text:
    No. 12,072.
    Mrs. Elizabeth R. Carroll vs. Charles V. Carroll.
    The rejection hy a court of a wife’s claim for alimony is unquestionably irreparable ; if erroneous it could not be repaired unless through appeal.
    In this State applications for alimony rest upon the articles of the Civil Code under control of judicial discretion of the court. The law in this State relatively to alimony does not materially differ from that of other States.
    When, at the time the wife’s claim for alimony at one hundred dollars per month had been disposed of by the District Court, it amounted to a sum in excess of that recxnired to give the Supreme Court jurisdiction, the appeal from a judge ment fixing amount of alimony will not be dismissed.

      Article 148, C. C., which provides that “the husband can not be compelled to pay * * * unless the wife proves that she has constantly resided in the house appointed by the judge,” must be read (subject to exceptional cases) in connection with Article 147, which declares that the wife shall prove her residence “ as often as she maybe required to do so.” The law designs that the wife shall be subjected to the supervision of the court, but on this matter the court must be left some discretion and control.
    If a husband object to the order fixing the domicile of the wife, he should proceed to have such order set aside directly, not collaterally.
    The order of court which assigns a domicile to the wife pending her action for a separation should not be used to her disadvantage.
    APPEAL from the Oivil District Court for the Parish of Orleans. Théard, J.

      W. 8. Benedict for Plaintiff, Appellant.

      Moise & Calm for Defendant, Appellee.
    Submitted on briefs April 7, 1896.
    Opinion handed down April 20, 1896.
   ON Motion to Dismiss.

The opinion of the court was delivered by

Nicholls, C. J.

Appellee has moved to dismiss the appeal in this •case on the ground that it appears on the face of the papers and record that the matters and things propounded in the pleadings and issues determined are not appealable to this court; that the alimony pendente lite demanded by a married woman in an action for separation from bed and board is not in its nature within the jurisdiction of this court. That the decree below is interlocutory and for less than two thousand dollars, and does not cause irreparable injury.

In April, 1874, the present plaintiff, the wife of the defendant, instituted a suit in the District Court for the parish of Orleans, in which she averred that her husband had abandoned the matrimonial domicil and had refused, and persistently refused, to support her, without justification or excuse. That he had ample means and expended the same for his own gratification and pleasure, while she was in necessitous circumstances and forced to rely upon friends for support and maintenance. The prayer of her petition was that defendant receive her at his domicile and furnish her, as his lawful wife, with the necessaries of life, according to his position and means, or in the alternative that she have judgment condemning him to give her aid and support in the sum of one hundred dollars per month. Defendant pleaded the general issue. Immediately after this, plaintiff, suggesting that considerable time would necessarily elapse before a trial could be had on the merits, prayed for a rule on the defendant to show cause why “a provisional alimony of one hundred dollars per month should not be allowed her, commencing from the filing of the suit and payable in advance. To this rule defendant excepted on the ground that the petition showed no ground for alimony, as the suit was not one for separation or divorce, and that alimony was only allowable in suits for separation or divorce pendente lite. The exception was overruled, and on trial thereof the rule was made absolute and defendant was adjudged to pay to the plaintiff alimony at the rate of one hundred dollars per month from the filing of the suit until the final determination thereof. The decree was signed on June 1, 1874, the original suit remaing in statu quo until January 25, 1884, when it was sought to be revived by judicial proceedings. After judgment of revival had been rendered by default, defendant, appearing, maintained that plaintiff was without right to stand in judgment in either the original suit or that for revival; that the original judgment and the judgment of revival were nullities and should be so decreed and set aside. The District Court sustained defendant’s contention and rendered judgment annulling the judgment of revival, and also the interlocutory decree of June 1, 1874, awarding alimony to the plaintiff pendente lite and rejecting plaintiff’s demands. She appealed, and this court affirmed the judgment on the ground that a demand by a wife for alimony is an incident of a suit for separation from bed and board or divorce. That it was accessory to it and inseparable from it. That an independent suit for alimony disconnected with and not growing out of a suit for separation from bed and board or divorce was an anomaly. 42 An. 1071.

On November 25, 1891, plaintiff brought a second suit against her husband. In her petition she recited the facts connected with the former litigation and its results and reiterated the allegations contained in her petition in the first suit. She averred that she was entitled to a judgment of separation from bed and board to date from the 22d day of April, 1874. In the course of her petition she averred that she was entitled [by reason of the abandonment of herself by her husband and by virtue and reason of the former proceedings and the proceedings she was then inaugurating] from said period of abandonment until a final divorce be granted to an alimony from her said husband in the sum of one hundred dollars per month. That her father, who had contributed the means for her support, was now dead, and that she had been sustained in life and was still being sustained by the aid and assistance of her mother at Ohurch Hill in Jefferson County, Miss., which was her present residence and which she desired assigned to her as such; she not having the means or friends in the State of Louisiana to locate therein and establish her domicile therein. Her prayer was that her husband be cited, and after due proceedings had by citation issued and of summons under the law (there being no matrimonial domicile by reason of his own act), that he be ordered to declare a matrimonial domicile, to live with her and support her in due accord with law, and otherwise to comply, with his contract and the law. That in the event of his refusal to do so, there be judgment of separation from bed and board with a view of final divorce between them. That alimony be granted to her in the sum of one hundred dollars per month, to date from and after the abandonment set forth in the petition, viz.: the 22d of April, 1874, and continuing to the date of final .divorce when granted in her suit then brought. That her domicile be assigned to her by the court at Ohurch Hill, Jefferson county, State of Mississippi.

Upon considering this petition the District Judge ordered that the residence of plaintiff’s mother, at Ohurch Hill, Jefferson county, Mississippi, be assigned to her as her domicile pending the proceedings.

The defendant, among other causes, excepted: That plaintiff’s petition disclosed no cause of action. That the court was without jurisdiction when plaintiff, for over twenty years, had been a nonresident of the State. That the court was without right, power or authority to fix the domicile of plaintiff outside of the State and the jurisdiction of the court — the intent of the law being that both the court and plaintiff should have plaintiff under their eye.

That the plaintiff had no right to have a domicile or residence outside of the State and yet demand alimony, as it was impossible for defendant to know anything of her. That for the court to take jurisdiction of the case in its condition as detailed by the pleadings would be against both the letter and spirit of the law, as the object of permitting a separation from bed and board was to enable the parties to be reconciled within a year before ñaal decree for divorce, if possible. The court sustained defendant’s exception of no cause of action,' in so far as plaintiff demanded alimony for a period previous to the institution of the existing suit. The other exceptions were overruled. Defendant then answered.

In reference to the particular question of alimony he averred that at the time plaintiff alleged she was in want she was living under the roof of one of the relatives of defendant, and was cared for as well as she could be, and during that time he was absent from the State seeking work. That he was poor, with limited means, and never had been a man of much means — that at the moment of filing his answer she had more means and lived in greater luxury than he did. That the plaintiff had no need of alimony and was well-to-do, and thar. her demand was made with a view to enable her to live in the luxury and comfort which comported with the wife of a wealthy man, when in truth she was the wife of a very poor man. That he was willing to have the plaintiff return to him if she were willing to return and live as became his means, which was less than one hundred dollars per month. That he stood ready to support and care for the plaintiff, and had always been willing to do so; but that she demanded more than he could give, and that if she 'was willing to accept what the defendant could give, he was willing to give to the full limit of his means, and whenever the plaintiff would come he would provide for and receive her. He prayed that- plaintiff’s demand be rejected. .

In February, 1895, plaintiff suggesting that the cause was fixed for trial, and that she was present in New Orleans to attend the same, the court assigned as her residence the Christian Woman’s Exchange.

On the 2d April, 1895, the District Oourt reciting that the cause had been tried upon its merits and submitted for adjudication upon due consideration of the law and the evidence, considering for reasons orally assigned that the plaintiff had failed to make the proof of abandonment required by Art. 145, O. 0., and that there was therefore nothing on which to base the ancillary judgment of alimony prayed for, ordered, adjudged and decreed that plaintiff’s demand he rejected as of non-suit. Plaintiff appealed from this judgment. This court, in May, 1895, reversed the judgment and remanded the cause for further proceedings, eitheh upon plaintiff’s demand for alimony pendente lite or upon the merits of the principal demand for a separation from bed and board as might be deemed preferable. The syllabus of the case is that “in case a trial is had and a judgment rendered in a suit for divorce, with which is also coupled a rule for alimony, the record leaves it in doubt whether the issue disposed of was the question of alimony or the merits, the purposes of justice will be best subserved by a reversal of the judgment and the remanding of the cause for a new trial.” 47 An. 1185.

On June 4, 1895, counsel of plaintiff suggesting the decree of the Supreme Oourt remanding the cause — the petition on file and the evidence before taken, and that plaintiff had no income for her maintenance during her suit for separation — that she resided at the domicile assigned her by the court — that her husband could well afford her one hundred dollars per month and was abundantly able so to do, obtained a rule upon defendant to show cause why alimony should not be paid her at one hundred dollars per month as prayed for in her petition on file, during her suit for a separation, and why execution should not issue therefor. This rule coming on for trial on June 21, 1895, the court ordered it to be dismissed for want of jurisdiction. On the 25th of June, 1895, plaintiff, averring that her health was impaired, prayed that during the recess of the court she have assigned as her residence that of her mother at Ohurch Hill, Jefferson county, Mississippi, or at her brother’s in Baton Rouge. The court declined this application, declaring it had no power to assign to plaintiff a residence outside of the parish of Orleans.

The action of the District Oourt dismissing plaintiff’s rule for alimony for want of jurisdiction was evidently based upon the fact of the pendency of the appeal in the Supreme Oourt from the prior judgment in the case, for on June 24 the rule was renewed upon counsel for plaintiff suggesting that the decree of the Supreme Court in the matter of that appeal h-ad become final. In July, 1895, Judge King, acting in the place of Judge Théard, absent (upon submission to him of a certificate of a physician declaring a change of climate and location was necessary)', signed an order authorizing the plaintiff to absent herself from her assigned domicile until the reopening of the court in November -r she holding herself, at all ¡times, through her counsel, subject to any orders the court might ■make.

On the 20th of January, 1896, the District Court rendered judgment upon the rule for alimony, stating that, for reasons orally ■assigned, the court was of the opinion that under the law and the evidence plaintiff was entitled to alimony to the extent it was then .•granted. It ordered and decreed that the rule for alimony be made absolute in so far only as to order defendant to pay to his wife, the plaintiff alimony pendente lite at the rate of thirty-five ■dollars per month from December 23, 1895. It further ordered and ■decreed that the rule as to the claim for alimony prior to the institution of the existing claim be discharged, and that, in other respects, •it be dismissed as in the case of non-suit. From this judgment ■plaintiff appealed and it is this appeal which defendant has moved to ■dismiss on the grounds stated.

In plaintiff’s second suit, filed November 25, 1891, she prayed for ¡alimony to date from the 22d day of April, 1874. On exception, that portion of this demand as claimed alimony prior to the suit then ■existing was dismissed. This ruling left the demand for alimony as from the date of judicial demand (December 4, 1891) in the second suit, still standing. The matter was not disposed of until January 20, 1896. At that time her claim for alimony amounted to a sum in excess of that required to give this court jurisdiction on appeal from a judgment adverse to the claimant. The wife had the right to have ■her claim passed upon as presented. If held good it would date back from the judicial demand in the suit.

Article 148 of the Civil Code declares that “if the wife has not a sufficient income for her maintenance during the suit for separation, the judge shall allow her a sum proportioned to the means of the husband.” A delay in bringing the rule to trial does not work a forfeiture of the allowance. The husband could force the trial if he chose. Our law relatively to alimony pendente lite does not materially differ from that of other States.

Bishop on Marriages and Divorce, Vol. 2, Sec. 424, says: “Alimony pendente lite is commonly made by the terms of the order itself to commence from the return of the citation. This is the true rule, for till then the wife may be considered as able to obtain subsistence on the credit of her husband. But it may be directed to begin earlier or later * * * Sec. 425.” “The temporary alimony may be awarded at the final decree, to commence with the bringing of the suit.”

In American and English Encyclopedia of Law, verbo Alimony, p. 477, under the heading “When alimony pendente lite ceases,” it is stated: “ Alimony pendente lite may begin as soon as the husband is in court, and if the court does not annul the decree it continues as long as the suit is pending, but ceases when the suit is dismissed.” A number of authorities are cited in a foot note under this heading to the effect that such alimony may be made to take effect from the beginning of the suit. In Swearingen vs. Swearingen, 19 Ga. 267, Lumpkin, judge, said: “ Was it error in the court to make the allowance of alimony to relate back to the commencement of the suit. We see no objection to this. It is usual and proper in such cases.”

As the wife had at the trial of the rule the legal right to present her-demand for alimony as one dating from judicial demand, we think so far as the question of appeal is dependent upon the amount in controversy the motion for dismissal herein is not well taken. •

The next objection urged is that the judgment is interlocutory in its character and does not work irreparable injury. From certain standpoints the judgment is interlocutory. It may, after having been granted, be modified or annulled by changing conditions by summary motion or petition in the original cause, not by a new proceeding (Bishop on Marriage and Divorce, Sec. 438), or may, after having been refused, be renewed and allowed, but none the less it may, under some circumstances, become res judicata and preclude the parties from going behind the decree in reference to it unless appealed from. Thus we find in Frazier-Herman, under Art. 269 of the Code Napoleon, the following decision noted:

Jugé que si le conjoint demandeur n’a point appelé du jugement provisoire qui a déterminé le chiffre de la provision alimentaire que doit lui payer 1’autre époux pendant la durée du proeés il ne peut ensuite sur l’appel du jugement definitif demander qu’une allocution plus considérable lui soit accorded. Douai, 19 Novembre, 1846 (S. 48, 2, 522, P. 48, 2490). See on this point Imhof vs. Imhof, 45 An. 717.

An appeal from the main judgment would not carry up this particular order rendered prior thereto on a special rule. We think that the rejection by a court of a wife’s claim for alimony is unquestionably irreparable. We do not know how, if erroneous, it could be repaired, unless through appeal.

It is urged that the order as to alimony rests in the discretion o£ the court below. That is true. It does so to a very great extent; we so declared in the case cited (45 An. 717), and we would not. lightly disturb a judge’s ruling on that subject, but this doctrine must, not be carried to the extent of cutting off or barring absolutely the-right of appeal. Bishop, Vol. 2, Sec. 406, says: ‘‘ The ad interim alimony and money for the suit’s expenses are given not as of strict right in the wife, but of sound discretion in the court. Yet the discretion is judicial, not arbitrary. When exercised fairly and without abuse by the trial court it will not ordinarily be interfered with on appeal. Yet it will be where substantial rights have been impaired — a doctrine the precise limits of which in our States are not quite uniform. What is a judicial discretion we said in another connection (Vol. 1, Sec. 830), therefore, when the application is brought within the principles ordinarily recognized as entitling the wife to an allowance it was given pretty much as of course and usually without inquiry into the merits of the cause.” The views'expressed by this court in the case of Imhoff vs. Imhoff were made not upon a motion to dismiss, but after submission of the case and investigation.

In this State an application of that kind rests upon, sections of the Oivil Oode and are controlled by the judicial discretion of the court. We are of the opinion that the appeal taken in this case should not be dismissed.

The appeal is maintained.

On the Merits.

Appellee has asked no amendment of the judgment. It can not therefore be altered to the prejudice of the appellant. We are to inquire whether there be anything to the prejudice of the appellant in the judgment. We are inclined to believe that in fixing the date from which it accorded alimony as of the day of the trial of the rule, the court was following what it conceived to be an inflexible rule of action as having been announced by this court in Suberville vs. Adams, 47 An. 68, to the effect that “ in al’l cases where a wife who has brought a suit for separation from bed and board from her husband demands alimony pendente lite, it is part of her case to establish affirmatively that she has during the whole period for .which alimony is asked remained constantly at the domicile assigned her, •and this, though no question had been raised by the husband on that subject.” The pleadings and facts in the Suberville case presented the question to us from an exceptional standpoint, and it was from that standpoint that the remarks of the court must be viewed and construed. The plaintiff in that suit sued his wife for a divorce, charging her with adultery; the wife denied the charges, and assuming the character of plaintiff in reconvention, prayed herself for a separation from bed and board, grounding her demand upon allegations of cruel treatment and outrages toward herself of such a nature as to render their living together insupportable; that he had deserted and abandoned the matrimonial domicile, leaving her destitute, and afterward resorted to a simulated and fictitious sale of the family homestead in ■order to dispossess her of the premises, and that he had since failed ■to contribute to her support. During the course of the trial, plaintiff offered testimony in rebuttal to disprove the allegation that he had driven her from the matrimonial domicile and to show that she had herself abandoned it in consequence of having been discovered in adultery. The court below refused to allow the evidence on the ground that it was not admissible under plaintiff’s allegations. The District Court rendered judgment in favor of defendant on the plaintiff’s demand, and also in her favor upon the reconventional demand, decreeing a separation from bed and ordering plaintiff to pay her alimony at the rate of sixty dollars per month during the pendency of the suit. Plaintiff appealed. On appeal this court affirmed the judgment in favor of defendant upon the main demand, but reversed it as to the reconventional demand and the claim for alimony, on the :ground that plaintiff should have been permitted to introduce ■the evidence not in support of his action, bub bo break • down the claims of the defendant. The case was remanded for a new trial ■on those particular branches. Referring to the claim for alimony ,;pendente lite advanced under these circumstances and conditions, the ■court said it was of opinion that “ plaintiff could nob be compelled to ¡pay this allowance if the record disclosed that no domicile ¡had been assigned the wife pendente lite, as the evident object of the law is to provide her the means of maintaining a separate domicile ‘ during the suit for separation, ’ the selection of which the suit renders necessary. Inasmuch as the.defendant confessedly left the domicile of her husband without obtaining from the judge an order assigning her domicile pending her suit, it was manifestly impossible for her to make the proof required of her as a condition precedent to her recovery of alimony against her husband. It was of no consequence that the plaintiff did not urge formal exception or objection on this score in limine; the phraseology of the statute clearly imposes the burden of proof on the defendant to establish this essential ingredient of the demand and the plaintiff had a perfect right to rely upon her failure to discharge it as a substantial defence to the effect that he could not' be compelled to pay her his allowance otherwise. On the state of the controversy thus formulated,'we think the defendant’s reconventional demand for alimony should be disallowed and rejected.”

It will be seen that in case there was an utter absence of any assignment of a residence to the wife; also that the husband had made a direct attempt to offer evidence in rebuttal to establish that fact, which was an important one in the determination of the relations of the parties in that particular case. The ease came to us under the gravest charges against the chastity of the wife sought to be shown. “We dealt with the matter upon the hypothesis only that the plaintiff might have some evidence to support his charges — not that there was any actually produced. We say this in justice to the defendant in that case whose claim was that the charges against her were totally groundless and the result of a conspiracy between her husband and others against her. In the case at bar there was an assignment by the court of a residence to the wife and the case comes to us thoroughly free from complaint of any kind by the husband against her. There was nothing in the pleadings and nothing in the offer of the testimony by the husband in the District Court calling in question the fact of her having conformed to the orders of the court. The husband presents that question tardily when he raises it before us on appeal. We must presume, as matters stand, that he did not conceive the wife to have been at fault in this respect. We are of ihe opinion that Art. 148 of the Civil Code must be read (subject to exceptional eases) in connection with Art. 147, which declares that the wife shall prove her residence “as often as she may be required to do so.”

This court has not been inclined to construe these articles with the rigidity which defendant’s counsel contends for. Jolly vs. Weber, 36 An. 678.

The law designs that the wife shall be subjected to the supervision of the court, but over this matter the court itself must be left some dlsci’etion and control. The defendant seeks collaterally to call in question the exercise by it of that power in this particular case, first in establishing plaintiff’s domicile outside of the State, and next in having given her a general permit to absent herself during the recess of the court on account of her health. If defendant thought the. orders on this subject improper he should have sought to have them set aside. Defendant says the court was without authority to fix the residence of the wife outside the territorial jurisdiction of the court. The article of the Code Napoleon which correponds with with Art. 14V of our Code has been the subject of considerable discussion in France. Fuzier-Herman, under Art. 268, C. N., says: “Suivant la plupart des auteurs les juges ont un pouvoir souverain pour déterminer d’aprés les circonstances et bienséances le domicile provisoire de la femme et le fixer mSme en dehors de l’arrondissement judiciaire. Favrard Rep., Vo. “ Separation entre époux, Sec. 2, No. 6; Marsol, 156, No. 9; Chauveau sur Carre, No. 2974 Demolombe, T. 4, No. 456; Devilleneuve note sur Rennes, 3 Avril, 1851 (S. 51-2, 721). Whether or not the power goes so far as to authorize the fixing of the residence of the wife, not only outside of the judicial district but outside of the State, as was done in the original order in this case, need not be determined, for the court had authority to subsequently modify it and did so. It is true that the terms of the permission granted by Judge King to the plaintiff in this case to absent herself from the' Christian Woman’s Exchange during the summer were general, but we are not informed that any improper advantage was taken of them. The court’s order-should not be used to her disadvantage. Actus curias non gravabit. The wife being plaintiff in the suit could always be controlled through the power vested in the court under Articles 147 and 148, C. C.

We think the District Court erred in fixing as the date from which alimony should be made to commence (if the situation of the parties was such as otherwise to call for it) as of the day upon which its judgment was rendered, but that it should have commenced to be exigible from judicial demand in the suit filed 25th November, 1891, in the District Court. The District Court has not passed upon the pecuniary situation of the parties during that period, and we are not satisfied with the condition of the record on that subject.

For the reasons herein assigned it is hereby ordered, adjudged ■and decreed that the judgment appealed from, in so far as it orders the defendant to pay plaintiff alimony pendente lite at the rate of thirty-five dollars per month from December 23, 1895, be and the same is hereby affirmed, but it is amended so as to leave open for future examination and decision by'the District Court the claim of the plaintiff for alimony between the 25th day of November, 1891, and December 23,1895, and the case is remanded to the District Court with instructions to make such examination and decision under the views herein expressed; appellee to pay costs of appeal.


source: Caselaw Access Project

author: Miller, J. Wateins, J.

license: Public Domain

text:
    No. 12,148.
    The State ex rel. Joseph Cosse et als. vs. The Judge of the Twenty-second Judicial District Court et al.
    The courts exert control over public officers with ministerial duties connected with elections, and by the writs designated by law will compel the performance of such purely ministerial duties.
    QN APPLICATION for Writs of Certiorari and Prohibition.

      E. Howard MeCaleb for Relators
    cites: 69 Fed. Rep. 862-3; 6 Wall. 50; 13 An. 90; 78 111. 261, et seq.; Merrill on Mandamus, par. 61; 25 An. 264; 82 Ill. 119; 28 An. 705.

      James Wilkinson for Respondents.
    Submitted on briefs April 15, 1896.
    Opinion handed down April 20, 1896.
   The opinion of the court was delivered by

Miller, J.

Under the election act of 1894, No. 181, the police jury is to establish the precincts and number of polling places in the wards of the parish, as many as deemed requisite, provided there shall never be less than one precinct, and the authority is given the jury to subdivide the ward, each subdivision to constitute a precinct. When this duty shall have been performed, the statute prohibits any change in precincts and polling places, except by a vote of two-thirds 'of all the members of the jury, and it is exacted the changing ordinance is-to have the sanction of the two-thirds vote at two different jury meetings. This provision against changing, except under the restrictions stated, is manifestly to guard against improper changes of precincts and polling places once established, known to the voters,, and the policy of the statute is further marked by the prohibition of any such change within six months preceding a general election.. See Secs. 9 and 10 of the act.

The act requires the supervisors of election to give ten days’ notice of every election by posting at each polling place to designate the polling places in the precincts established by the jury, and the-appointment of the commissioners and clerks is directed to be made-by the supervisors, the commissioners to be selected from opposing-political parties. Act No. 181, Secs. 8 and 13.

The action of the lower court, we are called on to review, was-based on the petition of a citizen and candidate for police juror, alleging, substantially, that the police jury, without observing the requisites of law as to the vote required or method of legislation exacted by the act, had undertaken by ordinance to change the limits-of the Eighth Ward, and abolish one of the precincts of the Ninth Ward; that the supervisors of elections under the ordinance propose to locate only one polling place in each of the wards, instead of two as they existed in the election of November, 1894, the first general election after the passage of the election law; the petition alleged that the ordinance making the change was void and the proposed action based on it of the supervisors equally illegal; it was further averred the supervisors had been called on to make selection of good and competent Republican commissioners as by the act required, had refused to state they would comply with the request; and the intention not to make the appointments, but to deny accorded by law to the Republican party was charged with some detail. The relief prayed was a mandamus to compel the supervisors to locate the limits and polling places as they existed prior to the ordinance assailed; and requiring the supervisors to appoint Republican commissioners. An injunction to restrain the execution of the changing ordinance was sought, but that application was withdrawn. The answer in the lower court, and the petition of the supervisors in this court, insists the lower court had no jurisdiction of the issues; that officers clothed with functions connected with elections can not, be controlled by the courts and on this theory we are asked to review and annul the proceedings of the lower court.

The courts have no power to control official action involving the ■ exercise of discretion to be exerted by the officials without limit or-qualification. In this case, if, as charged in the lower court, the ordinance changing the precincts and polling places was passed as-charged, and not denied, without conforming to legal requisites, it-was of no validity, and the precincts and polling places remained as they were before. The duties of the supervisors under the law— were purely ministerial in all respects connected with this controversy — that is, to designate polling places in the wards or subdivisions fixed by the jury, give the notice of election, and make the appointments of commissioners. We can not assent to the proposition that public officials clothed with ministerial functions connected with elections are beyond jndicial control. With due appreciation of the authorities submitted, in our view the supervisors are under the control of the courts with respect to the functions imposed on them involved in this controversy. The other view would displace the-methods of conducting elections provided by law, and substitute the volition or caprice of the official.

In this case there was no proposition to take from the supervisors the selection of the commissioners under the restrictions of the statute. The judgment of the lower court was that the supervisors should locate the polling places, post notice and appoint commissioners in the eighth and ninth wards as fixed in the November election of 1894.

We think the lower court had the jurisdiction to make this decree, and it is only the question of jurisdiction that we can consider on this application. The application to this court is denied.

Dissenting Opinions.

Wateins, J.

Upon mature reflection, I am satisfied that the controversy in the respondent’s court, of the proceedings in which the relators complain, were and are purely political, and of which he had no jurisdiction, and our writ of prohibition ought to be made • perpetual. State ex rel. Woodruff vs. President, etc., 41 An. 846; State vs. Judge, 13 An. 89; State ex rel. Bonner vs. Lynch, 26 An. 269; State ex rel. Moncure vs. Dubuclet, 28 An. 698; Revised Statutes, Secs. 1417 to 1435, as amended by Act 106 of 1882.

The duties of police juries, with regard to the selection of polling places and the like, are vested by the election law in the discretion of those bodies as political functionaries. Secs. 9 and 10 of Act 181 of 1894; State ex rel. Blackman vs. Strong, Secretary of State, 32 An. 173.

McEnery, J., also dessents.


author: Miller, J.

text:
    No. 11,912.
    C. J. Fayssoux vs. Henry Denis.
    ^Assessments against tlie property owner for the cost of the banquette or paving • laid in front of his property under the provisions of the city charter are not taxes in the meaning of the articles of the Constitution, defining the jurisdiction of this court. Art. 81; 9 Rob. 333; 2 An. 330; 1 An. 1; 21 An. 51; 20 An. 499; Act No. 20 of 1882, Secs. 32, 33.
    APPEAL from the Civil District Court, for the Parish of Orleans. Monroe, J.

      W. B. Lancaster and Jno. Q. Flynn for Plaintiff, Appellee.
    Defendant in •propria persona for Appellant.
    On the Motion to Dismiss.
    'The Supreme Court has jurisdiction of all cases in which the legality or constitutionality of a local assessment is at issue, whatever may be the amount. State ex rel. Hill, 46 An. 1292.
    'The charge imposed upon a property holder for the paving of a street opposite his property is a local assessment.' 36 An. 549; Burroughs on Taxation, Chap. XXII; Cooley on Taxation, Chap. XX; Dillon on Taxation, Vol. 2, p. 1211.
    Argued and submitted April 9, 1896.
    Opinion handed down April 20, 1896.
    Rehearing refused May 4, 1896.
   The opinion of the court was delivered by

Miller, J.

This suit is to recover from defendant the amount •claimed to be due for paving in front of his property, laid by plaintiff under his contract with the city to perform the work at the cost ■of the front proprietor, as provided in the city charter, Act No. 20 of 1882, Secs. 32 and 33. From the judgment against defen Jant he •appeals. The amount sued for is not sufficient to meet the jurisdictional test as to money demands brought here by appeal, and there is a motion to dismiss. The defendant contends the payment demanded is a tax, the legality of which is in contestation, and this issue is within our jurisdiction, irrespective of the amount for which this suit is brought. Const., Art. 81.

The argument for the defendant maintains that the liability of the property in this class of eases is to be supported only on the authority of the city to levy what are termed local assessments, and that class of exactions is, he insists, taxes in popular significance and are so treated in the text-books and decisions. In this connection we are referred to Burroughs and other writers on taxation and to the ■decision of this court in Hill vs. Judges, 46 An. 1292. Itis true that local assessments, resting as they do with other conditions, on the ■compulsion of the law, are treated as part of the taxing power, but not subject to the restrictions of limitation or uniformity to which the tax in its ordinary significance is subject. Burroughs, Chap. 22 ; Yeatman vs. Crandall, 11 An. 222; Draining Co., praying, etc., 11 An. 338. The fax is levied for the public benefit; the local assessment for the improvement of the property of the individual, and payment is exacted solely on the theory that he receives the benefit, not participated in by the community, at least, to the same extent. Taxes are levied, too, solely by virtue of the law conforming to the Constitution. No system of local improvements is enforced without some reference to the assent of the owner, for whose advantage the banquette or street paving or other supposed improvement is furnished. It is true the assent of the majority or other proportion of the owners, fixed by the law, is made to bind those who object. But still there is the substitution of the will of the majority, for the consent of all or other similar requirement to make binding the local assessment. In this respect the assessment differs from the public tax, ■effective simply and only because the constitution authorizes and the law directs it. Under the city charter, the paving must be petitioned for by property owners, and if after due publication is not. opposed by the majority, is ordered by the Council. While, therefore, the local assessment is deemed a tax, it is distinguished from, the public tax by marked differences. The tax as usually understood is levied by the law alone, not for the individual but for the public-benefit. The local assessment is enforced by the law, but based on the consent of the owners to the extent required by the statute, and is levied for the advantage, the law presumes, of those on whose property the assessment is imposed. The difference-between the tax levied for the benefit of all and the local assessment imposed for the profit of the individual,, and the conditions not required for the public tax, but indispensable to exact the local assessment, are so prominent that in common parlance the word tax is not applied to the liability of the owner for cost of the banquette or paving in front of his property. The Constitution is supposed to use words in their usual acceptance, and under that familiar rule of interpretation we do not feel authorized to attribute to the constitutional grant of jurisdiction to this court a. meaning not, we think, in contemplation of the framers of the organic law. On a very recent occasion we had occasion to affirm the-jurisdiction of this court of controversies respecting the constitutionality of the levee taxes. Our predecessors held such questions-not within our jurisdiction. These levee taxes are certainly called local assessments in the statutes, and belong to that class of exactions. Constitution, Art. 214; Act No. 79 of 1890, and the other Levee-Board Acts. These taxes are, however, levied for the public benefit, to protect the State from overflow, as well as to shield the land of' the owner from the flood. The levees are part of the general system of taxation provided by the Constitution and exercised by the State-directly, or by the Levee Boards, for the great purposes announced by the Constitution and laws. Constitution, Art. 214; Amendment Acts 1886, p. 149; Acts 1888, p. 8. In the accustomed uses of language these levee taxes are called by that name, and not local assessments. We therefore held that the Constitution in giving this-court jurisdiction of controversies as to the legality or constitutionality of any tax, toll or impost whatever, contemplated these levee-taxes, presenting, as we thought, in all essential respects, the tax in. the contemplation of the organic law. Of course the reasoning of that case is to be construed with reference to the point before the court. Our own jurisprudence discriminates these paying assessments from taxes. In Lafayette vs. Asylum the ■court held that an exemption from taxes did not émbrace paying assessments. The court defined taxes to be burdens for public uses, that is general public taxes for the benefit of the State at large, and thus distinguished it from the local assessment. In Crowley vs. -Copley, 2 An. 330, the court held that laws requiring the front proprietors to pay or contribute to making levees were not taxes in the sense of taxes used on exemption statutes. In Police Jury vs. Mitchell, 37 An. 44, this court dismissed the appeal of the riparian proprietor from the judgment in favor of the parish for his part of. the expense of building or repairing the levee, the court holding that such a charge on the owner was not a tax in the meaning of the jurisdictional provision of the Constitution in reference to this court. In City of New Orleans vs. Estate of Burthe, 26 An. 497, this court held that local assessments for street openings were not taxation in the meaning of the constitutional rule of uniformity applied to taxes. Finally, in 20 Annual this court dismissed the appeal from a judgment for curbing a gutter in front of the defendant’s property, done under contract with the municipal corporation under the law similar to that under which the plaintiff in this mode did the paving. To maintain this appeal we should have, in our opinion, to depart from a long line of authority resting, we think, on well-settled principles.

Our conclusion is the appeal can not be maintained, and it is adjudged and decreed that it be dismissed at appellant’s costs.


author: McEnery, J.

text:
    No. 11,962.
    Mrs. Bessie O’Grady vs. Michael Larkin, Her Husband.
    A reconciliation between husband and wife, after the facts which might have authorized a suit for separation, is a bar to such action.
    A PPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Branch K. Miller for Plaintiff, Appellant.

      W. H. Rogers and W. K. Horn for Defendant, Appellee.

      Argued and submitted February 29, 1896
    Opinion handed down March 9, 1896.
    Rehearing refused May 4, 1896.
   The opinion of the court was delivered by

McEnery, J.

On March 24, 1894, the plaintiff brought suit against the defendant for separation from bed and board.

On May 17, 1894, the plaintiff discontinued this suit and she and her husband became reconciled and lived together until December 20, 1894, when the defendant husband abandoned the wife.

The present suit was filed January 25, 1895, alleging substantially the same causes that led to the bringing of the first suit. With this, suit is accompanied a demand for the setting aside of the sale of certain immovable property to one Stephens, alleged to have been made to defraud the community rights of the wife. There was judgment for defendant, rejecting her demands, both for the separation, and1 for setting aside the sale to Stephens.

None of the causes for the action of separation which existed, prior to the reconciliation, can now be urged, but if new causes have occurred the facts which existed prior to the reconciliation can be used as corroborative evidence. C. C. 152, 153.

No cause has arisen for a new suit since the reconciliation. In November following the date of the reconciliation, there was an alter- ' cation in their room at the house where they were boarding. But a. reconciliation followed this, and when the husband left the wife they affectionately parted.

The abandonment is a distinct cause for separation, and certain acts are required of the plaintiff before the decree can be rendered. C. C. 145.

The husband returned to New Orleans, but never went to the place where he had left his wife.

Her right to demand a separation for abandonment should be reserved, and also her action to rescind the sale nlade to Stephens,, which it is alleged was in fraud of her community rights.

It is ordered, adjudged and decreed, that the judgment against the wife, rejecting her demand for separation, be affirmed, reserving her rights to sue for separation on account of abandonment, and the judgment in favor of Owen Stephens be reversed, and one as in case of non-suit be entered, the defendant to pay costs of appeal.


author: Breaux, J.

text:
    No. 12,094.
    State of Louisiana vs. Arthur Brooks et al.
    The surety on a bond is not released by the iact that a nolle prosequi was entered on motion of the District Attorney, because of irregularity in finding the indictment. The defendant and his surety were properly held to answer to another indictment returned in lieu of the bad indictment.
    A PPEAL from the Eleventh Judicial District Court for the Parish of St. Landry. Perrawlt, J.

      M. J. Cunningham, Attorney General; E. B. DuBuisson, District Attorney; P. A. Simmons, of Oounsel for State:
    cite 34 Ark. 610; 6-Tex. App. 188; 3 Bush. (Ky.) 22; United States vs. Reese, 4 Sawyer, 629.

      R. L. Garland and E. P. Veazie for Defendants, Appellants.
    Submitted on briefs April 11, 1896.
    Opinion handed down April 20, 1896.
   Opinion of the court was delivered by

Breaux, J.

The accused was indicted for robbery on October 7,. 1895, and on the same day they were bailed. • Subsequently the District Attorney moved to have the grand jury purged of one of its-members against whom there was an indictment pending. The motion having been granted the jury was instructed to find new indictments against all accused unarraigned. October 12, 1895, the grand jury presented another indictment against the accused for the same offence.

They were, in due time, called for arraignment and did not respond. At a subsequent term of the court the accused were again called for arraignment; one of them, Adolph Jackson, did not answer.-

On the District Attorney’s motion, after due proof, the bond was-forfeited and judgment entered against the accused and the surety on his bond. After the judgment had been rendered a nolle proseguí ■was entered on the motion of the prosecuting officers, discontinuing 'the prosecution on the first indictment for the reason that one of 'the members of the grand jury, before it had been purged, was not ■competent to serve as a juror. A motion to have the forfeiture re - 'Scinded was filed on the ground that the surety on the bond was released by the nolle prosequi entered as to the first indictment.

After having heard the evidence the District Judge overruled the motion to rescind. Prom the judgment the surety prosecutes this -appeal.

The question for our decision is whether the surety is bound by recognizance that an accused shall appear to answer to a particular .indictment against him, after the District Attorney enters a nolle ¡prosequi as to that indictment and the grand jury brings in another if or the same offence?

'In our view, if the defendant fails to appear to answer to the seecond indictment the recognizance is forfeited.

The defendant having been held to bail is deemed to be in custody ■of the court (as if imprisoned) to answer for the charge against him. The indictment may be bad, and yet he may be held to answer to the charge as set forth in another indictment. We are of opinion •that the District Court correctly held that the bond had been forfeited. The provisions of the bond were not only to appear, but also mot to depart without leave in matter of the crime charged.

.Judgment affirmed.


author: McEnery, J. Miller, J.

text:
    No. 12,002.
    Crescent City Railroad Company vs. New Orleans & Carrollton Railroad Company.
    In order to authorize one street railway company to occupy the tracks of another there must he legislative permission for the same, or it must result from such necessary implication from the grant that the abandonment of the grant would necessarily result from the non-occupancy of the roadbed of the street railway first occupying the street.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

    JParrar, Jonas & Kruttsehnitt for Plaintiff, Appellant.

      .Henry P. Dart for Defendant, Appellee.
    Argued and submitted March 9, 1896.
    Opinion handed down April 20, 1896.
   'The opinion of the court was delivered by

McEnery, J.

The plaintiff and defendant are street railway corporations.

The latter was in position on Oarrollton avenue, when a change of route was granted to the plaintiff corporation to run through the same street on the neutral ground. This expression “neutral” ground has occasioned some confusion in the interpretation of the grant to plaintiff. Neutral ground had its origin in its application to the unclaimed part of Canal street, which was the dividing line between two municipalities. It has no significance in its application to other streets. The centre of Carrollton avenue was occupied by a gravel road before the defendant’s road was located thereon. On ■either side there was a wide space unoccupied, but used at times as a playground. The City Engineer located the plaintiff’s road under the grant to them to pass through Oarrollton avenue on' what he then construed to mean the neutral ground. This location was accepted by the plaintiff and it commenced work for the construction of its track as located. This location did not interfere with the defendant’s tracks. The plaintiff, for some reason, abandoned work -on its location, and about a year afterward the City Council, by ordinance, declared the neutral ground to be the centre of the street through which the defendant’s railway was located. In this ordinance there is no grant to the plaintiff’s road to run over the tracks of the defendant.

In plaintiff’s brief it is stated that the facts make a street a neutral .ground, and not any ordinance of the City Council.

To the time that the ordinance delaring the centre of the avenue, ■on which defendant’s road was located, neutral ground, the neutral ground cf the avenue was the unoccupied part of the street. This is the testimony of the City Engineer. Williams, an engineer, who had always lived in Carrollton, and'on Carrollton avenue, says in his ■■testimony that when the grant to plaintiff was made the sides of Carrollton avenue were grass-grown and used as a playground, which up to 1892 was considered as neutral ground, so far as appearance» warranted such, designation.

From his earliest recollection the centre of the avenue was occupied by a roadway until á graveled roadway was built. It was after the making of this gravel road that the defendant’s road was constructed on it. Therefore there is no force in the argument, because a part of what was once neutral ground is now graveled and improved, it could not have been the intention of the city government-to permit a road to be built on it.

There is no question of the intention of the Oity Council involved! in this question. It is a fact at issue whether or not the-geographical features of the avenue are such as to comp.-l the occupancy of defendant’s roadbed. If they are not of that character, no grant by implication can’be inferred.

The grant to the plaintiff is that it shall construct its road on Second from Broadway fo Carrollton avenue, thence through the neutral ground of Carrollton avenue to Fourth street, and thence along Fourth to the parish line. There was no legislation declaring any part of the street neutral ground when this ordinance was passed, and the passage of the ordinance subsequently is an evidence that, no designation had been given by the city to any part of the street as neutral ground. The only neutral ground to which the ordinance-could apply was to the unoccupied part of the street.

The ordinance could not, after the grant, by simply designating a part of the street neutral ground, give any additional powers not conferred by the ordinance. Nor-could it thus authorize, by mere implication, the plaintiff to occupy a part of the street, which right had not been previously conferred.

After the passage of the above ordinance, the plaintiff corporation attempted to go on defendant’s tracks, and invoked the proceeding» in this suit to expropriate the roadbed, cross-ties, etc., necessary for its occupancy of the defendant’s tracks.

The question at issue is, can a street railway company, occupy the-track of another, unless by express authority or by necessary implication.

In several cases we have decided that by special grant of legislative authority, one railway company, to reach its destination to its-terminal point, may occupy ¡the tracks of an existing company. .In, the grant to the plaintiff this doctrine was recognized, as authority is [given them] to cross and occupy certain tracks until they reach Carrollton avenue.

But as to Carrollton avenue there is no authority granted to occupy the track of the defendant corporation. Was then this permission given by necessary implication?

On this point we are without precedents in our jurisprudence. But as the decrees in the cases of Railroad Company vs. Railroad Company, 41 An. 564; Railroad Company vs. Railroad Company et al., 44 An. 490; Railroad Company vs. Railroad Company, 44 An. 54; Railroad Company vs. City, 44 An. 730; Railroad Company vs. City, 44 An. 748; Railroad Company vs. Railroad Company, 44 An. 1071, were based on the authorities from other States, which had preceded us in street railway facilities, this court ought to look to the authori-' ties in the other States for instruction and for precedents.

In Sharron Railway Company, 9 American State Rep., 133, it was held, to justify the taking by one railroad company for the same use, under the right of eminent domain, the land acquired by another com - pany, which is necessary for the latter to economically and expeditiously carry on its present and prospective business, that there must be a necessity so absolute that without it the grant itself would be-defeated, and not a necessity created by the company itself for its-own convenience or sake of economy.

In this ease no question can arise as to Che impairment of the obligation of a contract, except so far as stated in case of Railroad Company vs. Railroad Company, 44 An. 491, that a street railway occupying the tracks of another can not interfere with the company's road, over whose tracks it runs its cars, so as to disturb its schedule time, in accordance with its contract with the city, and thus practically evict it from its roadbed. And here we will state that the necessity for express permission by the City Council, or an implication from the authority granted, exists, so that the schedule time of the road first occupying the street can not be interfered with.

In granting the authority the city must undoubtedly have the opportunity of so expressing itself as to shield itself from damages.

In the collation of the authorities in the case referred to, under the head of “How Legislative Intent must be Expressed,” we find it stated and amply supported by citation of authorities that an “ implication does not arise except from the language of the legislative act, or from its being shown by an application of the act to the subject matter to be a necessary condition to the beneficial enjoyment and efficient exercise of the powers expressly granted, and then only to the extent of the necessity.” “There can be no implication,” says the Supreme Court of Pennsylvania, in speaking of the right of a railroad company to take by implication a portion of the road of a street railway, “unless it arises from a necessity so absolute that without it the grant itself will be defeated. It must also be a necessity that arises from the very nature of things over which the corporation has no control; it must not be a necessity created by the company itself for its own convenience or for the sake of economy. Pennsylvania Railroad Company’s Appeal, 93 Pa. St. 150; Appeal of Pittsburg Junction R. R. Co., 122 Pa. St. 511.”

In the matter of the City of Buffalo, 68 N. Y. 167; 118 Mass. 391-561.

Alexandria & Fredericksburg Railway Company vs. Alexandria & Washington Railroad Company, 40 Amer. R. 743, and cases cited in note.

The several cases referred to herein in our reports, and the invariable doctrine announced in the other States of the Union is that a street [railway company owns the structure laid by it in the highway and have a superior right to the space covered by its tracks, Pierce Railroads, 252; Woods Railway Law, Sec. 229, p. 681; 14 Gray, 69; 76 N. Y. 530; 34 Iowa, 527.

And its rails can not be used by other competing common carriers, driving railway carriages without special legislative authority. Woods Railway Law, 681; 72 N. Y. 330; 4 Stew. (N. J.) 525; 81 Ill. 523.

On page 681, Woods Railway Law, it is stated that “ a franchise can not be taken under the general law, but must have for its basis legislative authority, or must arise from necessary implication.”

And on page 703, the same authority says: “In the construction of railways, it necessarily occurs that highways and other railways must be crossed, and although the power is not expressly given, it is necessarily inferred. But authority to take the bed of either a highway or railway longitudinally for any considerable distance will not be inferred, especially when it is possible to build the road without doing so.” As a conclusion from all the authorities, the same author thus expresses what is a permission by implication to interfere with the franchise of an elder grant: “If, however, the two grants can not stand together, and npon an application of the grant to the subject matter it is found that the latter will be defeated unless it is permitted to interfere with the franchises of another corporation, the presumption is raised that such interference was contemplated by the Legislature” (p. 699).

In the instant case there was no permission granted to plaintiff to use the rails or roadbed of the defendant company. There is nothing in the situation of the locality which both railways are permitted to occupy to justify a permission by implication to use defendant’s roadbed and tracks, or to disturb its franchises.

The only unoccupied ground which could be designated as neutral was that on either side of defendant’s tracks. This neutral ground was accepted by plaintiff as the territory it wasto occupy. Tbe subsequent resolution of the Council simply declaring the space occupied by defendant as neutral ground was an absurdity, as the Council could not change the meaning of words, and, as said in plaintiff’s brief, make that neutral ground, which, in fact, was not. The testimony in the record shows that the space first allotted to plaintiff’s road is sufficient for its purpose; will not interfere with defendant’s franchise; and will not interrupt or disturb the use of the street or avenue.

There is not an authority anywhere that does not hold that the grant to occupy the tracks of a railroad company by another competing company by implication, the implication must be such that the grant would be defeated without the use of the tracks. Here the competing company has a large space to occupy without interfering with the defendant’s franchise.

What is the franchise granted to defendant? It is that it may construct a road through Carrollton avenue on unoccupied territory. There is not a word said about the use of defendant’s road bed, and the use of .defendant’s track does not spring from any necessary implication, as there is ample territory assigned to plaintiff to construct its road without interfering with defendant’s roadbed.

Judgment affirmed.

Dissenting Opinion.

Miller, J.

The plaintiff, with a franchise for a street railway extending through the neutral ground of Carrollton avenue, seeks to compel the defendant, the New Orleans & Carrollton Railroad Company, to permit the use of its tracks laid, it is alleged, on the roadbed granted to'plaintiff; the use to be jointly possessed by the two companies, and on suitable compensation to be paid by plaintiff. The defendant excepted that the petition showed no cause of action'; that plaintiff had no right to use defendant’s tracks; and that plaintiff’s purchase is void for failure of the Council to comply with the law in granting the purchase. The exceptions referred to the merits were renewed in the answer, with the additional averment that defendants, in possession of its tracks for years, had expended money in laying them, and plaintiff had no right on the tracks. From the verdict and judgment in defendant’s favor, plaintiff appeals.

The plaintiff, operating a street railway in this city, obtained by transfer the right to extend its tracks to the line of Jefferson parish, on designated streets, of which Broadway was one, but before the privilege was exercised, 'the city by ordinance of September 9, 1892, authorized the purchaser of the franchise to construct the road through the neutral ground of Carrollton avenue, from Second to Fourth street, thus substituting the avenue for the distance named in lieu of Broadway. The City Surveyor, under this change, gave the plaintiff lines for the construction of the road on that portion of the avenue adjoining the banquette on the lower side. Thereafter the Council by ordinance defined the neutral ground to be the central space of sixty-six feet lying between the strips of thirty feet wide on either side next to the banquette. Then the surveyor gave plaintiff lines to run on this neutral ground. This brought about the contention now before us, as plaintiff’s lines were over the defendant’s tracks.

The ordinance under which defendant laid its tracks preceded that of plaintiff, and assigned the upper side of the avenue. The upper side might well have been deemed the space of thirty feet next to the upper banquette. No question is raised on that point, plaintiff only claiming the common use of defendant’s tracks, laid as they are on the upper side of the neutral ground, designated as the space through which plaintiff’s tracks are to pass.

We have given attention to the argument and authorities cited by defendant to support the contention that our law affords no warrant for expropriation proceedings in this case. The right to use the streets for railway purposes can not be obtained by expropriation, but is derived from the municipal authorities clothed with the power to regulate the use of th.e public streets. City Charter, Acts 1882, No. 20, Sec. 8; Elliott on Street Railways, p. —; Brown vs. Duplessis, 14 An. 842. The plaintiff in this case asserts the right claimed to be conferred by the city ordinances. The taking or rather the joint use of defendant’s tracks this suit seeks to ■enforce is merely incidental to the ordinances under which plaintiff claims. There is, hence, in our opinion, no room for the ■discussion of the right of expropriation in the usual sense of that power; the plaintiff’s right, if it exists, being derived from the ordinances. The right of the city, after selling to one company a street franchise, of giving to another company the use of the tracks ■embraced in the first franchise, is, of course, restricted, but, within the appropriate limits, is conferred by the city charter. The provision is: The city shall have the power to require and compel all lines of railway, in any one street, to use one and the same track; and it announces the policy in the public interest that no street shall be unnecessarily obstructed with a number of tracks when one will suffice. If then the ordinances relied on authorize plaintiff to use the defendant’s tracks for the short distance of fourteen hundred and forty feet, thus obviating two lines of tracks on an important thoroughfare of this city, in our view the case presents the mere question of the exercise of police power, and calls for no examination of the scope of the right to expropriate.

The exception of no cause of action raises the question, whether the ordinances relied on by plaintiff confer the right to úse defendant’s tracks. It is true the ordinances do not refer to the tracks, 'but plaintiff’s contention is, the right to their use is given by necessary implication. The Council, in designating the neutral ground of Carrollton avenue as plaintiff’s roadbed, supposed that the words used carried an accepted significance, applied to an avenue with a well defined central strip. There was testimony that the strips of thirty feet, next to the banquette on either side, were ■deemed neutral ground by the people in the neighborhood. Such ■significance, we think, to whatever extent it may have existed, was purely local, not apt to be the sense of the Council or, indeed, of any ■one employing the words to designate a portion of an avenue. In their usual acceptance the neutral ground of a wide avenue would be deemed to refer to the central space bordered by trees, and not to the strips of thirty feet wide on each side next to the banquette. Without any other light than that afforded by the ordinance itself,, it seems to us it would be a most arbitrary construction to apply “neutral ground” to either strip and not to this central space. There-are other avenues of this city of which we take notice like that in Carrollton. It would hardly occur to any one to call the strips or-streets on either side of Canal or Esplanade streets neutral ground. If he used the terms, the reference would naturally be accepted as referring to the large space or middle ground, and on which it is pertinent to notice the city railways on those avenues are placed. In some of the earlier railroad ordinances the words “neutral ground” are used, and the centre and not the sides or streets were understood to be intended, and the roads located accordingly. See Ordinances City Railroad, etc.; Leovy Ordinances, pp. 437, 458, 466. As a question of construction required of us in this case, without other aids-than the ordinance, we should hold that neutral ground of Carroll-ton avenue referred to the central space of sixty-six feet. But we are not left to the original ordinance! Tbe Council by its subsequent ordinance defined neutral ground as this central space. If, as must be conceded, the Council had the power to give this right of way, there is no conceivable objection to the defining ordinance, if the roadbed was not stated with precision in the first. It is said the plaintiff at first received lines from the surveyor, assigning the lower strip of the avenue for the roadbed, and then began to construct the road. But both the plaintiff and the city abandoned that interpretation of the ordinance. If the plaintiff begun wrong, we do not appreciate it was bound to persist in the error. If the ordinance, whether original or as amended, gave to plaintiff the neutral ground for its roadbed, there was no impediment to the plaintiff availing; itself of its right. In our view, under the plaintiff’s ordinance, it, acquired the right to build its road over the central space of sixty-six feet of the avenue. That interpretation of the neutral ground would be natural under the original grant, and is exacted by the-plain terms of the amended ordinance to have effect the same as if part of the grant first conferred.

On the sixty-six feet through which the plaintiff is authorized to lay its tracks is a gravel road, twenty-five feet in width, which is. the thoroughfare for vehicles extending from Carrollton to the rear The road occupied part of the sixty-six feet when the ordinance was passed and for years before. On the lower side' of this road is a row of trees ten feet in width, next the road is a space of five feet left, we presume, for the safe passage of the defendant’s ears, the tracks ' of its cars occupying eighteen feet alongside the five feet space- and succeeding the eighteen-feet on the upper side is another row of trees of ten feet. The sixty-six feet is thus already taken up to-the extent of ñfty-eight feet. There is no room for the plaintiff’s tracks, unless to the exclusion of the gravel road, or over the defendant’s tracks. With the power of the city to compel the common-use of the tracks, and under the ordinance giving plainfiff part of the-space of sixty-six feet, the Oity Surveyor gave the plaintiff lines ■over defendant’s tracks, as the only method of executing the ordinances. The defendant resists this use of its tracks. If its contention, is successful, the plaintiff can have no tracks on the sixty-sixfeet, unless it can be maintained the ordinances take from the public the thoroughfare in use for years and established at great expense. Can, any such purpose be attributed to the ordinances; or in other words is that construction consistent with the tests that guide rational interpretation? The gravel thoroughfare within the sixty-six feet is not appropriately to be designated as neutral ground. We can nod suppose, in passing the ordinances giving the right of way through neutral ground, it was the intention to destroy a public road necessary to the public, and in actual use. In view of the fact that without encroaching on this road there is copious space for both companies, if they use the same tracks, the conclusion that was the purpose seems the only reasonable interpretation of ordinances of the-city, vested with the power to compel the common use of tracks by companies having franchises on the same street. We are fortified in our interpretation by the action of the city authorities, in exercising the police power of regulating the use of the streets. There-is, in our view, no basis on which we can substitute another construction compelling the laying of four tracks on an important avenue, when two will suffice, and a construction too that leads to-the unnecessary deprivation of a roadway in use by the public. We think the action of the Oity Surveyor was within the scope of the ordinances.

It is claimed that the ordinances of the plaintiff are not legal, because it is supposed they convey street franchises not sold at public auction, (Acts 1888, No. 135). The law requires such sale of a street line of railway. In this case the ordinances supply merely the means of connecting lines above and below the avenue by giving the use of the avenue for the short distance of one thousand four hundred feet. No such connection could be sold, and hence can not be deemed within the scope of 1he Act of 1888. Impressed as we rre with the duty of upholding this act of 1888, and waiving any expressions not called for in this case, we are of opinion that the controversy presents no infringement on the act.

When the city requires the use by two companies of the same tracks, there are the resulting obligations that the company holding the first franchise must be indemnified for the damage incident to yielding up its tracks; that the reconstructions for adapting the tracks to the common use be paid by the company holding the last franchise; that the cost of maintenance shall be borne equally, and that the reconstruction shall be made with the least inconvenience to the first company. Railroad vs. Railroad, 47 An. 314.

A decree in plaintiff’s favor, under the circumstances suggested, is, I think, the proper solution of the controversy. I therefore dissent from the opinion and decree.

Breaux, J., concurs in this dissent.


text:
    No. 12,042.
    Mrs. F. A. Schneidau et als. vs. New Orleans & Carrollton Railroad Company.
    ■Where a child of the age of four years, a passenger on a street railway car, is accompanied by a person of sufficient age and discretion to take care of it, i s put off the car at the child’s stopping place, by the conductor, and the person having charge of the child follows it, and both reach the street in safety and are waiting for the passing of a car on a parallel track, the railway company is not responsible in damages, if the child runs toward the passing car, strikes it and is thrown down and injured.
    A PPBAL from the Civil District Court for the Parish of Orleans. King, J.

      Bernard MeGloslaey and William L. Hughes for Plaintiff, Appellant.

      J. M. Bonner for Defendant, Appellee.

      Argued and submitted April 20, 1896.
    Opinion handed down May 4, 1896
   The opinion of the court was delivered by

McEnery, J.

The plaintiff sues as natural tutrix of her minor ■child to recover damages for severe injuries inflicted upon him by one of defendant’s cars. The ease was submitted to the lower court, without intervention of a jury, and there was judgment for the defendant.

In the original petition the complaint is that the child, who was about four years of age, was knocked down and injured by one of defendant’s cars, while a passenger on the same. An amended petition was filed in which the cause of action was alleged as follows:

“That said child was a passenger in the car going in the direction •of Carrollton, and was removed from said car by its conductor and placed on the street before the person in charge of said child had alighted. That neither said child nor the person in charge of said child was notified that a car was coming at a rapid rate of speed from the other direction of the line of said railroad company, nor did the conductor of said car, upon which the said child was a passenger, notify said child or the person in charge of said child that said car was coming, and it was an act of negligence to place said child on the public street ahead of the person in charge of said child and that the want of notice constituted negligence.”

A young lady aged sixteen was in one of defendant’s cars, in charge ■of her brothers, both young children. The young lady notified the conductor to stop at Nashville avenue. As she had directed the car stopped in order that she and the children in her charge could get off. The four-year-old boy was put off by the conductor, the young lady saying, in her testimony, that she was on the steps when the child was placed on the ground. At this time one of defendant’s ■cars was going down town in an opposite direction from the car in which the young lady and the children were passengers. But the young lady and the children had safely been placed on the ground and were standing at the point where they had alighted, when the down-town car was approaching. The youngest child started for his home near by, and as he approached the track the motorman in the approaching car, who had previously shut off the power, and the •car was going by its own momentum, saw the child approaching the track, and immediately applied the brakes. The front of the car passed the child and he ran into it somewhere between the front and rear trucks. It is important to determine whether the person in charge of the children had gotten off the car, and was waiting for the car to pass. There can be no doubt of defendant’s liability if the conductor deliberately placed a child of such tender years on the ground unprotected, in the presence of a passing car.

The young lady says: “I had'gotten off the car and started across when the accident happened.” She locates herself when the accident happened by saying she was “a few steps from the car that ran over him,” and was standing on the lake side of the up-town track. The car which she had left had moved off. The youngest-child started to cross the track while she was standing with the other child where she had left the car.

She did not see the child when he started toward the track.

This testimony is corroborated by witnssees for the defence.

In another part of her testimony the young lady says: The moment the little fellow was put out, he started diagonally across from the upper to the lower crossing and her brother started .to follow him, and she had got very near the track with the second brother when the accident happened.

T. Hochart, who saw the accident, says he was at the corner-of Nashville avenue and St. Charles, and he saw a young lady get out of the car with two children and another lady, and they were standing just where the car stopped, waiting for the ca.r coming-down to pass. “Then I saw a little boy turn loose and go over before the car had reached the corner. The gong was ringing, of course, and the boy struck the car right in the middle of the car and had his hand just cut here. ”

L. B. Turner, another witness, says he was in the car that injured the child and that there “ was a lady and a child or two of them. I noticed them on the other corner ahead. The child ran over toward the car we were in and immediately there was a scream, and I jumped out and ran and picked the child up, and I saw this-young lady, they told me was the sister of the child. ” He says that-the child ran into the midway of the car.

J. Milford says he was in the car which injured the child. “ After crossing the corner, the other car that those people had come out off had stopped, and this car I was in, the motorman of the car I was: in, he got then within fifty or sixty feet of the crossing and had begun to sound his gong. When the car I was in got very near to the corner where the people were standing this lady — there was two women and two little boys * * * was standing at the corner and the car began to start out, and the girl had this other child by the hand, and just as the car was in the crossing the boy breaks and runs diagonally across, and the car strikes the child in the head and knocks it down, and the car ran then about twenty feet and it stopped. ” He says the child ran into the car “ just where the front wheels had passed.”

G. W. Sievers says he was in the car with the young lady and the children. He was on the rear platform and saw the child run into the car, striking against the bolt on the side of the car behind the front wheels.

O. T. Dreux, who was motorman on Oar 63, against which the child ran, says: “Whenlgot to Eleanore street, that is a half a square above Nashville avenue, I noticed Oar 34 stop at the corner, putting some passengers out. The rule of the company is, when you see a car stop to put out passengers to ring the gong, and I shut my power •off and let my car roll, and commenced ringing my gong and kept ringing until I got even with the car that stopped, and I noticed this little child running toward my ear, and I started to put my brake on as fast as I could, and I could see the child running to the car after the car had passed him, and I stopped the car about seven or eight feet below the lower crossing, and I ran back because I heard this lady screaming, and when I got there Mr. Trepagnier already had run back and picked the child up.” He says he could see the child running and that he was likely to run into the car, and that he applied the brakes and stopped the car as quick as he could.

Owen McMahon, who was the conductor on the car in which the young lady and children were passengers, says he got down from the ■platform, assisted the youngest child out, then the other, and finally the young lady, and then started on his way with the car. He had .gone about ten feet when he saw the child start toward the track; stopped his car and endeavored to reach the child to save it. He says the child ran into the car about midway. He also says he cautioned the young lady that a car was approaching, but she denies this. But if the conductor could see the car, she also could see it. The preponderance of testimony is, that she was standing where she had alighted, when the car was approaching. The young lady was old enough to appreciate impending danger. She had been trusted with the care of the children. We do not find any negligence on the part of the defendant. The question presented is one of fact, whether the conductor had negligently placed the child of such tender years unprotected on the track in the presence of approaching danger. Prom the evidence we conclude that the finding of the trial judge was correct.

Judgment affirmed.


text:
    No. 12,095.
    Lake Bros. & Co. vs. Henry Guillotte, Tax Collector.
    The importer of the several pieces of the umbrella or of the parasol, already in a state of preparation, save certain work on some of the pieces of minor importance, is not deemed a manufacturer.
    The exemption of the Constitution is of textile fabrics and of capital and property employed in the manufacture of furniture and other articles of wood.
    The processes whereby, in plaintiff’s factory, the articles already prepared elsewhere are given the shape and finish of the umbrella for sale in commerce are not the manufacture of articles of wood and of textile fabrics which would entitle the manufacturer,^© exemption under Art 207 of the Constitution.
    Morel, J. PPEAL from the Second City Court of New Orleans.

      J. Zach. Spearing for Plaintiffs, Appellees.

      E. A. O’Sullivan, City Attorney, G. W. Flynn and L. O’ Donnell, Assistant Oity Attorneys, for Defendant, Appellant.
    Argued and submitted April 20, 1896.
    Opinion handed down May 4, 1896.
   The opinion of the court was delivered by

Breaux, J.

The plaintiffs sue to annul the assessment on their machinery and other capital. They aver that they are manufacturers of umbrellas and parasols, and claim exemption on the ground that they are manufacturers of textile fabrics and other articles of wood.

The facts proved, which appear material, were that the materials consisted wholly of articles brought here from elsewhere in different sizes suited to adjust into umbrellas.

We are informed that the cloth was received in bolts; after inspection it was cut to the shape in which it is used in the umbrellas; the piece3 after the cutting into the required sizes are sewed together by means of a machine.

The sticks or rods are received in a certain state of preparation. At plaintiff’s works in this city they are reduced in their length; two slots, the one near the handle and the other near the top, are sawed in these sticks by a circular saw; wire springs are inserted in these “slots” or “grooves,” and the sticks are tipped with a sma’l ring of metal. The “notches” and “runners” are received in packages; and the cloth is adjusted to the ribs attached to the stick or rods by means of the “runners” and “notches.”

The judgment in the lower court was pronounced for plaintiffs. The defendants appeal.

Each article used was intended when it was manufactured as part of umbrellas. They have been changed here from parts of umbrellas to umbrellas.

It would be extraordinary if the spirit of the article of the Constitution, in its protecting policy, should include articles manufactured elsewhere and brought here to be fitted together and given the shape for which the different parts were intended.

The articles in question were manufactured by others than plaintiffs, and were, by the latter, fashioned into umbrellas, by applying labor and skill, it is true, not to the extent, however, of securing the exemption accorded to the manufacturer. The word manufacture has a more comprehensive meaning than the processes employed in combining, fitting and adjusting the several pieces of the umbrella.

The work in Louisiana is infinitesimal as compared with the work elsewhere on the different articles. The limited work performed here is not manufacturing as generally understood.

Those engaged in the manufacture of textile fabrics and articles of wood are exempt. But the cloth used is not manufactured here and little work is required after it is received, much less than is applied in making coats and trousers out of jeans cloth. «

As to the exemption of these, this court has decided that one engaged in .cutting and making coats and trousers out of jeans cloth, which has been already manufactured by another, is not'engaged in ¡the manufacture of textile fabrics.

Unquestionably, if those who are engaged in making coats and -■trousers out of jeans cloth are not exempt because they do manufacture the cloth, those engaged in cutting and sewing pieces ¡together and attaching them to umbrella frames are not exempt. ■ Cohn & Feibelman vs. Parker, 41 An. 894.

As to the articles of wood, we have seen that they, the rods and ■handles, are in a state of preparation when received. Tipping the .sticks with a ferrule, and sawing two very short “ slots ” on each, is ■mot manufacturing, within the intendment of the article of the Oon-stitution.

In the Brooklyn Cooperage Company case, 48 An. 1314, to which -cm* attention is directed, no hogsheads were made in plaintiff’s establishment; the materials were all imported and the work consisted in setting them in barrel form. As in the cited case, in the ■ case here, the parts of the umbrella are put into shape and no ■umbrellas are made in plaintiff’s establishment.

It is therefore ordered, adjudged and decreed that the judgment .appealed from is annulled, avoided and reversed, and that plaintiffs’ ■demand is rejected and their suit dismissed. Costs of both courts to ■be paid by plaintiffs.


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    No. 12,113.
    J. and L. Dreyfous vs. Henry A. Childs et al. Felix Loeb & Bros. Intervenors.
    Notes secured by a mortgage ancl vendor’s privilege pass to third persons, with mortgage and privilege by which they are secured, unaffected by the unreality of the transaction (at the origin), of which the holder by transferhad no notice.
    If one of the two debtors in solido- be solvent, the creditor is without a right of action to have annulled a transaction of the insolvent debtor.
    A PPEAL from the Nineteenth Judicial District Court for the Parish of Iberia. Voorhies, J.

      Walter J. Burke for Plaintiffs, Appellees.

      Andrew Thorpe and Thorpe & Barber for Intervenors, Appellants.

      Argued and submitted April 22, 1896.
    Opinion handed down May 4, 1896.
   'The opinion of the court was delivered by

Breaux, J.

The defendants allege the indebtedness of plaintiffs ■and pray for solidary judgment against their debtors. They also aver, in their petition, that one of the defendants, Ohilds, was insolvent and executed an authentic deed of sale of immovable property, lor which there was no consideration; that it was a mere simulation for the purpose of placing the property beyond the reach of credit - ■ors; that credit notes were made by the purchaser for the purchase price, which they feared would be transferred to third persons unless restrained by the writ of injunction, for which they prayed. Contradictorily with the purchaser from Ohilds, they also prayed that the' act in question be annulled and avoided in so far as their interests were concerned.

The defendants answered and pleaded a general denial.

The intervenors, Felix Loeb & Bros., alleged that they are the -owners for value and before maturity of the notes delivered by Robertson to Ohilds secured by mortgage on the property sold by the latter to the former, and that they were prompted to purchase these notes by the fact that they were thus secured. The averment of intervenors that they became owners prior to maturity is supported by the uncontradicted, evidence of the defendant Ohilds, who testified that they were negotiated by him, some time before the suit here was brought on plaintiffs’ notes. The notes of intervenors were not matured when suit was brought. They were notes negotiable in form. They were paraphed by the notary and identified with the act of mortgage duly recorded at the date the deed was signed. The judgment in the District Court was for plaintiffs against Childs and Martin in solido on the notes, upon which the suit was brought by them; and as against Robertson, the court decreed the sale and mortgage from Ohilds to him to be a simulation and ordered the sale of the property for the payment of plaintiffs’ claim and rejected the mortgage claimed by the intervenors.

The intervenors appeal.

The issues here are limited to plaintiffs, and intervenors, who are third persons, 'and who allege, in substance, that they were warranted in considering the deed of sale of record as of itself conferring title and the special mortgage and vendor’s lien upon the property in all respects binding and legal; that the verity of the recorded act had remained unquestioned nearly a year; that the vendor had the right to sell and the vendee the right to buy, and that as there was nothing to excite suspicion they became the holders of the notes secured as already stated.

. The plaintiffs, on the other hand, disclaim all concern in the notes of intervenors thus secured; they only assail the mortgage on the property sold and contend that, different from negotiable paper, it is not protected by the rule of the commercial law applying to such paper transferred before maturity.

This court has, in a number of cases involving the right of innocent creditors as holders of mortgages, based its decision on the principle that a mortgage, though a real right, is valid againsa creditors in the situation of plaintiffs here, who remain inactive and permit them to be transferred without objection.

The plaintiffs allege that Childs was insolvent at the date of the sale in question, and yet during a number of months the (plaintiffs) creditors remained silent, although the registry of the title was made in the parish of their residence.

• For the convenience of business a probative and even convincing force is given to public records.

This court in Bank vs. Flathers, 45 An. 75, 80, reviewed a number of decisions. The case of Carpenter vs. Allen, 16 An. 435, was referred to and quoted from, and the rule announced reaffirmed, the court stating that since the Carpenter-Alien case the principle was recognized in a number of decisions, citing them.

The decisions rendered since the Flathers case, upon this point, are in accord with prior decisions, notably the cases of Mrs. Ada Lester vs. Connelly, Sheriff, 46 An. 340; Thompson vs. Whitbeck, 47 An. 49, 53.

The principle was announced, discussed and made the basis of the conclusion reached in Hunter vs. Buckner, 29 An. 604.

But it will surely not be inferred that the principle is so far-reaching and inflexible as at times to become a protection to sham deeds and simulated sales. It does not apply between the parties when invoked by a vendor as a protection from the pursuit of creditors, and only becomes binding as to third persons who have acted in the utmost good faith in acquiring a right for a valid consideration.

We only here apply the familiar maxim that when one of the persons must suffer, the law inflicts the loss on the non-vigilant and inactive.

Had the intervenors, holders of these notes, purchased the property (instead of [the notes), in good faith; they would have acquired a valid title. The principle which would have sustained the sale applies to the transferees and holders of the notes secured by mortgage on the property and to the mortgage itself.

This brings us to the second proposition argued at the bar, that thó action is in revocation of the sale and not the action en declaration de simulation, for the reason that, -although simulation is alleged in the body of the petition, in the prayer the action is limited to plaintiff’s right only, and it is sought by the prayer to have the title annulled to the extent only that it affects their, the plaintiff’s, interest.

A similar question was submitted to this court for decision in Hart & Co. vs. Bowie, 34 An. 323, 326. Judged by the rule followed in the cited case the action here is revocatory in character.

As it is not a matter of controlling importance in reaching a conclusion, and as in either case, whether revocatory or en simulation, the result would be the same here, we pass to the next and last issue involved, the solvency of the co-debtor in solido. Reason and authority required that the creditor should have proven that it was not possible for him to recover the amount due him from either of the debtors in solido (because of the insolvency of both debtors or for some other preventing cause) before instituting suit to set aside a sale on the ground of simulation or fraudulent preference. In Hart vs. Bowie, 34 An. 323, the member of a commercial firm was sued to annul the sale as fraudulent or simulated. Her insolvency alone was alleged. The court held that the insolvency of the other members of her firm debtors in solido, should also have been alleged.

Each of the debtors is responsible forthe amount, and withouteommon insolvency the creditor is without authority to question the verity of their transactions. It is true that the creditor may sue, recover judgment and seize the property of either of his debtors in solido; it does not follow that he has the right to maintain an action to annul acts, when it is not at all made evident that such an action is necessary to the recovery of his claim.

By express law the creditor has a right of action against all of his debtors bound in solido for the payment of the debt. No authority is to be found in support of any such right against one who has bought in good faith and without notice property from one of the debtors bound in solido, not insolvents.

In conclusion, we state the following controlling propositions:

1. If the creditor allows the property of his debtor to stand recorded in the name of another, by a title translative of property, he puts it in the power of that other to put it beyond the reach of his claim by transferring the right, in regular course of business, to an innocent third person without notice.

2. The prayer of the petition controls the action; if the petitioner seeks to restrict his action to the -recovery of his own claim the action is revocatory, and not en declaration de simulation.

3. Unless the solidary debtors are all insolvent no action will lie to-" set aside a fraudulent sale by a revocatory action.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed in so far as relates to the intervenors only.

The judgment appealed from is affirmed in so far as it decrees that Henry A Childs and James F. Martin in solido are condemned to pay the full sum of eight hundred dollars, with interest as set forth in the judgment; it is also affirmed in so far as right may be reserved by the following: “without passing upon the rights of intervenors to proceed against George M. Robertson and Henry A. Childs personally on the notes transferred by Childs to the intervenors.” Save as affirmed by the foregoing, the judgment is annulled, avoided and reversed; as to costs in the lower court, judgment is affirmed, except in so far as the intervenors are concerned.

It is further ordered, adjudged and decreed that there is judgment for intervenors, Felix Loeb & Bros., and against the commercial firm of J. & L. Dreyfous and Henry A. Childs and George M. Robertson, decreeing the mortgage transferred with the notes held by intervenors, not simulated and fraudulent, in so far as the intervenors are concerned and maintaining their intervention.

Relative to costs, as to intervenors, in this court they are ordered to be paid by plaintiffs and appellees; in the District Court they are to be paid by plaintiffs and defendants as incurred by each or both.