author: Wyly, J.

text:
    No. 4914.
    State ex rel. F. C. Mahan vs. Accommodation Bank of Louisiana.
    After hearing the parties the court below rendered final judgment rendering peremptory tho mandamus permitting relator to examine the books, papers, and affairs of the bank, but giving no permission for the appointment of experts to aid him. Subseauently the court made an ex parte order appointing two experts to aid relator.
    The court a qua erred in granting this supplemental order. It was not at the time in the power of the court to reopen the ease and make this order. The judgment had been signed ton days previously, disposing finally of the mandamus ease, and there was no suit pending in which the order in cuestión could be granted.
    from the Superior District Court, parish of Orleans. Haio-Icins, J.

      John Bay, for relator and appellee.

      Hays & New, for defendant and appellant.
   Wyly, J.

Relator, a stockholder of the defendant bank, being, as he alleged, unjustly denied access to the books, papers, and documents thereof, sued out a mandamus to compel the president and directors to permit him and such experts as he may desire to examine the books, papers, documents, and affairs of said bank, within reasonable hours, and without unnecessarily hindering the operations of said bank.

Several defenses were urged to this application for mandamus. Among others, it was alleged that the nature of the business conducted by said bank was such that it would prove injurious to its interests to permit relator to have the permission asked for to examine the books, papers, etc., in connection with experts.

After hearing the parties the court rendered final judgment, which was signed on the thirteenth of May, 1878, rendering the mandamus peremptory, permitting the relator to examine the books, papers, and affairs of the bank, but no permission was given for the appointment of experts to aid him.

Subsequently, to wit: on the twenty-third of May, 1873, the court made an ex parte order appointing two experts to aid relator in examining the books, papers, and affairs of the bank. From this order respondent has appealed.

Ve think the court erred in granting this supplemental order. It was not at the time in the power of the court to reopen the ease and make this order. The judgment had been signed ten days previously, disposing finally of the mandamus case, and there was no suit pending in which the order in question could be granted.

It is therefore ordered that the judgment appealed from be annulled at relator’s costs.


source: Caselaw Access Project

author: Morgan, J. Howell, J.

license: Public Domain

text:
    No. 4840.
    Bertha Louis vs. Widow Pepin, Tutrix, et al.
    'The motion to dismiss the appeal comes too late. It should have been made within three judicial days after the record was filed in this court.
    This suit is brought before the Sixth District Court against the minor heirs of J. J\ Pepin, to annul a lease for certain alleged causes and for damages. Defendants have excepted to the jurisdiction on the ground that, under the last clause of section 2011, Revised Statutes, it should have been brought in the Second District Court. The objection is not well founded.
    The last clause of the section aforesaid must be construed in connection with the preceding clauses and must be held to refer to all matters in which minors may be'interested in the course of the administration of estates falling to them. Any other construction would give the Second District Court exclusive jurisdiction of all suits in which minors might be interested in any degree, as plaintiffs and defendants, co-plaintiffs and co-defendants, which is inconsistent with the first clause of the section and the provision of the constitution on the subject.
    APPEAL from the Sixth District Court, parish of Orleans. Saucier, J.

      B. JR. Forman, for plaintiff and appellant.

      E. Bermudez, for defendants and appellees.
   On Motion to Dismiss.

Morgan, J.

The record was filed in this court on the fifth of November, 1873. On the twenty-second of December, 1875, appellees moved to dismiss the appeal, on the grounds that the transcript does not purport to contain all the proceedings had, documents filed, testimony and evidence adduced, in the suit, but merely such as was offered on the trial of the exception; that a number of documents forming part of the record of the lower court, and which the lower court had before it when it decided the exception, were omitted from the transcript, which should have been included therein, and that said omission is attributable to the appellant; that these documents would enable this court to revise the judgment appealed from, and are necessary to that end, and that the record being incomplete and mutilated by the fault of the appellant, the appeal should be dismissed. The motion comes too late. It should have been made within three judicial days after the record was filed here. 17 An. 21; 18 An. 191; 19 An. 276.

Motion dismissed.

On the MeRits.

Howell, J.

The only question in this case is one of jurisdiction.

A. Rochereau & Co., as agents of the tutrix of the minor heirs of ¿L E. Pepin, who reside in Prance, leased certain property to the plaintiff. A few months before the expiration of the lease the plaintiff brought this suit in the Sixth District Court to annul the lease for certain alleged causes, and for damages, making the tutrix and the agents parties defendant, who filed answers, and, after the case had been at issue for sometime, excepted to the jurisdiction of the court; and they rely on section 2011 R. S., which reads: “ The Second District Court shall be strictly a probate court, and shall have exclusive jurisdiction only of all successions and probate causes; and all appointments that may be necessary in the course of administration of estates, all matters relative to'minors,, persons interdicted, and to absentees, or in which they are interested, shall be made and carried on in said court.”

The whole section must be construed together. The first clause makes said court strictly a probate court, and subsequent clauses declare what its exclusive jurisdiction shall be; to wit, “ only of successions and probate causes,” and direct that “ all appointments that may be necessary in the course of administration of estates, all matters relative to minors, persons interdicted, and to absentees, or in which they are interested, shall be made and carried on in said court.”

This is clearly not a probate cause; nor is it contended that the succession of Pepin is -in course of administration in the Second District Court. It is alleged by the plaintiff that the minors are in possession of the property in question, through their tutrix, represented by her agents, Rochereau & Co., who executed the lease to her (plaintiff). Under these circumstances the presumption is a fair one that the heirs are in possession, in which contingency it is not denied that the Sixth District Court has jurisdiction, unless the law provides otherwise. Defendants contend that this is certainly a suit in which minors are interested, and that under the express terms of the last clause of the section it should have been brought in the Second District Court.

The minors would be equally interested in a suit by the tutrix against the plaintiffs for the collection of the rent, and yet it is not pretended that the Second District Court would have exclusive jurisdiction of such a suit.

We must construe this clause in connection with the preceding clauses, and hold it to refer to all matters in which minors may be interested in. the course of administration of estates falling to them. Any other construction would give the Second District Court exclusive jurisdiction of all suits in which minors might be interested in any degree, as plaintiffs and defendants, co-plaintiffs and co-defendants, which is inconsistent with the first clause of the section and the provision of the constitution on the subject.

It is therefore ordered that the judgment appealed from be reversed', the exception overruled, and the cause remanded to the lower court to be proceeded in according to law.


text:
    No. 6353.
    State ex rel. A. E. Carlon vs. the Judge of the Superior District Court, Parish of Orleans.
    'The relator complains that the amount oí three thousand dollars fixed by the judge a auo for a suspensive appeal, in obedience to a mandamus from this court, is excessive, and that a bond of five hundred dollars, sufficient for costs, is all that is required in a ease like this, where an injunction to prevent the disturbance of the possession of immovable property has been set aside and the suit dismissed on an exception to the jurisdiction.
    'It seems to this court that a b.ond of five hundred dollars, which respondent concedes to be sufficient to pay costs, will be sufficient for a suspensive appeal, the bond given to obtain the injunction being adequate to cover damages resulting from the injunction.
    APPLICATION for a writ of mandamus against the judge of 'the Su- . perior District Court, parish of Orleans.

      J. A. Bartlette, for relator.

      Judge Lynch, respondent, in propria persona.

   Wyly, J.

In this case this court issued a mandamus requiring the respondent to grant to relator a suspensive appeal in an injunction suit to prevent the disturbance of the possession of immovable property. The court below, complying with the command of this court, granted a suspensive appeal, fixing the bond at three thousand dollars, the relator already having filed a bond with the amount in blank. Relator now complains that the amount fixed by the judge is excessive, and that a bond of five hundred dollars, sufficient for costs, is all that is required in a case like this where an injunction to prevent the disturbance of the possession, of immovable property lias been set aside and the suit dismissed on an exception to the jurisdiction.

It seems to us that a bond of five hundred dollars, which respondr ent concedes will be sufficient to pay costs, will be sufficient for a sus-pensive appeal, the bond given to obtain the injunction being adequate to cover damages resulting from the injunction.

It is therefore ordered that the mandamus herein be made peremptory, requiring the judge of the Superior District Court to grant a sus-pensive appeal to relator on a bond for five hundred dollars with good and sufficient security.


author: Howell, J.

text:
    No. 4736.
    E. T. Merrick, Executor, et al. vs. David B. North.
    This suit is instituted by the executor and-the widow in community to compel a compliance ol the purchaser with the sale of certain property, and to recover certain charges and expenses, resulting, as alleged, from the refusal of the purchaser. The defense is, that the auctioneer and notary refused or failed to furnish said purchaser with the titles to the property for examination, and because the widow in community did not and would not sign the title tendered. He now contends that he was not properly put in default. This plea is not well founded.
    The record shows that the notary tendered him a title similar to the one decided to be good in the Davidson suit, except the clause " and, with the exception of the usual draining privilege, the property is incumbered by no mortgage in the name of said william Silliman,” the former proprietor. This was not a ground' of objection.
    It has been heretofore held that it was not necessary for the widow to sign the act of sale, and there is no force in the objection that the auctioneer and notary refused to furnish the titles for examination. It is not their duty to do so.
    The judge a quo erred in making the purchaser pay eight per cent interest on the cash payment. The law imposes only live per cent, there being no agreement to- . pay eight.
    The amount of the taxes paid is sufficiently proved, and by the terms of the sale the purchaser was to pay, in addition to his bid, the taxes of 1869, and was entitled to the rents and revenues from the first of November, 1869. The right to the rents from that date, which are allowed to the defendant, implies the obligation to pay the taxes subsequently accruing.
    The commission, however, for renting is not one of the charges to be paid by this purchaser. It did not result from any action of his, while it was the duty of the executor, for the interest of all parties, to rent the property if possible.
    The charge for notary’s fee to put defendant in default was properly allowed.
    The nature of the case does not authorize the court to make the defendant pay the-attorney’s fee for the plaintiff. The defendant, it is true, failed to meet his obligation, and it necessitated a suit to make him comply; but.this is the same position of most defendants who are sued to comply with their obligations. The demand is not within the provision of article 2316 R. C. C., and is not like that made in an injunction suit.
    APPEAL from the Fifth Difetrict Court, parish of Orleans. Cullom, J.

      Race & Foster, for plaintiffs and appellees.

      B. R. Forman and. Ogden. & Hill, for defendant and appellant.
   Howell, J.

At the succession sale of William Silliman, deceased', John Davidson purchased one store on Poydras street, but refused to comply with the terms of sale, on the ground of alleged defects in the title tendered. The property was offered again at his risk, and he enjoined the sale for the same cause. The suit was finally decided against him (see 24 An. 225), and the sale was made, when the defendant herein became the purchaser on the same terms. When called on to comply, he refused, because the auctioneer and notary refused or failed to furnish him with the titles to the property for examination, and because the widow in community did not and would not sign the title tendered „ This suit was then instituted by the executor and the widow to compel a compliance, and to recover certain charges and expenses resulting, as alleged, from his refusal. In answer, he set up the above grounds, the latter of which is the one set up in the Davidson suit, and decided not to be valid. Judgment was rendered against defendant, and he appealed. He now contends that he was not properly put in default. The record shows that the notary tendered him a title similar to the one decided to be a good one in the Davidson suit, except the clause “ and with the exception of the usual draining privilege, the property is incumbered by no mortgage in the name of said William Silliman.”

This was not a ground of objection to complying with the terms of sale when called on, nor a defense when sued, and we are not inclined to entertain it when urged here for the first time, as in the answer the defendant declared that “ he has no objections to completing the purchase of said property, provided Mrs. Silliman be decreed to join, and does join, in the act of sale;” ***** and prayed that “ plaintiffs’ claims be rejected with costs, and that the plaintiffs may be decreed to join in a conveyance of said property to respondent, with full guarantees, warrantees, and subrogation of warrantees, etc., of title, and for equitable and general relief in the premises.”

We have heretofore held that it was not necessary for the widow to sign the act of sale, and we can see no force in the objection that the auctioneer and notary refused to furnish the titles for examination. It is not their duty to do so. The defendant had access to the public records, of title to real property. We think he was duly put in default.

The judge a quo erred, however, in making him pay eight per cent interest on the cash payment. The law imposes only five per cent, there being no agreement to pay eight. The amount of taxes paid is sufficiently proven, and by the terms of the sale the purchaser was to pay, in addition to his bid, the taxes of 1869, and be entitled to the rents and revenues from first of November, 1869. The right to the rents from that date, which are allowed to defendant, implies the obligation to pay the taxes subsequently accruing. The charge for advertising is proven, and was properly allowed. Tlie commission, however, for renting is not one of tlie charges to be paid by this purchaser. It did not result from any action of his, while it was the duty of the executor, for the interest of all parties, to rent the property if possible. As to the purchaser, he might be viewed as negotiorum gestor, and as to the succession, he was acting under his executorship. The charge for notary’s fee for putting the defendant in default was properly allowed. There is nothing before us to show that plaintiff paid too much. The auctioneer’s commission has been remitted by plaintiff.

We do not think this such a case as authorizes the court to make the defendant pay the attorney’s fee of the plaintiff. The defendant, it is true, failed to meet his obligation, and necessitated a suit to make him comply; but this is the same position of most defendants who are sued to comply with their obligations. We are referred to no law which entitles the plaintiff to recover his attorney’s fee in this class of cases. The demand is not within the purview of article 2315 R. C. C., and is not like that made in an injunction suit.

It is therefore ordered that the judgment appealed from be amended by reducing the interest on the cash payment from eight to five per cent; by striking out item one hundred and fifty dollars commission for renting, and the item one thousand dollars for attorney’s fee, and that as thus amended the judgment be affirmed, appellee to pay costs of appeal..

Rehearing refused.


text:
    No. 6373.
    State ex rel. Gest & Atkinson vs. the Judge of the Superior District Court, Parish of Orleans, and J. B. Alexander.
    "The effect of the judgment complained of in this instance was to release a seizure which relators had mado in executing their judgment against the New Orleans, at. Louis, and Chicago Railroad Company, involving a sum exceeding five hundred dollars. That this court had appellate jurisdiction,'there can he no doubt. "Whether relators had the right to make the seizure, is a Question that will arise when the ease is heard on appeal. The court a aita erred in denying to relators their constitutional right of appeal.
    APPLICATION for a writ of mandamus against the judge of the Superior District Court, parish of Orleans.

      MoGlain & Nixon, for relators.

      C. T. Bemiss, for respondent.
   Wyly, J.

Relators having a judgment for over twenty-five hundred dollars against the New Orleans, St. Louis, and Chicago Railroad Company, caused execution to issue, and seized by garnishment process, in. the hands of certain persons, the sums due by them for freight to said railroad company.

L B. Alexander, alleging that he was appointed receiver of said railroad by the United States Circuit Court of the district of Louisiana, obtained a rule which, after hearing, was made absolute, requiring the interrogatories propounded by relators to the parties garnishee to be limited to such indebtedness as might be due by them prior to the eleventh of March, 1876, the period at which said Alexander was appointed receiver — -the decree virtually releasing the seizure of the funds, held by said garnishees subsequent to the eleventh of March, 1876.

From this judgment relators, having been denied a suspensive appeal, apply to this court for writs of mandamus and prohibition. The effect of the judgment complained of was to release a seizure which relators had made in executing their judgment against the New Orleans, St. Louis, and Chicago Railroad Company involving a sum exceeding five hundred dollars.

That this oourt has appellate jurisdiction, there can be no doubt. Whether relators had the right to make the seizure, is a question that will arise when the case is heard on appeal.

The court erred in denying to relators their constitutional right of appeal.

It is therefore ordered that the mandamus herein be made peremptory.


text:
    No. 6082.
    Benjamin S. Harrisson vs. S. Hernsheim, subrogated, vs. Carondelet-Street and Carrollton-City Railroad Company. Amos S. Collins, subrogated.
    At the trial of this ease Amos S. Collins, garnishee, proved that he resides in Car-rollton, lately a part of the parish of Jefferson, but by aet No. 71 of the acts of 1874 annexed to the parish of Orleans. By the statute in cuestión, although this part of the territory was annexed to the parish of Orleans, it still remained within the jurisdiction of the Second Judicial District Court. Therefore, although the garnishee resides within the parish of Orleans, he is not within the jurisdiction of the Kifth District Court, parish of Orleans. Dor this reason said court erred in overruling the exception of jurisdiction and rendering judgment against him.
    APPEAL from the Fifth District Court,- parish of Orleans. Oullom, J.

      Hornor & Benedict and F. W. Baker, for plaintiff and appellee.

      W. W. Edwards, for garnishee, defendant and appellant.
   Wyly, J.

Plaintiff having judgment in the Fifth District Court, parish of Orleans, against defendant, caused execution to issue, directed to the sheriff of the parish of Orleans, who made a general seizure in the hands of Amos S. Collins, to whom garnishment proceedings issued, also from said court.

Before answering the interrogatories, Collins, the garnishee, excepted to the jurisdiction of the Fifth District Court, which issued, the proceedings against him, and alleged that he resides in Carrollton, and within the jurisdiction of the Second Judicial District. At the trial he proved he resides in Carrollton, lately a part of the parish of Jefferson, but by act No. 71 of the acts of 1874 annexed to the parish of Orleans. By the statute in question, although this part of Jefferson was annexed to the parish of Orleans, it still remained within the jurisdiction of the Second Judicial District.

Although the garnishee resides within the parish of Orleans, he is not within the jurisdiction of the Fifth District Court of the parish of Orleans. The garnishment proceedings should have issued from the Second Judicial District Court, the court having jurisdiction of that part of the parish of Orleans where the garnishee is domiciled. He was. not compelled to go beyond the court of his own jurisdiction to answer the legal proceedings instituted against him. C. P. 162.

¥e conclude the court erred in overruling the exception of jurisdiction and rendering judgment against the garnishee, who is appellant.

It is therefore ordered that the judgment herein be annulled, and that this suit be dismissed at plaintiff’s costs in both courts.

Rehearing refused.


author: Wvly, J.

text:
    No. 6367.
    State ex rel. Anais de Bouchel, Widow Berens, vs. the Judge of the Second District Court, Parish of Orleans.
    under the circumstances of the case relator is not entitled to the relief she asks. The order which she obtained contradictorily with the parties in interest, requiring the sheriff to put her- in possession of the property which she alleges was adjudicated to her by the auctioneer at the partition sale, was suspended by a suspensive appeal.
    The answer to the assertion of relator that no appeal lies from an order of this kind requiring the sheriff to put a purchaser in possession of property adjudicated to him is, that said question can only arise in this court, which has jurisdiction of the order appealed from, until this appeal is disposed of by this court, the judge a quo has no jurisdiction to enforce the order or judgment in question.
    APPLICATION for a writ of mandamus and prohibition against the. judge of the Second District Court, parish of Orleans.

      J. A. Bozier and E. Bermudez, for relator.

      Judge Tissot, respondent, in propria per-sond.

   Wvly, J.

This is an application for writs of mandamus and prohibition. Relator complains that the judge refuses to enforce an order of his court requiring the sheriff to put relator in possession of a lot of' ground and certain buildings on St. Charles street in this city, which she purchased at a sale made by an auctioneer pursuant to an order of sale to effect a partition in the suit styled Cilina Boutté, Wife, etc., vs. Succession of F. P. Boutté. She also complains of an order of said judge on the tenth of August, 1876, authorizing the executors of E. P. Boutté to collect the rents of the property in question and apply the same to the payment of certain alleged privileged debts. In his answer the respondent avers that the property in question belonged to Charles P. Boutte and Francis P. Boutte in the ratio of one third and two thirds interest respectively. Each joint owner left a widow and heirs, present, of age and minors. It is averred that in answer to the rule why the sheriff should not put relator in possession of the property in question, the executors of F. P. Boutté and the executor of Ohas. P. Boutté alleged that the judgment of partition ordering the sale was absolutely void, because the widow and heirs of F. P. Boutté, all present, some of age and some minors, were not cited and were not parties to the partition suit, and the testamentary executors of F. P. Boutté were not authorized to represent them; that on the issue thus made the rule was heard, and was made absolute by judgment, which was signed on the twenty-fifth of May, 1876; that from this judgment the executors of F. P. Boutté, deceased, also the widow and heirs, took a suspensive appeal, giving bond in the sum of $10,000. The same parties also took a devolutive appeal from the judgment of partition; it is averred that on the seventh of June, 1876, relator took a rule to set aside the suspensive appeal granted, which was discharged after hearing the parties.

Under the facts disclosed by the judge in his answer, we are of opinion relator is not entitled to the relief that she asks. The order which she obtained contradictorily with the parties in interest, requiring the sheriff to put her in possession of the property which she alleges was adjudicated to her by the auctioneer at the partition sale, was suspended by a suspensive appeal.

Relator contends, however, that no appeal lies from an order of this kind requiring the sheriff to put a purchaser in possession of property adjudicated to him. To this the answer is, that question can only arise in this court, which has jurisdiction of the order appealed from. Until the appeal is disposed of by this court, the judge below has no jurisdiction to enforce the order or judgment in question. We can not command the judge to invade the appellate jurisdiction of this court, as he would be compelled to do in attempting to enforce a judgment pending here on a suspensive appeal.

It is therefore ordered that the application herein for mandamus and prohibition be rejected, and the petition be dismissed at the costs of the relator.


text:
    No. 6365.
    State ex rel. Mrs. N. Favre vs. the Judge of the Fifth District Court, Parish of Orleans.
    The appeal bond in this instance is for fifteen hundred dollars, and the surety swears that he holds and owns two promissory notes amounting to fifty-six hundred dollars, given for money loaned by him, on which the interest is regularly paid by the makers, and that he does not owe anything. The auestion is, whether he is a good and solvent surety aoeording to the law and jurisprudence of this State. It must be answered in the affirmative.
    The act No. 24 of 1876 amending article 676, C. P., has not made the surety insufficient. The change from the previous article is the insertion of the sentence: “And having property liable to seizure to the amount of the obligation within the State.”

    This court knows of no law and has been referred to none which exempts promissory notes from seizure. Hence the surety in this case is sufficient.
    APPLICATION for a writ of proMbition against the judge of the Fifth District Court, parish of Orleans.

      Gustavus Schmidt, for relator.

      Hornor & Benedict and F. W. Baker, for respondent.
   Howell, J.

To the writ of prohibition issued herein the district judge answers that, upon hearing the evidence touching the sufficiency of the surety on the appeal bond, he decided that said surety was insufficient and ordered execution to issue on the judgment from which a suspen-sive appeal had been taken.

The bond is for fifteen hundred dollars, and the surety swears that he holds and owns two promissory notes amounting to five thousand six hundred dollars, given for money loaned by Mm, on which the interest is regularly paid by the makers, and that he does not owe any thing.

The question is, is he a good and solvent surety according to the law and jurisprudence of tMs State ? Under the settled jurisprudence we would not hesitate to answer the question in the affirmative; but it is contended that act No. 24 of 1876 amending article 575, C. P., so changed the law as to make the surety insufficient. Said article, so far as it is material to this inquiry, reads: “ Provided the appellant gives his obligation, with good and solvent security, residing within the jurisdiction of the court, and having property liable to seizure to the amount of the obligation witMn the State, in favor of the court rendering the judgment for a sum exceeding by one half the amount for which the judgment was given, if the same be for a specific sum,” etc.

The change from the previous article is the insertion of the sentence “ and having property liable to seizure to the amount of the obligation within the State.”

The law prior to this, fixing the qualifications of judicial sureties, was contained in article 3042, R: C. C., which had been so interpreted as to justify a surety residing within the jurisdiction of the court, but whose property was out of the State, and this, we think, was the only change made in the qualifications required. Although the law did not in express words say that the property must be liable to seizure, yet the investigation in every case, and the action of the courts thereon, were had with reference to that fact, for it could not have been correctly held that a surety was sufficient who showed that all his property was exempt from seizure.

We know of no law, and have been referred to none, which exempts promissory notes from seizure. The records of our courts and reports of decisions present not a few cases where they have been seized, and we can not say that the difficulty and inconvenience of seizing them, so much discussed by the counsel, will authorize us in declaring them not liable to seizure.

We think that under the law and the jurisprudence of this State the surety in this case is sufficient, and it is therefore ordered that the prohibition herein be perpetuated.


author: Morgan, J. Leonard, J.

text:
    No. 6290.
    Felix Gottschalk vs. Henry Meyer, on a Rule against H. Redwitz, Surety.
    The object of the law in giving the creditor a right to prevent the departure of the debtor for the period of three months, is not that the latter may be finally imprisoned upon a writ of capias ad satisfaciendum, but to compel him to pay the debtor or to make an involuntary surrender of his property,
    whether the creditor’s remedy to compel a surrender be under the State or national law of bankruptcy, he has the same interest in enforcing the presence of his creditor, in order that this surrender may be effected, and although the State may be precluded, for the time being, from enforcing her own bankrupt law, she is not on that account prevented from affording her citizens the means of invoking the bankrupt law of the united States.
    Therefore it is not true that, inasmuch as the general bankrupt law of the united States has' superseded, for the time being, the insolvent law of this State, it follows that the purpose of the statute authorizing an arrest in civil eases can no longer be fulfilled, -and consequently that the bond sued upon is void.
    APPEAL from the Sixth District Court, parish of Orleans. Saucier, J.

      Labatt, Aroni & Clinton, for plaintiff and appellee.

      B. B. For-man, for Hugo Redwitz, surety, defendant and appellant.
   On Motion to Dismiss.

Morgan, J.

This case is to be governed by the decision heretofore rendered by us in the case of Redwitz vs. the Judge of the Sixth District Court, Parish of Orleans, lately decided. Opinion Book No. 45, p. '72.

For the reasons therein assigned the motion to dismiss is refused.

On the Meeits.

Leonard, J.

The plaintiff in this case sued the defendant, Henry Meyer, for the sum of $491 66, and coupled with his suit the conservatory remedy of arrest, alleging that the defendant was about to remove from the State permanently without leaving in it sufficient property to satisfy plaintiff’s demand. The defendant, having been arrested, was afterward released upon executing the bond required by law, Mr. Hugo Bedwitz becoming his surety. In due course of legal proceedings plaintiff obtained judgment for the amount, claimed in his petition. Execution thereupon issued, and was returned nulla bona. A rule was then taken upon the surety, Bedwitz, to show cause why he should not be condemned to pay the amount of plaintiff’s judgment against Meyer. From a judgment making the rule absolute the surety, Bedwitz, has appealed.

The bond executed by Meyer, principal, and Bedwitz, surety, contained the stipulation that the principal should not depart from the State within three months without the leave of the court, or, in case of such departure, that the defendant and his surety should pay to the sheriff the amount for which definitive judgment should be rendered in this case.

The defenses of Bedwitz are:

First — That Meyer was not legally arrested, because he was not a resident of New Orleans, nor was there any allegation that he was absconding from his residence.

Second — That the bond given by the plaintiff as a condition precedent to the issuance of the writ of arrest was not good and solvent.

These defenses, if they have any merit, could be properly urged only by a rule to quash the writ of arrest. They were, in fact, so urged, and were decided adversely to the pretensions of the defendant. This judgment is binding upon the surety. 14 An. 509; 10 An. 261.

The third defense is, that it is incumbent upon plaintiff to prove affirmatively beyond a reasonable doubt that Meyer left the State within three months of his arrest. This, we think, has been done. Even without the testimony of Mr. Forman, which is objected to as having been improperly received, there is evidence sufficient to establish the fact in question.

Again, it is contended by defendant’s counsel that the obligation of the surety in a case like the present is vain and useless, because the writ of capias ail satisfaciendum is abolished. To this it is only necessary to reply that the object of the law in giving the creditor a right to prevent the departure of the debtor for the period of three months is not that the latter may be finally imprisoned upon a writ of capias ad satisfacien-dum, but to compel him to pay the debt, or to make an involuntary surrender of his property.

Lastly, the objection is urged that inasmuch as the general bankrupt law of the nation has suspended, for the time being, the insolvent law of the State, it follows that the purpose of the statute authorizing an arrest in civil cases can no longer be fulfilled, and that the bond is therefore void. We can not assent to this proposition. Whether the creditor’s remedy to compel a surrender be under the State or national law, he has the same interest in enforcing the presence of the debtor, in order that this surrender may be effected. And although the State may be precluded for the time being from enforcing her own bankrupt law, she is not on that account prevented from affording her citizens the means of invoking the bankrupt law of the nation.

We have carefully considered all the grounds of defense which have been presented by the surety, and can discover no sufficient reason why he should not remain bound as he chose to bind himself.

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

Rehearing refused.


author:
Leoitabd, J.
      MORGAN, J.,

text:
    No. 6457.
    State ex rel. Mathieu Roques vs. William Fagin, Criminal Sheriff.
    In matters oí habeas corpus the jurisdiction of the Supreme Court is original ancl not appellate. The present ease is one in which this court may have appellate jurisdiction. Hence this writ of habeas corpus must be discharged.
    whether the injunction in the present instance, for the disobeying of which relator has been imprisoned, is well founded or not, is a matter to be determined on the trial thereof in the lower court and afterward on appeal.
    This court does not wish to bo understood as saying that relator has no remedy, if' he lias suffered a wrong at the hands of the lower court, but it is manifest that he can not be relieved in the present proceeding.
    APPLICATION for a writ of habeas corpus to be served on William Eagin, Criminal Sheriff, parish of Orleans.

      Charles 8. Bice, for relator.

      J. B. Cotton, for respondent.
   Leoitabd, J.

The relator, being in custody, prays to be discharged by this court on a writ of habeas corpus, alleging that he has been illegally imprisoned for contempt by the judge of the Superior District Court at the instance of one Charles Lange.

It seems that Lange obtained from the Superior District Court an order of injunction against Roques, alleging that the latter was conducting a private market to plaintiff’s detriment; that such conduct on the part of Lange was illegal and caused plaintiff an irreparable injury. The judge ordered an injunction to issue upon plaintiff’s' giving bond in the sum of two thousand dollars. Roques disobeyed the injunction, and was imprisoned in consequence.

The first question that arises is, has this court jurisdiction to grant a habeas corpus in such a case ? Article seventy-four of the constitution of 1868 declares that the Supreme Court shall have appellate jurisdiction only, except in the cases hereinafter mentioned.” Article seventy-seven declares that the Supreme Court and each of the judge's thereof shall have power to issue writs of habeas corpus in cases in which they may have appellate jurisdiction. This article of the present constitution is identical with article sixty-seven of the constitution of 1845 and article sixty-nine of the constitution of 1852. In the case of ex parte Mitchell, 1 An. 43, and State ex rel. Cook vs. Keeper of Parish Prison, 15 An. 347, it was decreed, in the language of Yoorhies, J., who delivered the opinion of the court in the latter case, that in matters of habeas corpus the jurisdiction of the Supreme Court is original and not appellate. ' Is the present case one in which we may have appellate jurisdiction? We think it is. The amount involved is. not merely the five hundred dollars damages claimed by plaintiff, but the interest of defendant in his present business, which largely exceeds five hundred dollars, as shown by his answer and affidavit. We therefore have jurisdiction by original proceeding, which the matter before us manifestly is (as no judgment of the lower court is appealed from), to inquire into the rightfulness of Roques’s imprisonment.

It is admitted by counsel for Roques that we can not' afford relief if the lower court had jurisdiction to grant the injunction. The Superior District Court is vested by the statute creating it with power to grant writs of injunction. Article 296 of the Code of Practice declares that “ injunction is a mandate obtained from a court by a plaintiff prohibiting one from doing an act which he contends may be injurious to him or may impair a right which he claims.” Lange swears that Roques is injuring him and impairing his rights. Whether the particular act which causes such injury or impairment is sufficient to authorize an injunction, is for the judge to whom application is made for the order to determine. Whether, also, the injunction in the present instance is well founded or not, is to be determined on the trial thereof in the lower court and afterward on appeal. If the order was improperly granted, Roques will have his remedy for damages on the bond. But he can not disobey the injunction with impunity while it is still in torce. We do not wish to be understood as saying that Roques has no remedy if he has suffered a wrong at the hands of the lower court, but it is manifest that he can not be relieved in the present proceeding.

It is therefore ordered that the rule for a habeas corpus be discharged at th^' costs of the relator, and that he be remanded to prison.

MORGAN, J.,

concurring. Passing over the question of the jurisdiction of this court, upon which it is not necessary for me to express an opinion, I agree with the majority that the Superior District Court has jurisdiction over the case out of which the proceeding now before us grew, and I therefore concur in the decree.

Howell, J., took no part in the decision of this case.


author: Morgan, J.

text:
    No. 6388.
    State ex rel. John A. Dardenne vs. the Judge of the Fifth Judicial District Court, Parish of Iberville.
    It is not necessary that the parish judge, acting in the absence of the district judge, should have caused to be taken a.rule to show cause before issuing tho injunction prayed for. There is nothing in the law upon this subject which roquires the judge to do this. The amount of the bond to be given is such as tho court may determino. This is a matter of discretion with the judge, which this court is not to interfere with.
    As to whether the parly enjoined is permitted to set aside the injunction upon giving bond, when the act complained of will not work irreparable injury to tho plaintiff who enjoins — which irreparable injury is not alleged — the question of irreparable injury is the only one which this court can examine on tho appeal applied for, and is therefore subject to its revision. The judge a quo erred in refusing said appeal.
    APPLICATION for a writ of mandamus and prohibition against the judge of the Eifth Judicial District, parish of Iberville.

      Barrow & Pope, for relator.
    Judge Deicing, in propria persona.

   Morgan, J.

Eelator obtained an injunction against tho sheriff of the parish of Iberville et ah, staying proceedings in an order of seizure and sale. The order was signed by the parish judge.

Application was made subsequently to the district judge to dissolve the injunction upon defendant’s furnishing bond, which was done. Brom this order relator prayed for a suspensive appeal, which the district judge refused to grant. Eelator asks for a mandamus compelling him to grant the appeal.

The district judge assigns many reasons why the rule should not be made peremptory, but most of them relate to the defense of the main suit, that is, the propriety of dissolving the injunction. These it is not necessary for us to consider, the only question before us being whether or not the relator is entitled to a suspensive appeal from the order setting aside the injunction upon the parties furnishing bond.

The first answer of the district judge is, that in his absence the parish judge granted the injunction without having caused the plaintiff in execution to take a rule to show cause why the injunction should not issue on a bond for one hundred and fifty dollars. It was not necessary that the parish court should have caused a rule to show cause to be taken before issuing the injunction. There is nothing in the law upon this subject which requires the judge to do this. The amount of the bond to be given is such as the court may determine. O. P. 304. This is a matter of discretion with the judge which we are not to interfere with.

The second answer is, that the party enjoined is permitted to set aside the injunction upon giving bond, when the act complained of will not work an irreparable injury to the plaintiff who enjoins. He says that no irreparable injury is alleged by the plaintiff in injunction. Therefore, he says, he was authorized to set aside the injunction upon the defendant in injunction furnishing a bond.

The question as to irreparable injury is the only one which we can examine on the appeal, and is therefore subject to our revision.

The rule is made absolute.


text:
    No. 4923.
    Mrs. Sallie J. Pinkston vs. Morse & Zunts.
    The intention of the testator is the law of this ease. That intention was: First — To give to each of the parties, three in number, named in a certain clause of the will, five thoxtsand dollars. Second — In case of the death of either or all of them, he willed that the shares bequeathed to them should go to the universal legatee. Third — Ho ordered that none of the legatees should be paid until the happening ■of a certain contingency. Neither of the contingencies has happened, and there is no possibility of its happening.
    It is also clear that the testator intended that his universal legatee should receive the legacies mentioned in ease the three legatees did not marry before they reached the age of twenty-one or did not reach that age. Two of them died before these contingencies happened. The amounts loft to them are therefore, under the terms of the will, to be gathered by the universal legatee, and not by the surviving sister and legatee, the plaintiff in this case.
    APPEAL from the Sixth District Court, parish of Orleans. Saucier, J.

      Clarice, Bayne & Benshaiv, for plaintiff and appellee.

      William H. Hunt;and J. A. Campbell, for defendants and appellants.
   Morgan, J.

This suit is based upon the following clause in the will of the late S. F. Slatter:

I hereby give and bequeath to the three children of my niece, Martha Hill Slatter, who married in Alabama, and is now dead, the sum of fifteen thousand dollars, payable to them by my executors in the following manner: Each of said three children, now residing, to the best of my knowledge and belief, in Montgomery county, Alabama, shall receive five thou, sand dollars, without interest; and in case of the death of either of said three children, his or her share, amounting to five thousand dollars, shall go to and be received by my universal legatee,-Hope H. Slatter; and I also will and direct that each of said three children shall receive his or her share of five thousand dollars when he or she marries or attains the •age of twenty-one years.”

The defendants are assignees of the universal legatee, and contend that the legacy to two of the three children has lapsed by their death subsequent to the death of the testator and before they reached the age of twenty-one years. The plaintiff is sole heir of her two deceased sisters, the three sisters being the three children of Martha Hill Slatter, mentioned in the will.

Mr. Slatter died on or about the fifth of July, 1861, the three children surviving. They were born respectively, Sallie J. Burch, twenty-fourth of November, 1856; Eanny, twenty-second June, 1853; Betty, thirteenth of August, 1854. Eanny and Betty both died in August, 1864; the plaintiff, Sallie, was married October 24, 1872. The legacy of five thousand dollars has been paid to her, and she now claims to be recognized as heir of her sisters for the remaining ten thousand dollars. No question is made as to the prematurity of the action, all parties desiring the settlement of rights.

If the will gave to the children whose rights are in question here the sum of five thousand dollars, to be paid when they, respectively, married or reached the age of twenty-one years, and stopped there, no doubt would arise in our minds as to the plaintiff’s rights. The time fixed for the payment of the legacies would only have been a term attached thereto, and those legatees who died before the term at which they were to have been paid had arrived would have transmitted their rights to their heir. But the will does not stop there. The testator had instituted a universal legatee, and he declared, with reference to the bequests which we are now considering, that “in case of the death of either of said three ■children, his or her share, amounting to five thousand dollars, shall go to and be received by my universal legatee, Hope H. Slatter.” The intention of the testator is the law of this case, “ voluntas testatoris totum .fecit.”

What was the intention of the testator ?

Eirst — He desired to give to each of the parties named in the clause of the will five thousand dollars.

Second — In case of the death of either or all of them, he willed that the shares bequeathed to them should go to his universal legatee.

Third — He ordered that none of the legacies should be paid until the happening of certain contingencies.

Neither of the contingencies has happened, and there is no possibility of its happening. It seems to us, therefore, that the plaintiffs are without a case. It is also clear to us that the testator intended that his universal legatee should receive the legacies mentioned in case the legatees-did not marry before they reached the age of twenty-one, or did not reach that age. It is admitted that they never married and that they had not reached the age of twenty-one when they died. The amounts left to them are, therefore, we think, under the terms of the will to be gathered by the universal legatee.

It is therefore ordered, adjudged, and decreed that the judgment of' the district court be avoided, annulled, and reversed, and that there be-judgment in favor of the defendants, with costs in both courts.

Rehearing refused.


author: MoegaN, J.

text:
    No. 5511.
    Mrs. Watrigant vs. Pierre Dufort et al.
    Plaintiff, for the four months during which the defendant after the expiration of his-lease occupied her property, is clearly entitled to a judgment for the rent, which was $125 per month.
    But tiie judge a quo awarded her damages beyond this, upon the ground that the property was returned to her at a season of the year when it was difficult to procure a tenant for the same. Ho allowed rent in the shape of damages from May until October. This is an error. There is no evidence that the plaintiff could hayo procured a tenant if she had been put in possession of the property on the day that the lease expired. The evidence is that October is a more favorable month for the leasing of property than May, but it is shown that even in the October following the date of the delivery, t-ho property was not leased, although offered for rent. Indeed, it is proved that plaintiff never found a tenant, but that she sold the property.
    APPEAL from the Fifth District Court, parish of Orleans. Gullom, J.

      JS. Bermudez, for plaintiff and appellee.

      Sambola & Bucros, for defendants and appellants.
   MoegaN, J.

Plaintiff is the owner of a certain property situated at the corner of St. Louis and Bourbon streets; this property she leased to the defendant, Dufort. The lease expired on the thirty-first of December, 1872. Dufort refused to give up the property. Plaintiff brought an ejectment suit, which was decided in her favor. From the judgment of the district court Dufort took a suspensive appeal. The bond furnished was for one thousand dollars, to respond to such damages as the plaintiff might sustain if the appeal went against the defendant. Alfred Broutin was security on the bond. The judgment of the district court was affirmed.

Four months elapsed between the time when the lease expired and the final decision of the cause. Plaintiff now sues Dufort, and Brontin, the security on the bond, to make them respond to the damages which the illegal detention of the plaintiff’s property by Dufort occasioned her.

The rent of the property was one hundred and twenty-five dollars per month. . Eor the four months which Dufort occupied the premises the plaintiff is clearly entitled to a judgment. But the district judge awarded her damages beyond this, upon the ground that the property was returned to her at a season of the year when it was difficult to procure a tenant for the same. He allowed rent in the shape of damages from May until October. But there is no evidence that the plaintiff could have procured a tenant if she had been put in possession of the property on the day that the lease expired. The evidence is that October is a more favorable month for the leasing of property than May, but it is •shown than even in the October following, the date of the delivery, the property was not leased, although offered for rent. Indeed, it is shown that the plaintiff never found a tenant for it, but that she sold it in June, 1874.

It is therefore ordered, adjudged, and decreed that the judgment of the district court be amended so as to reduce the same to five hundred dollars, with legal interest from judicial demand, and that as thus amended the judgment appealed from be affirmed, the costs of the lower court to be borne by the defendants, those of the appeal to be borne by the appellee.

Rehearing refused.


author: Leonard, J.

text:
    No. 4837.
    Chéri Verneuil vs. W. P. Harper, Sheriff, and C. Feitel.
    'The main Question in this instance is the one of res judicata.

    Xu the ease of Keitel vs. Verneuil it was decided, not only that the judgment should bo revived, but that 0. Verneuil, upon whom citation was served in the revival proceedings and who is the plaintiff in the present ease, was the identical person against whom judgment was rendered. This Question was litigated at the instance of Verneuil himself. It was solemnly decided against his pretensions, and he took no appeal, with what color of reason then can he present himself to the same court a few weeks later and ask that precisely the same Question should be again litigated between the same parties through an application for an injunction against a writ of seizure issued against him ? This court is bound to assume that the first decision was right. Bes judicata pro -veritate ac-cipitur.

    APPEAL from the Sixth District Court, parish of Orleans. Saucier, J.

      Dalton & Walker, for plaintiff and appellant.

      Thomas J. Cooley, for defendant and appellee.
   Leonard, J.

On the twenty-seventh day of August, 1863, Charles Eei-tel brought suit in the Sixth District Court for the parish of Orleans against one Verneuil, whose Christian name was unknown to petitioner, but whom he described to be the captain of the schooner Mary Agnes. On the second day of September following, citation was served, as the sheriff states in his return, “upon Captain Verneuil in person,” and on the twenty-third day of November, 1863, Judgment by default was made-final against “ Captain C. Verneuil ” for the sum of $531 77. On the first-day of October, 1872, Feitel instituted proceedings to revive his judgment, and caused citation to be issued to the defendant, which was served on “ Mr. C. Verneuil in person.” In obedience to this citation appeared Chéri Verneuil, who alleged, by way of exception, and subsequently in his answer, that he was not the Verneuil against whom judgment was-rendered in 1863; that he had never been cited in the original suit, and that he was not, and never had been, the captain of the schooner Mary Agnes. A considerable amount of testimony was taken bearing upon this question of identity. Defendant’s exception was overruled, and the-court finally rendered judgment in favor of the plaintiff, Feitel, decreeing-that the judgment previously rendered in his favor be revived against C. Verneuil, and that said Verneuil pay the costs of the proceedings From this judgment no appeal was taken.

On the thirtieth day of June, 1873, Feitel caused a writ of fieri facias-to be issued upon his judgment, under which the sheriff seized two lots, of ground in the Sixth District of the city of New Orleans, the property of Chéri Verneuil. The present suit was thereupon brought by Chéri Verneuil against Feitel and the sheriff, to restrain them from selling this property.

The judge a quo ordered the defendants to show cause why an injunction should not issue, and in the mean time caused the proceedings under the -fieri facias to be stayed. The petition for an injunction contains substantially the same allegations as those set forth in the exception and answer of Chéri Verneuil, filed in the proceedings for revival, namely,, that he was not the party against whom the judgment was rendered in the suit of Feitel vs. Verneuil, and that he has no interest in said suit,, except to procure the release of his property. To this action Feitel filed the plea of res judicata, alleging that the matters contained in plaintiff’s petition had already been adjudged in respondent’s favor in the suit of Feitel vs. Verneuil. The judge a quo maintained the exception, and ordered the preliminary injunction to be dissolved. From this judgment the plaintiff, Chéri Verneuil, has taken a suspensive appeal.

On the trial of the plea of res judicata in the court below the defendant, Feitel, offered in support of his plea the entire record in the suit of Feitel vs. Verneuil. The plaintiff objected to this evidence, on the ground that, according to rule xxii, of the rules of the district courts for the parish of Orleans, it is provided that, upon the trial of the rule nisi for an injunction, the defendant is permitted to file affidavits to contradict the sworn allegations of the petition, and that “ no other evidence shall be heard.” The judge a quo overruled the objection, and ordered the record to be admitted, and the plaintiff took his bill of exceptions.

We do not think-that the rule in question has any application to a ease' of this kind. The defendant does not seek to contradict the sworn allegations of plaintiff’s petition. He merely excepts that, admitting those allegations to be true, they have once been finally passed upon, and offers the only proper evidence, namely, the record, in support of his declaration.’ In our opinion, the judge a quo was clearly right in overruling the objection.

As regards the question of res judicata, it is true, as plaintiff’s counsel alleges, that the authority of the thing adjudged takes place only with respect to that which was the object of the judgment. In the present ease it is contended that the decision of the court was that the judgment in the suit of Feitel vs. Verneuil be revived against C. Verneuil, and that the result would have been precisely the same by default, if Cheri Verneuil had made no appearance whatever in the suit to revive the judgment against his namesake. But is it true that the judgment of revival was the only one that was rendered in the course of the proceedings ? That it was the final judgment can not be disputed, but interlocutory decisions may have the effect of res judicata as well as the final decree. An issue may be made up and litigated by way of exception as well as by an answer. The exceptor becomes, for the time being, the plaintiff. If he makes out his case, its benefits are secured to him; if he fails, he is bound by the decision of. the court, and can not set up the identical claim against the same party in a subsequent litigation. An illustration of this rule is' given by Merlin. If a party who has been condemned to pay a certain sum of money should afterward discover a receipt that he had once paid this identical debt, he could recover back the amount paid, even after having satisfied the judgment condictione incuWti, because good faith would not permit the creditor to exact the same debt twice. But this claim of payment could not be listened to after a final judgment, in case the plea of payment had been made and overruled. In that event the party condemned could not even set up a receipt which he had found after the judgment, because it would have been, decided not merely that' he was debtor, but that lie had not paid. JXouveau Repertoire, tome xii. section 1 ¡¡ 2.

In the present case it was decided not merely that the judgment in the case of Feitel vs. Verneuil should be revived, but that C. Verneuil, upon whom citation was served in the revival proceedings, and who is the plaintiff in the present suit, was the identical person against whom judgment was rendered at the suit of Eeitel in 1863. This question was litigated at the instance of Verneuil himself; it was solemnly decided against his pretensions, and he took no appeal. With what show of reason, then, could he present himself to the same court a few weeks later, and ask • that precisely the same question should be again litigated between the same parties through an application for an injunction ? We are bound to assume that the first decision was right. The presumption in such cases is in favor of the probity of the witnesses and the intelligence of the judge. Fes judicata pro veritate accipitur.

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


text:
    No. 4901.
    New Orleans Canal and Banking Company, J. H. A. Lagroue, subrogated, vs. John R. Pike, through His Executrix, Rebecca M. Pike.
    . In this suit, instituted in October, 1807, in the Fourth District Court, parish o£ Orleans, to revive a judgment rendered in said court against John R. Pike in December, 1857, citation was served upon Mrs. Rebecca Pike, who was the representative of the succession of said John R. Pike, at that time deceased. Before the day for answering had expired the case was transferred, on exception of plaintiffs’ counsel, to the Second District Court for the parish of Orleans, on the ground that Pike’s succession had been opened in that court and that it alone had jurisdiction of the cause. This was an error.
    In this ease the judgment was rendered in the Fourth District Court. It follows therefore from the text of the law itself that said court was the proper tribunal to revive its own judgment.
    It was manifestly never intended that the records of suits which had passed into Anal judgments should bo transferred from eoui't to court whenever any party interested saw proper to institute proceedings to preventtheir prescription, and the defendant or his representative should not have happened to be subject to the ordinary jurisdiction of the court which rendered the judgment.
    In the present case tho proceeding is not, strictly speaking, a suit against a succession, but merely a method of preventing the prescription of a judgment by a citation directed to the representative of the judgment debtor. It follows that this suit was improperly removed from the Fourth District Court, and that it should bo retransferred to that tribunal.
    Although no exception has been filed to the jurisdiction of the Second District Court, this court is nevertheless bound to notice ex proprio motu the want of jurisdiction in any of the inferior tribunals from which appeals may be brought before it.
    APPEAL from the Second District Court, parish of Orleans. Tissot, J.

      J. N. Brickell, G. W. Marr, and M. Emerson, for plaintiffs and ap-pellees.

      Fellows & Mills, for defendant and appellant.
   Leonard, J.

On the seventh day of December, 1857, final judgment was rendered in this case in the Fourth District Court for the parish of Orleans against John R. Pike for the sum of $583 33. On the fourteenth day of October, 1867, L. N. Lane, alleging that ho was the subrogee of plaintiffs, instituted proceedings to revive the judgment, and caused citation to be served upon Mrs. Rebecia M. Pike, who was the representative of tho succession of John R, Pike, at that time deceased. Before -the delay for answering had expired the case was transferred, on motion of plaintiffs’ counsel, to the Second District Court for the parish of Orleans, on the ground that Mr. Pike’s succession had been opened in that court, and that it alone had jurisdiction of the cause. The record of the suit was, however, mislaid, and was not filed in the Second District ■Court until July 1, 1872. On the next day Mrs. Pike, executrix, appeared in that court and excepted that the Fourth District Court was without jurisdiction to make her a party to the suit, and that the proceedings against her should therefore be dismissed.

The law under which the citation was issued to Mrs. Pike is as follows: Any party interested in any judgment may have the same revived at any time before it is prescribed, by having a citation issued according to law to the defendant, or his representative, from the court which rendered the judgment.” R. S., sec. 2813.

In this case the judgment was rendered by the Fourth District Court for the parish of Orleans. It follows, therefore, from the the text of the law itself, that the Fourth District Court was the proper tribunal to revive its own judgment. It was manifestly never intended that the records of suits which had passed into final judgments should be transferred from court to court whenever “ any party interested ” should see proper to institute proceedings to prevent their prescription, and the defendant, or his representative, should not happen to be subject to the ordinary jurisdiction of the court which rendered the judgment. If John R. Pike had been alive at the time of the institution of these proceedings, but domiciled in some remote country parish, would it be seriously contended that it would have been necessary to send the record to the court of his domicile in order to have the judgment against him revived ? In the present case the proceeding is not, strictly speaking, a suit against a succession, but merely a method of preventing the prescription of a judgment by a citation directed to the representative of the judgment debtor. It follows from these views that this suit was improperly removed from the Fourth District Court, and that it should be retransferred to that tribunal. It is true no exception has been filed by the defendant to the jurisdiction of the Second District Court, but this court is bound to notice ex proprlo motu the want of jurisdiction in any of the inferior tribunals from which appeals may be brought before it.

It is therefore ordered, adjudged, and decreed that the judgment of the Second District Court be reversed, and that this cause be now remanded to said court with directions to retransfer the same to the Fourth District Court for the parish of Orleans. It is further ordered that the costs of the Second District Court and those of the appeal be paid by plaintiffs and appellees.


author: Taliaferro, J. Wyly, J.

text:
    No. 6067.
    John Sexton vs. John McMahon, Tutor.
    Beyond her revenues, plaintiff had no right to make advances in order to educate the minor, his niece, and the tutorship is not liable on account thereof. Plaintiff, in a former suit, had judgmont for $363 30, the amount of revenues during the period he had the care and education of the child. He is not now entitled to judgment for the balance of his claim, although the court reserved his right to judicially claim it .in subseauent proceedings. The reserving of the right to claim the balance at a future time does not establish the correctness of the demand when the claim is made, nor does it authorize judgment on a claim for which the tutorship js not bound.
    APPEAL from the Second District Court, parish of Orleans. Tissot, J.

      Julien A. Seghers, for plaintiff and appellant.

      J. J. Finney, for defendant and appellee.
   Taliaferro, J.

The plaintiff brought suit in 1870 against the defendant as tutor of a minor child for the sum of $799 16, alleged to have been expended by him in furnishing the minor with necessary apparel, board, lodging, tuition, and school-books during the period of three years. This claim was established, and in June, 1872, the plaintiff recovered “judgment for $263 30, with legal interest from judicial demand, reserving to the plaintiff the right of claiming from the tutor the balance of his claim, say $533 86, in due course of administration of the minor’s property.” In February, 1875, the plaintiff filed a supplemental petition praying judgment against the tutor for the above-named balance of $533 86, 'with interest, etc.

The defendant answered denying any indebtedness to the plaintiff in his individual capacity or in his representative capacity of tutor, and, further, he alleged that plaintiff’s claim had been determined and adjudicated upon by the proper court, and referred to the judgment of the nineteenth of June, 1872, above referred to. The judgment of the lower court dismissed the demand set up in plaintiff’s supplemental petition, and the plaintiff appealed.

We think the judgment of the lower court correct. The plaintiff having already recovered judgment for the whole of his demand by the judgment of the nineteenth of June, 1872, had no legal right to sue again for an alleged balance due him.

Judgment affirmed.

On Rehearing.

Wyly, J.

Plaintiff, the uncle of Ellen McMahon, a minor child, in 1867 voluntarily undertook her support and education, the mother of said child being dead and her father being her natural tutor. Within the period of three years thereafter he claims he expended for her board,1 tuition, books, clothing, etc., the sum of $799 16. In June, 1870, he brought suit against the defendant, as tutor, to recover said sum, which he alleges inured to the benefit of said minor. At the trial it was shown that the revenues of said minor, during said period of three years, only amounted to $263 30, for which the court gave judgment, reserving to plaintiff the right subsequently to sue for the balance of his claim. In February, 1875, plaintiff filed a supplemental petition demanding the balance of his claim, to wit: $533 86. This demand after a hearing was rejected, and plaintiff has appealed.

“The expenses for the support and'education of the minor ought to be so regulated that nothing decent or necessary shall be wanting to Mm, according to his condition and his fortune. They ought never to exceed his revenues. But if the revenues are not sufficient to procure Mm an education, the tutor may cause a family meeting to be assembled in order to deliberate whether it be for the advantage of the minor that some thing should be taken from Ms capital in order to insure him the advantages of a liberal education.” Revised Code, art. 350.

It is shown that the fortune of this minor consisted of a small piece of immovable property, the revenues of which, after paying taxes and'insurance, amounted to ninety dollars1 per annum1. The fortune of the minor was such as not to authorize expenditures sufficient for a liberal education without the advice and consent of a family meeting. If defendant, the natural tutor, could not incumber the tutorship with a debt beyond the revenues of the minor, for a greater reason plaintiff, who had voluntarily undertaken the support and education of his niece, could not do so. Beyond her revenues, plaintiff had no right to make advances in order to educate the child, and the tutorship -is1 not liable on account thereof. Plaintiff had judgment for $263 30, the amount of revenues during the period he had the care and education of- the child. He is not now entitled to judgment for the balance of Ms claim, although the court reserved Ms right to judicially claim it. The reserving of the right to claim the balance at a subsequent time does not establish the correctness of the demand when the claim is made, nor does it authorize judgment on a claim for which the tutorship is not bound. Plaintiff, however, contends that he is entitled to have discussed the revenues that have accrued since the case was first tried, and if any have accrued, he is entitled to judgment against the tutorship for the amount thereof not exceeding the balance of Ms claim. The difficulty is, there is no foundation for plaintiff’s present claim. When he first sued, Ms rights against the tutorship, whatever they were, were fixed1; the obligation existed in its entirety. He had no claim for advances in behalf of the minor beyond the amount of the revenues of the property. The tutor could create no debt beyond it without the advice of a family meeting, for this would incumber the estate. We think the court below did not err in rejecting the demand of plaintiff.

It is therefore ordered that our former judgment herein remain undisturbed.


author: MorgaN, J.

text:
    No. 6360.
    State ex rel. Amélie Richard vs. Judge of the Parish Court of St. Charles.
    This court can not undertake to say in this proceeding whether or not the relator has any interest in the succession-of Bougere. If she has not, on the trial of this ease her appeal will he set aside. She alleges an interest, which she supports by an affidavit. If she has an interest, she is entitled to an appeal from the judgment which decides against her pretensions.
    The court can not examine in this proceeding whether the relator’s transferrer has, after the transfer or before, appealed from the judgment complained of. The transferee can not be controlled nor can her rights be influenced by any thing which her transferrer has done or may do subsequent to the transfer. The judge a quo erred in denying the appeal.
    APPLICATION for a writ of mandamus against the judge of the Parish Court, parish of St. Charles.

      Breaux, Fenner & Hall, for relator.

      Charles F. Claiborne, for respondent.
   MorgaN, J.

Belator alleges that she is the assignee of the interest of Élie Bougere in the succession of Erangois Bougere; that on the third of July, 1876, a tableau of distribution was filed by Achille D. Bougere, executor of Erangois Bougere; that on the nineteenth of July, 1876, the tableau was approved; that in due time he applied for a suspensive appeal from the judgment, tendering a sufficient bond, and that the appeal was denied him. He asks for an order directed to the judge of the parish court commanding him to grant the appeal. In answer to the rule nisi the parish judge says :

First — That it has been decided by this court that Élie Bougere (relator’s transferrer) had been divested of all interest in the succession of Frangois Bougere, and, consequently, that relator has no concern in the judgment from which she desires to appeal.

Second — That Amélie Bichard opposed the tableau from the judgment homologating which relator asks for an appeal; that from that judgment she might take, and has taken an appeal; and that she can not be permitted to take two appeals in the same case.

First — We can not undertake' to say in this proceeding whether or not the relator has any interest in the succession of Bougere. If she has not, on the trial of the case her appeal will be set aside. She alleges an interest, which she supports by affidavit. If she has an interest, she is entitled to an appeal from the judgment which decides against her pretensions.

Second — We can not examine in this proceeding whether the relator’s transferrer has, after the transfer or before, appealed from the judgment complained of. The transferee can not be controlled, nor can her rights be influenced by any thing which her transferrer has done or may do subsequent to the transfer. .The only question before us is as to the right of the relator to an appeal from the judgment which, she claims, illegally injures her. . *

We think she is, for the reasons stated.

It is ordered that the rule be made peremptory.


text:
    No. 6325.
    Neuville Bienvenu vs. Factors’ and Traders’ Insurance Company et al.
    The question presented is, has the appellant a delay or grace for filing the transcript after the day to which the return-day is extended, if such extended return-day is not a judicial though a legal day? It must be answered in the negative. It is well settled that no days of grace are allowed after the day to which the extension is granted, and the fact that such day is not a judicial-day can make no difference.
    APPEAL from the Sixth District Court, parish of Orleans. Saucier, J.

      Charles F. Claiborne, for plaintiff and appellee.

      Gibson & Gibson, for Factors’ and Traders’ Insurance Company.

      Hornor & Benedict, for Marchand.

      B. B. Forman, curator ad hoc, appellant.
   Howell, J.

A motion is made to dismiss this appeal on the ground that the transcript was filed too late. The appeal, taken by one of the defendants only, was made returnable on the third Monday, being the twentieth day of March, 1876. On the twenty-seventh of March, the return-day was extended to the third Monday (seventeenth day) of April, 1876. The transcript was not filed until the twenty-ninth of April. But the appellant contends that, as this court adjourned on Saturday, the fifteenth of April, to the first day of May, he had no opportunity of applying for a second extension, and therefore it was not his fault that such extension was not obtained, and the record being filed before the first judicial-day after the expiration of the first extension, he was in time.

The question presented is, has the appellant a delay or grace for filing the transcript after the day to.which the return-day is extended, if such extended return-day is not a judicial though a legal day ?

The question must be answered in the negative. It is well settled that no days of grace are allowed after the day to which the extension is granted, and the fact that such day is not a judicial-day can make no difference. The further time granted for bringing up the appeal, under article 883 O. P., is simply an extension of the days of grace, a postponing of the return-day by order of the court, which becomes fixed, if not moved or postponed by antecedent action of the court.

The presumption is, that the appellant has asked for all the time which will be required; and, if such be not the fact, the duty is on him to have it enlarged before the expiration of time given to him. The law does not accord any time of grace to the extended return-day, and the court is without authority to. grant it.

It is therefore ordered that the appeal herein be dismissed with costs.

Rehearing refused.


text:
    No. 6369.
    State ex rel. Winkelman vs. Judge of the Superior District Court.
    II the relator is to be injured, in the amount he avers, to wit: a sum exceeding: five hundred dollars, and the acts which he lears will be committed are illegal, it would seem that, upon his complying with the terms of the law, he would be entitled to an injunction.
    It has heretofore been held that where a rule has been taken to show cause why an injunction should not issue, and the judge passes upon that rule, his decision is subject to the revision of this court.
    APPLICATION for a writ of mandamus and prohibition against the judge of the Superior District Court, parish of Orleans.

      8. P. Smith & Tharp, for relator.

      Samuel P. Blanc, City Attorney, for respondent.
   MoegaN, J.

Relator instituted suit against the city and the Metropolitan police to enjoin them from interfering with him in the prosecution oí his business. He alleges that the damages which he will suffer from the action which he fears far exceeds the sum of five hundred dollars. The district judge ordered the defendant to show cause why the injunction should not issue. After hearing, the judge refused the writ. From this refusal of the judge to grant the injunction relator asked for a.suspen-sive appeal, which the district judge refused. He asks for a mandamus commanding the judge to grant the appeal.

If the relator is to be injured in the amount he avers he will be, and the acts which he fears will be committed are illegal, it would seem that, upon his complying with the terms of the law, he would be entitled to an injunction.

We have heretofore held that where a rule has been taken to show cause why an injunction should not issue, and the judge passes upon that rule, his decision is subject to our revision. Here there was a decision, and the amount in controversy exceeds five hundred dollars.

It is therefore ordered that the rule herein issued be made peremptory.


text:
    No. 6451.
    State ex rel. Bernard Barthe vs. Judge of the Superior District Court, Parish of Orleans.
    It has frequently been, held that an appeal will lie from an order refusing to allow the release on bond, under article 307, Code of Practice, of an injunction. Relator had the absolute right to an appeal from the judgment of which he complains, and it was the duty of the judge a quo to grant it.
    APPLICATION for a writ of mandamus against the judge of the Superior District Court, parish of Orleans.

      Charles S. Bice, for relator.
    Judge Lynch, respondent, in propria persona.

   Wyly, J.

This is an application for mandamus to compel the judge of the Superior District Court to grant relator a suspensive appeal from his interlocutory judgment refusing to allow relator to release on bond, pursuant to article 307 of the Code of Practice, the injunction which one Martin Lannes obtained to restrain relator from pursuing the operation of a private market, or the selling of fresh meat, fish, poultry, etc., within twelve squares of a public market, in violation of act No. 31 of 1874, known as an act to regulate private markets in the city of New Orleans.

It has frequently been held that an appeal will lie from an order refusing to allow the release on bond, under article 307 of the Code of Practice, of an injunction. Relator had the absolute right to an appeal from the judgment of which he complains, and it was the duty of the judge to grant it. C. P. 573.

It is ordered that the mandamus herein be made peremptory.


text:
    No. 5129.
    R. S. Welham vs. James G. Lingham.
    'The defense against paying the plaintiff the amount sued upon and alleged to be due on a contract of lease is, that plaintiff failed to make the repairs specified in the answer, after being notified, and, consequently, defendant abandoned the premises. The required repairs, it is shown, would not have exceeded fifty dollars. Defendant had not sufficient ground to violate the contract of lease. His remedy was to pursue the course pointed out by article 2691 of the Revised Code.
    APPEAL from the Fourth District Court, parish of Orleans. Lynch, J.

      J. N. Bridkell, for plaintiff and appellee.

      -T. J. Me Cay, for defendant and appellant.
   Wyly, J.

Defendant appeals from the judgment herein, compelling him to pay plaintiff the amount due on a contract of lease. The defense is, plaintiff failed to make the repairs specified in the answer, after being notified, and, in consequence, defendant abandoned the premises. The required repairs, it is shown, would not have cost exceeding fifty dollars.

We think defendant had no sufficient ground to violate the contract of lease. His remedy was to pursue the course pointed out by article 2694 of the Revised Code, which authorizes the lessee to make himself the repairs which the lessor was required but failed to make, after being notified to do so, and deduct the price from the rent. 3 R. 52; 4 R. 428; 5 An. 760.

Judgment affirmed.


author: Howell, J..

text:
    No. 6374.
    Jean Auguste Lahargue vs. E. Waggaman, Civil Sheriff, et al.
    The judgment appealed from Seems to be a final one on the Issues presented. The judge a quo had issued a temporary or preliminary injunction, or, as it is designated, a restraining order, which suspended the execution of a fieri facias. He heard evidence at the trial of the rule, and rendered judgment dismissing the . same and discharging the restraining order. This, therefore, disposes finally of the contest, and accordingly must be signed. By the jurisprudence of this court an appeal does not lie from a definitive judgment until it is signed.
    APREAL from the Fourth District Court, parish of Orleans. Lynch, J.

      Julien Michel, for plaintiff and appellant.

      Hornor & Benedict, for defendants and appellees.
   Howell, J..

A motion is made to dismiss this appeal on the ground, among others, that the judgment appealed from, being a final one, is not signed. The plaintiff applied for an injunction to restrain the sale of his property. The judge a quo granted a rule on the defendants to show cause, on a day named, why the injunction should not be granted, and, in the mean time, ordered a stay in the proceedings under the fieri facias in the hands of the sheriff. Upon hearing pleadings, evidence, and counsel, the rule and restraining order were discharged and the injunction refused.

This seems to us to be a final judgment on the issues presented. The court had issued a temporary or preliminary injunction, or, as it is designated, a restraining order, which suspended the execution of a fieri facias. He heard evidence at the trial of the rule, and rendered judgment dismissing the same, and discharging the restraining order. This disposed finally of the contest, and, according to art. 546 C. P., must be signed. By the jurisprudence of this court an appeal does not lie from a definitive judgment until it is signed.

It is therefore ordered that the appeal herein be dismissed at appellant’s costs.