author: Pooiní, J.

text:
    No. 10,184.
    Charles Andrew Johnson vs. Charles Cavanac, Tax Collector.
    The Supreme Court lias no jurisdiction over tax suits regardless of the amounts involved, unless the legality or constitutionality of the tax bo in contestation.
    In a case where the party resists the payment of a tax, on the grounds of payment, of illegality in the assessment, or of the mode of levying the tax and of other irregularities involving the validity of the tax, the amount of the tax claimed, and not the value of the property seized therefor, is the matter in dispute.
    Iu such cases, if the amount of the tax does not exceed $2000, the Supreme Court has no jurisdiction.
    APPEAL from the Civil Court for the Parish of Orleans. Houston, J.

      Chas. IP. Claiborne for Plaintiff and Appellee:
    1. This Court has no jurisdiction of an injunction talc en hy the owner of property to restrain the sale thereof for an amount of taxes less than $2000, even if the property is worth moro than $2000. 38 Ann. 39, 230, 99; 36 Ann. 801, 392.

      2. Tho assessment roll must designate the lot according lo a particular plan. 37 Ann. 60.
    3. Registry laws apply to the State for its taxes. Constitution 1868; 30 Ann. 1365; 26 Ann. 592; 28 Ann. 496; 31 Ann. 514, 517.
    4. If the State neglects to record its delinquent tax list within the time prescribed by law, it loses its privilege as against third persons, and retains only a mortgage. 36 Ann. 272; 34 Atm. 1131; 31 Ann. 286; 29 Ann. 415; 28 Ann. 496, 305; 27 Ajan. 460, 407,244, 275, 48; 26 Ann. 80, 592; 24 Ann. CIO ; 23 Ann. 236 ; 20 Ann. 80, affirming; 12 Aim. 778. 18 Ann. 142; 16 L. 292.

      Walter M. Bogers, Attorney General, and James G. Moise for Defendant and Appellant:
    1. Tax collectors may proceed to enforce collection of taxes upon copies of the delinquent roll deposited in the recorder’s office when the original assessment rolls are missing-Act 50 of 1877, p. 81.
    2. Section 1 of Act 82 of 1684 provides that property offered for sale under the authority of that act shall he adveitised hy a description ‘ ‘ sufficient to identify, describe or deliver the property.”
    3. Absoluto perfection ip. the* description of property on assessment rolls is not required. It is sufficient if it be such as not to mislead tbe owner. Blackwell Tax Title, 139 to 140; Cooley on Tax. pp. 28C, 285; 'Woodside et al. vs. Wilson, 32 Penn. St. 55, 57; City vs. Miller, 49 Penn, St. 455 ; 13 Sergeant & Rawle, 360; 4 Watts, 351, 355; 18 Penn. St. 151; 58 Penn. St. 290; Rougelot vs. Quick, 34 Ann. 126; 1 Ann. 195.
    4. Where tho law provides for tho mode and manner of correcting assessments, and every opportunity is afforded the taxpayer to have the defects and errors of his assessment corrected, if any exist, he cannot afterwards plead such errors as a defense against the enforcement of the tax. Atax payer will no t be permitted to profit by his own negli. gence, and is therefore hound hy the assessment. 21 Ann. 439; 11 Ann. 195, 69, 251 ; 23 Ann. 781; 27 Aim. 520.
    5. Act 42 of i871 creates a lien and privilege in favor of the State for State taxes without the filing of the rolls. Sec. 37, p. 115. As the lien and privilege is not created by tho filing of the rolls, third persons have full notice of the existence of the tax lion and privilege to be created for each year’s tax before the filing of tho rolls. When such filing takes placo it operates as a registry of tbe lien and no mortgage can prime such lien unless recorded after tho taxes are delinquent and before the filing of the rolls.
    '6. No act done in contravention of a positive prohibitory law can affect tho rights of tho State, when such law was adopted expressly to preserve those rights. Therefore, a sheriff who violates the law hy passing an act of sale to a certain purchaser, without seeing that all the taxes are paid cannot release tho property from the burden of paying ;the tax. Section R. S. 3620; 33 Ann. 382.
    77.. A mere declaration in a notarial act of sale that all taxes had been paid cannot bind tho :Stafce of Louisiana, where no receipt or certificate to that effect had been exhibited to the notary, or when no evidence was adduced that the receipt or certificate was lost or mislaid.
    When such declaration was brought to tho notice of counsel after trial, it should not bo considered, there being no allegation of payment and tho deed of salo not having boon introduced for tho purpose of proving payment.
    .8. Where the Recorder of Mortgages omits to recite in his certificate a lien and privilege-in favor of the State for tbe tax of a certain year, the purchaser should not hold tho recorder. The State cannot be made to lose her tax by reason of the recorder’s mistake. Morano vs. Shaw, 23 Arm. 382.
   The opinion of the Court was delivered by

Pooiní, J.

Appollee’s suggestion, that the matter in dispute iu this •case is in amount less than the lower limit of oar jurisdiction is well founded.

The suit is an injunction to restrain the sale of plaintiff’s property for State taxes amounting to $236.50, which are alleged to be not due •on several grounds, one of which is that a portion of the taxes claimed ■have been paid, and on other grounds of alleged illegality in the mode ■of assessing the property, of levying the taxes and in the want of proper registry. Nothing in the pleadings suggests an issue involving in any way the legality or constitutionality of the tax which plaintiff resists; the only feature which could vest jurisdiction in this court, irrespective of the amount involved. Constitution, Art. 81.

If, instead of enjoining the sale, plaiutiff had paid the sum of $236.50, with interests, penalties and costs, for which his property was advertised, there would have been an end of the case. He is therefore in the attitude of a defendant in execution of a judgment in a sum less than two thousand dollars, and the amount of that judgment, not the value of the property seized, would be the matter in dispute between the plaintiff in execution and himself.

The matter in dispute in this case is the contested right of the State to enforce the payment of taxes amounting to $236.50, by levying on plaintiff’s property ; hence the value of his property is no factor in the jurisdictional features of the controversy.

To this purport have been the uniform rulings of this court. Agmar vs. Bourgeois, 36 Ann. 392; Cobb vs. McGuire, 36 Ann. 801; State ex rel. David vs. Judges, 37 Ann. 898; Denis vs. Houston, 38 Ann. 39; Minor vs. Budd, 38 Ann. 99; Favrot vs. City, 38 Ann. 230; New Orleans vs. Schoenhauson, 39 Ann. 237.

But counsel for appellant contend that the real issue in the case is ■the contested right of the State to offer for sale for unpaid taxes property exceeding $2000 in value, which property was in truth owned by the State, the proceeding being carried on under the provisions of Act ■82 of 1884.

That contention is not borne out by the pleadings, and is effectually contradicted by the evidence in the record, which consists mainly of admissions made by counsel of both parties.

The issues tendered by plaiutiff are slated in the first part of this ■opinion, and, among other reliefs sought by him, plaintiff asked that the assessment of his property for the years 1871 and 1872, in the name ■of John Coleman, be annulled, and that the property be stricken from ■the delinquent list for said years ; ho also prayed for the erasure of the the inscription thereof in the mortgage office. The issues thus tendered were met by a general denial and by a special denial of the alleged payment of the taxes claimed, and of the alleged cancellation of tiie inscriptions by the Sheriff, who had sold said property in an executory process.

We therefore repeat that the pleadings suggest no other issue but the contested right of the State to enforce the payment of'the taxes resisted by plaintiff.

The record contains an admission by appellant’s counsel that the advertisement was for taxes amounting to $236.50, assessed for the years 1871 and 1872, in the name of John Coleman, the original owner of the property, “of which C. A. Johnson is the present owner.” It is too clear for argument that such an admission entirely does away with the present contention, manifestly an afterthought, that the title of the property stood in the name of the Stale.

Conceding that the proceeding was instituted under the provisions of Act 82 of 1884, which the record does not show, a reference to the act discloses that_ it provides for the sale of two distinct classes of property:

1. Of property previously adjudicated to the State at a tax sale ;

2. Of property not thus bid in by the State, on which there remain unpaid taxes due to the State prior to December 31, 1879.

And the law requires the advertisement in the first case to give the name of the party in whose name the property was assessed, and in the other instance the name of the present owner.

The latter case is precisely the attitude of the advertisement now under consideration, showing conclusively that the property had never been adjudicated to the State, and that the title stood and yet stands in the name of C. A. Johnson, plaintiff herein.

Hence appellant’s contention cannot save the present appeal, over which this Court is without jurisdiction.

It is therefore ordered that this appeal be dismissed with costs.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 10,163.
    Mrs. Fannie Gunther et al. vs. The New Orleans Cotton Exchange Mutual Aid Association.
    U'ho fact, that by the charter of a mutual benefit association a particular method, of notice of assessments falling due is declared to be sufficient and binding on all members, does not exempt the corporation from the operation of the principles of equitable estoppel which apply to all other persons natural or Juridical.

      In matters affecting tho execution of contracts, tho doctrine of estoppel has uo use or significance when the contract has been complied with; it is only in cases of non-compliance that the question arises whether the other party has, hy his representations.or course of contract, estopped himself from setting up such non-compliance as a ground of forfeiture.
    "Forfeitures are rot favored by the law; and in cases of insurance, where the company has pursued a course of conduct which leads the insured honestly to believe that-, by conforming thereto, his rights will be protected, the company will be estopped from claiming a forfeiture, although Incurred under the letter of the contract.
    Hence, though the charter provides only for notice by posting, yet if the company adopts the practice of always sending written notice by mail to a particular class of members of assessments due, and if on a particular occasion it failed to send sucli notice, and if the failure to pay was solely due to the want of notice, and if, as soon as informed, payment was tendered, the company is estopped from claiming the forfeiture.
    Upon a review of the evidence, the facts of tho uniform custom to send notices, and of the failure to send it in the particular case in which default occurred, that this was the sole cause of non-payment, and that payment was offered as soon as knowledge was obtained, are found established.
    APPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

      W. V. <& J). O. Mellen for Plaintiffs and Appellees.

      Bayne, Denegre á Bayne for Defendants and Appellants:
    Each one of tho members of a mutual aid society contracts with each other member, and their contract is a law unto themselves by which they are bound. "When tlio charter provides that the failure to pay terminates membership, this law is conclusive between the members. Madeira vs. Merchant’s Exchange Mutual Benefit Society, 16 Eederal Reporter, 750; 86 Illinois Reports, 479; 18 Central Law Journal, 373; 93 IT. S. 31; 104 IT. S. 88-252; 44 New Tork, 276; 63 Md. 86.
    Sickness or insanity of the member does not excuse or waive such payment. 82 H. T. 550 ? Hankshaw vs. Supreme Lodge Knights of Honor. 24 Central Law Journal, 129 and cases cited above.
    There was no waiver made as to the manner of notice by adding notice by postal card. Ho such waiver was in fact, and neither the president nor directors could have made sucli waiver by any action on their part. Tho directors are merely administrators of the agreement made by the members with each other.
   The opinion of the Court was delivered by

Fenner, J.

The defendant is a corporation, organized as a mutual benefit association, the members of which, or their designated beneficiaries, are entitled, at death, to receive an amount equivalent to the sum of certain assessments which are levied upon, and payable by, the surviving members.

Plaintiffs exhibit a certificate of the association reciting the membership of Julius Aroni and that, “in consideration of twenty dollai’sby liim paid as sucli, said Aroni has secured to his children (the plaintiffs) in the nature of insurance upon his life, all the benefits of said ■association, subject at the same time to the conditions, limitations and .penalties imposed by the charter of the association.”

Defendant admits the original membership of Aroni and the right of plaintiffs to claim whatever is due under the certificate, but avers that, in accordance with the provisions of the charter, he had, prior to his death, been duly suspended for non-payment of assessments and had -entirely forfeited his membership and all claims against the association.

The charter contains the following provision :

“Upon proof of the death of a member, each surviving member shall, within ten days, pay to the secretary the sum of ten dollars. A notice posted in the rooms of the Cotton Exchange shall be deemed a proper notification to all members. Any member not having paid within ten days shall be suspended and shall be treated as not being-on the rolls of membership, and in case of his death during the period ■of such suspension, he shall forfeit all claims upon the association j provided, however, that within thirty days from date of such notice, upon payment of any past dues, and any that would have accumulated had he remained a member of this association, lib suspension shall cease. Should any member remain in default after the expiration of the said term of thirty days, he can only be reinstated by a vote of tlie board of directors, and upon payment of all arrears.”

To become a member it was essential that the applicant should he either a member of the Cotton Exchange, or the holder of a power of atiorney of a member, or a visiting member, or an emploj ee, of said Exchange; but the charter provided that “any member may withdraw from the Cotton Exchange without severing liis connection with this association.”

The rule with regard to notice was evidently adopted w,ith reference to the original conditions of membership, under which every member having access to the floor of tlie Cotton Exchange would have the •opportunity to observe tlie posted notices.

But, as time went on, under the operation of the provision last quoted, there arose a class of members of the association who had ceased to be members of the Exchange and liad lost the privilege of access to its rooms. As to them the posting of notices in a room which they were forbidden to enter, became obviously unavailing. We do not say that this change of condition operated tlie creation of any new right or imposed any duty upon the association to give a different notice from that required by the charter. It might have stood upon Jfc8 rights and have held the excluded members to tlie hard lines of their contract. But it did not choose to do so. On the contrary, it adopted the just and reasonable custom of sending by mail, written notices of all assessments due, to all such members, and even to others ■who requested it. It is true that the president says that he told such 'member s as spoke to him on the subject that this was a matter of •courtesy and not of right; but he does not pretend that he made such ■statement to Aroni.

Aroni had ceased to be a member of the Cotton Exchange. Under the custom above indicated, notices were always mailed to his address when assessments became due, and he always paid. The custom was to send notices, as soon as an assessment was posted, to all members who, like Mr. Aroni, were not admitted to the Exchange.

In November, 1885, Mr. Aroni was stricken with cerebral apoplexy and softening of the brain, from which date until his death, in the latter part of .1886, he remained in a state of mental incompetency.

Mr. Aroni had an office on Carondelet street and resided in rooms on ■Canal street, both of which were known to the officers of the association charged with giving notices. In February, 1886, two deaths occurred, of which notices were received at his office, and his son, Mr. Ernest Aroni, promptly paid the assessments.

On March 27, 1886, another member, Mr. Friedlander, died. No ■notice was ever received of this death either at the office or residence ■of Mr. Aroni. Mr. Mellen, his friend and associate in much legal business, testifies that he regularly examined his mail and that no such notice came — if it had, he would have attended to it. Mr. Ernest Aroni states he was with his father day and night at his residence and that no such notice came there.

The officers of the association testify that notices were sent out as ■usual and they presume one was sent to Mr. Aroni, but they do not profess to remember it as a fact or to have any record of any kind to •confirm their impression based simply on their ordinary course of proceeding. The liability to accidental omission in sending a large list of notices is too great to justify us in giving to this testimony sufficient weight to overthrow the presumption resulting from the fact that all other notices sent reached their destination and that this one certainly -did not.

Another fact still more strongly weighs against the defendant. On ■the 31st of March, 1886, Mr. ft. N. Lewis, another member, died. This was several days before the expiration of ten days from the death of Friedlander, at a time when Mr. Aroni was, in no manner, in •default, when the custom clearly entitled him to immediate notice of the assessment, and when there was no excuse for not sending it. If the former notice had simply been miscarried in the mail, it is not likely that a similar accident would have happened a second time.

If the latter had been received, all the consequences of the former accident would have been averted. Yet it is admitted that, in this case, no notice was sent, The admitted failure to give notice iu this case, being without excuse, supports the probability of failure in the former, and places the association in fault.

There is not the slightest ground for attributing the failure to pay these assessments to any othei cause than want of notice. As soon as the default came to the knowledge of the beneficiaries, and long before the death of Mr. Aroni, the parties immediately tendered payment of all assessments due and demanded the reinstatement of Mr. Aroni, which was refused.

We, therefore, accept and treat it as a fact in the case that Mr. Aroni was not notified of any assessment which he failed to pay, unless the simple posting in the Exchange operated as a sufficient notice.

The learned counsel for defendant vigorously maintain that Mr. Aroni was entitled to no other notice than the posting; that the charter is a contract to which he was a party, and by the terms of which he is bound, and that he had not, and no action of the officers of the company could confer upon him, a right to any other notice than that which the charter declared should be sufficient.

We can discover no possible reason why the defendant should be exempt from the application of the principles of equitable estoppel which operate upon all other persons natural or juridical, nor why the. mere fact that there was a contract should bar their application.

In matters affecting the execution of contracts, there would never-be any occasion for invoking the doctrine of estoppel if the party had complied with the terms of his contract, because- such compliance would be, of itself, a sufficient basis for his legal right.

It is only when the terms have admittedly not been complied with, that the question arises whether the other party has, by his representations or conduct, estopped himself from setting up each non-compliance as a ground of forfeiture.

Says Mr. Bigelow: "Where a person, by his words or conduct, voluntarily causes another to believe in the existence of a certain state of things and induces him to act upon that belief, so as to change his previous position, he will be estopped to aver against the latter a different state of things.” Bigelow on Estoppel, Introd’n, p. 64.

There can be no doubt that the long continued practice of the defendant company to send to Mr. Aroni prompt notice of every assessment as soon as made, justified him in believing that lie would receive^ such notices, and in acting on the belief that, by paying when so notified, his rights would be protected.

The case is very much stronger than that of ordinary insurance, where a fixed premium is due at a date certain and where the insured, Independently of any notice, is fully advised of his duty in the premises. Here notice of some kind was absolutely essential in order to inform the insured that anything was due. But even in the former class of cases, it has been universally held that, however positive the terms of the contract in requiring payment., unconditionally, of the premiums when due, yet if the company pursues the practice of notifying its policy-holder before the maturity of his premiums, the latter would have the right to expect and to rely on receiving such notice, and that if the company failed to send it in a particular case it would be estopped from.claiming a forfeiture for non-paymeut at the exact time.

This has been held by the Supreme Court of the United States, using the following language : “ Forfeitures are not favored in the law; and courts are always prompt to seize hold of any circumstances that indicate an election to waive a forfeiture or an agreement to do so oil which the party has relied and acted. Any agreement, declaration or course of action, on the part of an insurance company, which leads a part.) insured honestly to believe that, by conforming thereto, a forfeiture of his policy will not he incurred, followed by due conformity •on his i>art, will and ought to estop tlio company from insisting on the forfeiture, though it might be claimed under the express letter of the •contract. The company is thereby estopped from enforcing the coil-tract. * * In the present case it appeared that the company had ■discontinued its agency at the place of residence of the insured soon ■after the policy was issued and had given him notice by mail, from time to time, where and to whom to pay them. Such notice, it would seem, had never been omitted prior to the maturity of the last instalment. The effect of the judge’s charge was, that if this was the fact, •and if no notice had been given on that occasion, and the failure to pay the premium was solely due to the want of such notice, it being •ready and being- tendered as soon as notice was given, no forfeiture was incurred. We think the charge was correct under, the circnm•stances of this case. The insured had good reason to expect and to xrely on receiving notice to whom and where he should pay that instalment. It had always been given before, etc.” Insurance Co. vs. Eggleston, 96 U. S., 572.

The same doctrine was reiterated in a later case, and was extended; to a case where the insurance company was in the habit of receiving the premium though tendered a few days after maturity, and was held' to be thereby estopped from claiming a forfeiture when the premium was tendered in a reasonable time after maturity. Ins. Co. vs. Doster, 106 U. S. 30; see also Ins. Co. vs. Pierce, 75 Ill. 426; Attorney General vs. Ins. Co. 33 Hun. (N. Y.) 138; Ins. Co. vs. Tullidge, 39 Ohio-St. 240; Ins. Co. vs. Smith, 44 Id. 156; Thompson vs. Ins. Co., 52 Mo. 469; Fitzpatrick vs. Ins. Co., 25 La. 444.

The case last quoted fully, recognizes the authority of a mutual benefit association, like the defendant, to change the method of notice provided in the charter and held tbe company estopped from setting-up a forfeiture under the charter notice, where the new notice adopted, had not been given.

We consider the present case as fully covered by the principles-above set forth.

Judgment affirmed.


author: Watkins J.

text:
    No. 10,186.
    Charles S. Pitcher & Co., vs. Their Creditors.
    The duties of a provisional syndic consist in keeping, as a deposit, all the effects of an insolvent debtor, in performing all conservatory acts which may be necessary in demanding and receiving rents and income of the property, in collecting all claims which may-become due during his administration, and in accounting to the definite syndic as soon, as he is appointed.
    He is not authorized to disburse funds which shall come into his hands.
    In case no invertory is made of the effects surrendered but only an estimation is made of their value, and a provisional syndic is placed in possession, and subsequently, a definitesyndic is elected, and he causes an invertory to be made which discloses an apparent deficit in quantity: Held, that in the absence of some direct evidence that the provisional syndic has disposed of, or misappropriated them, he cannot be made responsible* for the difference.
    APPEAL from the Civil District Court, Parish of Orleans. Monroe J.

      B. B. Borman and Wm. Armstrong, for the Syndic, Appellant.
    J9T. Heidenhain, contra.
   The opinion of the Court was delivered by

Watkins J.

The definitive syndic of the insolvents is appellant from an adverse judgment on his opposition to an account filed by the-provisional syndic. Several of the creditors of the insolvents joined the definitive syndic in his opposition, and are likewise appellants-The grounds of the opposition are :

1st. That the provisional syndic is only entitled to take charge of the estate of the insolvent debtors, and keep the same until a definitive syndic is elected and qualified, and has not the right of administration, or to make any disbursements of moneys entrusted to his care ? and that, in violation of law, he has expended a large sum of .money, and has failed to surrender the same to petitioner, and for wlr'ch he is responsible.

2nd. That he has not accounted for the goods and property which were placed in his hands as provisional syndic, nor the rents he collected from the subtenants of the insolvents, nor other-assets he received-

The judgment of the court a qua in part sustained the first ground of objection, and ordered the provisional syndic to pay over to the definitive syndic the entire amount with which he had charged himself on his account, viz : $1926.00, less the sum of $400 paid in fees to his attorney; $50.00 paid to the attorney for absent creditors ; $77.50’ paid to the notary, and $300 paid for rents, and aggregating the sum of $827.50.

But the decree “reserved to the provisional syndic the right to prove contradictorily with the syndic and the creditors, that the (stricken) amounts were disbursed by him m the interest of, or that they inured to the benefit of the creditors, and to recover such of said amounts as may be satisfactorily shown to have been tJms disbursed.

In other respects the demands of the opponents appear to have been rejected, and they have appealed. The appellee has not joined in the appeal, and asks no amendment of the judgment appealed from.

I

The question presented at the threshold of this controversy is whether the provisional syndic was properly allowed credit on his account, with the items and amounts as have been enumerated aboye. We think not.

The duties and powers of a provisional syndic are distinctly set out in section 1793 of the Revised Statutes.

It says that “the duties of the provisional syndic shall consist in keeping, as a deposit, all the goods and other effects of the insolvent debtor j * * in performing all the conservatory acts which may be necessary, as well for the interest of the insolvent debtor as for that of the mass of the creditors ; in demanding and receiving the rents and incomes of the property, as also all the claims of the insolvent debtor, which may become due during Lis administration ; of all of which he shall render an account to the syndic appointed by the creditors ; and when rendering the account, shall be entitled to demand for his trouble and services one per cent on the appraised value of the goods and effects confided to his care, and five per cent on the rents and income which he shall have recovered during his administration.”

. This is substantially the eleventh section of theinsolveutlaw of 1817.

In Barkley vs. His Creditors 11 R 30, the court construing its provisions, said : “He,” (the provisional syndic,) “has nothing to do with the sale of the estate. He is a mere depository, and lie takes the property as he finds it upon the schedule of the insolvent, according to the approximate value therein mentioned, which value is to serve as the basis of the amount of the. bond which he is bound to furnish. Thus it is clear, that when the provisional syndic renders his account to the syndic appointed by the creditors, no change has taken place in the property which came under his admioistration, and that the same is by him. delivered over to his successor under filie schedule, and in the same state in which it was at the time of the surrender, except whatever increase may have taken place from the rents and income by him received, or from the collections he may have made.” (The italics are •ours.)

Prom the foregoing.it is perfectly manifest that a provisional syndic has no power or authority to make disbursements of the funds that may come into Lis hands. Such was (he purport of our opinion in Wood vs. His Creditors 35 A 257.

The district judge granted an order authorizing the provisional syn-' die “to sell for cash such part of the stock of goods as may be called for,” doubtless considering this to be such a “conservatory act” as is contemplated in the section of statutes above quoted ; and it is argued therefrom that, in carrying out this order, certain expenses were necessarily incurred, and it be,came reasonably necessary that the provisional syndic should pay them in cash. But that part of the decreo •embracing these items is not before, us for review, and this order does not effect the remaining issue under jireseut consideration.

Concerning the four items, the payment of which the, court approved, it is said in argument that, while the payment should have properly awaited the distribution of funds by the definitive syndic, no good purpose with be subserved by requiring- the provisional syndic to reimburse the amount, merely for the purpose of enabling the syndic to place it on liis account and return it to the claimants again. This is the doctrine db ineonvenienti, of which courts of justice can take-no notice.

The one under consideration is a question of grave and serious import, and it very nearly concerns the creditors of every insolvent •debtor.

We are requested to sanction the act of the provisional syndic in-distributing the funds of the insolvents, among those whom he deemed entitled to receive them, without an order of court, and prior to the election of a syndic, as one that is authorized by law.

We say “without an order of court” advisedly, because the district judge granted but one, authorizing the payment of money, and it embraced but a small portion of one of the items under discussion, and that is $75 of the claim for rent. This order is 8id generis and is in these words, viz:

“ Let petitioner be authorized to act as within prayed for and according to law.”

We feel constrained to decline this request and to refuse to sanction the act of the provisional syndic, because it was unwarranted by the law. To concede such authority to a provisional syndic would be to-open the door to fraud upon the insolvent debtor and his creditors.

A surrender is made by the insolvent debtor to his creditors and it is accepted by the judge for their benefit. In contemplation of law, all proceedings looking to a disposition of the property surrendered and the application of its proceeds to the payment of creditors, whether privileged or ordinary, are to he postponed until they have chosen a definitive syndic, and he shall have qualified and furnished bond.

In the interim the provisional syndic is required to keep the property “ as a deposit” and perform “all conservatory acts which maybe necessary ” for its preservation and safe keeping.

In the interest of an orderly administration of justice we deem it necessary to rigidly enforce these provisions of the insolvent law.

The provisional syndic made these payments in error, and at his. own risk, and he must account to the definitive syndic for the full' amount thereof whenever he shall file his account and tableau of distribution among the creditors. Rodriguez vs. Dubertrand, 1 R. 538; Goodale vs. His Creditors, 8 La. 301.

But we are of opinion that the item of rent stands upon a different, footing. The instalments thereof seem to have been evidenced by-notes, and the ex parte order of the judge a quo specially authorized! the of one of them. In addition to this, his order-■permitting the provisional syndic to make sales of the goods in the usual course of business, and without opposition by the creditors, would -seem to justify the payment of such pressing claims out of the proceeds. Doubtless the judge below viewed, this in the light of a conservatory act he was authorized to allow, and we will not disturb his ruling nnder the circumstances.

II,

The contention of the opponents’ counsel on the other branch of the opposition, that the provisional syndic has not accounted for the full ■amount of the merchandise that was placed in his custody, and which was estimated in the schedule of the insolvent at $14,769.50, is somewhat involved.

The facts brought out in the record are about as follows : No inventory was taken of the merchandise that was surrendered, the only mention of it in the schedule being “Merchandise, $14,769.50.”

The cession of the insolvents was made in November, 1886, and a definitive syndic was not chosen by the creditors and qualified until in March following.

He caused an inventory to be made of the stock of merchandise and the appraisement was only $5,431.93.

It appears that one of the insolvents was appointed by the judge, provisional syndic, and, under the authority of the judge’s order heretofore adverted to, he made sales of goods to customers “in the usual course of dealing” to the amount of about $750, of which he renders an .account; but it nowhere appears what hind, quality or quantity of goods he sold, the only items in Ills account that serve as a guide in ascertaining the amount of sales being “ mdse sales,” entered with the .amounts set opposite, and as of different dates. These daily sales ■appear to have been very small. In the month of November after the -surrender, there is no sale reported as made on any given date of an amount in excess of $6.65. During the month of December the total amount of sales was $38.35, and of this amount $4.20 were realized during the last fifteen days thereof; andón six consecutive days the -exact sum of thirty-five cents was daily reported as the total amount of merchandise sold. But in the month of February, just before the termination of this trust, we find the items swollen to the proportion of $39, $56, $62 and $260, respectively.

The consequence was that when the effects of the insolvent were surrendered to the definitive syndic, there was an apparent deficit of $9,337.57. Whether this was caused by the fault or misconduct of the provisional syndic, or was the result of an overestimate of the value in the schedule, or that of natural causes of depreciation, it is difficult to determine from the evidence in the record, which is meagre indeed.

It may be accounted for in part by the increased price for which the goods were sold at public auction by the syndic, the amount of diminution in the value of winter goods disposed of in the spring, the fact that the merchandise was estimated at 20 or 80 per cent above their, prime cost, and the further'diminution occasioned by the daily sales made by the provisional syndic. We are not prepared to say that any fault is attributable to the latter, but it is manifest that the opportunity was not wanting', though it may not have been taken advantage'of. That opportunity consisted in the fact that the insolvents prepared •and filed no inventory of the merchandise which they surrendered, and consequently there was absolutely no restraint placed upon him in the disposition of the goods. The opponents have not questioned the authority of the judge to grant the provisional syndic permission to-make such sales, and hence it is not the proper subject of discussion now. Therefore we can only refer to it as demonstrating the impolicy of allowing such a trustee to dispose of an insolvent’s property and to pay charges at will. Under the facts detailed we are not prepared to say that the provisional syndic has not accounted for all the property that came into his hands. It maybe that the insolvents placed too. high an estimate on their merchandise, or a portion of it may have been withheld by them after making their surrender, hut these are questions to be determined between them and their creditors. We feel hound to concur with the district judge in the views he entertained in this particular.

It is therefore ordered and decieed that the judgment appealed from be amended by rejecting the credits allowed to the provisional syndic for the sum of $50, paid to the attorney of absent creditors; of $77.50 paid to Downing, notary, and of $400 paid to H. Heidenlieim, attorney for the insolvents and the provisional syndic, and amounting to $527.50, and requiring him to account therefor to the definitive syndic when he shall file his account and tableau of distribution, and that, as thus amended, same be affirmed at the cost of the appellee.


author: McEnery J.

text:
    No. 10,178.
    Henry Deikman vs. Morgan’s Louisiana and Texas Railroad and Steamship Company.
    To recover damages for injuries received from a railroad Companyr it is nocessary for plaintiff to prove that the accidont, in. consequence for •which'the injuries were received, was caused by the negligence of the railroad company, and that the plaintiff was not guilty of any negligence which created or aided in the accident.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      Jiornor & Lee for Plaintiff and Appellee:
    1. When the surroundings of a public crossing in a populous city are such as to render it dangerous, it is the duty of a railroad company to take thereat such precautions for the-protection of the public as an ordinarily' prudent person would consider commensurate with the danger. Patterson on Railway Accident Law, Sec. 170; Beach on Contributory Negligence, Sec. G5; Whaiton on Negligence, Sec. 798 (a).
    2. If it be proven on the trial of a case that a crossing at which an accident occurred is of such a character as renders necessary the presence thereat of a flagman, for the purpose of protecting the public; and if it he further proven that the presence of a flagman would have prevented the injury, it is negligence on the part of the railroad company operating its line across such crossing, if it failed to post one there. Patterson, Sec. 167; Wood’s Railway Law. p. 1313.
    3. When a railroad company does employ a flagman at the crossing of a public street traversed by its line, and an accident there occurs, his failure to perform his duty is negligence for which the company is responsible. Wood, p. 1313.
    4. When a railroad company has imposed upon itself the duty of having a flagman at a certain crossing of its line, and such custom on the part of the railroad company has. been continued for so long a time that travelers have been induced to rely upon it as a. means of protection, its discontinuance, without notice to the public, is negligence on idle part of the road. Patterson, Secs. 167,1G9; Wood, p. 1314; Wharton, Sec. 798 (a).
    5. Railroad companies are hound to take extraordinary precautions for the protection of the public in the hacking of their trains over a crossing of a street in a city. What precautions are necessary to be taken is to he decided only after taking into view all the circumstances surrounding such crossing. Patterson, Sec. 171; Beach, 202; Wharton. Sec. 805.
    6. Train hands must he vigilant and attentive to their duties when the train approaches a crossing. What degree of vigilance and attention is required of them depends upon the character of the crossing. Patterson, Sec. 172.
    7. Compliance with statutory requirements for the protection of the puhlio at crossings in in a populous city, does not relieve the railroad-company from the charge of negligence: it must take such precautions as are necessary under the cirenmstances, and as are required by the peculiar character of the crossing. Patterson, Secs. 104 and 165.
    8. If a railroad company has been in the habit of giving certain signals of warning at a certain crossing of a public street along the line of its road, and such custom is known to a party injured, such person is not chargeable with negligence if he acts upon the idea that there is no danger because the customary signals are not given. Beach, Sec. 23 i Wood, pp. 1314,1319 and 1328.
    9. Contributory negligence on the part of'plaintiff will not avail as a defense when it was the result of excitement and tremor produced by the misconduct of defendant. Holzab vs. Railroad Company, 38 Ann. 190; Patterson, p. 62.
    10. If no signals of danger, such as the character of the crossing demanded, and as were usual there, were given as plaintiff approached it, in time to enable him to protect himself from the moving train, and if there was a locomotive near the crossing with a headlight shining brightly, casting its rays across it in the direction of Canal street, the fact that theplaintiff might have seen the train approach, had he been particularly watchful in that direction, will not debar him from a recovery if it is found that he was watching the locomotive with the headlight (the only apparent source of danger), with the view of protecting himself against it. Wood, p. 1317.
    11. If a crossing "be a specially dangerous one, it is negligence in the railway company if its train approaches the croseing even at a rate permitted hy statute or ordinance, when that rate is in excess of that which a due regard for the safety of the public requires, with reference to the more or loss dangerous character of the crossing. Patterson, Sec. 158, p. 159.
    12. Contributory negligence is well defined to be that want of reasonable care upon the part of the person injured which concurred with the negligence of the railroad company in causing the injury. Patterson, Sec. 47, p. 48.
    13. Contributory negligence can, therefore, he proved only hy showing: first, that on the part of the plaintiff something has either been done or omitted to be done, which, under the circumstances, and from a prudent regard for his safety, ought, in the one case to have been omitted, or, in the other, to have been done; and second, that that particular act of commission or omission on the part of the plaintiff concurred with the defendant’s breach of duty in causing the injury. If the proofs fail to show either of these elements, the plaintiff’s contributory negligence cannot he said to be established. Patteison, Sec. 43, p. 48.
    14. When the verdict of a jury is based on their estimate of conflicting evidence, and is approved hy the trial judge, it will not he disturbed. Pox vs. Jones, 39 Ann. 529.

      Beovy & Blair for Defendant and Appellant:
    1. Jn an action of this kind it is'essential for plaintiff' to prove that the accident was due to some want of care or neglect of duty on de'enclant’s part, and that he was guilty of no negligence which helped to bring about the injuries of which lie complains. Pierce on Railroads, pp. 343, 345, 346 ; Reach on Contributory Negligence, p. 191,§ 63, ft£.; Id. p. 195; 1 Rover on Railioads, pp. 531 fig.; Murray vs. Railroad Co., 31 Ann. 490; Schwartz vs. Railroad Co., 30 Ann. 15; Merrier vs. Railroad Co., 23 Ann. 264.
    •2. Trie evidence establishes the entire freedom from fault and absence of negligence on the part of defendant and its employees.

      a. The train was moving s’owly; the bell was rung continuously; a flagman was at the crossing with a red signal light and gave plaintiff timely warning of the approach of the train? and all-the signals and precautions required hy law or the particular circumstances of the case wore observed.

      ■b. A railroad company is not required to stop every time a person or wagon is seen approaching the track. A steam car has the right of way, and those manning it have a right to presume that the traveler will stop in time to avoid a collision. Pierce on Railroads, p. 342: Reason vs. R. R. Co.. (Maine), 1 East, Reporter, 101; Schwartz vs. R. R. (Jo., 30 Ann. p. 19.
    As soon as it became apparent that a collision would occur if the train was not stopped, every possible effort was made to stop and avert the accident.
    3. The duties of the public and a railroad company at a crossing are mutual and reciprocal. A performance of liis duties is as essential to plaintiff’s case as a failure of the railroad company to do what is required of it. The evidence discloses au entire failure on plaintiff’s part to observe the precautions the law requires of him and shows that he was guilty of such contributory negligence as would defeat his right to recover damages, were the defendant justly chargeable with every fault alleged in the petition or attempted to he proved on the trial.
    ,a. It was plaintiff s duty as he approached the crossing to have made a diligent use of his eye? and ears; to assume there was danger and to look out for moving cars, and under no circumstances to attempt to cross ahead of a near approaching train. Whenever hy .so doing he could have become aware of the train’s approach in time to escape, it must be presumed, in case of a collision, either that ho did not look or, if he did look, that he did not beed what he saw. He who can. see and does not must be treated as if lie did see. Pierce on Railroads, pp. 343, 33o, 346 ; Beach on Contributory Liegligeneo, p. 191, § 63 ; id. pp. 193,195; Railroad Co. vs, Hobbes (Maryland), 39 Am. and Eng. R. R. Gas. 343 ; 31 Ann. 490; 30 Ann. 15; 23 Ann. 264.

      b. ' The evidence shows beyond a doubt that, if plaintiff had looked or listened carefully as ho neared the crossing, he would have become aware of tbe train’s approach. Hence he is in this dilemma: either he did not make thepropor use of his eyes and ears and was, therefore, guilty of carelessness; or he knowingly attempted to cross the track in front-of the approaching train and hence was imprudent and reckless. Either horn of the dilemma is fatal to his case.

      c. The dangerous character ol‘ the crossing or the jiresence of obstructions on tko track, if any there were, so far from excusing plaintiff’s conduct, heightens its imprudence aud negligence. Beach on Contributory Negligence, p 203, §65; Patterson’s Railway Accident Law, pp. 171. 172, § 177.

      4. Positive outweighs negative testimony. The statements of seven witnesses that they saw a certain thing preponderate over the statements of four witnesses that tliey did not see it Starkie on Evidence, § 867; 35 Ann, 500, 19 Am. and Eng. R, R. Cas276-278.
   The opinion of tlie Court was delivered by

McEnery J.

The plaintiff sues the defendant Railroad Company for injuries sustained in consequence of a collision between a train o f cars of the defendant anda wagon driven by plaintiff, in the City of New Orleans, near 7 o’clock p. m., at the Barracks street railroad crossing, on March 17th, 1887.

The testimony, as is usual in cases of this character, is conflicting. But from a careful and attentive review of the statements in the record, we think the following facts are conclusively established. On the evening of the 17th of March, 1887, about 7 o’clock, the incline engine of the defendant company coupled on to six freight cars for the purpose of placing them on defendant’s transfer boat, and began to hack them in the direction of the Barracks street crossing. This was the only practical way to put the cars on the transfer boat. The train was running at a reasonably slow rate of speed, not exceeding four miles an hour. The electric light at the crossing gave at this time a sufficient light to make plainly visible for some distance the surroundings at the crossing. There were no obstructions to prevent a full view of the crossing from the 3d District Ferry Landing, and the approach of trains from the direction of Hospital street, the direction from which the train come at the time of the collision. The Third District Ferry boat landed about the time the defendant company’s train was moving towards the crossing, 'three vehicles were driven from tlie ferry slip towards the crossing, the first two were driven at a comparatively rapid speed and successfully made the crossing when. the train was some seventy-five feet from them and approaching them. The third wagon driven by plaintiff was ten or twelve feet behind second wagon. The horse was driven on the track and one wheel of the wagon, crossed the first rail of the track. At this time the train was within a short distance of plaintiff’s wagon, some ten or twelve feet. The flagman was at the crossing, he flagged down plaintiff’s vehicle as he had flagged down the other two wagons which had successfully passed over the track. The plaintiff failing to heed the signal, the flagman halloed to plaintiff to stop, or back, and as he still continued in his course, he seized his horse and endeavored to get the wagon from its perilous position. The horse’s head was turned until the first wheel of the wagon was parallel with the track, and it became fastened so that it was impossible to get the wagon off in time to prevent the collision which threw plaintiff from it and injured him. The train in consequence of the efforts made before the collision, passed on a few feet and was stopped.

While the train was backing the bell was continually rung. Every reasonable effort was made by defendant’s employees to avert the accident. The signal to stop was given, the brakes applied and the engine reversed. The train hands were in their respective positions and were discharging their duties. There were lights at least on the top of the train. These were used as well as the loud voices of the employees to warn the plaintiff of his danger. All these warnings were given and the efforts to stop the train made as soon as it was evident that the plaintiff was in danger, that is as soon as he had reached the track. .The crossing, like others in populous cities, is dangerous. The railroad company is bound to take extraordinary precaution for the protection of the public at such places in the management and handling of its trains. Employees of railroad companies must always be vigilant and attentive, and their responsibility must be measured by the dangerous conditions which confront them; the greater the danger, the greater the vigilance and attention.

It would be the greatest carelessness and negligence for a railroad company to fail in any of the requirements necessary to protect the public, at a crossing where persons.and vehicles are constantly passing - There is an obligation also on the part of the public to be vigilant and attentive when passing over a crossing where passing trains may be frequently expected. Counsel for plaintiff says in his brief :

“Of course there can be no question, that if the court finds that the flagman was there, it was the greatest negligence on the part of plaintiff to undertake to drive by him.” We are convinced that the flagman was at the crossing, and gave timely warning to the plaintiff.

Plaintiff^ witnesses prove that a flagman was kept at the crossing before and after the accident, but on this particular night they did not see him at the crossing. There mnsthave been some obvious reason for his absence from his post of duty on this particular occasion. The company must have ceased placing a flagman there, or he might on his own responsibility, have quit his accustomed place. Neither of these facts is shown. The plaintiff states that some one halloed to him to stop or back when he got on the track, and in obedience to this he pulled his horse back. The evidence shows that the horse’s head was turned so that one of the front wheels was parallel to the track. Who was it that halloed to plaintiff 1 The plaintiff does not know who it was. But other witnesses identified the party who halloed to plaintiff •as Fitzgerald the flagman, who also seized the horse and turned his head towards Canal street, thus placing the wheel parallel to the track. ‘The plaintiff did not hear the bell ringing, or the noise of the cars in motion. He did not see the flagman, or his signals, the lights, or the ■cars or anything to warn him of the approach of the train. The evidence shows had the plaintiff been governed by ordinary prudence in using Ms sight and hearing, he would have seen the train in motion, the flagman at the crossing, his signals in his efforts to arrest the course •of plaintiff, he would have heard the continuous ringing of the bell and the noise of the train. The plaintiff was evidently paying attention only to the wagons ahead of him, and as these had passed in front of the moving train, ho thought he could also do so with safety. After the second wagon had passed he was warned in sufficient time to prevent Ms attempt to cross the track. There was no violation, no neglect of any of the ordinary and necessary precautions, which could have led him to believe it was prudent to make the attempt.

There is not sufficient evidence to establish the fact contended for by plaintiff, that there was a hole in the track, “longer and •deeper than should have been,” caused by the neglect of plaintiff to repair the same, in consequence of which plaintiff’s wagon was unable to be moved from the track in time to prevent the collision.

The plaintiff has failed to show that the accident in consequence of which he received his injuries, was due to the neglect of the defendant •company, and that he was guilty of no negligence which aided in the accident.

It is therefore ordered, adjudged and decreed that the verdict of the jury and the judgment appealed from be set aside, annulled aud reversed, and it is now ordered adjudged and decreed that the demand •of plaintiff be rejected, with cost of both courts.


author: Poché, J.

text:
    No. 10,203.
    The State ex rel. J. B. Solari vs. T. C. W. Ellis, Judge.
    Under the construction placed in jurisprudence on the provisions of Article 318 of the Code of Practice. Pule 29 of the Civil District Court of the Parish of Orleans, •which provides that appeals from City courts must ho filed before the expiration of the tenth day after the bond pf appeal has been filed in the City Court, must he construed so as to exclude in the computation of the time, the day on which the bond lias been filed as well as the day on which the transcript was required to be filed in the appellate court, under the rule.
    There is no perceptible or substantial difference between Rule 29 of the Civil District Court and Section 2093 of the Revised Statutes of 1870. In dealing with rules of practice the Supreme Court will follow judicial precedents, with a view to the uniformity of such rules.
    APPLICATIONS for Certiorari and Mandamus.

      H. Howard McOaleb for tbe Relator :
    b Sections 2079. et seq., R. S. 1870, providing for appeals from judgments rendered by justices of the peace in the Parish of Orleans, were not repealed by the adoption of the Constitution of 1879. They remained in a condition of innocuous desuetude until quickened into life by the Constitutional Amendment of 1884. Like Art9. 857 and 858, C. P., regarding the writ of certiorari, or the State insolvent laws, during the existence of the bankrupt act, the operation of these laws was suspended, hut they were not repealed. 117 U. S. 201. Hence Sec. 2093, R. S3., is the law governing the time within which the record of appeal must he filed in the appellate court.
    • 2. City courts, under the new system, took the place of justices of the peace in the Parish of Orleans under the old system. Sec. 7, Act 45, of 1880 ; Act 22, of 183S, and Act 129, of 188.; 33 A. 146; 33 A. 419.
    3. Sundays must he excluded from the computation in ascertaining which was the tenth day after the filing of the bond of appeal. Dies dominions non est jicridicus. 9 A. 371 ; 124 U. S. 131; 6 Rob. 18; 463.
    4 In determining whether the record was filed within ten days after filing of the bond (R. S. 2093, Rule 29 Civil District Court), both the day on which the bond was filed (i. e., June 11th), and the day on which the transcript was deposited in tbe ^clerk’s office of the Civil District Court (i. e., June 22d), must he excluded (0. P. 318, R. C. C. 2059), and this done the appeal was seasonably perfected. Tbe phraseology of Sec. 2093 is identical with Art. 575, C. P., and the decisions are uniform that it takes eleven days to make ten full days in matters of appeal, because the last day is not counted. 29 A 224 ; 29 A. 850; 25 A. 136; 30 A. 677.

      Henry P. Dart for the Respondent.
   The opinion of the Court was delivered by

Poché, J.

The complaint in this case is that the respondent judge •erroneously dismissed an appeal brought to his court by relator from •one of tbe city courts.

The ground of the dismissal was that the appeal had not been completed in time under Rule 29 of the Civil District Court, which reads -as follows:

“In any case appealed from a city court, the record must be filed in this Court before the expiration of the tenth day after filing the bond in the court a qua, unless such tenth day should fall upon a holiday, in which event the appellant shall be entitled to the whole of the next-succeeding day upon which the clerk’s office may be open for businesswitliin which to file such record.”

It appears from the record that the appeal bond was filed in the city court on the 11th of June, and that the transcript was filed in the appellate court on the 22d of the same month.

Relator’s main contention is that under the provisions of Art. 318-of the Code of Practice, as construed in our jurisprudence, his appeal was seasonably brought up, because the day on which his bond was-filed, and the day on which the transcript was to be filed, under the-rule, should not be counted.

The article of the Code provides that “in all cases where delay is-given either to do something or to answer, neither the day of serving-the notice, nor that on which the act is to be done or the answer filed,, are included.”

If that provision governs the case, the appeal is saved.

The respondent concedes this conclusion if the question is to be-controlled by Sec. 2093 of the Revised Statutes of 1870, which was the-law regulating appeals from justice’s courts, under the judiciary system which had been established by the Constitution of 1868; but his-contention is that the section is necessarily inconsistent with, and was-therefore abrogated by, the present Constitution, under which justices” courts, and the tribunal which was then their exclusive appellate-court, have both ceased to exist. That section reads as follows: •

“All appeals from judgments of the justices of the peace, returnable to the Third District Court, shall be made within ten days after the bond of appeal shall be filed in the office of said justice of the peace.”'

As we are unable to discover any difference between a rule which requires the performance of an act within ten days of a given time, and! a rule which requires the same thing to be done “ before the expiration of the tenth, day1' of the same time, we cannot make the distinction which is the basis of the respondent judge’s conclusions in his ruling complained of. If the appeal was filed within ten days after the date-of filing the appeal bond in the city court, the act must, in the nature of things, had been done, before the expiration of the tenth day, or-otherwise it would have been after, and not ivithin, ten days.

Under these views it becomes unnecessary for the purposes of this case to judicially determine whether the section has been abrogated or-not. It is substantially reproduced in the rule of court under consideration which was evidently predicated thereon; the.only change made being in the use of different words, conveying the'' same meaning.- " ,

From the circumstance that the supervisory jurisdiction now vested in this Court did not exist under any previous constitution of this State, it follows, and it appears, that the provisions of Sec. 2093 R. S., have never been construed by this Court, and the proper interpretation of the same provision, as now incorporated in Rule 29 of the Civil District Court, comes up in this case for the first time since the adoption of the constitutional amendment (1884) which vested that court with appellate jurisdiction over city courts.

But we are not without judicial precedents in our present investigation, as we find several decisions of this Court which give an interpretation of the rule in Art. 318 of the Code of Practice as applicable to an analogous provision of law incorporated in Art. 575 of the same Code, which declares that execution of a final judgment is stayed if an “ appeal has been taken within ten days” after said judgment.

It has been held that in computing these ten days, the day on which the judgment was signed, and the day on which the appeal is taken,, should not be included.

Thus in the case of Garland vs. Holmes, 12 Rob. 421, it appeared that the judgment had been signed on the 20th of December, 1855, and the appeal was taken only on the 2d of January following, making an-actual interval of thirteen days, but after excluding two Sundays, and ruling that the day on which the judgment had been signed and that on which the appeal had been taken should not be included, the court held that the appeal had been taken within ten days after the judgment had been signed.

That case was followed under similar circumstances in State ex rel. Mercier vs. Judge, 29 Ann. 224, and subsequently in. Tupery vs. Edmondson, 29 Ann. 850.

Without expressing our opinion on the subject, if the question was res nova, we conclude that the decisions above referred to, in the construction therein adopted of the application of Art. 318 of the-Code to expressions precisely similar in Art. 575, have acquired the force of the rule stare decisis, and that they must control our ruling rathe present controversy. To be efficient, rules of practice must be unequivocal, and hence they must be uniformly expounded.

Thus concluding, we hold that relator’s appeal had been seasonably-brought up, and that there is error in the judgment of dismissal.

It is therefore ordered that the alternative writ of mandamus herein granted be made peremptory, and that the respondent judge be ■•commanded to entertain, and to pass on the merits of, the appeal taken in the case of Thos. Sully & Co. vs. J. B. Solari from the Fourth Oity Court of the Parish of Orleans, and that relator recover his costs in this proceeding.


text:
    No. 10,183.
    Germania Savings Bank vs. George Peuser.
    'The garnishee admits that he has a specific sum in his hands which he received from the defendant, hut alleges that he received and holds it for his mother, and, therefore in answer to interrogatories, denies indebtedness to defendant or possession of any property belonging to him. The mother intervened in the suit and asserted her right to the fund. On a traverse of garnishee's answers, ■judgment was rendered against him but simply ordering him to deliver the fund into the Sheriff’s hands, there to abide the decision of the case. Prom this judgment the garnishee alone appeals. He lias no interest in the matter and claims none, and the judgment correctly maintains the seizure of the funds subject to the rights of parties concerned.
    The mere fact that a creditor holds collateral securities does not prevent the principal debt from becoming due, nor debar the creditor from pursuing legal remedies for its enforcements. The pledge might he insufficient or invalid. The rights of defendant or of others interested to require surrender or applicatiou of the original securieties are not involved in this appeal by a garnishee who has neither right nor iuterest.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissot J.

      Braughn, Bucle, Binleelspiel & Hart and Thos. L. Bayne for Plaintiff and Appellee:
    Plaintiff seized, under writ of attachment, in the hands of G-ustave Peusor, certain money belonging to Geo. Peuser, who had absconded. The answers of Gustavo Peusor were traversed, and traverse tried before a jury, who found that the money was subject to the attachment. The verdict of the jury and judgment of the court are fully sustained by the evidence, and their verdict upon a question of fact will not be set aside except upon conclusive evidence that it is erroneous.
    ¡Fox vs. Jones, 39 A. 929 ; 31 A. 432; 22 A. 31; 20 A. 438 ; 14 A. 139 ; 12 A. 297, 759; U A. 215, 625.
    The garnishee is meiely a stakeholder, and has no right to plead for other partios ; and the judgment against him should he affirmed or his appeal dismissed. Hanna’s Syndic vs. Lauring, 10 Martin Bcp. 510 ; 14 La. 514- Hazard vs. Agricultural Bank of Miss., 1L Bob.-336.
    The plaintiff has the right to sue his debtor and recover judgment against him, although ho holds collateral security,which is in litigation or liable to be rendered valuóles by adverse claims. The principal debtor may be sued without proceeding against a security or guarantor.
    a Bob. 135; 4 La. 158; 14 A. 193; Lewis, Trustee, vs. United States, 92 U. S. 622; CoJebrook on Collateral Securities, sec. 113; Jones on Pledges, sec. 681.

      if. G. Xacharie for Defendant and Appellant:
    "Where a third party intervenes in an attachment suit, claiming the property attached a®-: owner, and joins the garnishee in all of his defences, such third party is necessarily a party to a rule to traverse the answers of the garnishee, and it is error to deny snob third party the right of appearance on the trial of the traverse.
    Records of suits between plaintiffs and other parties are res inter alois acta, where neither’ defendant nor garnishee were parties to such suits, and are inadmissable.
    A garnishee has a right to plead all defences which may be necessary for the iirotection or his own interese. Drake on Attachment, § 673; "Waples on Attachment, p. 368 and note 5 8 A. 285; Drake 696 and notes; 15 L. 253 ; Drake, 415, 515 : 28 A. 69.
    A pledgee holding collaterals and not alleging their insufficiency to pay his debt, must proceed against such collaterals, before he can attach other property ot his debtor, 1! Wend, (N. Y.) p. 109; Story on Bailments, 320; IN.S.418; 2N.S.22.
    The burden of proof is on the attaching oreditor when seeking to contradict and disprove-the answers of garnishee. 4 A. 138 ; 14 A. 306, 791; 10 A. 31; Waples on Attachment^ p. 375, notes 4 and 5.
    The attaching creditor must disprove the answers, he cannot assail the veracity of the garnishee as a general witness. 14 A. 792.
    Although an. attorney be engaged as counsel for one of the parties to a suit,he cannot testify to or make use of what has been #onflded to bim professionally, and confidentially by tbe other party to the suit. Weeks on Attorneys, p. 261; 50 Mo. 337,
    A new trial should be granted when an attorney, in his closing, states facts of which there» is no evidence, and such statement is calculated to influence the jury. Weeks on Attorneys, p. 221, sec. 112; 25 Geo. 225; Ibid 24; Ibid 395; 4 E, D. Smith (N. Y.) 253; 55> Mo. 509; 67Wis, 529; 30 N. W. 790 ; 34N.W. 564; 14N.E.32; 37 N. W. 9X4; 38 NW. 27; 14 Mich. 313; 61 Wis. 114.
   The opinion of the Court was delivered by

Fenner, J.

Plaintiff, a creditor of George Peuser, an absconding-defaulter, took out a writ of attachment against him under which Gustave Peuser was made a garnishee.

In answer to interrogatories, Gustave Peuser disclosed the facts-that, on the eve of his flight, bis brother, George Peuser, had transferred to his name certain shares of city railroad stock, which he had sold and received therefor the price of thirty-three hundred dollars. This sum, he says, “I subsequently deposited in the Germania Savings Depository in my name, under an agreement with George Denegre, attorney of plaintiff herein, subject to tbe decision of my mother’s rights thereto in this case.”

He admits that the money is thus in Ms hands, that it was placed iu Ms hands by George Peuser, who at the time owned the stock from the-sale of which it was realized, and he does not pretend to have the slightest claim upon it in his own right.

But he denies that it is due to George Peuser, and says that it was placed in Ms hands for their mother to whom, he says, it belongs.

Mrs. Peuser has intervened in tbe case and is championing her own rights.

As the garnishee denied any indebtedness to the defendant and the possesion of any property belonging to him, it was, of course, essential that plaintiff should traverse the answers, because, upon their face, in the absence of any service on the defendant or of any seizure of property, the plaintiff’s suit necessarily fell. Pennoyer vs. Neff, 95 U. S. 714; Loughlin vs. Ice Co., 35 La. 1184.

Accordingly a traverse was filed. The issue was tried exclusively between the plaintiff and the garnishee. When Mrs. Peuser, the intervenor, attempted to take part therein, objection was made on the ground that the question of her right was not involved and that the decision upon the traverse could not affect her, which objection was sustained by the court.

The traverse was tried before a jury and resulted in a verdict and judgment in favor of plaintiff, but simply ‘‘ordering said Gustave Peuser to turn over to the sheriff the said $3,300 in currency, to be held by said sheriff to await the final decision of this suit, etc.”

The only possible effect of this judgment is simply to maintain plaintiff’s seizure of the fund and to hold it iu court subject to the final decision of the rights of the claimants thereon. A contrary decision Would have liberated the fund and have thrown plaintiff out of court. It would, in effect, have been a decision in favor of Mrs. Peuser without trial or hearing.

As the matter stands, no one is prejudiced. Mrs. Peuser’srights are perfectly .preserved. She is not, in any .degress, affected by this decision. Her intervention is before the court and must be determined before any disposition of this fund can he made. Moreover, she has not appealed. The only appellant is the garnishee, and what possible right ho can have to complain is not apparent. He claims no interest in the fund. He admits that he received it from George Peuser, and he suggests no claim that anybody else has upon it except his mother. She has asserted her own claim judicially, and that is the issue upon which-depends the disposition of the fund.

The garnishee also filed an exception to the effect1 that, as plaintiff’s claim against George Peuser appeared on its face to be secured by a pledge of amply sufficient property for its payment, the petition set forth no cause of action.

Without discussing the questien whether, under the circumstances of this case, an exception of this kind lies in the mouth of the garnishee, the exception, as such, has no merit. The mere fact that a creditor holds collateral securities, does not prevent the principal debt from becoming due nor debar him from pursuing his legal remedies ■for its enforcement. Duncan vs. Elam, 1 Rob. 135; Lewis, Trustee, vs. U. S., 92 U. S. 622.

In this case, it is in evidence that the title to the securities origin■■ally pledged is in contest before.the courts. The rights of the defendant or others interested to require the surrender or application of the ■original securities are not here involved. The garnishee has no right or interest in the premises.

Judgment affirmed.


author: Bermudez, C. J.

text:
    No. 10,209.
    J. Numa Avegno vs. Citizens’ Bank of Louisiana.
    A.n original stockholder who signs without qualification a subscription for new stock to increase the original stock, is not entitled to cancellation of his subscription and to repetition for the amount pi id in, on the ground that all the new shares were not subscribed for.
    Tn the absence of any stipulation or limitation to the contrary, his subscription is not contingent or dependent upon the taking of all the shares, but is absolute and binds him accordingly.
    APPEAL from the Civil District Couit for the Parish of Orleans. VoorMes, J.
    IF. S. Benedict for Plaintiff and Appellant.
    <?. A. Breaux and E. O. Miller for Defendant and Appellee.
   The opinion of the Court was delivered by

Bermudez, C. J.

The object of this suit is to annul a resolution of •the board of directors of defendant hank increasing the capital and opening a subscription for the new stock and to compel restitution of Si sum paid by the plaintiff, in satisfaction of the new stock subscribed for by him.

. Prom a judgment sustaining an exception of no cause of action, the plaintiff appeals.

It appears that the hank having sustained losses, the original capital was reduced to $350,000, but with which it could not transact its business.

It was then resolved that an additional capital of $250,000 should be secured and a subscription list was opened, with a preference in favor of stockholders. Only $25,000 of the new capital was subscribed for, plaintiff participating to the extent of 25 shares of $100 each.

Grounding himself upon the circumstances that the entire 2500 shares which might have been, were not subscribed for, as he expected,, the plaintiff contends that his subscription should be annulled and the money paid refunded him.

There is no allegation in the petition, that when the plaintiff subscribed he did so, on the formal condition that all the shares would be subscribed for.

Had he done so, and had the shares not been subscribed for, he would have been entitled to relief.

The subscription list is not attached to the petition and it must be inferred from its absence that the caption does not contain the qualification.

Had 2,499 of the shares been subscribed for and the subscription paid in, could the subscribers on the sole ground that one share had not been subscribed for, ask the cancellation of their subscription and the return of the money paid over ? Surely not, for the plain reason,, that the subscription not having been made contingent on a subscription for all the shares, was voluntary, unqualified and absolute and not susceptible of any rescission or revocation.

The plaintiff is therefore concluded by his spontaneous act in the-premises.

Judgment affirmed.


text:
    No. 10,107.
    Mrs. Julia Weeks, tutrix, vs. New Orleans, Spanish Fort and Lake Railroad Company.
    Passengers crossing a railroad track afc a station, in order to leave or board k train halted for that purpose, are not held to the exercise of the same care and diligence which are ordinarily exacted from persons crossing tracks, hut are authorized to assume that the raiiioad corporation will so order its trains that he will he safe from harm on the track which he is thus invited and required to cross*in order to secure his passage,
    But where a person attempts to hoard the train while moving, and after it has left the station, he no longer acts on the invitation or stands under the protection of the company, and, while crossing or occupying the track, is hound to use proper care for hie own protection.
    Evidence discussed and concliision reached that the injured party here was subject to the last mentioned rule.
    Having thus negligently stood upon the track in full view of the approaohing train, which rang its hell and sounded its whistle, and having failed to use his senses in his-eager absorption in the attempt to hoard a moving train, in itself an improper and indis creet act, he must he held guilty of contributory negligence, which debars recovery.

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

      Walter D. Benkgre for Plaintiff and Appellee:
    The evidence shows that the accident resulted from the negligence of defendant and failure of their employees to complywith their own rules and regulations, and the jury so found hy their verdict. Their verdict should be sustained, with the increased damages-claimed.
    The defense of contributory negligence on the part of plaintiff is not sustained by the evidence nor under the law.
    Increasing verdicts -is a matter within the jurisdiction of the Supreme Court, and it must d<r justice when the jury has given inadequate compensation. Sullivan vs. V., S. & P. R< R., 39 Ann, 803, and cases cited.
    Contributory negligence, in order to be a defense, must be such negligence as was the pros* imate cause of the injury. Hansen, tutor, vs. Railroad, 38 Ann. 116 ; Beads on Contrib* utory Hegligence, sec. 10; Meeks vs. R. R, Co., 56 California, 513.
    When the negligence of the defendant greatly multiplies the chances of accident to the plaintiff, and is of a character naturally leading to the occurrence, the mere possibility that it might have happened without the negligence is not sufficient to break the chain of cause and effect between the negligence and the injury.
    Courts in such matters consider the natural and ordinary course of events, and do not indulge in fanciful suppositions. Reynolds vs. Railroad, 37 Ann. 698.
    The rule requiring a traveler on a highway crossing a railroad track to use his oyes and ears to ascertain whether a traiu is approaching, does not apply to passengers who are crossing a track at a station to get on a train.
    It is to be assumed that a railroad corporation, in the exercise of ordinary care, will so regulate its trains that the road will be free from obstruction or interruption when passenger trains are still at a depot receiving and delivering. Terry vs, Jewett, 78 New York, 314; Brassell vs. Railroad, 84 New York, 241; Klein vs. Jewett, 26 New Jersey Equity, 474; Jewett vs. Klein, 27 New Jersey Equity, 551; Moses vs. Railroad, 39 Ann. 653, and authorities.
    When a railroad company provides no way of approach to a passenger train except hy crossing on a level another track of the railroad, a passenger is fully justified in concluding that he will he safe from harm from a train on the track which he is thus obliged to-cross in ordor to secure his passage. Jewett vs. Klein, 27 H. J. Equity, 551.
    Railroad companies are held to the greatest care and diligence, both in regard to the machinery and equipment of the road and the conduct and acts of their officers, agents and employees. Hansen, tutor, vs. Railroad, 38 Ann. Ill, and cases cited; Moses vs. Railroad, 89 Ann. 653.
    Running down a passenger who is about boarding another train at a depot or station is-gross and culpable negligence. Jewett vs. Klein, 27 H. J. Equity, 551.
    Eailure to introduce testimony of the engineer raises a presumption of negligence against-the company. 35 Ann. G98, Day vs. Railroad; 38 Ann. 778, Ketchum vs. Railroad.

      Robert Hoit, Harry H. Hall and G. P. Brolla for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

At the point with which we are concerned, the defendant’s double-track railroad runs along Bienville street.

At the intersection of Bienville and Napoleon streets lies, on one side of Napoleon street, a square known as Loeper’s Park, and on the other or city side a vacant square known and used as a baseball green.

Loeper’s Park contains a garden, buildings, places of refreshment, dancing platform, etc., and is used for picnics and a place of resort on Sundays. Its entrance-gate is on Bienville, about 35 feet from Napoleon street.

On Sunday, August 8, 188(5, defendant’s train, coming from the lake to the city along the track farthest from the park and base ball green, stopped at Loeper’s Park gate and took on a number of passengers. It then moved on and, while moving, twenty-five or thirty boys, who had been engaged in base ball on the green, came running towards the train, crossing the intervening track or being upon it, and began boarding the moving train. All succeeded in catching on except the son of plaintiff, an intelligent boy of fifteen years, who waited for the rear coach and was standing on or near the intervening track when the outgoing train running on said track came along and struck him, inflicting severe injuries. The point at which he was struck was about one hundred feet from Loeper’s Park gate, which point had been reached by the rear car of the ingoing train.

The present action is brought to recover damages for the injury thus inflicted.

The substantial allegations of the petition, as to the grounds of liability, are “that the injury was caused by the gross negligence, carelessness and want of skill of the defendant’s agents and employees; ” that the boy was lawfully in the position occupied by him when run over, about boarding the incoming train at the spot where he was run over, and where said trains usually stopped for Loeper’s park; ” and that “the said minor was in no way negligent or at fault.”

We quote the language of the Supreme Court of the United States as follows:

“The question in such cases is, first, whether the damage is occasioned entirely by the negligence or improper conduct of the defendant, or, secondly, whether the plaintiff himself so far contributed to the misfortune by his own negligence or want of personal care and caution, that, but for said neglect or want of care and caution on his part, the misfortune would not have happened. In the former ease the plaintiff is entitled to recovery, and in the latter he is not.” R. R. Co. vs. Jones, 95 U. S., p. 441.

The same doctrine is fully sustained by our own jurisprudence and was announced by us in the following terms: “ Where the injury re-suits from the Negligence of plaintiff and the negligence of the defendant in such manner that the negligence of each may be considered as a juridical cause of the injury, the law will not undertake to apporportion either the blame or the damage.” Summers vs. R. R. Co., 34 Ann. 144; Childs vs. R. R. Co., 33 Ann. 156.

1.

The main ground upon which negligence is imputed to defendant is that the outgoing train was violating the following general order issued for the government of its conductors and engineers:

“Under-no circumstances will you allow your trains to pass each other while taking on or discharging passengers at street crossings. In cases where trains meet at street crossings, the rear coach of the train having the crossing must have passed the pilot of the waiting engine before such engine is permitted to start.”

We think it very clear that this order only means that oue train shall not run by another when the latter is stopped at a street crossing or other stopping place taking on or discharging passengers, but, in such case, must halt and stand until the latter train has started and entirely passed the pilot of the waiting engine. The rule is an eminently proper one, and if the accident had resulted from its violation and the boy had been run over while properly and lawfully boarding a halted train at its stopping place, the fault of defendant would have been so gross that only the clearest proof of contributory negligence equally gross could have saved defendant. Even independently of the violation of its own express rule, the case would then have fallen under the domination of a well-considered line of authorities which hold, in substance, that passengers crossing a track at a station to leave or get on a train halted for that purpose, are not held to the exercise of the same care and vigilance which are ordinarily exacted from persons crossing railroad tracks, but are authorized to assume that the railroad corporation will so regulate its trains that he will be safe from harm on the track which he is thus invited and required to cross in order to secure his passage. Terry vs. Jewett, 78 N. Y., 314; Brassell vs. R. R., 84 N. Y., 241; Klein vs. Jewett, 26 N. J. Eq., 474; Jewett vs. Klein, 27 id., 551.

But, in the instant case, the evidence makes it clear that the ingoing train had completed its stop, and was actually moving on before the outgoing train was near, and that the latter was, therefore, not required to halt under the letter or spirit of the rule, but had the right to assume that the operation of receiving and discharging passengers had been coihpleted and that it might safely pass.

In point of fact, the engine of tlie outgoing train passed the last car of the incoming train at a point considerably beyond Napoleon street, both trains being entirely clear of the crossing, and at this point the boy was injured.

So far as appears from the evidence the operation of receiving and discharging passengers was completed and the track was clear until .this crowd of boys came running from the base ball ground to board the moving train and crossed or occupied the track in front of the outgoing train and so little in advance of it that it is doubtful whether it could have been stopped in time to avoid the accident. . ■

The evidence on the last point is contradictory but even granting that the boys were on the track when the outgoing train was further off, yet the officers of the latter might well have assumed that they would succeed in boarding the other train or otherwise get out of the way in time; and, in point of fact, all actually did so except young Weeks.

Although the petition alleges that the spot where the boy was hurt was where “the trains usually stopped for Loeper’s Park,” yet there is some effort to show that the trains were in the habit of slowing up, without stopping, for the purpose of receiving or discharging passengers at the base ball green, and that, therefore, the boys, in thus boarding the moving train, were acting on the invioation of defendant and thus stood under its protection.

We have examined the evidence on this point with great care, and far from establishing such custom or habit, it very clearly establishes that when the train had passengers to receive or discharge either for the green or the park, it stopped, and that its stopping place was Loeper’s Park gate, which, on Sundays and picnic days, was a regular stopping place and, on other' days, was a signal station where it stopped when signalled. No doubt boys from the green did sometimes jump on or off the train as it moved slowly away from or up to its stopping place at the gate; but this was not by invitation of the company which stopped its trains for the purpose of receiving or discharging passengers at this point and had the right to expect that such passengers would board or leave the train while thus halted. On this-occasion the train undoubtedly did stop and ample opportunity was afforded Weeks to take his passage in a lawful and proper manner.

We need not discuss other features of negligence charged against the defendant, deeming it sufficient to show that at the time of the accident Weeks was not in the position which he occupied under any circumstances which made defendant the guarantor of his safety or exempted him from the obligation of using proper care for his self-protection.

II.

This brings ns to the question of contributory negligence.

The boy Weeks was attempting to board a moving train, which is universally recognized as a negligent and indiscreet act, constituting such contributory negligence as will debar him from recovering for injury received while so engaged. Wood’s Railway Law, 1155; Knight vs. Railroad, 23 Ann. 462; Phillips vs. Railroad, 49 N. Y., 177; Railroad Company vs. Scales, 90 Ill., 586.

In addition to this, he was upon or in dangerous proximity to a railroad track in a position which, the authorities universally agree, threw upon him the duty of looking and listening and using all his senses to discover and avoid the danger necessarily incident to such a situation.

Said the Supreme Court, of the United States in a case much more favorable to the injured party than this: “ The failure of the engineer to ring the bell or sound tlie' whistle, if such were the fact, did'not relieve the deceased from the necessity of taking ordinary precautions for her safety. Negligence of the company’s employees was no excuse for negligence' on her part. She ivas bound to listen or to look' before attempting to cross the track, in order to avoid an approaching- train, and not walk carelessly into the face of possible danger. Had she used her senses she could not have failed by them to hear and see the train whicli was coming. .If she made use of them and walked thoughtlessly on the tiack, she was guilty of culpable negligence, and ■so far contributed to'her injuries as to deprive her of any right'to'complain. It, using them, she saw the train coming, and yet undertook to cross the track instead of waiting for the train to pass,, and was injured, the consequence of her mistake and temerity cannot be cast upon the defendant. No railroad can be lield for failure of that kind. If one chooses, in such a position, to take risks, lie must bear tlie consequences of failure. Railroad Co. vs. Houston, 95 U. S. 701; 2 Wood’s Railroad Law, 1302 to 1324, and cases there cited; Houston vs. Railroad Co., 39 Ann. 796.

Now, in the instant case, Weeks was not merely crossing but standing on a track in full view of'a nearly approaching train, which rang its bell and sounded its whistle. Everybody else saw the' train and heard its signals, and. with the slightest use of his own senses he might and should have done so. His failure was attributable solely to his eager absorption in the performance of an act in itself improper, indiscreet and negligent. .....

Under such circumstances it is impossible to absolve him fiom the charge of gross contributory negligence and iccast upon the defendant the consequence of his own fault.

It is, therefore, ordered, adjudged and decreed that the verdict and judgment appealed from be annulled, avoided and reversed, and that there now be judgment in favor of defendant and rejecting plaintiff’s-demand at her cost in both courts.