author: Breaux, J. Breaux, J.

text:
    No. 12,799.
    Union National Bank of New Orleans vs. H. D. Forsyth et al.
    The contract of pledge was made to cover the fee of attorney for professional services rendered by pledgee’s attorney in court, and for his services rendered out of court, in all matters appertaining to the securities pledged.
    The debtor after it had failed to meet and pay its indebtedness at maturity of its obligation, was indebted for the fee of the creditor’s attorney, on the amount realized and credited on the pledgee’s claim from the sales of the pledged property.
    The effect of plaintiff’s default in its payment was suspended during the delays granted by defendant to plaintiff after default. No fee is due on collections made during that time. Sale being a condition precedent to the fee, no amount is due as a fee on the collections made on the securities (without sales).
    The rule as above indicated applies to the commission claimed to pay the creditor’s special agent.
    The bank, by the fact, that it closed its doors and suspended payment, did not cause to mature all its unmatured obligations. It was not a case of judicially fixed insolvency. In consequence no fee and commission are due on the assumption that the debt had become matured by the debtor’s insolvency.
    The special agent of defendants under the contract was not the special agent of thepiaintiff as well. He owed a duty to his principal, the defendants. If there was any obligation to report and give notice of sales to the plaintiff debtor, it was dueby the pledgees and not by the agent. The pledgees’ obligations are in some respects those of agents. But the pledgees, in view of the facts, did not lose theright to fee and commission, because no notice was given by them to the pledgors of sales intended, or of sales made. They are protected by the terms of the contract of pledge. The bank did not give them such evidence of preparation to resume business as required them to suspend sales of bonds.
    The sale of the bonds on a depreciated market was permissible under the terms of a contract plaintiff chose to sign, and offers no ground for a set-off against defendants’ claims.
    Plaintiff having in part succeeded in sustaining its injunction is not bound for any fee of defendants’ attorneys for services in dissolving the injunction.
    A PPEAL from the Civil District Court for the Parish of Orleans. llightor, J.

      T. J. Semmes, and Saunders & Miller for Plaintiff, Appellant.

      Henry Denis for Defendants, Appellees.
    Argued and submitted May 7, 1898.
    Opinion handed down May 30, 1898.
    Rehearing refused June 29, 1898.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff brought this suit to sequester and recover possession of securities pledged by it to the defendant.

Plaintiff in the same suit obtained a writ of injunction to prohibit the defendant from disposing of its securities.

The credit needed by the plaintiff bank in England was obtained by depositing these securities with the Baring Brothers & Co., Limited, the defendants, by whom the desired loans were made to plaintiff.

The values thus deposited as securities consisted of local bonds and bills receivable.

A disagreement of some moment arose between plaintiff and ■defendant growing out of plaintiff’s unwillingness to let defendant sell any of the remaining securities at the time in defendant’s possession.

The plaintiff bank had suspended payment on the ninth day. of September, 1896, and the Comptroller of the Currency had appointed one of the bank examiners to take charge of its affairs.

With the view chiefly of saving these securities from a sale on an unduly low market, the bank, after a reorganization reopened its doors, and resumed business on the seventh day of December, 1896.

The act of pledge under which the defendant held these securities as pledgees, was similar to prior acts of pledge executed at different times preceding the last act of pledge which is now before us for interpretation.

In this last act of pledge it is stated that it provided a credit of sixty thousand pounds sterling to be drawn for by plaintiff from time to time, prior to the eleventh day of August, 1897. The securities were deposited at the time with the representative of the defendant in New Orleans.

It was stipulated by the terms of the pledge that “ in case of default in the payment of the amount due, or to become due,” that the local representative of defendant would have authority, at his discretion, without any previous demand of payment, with or without notice to the bank, to sell the pledged property at public or private sale for its market value and apply the proceeds of the sale to the payment of the amount due, including commissions of two and one-half per cent, on the “ amount realized by the sale or from this pledge, to be paid to tbe said agents of the payees, and also attorney’s fees in case of legal action or proceedings or professional services in or out of court, at the rate of five per cent. (5 per cent.) on the amount realised by said sale or by the pledge and all costs and charges attending said sale.”

The amount was increased to one hundred thousand pounds, as follows:

In the first place it was increased by an amount of twenty thousand pounds, identified as the supplemental credit, renewable every four months; sixty thousand pounds and twenty thousand pounds were secured by the same act of pledge.

On the 17th of August the bank applied for an additional credit of forty thousand pounds. The defendant refused to grant another credit exceeding twenty thousand pounds. In answer the bank accepted the offered loan of fhe twenty thousand pounds and informed the defendant that it had deposited with its agent here one hundred and fifty thousand dollars of its bills receivable against the twenty thousand pounds allowed it.

The bank contended that the collateral held over under tbe terms of the previous pledge consisted entirely of State and city bonds and were held against a credit of twenty thousand pounds, and that in consequence these State and city bonds did not fall within the grasp of the pledge requiring the payment of “ commission and a fee.”

This loan is subject to the additional agreement appended to the act of pledge and dated a few days after this correspondence between plaintiff and defendant.

This agreement related to forty thousand pounds and covered all the loans not included in the body of the pledge. This addendum to the contract of pledge recites that the loan was made on precisely the same terms and conditions as stipulated in the written agreement and is io be covered and secured by the same act of pledge contained in the agreement and securities to be furnished in proportion.”

A few weeks after the renewal of the contract of pledge the bank closed its doors and suspended business. It was discovered that a large amount of its capital had been abstracted. Naturally enough the defendant creditors were made. exceedingly uneasy about their claims.

There had, to that time, existed between plaintiff and defendant, the confidence and good will which usually exist after years between large institutions dealing one with the other.

Unexpectedly, the good relations were brought to a sudden stop by the disorder in plaintiff’s business.

The agent of the defendant in New York, their agent here, and their lawyer, were given directions to put forth their energies to the end of protecting defendant’s rights. They, in their respective capacities, rendered valuable services. Needful inquiry was made, - interviews held, books were examined and the value of the securities held by defendant investigated. The attorney at law was, during the plaintiff’s suspension, frequently called upon for advice. The question which arose involved large amounts and consequent great responsibility.

The agent here, under defendant’s interpretatibn of the contract of pledge, sold bonds pledged to the apiount of thirty-nine thousand two hundred and sixty-five dollars, prior to maturity of plaintiff’s indebtedness, but after the suspension of the bank. The plaintiff contends: “No commission or fee is due on the amount of bonds thus sold.” Further, the plaintiff contends that “ no service was rendered nor suit instituted from September 12 to October 20, and that no attorney’s fee is chargeable on amounts realized during that period, nor on amounts collected subsequently, during a time stated, granted by the defendant to the plaintiff.” The former, the Barings, were informed that it was the plaintiff’s intention to resume business in December following. The defendant acceded to a request for an extension to December 14, and did nothing, as far as the record discloses, with a view of foreclosing the pledge. It is with reference to this time that plaintiff chiefly objected to the payment of a lawyer’s fee. The bank, it appears, voluntarily paid to the defendant the sum of one hundred and twenty-nine thousand nine hundred and eighteen dollars voluntarily. On this amount also the plaintiff contends that no fee should be charged.

The makers of various notes, deposited in pledge, came forward and paid notes in amount one hundred and sixty-two thousand dollars. Plaintiff resisted the payment of a fee on this amount also, and lastly, plaintiff denied all indebtedness for any fee whatever. The only services, it urged, shown were not services for which plaintiff was bound.

The aggregate amount of commissions and counsel fee to which the defendants laid claim was (seven and a half per cent.) on five hundred and thirty-three thousand dollars.

Defendants at one time proposed to plaintiff to reduce the fee of counsel and commission of the agent to five per cent. The proposal* the defendant asserts, was for the purpose of a compromise, which the plaintiff refused to accept.

The judgment of the District Oourt dissolved plaintiff’s injunction, and condemned the defendants to pay one thousand dollars as a special fee of their counsel for the dissolution of the writ.

The judgment further condemned the Union Bank to pay the defendants the sum of six thousand eight hundred and forty-two dollars and sixty-six cents, together with counsel fee at the rate of five per cent., and commissions at two and a half per cent, on the sum of five hundred and five thousand dollars with legal interest from judicial demand, with privilege on the pledged securities, and rejected defendant’s demand for a sum of seven hundred and forty-four dollars.

From this judgment the defendant appealed.

ATTORNEY’S FEE.

We take up for decision the issues tendered by the reconventional demand of the defendant; the first grows out of the claim for attorney’s fee.

The defence interposed by plaintiff, against all claims for fees, does not find support in any part of the contract of pledge. It was not stipulated that the attorney’s fee was to be paid only incase of legal proceedings in a court of justice, but, on the contrary, it was expressly stipulated that the attorney’s fee should be, in certain case, paid, although rendered out of court. We surely are without authority to read out of the contract the words “ services rendered out of court,” by the attorney. These words enter into the contract consented to and accepted by the plaintiff. They refer to professional services rendered out of court. From the text we must conclude that it was the intention of- the parties to provide for compensation for professional services in looking after the lender’s interest in these securities. No limit was placed upon the nature of the service to be rendered professionally, for the payment of which the plaintiff would be bound. It is not for the court now, because of the great change in circumstances as relates to plaintiff, to impose a limit evidently not thought of when the contract was signed.

It would be greatly erroneous to substitute any other meaning than that which clearly appears from the words of the act. Having deter mined that services are due, the amount which should be allowed under the contract of pledge must be considered. A large sum was voluntarily paid by makers of notes that had been deposited in pledge by the bank. The contention of the plaintiff now is, that fees could not be charged on this amount. We did not discover in examining the act closely that it was the intention to bind the plaintiff to pay a fee of five per cent, on all amounts collected under the pledge; that with the collection of an amount due, though voluntarily paid, the fee was exigible. During eighteen years loans had been paid by the bank on pledges similar in form in every respect to the one now-before us for interpretation. We are not informed that at any time a fee had been charged, but, on the contrary, we are led to infer with some certainty that no such fee had ever been exacted on collections, which had always been made without the necessity of a sale of the securities. We construe the words “ or from this pledge ” as written in the contract of pledge were qualified by the previous conditions in case of default ” of the debtor and the sale of the securities pledged, the profe ssional services of the lawyer employed to advise in matter of the sale were then to be paid. We are in the presence of two interpretations ; one extensive or comprehensive (interpretatio extensiva) in which a fee would have been due on all amounts paid voluntarily either by the debtor or by the makers of notes and bonds pledged, or the other interpretation, not extensive or comprehensive; the true interpretation, in our judgment, limiting the fee to the services rendered in suits or in effecting sales in accordance with the fights of the parties. This, we infer, was heretofore defendant’s interpretation of the act of pledge. To some extent, at least,# this is made to appear by the basis of settlement they at one time proposed to plaintiff.

There was an amount in addition voluntarily paid by the bank, on which defendant claims a fee. This, in our judgment, is subject to the same interpretation.

It never was, in our view, the intention to hold plaintiff for attorney’s fee and to open a regular account after maturity for that fee— the same, for instance, as an interest account to be collected as a matter of course with the capital. The mere maturity of the obligation did not give rise to a claim for the fee beyond the reach of the effect of subsequent delays and indulgences granted by defendants to plaintiff.

There was, it is asserted by plaintiff, a short rest (indulgence) granted by defendant to it from the twenty-eighth day of October to the fourteenth day of December.

The record discloses that the defendant granted the indulgence alleged. There was, in our view, an abatement of the default during the time extended from October 20 to December 14, 1897. It follows that during that time no fee is due on amounts realized.

SPECIAL AGENT’S COMMISSION.

We pass to a consideration of defendant’s claim for commissions amounting to twelve thousand six hundred and twenty-five dollars, that is two and one-half per cent, on five hundred and five thousand dollars.

There was a condition precedent (default in payment of defendant’s obligation) : To defendant’s right to a commission of two and one-half per cent.

This condition had not arisen. Plaintiff's obligations were not due. They matured after the sale of some of the securities. That is, the defendant sold part of the pledged securities deposited to secure the draft of plaintiff that defendant had taken up before the maturity of the pledge, on the assumption that the bank’s suspension of business gave to creditors the right to consider as matured all their unmatured claims.

The insolvency of the bank had not been declared by a judicial order or decree. Prior to a declaration of the sort payment of unmatured debts is not exigible.

The article applying reads: “Whenever there is a cession of property either voluntary or forced, all debts due -by the insolvent shall be deemed to be due, although contracted to be paid at a term not yet arrived.” O. 0. 2054. In our judgment Art. 8057, cited by defendants, relating to sureties, does not apply. The defendants were the creditors of plaintiffs and not its sureties. Suspension of payment is not, of itself, evidence of insolvency causing obligations to mature.

Our decisions have given that interpretation to the article cited. Bank vs. Brewing. Association, 49 An. 935. The decisions of the French courts, under similar legislation, is virtually the same. Laurent, Vol. 17, Sec. 194. It follows that no commission and no fee is due on sales of pledged securities made prior to default in payment.

This brings us to a consideration of the claim for commission on the bonds pledged, sold between September 12 and October 12, by defendant’s local agent, forfeited by the agent (it is contended by defendants) because of the alleged concealment of sales he had made of securities in pledge.

In our judgment, the local agent of defendant was not as well the agent of the bank. He owed a duty to his principal, the defendant, with which he complied.

His name was brought into the contract of pledge exclusively as the agent of the defendant. As agent of defendant he was authorized to sell the bonds. He was bound, under the articles of agreement, to render an account to his principal, and not to the bank. The latter had itin its power to stipulate regarding this agency — i. e., that he would be a joint agent. The bank did nothing of the sort, but agreed to pay a commission to the former’s agent.

It was different, it is true, with the pledgees. It devolved upon them to use proper diligence to prevent or minimize the pledgor’s loss. If accounting or notice was due after the pledged securities had been sold, it was due by the pledgees. Their obligations are in its nature somewhat similar to those of mandatories and agents. Richardson vs. Mann, 30 An. 1064. We do not find, however, that they were at fault for not having given notice.

After having considered in our decision the principles laid down in a number of decisions relative to the fiduciary relations of the pledgor, we did not think that the defendants had violated their contract by not having given uotice to the bank immediately after the sale, or within the time defendant contends it should have.been given. The collaterals pledged were sold at market rates. The unfavorable market complained of was not a contingency against which plaintiff had provided in its contract.

The defendants, in view of the facts, can not be held bound for the difference between the price realized on the bonds and the price at which they would have been sold when the bank resumed. They were’Sold when the bank was in default. The contract gave the right to sell at market rate, though depressed.

Moreover the defendants, in view of the facts, can not be held bound for the difference between the price realized on the bonds and the price at which they would have been sold when the bank resumed. They were sold when the bank was in default.

Ib does not appear that there was certainty about the bank’s resuming business, or that the bank notified its creditors with any degree of certainty that it would be in a position to pay, and, in consequence, no sale should be made on a depressed market.

Our inquiry as relates to the remainder of defendants’ claim for commissions — i. e., two and one-half on the securities sold after default, has resulted in our concluding that they should be allowed on the' amounts to which we have determined the defendants have the right to fee of attorney.

It is a case of eadem ratio, idem jus.

Defaults and sales were conditions precedent to commissions or fee.

There are conditions that are not very clear in the contract. We note, for instance, that abruptly it is stipulated that a commission shall be due on amounts realized “ or from this pledge,” without accompanying statement whether this was to be allowed without reference to default or sale. The defendants are the obligees. They seek to compel payment. In obseuris quod minimun est, sequimur, secundum promissorem interpretamur. “Still, if a word or sentence of a contract leaves a decided doubt, sound sense dictates that they are to be taken most strongly against the party using it, because it was his affair to] word the instrument.” Lieber’s Hermeneutics, Sec. 7.

There is a decided doubt as to whether all the amounts were collected on the pledged securities. There are grounds for concluding that as to a large portion collected (nob by sale of the pledged securities), but from the debtor, that the collection was on defendant’s promise to pay and not especially on the pledged securities. The contract did not cover a fee or a commission for collecting the former. It only covered,, as we appreciate the issues, a fee and commission in case of sale of securities after plaintiff’s default in its payment.

We have noted that an amount was'allowed by the judgment; of the District Court for professional services rendered by defendants’ attorney in matter of dissolving the injnnction.

Plaintiff’s injunction was not groundless.

Defendants claimed the right to sell the securities they hold to-satisfy an amount larger than the terms of the contract of pledge sustain.

In our judgment defendants are not entitled to the amount claimed for attorney’s fee for dissolving the injunction.

It is ordered, adjudged and decreed that the judgment appealed from is amended; that the demand of plaintiff, the Union National Bank, be rejected with costs to the amount of plaintiff’s indebtedness as fixed by this decree.

It is further ordered, adjudged and decreed that writs of seques - tration and injunction in this case be dissolved to the amount of plaintiff’s indebtedness herein established, and that the amount of one thousand dollars allowed by the judgment for fee of attorney for dissolving the injunction is not allowed; it is rejected, and that the judgment appealed from be further amended by forever enjoining the defendant from selling securities pledged to satisfy an amount larger than here allowed, and to that extent the injunction is made perpetual.

It is further ordered, adjudged and decreed that Baring Bros. & Co., Limited, have judgment on their reeonventional demand, condemning the Union National Bank to pay them the sum of six thousand eight hundred and forty-two dollars and sixty-six cents; together with counsel fees at the rate of five per cent, on the sum of one hundred and sixty-six thousand one hundred and eighty-six dollars ($166,186) and commissions at the rate of two and one-half per cent, on the sum of one hundred and sixty-six thousand one hundred and eighty-six dollars ($166,186), with legal interest on the total of these sums from judicial demand, with privilege and preference on the pledged securities.

It is further ordered, adjudged and decreed that no rights of Baring Bros. & Co., Limited, to claim damages are reserved.

As herein amended, it is ordered, adjudged and decreed that the judgment appealed from is affirmed, but in those respects that the judgment of the lower court does not conform with these amendments it is annulled, avoided and reversed; costs of appeal to be paid by appellee. The cost of the lower court to be paid by the Union National Bank.

On Application for a Rehearing.

Breaux, J.

In the brief for a rehearing by the Union National Bank, it was stated that by irresistible implication, our opinion in the case holds that the pledgee, in order to establish his right to the attorney’s fee was bound to prove affirmatively the actual and precise services or advice for the rendition of which the attorney’s fee .is claimed.

Counsel for plaintiff further stated that the pledgees, as claimants, were bound to make out their case; they must prove affirmatively, positively and satisfactorily the existence of a state of facts needful .to make out a case.

Granted; in view of the large amount involved, the terms and conditions of the contract of pledge, the many complicated questions that arose after the plaintiff bank had closed 'its doors, the ..great responsibility resting upon the counsellor in interpreting and •explaining the rights of the parties concerned, we are decidedly of the opinion that the fee is not too large in amount.

Now, with reference to the agent named in the contract of pledge, the foregoing, in many respects, apply.

It was through his agency that the loan was made secure and satisfactory to the lender.

We infer that the loan would not have been made at all without the assistance of an agent in whom the lender had confidence.

The amount allowed to the attorney and the agent, in our judgment, does justice between the parties.

We might stop here, but the insistence on the part of plaintiff is that in view of the fact that we have heretofore decided that thirty-nine thousand two hundred and sixty-five dollars of plaintiff’s values deposited with defendant’s agent, in pledge, were prematurely sold, ■that in consequence neither attorney’s fees nor commission on that .amount were recoverable; that we should for the reason of sales •prematurely made of other securities decide that no fee or commission is due on other amounts received.

The aggregate amount to which this refers is fifty-four thousand and ninety-seven dollars and fifty cents. This claim for deduction •was not originally in argument. The pleadings are silent .in that respect. With reference to the fee allowed, which is disputed, there was an issue presented and clearly met. We do not think that in justice we should, presented as the case was, make further deductions. The claim of prematurity urged on rehearing is not sustained.

Application of plaintiff and defendant, appellee and appellant, for a rehearing is refused.


source: Caselaw Access Project

author: Nicholls, C. J. Blanchard, J.

license: Public Domain

text:
    No. 12,827.
    The Shreveport & Red River Valley Railway Company vs. Mrs. Mary B. Hinds and Husband.
    Our expropriation laws authorize the taking of the fee, if necessary, for Public purposes; but if the public needs do not require it and a less estate will meet, the public wants, the fee can not be taken. 32 An. 171, 19 An. 1278.
    In expropriation proceedings for a right of way for a railroad company the court should not limit the right of way to the corporate life of the plaintiff. The right once granted becomes part of the property of the company and necessary to the continued exercise of the franchise. The property of the corporation may be seized, sold or disposed of in various ways, and is not lost by the-death of the corporation. Non constat that the road would belong to the plaintiff at the termination of its charter.
    In expropriation proceedings the question of the value of the land, or of the use of the land, to be taken, is distinct and separate from the question of damages. In questioning witnesses with the view of ascertaining the value of the land, the questions asked should be so framed as not to blend damages and inconveniences with value in attempting to fix value.
    The value of the land itself is the amount for which it would sell at private sale as part and parcel of defendant’s plantation without reference to its being taken for a railroad or for railroad purposes.
    ON APPEAL from the Second Judicial District Court for the Parish, of Bossier. Watkins, J.

      Leonard & Randolph for Plaintiff, Appellant.

      N. Lawrence £dndsley {Qirault Farrar of Counsel) for Defendants, Appellees.
    Argued and submitted June 2, 1898.
    Opinion handed down June 21, 1898.
    Decree of this court amended and rehearing refused June 20, 1898.
   The opinion of the court was delivered by

Nicholls, C. J.

The plaintiff seeks to have certain land belonging, to the defendant, Mrs. Hinds, expropriated.

In its petition it alleged that it was a railroad corporation building a railroad from Shreveport to Ooushatta; that its line was located, and that the work of building was going actively on all along the line. That its line, as located and in process of construe--; tion, runs in a southeasterly direction through Mrs. Hinds’ land, as would appear by the plan and map annexed to its petition. That said route and right of way, as shown by said map, takes a strip one hundred feet in width and amounts to twenty-four and forty-six hundredths acres of land. That said land was necessary to it and it had been unable to agree with the owner as to the price, etc., and that it had legally tendered five hundred dollars to the defendant, which was refused.

The prayer was that on final hearing there be judgment adjudging the land aforesaid to plaintiff upon payment to the owner of ¿11 legal damages she may sustain in co'nsquence of the expropriation.

The defendants answered, pleading first the general issue. Further answering, defendants averred that if plaintiff had the legal right to expropriate the land through the plantation as claimed, then the land so taken and expropriated was worth the sum of one hundred dollars per acre, or the sum of twenty-four hundred and forty dollars for twenty-four 46-100 acres sought to be expropriated.

That in addition to the actual land taken as above set forth, the location and construction of said railroad through her plantation would cause great damage to her property by dividing the plantation into two parts, severing one from the other by the track and embankment of the road, thus rendering the plantation inconvenient and difficult to cultivate by rendering the different portions of the same inaccessible and inconvenient to cross from one side of said railway track to the other in the usual and necessary cultivation and conduct of said plantation, by rendering it necessary to build additional fences and to keep the same in repair; by cutting off small portions of land and rendering the same difficult and unprofitable to cultivate; by interfering with and obstructing the natural and artificial drainage of said plantation; by making a pub - lie thoroughfare through said place for the section hands and other employees of said company, and tramps and thieves, who were calculated to disturb and disorganize the labor on said plantation, and cause great loss of time of laborers in stopping to gaze at the passing trains and others passing to and fro on said road; by loss from running away of teams by becoming frightened by passing trains; by clearing away the debris thrown out by said company from the right of way, and by depreciating the value of her property in various ways not specially set forth, but all of which would greatly damage the property.

That in addition to the value of the land expropriated defendant would be damaged, as above set forth, five thousand five hundred dollars, to-wit:

For inconvenience and inaccessibility in cultivation and coming back and
forth...............................................................................................$3,500 00
For four miles of fencing- and keeping same in repair...................................... 750 00
Eor loss of time by laborers, frightening stock, etc....................................... 1,000 00
For cleaning away the debris from right of way.............................................. 100 00
For damage to drainage, etc., and loss of small strips of land....................... 1,150 00
Making a total of sis thousand five hundred dollars...............................$6,500 00

Defendants prayed in the event of the courts rendering judgment in favor of the plaintiff for the expropriation of the land as prayed for, then at the same time there be judgment in favor of defendant for the sum of twenty-four hundred and forty dollars for the actual value of the land, and the further sum of six thousand five hundred dollars as damages as set forth, and for general relief.

The jury returned as their verdict that “ they found in favor of the plaintiff for the right ok way and in favor of the defendant for the sum of two thousand dollars as value of the property taken, and fifteen hundred dollars as damages in addition to the above amount, making a total in favor of the defendant of thirty-five hundred dollars.”

Plaintiff moved for a new trial, but the court overruled the same, and rendered judgment in favor of the plaintiff, against the defendant “ expropriating the land described in the petition and map attached to the same.” It is further ordered, adjudged and decreed that defendant have and recover of plaintiff the sum of two thousand dollars — value of land, and fifteen hundred dollars damages, with legal interest from date of judgment, and decreed that upon payment of said amount to the defendant according to law, the right, title and interest of the defendant in said described land and right of way should vest in the plaintiff.”

Plaintiff appealed. Defendant answered the appeal praying that the judgment be amended, and amended in favor of appellee, by limiting the title of appellant to a right of way for the period of its corporate life, and by- increasing the amount allowed as damages to five thousand dollars.

Opinion.

The plaintiff in this suit prayed for a right of way over the plantation of the defendant. The latter in her answer asked judgment against plaintiff, for an amount fixed by her as being the value of the land, and for an additional amount as for damages. The jury rendered a verdict “ in favor of the plaintiff for the right of way as claimed and in favor of the defendant for the sum of two thousand dollars, as the value of the property taken, and fifteen hundred dollars as damages in addition to the above amount, making a total in favor of the defendant of thirty-five hundred dollars.”

The District Oourt adjudged that plaintiff have judgment expropriating the land described in the petition and map attached to same (describing it), and that defendant have judgment against plaintiff for the sum of two thousand four hundred dollars, value of land, and fifteen hundred dollars damages with interest. Plaintiff appealed, and defendant on appeal moved that the judgment be amended by limiting plaintiff’s title to a right of way, and restricting it as to time to the period of the corporate life of the plaintiff, and increasing the amount of damages to five thousand dollars.

We do not understand plaintiff to seek for more than a “ right of way,” nor the verdict of the jury nor the judgment of the court as intending to convey any greater right than a right of way, and it is evident- that it is not entitled to a judgment, decreeing to it the ownership of the property itself. Railway Co. vs. Gay, 32 An. 471; (Telegraph Co. vs. Railroad Co.), 49 An. 1278. We will, however, place that matter beyond controversy by our decree — we can not, however, limit the right of way to the period of the corporate life of the plaintiff. The right once granted to the corporation, it becomes part of its property, and necessary to the continued exercise of its franchise.

The property of the plaintiff may be seized, sold or disposed of in various ways, and it is not lost by the death of the company. Non constat the road will belong to the present company at the expiration of its charter. Art. 2632 of the Oivil Code orders in the matter of expropriation proceedings, that upon the filing of plaintiff’s petition asking for expropriation of property, that a jury shall be drawn, and that said jury shall, by a verdict in which at least three-fourths of their number shall concur, determine after hearing what is the value of the land described in th.e petition, with its improvements, and what damages, if any, the owner would sustain in addition to the loss of the land by its expropriation; while the next article (Art. 2633) directs that “in estimatiug the value of the property to be expropriated, the basis of assessment shall be the true value which the land possessed before the contemplated improvement was proposed, and without deducting therefrom any amount for the benefit derived by the owner from the contemplated improvement or work.”

It will be seen that the question of the value of the land to be taken is distinct and separate from the question of damages, though both are ordered to'be made the subject of examination and decision by the jury. N. O. Pacific Railroad Co. vs. Murrell, 34 An. 537.

The law is perfectly plain when it says that the mere value itself of the land to be taken is to be fixed independently of the the particular improvement contemplated, and without reference to it one way or the other. Under that provision of the law, we do not understand it to be proper for counsel of the land owner, in examining witnesses on that particular branch of the case, to call.their attention to the particular direction which the right of way, when granted, is to run upon the plantation — to direct their notice to the fact that it would cut the property in two, that it would interfere with the drainage and cultivation of the crops, that it would cause great inconvenience in varieus ways to the owners; and, having done so, then to ask them what, in their opinion, a small strip of land of one hundred feet or so, running through a plantation, would be wqpth.

Questions of that character would be perfectly legitimate asked in connection with the establishment of the damages to which the owner would, by reason of a strip of land so running, be entitled, but they confuse the witnesses and render the estimates so made by them as to the value of the land itself of little force, by their blending damages and inconveniences with value, in attempting to fix value. The examination of defendant’s witnesses was almost entirely conducted upon this improper line. We are satisfied from an examination of the testimony of the witnesses in the case, that the value of the land itself was at most forty dollars per acre, for cleared land, and twenty dollars per acre (round) for timbered land and land with deadened timber upon it. That is, that that is the amount for which it would be sold at private sale as forming part and parcel of defendant’s plantation without reference to its being taken for a railroad, or for railroad purposes. We fix the value of the land at seven hundred and fifty dollars.

We find the testimony on the subject of .the damages claimed exceedingly general, and the damages claimed are, in some respects, remote and conjectural. We think that one thousand dollars will fully cover all damages likely to result from granting plaintiff the right of way asked.

Eor the reasons herein assigned, it is ordered, adjudged and decreed that the judgment appealed from be amended by ordering and decreeing to the plaintiff a right of way as prayed for by it and adjudged by the District Court, to vest in the plaintiff upon payment to the defendant of the sum of seventeen hundred and fifty dollars, and as so amended the said judgment be and the same is hereby affirmed. Costs of appeal to be paid by the appellee.

On Application for Rhhbaring.

Blanchard, J.

The law directs that when private property is sought to be expropriated for public purposes, a jury of freeholders must be called to sit in judgment upon the value of the property to be taken and the quantum of damages the owner may suffer in consequence of such taking. Undoubtedly the award of such a jury is entitled to the highest consideration, but it is not intended by the law to be conclusive as to the amount of value of property and damages to be paid defendant in expropriation.

This is shown by the fact that an appeal from such award and from the judgment based thereon is given by the law. What would be the object, or the value, of such appeal if the power of revision of the award is not in the appellate court? It is beyond controversy that this court on appeal may and should diminish such award, if, in its judgment on the facts and the law, it be too large, or increase it if, in its judgment, it be too small.

There is no foundation either 'in the law or practice of the courts of this State for the contention of counsel for appellee that if the award be found excessive the case should be remanded for a second trial by jury under proper instructions. If the evidence in the record justifies it the court should proceed to render such decree as is warranted and proper under the circumstances.

With regard to the contention that J. W. Atkins holds a lease for several years on the plantation through which the right of way is expropriated, and that by the expropriation he loses the use of twenty-four and forty-six one hundredths acres, worth, it is claimed, five dollars per acre per annum, or one hundred and twenty-two dollars and thirty cents per annum, which he may claim as rebate against defendant, thus largely diminishing the amount awarded the latter, it suffices to say, first, that defendants’ answer filed herein does not mention the Atkins lease at all as an element of damage arising in-the case, and, second, that Atkins is no party to the suit and his rights are in no manner concluded by the judgment rendered herein. This court said In re Morgan R. R. and S. S. Co., 32 La. An. 375, speaking of the rights of a lessee in a case when the property under lease was expropriated: “The right of a lessee is substantive and is independent of changes in the ownership of the thing. C. C. 2733. The purchase, or expropriation, of the rights of the owner does not therefore necessarily embrace or operate upon the right of the lessee. That right in order to be affected must be itself the object of purchase or expropriation. If the rights of the owner are alone the objects of the purchase or expropriation the right of lease is unaffected and continues. The purchaser gets only the thing encumbered by the lease. That is all he can get, for that is all the owner has.”

It was held, in that case, that if the right of a lessee is worth no more than he has agreed to pay in futuro for it, the expropriation of that right would pay him nothing, as it is worth nothing. But if the right of lease will bring a greater sum than it is to cost the lessee, the latter is entitled to be paid the amount of such excess, which amount can not be charged upon the sum fixed for the rights of the owner, unless the owner has received the rent in advance, or unless the value of his right has been fixed by reference to the present actual value of the lease.

It is clear, therefore, that since, in fixing the amount we think the defendant should recover for value of land and damages, no reference is had to the Atkins lease, the- value of the latter, if any, over and above the rental he is obligated to pay, is not a charge upon the sum awarded the defendant, but is a matter to be settled between the railway company and the lessee by amicable adjustment, or by proper proceedings at law.

With regard to the contention that the judgment appealed from awards the fee of the land when there is no necessity for expropriating more than a servitude over it, and that while in the body of the opinion of this court heretofore rendered language is used which declares plaintiff company is not entitled to a judgment investing it with the ownership of the strip of land taken for right of way purposes, the decree of the court itself does not make this plain, it suffices to say that our construction of the judgment appealed from is that the fee of the land is not conveyed or intended to be conveyed by it. However, we will make this beyond dispute by amending the decree of this court in that particular.

It is proper to add, however, that this issue is by no means squarely made in the answer of defendant. It should have been. Railway Co. vs. Gay, 32 An. 474.

Plaintiff company is entitled, we think, under the facts of this case, to a servitude, or right of way only, through the plantation of defendant. A right of way, in legal parlance, is held to be an easement on the lands of others. Telegraph Co. vs. Railroad Co., 49 An. 1278. Plaintiff, therefore, pays not the value of the fee of the land, but only the value of the use and occupation of the land. 16. 1279.

If the fee were being taken, since it is the more valuable right of the two, the award would perhaps be higher.

This right'of way, servitude or easement over the lands of defendant’s plantation is to endure so long as utilized for railway purposes, so long as a railway track is laid there and operated by plaintiff company, or its successors or assigns. When the strip of ground which is the subject of this expropriation ceases to be used for this purpose, it will revert to the owner of the plantation.

With regard to the contention that the amount allowed defendant by our decree for the value of the use and occupation of the land taken and damages to the plantation is too small, it suffices to say that, as we appreciate the evidence, it is all that can be reasonably justified.

The servitude awarded plaintiff occupies about twenty-four and a half acres, much of it in the woods at the time of taking. For value of this occupancy and damages something more than seventy dollars an acre is allowed, or seventeen hundred and fifty dollars.

The rehearing applied for must be refused, but the decree heretofore rendered is amended so as to read as follows: For the reasons assigned it is ordered, adjudged and decreed that the judgment appealed from be amended by awarding to the plaintiff company a right of way or servitude for railway purposes over and on the lands described in said judgment, and to the extent therein described, and vesting in the plaintiff company the right of the use and occupation of the said lands for such servitude upon payment to the defendant of the sum of seventeen hundred and fifty dollars, reserving to J. W. Atkins, lessee, against the plaintiff, whatever rights he may have growing out of his lease of the lands so taken and occupied, and as thus amended the said judgment be and the same is hereby affirmed— costs of the lower court to be borne by plaintiff, those of appeal by the appellee.


author: Blanchard, J. Blanchard, J.

text:
    No. 12,711.
    In re Moss Cigar Company, Limited.
    Where an.exj>arte order is granted appointing a receiver, it is not the proper practice for a complaining creditor to appeal directly from such order.
    The correct course to pursue is for such creditor to appear in the cause and move that the order be vacated and set aside, or take a rule to set aside and vacate, aud if the motion he refused, or the rule denied, to appeal from the decision and such appeal, if suspensive, would stay further proceedings in the receivership and hold matters in statu quo pending the appeal.
    On Rwheaking.
    Appeal by creditor, whose claim exceeds two thousand dollars, from order appointing receiver and staying proceedings against insolvent corporation. Motion to dismiss appeal on ground that assets of corporation do not equal two thousand dollars in value — Held: That the question of jurisdiction is determined by amount of creditor’s claim on which the right of action is suspended rather than by the sum of the assets as shown by the scheduls.
    Further motion to dismiss, on ground that the appeal will not lie from order appointing receiver as herein made — Held: The appeal does lie, differentiating the case from Brewing Company vs. Judge, 46 An. 100, and Harrod vs. Sewerage Company, 49 An. 1595.
    There is no direct authority of law for appointment of receiver as herein made and for the order staying proceeding against the corporation, and the facts and exigencies of the casé do not bring it within the category of cases where, under their inherent powers, such appointments have been made by the courts in aid of their jurisdiction or as as a conservatory process incidental to a main demand.
    Appeal from the Civil District Oourt for the Parish of Orleans.
    Théard, J., of Division E, acting for Monroe, J., Division 0, now absent.

      Solomon Wolff for Receiver, Appellee.

      E. Evariste Moise for Gonzales, Mora & Oo., Creditors, Appellants.

      Submitted on briefs on motion to dismiss January 10, 1898.
    Opinion handed down January 24, 1898.
    Rehearing granted March 7, 1898.
    Reargued and resubmitted April 5, 1898.
    Opinion on rehearing handed down April 18, 1898.
   The opinion of the court was delivered.by

Blanchard, J.

The Moss Oigar Company, Limited, presented a petition to the District Court setting forth that its capital stock was greatly impaired by reason of losses incurred in the conduct of its business, its credit weakened and its condition insolvent. It represented that its creditors were pressing for payment of their claims, and a multiplicity of suits was threatened. It exhibited schedules of its assets and liabilities, which show its insolvent condition. It averred that the interest of all concerned would be best subserved by the appointment of a receiver to take charge of its affairs. It prayed for the appointment of such receiver, for an inventory and appraisement of its assets, and that all proceedings against the corporation and its property be stayed.

It annexed to its petition what purported to be telegrams and letters from its directors and stockholders consenting to the proceedings taken.

Upon this showing, the District Judge made an order appointing William Moss receiver, fixed the bond he was to give at two thousand dollars, directed an inventory of the property of the concern to be taken, appointed a notary to take the same, and appraisers to fix the value of the property, and decreed that all proceedings against the corporation and its property be stayed.

About six weeks later Gonzalez, Mora & Co. appeared in the case, represented they were creditors of the Cigar Company in an amount exceeding two thousand dollars, suggested to the court that the order hereinbefore set forth contained error to their prejudice, and moved for a devolutive appeal therefrom, returnable to this court.

An order of appeal was granted, the bond given and the appeal is before us.

It is met here by a motion to dismiss on the ground that this court is without jurisdiction ratione materise, and that an appeal will not lie from an order appointing a receiver as herein made.

We express no opinion on the ground first averred.

That last averred is fatal to the appeal.

It may be the order sought to be appealed from is improvident and without warrant; that there is no basis for it in fact or in law; that it ought to be set aside and vacated.

These are matters we will not pass on now. They should be first presented to the court granting the order in a motion, or on rule taken to vacate.

It will be time enough for this court to pass on them when they come here in the regular way by appeal from the judgment on the motion or rule to vacate.

Such was the practice commended, and the rule laid down in regard to ex parte orders like the present one, in State ex rel. Brittin vs. City, 43 La. An. 831; State ex rel. Brewing Co. vs. Judge, 46 La. An. 100; Harrod vs. Sewerage Co., 49 La. An. (decided December 13, 1897, not yet reported).

Some difficulty suggests itself in this, that should a creditor, or other interested party, objecting to the ex parte order appointing a receiver, take a rule to vacate such order and judgment goes against him thereon and he appeals suspensively, would such appeal operate to suspend further proceedings under the order appointing the receiver? We hold that it would; that pending the appeal further proceedings in the receivership would be stayed and matters held in statu quo.

The motion to dismiss must prevail.

And it is ordered that the appeal herein taken be dismissed, reserving to appellants the right by appropriate pleas in the court a qua to test the sufficiency and legality of the order complained of.

Nicholls, C. J., dissents.

Miller, J., dissenting in separate opinion.

On Rehearing.

The opinion of the court was delivered by

Blanchard, J.

When this cause came before us recently the appeal was dismissed on a question of practice submitted in the motion.

A rehearing was granted for further argument on the point presented, and for further time to consider.

On Motion to Dismiss.

The order granted by'the judge a quo does two things — appoints a receiver and stays proceedings against the corporation.

This creditor, with a claim, exceeding two thousand dollars, finding himself barred from the courts, except that he may recognize the receivership and take proceedings therein, appeals from the order.

He is met here with a motion to dismiss on the ground that this court is without jurisdiction ratione materia}.

Is it?

Appellee insists that the amount of the assets of the company is one thousand six hundred and thirty-nine dollars and ninety cents— a sum below the minimum jurisdictional limit here, and that the real matter in contestation is the distribution of the fund arising, or to arise, from these assets.

If it were true that this is a contest only over the assets and over the fund arising from them, it is manifest the plea to the jurisdiction would be good.

But there is as yet no fund available from the assets. They have not yet, so far as the record discloses, been administered, disposed of, collected. No scheme, or tableau for the distribution of any fund among the privileged and ordinary creditors is here presented. The creditors are not here contending among themselves over any fund, or seeking to control the receiver in respect to his distribution thereof, or to hold him responsible for any matter arising in reference to this insolvent estate, or his administration thereof. In short, this is not purely and simply a case where “ the matter in dispute, or the fund to be distributed” is less than two thousand dollars.

Nor is the matter in contestation here merely the legality vel non of the appointment of this receiver. It includes also the question of the right to stay the hand of this creditor, to order him not to take proceedings against his debtor.

The order appealed from, then, affects - this claim of over two thousand dollars, denies its right to be independently asserted, to be declared on, to become the basis of proceedings immediately taken to enforce its payment against the property of the debtor. In fine, denies the constitutional right of action on it.

It is this right of action, now suspended by an order alleged to be improvident, which, rather, is the teat of jurisdiction in this appeal and the question of jurisdiction is to be determined according as the amount of the claim,, on which the right of action is suspended, does or does not exceed two thousand dollars.

As it exceeds that sum, it follows the court is vested with jurisdiction ratione materice.

A further motion to dismiss is made on the ground that an appeal will not lie from an order appointing a receiver as herein made.

This presents a question of practice and, in our former opinion we held the plea good and dismissed the appeal.

Further consideration has lead to a different conclusion.

The denial of appeals direct from orders appointing receivers has in previous cases (State ex rel. Brewing Co. vs. Judge, 46 La. An. 100, and Harrod vs. Sewerage Co., 49 La. An. —) not been carried so far as is required in the instant ease for the dismissal of this appeal. In those cases questions of fact existed, necessary to the determination of the issue, requiring proof and necessitating the production of evidence. The appeals direct from the order of appointment did not and could not bring up the facts. It was not improperly held that, in such eases, the appeal should be dismissed, leaving the appellant to take a fule to vacate the order of appointment of receiver, which would give opportunity, by the introduction of testimony, to ascertain the facts.

The ease under consideration, on the face of the pleadings and record, presents' no issue of fact, and it is not suggested in argument or brief that there is any question of fact necessary to the determination of the appeal.

The order of appointing this receiver was a decree which, while not final in the proceedings, is final as to its consequences, and, therefore, appealable, coming under the rule laid down in Enet vs. His Creditors, 4 M. (La.) 308. See also Martin vs. Blanchin, 16 An. 83.

The motion to dismiss the appeal is denied.

On the Merits.

The question presented is: The power of the Civil District Court, upon the ex parte application of this insolvent corporation, to make an order appointing a receiver and staying proceedings against the corporation.

Our courts, without any direct statutory provisions on the subject, have, in aid of their jurisdiction and as warranted by the exigencies. of cases, adopted and established the practice of appointing receivers. But this has not proceeded further, and should not, without legislative enactment, proceed further than in making such appointment in cases where the parties litigant agree that it be done, or when it is necessary to the execution of a judgment of the court, or in a case where the property in controversy being under seizure by a writ of the court and in custody it is necessary as a conservatory process to care for or administer the same, or where the property of a corporation is abandoned, or there are no persons authorised to take charge of and conduct its affairs, or where it is done in aid of proceedings pending before the court for the liquidation of the affairs of a corporation and rendered necessary for the preservation of the interests of all concerned. See 34.La. An. 754; 5 Id. 740; 6 Id. 456; 3 Id. 182; 30 Id. 162; 35 Id. 199; 44 Id. 570; 49 Id. 301; 5 R. (La.) 517; 11 R. 418.

There being no direct authority of law to sustain the appointment of this receiver and for the order staying proceedings against this corporation, and the facts here presented and the exigencies of the case not bringing it within the category of cases mentioned above, where, under their inherent powers, such appointments have been made by the courts in aid of their jurisdiction, or as a conservatory process incidental to a main demand, the apointment and order staying proceedings can not be maintained. Baker vs. Portable Railroad Company, 34 La. An. 756.

It is, therefore, ordered that the decree of this court hereinbefore rendered, dismissing this appeal, be set aside, and it is now adjudged and decreed that the order ef the Civil District Court, parish of Orleans, made in this proceeding, appointing a receiver of the Moss Cigar Company, Limited, and staying proceedings against the said ■corporation, be vacated and annulled — costs of both courts to be borne by the corporation, appellee.

Mr. Justice Breaux dissents.


author: Nichodls, O. J. Miller, J.

text:
    No. 12,715.
    Succession of Thomas Duffy.
    On Motion to Dismiss.
    'The Supreme Court does not anticipate on a motion to dismiss, the issues which the appellant proposes to submit to it. On a trial of the merits it can announce certain issues as not having beeu properly brought up on appeal, and others as having no merit. Appeals are frequently dismissed after hearing when it would be improper to dismiss them on a motion in limine. Brown vs. Land Company, 49 An. 1780; Saw-Mill Manufacturing Company in Liquidation, 48 An. 715.
    "Where the matter before the Supreme Court is an appeal by a creditor of a succession, which is, still under administration, from a refusal by the District Court to order the administrator or executor to file an account, the appellate jurisdiction of the courtis tested by the value of the succession, not the amount of the claim of the creditor asking the account. It is the right to the account, ^ and not the effect of the account which is the matter in dispute. 35 An. 19; 38 An. 244; 48 An. 418.
    On the merits.
    Under our law the right of the heirs to be recognized and put in possession is not dependent upon or deferred until the executor files his account; they may require or waive. Code of Practice, Art. 1008 et seq.; Civil Code, Art. 1671; Revised Statutes, Sec. 8678; Succession of Fisk, 8 An. 707.
    When the heirs have been recognized and put in possession the creditors of the succession can not require the executor to file an account, but must seek payment of their debts from the heirs.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Wynne Rogers |or Plaintiffs in Rule, Appellants.

      Geo. W. Flynn for Defendant in Rule, Appellee.
    On Motion to Dismiss.
    Submitted on briefs January 10, 1898.
    Opinion handed down January 24, 1898.
    On the Merits.
    Argued and submitted May 19, 1898.
    Opinion handed down May 30, 1898.
   On Motion to Dismiss.

The opinion of the court was delivered by

Nichodls, O. J.

On the 29th of October, 1897, upon the application of Rogers and Dodds, a rule was served upon John Fitzpatrick, as testamentary executor of the last will and testament of Thomas Duffy, to show cause whyjhe should not, as such testamentary executor, file an account of his administration of said estate, and place movers on said account as a privileged creditor, for the full sum of fifteen hundred dollars, for professional services.

The rule issued upon allegations of the movers that they were creditors of the succession of Duffy in the sum of fifteen hundred dollars, for services rendered in the opening of said succession and probating the last will of the deceased. That John Fitzpatrick was duly appointed and qualified as the testamentary executor of said last will and testament; that he had failed to furnish and file an account of his administration of the property, and effects of said succession and had no intention of filing the same.

The defendant in rule answered:

1. That the succession of Thomas Duffy was closed, and defendant was without the right or authority to file an account, the heirs having been put into possession by judgment of the court, rendered and signed on the 4th of October, 1897.

2. That plaintiffs in rule had mistaken their action, as the rule taken was not the proper remedy.

8. That defendant had no right as an individual to file an account after the heirs had accepted unconditionally.

He prayed to be dismissed with costs.

The District Oourt on hearing sustained the exceptions and dismissed the rule without prejudice to movers to bring a direct action for the alleged claim against the heirs of the deceased, or the executor of the succession, or both.

Plaintiffs in rule appealed.

Appellee moved in this court to dismiss the appeal on the following grounds:

1. The Supreme Oourt is without jurisdiction, as the only question for consideration is the right of plaintiffs in rule to compel a settlement of their claim • for fifteen hundred dollars by compelling the filing of an account in a succession which has been finally disposed of by a final judgment, putting the heirs into possession in accordance with the plain provision of the law.

2. The rule taken herein is not in the nature of a concurso, no account has been filed and on the face of the judgment putting the heirs into possession no account could be filed, as there is no one authorized or empowered to render and file an account. The motion, therefore, of the plaintiffs in rule must be considered as a separate and independent measure for the collection of the amount claimed by them, and the amount of the claim, fifteen hundred dollars, must determine the question of jurisdiction.

3. The final judgment putting the heirs in possession is conclusive as to all matters connected with the succession, and the amount of the inventory which had been settled by said judgment can not be taken into consideration in fixing the jurisdictional limit.

4. The plaintiffs in rule being the only creditors, the amount of their claim must determine the question of jurisdiction.

Of the various assigned grounds for the dismissal in limine of this appeal, the only one which, in our opinion, can be properly considered at this time is that in which it is urged that we have no jurisdiction of the cause by reason of the amount iuvolved in the controversy.

The other reasons set up will be passed upon hereafter, after we shall have examined into the issues and facts o„f the case as disclosed by the record. As we said In re Saw-mill Manufacturing Company, 48 An. 714, “should the case be one where either improper issues or untenable issues be presented, appellee will suffer no injury by having our conclusion announced after full presentation.”

With respect to the jurisdictional question, we have to deal with matters for the time being on the theory of appellant being a creditor of the succession for fifteen hundred dollars, and of the succession being still in the hands of the executor. The matter before us, therefore, takes the shape of an appeal from the refusal by the court of an application ■ made to it by a creditor of a succession which is still under administration for an order to compel the succession representative to render an account as such. The succession exceeds in value the amount necessary to give this court appellate jurisdiction, should the value of the succession be the fact which is determinative of the jurisdiction.

No decision upon this precise point has been cited to us, and we know of none ourselves.

The proceeding in its features is akin to an application made by a creditor of a succession to have it placed under administration.

In such case the value of the succession, and not the amount of the claim of the creditor, would be the test of jurisdiction.

If the necessity for an administration were called in question, “ the right to an administration,” and not the ultimate result of that administration in its bearings upon the applicant, would be the matter in dispute.

So here the “right to an account,” and not the effect of an account is the matter at issue.

We are of the opinion that if there be on the part of a succession representative a liability to account, that liability is entirely independent of the amount of the claim which may be held by the party who asks the enforcement of the right of account.

A party holding a claim for a hundred dollars is as much entitled to call for an account as one holding five thousand dollars, if the liability to account exists at all (R. S. S.,. Sec. 8). Whenever an application is made to a court for an order bearing upon the succession in its entirety we must, by reason of the subject matter of the application, rest our jurisdiction upon the value of the succession. Succession of Thomas, 35 An. 19; Succession of Bedford, 38 An. 244; Succession of Rose, 48 An. 418.

The motion to dismiss is overruled.

On the Merits.

The opinion of the court was delivered by

Miller, J.

This appeal is by the plaintiffs in the rule on the testamentary executor of-the deceased to compel him to file an account with the view to the payment by the executor of the fee of plaintiff as attorneys of the succession. The judgment of the lower court dismissed the rule on the ground that the heirs of the deceased had been put in possession on their application for that purpose to the court.

It is urged that the plaintiffs in rule, as creditors of the succession, have the right to compel an administration by the executor, and the payment of their demand in due course of his administration; hence, are entitled to call for his account as executor, of which they can not be deprived by the ex parte order recognizing the heirs and putting them in possession of the property of the succession. In this conuection we are referred to the decision in the Succession of Sterry, 38 An. 854. In that case the executor had rendered an account under the order of the court, and. it was opposed by the creditor. The court held that though the account was directed to be rendered on the application of the heir, and though they were recognized and ordered to be put in possession, still a creditor could oppose the account. Here, no account has been called for by the heirs; none has been filed, but the heirs have been content to go at once in possession. Under our law the right of the heir to possession, notwithstanding there is an executor, is conferred on the conditions only that the heir will furnish the money to pay the movable legacies, and give security to creditors in pending suits, if the creditors require It. Civil Code, Art. 1671; Revised Statutes, Sec. 3678; Succession of Fisk, 3 An. 707. The heirs are bound for the debts. But, under our Code, their right to possession is not dependent on the account to be filed by the executor; in other words, without any such account they are entitled to possession, and when put in possession the administration of the executor ends. No account can be required of him by creditors, but the law preserves their full recourse on the heirs and to that relief we must remit plaintiff in rule.

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


author: Nicholas, O. J.

text:
    No. 12,790.
    Agricole Fuselier vs. The Great Southern Telephone and Telegraph Company.
    A telephone company, through its employees, had been placed in possession of a line of way, and of telephone posts upon the property of another, which it would have had really the legal right to possess under expropriation proceedings properly conducted. It had obtained the same, however, without the consent of the owner or any order of court. A prayer by the owner for the removal of the posts will not be granted when the evidence establishes the fact that the company would be entitled to have the same line re-established as its right of way, and the posts immediately replaced in the same position. The company, however, will be compelled to pay the value of the right of wav and damages forthe illegal invasion of the owner’s right of property.
    APPEAL from the Twenty-fourth Judicial District Court for the Parish of St. Mary. Allen, J.

      J. Sully Martel and D. Gaffery & Son for Plaintiff, Appellee.

      Weeks & Weeks and Denigre, Blair & Denigre for Defendant, Appellant.
    Argued and submitted May 4,1898.
    Opinion handed down May 30, 1898.
    Rehearing refused June 28, 1898.
   The opinion of the court was delivered by

Nicholas, O. J.

Plaintiff alleged that he was the owner of a certain sugar plantation in the parish of St. Mary, which he described.

That along the front of said property, on the line of the Southern Pacific Railroad, there were a number of trees valuable for shade and ornamental purposes, and of different varieties, such as oak, ash, hickory and pecan trees; that opposite thereto, the Southern Pacific had recently established, on the line of its railroad, a new station or depot called Adeline, about which is about to be built a town, and that in anticipation of a demand for town lots he had reserved the front of his said property for subdivision — the said trees giving to said front a great value therefor.

That on or about the - day of December, 1896, several employees of the defendant company came to petitioner’s property, during his absence therefrom, and, without his knowledge, entered thereupon and began to build across the front of same a telephone line consisting of poles and wires running parallel with the track of the Southern Pacific Company; that petitioner discovered the trespass and ordered them to withdraw from his land, which they did; that petitioner then left two men on his property to guard against any further trespass; that on the following day, being Sunday, the said employees finding the said men on guard, enticed them away on some false statement and fraudulent pretence, and during their absence they secretly entered upon the said land and hastily completed the erection of said telephone line, and in doing so they wantonly and maliciously cut down trees along the mile of front owned by petitioner, and mutilated others by cutting off branches and limbs; that the trees cut down and mutilated before petitioner discovered the said trespass, made during the absence of his guards, numbered at least fifty, so that the appearance of his said front was much damaged; and the value of his property greatly lessened. He averred that said trespass and destruction and mutilation of trees was a gross, flagrant and malicious violation of his rights, and that the acts complained of constituted a tort originated and executed in malice and fraud.

That he was damaged in the destruction and mutilation of his trees in the sum of fifteen hundred dollars, and in the digging of holes and the erection of poles thereupon in the sum of five hundred dollars. That he was entitled to exemplary and vindictive damages in the sum of one thousand dollars.

Defendant first excepted that plaintiff’s demands were inconsistent in claiming compensation in damages for the alleged taking and occupation of the land, and the erection of telephone poles thereon, and at the same time praying for the removal of the poles. He prayed that he be ordered to elect.

It then, under reservation, answered by a general denial.

Further answering it averred that no telephone lines belonging to it were on any property of the plaintiff, but that its poles on said front were erected upon the land and right of way belonging to Morgan’s Louisiana & Texas Railroad and Steamship Company, and adjacent to plaintiff’s land, all as the law permitted. It averred that if any entry was made on plaintiff’s property (which was not admitted) it was not in trespass, but only such lawful and necessary entry upon the boundary as was required to properly handle the material used in constructing said line. That no trees were cut by it, save valueless shrubs and branches on the railroad property overhanging and interfering with the passing of the wires, and of these so much only as was absolutely needful and proper. It averred that while its line was being constructed plaintiff obliged its emplopees to stop their work, claiming that they were building same upon his land, but afterward authorized and consented to the completion of said line, which defendant’s employees then did, with the understanding that whatever claims for compensation plaintiff might have should be considered, and, if valid, amicably adjusted at a later date.

That under said understanding considerable expense was- incurred by defendant in completing said line, and it pleaded that even if it should be found that said line was on plaintiff’s land (which it was not) plaintiff was estopped by said conduct and consent (which had been acted on) as set forth from bringing the suit..

It averred that plaintiff’s land was wild and partly timbered. That there were no shade or other trees of any value along the-locality of the telephone line, and it-averred that it had never been put in default.

Defendant subsequently applied for and obtained an order for the-survey of the plaintiff’s property, and that of the railroad company, alleging that it was necessary that the boundary between said prop - erties be ascertained in order to determine upon whose lands the poles were situated. A survey was accordingly made and returned.

The District Court rendered judgment in favor of the plaintiff for the sum of five hundred dollars, with legal interest from 3d April, 1897, until paid. The judgment was silent as to the demand for the-removal of the poles.

Defendant appealed.

In the Supreme Court plaintiff moved that the judgment be-amended by increasing the amount thereof to twenty-five hundred dollars, and by ordering the removal of the poles.

The evidence establishes conclusively the fact that the telephone-poles erected on the land by the defendant were placed there without the prior consent of the plaintiff. Defendant does not deny this,, but attempts to explain it by saying that its employees had done sounder the erroneous impression that such consent had been obtained. It would appear that a Mr. Millard, acting on behalf of the defendant,, had gone along the proposed telephone line soliciting a right of way from the owners of the land over which it would pass. That when he called at plaintiff’s residence, he was temporarily absent, but-expected soon to return. That on ascertaining this fact Millard told one Mitchell (who had immediate charge of the work as it progressed) that he would place himself in communication with plaintiff and let him know what to do. That the work progressed faster than had been expected, and Mitchell, not hearing from Millard, assured that everything had been arranged, under that impression went upon the land, dug the holes for the poles, -and placed the latter in position, before information was received by him that plaintiff objected to the work. On receiving this information, he notified Millard, and the two called upon the plaintiff in regard to the matter. Millard and Mitchell’s version of what took place at the interview between the parties differs from that given by Mr. Fuselier. The former both testify that the poles having been erected at that time, and nothing remaining to be done to finish the work but to string the wires. upon them, Mr. Fuselier consented, at Millard’s request, that the work should be completed, leaving open the matter of compensation to be thereafter settled, between Mr. Martel, the counsel of the plaintiff, and Millard and Mitchell. Plaintiff testifies that he gave no such consent, but simply referred the parties to his attorney.

Millard and Mitchell admit that, anticipating the possible change of mind on the part of the plaintiff which actually took place, they, in view of that fact, hurried forward the work upon the next day. Mitchell declares, however, that when on that day he was notified that plaintiff wished him to desist, everything had been finished except the stringing of wires upon two panels. He testified that, upon receiving this notification, he instructed his workmen to pull up the slack of the wires already upon the poles, and tie the end, and immediately started for plaintiff’s residence with the messenger who had given the notification. That the workmen, not understanding the import of the order given to them, proceeded to close up the unfinished gap covering only a few hundred feet and closed the whole line. That this was done without any knowledge or suspicion on his part that it would be done. While the testimony of the plaintiff is directly opposed to that of Millard and Mitchell, in respect to the former’s having consented to the completion of the work by the hanging of the wires upon the poles, we think that we must, under the evidence, assume that the conversation between the parties was of such a character as, at least, to have impressed Mitchell and Millard with the belief that such consent had been given* The action of Mitchell, in ordering the hanging of the wires on the poles the following day, must be viewed from that standpoint, up, at all events, to the moment when notice was given to him to stop work. The digging of the holes and the erection of the poles upon the land were accomplished facts before the parties met at plaintiff’s residence. At what precise time plaintiff came to a knowledge of what was going on is not shown. He testifies to having seen workmen of the company when digging holes upon the land. It is not shown that on ascertaining that fact he at once complained to Mitchell, nor is it shown that after such complaint was made that either holes were dug or poles erected. Plaintiff does not claim that the telephone line, as presently established, is an improper place, or in a place other than that which the defendant could have legally exacted for its line had legal proceedings been resorted to. It is not charged that the trees cut were not upon that line, nor that they were unnecessarily cut down. The line was established as near the right of wgy of the Morgan Railroad Company as well could be, and the trees had to be removed or trimmed in order to make way for the poles and wires. We think it very obvious, from plaintiff’s own testimony that his ground of complaint was based more upon an ignoring of and an invasion upon his rights of ownership than upon a pecuniary loss suffered by him in the premises. On cross-examination, being asked in one place the question, “whether the cutting of the trees had damaged him one thousand five hundred dollars,” he answered, “ that he did not think the trees were worth that much, but it was cutting the trees without his permission; ” and on his being asked what each of the trees was worth, said he could not say exactly what each was worth, that the damage of cutting the trees was what he was complaining about. They were an ornament to his place.

The following questions and answers followed:

“Q. Then really it is not so much the damage that you complain of as it is the getting on your place?
“ A. Yes, sir; the damage to my property.
“ Q,. How much do you estimate the actual loss to your property?
“A. Well, about five hundred dollars damages for the trespass.
“ Q,. But I mean, what is the actual lessening of the value of your property?
“ A. Well, I could not say.
“ Q,. You could not say?
“A. No, sir.
“ Q. Then what do you mean by the five hundred dollars damages?
“A. They had a gang of white men with negroes digging holes all over the place, going over my cane field and corn field and all over.
“ Q. You have just stated that you were not cultivating that land; how could they have injured any crops?
“ A. Half of the front of the place is field and half timber.”

We find nothing going to establish the fact that holes were dug upon the place other than those upon the line of way for the reception of the poles, nor to show that defendant’s workmen went all over plaintiff’s place. The reverse is shown. No crop of plaintiff was interfered with. The evidence shows that most of the trees which were cut down were along a trench which the railroad company had dug in making its road, and also very near a fence with' with which it had enclosed its right of way. If plaintiff should hereafter sell lots or tracts facing the railroad property, as he asserts it to be his intention to do, the trees, were they still standing, would not serve as ornaments to the same, as they would not be inside of any of the enclosures of the properties,, but upon the outer edge of the road, which would have to be left between the fences of the properties and the railroad fence. The trees appear to be, most of them, small; many of them with their roots exposed from the cutting of the trench referred to, and none of them calculated to increase the value of land as being ornamental. As matters stand, the plaintiff’s property runs up to the railroad right of way; part of the front has timber upon it and part has open field. No “ settlement ” has as yet sprung up. Whether there will ever be, in fact, such a settlement ” is purely speculative, as is also its future extent, should one be made. We do not think there is much analogy between this case and that of Tissot vs. Telegraph and Telephone Company (39 An. 996).

There the workmen left their line of work to enter the yard of a private residence and unnecessarily cut off branches from ornamental trees therein; here the workmen were upon the exact line which defendant could have legally exacted as its line of way and cut down no trees other than those which defendant would have been authorized to have had destroyed.

While defendant’s employees placed it in a position which it was really entitled to occupy, they caused this to be done prematurely, and without the consent of plaintiff or an order of court, in unwarranted disregard and violation of plaintiff’s rights of property.

We can not recognize the right of a corporation to enter upon private property and exercise the right of appropriating the same to its own use upon the grossly unauthorized assumption that the owner might thereafter consent to the same. Parties attempting to exercise the right of eminent domain should be made to know that that right to the extent at least of its being utilized in favor of private corporations, is in derogation of common right, and can only be enforced by strictly following out of the requirements of the law.

Assuming , as true that plaintiff after ascertaining how near defendant’s line was to completion had consented to interpose no obstacle to the stringing of the wires upon the poles already erected on his land, we do not give to this consent the force and effect which defendant claims for it. If given, it might estop him from contesting the proper.location of the line and from seeking to have undone that which had reached the point of accomplished facts, but we do not think it would go so far as to constitute a waiver of his right to ask damages for the prior unlawful entry upon his premises. It is fortunate for the defendant that in prosecuting its work it did so (so far a? the evidence shows) in a manner not in itself open to special objection. We do not think defendant should be made to remove the poles it had erected for the same reason as that for which courts refuse to set aside an'injunction when it is. manifest to them that immediately upon the dissolution of the same the plaintiff would be entitled to have a second one issued. Were we to order the poles erected by defendant upon the land removed, it would be entitled to have the same replaced, and in the meantime a business, quasi-public in character, would be greatly impeded and interfered with.

We are of the opinion that plaintiff is entitled.to recover from defendant an amount sufficient to properly cover the value of the, right of way which it has now acquired and damages for the unlawful entry upon plaintiff’s property.

We think two hundred and fifty dollars not too high an estimate for that purpose.

For the reasons herein assigned, it is hereby ordered, adjudged and decreed that the judgment appealed from be and the same is hereby amended by reducing the amount for which judgment is given in favor of plaintiff against defendant^, from five hundred dollars to two hundred and fifty dollars, and that as so amended said judgment is affirmed. Oosts of appeal to be borne by the appellee.


author: Nicholls, C. J.

text:
    No. 12,792.
    State ex rel. George Morgan vs. Daniel W. Voorhies, Judge ad hoc and the Jeanerette Lumber and Shingle Company, Limited, through J. W. Stokoe, President, Plaintiff in Rule.
    The authority ol a judge ad hoc over the judgment which he had rendered does not end with his signature to the judgment. So long as lie has not resigned nor vacated the position in some legal way, and the case is before the court which made the appointment, he retains control over it. The cause in a limited senso may be considered terminated, but for many purposes it remains a pending suit until Anally disposed of (Brown vs. Pontehartrain Land Company, 19 An. 1779; State exrel. Ludeling vs. Judge, 39 An. 79Í).
    He is the proper person to take cognizance of an application to have defendant in injunction, who has violated the injunction, ruled into court for and punished for contempt.
    ^^PPLIOATION for a Writ of Prohibition.

      Edward Simon for Relator.
    Respondent Judge pro se; Foster & Broussard for Lumber Com - pany, Respondent.
    Submitted on briefs April 9, 1898.
    Opinion handed down April 18, 1898.
    Rehearing refused May 2, 1898.
   The opinion of the court was delivered by

Nicholls, C. J.

On the 15th of July, 1895, the Jeanerette Lumber and Shingle Company brought suit against the relator in the Nineteenth Judicial District for the parish of St. Martin alleging that he had trespassed and was still trespassing upon property belonging to it— cutting down trees, etc. The company, applied for and obtained from the clerk of the District Court (in the absence of the judge) an injunction restraining Morgan from going upon the .land or removing or causing to be removed the timber which had been cut down by him or through his orders.

The District Judge recused himself by reason of interest and of haying been consulted in reference to the issues involved, and appointed Daniel W. Yoorhies, judge ad hoe.

Defendant having answered the case went to trial, and judgment was rendered in favor of the plaintiff, perpetuating the injunction. Subsequent to the signing of the judgment, plaintiff applied -to the court for a rule upon the defendant to show cause why he should not be punished for contempt of court, it being alleged that he had violated the injunction. The judge ad hoc took cognizance of the application, and under his signature directed the rule to issue as prayed for.

Defendant as a relator has applied to this court for a writs of certiorari and prohibtion — urging that the authority of the judge ad hoc ceased with his signature to the judgment.

We are not of that opinion. So long as he has not resigned or vacated the position in some legal way and the case is before the court in which the appointment was made, the judge ad hoc retains control over it. The cause, in a limited sense, may be considered terminated, but for many purposes it remains a pending suit until finally disposed of. (Brown vs. Pontchartrain Land Co., 49 An. 1779; State ex rel. Ludeling vs. Judge, 39 An. 794.) We see no good reason in support of relator’s position. The grounds upon which the District judge recused himself still existing, he would be as unable to take action in the case as he was before, and it would be a useless formality (to say the least) to require the court to make a reappointment of the same attorney in order to authorize him to control and supervise the execution of the judgment which he had himself rendered.

For the reasons assigned it is hereby ordered and decreed that the orders and writs heretofore issued herein be set aside and relator’s application is dismissed at his costs.