author: McEnery, J. Nicholls, C. J.

text:
    No. 12,367.
    Lake Bistenbau Lumber Company, Limited, vs. J. B. Mimms, Sheriff; Lane & Bodley Co., Intervenors.
    When the State court has acquired jurisdiction in a case, entered judgment, and is proceeding to its enforcement, the appointment of a receiver by United States Court to the defendant corporation can not divest the jurisdiction of the State court and stay the execution issued to enforce the judgment.

      Nicholls, C. J., 07i Rehearing. — It is too clear for argument that the seizing creditors under this seizure can not be forcedly referred to the Circuit Court of the United States for the adjudication of their rights by reason of the fact that subsequently to the seizure, plaintiffs in injunction already in the State court went into the hands of receivers appointed by the United States Court.

      “ Appellants -wlio successfully resisted a motion made by tlie appellees in the lower court for a new trial based on the ground that the judgment was contrary to the law and the evidence, can not, when they themselves appeal from the judgment and succeed in having the judgment reversed and the cause remanded for a new trial, throw the costs of appeal on the appellees.” (Oteri vs. Oteri, 37 An. 76.)
    A PPEAL from the Second. Judicial District Court for the Parish of Webster. Watkins, J.

      Leonard & Randolph and L. K. Watkins for Plaintiffs, Appellants.

      L. K. Watkins for A. Goodwill, for Surety on Injunction Bond, Appellant.

      Wise & Herndon for Intervenors, Appellees.
    Argued and submitted January 21, 1897.
    Opinion handed down February 1, 1897.
    Rehearing granted March 29, 1897.
    Submitted on rehearing on briefs April 26, 1897.
    Opinion handed down May 10, 1897.
   The opinion of the court was delivered by

McEnery, J.

The Lane & Bodley Company, intervenors, mortgage creditors of H. S. Mathews, obtained judgment against him. Execution issued on this judgment and the mortgaged property was •seized. ,

The plaintiff company enjoined the seizure. Lane & Bodley filed an intervention and third opposition. The sheriff filed the usual answer in such eases.

After the seizure the Federal Court appointed a receiver for the Lake Bisteneau Lumber Company. The receiver filed an exception of no cause of action to the opposition, which was overruled. The receiver resigned. Others were appointed by the court, who filed .an exception to the jurisdiction of the court, because of the pending receivership in the United States-Court. There was judgment sustaining this motion.

All parties appealed.

It is urged by the Lane & Bodley Company that the judgment was not that which was rendered by the District Judge, and that the attorney who prepared it for the judge’s signature was in error. The record seems to indicate that such is the case. We have briefly alluded to such portions of the pleadings as will show the progress of the case leading to the motion to dismiss and the judgment thereon.

The State court had first acquired jurisdiction of the case. It is a universal rule that when two courts have concurrent jurisdiction of the same subject matter, the court which first obtains jurisdiction and possession of the res retains it to the end of the controversy, to the exclusion of the others. High on Receivers, Sec. 50; Hagan vs. Lucas, 10 Peters, 400; Peale vs. Phipps, 14 Howard, 368; Geilinger vs. Philippi, 133 U. S. 247.

“ The leading general principle as to courts of concurrent or coordinate jurisdiction is that whichever court of those having such jurisdiction first acquires possession of a cause will retain it throughout.” American and English Encyclopedia of Law, Vol. 12, p. 292, note; Ober vs. Gallagher, 93 U. S. 199; Barkdull vs. Herwig, 30 An. 618.

This jurisdiction extends to the execution of the judgment rendered. Hewes vs. Carr, 10 Bush (Ky.), 431.

The fact of the appointment of receiver to the plaintiff corporation by the United States Court, could not divest the jurisdiction acquired by the State court. It could not operate as a stay of the execution issued by the State court in the execution of its judgment. Story’s Equity Jurisprudence, Vol. 2, paragraph 950, 13th Edition; 59 Ala. 211; 8 Cal. 26; Id. 66.

The judgment appealed from is annulled and reversed, and it is ordered that the case be reinstated on the docket of the lower court as it existed before said judgment, to be proceeded with in due course of law. . The plaintiffs to pay costs of appeal.

On Application eor Rehearing.

Nicholls, C. J.

The Lane & Bodley Company obtained judgment in she District Court of Caddo parish against H. S. Mathews for six thousand one hundred and twenty-five dollars, with recognition that said amount was secured as to payment by special mortgage and vendor’s privilege on certain described property situated in Webster parish, and ordering that said property be seized and sold to satisfy the judgment.

The judgment creditors obtained from the Caddo court a writ of fi. fa. in execution of this judgment, directed to the sheriff of Webster parish, in which he was ordered not only to make a general seizure of the rights and property of the defendant, but especially to seize the property which had been described in the judgment as that which was subject to the mortgage.

The sheriff of Webster parish under the writ of fi. fa. made a seizure of property. The Lake Bisteneau Lumber Company filed a petition in the District Court of Webster parish, in which they alleged that Mimms, sheriff of that parish, had illegally trespassed upon their property, and had illegally seized and advertised -for sale the steam saw-mill, engines, boilers, improvements, buildings and fixtures, worth over forty thousand dollars, to satisfy an alleged debt of not over seven thousand dollars, alleged due by Mathews to the Lane & Bodley Company on a fi. fa. issued out of the District Court for Caddo parish, and had advertised to sell their property on a judgment debt alleged, in which and to which they were not made parties. That their property was not subject to seizure and sale in said suit and under said fi. fa.; that they had demanded of the sheriff a release of their property, but he had refused to make such release, and was proceeding to sell the same in connection with the S. 54 of the N. E. 54 of the N. E. 54 of the N. E. 54 of Sec. 7, T. 17, R. 9, in Webster parish.

Plaintiffs averred that their property so seized formed no part of the land described in the act of mortgage, but was property .purchased, and owned, and occupied by them for over three years, and by its acquisition by trade and purchase, and by acquisition by prescription perfecting title therein in them; that they were the sole owners of said property seized, and had joined it to other machinery and imbedded same as a whole in the land and soil owned and occupied by them in Sec. 7, T. 17, R. 9, and then formed part of other lands owned by them, different from the lands on which the seizing creditors alleged a mortgage. That petitioners’ said property, by use and destination, and by being put on, imbedded in, fastened to and set down on brick and mortar, and fastened to by them and by their consent, had become and were immovables, both by destination and by forming part of the soil, and by use and connection with the soil and other machinery and indivisible, and not subject to being taken apart and used without damage or destruction of the whole as a unit and unfitting same for use. They prayed for .and obtained an injunction, directed against the sheriff, prohibiting him from making the sale of the property, and that there be judgment decreeing petitioners to be the owners of the property. Plaintiffs, in injunction, did not attempt to make the judgment seizing creditors, the Lane & Bodley Company, parties defendant to the injunction proceedings.

The Lane & Bodley Company, by leave of court, made themselves parties to .said proceedings by what they designated an “ intervention and third opposition,” alleging in their pleadings that they were the real parties in interest. In these' pleadings they proceeded to “ answer” the petition for injunction. After denying all its allegations, they admitted the seizure made by the sheriff, but alleged that the same was proper and legal. They averred that they had a mortgage on the lands, building and machinery, and a vendor’s privilege on the machinery, which had been seized and which had been recognized in the judgment rendered by the District Court for Caddo, in execution of which the seizure had been made under a writ of fieri facias. That the land upon which the mill property stands with all the machinery was purchased by Mathews from W. S. Wadley after the buildings and machinery had been placed thereon, and it was the intention of Wadley to sell and Mathews to purchase the lands upon which the said buildings and improvements then stood, for the express’purpose, on the part of Mathews, to mortgage the said land, buildings and all machinery thereon to the Lane & Bodley Company. That the description in said deed of sale was a mere clerical error on the part of the purchaser and seller, and the surveyor to whom they applied for a description of the land; that it was described as the S. H of N. E. 34 of N. E. 34 of N. E. 34 of Sec. 7, T.-17, R. 9 of Webster parish, when it should have been described as so much of S. 34 of N. E. 34 of N. E. 34 of Sec. 7, T. 17, R. 9 upon which the saw-mill buildings and machinery of said Mathews then stood, which deed to Mathews was duly recorded July 29, 1891, and on the 1st day of July following Mathews executed his mortgage to the Lane & Bodley Company for nine thousand- six hundred and thirty-one dollars, in which mortgage it was expressly stated that the mill machinery was then on said land, thereby designating what lands were described and intended. They averred that on January 16, 1898, Mathews sold the identical lands to the plaintiffs in injunction, and described in the deed to Mathews, and stating that it was the same property upon which the mill building and machinery then stood, and that the plaintiffs in injunction were thereby estopped from denying that said machinery and buildings were upon said land purchased from Wadley; that plaintiffs in injunction had recognized the rights of the Lane & Bodley Company under their mortgage by paying a portion thereof. They prayed that Goodwill, president of the Lake Bisteneau Lumber Company, be cited to answer and served with a copy of their petition; that on final hearing the writ of injunction be dissolved with damages, and that the land upon which the mill, machinery and buildings of plaintiffs then stood be decreed to be the land sold by Wadley to Mathews, and by Mathews to the Lane & Bodley Company, and subject to the mortgage and vendor’s rights of the latter company, and that the sheriff be ordered to proceed with the sale, and that the description given in said deed was a mere clerical error, and not the intention of the parties, and that the Lane & Bodley Company have judgment against the plaintiffs in injunction and the surety on the injunction bond in the sum of five hundred dollars.

The Lake Bisteneau Lumber Company appeared and by counsel moved to dismiss the intervention of the Lane & Bodley Company on the ground that it would retard the trial of the issues presented in the main suit, and for the reason that it was apparent on the face of the papers that the intervenors disclosed no cause of action and did not present before the court the proper parties for an action to ^correct the description to the property; that, therefore, for want of proper parties and a cause of action the intervention should be dismissed.

This motion or exception appears to have been overruled.

The sheriff answered that he had no interese in the suit except in his official capacity.; that he was proceeding in all respects in a legal manner, and he prayed that the writ of injunction be dissolved and the suit dismissed.

On November 27, 1895, the attorneys of record of the Lake Biste-neau Lumber Company suggested to the court that that corporation had been dissolved, and that that cause could not be heard or any action taken thereon for want of parties.

The Lane & Bodley Company then moved that Andrews, Walters and Gearhart, receivers of the corporation, be made parties and duly cited. It was ordered accordingly. Citation was made upon Walters; Gearhart and Andrews were not cited, the sheriff stating, that they could not be found.

In September, 1896, Walters, receiver, appearing in court by counsel, alleged that intervenors (the Lane & Bodley Company) had no right to appear in that court to take further action in the cause; that the District Oourt was without jurisdiction in the matter, as the' pending receivership of the affairs of the Lake Bisteneau Lumber-Company, Limited, in the United States Circuit Oourt of the Western District of Louisiana, holding sessions at Shreveport, had operated a suspension of the District Court’s actioD in the cause, and as no permission to sue had been granted by the court which had appointed the receivers. Appearer, as one of the receivers of the said company, moved and prayed to be dismissed, and for all orders necessary and for general relief.

This motion having gone to trial the District Oourt on the 9th of October, 1896, rendered judgment in the following words:

“ In this cause by reason of the law and the evidence on the tria* of the motion to dismiss this suit, because the court is without jurisdiction: It is ordered, adjudged and decreed that the suit be dismissed and for costs.”

On the same day, the Lane & Bodley Company, interpreting this judgment as one prejudicial to themselves, made a motion for a new trial, assigning as a reason: “ That the judgment of the court dismissing this action is contrary to the law and the evidence.” This motion appears to have been overruled, and they then applied for and obtained an order for a suspensive or devolutive appeal. This appeal they never perfected by giving bond.

In November, 1896, Goodwill, who was surety on the injunction bond of the Lake Bisteneau Lumber Company, applied by petition for appeal from the judgment. In this petition he averred that the Lane & Bodley Company had proceeded to the sale of the property enjoined, had acquiesced in the judgment and abandoned their appeal.

He was granted a devolutive appeal and gave bond as required.

On the 19th of November, 1896, the three receiver’s of the Labe. Bisteneau Lumber Company applied for and obtained an order for a devolutive appeal, which appeal they perfected by giving bond.

In their petition for the appeal, they averred that the judgment rendered was signed in error by the judge of the court, and it was contrary to the law and the evidence.

Two transcripts were filed in this court and two appeals were •docketed under the same title, but different numbers, one being No. 12,367, the other No. 12,368.

The Lane & Bodley Company are before the court simply as appel-lees who have asked no amendment of the judgment.

This court annulled and reversed the judgment appealed from, •ordered that the case be reinstated on the docket as it existed before the judgment to be proceeded with in due course of law and decreed •that appellants pay costs of appeal. The latter having asked and •■obtained a rehearing, the case was submitted on briefs.

Appellants say “ they made no motion in the lower court to dismiss the suit. The motion made and sustained was on an exception interposed by one of the receivers (Walters) averring that the Lane & Bodley Company, intervenors, had no right to compel his appearance in the lower court, and his prayer was that he be dismissed, that is that he be relieved from the necessity of appearing in the cause in that court. On the trial of that motion no judgment could be rendered dismissing anything or anybody except the receiver, Walters * * *

“The judgment appealed from dismisses the suit of the plaintiffs. It is clear that no such judgment could be rightfully rendered on the .pleadings in the cause. If appellants be successful in this court they should not be burdened with costs made necessary by the fault •of the appellees or by a decree erroneous to their prejudice. In the •opinion read some propositions are announced which are not only ■unnecessary to the decision of the question before the court, but are also, we submit, with due deference, not applicable to the ease at bar.”

The confusion which has arisen in this case has been due in part to the fact that the seizure made in the matter of the suit of the Lane • & Bodley Company against Mathews was not made in the parish of ■Oaddo, where the judgment was obtained, but by the sheriff of the parish of Webster, where the land seized was situated — to the further Tact that the petition for the injunction which issued was addressed to the District Oourt of Webster instead of Caddo; that the sheriff of Webster parish was alone made the defendant in injunction; that the suit was docketed in Webster parish as that of the Lake Bisteneau Lumber Company vs. J. B. Mimms, Sheriff, and that the Lane & Bodley Company, when they went into the case, styled themselves intervenors and third opponents, asked for citation upon the Lake Bisteneau Lumber Company and prayed for a decree apparently as upon a reeonventional demand for the reformation of the the contract of mortgage.

Had the Lake Bisteneau Lumber Company made the Lane & Bod-ley Company parties to their injunction proceedings as they should have done, we do not think that the position of the latter corporation in the case would have been misunderstood. They would have obviously occupied that of defendants in the injunction proceeding, brought as such into court by the Lake Bisteneau Lumber Company themselves. That is now and has been all the time their status in the injunction proceedings. When left out and ignored by the plaintiff in injunction, that which they did was simply to make themselves parties defendant therein. What is styled an intervention and a third opposition on the part of the Lane & Bodley Company, is nothing more than an answer on their part. The prayer for citation on the plaintiffs in injunction was simply to bring home notice to the latter that the seizing creditor had, with leave of court, become parties defendant, and to advise them of the allegations and defences which they made. The Lake Bisteneau Lumber Company was not brought into court at the solicitation of the Lane & Bodley Company as defendants; it was they, themselves, who went into court as plaintiffs, directing an attack against the proceedings pending in court in the suit of the Lane & Bodley- Company against Mathews. The latter corporation’s position was not aggressive, but purely defensive. If the allegations of their answer be sustained by proof (as to which we express no opinion), there would he no necessity for a reformation of the contract of mortgage — the deed of mortgage would stand good without any special decree. Appellants have fallen into the error of supposing that the appellees are plaintiffs in proceedings in which they, themselves, are sought to be made defendants therein.

The decree which appellees asked for in their answer was simply that which would, of necessity, have really to be given if appellees’ defensive position should be sustained, even though it might Dot be given in direct terms. The special prayer inserted in the answer could be stricken out in the ease as surplusage, as the court’s judgment (if for appellees) would, without it, cover all the issues raised in the injunction.

Had the seizure been made in Caddo, and had the injunction c issued from the District Court of that parish, we think plaintiffs would have realized that the injunction which they took out was a mere incidental or adjunct proceeding engrafted by them upon the suit of the Lane & Bodley Company, no matter under what title the proceedings might have been docketed (Rowlett vs. Shepherd, 4 La. 90, and Johnston vs. Hickey, 4 La. 293), and that a person can not go into a court as a plaintiff and then question the right on the part of the defendant, or of one who was legally entitled tO' be the defendant, to make a defense in the case. The sheriff had no' interest in the subject matter of the ownership of the property seized and was without authority to stand in judgment to test the issues which plaintiff sought to raise contradictorily with him. We do not understand appellee to have advanced a reconventional demand against appellants in any legal sense of the word. The facts of the case are simply these: The Lane & Bodley Company, holders of a claim against Mathews secured by a special mortgage and vendor’s privilege, with the clause de non alienando, on certain property described in the act of mortgage, obtained a judgment against Mathews with a recognition of his mortgage and privilege. In execution of this judgment certain property was, under a writ of fi.fa., seized as belonging to the judgment debtor. Independently of any question as to the legality and rightfulness of the seizure, the existence, as a fact, of the seizure itself is undisputed. That fact carried the property seized as a legal result into the custody of the executive officer of the State court, and, therefore, under that court’s jurisdiction until legally disposed of. After that seizure had been made the Lake Bisteneau Lumber Company went into the State court as a party to the pending proceedings, raising issues which that court and none other could decide. That company could not, whether subsequently it went into insolvency or into the hands of receivers or not, oust the State court from its acquired jurisdiction. Appellants say that the property in question belonged to them; that under the laws touching receiverships all property so belonging is thrown into the possession and under the control of the court where the receivership is opened, and that all proceedings touching that property are stayed, and all issues touching it have to be disposed of by the court of the receivership. That proposition is stated entirely too broadly. The property involved in this litigation unquestionably belongs to the Lake Bisteneau Lumber Company. We think that fact is conceded on both sides; but if it be the same property which was mortgaged to the Lane & Bodley Company (as that company asserts to be the fact) it went into their ownership encumbered wich a mortgage which carried with it the clause de non alienando. Under such circumstances the mortgagees were authorized to pursue the property as if still belonging to the mortgagor. This they did before the receivership was opened in the State court and there they were attacked in their proceedings by the claims and pretensions of the Lake Bisteneau Lumber Company. It is too clear for argument that the seizing creditors under their seizure can not be forcedly referred to "the Circuit Court of the United States for the adjudication of their rights by reason of the fact that subsequently to the seizure plaintiffs in injunction, already in the State court, went into the hands of receivers. They went, as opponents to a seizure, into proceedings pending in the State court and raised issues therein. They must take the case and the jurisdiction as they found it and remain in the court having custody of the property until the issues raised are decided. We are satisfied that it was not the intention of the receiver, in asking to be dismissed, that the injunction should be discontinued or dismissed. We are satisfied that his whole object was to except to the right of the appellees to cite him into the State court .as receiver, or to do so without the consent of the United States court, upon what he imagined was a new and independent proceeding which the Lane & Bodley Company was seeking to institute. We are of the opinion that under the circumstances of this case, the right of citation was not dependent upon the consent of the Circuit Court. Appellees could not be kept in court indefinitely for want of a continuing plaintiff in injunction; they had the right to make proper parties and to have the injunction dismissed, if, after proper proceedings, the parties cited did not choose to litigate in that jurisdiction.

We are of the opinion that the exception of Walters, the receiver, .should have been overruled and the cause left to have taken its regular course. There was error in dismissing the injunction proceedings.

We see no reason to change our judgment as to costs of' appeal and throw them upon appellees as is suggested. Appellees moved unsuccessfully for a new trial. It may be that they did so for wrong reasons and upon á construction of the judgment different from that which they subsequently reached — none the less they sought, without, avail, to have the judgment as rendered set aside as contrary to the law and the evidence. Had their application been granted, this appeal would not be before us. On the other band appellees made no effort whatever to correct a judgment which was manifestly erroneous and to their prejudice as rendered. They misconstrued its scope until too late to have the same rectified below as they could have done, and in their own interests they have forced an appeal to save themselves from the error into which they have fallen. Had the judgment been such as they understood it to be, and on which fact they rested, it would have been clearly wrong. (Oteri vs. Oteri, 37 An. 76.)

The judgment heretofore rendered in this case must remain undisturbed, it being, in our opinion, correct.

Blanchard, J., takes no part in the decision of this case, not having been a member of the court when the case was argued.


source: Caselaw Access Project

license: Public Domain

text:
    No. 12,368.
    Lake Bisteneau Lumber Company, Limited, vs. J. B. Mimms, Sheriff; Lane & Bodley Company, Intervenors.
    The issues of this ease ■were disposed of in case between same parties, Ante p. 1283.
    A PPEAL from the Second Judicial District Court for the Parish ** of Webster. Watkins, J.

      Leonard & Randolph for Receivers Lake Bisteneau Lumber Company, Limited, Plaintiffs, Appellees.

      L. K. Watkins for Alfred Goodwill, Surety on Injunction Bond, Appellant.

      Wise & Herndon and R. G. Drew for Intervenor, Appellant.
    Argued and submitted January 21, 1897.
    Opinion handed down February 1, 1897, by McEnery, J.
    Rehearing granted March 29, 1897.
    Submitted on rehearing on briefs April 26, 1897.
    Opinion handed down May 18, 1897.
   The opinion of the court was delivered by

McEnery, J.

The appellant in this case is the surety on the injunction bond restraining the execution of the judgment in case No. 12,367, ante, p. 1283. Alleging an interest in said judgment and that he' was aggrieved thereby, he Appealed, and has brought up a separate-transcript. His interest in the reversal of the judgment is not. apparent and is too remote to allow him to appeal. The appeal is-dismissed at appellant’s costs.

On Application eor Rehearing.

Nicholls, C. J.

Appellant was surety on the injunction bond referred to in our judgment in the suit No. 12,367, ante, p. bearing the same title and recently decided. His appeal was evidently.' based on fear that the principals on the bond would not appeal' from the judgment of the District Court dismissing the injunction,, and that he would be prejudiced should that judgment become final.

Appellant’s fear was not well founded, as plaintiffs in injunction' appealed themselves, and upon their appeal the judgment of. the District Court was set aside and matters replaced in the situation-they were at the time of its rendition. The effect of our judgment will be to reinstate the injunction which it was the only object of the-surety to bring about.

The reversal of that judgment, of course, enures to the benefit of the surety. As matters shaped themselves the filing of a second transcript and the docketing of the appeal of the surety were unnecessary. The cases are substantially one and the same. Were we to grant appellant a rehearing as he asks, his legal position would in nowise differ from what it would be by letting matters stand as they are. We would simply pronounce the same judgment as we did in suit No. 12,367, and throw the costs of appeal upon the appellant. The dismissal of this appeal leaves the surety practically with all the advantages which he could obtain from a change of judgmént in this particular case.

For these reasons the judgment we have heretofore rendered, dismissing his appeal, will remain undisturbed.


author: Watkins, J.

text:
    No. 12,287.
    Remington Paper Company vs. John W. Watson et al.
    A creditor having brought suit against a private corporation in. a federal court, and caused its property to be attached and sequestered upon a vendor’s lien, ■which ■was subsequently ordered to be surrendered to a receiver who had been previously appointed by a court of a State, c'an not therein successfully assail the order of appointment for informality in the proceedings, without praying for judgment on its demand, or disclosing a well-grounded claim for damages against the receiver personally.
    'The order of the federal court having first released and discharged the seizure and required the marshal to surrender the property to the receiver, and the creditor having thereafter instituted an action in the State court to annul the receiver’s appointment and for damages sustained thereby, the two suits are totally distinct and separate — the creditor having failed to exercise the option given it by the federal court to apply to the State court within five days for the retention of the seizure.
    Not having availed itself of that option, and not having used any effort to enforce or protect its vendor’s lien upon the property in the possession of the receiver, the creditor is without any well-grounded claim for damages against the receiver personally, who acted under the authority of orders of a court possessed of competent jurisdiction; and the creditor’s claim for damages * being without foundation, no occasion is presented for the court to examine •and pa§s upon the validity of the receiver’s appointment.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      Jfldwin T. Merrick for Plaintiff, Appellant.
    H. L. Garland, Jr., for Defendants, Appellees.
    .Argued and submitted April 17, 1897.
    Opinion handed down May 31, 1897.
    Rehearing refused June 30, 1897.
   The opinion of the court was delivered by

Watkins, J.

We have had the present litigation before us in two previous suits, viz.:

State ex rel. Remington Paper Company vs. Judge, 45 An. 1418, and Remington Paper Company vs. Watson, 46 An. 793. The last mentioned is the instant case — same having been an appeal by the plaintiff from a judgment dismissing its suit on the ground that it disclosed no cause of action.

From our opinion in the case last cited we find plaintiff’s suit to have been an action to annul the appointment of John W. Watson as receiver of the Louisiana Printing and Publishing Company, Limited, for the purpose of enabling it to realize the amount of its claim for damages.

The prayer of the petition is, that the ex-parte order purporting to appoint John W. Watson receiver of the Louisiana Printing and Publishing Company be declared null and void and of no effect as against petitioner; and that same is ineffectual as a bar to its attachment and sequestration, or other proceedings in the United States Circuit Court. It further prays, that John W. Watson and Frank EL Pope be condemned in solido to pay petitioner three thousand eight hundred and sixty-three dollars and fifty-five cents as damages.

The petition further shows, that on the 29th of May, 1893, it commenced proceedings in the United States Circuit Court, and, under writs of attachment and sequestration therein issued, caused the property affected by its vendor’s lien to be seized, attached and sequestered, and taken into custody of the United States Marshal.

That due and legal service of said proceedings was had on J. D. Hill, president of the Louisiana Printing and Publishing Company, ■on the date of the filing thereof, and that under the Constitution and laws of the United States it has the right and is entitled to prosecute said suit with effect without let or hindrance on the part of any person — being a citizen of the State of New York.

That, nevertheless, John W. Watson in violation of petitioner’s Tights, falsely styling himself a receiver of the printing and publishing company and falsely stating that he was in possession of the property attached and sequestered, in virtue of an appointment as such receiver, filed a motion in said Circuit Court to have said attachment and sequestration set aside.

That said motion coming on for trial said court, without passing on the force or validity of those proceedings, ordered the marshal to restore the property seized in said case, to said Watson, receiver, unless within five days the plaintiff applies for and ultimately receives authority from the Civil District Court which appointed Watson, receiver, or from the appellate court, to hold same under said writ.

Petitioner then alleges that the aforesaid order will have the effect of preventing it obtaining a judgment against the printing and publishing company in the United States Circuit Court, as there is no mode of revising said order until a final judgment can be rendered in said cause.

Thereupon he assigns the following grounds for the revocation and annulment of the order appointing John W. Watson, receiver, viz.:

1. That the pretended order under which John W. Watson was appointed and pretends to exercise authority as receiver, bearing date May 17, 1893, was and is absolutely null and void as against petitioner and other creditors of the publishing and printing company, and conferred no authority on Watson, for the reason that same was made upon the collusive petition of Frank H. Pope and without citation to any one.

2. That said order was made without the oath or affidavit of any one, or any proof, and wholly ex parte, and without contradictory proceedings had with any one.

3. That said pretended order was made and endorsed upon the petition oí Pope on the same day that it was filed, and in which there was no citation prayed for.

4. That the officers of the publishing and printing company were incapable in law of withdrawing from their offices so as to delay or hinder the creditors of said corporation from pursuing it in a court of justice in an effort to collect their debts, and that said corporation does not cease to exist until regular proceedings have been taken against its officers and stockholders under its charter.

5. That the attempt to bolster up the illegal and ex parte proceedings by a so-called intervention on the part of the Attorney General will not cure the nullity of said ex parte proceedings of said Pope and Watson; and, moreover, said so-called intervention, which contains no affirmative allegations on the part of the State,. tout purports to recite and reiterate the allegations of Pope, is not a-mode of proceeding according to law.

That the State is without right to intrude itself in this manner.into controversies of private persons and to demand the forfeiture of the charter of a corporation in any mode different from that provided by law; and that the Attorney General was without authority to join said Pope in his prayer in said ex parte petition and ask that-a receiver be appointed.

That all of said proceedings were and are absolutely null and void-as against creditors.

From the foregoing it is evident that this suit is primarily an-ancillary proceeding to that of same plaintiff in the United States Circuit Court against the corporation as its debtor, and wherein it caused its property and effects to be seized, attached and sequestered, asserting a vendor’s lien upon a portion of same; and, secondarily, an action to annul the order appointing the receiver for certain alleged informalities in the proceedings, coupled with a demand for damages against Pope, the petitioning creditor, and Watson, the person who was appointed receiver.

It is evident that the plaintiff’s demand for damages was made for the purpose of exhibiting the jurisdiction of the court to decree the nullity of the order appointing the receiver; and the necessity of its situation prevented it from asking judgment for its debt against the corporation, as that would have been an abandonment of its suit in the Circuit Court, which it intended to aid.

In support of and to give color to its claim for damages against those individuals the plaintiffs’ petition avers that the two defendants named colluded and conspired together and procured the illegal-proceedings through which the receiver was appointed; and that the object in obtaining the appointment of a receiver was to defeat the collection of debts of the creditors of the corporation in the usual and ordinary manner.

On the other hand the contention of the defendants is that their proceedings were regular, legal and in due course of law; and that upon an order of court regularly and duly obtained from one of the judges of the Civil District Court, the receiver was appointed and' that he qualified and gave bond — the State through the Attorney General concurring through the instrumentality of an intervention, filed vith the leave of the court first obtained.

That the aforesaid proceedings were resorted to for the sole purpose of conserving the best interest and evident advantage of the ■corporation, its creditors in general and its stockholders — it being at the time notoriously and confessedly insolvent and unable to continue its business. That on account of the unsettled and precarious condition of the business and affairs of the corporation, its officers and directors, in the exercise of an undoubted legal right, had resigned their trusts; and that, in consequence of this situation of affairs, the duty as well as the responsibility was placed upon the creditors to protect their rights and prevent the loss, deterioration and waste of the assets of the corporation, and its absorption by a single creditor.

That the defendant, Pope, being a stockholder as well as creditor of the corporation, conceived that the appointment of a receiver was more consonant with the interests of all than any other judicial proceedings; and, in this view, the State through the Attorney General concurred.

It appears from the record that the receiver’s appointment preceded the plaintiff’s seizure in the United States Circuit Court several days; and that, at the date he appeared by an intervention in that case and claimed and demanded the surrender of the property of the corporation which the marshal held under seizure, he had not only received appointment, but had qualified thereunder according to law, and had taken physical possession thereof, under an inventory, notwithstanding he had not completed same and furnished bond as required by the order of court appointing him.

The legal result of this situation of affairs is, that the Civil District •Court acquired jurisdiction over the corporation and of its property; and the judge of the United States Circuit Court recognized that legal status when he entertained the intervention of the receiver in the plaintiff’s case, and ordered the marshal to surrender the property to him.

When the judge of that court made the order directing the marshal to restore the property seized, attached and sequestered in that case into the custody of Watson, receiver, and added thereto the proviso, that “unless within five days the plaintiff applies for and ultimately receives authority from the Civil District Court which appointed Watson receiver, or from the appellate court, to hold same under said writ,” the presumption is, that if the plaintiff failed to receive that authority the seizure would lapse, and the jurisdiction of the United States Circuit Court would cease, and the authority of the marshal over the property would also cease.

The record shows that no such authority was ever applied for by the plaintiff, or granted by the Oivil District Court; but on the contrary this action of nullity and claim for damages was resorted to, instead of such an application.

This is not a matter of legal deduction and conclusion alone, but one that has been judicially settled and determined by the judge a quo in a proceeding by rule taken by a creditor against the plaintiff and the marshal in the liquidation proceedings.

It thus appears that not only has the property seized and all other assets of the corporation passed into the custody and ’control of the receiver, but the suit of the plaintiff in the United States Circuit Court has become entirely disconnected from the liquidation and the insolvent proceedings.

By this course of dealing the present suit stands alone upon its own merits as an independent action to annul the appointment of the receiver and a demand for damages against Pope and Watson personally; consequently the action to annul must necessarily depend upon the demand for damages. For if the plaintiff has no claim for damages it would serve no useful purpose to render a judgment annulling the order appointing the receiver. Cui bono?

In the first place, addressing ourselves to the question of damages, we are of opinion that the plaintiff was plainly at fault in not employing the proper means to protect its own rights; first, because it used no effort to avail itself of the permission granted by the Circuit Court whereby the seizure might have been retained on the property; second, because it took no means or proceedings looking to the protection of and preservation of its alleged vendor’s lien upon the property after it had passed into the custody and control of the receiver, either by injunction against a sale by the receiver or a third opposition claiming the proceeds of sale under a separate appraisement and sale.

In our view such measures could have been easily resorted to on the part of the plaintiff without prejudice to this or its Circuit Court suit; and, failing in this, an insurmountable obstacle has been raised to its claim for damages.

For surely the plaintiff can not be heard to say that Watson and Pope have perpetrated upon it damages resulting from a loss and ■■injury it has occasioned through its own fault.

The plaintiff’s recourse against property stricken by a vendor’s lien ■was just as efficacious against it in the hands of the receiver as it was in that of the marshal; and had it made proper and seasonable appli•cation to the judge a quo possibly he might have permitted the marshal to retain in his possession the property seized under the writ of attachment in the Circuit Court. However vain and nugatory such an effort may have proven, it was none the less its duty to have made the effort, at least.

Surely, the receiver can not be said to have committed a wrong’ •or trespass upon the plaintiff’s rights by advertising and making a sale of corporate asset's in pursuance of an order of court to pay ■debts, especially when such sale was neither enjoined nor opposed by it.

Presumably the proceeds of the sale are yet in the hands of the ■receiver for distribution according to law, and plaintiff can exercise its rights thereon.

In our opinion, this is not a case in which we are called upon ■to examine and scrutinize the legality of the appointment of a receiver, for the reason that the complaining creditor has not •suffered any injury thereby, and is itself seeking a preference.

We think the ends of justice would be best subserved by preserving and maintaining the status quo.

Judgment affirmed.

BLANCHARD, J., not having been present at the submission of this •cause, takes no part in this opinion.


author: Breaux, J. Watkins, J.

text:
    No. 12,320.
    Mrs. Carrie Hoelzel vs. Crescent City Railroad Company.
    A pedestrian in the night-time, who suddenly leaves the path on grounds, identi- ' fled as the neutral grounds, and crosses or attempts to cross, immediately in front of a street car moved by electricity, is imprudent.
    ‘The rule that one before attempting to cross the track should “stop, look and listen,” applies to a street railway moved by electricity.
    The approaching car must have been visible, and the noise heard by any one near, looking or listening.

      The attempted crossing was the matter of a moment, rendering it impossible to stop the car in time to prevent the accident.

      Held: Whenever the plaintiff's case shows any want of ordinary care, his right to recover is thereby destroyed,
    PPEAL from the Oivil District Court for the Parish of Orleans. King, J.

      .Joseph N. Wolf son for Plaintiff, Appellee.

      Farrar, Jonas & Kruttsehnitt for Defendant, Appellant.
    Argued and submitted February 18, 1897.
    Opinion handed down April 12, 1897.
    Rehearing refused June 29, 1897.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff, tutrix of her minor children, and personally, brought this suit for ten thousand dollars damages caused by the asserted negligence of defendant’s agents and employees, which resulted, she avers, in the death of her husband, father of her ■ children.

The defendant corporation was the owner of a line of street railways running through Louisiana avenue. She alleges that her late husband was crossing the public street about 10 o’clock at night, near his residence fronting on the avenue, between Franklin and Liberty streets, when one of defendant’s electric cars negligently and carelessly ran over her husband, inflicting injuries causing death . a few minutes after the accident; that her late husband was lawfully • on the street and was at the time duly careful.

The defendant pleads the general denial, and avers that the plaintiff’s husband lost bis life by his own carelessness and recklessness, and that if there was negligence on its part, there was contributory negligence on the part of plaintiff’s husband.

From a description of the place of record, it is shown that the defendant company has a double track on Louisiana avenue; one track for the car running down on the lower side of the avenue, between Baronne and Freret streets, and the other track for the cars going up to Carrollton on the upper side of the neutral ground, between Dryades and Howard streets. Between the two tracks there is a steam railroad track of the Illinois Central Railroad.

In the front of the cottage occupied by plaintiff and her late husband he had raised the banquette and laid a plank walk from the banquette to the neutral ground. There was no passable banquette on either side in front of this lot, and he and his family for more than three years used the plank walk and neutral ground for ingress and egress; for the ground where there should have been a banquette was low and muddy, the gutters wide and deep and walking was practically impossible.

There was a path between the Illinois Central track and the track of the defendant company, well known (it is asserted by the plaintiff) by the employees of the defendant company; where people were frequently seen walking. On the night of the accident the deceased, a few minutes prior to the accident, was standing on the Illinois Central Railroad track and conversing with an acquaintance. Leaving his acquaintance, he walked in the direction of his house, which was about half a block away from where they were standing. His home was on the lower side of the track. He was going in the same direction that the car was going. The acquaintance with whom he was conversing walked away in an opposite direction, and met the alleged offending car, running, he says, at á rapid speed. The noise of the car stopping, because of the accident, a short distance from where it had passed him, attracted his attention. He walked back to the place of the accident. His back, at the moment of the collision was turned to the car. He saw nothing of the accident. He says that the headlight of the car as it passed him was dim. No alarm bell was sounded.

The deceased was struck by the car when he was opposite the plank walk, immediately in front of his house. Evidently he had left the walk and was crossing defendant’s track on his way to the plank crossing leading to his gate when he was struck. The car ran about forty feet after the blow; the headlight was broken, also the fender. Two of plaintiff’s witnesses testify that there was no ringing of the bell prior to the accident. The motorman, as a witness for the defendant, testified that he could see that the deceased was in danger from where he was, and that he sounded the gong and uttered a cry to him; that he (the deceased) stepped immediately in front of the car to his right. He and the conductor testified that the headlight was burning brightly. This is a summary of the salient facts.

The case was tried before the court without the intervention of a. jury. The judgment was for plaintiff in the sum of ten thousand, dollars. The defendant appealed.

Our attention is directed to the fact that the width of the path on which the defendant was walking, between the tracks, was not large, only about seven feet. The car must have been near him when he left this path or street and stepped in front of the car to go over to the plank walk opposite his home. Three steps would have-carried him across. As he was struck while attempting to cross, it-is, in our judgment, evident that his first step on the track must-have been made when the car was dangerously near. Witnesses for the plaintiff saw the coming car at some distance. The noise made by the running car was clearly heard by witnesses who were not on the track at all.'

The width of the walk was, we have seen, about seven feet. We assume that the deceased was about the centre of the walk at the time he turned to the right to cross the track of the defendant. We assume further that four steps was the distance from the centre line of the walk in question to the centre line of defendant’s track. Upon this basis about two and a half steps must have been the distance stepped from the centre line of the walk to the outer line of the track over which the car runs; and one and a half steps the distance between the outer line of the car to the centre line of the track.

From the fact that the headlight and the fender of the ear were broken, we judge that the deceased was at or very near the centre line of the railroad track when he was struck.

At the moment that the deceased crossed the outer line of the car, the car must have been quite near to him, a distance which can be computed with some degree of accuracy by reference to the time it takes to walk over a space in length of about one and a half steps. It was impossible, it is evident, to stop the car, after the deceased crossed the outer line, in time to prevent the accident. The question arises, was it prudent, in the dark, to attempt to cross.

Three grounds of alleged negligence urged were: The asserted speed of the car, the dim light, and failure to ring the alarm.

The evidence upon these points is conflicting, between the witnesses for the defendant and those for the plaintiff.

The issue brings us to a consideration of the rules — that one approaching a railway crossing or attempting, at any place, to cross a railroad track, must carefully look up and down the track, and in that connectioa we must determine whether it applies to an electric .street railway.

The rule itself is supported by a long list of decisions. Its correctness does not admit of any question. When street cars ran slowly and could be stopped within a distance of a few feet, the rule for the pedestrian to exercise his senses of sight and hearing and to stop, look and listen, did not apply as it does to the electric cars (even in the case of horse cars one was enjoined to be careful in walking on :a railroad track, or in attempting to cross it). Greater prudence is required of a pedestrian who crosses a railway track of a steam or •electric car in a city. It is his duty to exercise his senses of sight -and hearing.

The evidence of plaintiff’s witnesses in regard to the speed of the car is, in general terms. No attempt was made to approximately fix the rate at which it was running. Granted that it was running with speed, that, of itself, was not negligence, if all needful care was exercised by the company. The dim headlight and the fact that there was no ringing of the bell at a place not known as a regular public •crossing, does not relieve the pedestrian ®f his obligation to exercise ordinary care to avoid an injury. There was light, although it may have been dim; there must have been noise made by the moving car very near the place of the accident. One who in the night•time, with full knowledge that the car may come at any moment behind him, attempts to cross, must use his senses to avoid an accident. In a recently well considered case this court said: It is a well recognized rule that a person before attempting to cross the •track of a steam or electric car should look to ascertain whether cprudently the crossing should be attempted.” Snider vs. Railroad Co., 48 An. 12.

Again, in the same opinion, which has a direct application to the •case before us: “ The motorman upon the car had no reason to anticipate that plaintiff would attempt to cross the street under existing conditions. Plaintiff knew perfectly well that the moving ■ car was bound on its regular trip up to a point above that street on a ifixed line, and must, therefore, inevitably cross the path he was taking as he moved across.”

This .case has the support of four preceding decisions of this court—Schulte vs. Railroad, 44 An. 510; Herlisch vs. Railroad Co., 44 An. 280; Smith vs. Railroad Co., 47 An. 833, and Schexnaydre vs. Railroad Co., 46 An. 248.

As to the' dim light, failure to ring the bell, and the speed of the •ear, the evidence was conflicting.

The car was not without light; it had the light of the car and of the headlight.

The very short distance between the deceased and the car rendered it impossible to ring the bell in time to warn him to get off the track.

The car was an ordinary electric car, not noiseless; it was plainly heard by all the witnesses who testified upon the subject.

These are important considerations which have received our careful attention.

Weighed with the fact that the victim of the sad accident suddenly turned and stepped, one step or a step and a half from a safe path to •a very unsafe place, we have concluded that he was imprudent to a degree which renders it impossible, under the rule heretofore announced by this court, to allow damages.

This court has decided that the rule stop,-look and listen” applies to one attempting to cross an electric car track. There is greater reason for its application at night, when the motorneer is less able, ■in the darkness, to see persons near or persons crossing or attempting to cross. Nothing of record shows that the least attempt was made to guard against the danger of an approaching car on a track •over which cars frequently pass.

It is therefore ordered, adjudged and decreed that the judgment appealed from is annulled, avoided and reversed. It is further •decreed that plaintiff’s demand is rejected.

Dissenting Opinion.

Watkins, J.

The plaintiff instituted this suit in her own right as the surviving widow of Edward Hoelzel, and also in the capacity of natural tutrix of the children of her marriage with the deceased, for recovery from the defendant of the sum of ten thousand dollars as •damages occasioned by the death of her said husband through the gross carelessness and negligence of its agents and servants— depriving them of a support and maintenance.

The defence is contributory negligence.

The case was tried by the judge, who found for the plaintiff the full amount claimed, and the defendant appealed.

The judge a quo prepared his reasons for judgment in writing and they are not only incorporated in the transcript, but they are reproduced in the brief of plaintiff’s counsel in extenso; and as the salient facts are brought forward in clear and concise form, I have taken the liberty of making the following extracts therefrom,, namely:

“The substantial facts are as follows:
“ The defendants own and operate a line of electric cars in this city, known as the Judah Hart line. It runs from Canal street to Carrollton. On Louisiana avenue it has a double track, one track for the cars going down on the lower side of the neutral ground in. the centre of Louisiana avenue, between Baronne and Frered streets, and the other track for the cars going up to Carrollton on the upper side of the neutral ground, between Dryades and Howard streets, Between these tracks is a single track of the Illinois Central Railroad, a stpam railroad.
Between Baronne and Freret, and between Dryades and Howard, and especially on the lower side of Louisiana avenue, between Franklin and Liberty streets, there are no banquettes. This part of the city has been settled in the past five or six years. When a building was erected the owner would raise the banquette in front and lay a plank walk over the gutter and across the street to the neutral ground. To reach their home, all the residents in that neighborhood were in the habit of walking on the neutral ground, on or between the tracks, until they were opposite their homes, when they would cross over on their plank walks. The same course was pursued in leaving their homes. They were compelled to adopt this mode and custom because the ground where a banquette should have been was low and muddy, the gutters wide and deep and walking inconvenient, if not practically impossible. This custom was well known to the employees of the railroad company, for there was a well beaten path between the Illinois Central track and the track of the defendant company, the plank walks were visible and people were frequently seen walking on the neutral ground, passing up and down and crossing over to their homes.
John Hoelzel lived with his family on the lower side of Louisiana avenue, between Franklin and Liberty streets, about the centre of the block, in a small cottage owned by him. In front of his cottage he had raised the banquette, and laid a plank walk from the banquette to the neutral ground in the manner described. There was no banquette on either side of him to the corner of either Franklin or Liberty streets. There was a bad, muddy place next to him toward Franklin street, and the weeds were very high and he and his family were compelled to use the plank walk and neutral ground for ingress and egress.
" They had been in the habit of doing so for three years. It was their habit before the road was built and after.
“ On the night of April 13, 1895, John Hoelzel was returning to his home from a barber shop. He met witness, Emile Gearhart, on the neutral ground on Louisiana avenue corner of Franklin. He was then half a block from his residence. They conversed five or ten minutes standing on the track of the I. 0. Railroad, and then Hoel-zel walked toward his home, toward the woods.
“ The witness walked toward the river. Gearhart had hardly walked twenty feet when an electric car, going down town, passed him at a very rapid speed. Its headlight was dim. He walked about twenty feet further, when the car stopped. He then walked back to the car and found that Hoelzel had been ruu over, horribly mangled, killed by the car,- in front of the plank walk leading to his residence. The motorman did not sound his gong at the crossing or before he struck Hoelzel.
“ Another witness, Martin, tried to stop the car a block and a half away from where the accident happened, with the intention of going •down town. He stood on the track and waved to the motorman, but the car was going so fast it was impossible to stop it, and the .headlight so dim that the motorman could not or did not see him, and he had to step aside and let the car go by. He heard no gong sound from the time the car passed him until it struck Hoelzel and stopped. Martin then walked to the car in about five minutes.
“ Other witnesses testified that the car was running at a very vapid speed, and one other that no gong sounded. The car ran from forty to fifty feet beyond the spot where Hoelzel was struck before it stopped.
“ The motorman saw Hoelzel walking between the Illinois Central Railroad Company’s track and Traction Company’s track. His back was to the approaching car. He was right near to the line of the car, and the motorman says that he saw he was in danger from where he was. The motorman saw him when he was within fifteen i feet of him.
“It is evident from the whole testimony that Hoelzel was walking; within two or three feet of the up-town rail of the Traction Company’s down-town track. When he reached the plank walk leading to his house the car was within fifteen feet behind him. The motorman saw him, but he did not see or hear the car, being slightly deaf or absent-minded. He then turned to his right to go across to the plank walk to his home, stepped upon the track and was instantly killed. When he stepped upon the track it was too late for the motorman to stop his car, if he had tried so to do, as he testified.
“ The court is of the opinion that the defendant was grossly negligent in its motorman running in that square at so fast a speed with a dim headlight without sounding his gong, and in not seeing the deceased in time to give him timely warning, and that the gross carelessness of the defendant company was the true cause of the accident.
“ The court is of the opinion, from the facts above stated, that the deceased was not guilty of contributory negligence. He had a right to walk to his home on the neutral ground and across the track. Where fifty to one hundred people daily for four or five years use a railway track for foot travel with the acquiescence of a railroad company, without their objection, such acquiescence creates a right which imposes on the company a duty of ordinary diligence to avoid injury to persons so using the track. The deceased simply did what he and his neighbors had been in the habit of doing for years, to the knowledge, without objection, and with the acquiescence of the company.”

Having gone over the the testimony in the record, I feel satisfied of the correctness of the statement of my learned brother of the District Court, but am of opinion that some additional extracts therefrom would somewhat fortify the facts stated by him, and I append the following:

First, in respect to the speed of the car, the failure of the motorman to sound the gong in the vicinity of the accident, and the dimness of the headlight.

The statement of a witness who was standing at a street corner-near by, waiting for a car, is, that he “ stood on the track and tried; to stop defendant’s car.” That “he stood on the rail of the track and tried to signal (the motorman) down, but it was impossible. He did not stop and (witness) then moved out of the way (so as) not to get knocked down. That the car was going at a very rapid rate of speed and there was hardly any headlight. The light was bad— there was hardly any light in the headlight. That the headlight was; so dim that the motorman could not see him, was the reason he did not stop his ear when he hailed him to do so — his headlight was not giving enough reflection.” That it was about 10 o’clock at night and. very dark.

The statement of one of the defendant’s witnesses — the only one introduced for the purpose of supporting the testimony of the motorman and the conductor — is, that at the time of the accident he was walking along the banquette on the opposite side of the avenue from the-residence of the deceased, in the same direction that the latter was-going, and about ten steps in his rear. That he saw the deceased! while he was talking with the watchman at the corner near by, and-, followed him when he started toward his home, as he wished to borrow a tool of some kind from him.

That he shouted to him “to look out, just as he stepped on the track? and the car hit him at the same time;” but he does not speak of hearing the gong sounded or of seeing the illumination of the headlight, notwithstanding his close proximity to the car. That he saw the car when it was about forty feet distant, but that “it did not take a minute — a half minute, it did not take that” — to overtake the deceased.

He states further that the deceased turned from the pathway between the two tracks to take the street-crossing to go to his home, just at the moment he shouted to him, and he was instantly struck by the car.

Second, as to circumstances attending the accident, illustrating the carelessness of the motorman in charge of the car, and the* speed oE the car.

A witness who resided just on the opposite side of the avenue-from the deceased and knew him well, states that he heard the report, and jumped up and ran across the street to the car.. That he spoke to the motorman, and he said in reply that he thought that he had killed a man; and it being dark he lighted a match and saw that the dead man was Hoelzel, who lived just on the opposite side of the street from the place of the accident. That he observed “ that the headlight was all bursted up, and that the fender in front of the car to protect it was bursted in half; that the skin and hair of Hoel-zel’s head were taken off, and it must have been done by the headlight.”

Another witness describes the scene thus:

“Well, I ran down and jumped the gutter, and when I got over there, Mr. Yokum was there, and the conductor, or motorman — one of them — said it was a negro that was lying on the track, sleeping; drunk, at least, it was. That Mr. Yokum said no, it is not; and he lighted a match, and said it is Mr. Hoelzel.”

He also stated that the headlight was bursted and the cowcatcher “broken. That Mr. Yokum raised the body up off of the track, his head facing toward the river and his body lying across the track of the defendant; about the centre, just opposite the plank walk leading to his house.

Another witness who resided in the vicinity of the accident said:

“ Well, as soon as he could jump across the gutter he ran across •the avenue to where the deceased was. That he was sitting on his gallery step at the time and heard the crash, and got up and jumped across and ran into the street * * *
“ When he got there he could not tell what it was, it was so dark. That he saw it was a dark object, but did not know whether it was a human being or not; when some one struck a match and pulled the Lead up, and he then recognized Mr. Hoelzel.”

He stated that he observed that the distance between the deceased .■and the car was apparently about forty feet, and the headlight was broken and the fender also.

Another witness testifies that when he arrived at the place of the accident he spoke to the motorman about it, and he said that it was impossible for him stop the car; that he thought he had killed a man; that he thought he saw a man on the track, but he did not know.

Another witness says that she was engaged in sewing while waiting for her husband, “ when she heard a car coming along at a frightful rate of speed, then all of a sudden, when it got in the middle of the block, she heard a crash, and got up and ran out and across the track and ran down to Mr. Hoelzel in front of his door.”

The statement of the motorman is that the night was a very dark one, but, aided by his headlight, he discovered an object * * and as he was nearing it, he could see that it was a man on the left, between the Illinois Oentral belt and the traction company’s electric line, walking on the outside. That the first thing that entered his mind was, knowing it was a man, of course he would keep out of the way of - the car; and as he approached him he kept right near the line of the car. That he could see he was in danger from where he was, and sounded the gong and hallowed to him at the same time. That he stepped immediately in front of the car to the right of witness, when the car struck him. That when he shouted to him, the ■deceased was within ten feet of the car. That as soon as he discovered what he had done, he just threw up his hands and said ‘ My God, what have I done,’ and ran back through the car to the conductor and said, Look out, I believe I have killed a man.’ ”

He further states, that when he -first saw there was an object on the side of the track, “ he could just tell there was an object movingand that after seeing the moving object, he supposes the car ran about forty feet, and the man kept right ahead of the car. That when the car had approached near enough for him to hail Hoelzel and say “ Look out,” he stepped in front of the ear and upon the track.

The statement of the conductor is as follows, viz.:

“ Well, we were running along there about the usual rate of speed, when he heard a crash, all of a sudden, in front of the car, and he started through the car and asked the motorman what was the matter; and when he was about one-third through the car, the motorman turned to him and threw up his hands and said, My God; I believe I have killed a man. ’ Just that way, and with that the car -stopped, and he ran back on the traek when he saw the man lying between the rails,” etc.

But the conductor did not confirm the statement of the motorman, to the effect that he sounded his gong near the place of the accident; nor that he shouted or hailed the deceased. Nor did he state that he sounded his gong, even at the adjacent street corner, though he does say that his supposition was that he did. He admits that the fender and headlight were broken in their contact with the deceased.

The best proof that no gong was sounded at or near the scene of the accident is furnished by the replies which the motorman made to the interrogatories that were propounded to him at the time, on the spur of the moment, and the voluntary statement he made to the-conductor at the instant the crash occurred.

And the further fact that, after the accident, the car was found to have passed some forty feet beyond the place of contact; and had the deceased been plainly visible by the aid of a good headlight, he should have been readily seen for a distance of seventy feet in front of the car, so that the car could have been stopped in time to have saved the life of the deceased.

And the further important fact is,- that the car was moving with such frightful rapidity that its contact with the deceased produced a crash that was plainly heard by and arrested the attention of more than a half dozen of the witnesses, who instantly rushed to the scene; and the violence of the shock was so great that it caused the-instant death of a strong man, broke down the fender, and shattered the headlight of the car.

Had the deceased, under the circumstances, looked — as, possibly, he did — just before making the attempt to step across the street car track, of not more than three feet in width, to see if a car was' approaching, his reasonable belief must have been that there was no-danger, as the gong had not been sounded, and the headlight was not sufficiently bright to indicate a dangerous proximity of the ear, and no means were afforded him of judging of the speed of the ear, which was,, in fact, so rapidly approaehing him.

In any view that can be taken of the testimony, the gross and culpable negligence of the motorman is manifest; and to say that an electric car can be run on a street of this city at such a frightful rate of speed, as the testimony discloses that of the defendant was moving when it ran over and killed Hoeizel, that dark night in April, without giving him any warning by the sound of the gong or aid of headlight, and the corporation be exonerated from liability, is, in my opinion, to place the lives and limbs of its inhabitants in imminent peril, and leave those who are dependent upon them for society and support without any security whatever.

The deceased was not upon the defendant's track, but he was traveling a plain, beaten path, that lies between it and that of the Illinois Central Railroad Company, and which had been in common use for years by the people of the neighborhood; and he was attempting to step across the track of the defendant in the effort to reach his home, when he was run over by defendant’s car and instantly killed.

The deceased had an equal right to use this pathway as a means of ingress to and egress from his house, as any citizen to traverse any of the banquettes of the city; and is quite as much entitled to the protection of the law in the prudent exercise of that right.

In my opinion there was gross carelessness on the part of the defendant and no contributory fault on the part of the deceased.

I do not think the facts of this case bring it within the scope of Snider vs. Railroad Company, 48 An. 1; nor of McLaughlin vs. Railroad Co., 48 An. 23; nor of Settoon vs. Railway Company, 48 An. 807.

In the first case the plaintiff attempted, in open daylight, to drive his wagon across the defendant’s track on St. Charles avenue in front of an approaching car, and was run into and injured thereby. In the second, plaintiff’s little son was proceeding out Melpomene street driving a hoop with a stick, and while attempting to cross the defendant’s track on St. Oharles avenue was struck and injured by one of its cars. In the third case, plaintiff’s son was killed by a bos ear of the defendant while a train was being made up at the station— the boy in attempting to cross the track at night suddenly came in contact with a pole which was used in coupling cars.

The foregoing cases are cited in defendant’s brief, and it also refers to the following eases as being conclusively in its favor.

In Childs vs. Railroad Company, 33 An. 154, the plaintiff was held to have contributed to his injury by “ either misunderstanding or not heeding the warning that was given him.”

In White vs. Railroad Company, 42 An. 991, a lady was driviug in a buggy with three young children through a street in Shreveport in open daylight, and notwithstanding the whistle was blown and the bell rung a warning signal she drove so close to the train that her horse became frightened, ran away and upset the vehicle, whereby she was injured.

In Herlisch vs. Railroad Company, 44 An. 280, the plaintiff was struck and injured by a switch engine of the defendant, which was slowly moving at a point in its yard a short distance from the street crossing in the vicinity of an electric light — he having failed to either look or listen, and the bell was rung and the whistle sounded.

In Stanton vs. Garvey, 44 An. 519, the injured lady was hard of hearing, wore a large sun-bonnet which covered both sides of her face, when she was knocked down by a horse car and had her ankle broken by the car wheel that passed over it; but this accident occurred at a street crossing in open daylight, when, with proper care, she could have protected herself with ease.

In Schexnaydre vs. Railroad Company, 46 An. 248, the plaintiff’s son, who was a deaf mute, was walking on the defendant’s track with his back to an approaching train; but the day was clear and bright and the usual signals were given. The engineer was not aware of his infirmity, and, consequently, approached the boy too closely to be able to stop the train — assuming that he had heard the warning and would get off the track.

In Blackwell vs. Railroad Company, 47 An. 268, the plaintiffs were shown to have received injuries by the defendant’s train while riding in a wagon and attempting to cross the track ahead of same, notwithstanding it was in open view in broad daylight — though there were some- buildings which partially intervened.

In Smith vs. Railroad Company, 47 An. 833, the plaintiff received injuries by a horse car running over and breaking his leg, while he was walking on the track in front of same as it was approaching him from the rear; but his inattention to the approaching ear was held to have been inexcusable negligence, especially as he had just parted with a friend at the corner near by, Who was waiting for the car to carry him home.

Per contra, the plaintiff’s counsel cite the following cases, viz.:

In McGuire vs. Railroad Company, 46 An. 1543, after a careful examination and analysis of authority we held that in an action for damages against a railroad company by the surviving parents for the loss of their son who was run over and killed by the locomotive, the defence of contributory negligence will not avail if by the exercise of reasonable care on the part of those in charge of the train the accident might have been avoided.

This doctrine is also announced in 1 Thompson on Negligence, 1105, and Patterson’s Railway Accident Law, 51 and 55; Pierce on Railroads, 330.

The court in its opinion say in the McGuire case:

“But it is in proof that the signal for the brakes was not given nor any whistle sounded to announce the approaching train until the •deceased was almost under the wheels of the locomotive and his death inevitable. The engineer said he saw an object, but very close, and <could not tell what it was,” etc.

That case presents quite a striking likeness to the instant ease and involves an exactly similar principle, in my opinion.

It is the duty,” says the author, “ of a driver of a street car not only to see that the track is clear, but to exercise a constant watchfulness for persons who may he approaching the track.” 1 Thompson on Negligence, 898; Barnes vs. Railroad Company, 47 An. 1218.

In Gallagher vs. Railroad Company, 37 An. 288, it was correctly held “ that a car driver can be justly charged with negligence only when he fails to observe or do something he ought to have seen or done, and would notice or do with ordinary diligence; when he fails to be prepared for something visible, or at least of probable occurrence, or that might be reasonably expected of him.”

In this case the evidence clearly shows that the motorman of the defendant’s ear did not discharge his duty, but, on the contrary, was negligent in the sense of the rule announced in that opinion.

In Curley vs. Railroad Company, 40 An. 810, we said, a railroad company running and operating its road through the streets of a populous city is bound to observe extraordinary precautions for the safety of the public, particularly at street crossings.

In Johnson vs. Railroad Company, 56 N. W. Rep. 161, the Wisconsin court held, that as it appeared from the evidence “ that persons were accustomed to walk on the track, and that this had been done to such an extent that between the rails near where the plaintiff was injured there was a path worn by pedestrians, while the ground on either side was so incumbered as to make it inconvenient to walk outside the track,” both the. question (1) of whether the defendant had licensed the public to walk on its track, or had acquiesced in such use of it; (2) whether the defendant was guilty of negligence in the method of moving its train in repects to the plaintiff were for the jury to determine.

Accepting that ruling as correct, in my opinion it applies to the instant ease with far greater force, (1) because the pathway Hoelzel used'was not on the defendant’s track, but parallel with it; (2) the case was decided by the judge of the lower court and not by a jury.

In Kreis vs. Railroad Company, 83 S W. Rep. 64, the Missouri court held that the proof disclosing that the plaintiff’s wife, in “going to the depot, walked in the space on a double-tracked railroad, between the two tracks with an umbrella over her head, so near one of the tracks as to be struck by a train coming back of her, ■ does not show such negligence on her part as to justify the taking of the case from the jury — there being evidence that those in charge of the train knew that people were in the habit of walking between the ■tracks at that point, and that they did not use proper means to prevent the accident after they saw, or by ordinary care should have seen .her peril. (My italics.)

That decision seems to present an exactly parallel case to the one under consideration.

In Railway Company vs. Watkins, 26 S. W. Rep. 760, the Texas court held (1) that ‘‘when a railroad company has notice that a large number of pedestrians use its tracks at a particular place, and takes no steps to prevent this use, it is negligence for its train to .approach such place without giving warning; (2) that when a person 'walking along a railroad track, at a point where a great number of persons were accustomed to walk with the acquiescence of the company, is so startled by suddenly seeing a train which had approached from the rear to within a few feet of her without warning, that she jumps in front of it, she will not be held guilty of contributory negligence.” (My italics.)

But an even stronger case is stated than either of the foregoing, in Chamberlain vs. Railroad Company, 33 S. W. Rep. 437, in which the Missouri court held, that “ where a train is running through a populous neighborhood just outside the city limits, where laborers have for years been accustomed to use the tracks in going to their work, and the employees on the train see, or, by the exercise of ordinary care may see, a person on the track in time to avoid a collision, 'but fail to use such care, the company will be liable, though the person iinjured is guilty of contributory negligence.” (My italics.)

In Roth vs. Union Depot Company, 43 Pacific Rep. 641, the Washington court held, that “ where fifty to one hundred people, daily, for four or five years, use a railway track for foot travel, with the acquiescence of the railroad company, such acquiescence creates a right, which imposes on the company a duty of ordinary diligence to avoid injury to persons so using the track.” (My italics.)

It is upon the opinion in this last case that our learned brother of the lower court chiefly relied for the clear and sagacious statement he made of the plaintiff’s case; aided, it is true, by the opinions of this court in pari materia.

A careful examination of the law and evidence applicable to this •ease has convinced me that the liability of the defendant is clearly made out, and that deceased was without contributory fault. The judgment of the lower court should be affirmed.

For these reasons I dissent from the opinion of the majority of the .court.


author: Breaux, J.

text:
    No. 12,532.
    T. H. McFaddin vs. J. Garrett, Sheriff, et al.
    .A citation should he addressed to the defendant and not to his agent. The first citation was, therefore, defective and invalid,
    Service at defendant’s /««/place of residence is not equivalent to his usual place of residence, unless it is shown on the trial, without objection, that the last place of residence was the usual place of residence.
    The second citation was properly served at the usual place of residence.
    ■ The defendant after his return made no objection to either citation or service, proven correct without dispute on his part when offered as proof.
    A PPEAL from the Fifth Judicial District Court for the Parish of Ouachita. Larrikin, J., ad hoc.

      Potts & Hudson for Plaintiff, Appellant.
    C. Newton & Chas. T. Madison for Defendant, Bernhardt, Appellee.
    Argued and submitted June 3, 1897.
    Opinion handed down June 21, 1897.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff brought this action to annul a judgment rendered againBt him.

He at the same time enjoined the fi. fa. which had issued upon the judgment.

The ground was that no legal citation had ever issued and no legal service of citation had been made.

The facts are that plaintiff was a resident of the city of Monroe. His residence was destroyed by fire. Immediately after he stopped at a boarding house in that city about two weeks; it was his home during that short period, at the end of which he left for Texas, not determined whether he would remain in that State or not.

The suit was brought against him a few days after he had left for Texas.

Two citations were issued; one was directed to 0. 0. Madden, agent and attorney in fact for T. H. McPaddin, of the parish of Ouachita.

The other citation was legal in form and was properly addressed to T. EL McPaddin.

The first citation was served upon the agent and proper return was made; the second citation, the sheriff’s return shows, was served by delivering “ certified copies of petition and citation at the last place of domicile of T. H. McPaddin, defendant, situated in the parish of Ouachita, to Mrs. E. P. Newman, a person living in the domicile of the defendant, who was absent from the State temporarily at that time.”

Madden was plaintiff’s agent, with authority “ to carry on or defend at law or in equity all actions or suits.”

The citation addressed to the agent instead of the defendant was an invalid citation. The particular defect here has been considered by this court, and it has always been held that it must be addressed to the defendant.

The question was decided in Bertoulin vs. Bourgoin, 19 An. 360. The case of Arnault, Administrator, vs. St. Julien, 21 An. 630, was to the same effect; also the case of Jones vs. Jones, 23 An. 304.

This brings us to the citation served upon one living at the domicile of the defendant. The Oode requires that the citation be served at the usual place of abode of the defendant.

Sere we have noted that the return of the sheriff stated that it was served at the last place of residence of the defendant.

This is not the service ordinarily required by statute.

The facts of the case in hand are exceptional and the ground peculiar. The defendant McPaddin’s residence was unquestionably in the parish in which the suit was brought. His actual residence was that indicated in the return. Service at defendant’s last domicile is not a legal service. It should be made at his usual domicile.

But the defendant had only one domicile, and that is the domicile at which the service was made.

The facts are before us, without objection, that the last place of residence was the.usual place of residence of the defendant. In our judgment, when the word last is used to designate the usual residence, if it be the usual residence, it does not render the writ of citation fatally defective.

The distinction was clearly made in Sparks vs. Weatherby, 16 L. 594.

“So it has been held that service at defendant’s last domicile, when, he had acquired a new one in the State, is bad.” (Italics ours.)

For the purpose of application we will add by way of illustration: If in the trial of an injunction to restrain and prohibit the execution of a judgment on a similar issue to the one before us, the-evidence were to show (without objection to its admissibility), to explain a return, that defendant’s last residence was his usual residence ; we do not think in that case, that there would be cause-enough to annul the judgment.

We are well aware that the service must appear by matter of record, and that no parol evidence of it should be received; but in this case parol evidence was received without objection, showing that there had been legal citation.

Again, as illustration: If a service complained of were shown by the return to have been at domicile and not a proper service, and it were made evident during the trial, without dispute as to the admissibility of the testimony, that the service was personal and absolutely unobjectionable, the incorrect return would offer no basis to annul the judgment rendered upon a legal citation.

The illustration applies to the case before us. There is no substantial difference between it and the case in hand.

We are led to say a few words about the residence of McFaddin, the defendant in the original suit.

He had no other residence than the hotel, after the destruction of his dwelling. It was his home during the ten weeks he remained in Monroe, and when he left it, it was not made evident by the testis mony at the time that it was not his intention to return. On the contrary, he stated before leaving that he would return. He did return to Monroe from Texas a short time after, and while in the former place the evidence shows that he was informed that the suit had been brought against him. His agent, who had authority to sue and be sued, had received a writ of citation; moreover, there is evidence of record in regard to his desire to obtain extension of time. ‘for payment of the claim upon which suit had been brought at the 4ime.

It was the intention, so far as we know, to fix his domicile at the .place he stopped in Monroe.

In No. 870, Troplong examines the question, and says: “Sans •doute, d’assez grands embarras auraient pu survenir dans la pratique •si la loi eut voulue qu’on tient compte de toutes les allées et venues, •de tous les déplacements du proprietaire. Mais telle n’a j’amais été ■ sa pensée. Elle á pris pour base fixe le domicile, qui quoique doué •d’une mobilité favorable aux interets privés, ne change pas cepen-■dant par des eirconstances légéres, et est eonsiderée toujours la méme malgré les voyages et méme de longues absences.”

Here there was no prolonged absence, and the expressed determination to return.

Before this court appellee prayed for larger damages, in his •answer. We do not think that we should increase the damages allowed by the judge of the District Court.

The facts of the case and the issues as presented render it evident that the judgment should remain undisturbed in this respect also.

It is therefore ordered and adjudged that the judgment appealed from is affirmed.

Nicholls, C. J., absent; ill.


text:
    No. 12,533.
    State ex rel. Thomas J. Moulin vs. Mayor of New Orleans.
    'This was an action to compel the respondent to approve a bond.
    The relator offered bond and security for the faithful performance of his duty as secretary-treasurer of the New Orleans Fire Board.
    'The respondent declined to approve the bond on the ground that the relator had not previously qualified.
    '.The differences will be settled by judicial interpretation. Until that interpretation is had in an action now pending before the courts, it is not clear that relator is entitled to the writ of mandamus. 137 U. S. Sup. Court Reports, 636, Red-field vs. Windom; State vs. Board of Liquidators, 29 An. 268.
    .(Enforcement of a right, not its ascertainment, is of the essence in issuing the writ .Of mandamus.

    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      E. A. O’Sullivan for Plaintiff, Appellant.

      Samuel L. Gilmore, Oity Attorney, and W. B. Sommerville, Assistant City Attorney, for Defendant, Appellee.
    Argued and submitted June 17, 1897.
    Opinion handed down June 22, 1897.
    Rehearing refused June 30, 1897.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff alleging that he was elected on the 22d ■day of March, 1897, Secretary and Treasurer of the New Orleans Fire Board, sought by the writ of mandamus to constrain the mayor to accept his bond in amount fixed by the board at fifteen thousand ■dollars for the faithful performance of his duties.

He alleged further that he had the required qualifications; that his bond was solvent and that the mayor illegally withheld his approval.

The mayor in his return denies that relator discloses a right to the writ and avers that there is a contest between the “ chief executive, the comptroller, chairman of finance committee and the board of civil service commissioners, on the one side,” and the board of fire commissioners on the other side as to the validity of the election of the relator to the office of the secretary-treasurer of the board of fire commissioners, and that this question can not be determined in a mandamus proceeding.

The judge of the District Oourt declined to make the writ peremptory.

On appeal counsel for the relator with energy and clearness urged that the sole duty of the respondent was to pass upon the solvency of the bond, and not to inquire into the qualification of the one by whom it is presented.

In support of his po-ition the respondent mayor refers to the provisions of the law whereby he is charged with the execution and enforcement of statutes relating to the municipality.

He also refers to that portion 'of the charter making a wilful violation of the civil service sections a misdemeanor.

Ordinarily mandamus should issue and be made peremptory compelling the officer to approve the bond if it is solvent and satisfactory. But here it is evident that there is a contest.

We take notice of the provisions of the statutes relating to civil service and the feature of that statute regarding examinations.

The record informs us that one of the parties to the controversy contends that the civil service provisions of the statute are valid and apply, while the other, the relator, urged that these provisions are invalid, or if valid they do not apply to his case.

If we were to decide at this time that no alternative is left to the respondent save to approve the bond and security offered, the relator would still be confronted with the objection that he had failed to qualify under the civil service section. Our decision would not decide any of the serious issues involved.

He has accomplished all that it was possible to accomplish by offering a security to which no objection was raised on the ground of insufficiency or unsatisfactoriness.

The only question remaining is the right to the office of secretary-treasurer of the fire board. It has been decided in a number of well-considered decisions that mandamus is not the method of trying the title to an office.

It has also been decided that mandamus should not be issued as a general rule where the right of the relator depends upon holding acts of the Legislature invalid.

It is equally as well settled that mandamus is issued or withheld as the court may, in its discretion, deem proper. That courts will be governed by what is necessary to be done.

If a discretion is abused by one upon whom a duty is imposed and made to work injustice it may be controlled by mandamus.

Here the officer does not arbitrarily refuse to act. As we appreciate the issues the approval is withheld in order that it may be determined who, under the law, is entitled to the office.

The writ of mandamus may issue to compel a public officer to perform a ministerial duty, but it must clearly appear that the duty is one which from its character leaves no discretion in the officer to do or not to do. State ex rel. Romaine vs. West, Administrator of Improvements, 26 An. 322.

The respondent has responsibilities as an executive officer which the court will not overlook.

The case of Redfield vs. Windom, 137 U. S. 636, was evidently well considered. Under the reasoning in that case, in our view mandamus should not issue before the differences in regard to the law involved are finally passed upon by the courts. We gather from the argument at the bar, the averments of record and all the facts that an action is pending in which all the issues are involved that will enable the court to decide the whole matter.

It is ordered and adjudged that the judgment appealed from is affirmed.

Nicholls, O. J., absent; ill.