.

From the foregoing, and other evidence in the record, it appears that plaintiff possessed a feeble and uncertain tenure to the stand, at best. The right Mailhes acquired from the council was revocable at their pleasure. His occupancy of it was merely occasional, and it was constantly passing from the possession of one to that of another, in such a way as to indicate that the franchise was considered practically of but little value at any time. Frequently it was not in use at all.

The markets of New Orleans are leased under general market ordinance, and the lessees are required to conform with all the requirements specially set forth in Ordinance No. 4155, O. S., entitled “ An ordinance for the government of the public markets of the city of New Orleans,” Sec. 10 of which provides: “That no person or persons shall be permitted to occupy or control, directly or indirectly, more than two stalls or stands in any one market, and when any stall or stand shall remain unoccupied during three days consecutively, the lessees of the market shall hold the same as abandoned and^subjeet to the demand of any other applicant, and in the event the lessee shall refuse, fail or neglect to rent said stand or stall so unoccupied, then, in that event, it shall become the duty of the commissioner of public buildings to lease or rent the same; provided, however, that the stall or stand so vacated shall not be leased to any other than an actual occupant.”

It is manifest that under the circumstances the market lessees were charged with the duty of treating the stand of plaintiff as having been abandoned, and subject to the demand of any other applicant.

The lease was revocable at the pleasure of the council; and the plaintiff did not and could not acquire a right in perpetuity.

In our opinion, the court below properly disposed of the cause.

Judgment affirmed.


text:
    No. 11,975.
    Henry P. Hake vs. William Hake and William Coach.
    Suit haying been instituted against tile two individuals who compose a commer-. cial partnership in process of liquidation, the prayer being for a judgment, against them in solido, and the evidence disclosing that the plaintiff had rendered services only for the exclusive benefit of one of the members who was. unable to give the business his time and attention, the other should be exonerated from liability therefor.
    In such case the expenditures made by the firm, or from the assets thereof, in partial or complete settlement of said claim, may go into the partnership settlement when made inter se.

    APPEAL from the Fourth Judicial District Court for the Parish of Grant. Wear, J.

      R. J. Bowman and D. E. Corbitt for Plaintiff, Appellee.

      John C. Ryan for Defendant, Appellant.
    Argued and submitted December 20, 1895.
    Opinion handed down February 10, 1896.
   The opinion of the court was delivered by

Watkins, J.

Plaintiff claims of defendants in solido $3381.17 with interest from December 9, 1892, on an open account for this, to-wit:

That in 1886, the defendants formed a partnership “ for the purpose of buying and selling lumber,” and that they “ continued said business until 1892, when William Hake filed a bill in chancery in the Circuit Court in the county of Kent, State of Michigan, for a set-: tlement and dissolution of said partnership; ’ ’ which suit is still pend - ing — all of the parties being citizens of the State of Michigan.

“ That about 1886 the said partnership employed petitioner at the price of seventy-five dollars per month, and petitioner remained in the employment of said partnership until December 9, 1892.

“That said partnership was a commercial one, and that its engagements bound, the members thereof in solido; and that the items o,f «aid account are entered on their books, and their said indebtedness has been repeatedly acknowledged by the defendants.

“That said partnership was dissolved by said suit for a settlement and dissolution,” and on account of the “disagreement of the .partners.”

That the defendants “ are residents of the State of Michigan and .absent from the State of Louisiana,” but possess a large amount of property within the jurisdiction of the court, for the attachment of which they prayed.

On plaintiff’s prayer, a curator ad hoc was appointed to represent the absent defendants, contradictorily with whom, after his appointment, proceedings were inaugurated and property attached.

The account annexed to the petition is of the following tenor, viz.:

Gka.ni) Rapids, Micli., October 1,1894.

Coach & Hake, Dr.

To Henry P. Hake, for services.

1886. .May 25, Services commenced, to December 9,1892, six years and six months, at $75 per month.$5,850 00

Cr.

'By cash.$2,311 23

.By goods from store. 167 00

-$2,468 83

Balance due. $3,381 17 Interest item omitted.

On the trial there was judgment in favor of the plaintiff against the ■defendants in solido for the sum of three thousand three hundred and eighty-one dollars, being the amount sued for, less the credits admitted by the plaintiff in his petition, and costs, sustaining the .áttachment,” etc. • ...

From this judgment the defendant, William Ooach, alone has appealed, William Hake not appearing in this court to complain of the judgment.

In the lower court, the defendant, William Coach, personally appeared, and through his attorney filed certain exceptions to the sufficiency and regularity of the proceedings, which were overruled; but they need no mention, inasmuch as they are not mentioned in his brief or oral argument.

For answer, the curator ad hoe appointed for William Hake plead .a general denial.

Thereupon counsel for William Coach tendered the exception that, plaintiff’s suit is against the partnership of Coach and Hake, and •.that it was at date suit was filed, as well as at this time, “ in course •of liquidation and settlement ” in the suit pending in the Circuit Court of Kent county, Michigan, to which plaintiff makes reference in his petition, and where a.11 the partners reside; “ and that plaintiff’s redress and interest, if any he has, like other creditors of the partnership, is in the suit for the liquidation and settlement of the partnership affairs of which he is a creditor, and not in' a separate •suit against the partnership and partners, individually. That, if he has any action at all against the partners individually, it is only for •the balance that might be due him, if any, after the partnership property and effects have been disposed of and the proceeds applied to the payment of the partnership debts.

‘ ‘ That no action lies against the partners individually, during the pendency of a suit for a settlement and liquidation of the partnership.”

As supplementary thereto, counsel also filed an exception to the ■jurisdiction of the court ratione personse.

The exceptions were taken up, and referred to the merits; and thereupon the defendant Ooach filed an answer in extenso. The judgment, substantially, rejects the exceptions in giving the amount awarded against the defendants in solido.

In our opinion the debt claimed of the defendants is one of the partnership, and not of the individuals.

■ This fact substantially appears from the face of the petition, account and judgment.

In the petition it is alleged that in 1886 the two defandants formed •a partnership for the purpose of buying and selling lumber, and that it continued until 1892, when suit was filed in a Michigan court for its liquidation and settlement; which suit is still pending.

But in view of the fact that this exception was not distinctly passed upon by the judge a quo, and no stress has been laid on that •question in argument of counsel on either side, we are of opinion that we should take up the case as we find it and deal with it accordingly.

An examination of the evidence of the witnesses discloses the following facts pro et eon :

Henry P. Hake, plaintiff, as a witness, states that the services charged for were rendered as charged, and the amount credited was received at various dates during the period of his employment. That he was not employed as book-keeper, but as general manager for the defendants’ lumbering business; but there was no price agreed upon between himself and the defendants for bis services.

Ha states emphatically :

“William Ooach (the defendant) employed me, but there was no definite contract made.”.

The defendant, William Hake, says, as a witness on behalf of the plaintiff, that he is “ not acquainted with the facts ” with regard to the services piaintiff had rendered the firm; and he testifies to no facts relative to his son’s employment.

One of the plaintiff’s witnesses, who testified under commission, said that managers of a lumbering business received higher wages than ordinary laborers — from fifty dollars to eighty-five dollars more per month. That ordinary laborers in that business receive from twelve dollars to thirty-six dollars per month.

He says the services of the plaintiff were worth from seventy-five dollars to one hundred dollars per month, and his board.

Another witness testifies to the same effect.

Another witness places his estimate of plaintiff’s services per month at one hundred dollars to one hundred and twenty-five dollars.

Neither of those witnesses profess any personal knowledge of the parties or of plaintiff’s services. Theirs is of the nature of expert testimony, and their statements were based upon hypothetical interrogatories exclusively.

Charles W. Hake, brother of the plaintiff, states that he has been for years past engaged as manager of the wholesale liquor, establishment of the defendant, Wm. Hake, at Grand Rapids, Michigan, and, in that capacity, he has handled his father’s interest in the partnership of Coach & Hake. Knows that his brother worked as general manager for defendants. Says such services were usually paid for at the sum of sixty dollars to eighty dollars per month the year round. He says the defendant, William Coach, told him that his brother, Henry, had learned the business very rapidly, and “ that he had concluded to pay him off at the rate of sixty dollars per month the first year, and seventy-five dollars the following year.”

The plaintiff states, further, that he was not only manager of defendant’s lumber camp, but that he kept books part of the time, and that his services were worth from sixty dollars to seventy-five dollars per month.

This is the sum and substance of the plaintiff’s testimony.

On the part of the defendant, one witness says twenty-six dollars to thirty-five dollars per month “clear of board,” is about the value of plaintiff’s services. That he is thoroughly acquainted with such 'matters.

Another witness states it to be a fact, that defendant, William Coach, was the manager and superintendent, and that the plaintiff occupied only a subaltern position.

Another witness states that he was engaged at work in the defendant’s lumber camp while plaintiff was there. That the plaintiff was in charge of the supplies, and kept the books and the time for the laborers in the camp.

That “a man’s services of Hake’s capacity in the business he was .in, are worth twenty-six dollars a month and board during the period of his employment.” •

That he has done “the same work in the same capacity as Henry Hake” before he went to work on his own account.' That he has been in the lumber business for thirty years as proprietor, and is quite familiar with all the branches of the business. That he has frequently been in the camp where the plaintiff was employed and has enjoyed opportunities of seeing what kind of work he was engaged in doing, and of judging of his ability and capacity. That he has, himself, worked in the same capacity as that in which Henry Hake worked for one dollar per day and board.

Another witness says that he was at work for the defendants from 1889 till 1892, and was acquainted with the plaintiff and the kind of work he was doing.

The plaintiff was occupied irregularly — he frequently being absent for several months at a time. That he had understood from the plaintiff that he was representing his father’s interest in the business. That he (witness) was familiar with the lumber business of defendants from the 21st of May, 1886, to the 9th of December, 1892; and was also familiar with the character of business Henry Hake was doing during that period of time.

He places the value of plaintiff’s services at twenty-six dollars to thirty dollars per month and board. That is the amount the Nestors paid him for the same kind of work, and that plaintiff’s services were not worth any more. That plaintiff told him many times that he was engaged in looking after his father’s interest in defendants’ business. That he (witness) has been engaged in the lumbering business for more than twelve years.

That from the fall of 1889 to 1892 (he) worked right “ with Henry Hake during the time he was in camp and knew the kind of work he was doing and the value of his services, and thinks he is a compe - ■tent judge. That he fixes the value of his services at twenty-six • dollars to thirty dollars per month, because he thinks they were not worth more than that.”

. Says “ he was not an experienced scaler by any means; and that men could be hired to do the same work he did at the wages named.”

Another witness states that he knew plaintiff from the 17th of '.September, 1890, to the time of delivering his testimony. That he • (witness) was working under Mr. Ooach at the time. This witness .makes an exactly similar statement to that of the witness last mentioned and places twenty dollars per month as his estimate upon plaintiff’s services,-with board. . ,

Another witness makes equally as circumstantial a statement and puts his estimate-at twenty-six dollars to thirty dollars per month, with board.

William Ooach, one of the defendants, states, as a witness, that the plaintiff was inexperienced when he first came to the camp, and knew nothing about the lumbering business whatever. That he told the plaintiff that he could not pay him any wages, but his father would pay him whatever he thought he would be able to earn. That to this proposition the plaintiff assented. That he never employed him nor agreed to pay him.

He further states that he himself was the general manager of the business of the partnership, and gave to it his services, time and attention.

That Mr. William Hake, his partner, gave neither time nor attention to the business, he being at the time engaged in the wholesale liquor business.

He states very positively that “there was an understanding between himself, William Hake and Henry P. Hake that Henry’s ••services were to go as part set-off for his (William Coach’s) services, •and that his (Henry’s) father was to pay him whatever such services •were worth.”

That for the entire period plaintiff’s services were not worth more than twenty-six dollars per month and board; and that he boarded and lodged him.

That “from time to time Henry would need some money, and (he) asked his father if it would be all right for (him) to give Henry money when he wanted or needed it; and he said it would.”

He further states that “the plaintiff was frequently absent from .the camp for three or four months at a time.”

Another witness confirms the statement of Coach, and states that (he was at work for defendants during the whole period of time the plaintiff was there. That he (witness) was the foreman of the camp, ;and the plaintiff was under him; and he places twenty to twenty-six .dollars as the value of his services. States that he paid a man of plaintiff’s experience that price, and gave the job to Henry because toe was a son of old man Hake.”

Of plaintiff’s four witnesses who testify with respect to the value ■of his services per month, one says sixty to seventy-five dollars; .another says from sixty to eighty dollars; another says seventy-five to one hundred dollars, and the last says from one hundred to one hundred and twenty-five dollars.

It becomes quite evident, when all the evidence is considered, that those estimates are hypothetical, problematical and much exaggerated.

They are the statements of persons who are confessedly unfamiliar with the facts, and, personally, knew nothing of the character of plaintiff’s employment or services.

On the contrary, each and every one of the defendant’s witnesses testified from actual knowledge and gave his personal experience and based his estimate upon actual facts.

With regard to the value of plaintiff’s services, one witness places the estimate of twenty dollars to twenty-six dollars per month, with board; another says twenty dollars to thirty dollars; two others say twenty^six dollars and two others at twenty-six dollars to thirty dollars.

" Taking the mean between the two extremes of 'the estimates of plaintiff’s witnesses at seventy-five dollars and that of the defendants at twenty-six dollars, there is a difference of forty-nine dollars.

But it is quite evident that the testimony of the defendant’s witnesses must be accepted as our guide, as it is more accurate and conservative; and, placing plaintiff’s services at twenty-six dollars per month, net, the total amount would approximate one thousand eight hundred and seventy-two dollars, as against the amount of two thousand four hundred and sixty-eight dollars and eighty-three cents, which he judicially admits having received.

But it is a fact, which is substantially established by the evidence, that the plaintiff was employed for the express purpose of representing his father’s interest in the partnership, as he could not give it his personal attention. On this evidence — and, notwithstanding the plaintiff had the closing of the case, neither he nor any of his witnesses took the stand to deny the positive statement of William Ooach and his witnesses — we can safely affirm that for plaintiff’s services there can be no charge against the defendant,. ■William Ooach.

As this suit does not involve any adjustment or settlement of partnership accounts inter se, it will serve every necessary purpose to decide, upon the issues raised herein, that plaintiff has no just and well grounded demand against William Ooach as appellant, leaving-the .judgment in all other respects in statu quo.

It is therefore ordered and decreed that the judgment appealed from by William Ooach be, and the same is, in respect to him, reversed and annulled; and it is further ordered that there be judgment in his favor rejecting plaintiff’s demand as to him, with all costs of both courts.