text:
    No. 8831.
    Orleans Appeal.
    ROBERT L. MESSEL, Appellant, v. FOUNDATION COMPANY.
    (February 2, 1925, Opinion and Decree.)
    (March 2, 1925, Rehearing Refused.)
    (May 26, 1925, Decree Supreme Court Writ of Certiorari and Review Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Master and Servant— Par. 154.
    It has been repeatedly held by the Supreme Court of this State that Act 20 of 1914, known as the Employer’s Liability Act, is constitutional.
    2. — Louisiana Digest — Master and Servant— Par. 156, 160 (f).
    A State Court is without jurisdiction in an action brought under the Workmen’s Compensation Act 20 of 1914, when plaintiff sustained injuries while aboard ship under a maritime contract.
    3. Louisiana Digest — Master and Servant— Par. 156, 160 (f). •
    Neither has it jurisdiction in an action brought under Articles Civil Code 2315-2320 under like conditions.
    4. Louisiana Digest — Laws—Par. 70, 72.
    The clause in the Judiciary Act saving to suitors “in all cases the right of a common law remedy, where the common law is conjpetent to give it”, refers to remedies for enforcement of the Federal maritime law, and does not create substantive rights or assent to their creation by the States.
    Appeal from Civil District Court, Hon. Hugh C. Cage, Judge.
    This is a suit by an employee against his employer under the Articles of the Civil Code 2315-2320 and in the alternative under Act 20 of 1914, the Employer’s Liability Act. Judgment for defendant. Plaintiff appealed.
    Judgment affirmed.
    J. F. Pierson, C. I. Denechaud, Claude L. Johnson, attorneys for plaintiff and appellant.
    P. M. Milner, Philip S. Gidiere, attorneys for defendant and appellee.
   CLAIBORNE, J.

This is a suit by an employee against his employer under the Articles of the Civil Code 2315-2320 and in the alternative under Act 20 of 1914, the Employer’s Liability Act.

While employed aboard the steamship “La Grange” on July 9/ 1920, "the plaintiff was injured. He sued the defendant under Articles Civil Code 2315 and 2320 and pleaded the unconstitutionality of Act 20 of 1914, upon the ground “that in so far as said Act, or the Acts amendatory thereof, do or attempt to adjudge or fix the amount of the damages or reparation due or recoverable by petition for the casualties or damages inflicted as aforesaid on him, or to control the amount petitioner may or shall recover, the said Act and the said Acts amendatory thereof are usurpations of the judicial powers and functions conferred upon the courts of this State, as provided by Article 6 of the Constitution of 1913, which provides that every person for injury done him in his person shall have adequate remedy by due process of law and, justice administered without denial, and said Acts are also in violation of the prohibition of Article 17 of said Constitution, and in violation of Section 1 of the Fourteenth Amendment of the , Constitution of the United States, which provides that no State shall make or enforce any law which shall deny to any person within its jurisdiction the equal protection of the laws.

The plaintiff further alleged “that when injured as aforesaid he was engaged in maritime work in admiralty in the said steamship ‘La Grange’ on the navigable waters of the United States; that his legal rights to adequate relief for said injuries are the same in this, cause against the owners as they are in admiralty against the vessel and that Act 20 of 1914 has no application to them.”

Plaintiff prayed for citation against the defendant corporation and for $10,000 damages, and that Act 20 of 1914 and all the Acts amendatory thereto be declared unconstitutional.

The defendant excepted that the petition disclosed no cause of action for that plaintiff’s action, if any, was under Act 20 of 1914 and its amendments; and in other respects pleaded a general denial, contributory negligence, and negligence of fellow servant.

In a supplemental petition plaintiff, in the alternative, prayed for judgment for the compensation fixed by Act 20 of 1914 and the Acts amending the same.

The defendant excepted to the supplemental petition on the grounds, 1st, that it changed the issue, and, 2nd, that it .was prescribed by one year.

All the exceptions filed by the defendant were maintained and plaintiff’s suit was dismissed. He has appealed.

1. The objections to the constitutionality of Act 20 of 1914 propounded by the plaintiff have been so often examined and overruled that a further discussion of them would be supererogatory. Whyte vs. Grant, 142 La. 822, 77 South. 643; Philps vs. Guy Drilling Co., 143 La. 951, 79 South. 549; Boyer vs. Crescent Paper Box Factory, 143 La. 368, 78 South. 596, and the numerous authorities there quoted. Day vs. Louisiana Central Lumber Co., 144 La. 820, 81 South. 328; Colorado vs. Johnson Iron Works, 146 La. 68, 83 South. 381.

2. If the plaintiff’s right of action is under the Employer’s Liability Act, then the State Courts have no jurisdiction of such demands ratione materiae.

This court has twice decided that a State Court is without jurisdiction in an action brought under the Workmen’s Compensation Act 20 of 1914 where plaintiff sustained injuries while aboard ship under a maritime contract. Genna vs. Vogeman, No. 8772, Bk. 61, Nov. 13, 1922, affirmed in Watson vs. Smith, 9060, June 11, 1923, and in Poncet vs. Hooley, No. 9095, May 28, 1923, Bk. 63.

These decisions were in accord with the opinion of our Supreme Court. Lawson vs. N. Y. S. S. Co., 148 La. 290, 86 South. 815.

And in accord with decisions of the Supreme Court of the United States. Southern Pacific vs. Jensen, 244 U. S. 206, affirmed in Knickerbocker vs. Stewart, 153 U. S. 149, and State vs. Dawson, 264 U. S. 219.

In Peters vs. Veasey, 251 U. S. 121, reversing our Supreme Court, in Veasey vs. Peters, 142 La. 1012, 77 South. 948, while engaged as a longshoreman unloading the steamer Seria, fell through the hatchway. The court said:

The work in which Veasey was engaged is maritime in its nature; his employment was a maritime contract; the injuries which he.received were likewise maritime; and the rights and liabilities of the parties in connection therewith were matters clearly within the admiralty jurisdiction. In such circumstances, the Workmen’s Compensation Law of the State had no application when the accident occurred. 234 U. S. 52, 61, So. Pac. vs. Jansen, 244 U. S. 205, affirmed in Knickerbocker vs. Stewart, 253 U. S. 149 (163), and in State vs. Dawson, 264 U. S. 219.

3. In relation to the saving clause to the Judiciary Act, the court said in Knickerbocker vs. Stewart, 253 U. S. 149:

“That clause of the provision granting exclusive admiralty and maritime jurisdiction to the Federal Courts (Judiciary Act 1789, S. 9; Jud. Code, S. S. 24-256), which saves to suitors” in all cases, the right of a common law remedy, where the common law is competent to give it, “refers to remedies for enforcement of the Federal maritime law, and does not create substantive rights or assent to their creation by the States”. Pp. 159-161. See also So. Pac. vs. Jensen, 244 U. S. 206; Robin Dry Dock vs. Dahl, U. S. Sup. Ct. advance opinions Nos. 6-7, February 2, 1925, p. 192.

The case of Grey vs. Drydock, 146 La. 826, 84 South. 109, seems contrary to the above decisions and to be overruled by Lawson vs. New York and P. R. S. S. Co., 148 La. 290, 86 South. 815.

The object of the Judiciary Act was to secure a uniformity in the law, that there should not be one remedy for those proceeding under the maritime law and another for those appealing to common or civil law.

We are bound to take judicial cognizance of our want of jurisdiction ratione materiae. 1 H. D. p. 332, No. 4.

We therefore come to the conclusion that an employee who suffers injury upon a vessel under a maritime contract cannot seek compensation in a State court.

It is therefore ordered that the judgment appealed from be affirmed at plaintiff’s cost.


source: Caselaw Access Project

author: BELL, J.

license: Public Domain

text:
    No. 8833.
    Orleans Appeal.
    THOMSON MACHINERY CO. v. WILLIAM HALEY.
    (February 2, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Sales—Par. 124, 128, 153.
    A contract for the cash purchase of machinery, subject to inspection and trial before acceptance, cannot be repudiated by the buyer months after trial and written acceptance by the buyer’s authorized agent. Buyer’s subsequent offer to give seller his note for the purchase price is conclusive evidence of acceptance of machinery and he cannot thereafter plead vices or defects in avoidance of the contract.
    Appeal from the Civil District Court for the Parish of Orleans, Division “B”, Hon. Fred. D. King, Judge.
    This action is for the price of merchandise sold and delivered.

      There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    L. R. Hoover, attorney for plaintiff and appellee.
    Sol. Weiss, attorney for defendant and appellant.
   BELL, J.

This is a suit for the price of a tractor and cultivating plow sold and delivered to the defendant. There was judgment for plaintiff and defendant has appealed. The tractor and plow is referred to in the pleadings and evidence as the “outfit”. The contract was a verbal one, and the price of the “outfit” was $1,650.00, terms cash. There is an additional claim for a certain part of machinery sold under a previous contract and valued at $3.85, and for prepaid express charges on this part, in the sum of 98^. The total judgment for these several items was $1,654.83.

Defendant answers by admitting the purchase and delivery of the “outfit”, consisting of tractor and plow, and it has been admitted at the trial of the case that the other items, totalling $4.83, are due. The contract price of the “outfit” is also admitted to be the sum of $1,650.00. Defendant avers, however, as a special defense, that the “outfit” was not the kind and character which he agreed to purchase, and that both the tractor and plow entirely failed to do the work guaranteed and for which it was purchased. It is further averred that the tractor was to have been equipped with a chassis, but that plaintiff failed to comply with this- and all other parts of the agreement or guarantee. It is finally denied by defendant that he agreed to purchase the “outfit” for cash, but that the terms of sale were that payment should be made after the crop season of 1921.

The contract was a verbal one, and it appears from the evidence that the negotiations leading up to the purchase of the “ofitfit” were consummated in the latter part of January, 1921, and that shipment was made to defendant on January '28, 1921, to Bayou Sale, La., a station near defendant’s plantation. It further appears that the agreement to' purehasej( this machinery was made by the defendant, and that prior to the sale that demonstrations of the tractor and the entire “outfit” was made at the experimental station in New Orleans, in the presence of defendant’s two sons, who are shown beyond doubt to have been his authorized agents, residing on and managing defendant’s plantation. We find that the “outfit” arrived in the early part of February, at the place above stated, and that representatives of the plaintiff called at the railway station with defendant’s sons, who examined the machinery, and at that examination complained that the tractor had no chassis. Plaintiff’s agent thereupon stated to defendant’s sons that there had never been any contract for the furnishing of the tractor with a chassis, and that if this was a serious objection, he would like to have them state so before removing the machinery from the railway station, as he had many other purchasers and could make the shipment at once for other accounts. Notwithstanding this request of plaintiff’s agent, defendant’s sons paid freight on the “outfit” and removed it from the railway station. Thereafter, an additional demonstration of the operation of this tractor was made in the early part of the month of April, at defendant’s plantation, by plaintiff’s agent, in the presence of one of defendant’s sons and his overseer. This demonstration continued during two days, and immediately thereafter, defendant’s son, Will Haley, Jr., was handed an invoice covering this machinery, bearing date January 31, 1921, and also bearing the word “Cash” under the printed word “Terms”, with a description of the property purchased as “One Kardell Tractor; One Cultivating Plow, price $1,650.00”. Plaintiff’s agent requested defendant’s son to certify on this document as to his acceptance and approval of the machinery. The certificate of approval appearing thereon and signed by Will Haley, Jr., reads as follows:

“Mr. Gilkinson has been here and proven to myself and overseer that the above outfit will do all classes of work in cultivation.
“(Signed) Will Haley, Jr.”

There is no doubt that some minor part of the plow, described in the evidence as the “foot”, was damaged at the aforementioned demonstration, but this defect was immediately rectified by plaintiff’s agent, and heavier and stronger parts were replaced.

We are satisfied that the saie of the “outfit” was made subject to inspection, trial and approval by the defendant or his agents, and that this inspection and trial was freely given and full and fair demonstration made of the machinery. Considering this understanding, it must be held as a proposition of law that the sale was not consummated until defendant’s acceptance and approval of the machinery. Art. 2640 of the Civil Code provides:

“Things, of which the buyer reserves to himself the view and trial, although the price be agreed on, are not sold, until the buyer be satisfied with the. trial, which is a kind of suspensive condition of the sale.”

Though the terms of the sale were for cash, the price was not, however, due by defendant until after the written approval above noted, that is, until after April 5, 1921. The evidence . shows that subsequent to this date, plaintiff made frequent attempts to collect the amount due for the machinery, and that from that date until June 4, 1921, no complaint whatsoever was made to the plaintiff in regard to the operation of the machine or its inability to perform the work for which it was purchased. It appears that sometime prior to May 30, 1921, the front right wheel of the tractor, while being operated by the defendant or his agents at the plantation, was broken while the tractor was being driven over a quarter drain in the field. The plaintiff, however, immediately furnished a new wheel free of charge, and on May 30, 1920, the other son of defendant wrote to plaintiff the following letter:

“This is to state Mr. S. Kelly, Mech. for Thomson Machinery, has this day, May 30, 1921, repaired the front right wheel of Kardell tractor, by replacing wheel, and this puts the tractor in repair.
“(Signed) Don M. Haley.”

Defendant does not charge in his answer any specific defects in the “outfit” furnished, but at the trial of the suit, evidence has been offered to prove defects as to the carburetor and magneto. None of hese defects were registered, however, until this suit was instituted, and the only complaint found in the correspondence arising subsequent to plaintiff’s demand for the price of the “outfit” is to the effect that the tractor was not mechanically strong, and that defendant desired, above all-things, that the tractor should be equipped with a chassis. It was finally noted in defendant’s correspondence, made on his account by his sons, that the payment for the “outfit” was not to have been made until the end of the crop season of 1921. We are forced to conclude that the objections noted are not well founded and formed no grounds for the repudiation of the contract, the “outfit” having been accepted after plaintiff’s agent distinctly informed defendant’s sons that the chassis was not to have been and- would not be furnished, and the invoice - itself distinctly showing that the terms of the sale were for cash. There is abundance of evidence in the record showing the use of' the plow and tractor between April 5th, the day the same was formally accepted, and May 30th, when the new wheel was furnished for the tractor. We find that the defendant himself did not inspect the machinery nor attempt to advise himself as to its satisfactory operation, until demands were made upon him for payment of the “outfit”, and that he, defendant, in the month of May or June, went to the plantation and had the tractor and plow operated in his presence. We are convinced, if his testimony on this point be taken as true, that this tardy and belated examination made by defendant in person was for the purpose of formulating excuses to delay the payment of the price long due. We quote, in part, from his testimony :

“Q. Do you remember getting letters from the Thomson Machinery Company in regard to payment for this tractor?
“A. Yes, sir.
“Q. Did you ever write the Thomson Machinery Company that the tractor was not satisfactory?
“A. I don’t know that I wrote to him that it was not satisfactory.
“Q. Did you agree to give Mr. Thomson a note?
“A. Yes, sir.
“Q. Did you call his attention to the fact that this tractor was not satisfactory?
“A. No, I offered to give him no note after I found out it was unsatisfactory.
“Q. When did you find that out?
“A. In May or June.”

The president of the plaintiff company .testifies that he had several business engagements with the defendant in regard to the settlement of the claim, and that after two or three months of promises made by defendant for the payment of the machinery, defendant finally offered plaintiff his six months’ note, but that this witness, on behalf of plaintiff, declined to accept anything but cash. There can be no doubt that defendant offered a note, the only difference in the testimony of these two witnesses is as to whether the note would be for six months or a year. This fact is also conclusive that defendant gave full, though belated, approval, to the operation and efficiency of the machinery. The offer to pay defendant by note is b'ound to have been made after May 30, 1921, when the final certificate of approval, already noted, was given by the son, Don Haley.

Under all the circumstances of this case, we find no legal ground for defendant’s repudiation of the contract. The conduct of defendant and his agents and their written documents found in the record, estop defendant from pleading any defects in the machinery, which would relieve him of his obligation to accept and to pay for the machinery sold.

In Champion Shoe Machine Co. vs. Antonio Culmone, 8795 Orl. App., this court has recently held:

“When a purchaser of machinery has used it for more than a year before offering to return it to the seller, and has paid several of the notes furnished by him for the purchase price, with full knowledge of the defects of the machinery, he must be held to have accepted the machinery, and is, therefore, bound to pay for it.”

The same ruling was made in Templeman vs. Fairbanks, 129 La. 983, 57 South. 309, where the court said:

“It is an undisputed fact that the plaintiff used the machinery for more than a year before offering to return it to the defendant. It is an undisputed fact that plaintiff paid several notes, given for installment of the purchase price, with full knowledge of many of the defects complained of in his petition. Plaintiff, therefore, must be held to have accepted the machinery.”

In the instant case, while no notes were given or paid — though one was offered in settlement of the purchase price' — the written certificate of approval furnished by defendant, through his agent, Will Haley, Jr., as already quoted, and the failure on the part of the defendant to successfully prove any specific or serious defects in the machinery sold or in its operation, bars recovery. (35 Cyc., Verbo: “Sales”, page 90, par. H, et se.)


author: CLAIBORNE, J.

text:
    No. 9932.
    Orleans Appeal.
    FRANK PAUL v. ARTHUR TABONY.
    (February 2, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Appeal—Par. 110.
    Act 29 of 1924 refers only to interlocutory decrees concerning temporary restraining orders or preliminary writs of injunction, but does not deny the right of suspensive appeal from final judgments, in injunction matters.
    Judge refused a suspensive appeal from a judgment on an- injunction.
    Mandamus made peremptory, commanding judge to grant an appeal.
    Paul W. Maloney, attorney for petitioner.
    D. V. Doussan, attorney for respondent.
   CLAIBORNE, J.

This is an application for a mandamus to order the judge of the District Court to grant the defendant an order of appeal. C. P. 837, Const. 1921, Art. VII, Sec. 2, p. 35.

The plaintiff obtained a judgment by default recognizing him as the owner of certain property and “ordering the defendant to deliver to the plaintiff possession of the same” and “condemning him also to pay to the plaintiff rent at the rate of $10 per monjil from September 27, 1920, to such time as he will have delivered to plaintiff the possession of said property”. The judgment was rendered December 1, 1921. On appeal to this court the judgment was affirmed on June 16, 1924.

Under this judgment the plaintiff on October 8, 1924, issued two writs, one a writ of possession to put plaintiff in possession of the property described in the petition and the other, a writ- of fieri facias, in the language of the writ, to pay “the sum of $10.00 per month from September 27, 1920, until Sheriff places plaintiff in possession of premises”.

Under that writ, the Sheriff notifiéd the defendant that he had seized “all the furniture and other movable property contained in the premises No. 2014 Magnolia Street”.

The plaintiff stated in argument that the amount claimed under the writ was the rent from September 27, 1920, to the time the Sheriff would execute the writ of possession on October 8, 1924, or 45 months, or $450, or, at least, from the date of the judgment, December 1, 1921, or 15 months, or $150, which was left uncertain until determined by the Sheriff.

To arrest the writ of fieri facias the defendant filed a petition for an injunction.

He averred that the judgment was conditional and could not be made the subject of execution until after this court has determined by proper order the exact amount which might be due under the said judgment; “that he had repeatedly offered the possession to the plaintiff, who declined it, and that he was therefore not liable for the payment of the $10 monthly; that the Sheriff has threatened to remove the furniture which he has seized and which is worth $1,000; that he is entitled to a restraining order “until the final determination of the question”.

Fi fa must issue for a stated amount to be fixed by the judge. 9 A. 496.

He prayed for an order restraining the plaintiff and the Sheriff from proceeding in the execution of said judgment until a hearing by the court.

A restraining order was issued on October 11, 1924, and the plaintiff was notified’ to show cause why a preliminary injunction should not issue as prayed for.

For answer to the rule the plaintiff, Paul, admitted the judgment for rent at $10 per month as alleged, admitted the seizure as alleged, and further answering averred that the defendant, Arthur Tabony, had been in possession of said property continuously from September 27, 1920, to October, 1924, which fixed the amount due by him; that the issuance of the restraining order was illegal and he prayed for its dissolution with attorney’s fees and damages.

On October 17, 1924, a hearing was had, the restraining order was dissolved and the perpetuation of it refused with $100 attorney’s fees as damages.

Prom this judgment Arthur Tabony, plaintiff in injunction, on the same day filed a petition in which he prayed that Act 29 of 1924, in so far as it denied him the right of appeal, be declared unconstitutional and that he be granted a suspensive appeal from said judgment.

On the same day the judge refused the appeal.

Tabony applied to the Supreme Court for a mandamus to compel the judge to grant to him the appeal prayed for. The Supreme Court denied relief on the ground of want of jurisdiction. No. 26,904, Dec. 1, 1924.

The defendant then applied to this court for a similar mandamus.

In that application he alleged the facts above related.

He alleged further that “the plaintiff issued execution under the said judgment for the said sum, assuming that the defendant had remained in possession of said property, but which was only a ‘conditional judgment and required an order of court definitely fixing the time and period of said possession; that defendant attempted to have the lower court to hear the said plea and sued out a restraining order to prohibit the Sheriff from seizing his property until he had been given an opportunity to be heard as to what might be found to be due to the plaintiff, if anything, which was denied; that he had an unquestioned right to litigate the right of the plaintiff to recover the said amount; * * * that the plaintiff did not have the exclusive right to determine for himself how much the defendant should pay; but proof in this regard was refused by the District Court”.

Judgment must be for an amount certain. Consolidated Engineering Co. vs. Town of Crowley, 105 La. 625, 30 South. 222.

We do not consider that the Act of 1924 is applicable to the facts of this case. The title of the Act is as follows;

“To regulate procedure and practice in and power to the courts of this State in respect to temporary restraining orders and preliminary writs of injunction.”

Section 2 of the Act regulates the manner of obtaining temporary restraining orders and provides for the ' dissolution or modification of such orders or preliminary writs of injunction, and the mode of trial, that may lead to the issuance of the injunction.

Section 5 provides that “no appeal shall be allowed from any order granting, refusing, or dissolving a restraining order, but where upon a hearing a preliminary writ of injunction shall have been granted, continued, refused or dissolved by an interlocutory order or decree, or an application to dissolve an injunction shall have been refused by such order or decree, a devolutive, but not a suspensive appeal, may be taken as a matter of right from such interlocutory order or decree and c.”

. The judgment rendered in this case was not merely an order dissolving the restraining order, but the case was tried upon its merits after answer filed in which a regular judgment rendered. Taft vs. Donnes, 105 La. 704, 30 South. 112; Wade vs. London and Sheriff, 30 La. Ann. 660.

Nor was it an interlocutory order or decree, but a final judgment refusing the restraining order and its perpetuation and condemning the plaintiff in injunction to pay $100 attorney’s fees; and was regularly signed.

The judgment disposed of every branch of the case and left nothing to be tried. The statute does not contemjtlate either in its title nor in its different sections that no suspensive appeal should be granted from such a judgment, but if it did it would be unconstitutional for the double reasons that no such intention appears from its title, and that the right of appeal is constitutional and cannot be denied by legislative or judicial authority.

Having reached the conclusion that the Act of 1924 has no application here, it is clear that the defendant is entitled to a suspensive appeal from the judgment denying the ■ perpetuation of the injunction and condemning him to pay $100 attorney’s fees.

It is therefore ordered that a mandamus issue herein be made peremptory commanding the respondent judge to grant the relator a suspensive appeal from the judgment herein rendered on October 17, 1924.


text:
    No. 8826.
    Orleans Appeal.
    ALVIN S. SPIES, Appellant, v. JOSEPH CARUSO.
    (February 2, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Evidence — Par. 53, 59; Mandate — Par. 8.
    The burden of proof of agency is upon him who alleges it.
    Appeal from Civil District Court, Hon. Porter Parker, Judge.
    This is a damage suit against an alleged purchaser of merchandise for refusing to re ceive same. Judgment for defendant. Plaintiff appealed.
    Judgment affirmed.
    Henry L. Sarpy, John D. Nix, Jr., W. W. Wright, attorneys for plaintiff and appellant.
    John Wagner, attorney for defendant and appellee.
   CLAIBORNE, J.

This is a damage suit against an alleged purchaser of merchandise for failing to receive same.

Plaintiff alleged that he made the following contract with the defendant:

'6/25/20.
J. Caruso.
Dear Sir:
This is to certify that we have today booked you for twenty-five tubs of butter at 66%^ to be taken out as needed until December 31, 1920.
This to be binding must be signed by both parties.
(Signed) Joseph Caruso.
A. S. Spies. E.”

That the defendant took out only two of said tubs, and refused to take any more; that after demand upon defendant and refusal by him, plaintiff, on January 18, 1921, sold said butter at fifty-one cents, at a loss of $228.16, which he claims from defendant.

The defendant admitted that he signed the* document sued upon, but denies that the same was ever signed by the plaintiff, or that it was ever considered by him as a contract; that defendant was never notified that plaintiff had signed the contract, nor was any copy of same served upon him; that since the date of said alleged contract he has purchased much butter from the plaintiff but never under the terms of said document, nor was any mention made of any contract.

There was judgment in favor of defendant and plaintiff has appealed.

The allegations of defendant’s answer are fully proven. The signature “A. S. Spies, E.” was written by a brother and employee of the plaintiff. There is no evidence of the date when said signature was affixed nor of the authority of E. A. Spies to sign for his brother.

The burden was upon him to prove his authority. 6276 Ct. App., Bienvenu vs. Citizens Bank, 6 La. Ann. 524; McCarty vs. Straus, 21 La. Ann. 592; F. G. Barriere & Co. vs. Widow Mathilde Fortier, 23 La. Ann. 274; 2 Greenl. S. 158, 2 C. J. 915-835. In re Lafourche Transp. Co., 52 La. Ann. 1521, 27 South. 958; 2 Greenl. S. 158, 2 C. J. 915-835.

A further evidence of the absence of contract is that subsequent to June 25, 1920, defendant made thirteen purchases of butter from the plaintiff at various times from July 2 to October 26, at prices ranging from sixty to .sixty-three cents, for which bills were Sent by plaintiff to defendant without mention of contract, and which, presumably, have been paid, as no claim is made for them in this suit.

The plaintiff did not testify; and the E. A. Spies who testified was not the drummer who procured defendant’s signature.

Judgment affirmed.


author: WESTERFIELD, J.

text:
    No. 8828.
    Orleans Appeal.
    EMILE L. MEINE v. MOSSLER AUTO EXCHANGE, INC., Appellant.
    (February 2, 1925, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest — Pleading—Par. 11; Estoppel — Par. 31.
    Plaintiff, suing for the price of an alleged contract of sale, will not be heard to argue that defendant is liable for the value of the thing alleged to have been sold because of defendant’s negligent acts as a broker. Counsel cannot be heard to argue against his pleadings.
    Appeal from Civil District Court, Hon. Fred D. King, Judge.
    This is an action for the purchase price of an automobile.
    Judgment for plaintiff. Defendant appealedt
    Judgment reversed.
    Carbajal & Gaudin, attorneys for plaintiff and appellee.
    Sanders, Brian & Sanders, attorneys for defendant and appellant.
   WESTERFIELD, J.

Plaintiff, alleging the verbal sale and delivery of his Dodge automobile,;to, defendant, brings this suit for $500.00; the alleged purchase price “or in the alternative the return to plaintiff of said automobile.”

Defendant denies that there was any sale, averring that “plaintiff drove an employee of defendant to plaintiff’s place of business, where the automobile was at the request of plaintiff driven back by .respondent’s em-' ployee, under a tentative contract of brokerage or factorage; that after said automo•bile was returned as is customary in the automobile trade in the City of New Orleans, it was left temporarily at the edge of the street in front of respondent’s place of business; that shortly thereafter the said automobile was stolen by a person or person's unknown to respondent; that respondent notwithstanding diligent efforts and inquiries, was unable to recover the same or to discover the thief.”

From a judgment in plaintiff’s favor for $500.00 the defendant has appealed.

Defendant’s counsel in his brief directs our attention to Act 193 of 1920, now repealed but in effect at the time of the alleged sale, requiring the sale of automobiles to be by authentic act. This act was not pleaded nor any effort made to show that the plaintiff was within its terms, there being an exception in favor of owners of cars at the time of the enactment of the law and new and unused cars. We are unable to say in the condition of the record whether the plaintiff in this case was within the exception as made by Sec. •4 of the Act or amenable in the prohibitory provisions thereof.

Four witnesses have testified in the case, three for plaintiff, the plaintiff himself, R. L. Willkomm and Edward Demazeliere and for the defendant Mossier, the proprietor of the defendant company.

The plaintiff’s statement of the transaction is as follows:

“I was driving past the Mossier Auto Exchange about the 5th of. May, and a representative, the manager then, Mr. Willkomm, of the Mossier Exchange, made' a verbal agreement to me in front of a witness that h& would sell my automobile,, and for that purpose he drove down to my garage and brought the automobile back with the understanding that I was to. report the next day to receive $500.00, the price agreed for that automobile. The following day, when 1' was to go to the Mossier Exchange,. I had a telephone call from Mr. Willkomm, the manager, telling me that the automobile evidently had been stolen.”

■ Willkomm, the former manager of defendant, testifying for plaintiff in a friendly manner, says:

“Q. Don’t you know a contract is not a contract until it is agreed to by both parties?
'A. It was a verbal agreement.
■•Q. What was your contract with Mr. Meine when he left?
A. To sell the car for him for $500.00.”

The' witness Demazeliere, who was in the car with plaintiff when the agreement was made, testified:

- “We were coming from Canal Street and happened to stop at Mossler’s Exchange. Mr. Willkomm was standing outside. He asked Mr. Meine if he wanted to sell the car. Mr. Meine said yes. Mr. Willkomm asked him what he wanted for it. Mr. Meine said $500.00. Mr. Willkomm said, Well, I have it sold for $500.00’. He comes t'o the garage with us, and he takes the Mossier car back and the next day in the afternoon I was in Mr. Meine’s place and he rang up and told him that the car was stolen, but it was the next day, and the car' was going to be sold that evening. That is all I know about it.”

It is unnepessary to discuss the testimony, of the. defendant’s witness. He was not present during the negotiations, being represented by 'his then manager Willkomm. Plaintiff has failed to show any sale of ,his .automobile to defendant. His own testimony is to the effect that defendant undertook to sell his car for him. Each of the twb other witnesses produced by plaintiff testify to' the same effect. We conclude, that there was no sale of plaintiff’s car to defendant.

But plaintiff’s counsel argues that the defendant is liable to him as a depository or broker because he failed to take proper precautions for the safety of his property. Without discussing the merits of this contention, we observe that it is' a totally different cause of action from that set out in plaintiff’s petition and inconsistent therewith. Plaintiff cannot be heard in argument against his pleadings. Louisiana Digest, Vol. VI, Verbo. Pleadings, Par. 11. Having sued on a contract of sale the issue tendered is one of sale vel non and when the evidence showing a totally different situation is presented by way of defense, plaintiff may not shift his position in an effort to establish defendant’s liability upon a different cause of action consistent with the developments.

For the reasons assigned the judgment appealed from is reversed and it is now ordered that there be judgment in favor of defendant, dismissing plaintiff’s suit with costs of both courts.


author: ODOM, J.

text:
    No. 1805
    Second Circuit Appeal
    FRANK A. ELY v. R. N. DORRITY
    (February 3, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Bills and Notes— Par. 194.
    In view of Articles 158 and 169 of the Code of Practice, it is not necessary to make amicable demand on defendant; the maker of the note, when, suing on a promissory note which is past due and unpaid.
    Appeal from. the City Court of City of Shreveport, Louisiana, Hon. D. B.' Samuels, Judge.
    Action to collect a promissory note. The defense is that additional time Vas given defendant to pay. Judgment for plaintiff and .defendant appealed. '•

      Judgment - affirmed.
    J.‘ E. Ha-rrington, of Shreveport, attorney for plaintiff and appellee.-
    . Dickson and Denny, of Shreveport, attorneys for defendant and appellant.
   ODOM, J.

This is a suit on a promissory note for $162.15, dated June 10, 1922, and made payable on June 24 after its date.

The suit was filed on July 18, 1924.

Defendant answered admitting execution of the note sued on but alleges that he had a verbal agreement with plaintiff at the time the note matured “that additional time was given and that without making any demand or cancelling his agreement with your defendant this suit was filed,” and “defendant especially alleges that plaintiff had no right to sue upon the note without putting your defendant in default.”

OPINION

There is no dispute as to the debt sued on. Defendant owes the amount but he contends that he had been granted additional time in which to pay the note and that plaintiff’s suit was premature.

The note sued on matured on June 24, 1922. The suit was filed on July 18, 1922. The testimony of defendant is that when the note fell due on June 24 he told plaintiff that he did not have the money with which to pay the debt but that he had “an escrow which I thought would be closed out on the 15th” and that he told plaintiff, “if I cannot get the money by the 15th I will borrow the money and pay you.” He further says that he made arrangements to pay the note. That on Wednesday, July 12, his mother-in-law died and' that it “ran along that way until I decided I ought to mail him a cheek.” He says that finally he called plaintiff and told him that he would mail- him a check but that he did not - want to pay attorney’s fees. He says that he had been informed by a friend that suit had been filed. Suit-was filed on' July 18. It is therefore clear that the suit was not filed within the extension of time granted by plaintiff to defendant.

Defendant claims that the suit should not have been filed before formal demand was made by plaintiff. The note matured on June 24. Evidently demand w'as made at that time for defendant asked for an extension of time to July 15, which was granted by plaintiff. He failed to pay witbiin the extension.

Article 169, Code of Practice, reads as follows: «

“It is not necessary previous to bringing a suit to make an amicable demand in writing.”

It is only in cases where the action ' is brought before the maturity of the debt that the suit should be dismissed.

See Code of Practice, Article 158.

This suit was brought after the maturity of the debt and after the expiration of the extension of time for the payment thereof.

' Even if that were not true demand for payment of the note is specially waived on the face thereof. However, if any demand for any reason was necessary in this case, one was made at the maturity of the debt, which was sufficient.

For the reasons assigned the judgment appealed from is affirmed with costs. '


author: CARVER, J.

text:
    No. 1823
    Second Circuit Appeal
    C. E. EASTERWOOD v. MRS. MAY E. SCOTT ET AL.
    (February 3, 1925, Opinion and Decree)
    (March 2, 1925, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Evidence—Par. 52, 56, 59.
    Under Article 2245 of Civil Code, defendants’ allegation that they do not know the signature of deceased on a note throws the burden of proof on plaintiff to prove it.
    2. Louisiana Digest — Evidence—Par. 208.
    In view of Act No. 207 of 1906 and Civil Code, Article 2278, parol proof of signatures of deceased persons in suits filed more than twelve months after , death is admissible and may be made by the evidence of plaintiff and at least one credible witness of good moral character besides the plaintiff.
    3. Louisiana Digest — Evidence—Par. 208.
    In view of Article 2245 of the Civil Code and Article 325 of the Code of Practice, where the defendants allege that they do not know the signature of deceased,» the proof of signature of deceased is properly made by two credible witnesses, one of whom is the plaintiff.
    4. Louisiana Digest — Marriage—Par. 211, 212.
    The widow' and orphan child are not bound in solido but only jointly by a promissory note signed by the deceased husband.
    Appeal from the First Judicial Court of Louisiana, Parish of Caddo, Hon. T. F. Bell, Judge.
    . Plaintiff sues the widow and sole heir (a minor) of Marvin Scott, deceased, on open account, and also a note for $500.00 (besides interest and attorney’s fees), alleged to have been signed by said Scott.
    This is a suit filed more than twelve months after the death of Marvin Scott. Judgment went for plaintiff in the lower court on the note but against him on the account.
    Defendants appealed and plaintiff does not complain of the judgment of the lower court.
    Judgment amended and affirmed.
    Cook & Cook, of. Shreveport, attorneys for plaintiff, appellee.
    Joseph H. Levy, of - Shreveport, attorney for defendant, appellant.
   CARVER, J.

Plaintiff sues the widow and sole heir (a minor) of Marvin Scott deceased, on an open account, and also a note for $500.00 (besides interest ’ and attorney’s fees), alleged to have been signed by said Scott.

Judgment went for plaintiff in the lower court on the note but against him on the account.

Defendants appealed, and plaintiff does not complain of the judgment of the lower court.

The suit was filed more than twelve months after the death of Marvin 'Scott.

Defendants contended in the lower court and also in this court:

1. That the suit, having been filed more than twelve months after the death of Marvin Scott, parol evidence was not admissible to prove his signature on the note; and

2. That if such evidence was admissible, the signature was not proven by the quantum of proof demanded by law.

1.

In support of the first contention, defendants rely on Act 207 of 1906, which reads as follows:

AN ACT to limit the admissibility of parol evidence to prove any debt or liability of a party deceased.

Section 1. Be it enacted by the General Assembly of the State of Louisiana, That from and after the promulgation of this act, parol evidence shall be incompetent to prove any debt or liability upon the part of a party deceased, except it consist of the testimony of at least one credible witness of good moral character besides the plaintiff; or except it be to corroborate a written acknowledgment or promise to pay signed by the debtor; or unless an. action upon the asserted indebtedness shall have been brought within a delay of twelve months after the decease of the debtor.

Section 2. Be it further enacted, etc., That all laws or parts of laws in conflict herewith be and the same are hereby repealed.

They also cite:

Succession of Manion, 148 La. 98, 86 South. 667.

Spillman vs. Spillman, 147 La. 47, 84 South. 489.

Moon et al. vs. Dye et al., 150 La. 255, 90 South. 639.

Defendants do not deny the signature on the note but allege that they do not know it, which, under Article 2245, Civil Code, was equivalent to a denial, thereby throwing the burden on plaintiff to prove it.

Plaintiff sought to prove the signature by the testimony of plaintiff himself and that of J. P. Scott, a brother of Marvin Scott. Defendants objected, on the ground above mentioned, which objection the lower court overruled and, we think, properly. The parol evidence was not offered to prove the debt; the instrument sued on did that; and the parol was offered merely to prove the signature.

The Civil Code prohibits parol evidence in many classes of cases. Some are given in Article 2278, namely: to prove a promise to pay a judgment in order to take it out of prescription or to revive it after prescription has run; to prove the promise of a party deceased to pay a debt, for either of the purposes above mentioned; to prove a promise to pay the debt of a third person; to prove a promise to pay a debt- evidenced by writing after prescription has run; but it has never been considered by the bench or bar that these prohibitions prevented parol proof of signatures to written instruments evidencing any of the things above mentioned.

If defendant’s contention that the act in question, in declaring parol evidence shall be incompetent to prove a debt of a party deceased unless suit is brought within twelve months after the death, meant to prohibit such evidence to prove the signature of a party -to an instrument evidencing the debt,' is correct, then equally Article 2278 of the Civil Code prohibiting parol evidence to' prove various things above mentioned Would prohibit such evidonee to prove signatures- to. .instruments evidencing such things. We think .such a construction of this, article, would strike the ■ profession with amazpment.- That such proof was admissible has never been questioned that we know of, and certainly could not be successfully questioned after acquiescence by bench and bar during the many years that have elapsed since .that article was adopted.

The act in question is,. in our ' opinion, less susceptible of the construction contended for than Article 2278. That article clearly is a prohibition against receiving parol evidence. It says “parol evidence shall not be received.” The act, though, is not so clearly a prohibition against receiving the evidence. What it says is that parol evidence shall be incompetent to prove “any debt or liability upon the part of a party deceased, except it consist of the testimony of at least one credible witness of good moral character besides the plaintiff; or except it be to .corroborate a .written acknowledgment or promise to pay signed by the debtor; or unless,” etc.

This, if a prohibition against receiving parol evidence in suits filed more than twelve months after the death, is not, in case of suits filed within that time, a .prohibition against, receiving parol evidence of the kind mentioned in the two exceptions, but rather contemplates that it shall be received and merely prescribes the measure it must fill.

We find nothing in any of the cited cases supporting the defendant’s contention on this question.

In the Moon case, there wa,s no written evidence, but. plaintiff sought “by purely oral testimony to prove the alleged indebtedness.

In the Spillman case, also, the oral testimony was not offered to prove a signature but to prove a debt not shown by any instrument purporting to be signed by tbe ■ deceased.

In. thé Manion case the signature was •not disputed, but the signed instrument did. not itsélf prove the alleged claim, being unintelligible on its face, and the parol proof was offered not merely to explain the written instrument but rather in order to prove the claim by its own weight.

The court did hold, though, that if suit was not brought within twelve months, parol, evidence was incompetent, even if it were of 'the kind mentioned in the two exceptions.

•It is clear that in none of these cases did the court hold that the prohibition of the act in question prevented parol proof of signature to written instruments. If any .expressions in the decisions seem to imply that the act would do so, we are satisfied the court did not intend the expressions in that sense and would repel the idea of being held to such sense. -

2.

■The plaintiff testified that he saw Marvin Scott sign the note in question.

J. P. Scott, a brother of Marvin Scott, testified as follows:

“Q. Are you familiar with Mr. Marvin Scott’s handwriting?
“A. Yes, I think I should be.
“Q. You were associated in business with him, were you not?
“A. Pie was an employee of a corporation that I owned.
"Q. ' Will you look at that signature and answer the question, please, sir, if you recognize that as the signature of Mr. Marvin S.cott? (Referring to the signature on the note.)
■ “A. I would be bound to say that that is his signature. If it isn’t, it is such a good imitation that I could not tell the difference."

He further testified that he. was now president of Southern Drug Company, of which Marvin Scott had been president at the time of his death, and that he and Marvin Scott each owned 450 shares of its stock.

The widow of the deceased, .who had been married to him three years, testified that she did not know his handwriting.

Defendants contend that the testimony of plaintiff and J. P. Scott was not sufficient under Article 2245, Civil Code, and Article 325, Code of Practice, which read as follows:

Civil Code, Article 2245:

“If the party disavow the signature, or the heirs of other representatives declare that they do not know it, it must be proved by witnesses or comparison, as in other cases.”

Code of Practice, Article 325:

“Denial and proof of signature. If the defendant deny his signature in his answer, or contend that the .same has been counterfeited, the plaintiff must prove the genuineness of such signature, either by witnesses who have seen the defendant sign the act, or who declare that they know it to be his signature, because they have, frequently seen him write and sign his name.
“But the proof by witnesses shall not exclude the proof by experts or by comparison of the writings as established by the Civil Code.”

Defendant’s counsel cites Watts vs. Collier, 140 La. 99, 72 South. 822. In -that case the signature in question was one purporting to have been made to a homestead waiver by a negro woman by making her mark. One witness, the clerk of the plaintiff, testified that he saw her make her mark. There was some question as to whether the instrument was prepared at one or the other of two visits. The negro woman and her husband both testified that she did not sign by making her mark on either visit though • both were present on both occasions. Their daughter, present on one of the occasions, swore she did not sign it on that occasion. ¡ The woman in her pleadings had denied her signature, thereby throwing the burden of proving it on plaintiff.

It thus appears that there was one witness against two, or perhaps one witness against three. The court held in the original opinion that this did not fulfill the measure of proof required by Code of Practice 325, which requires witnesses, which means, of course, more than one witness.

In the opinion on rehearing, Justice Monroe considered that Code of Practice, Article 325, did not apply to a case where the signature was by mark, but held, as we understand it, that the testimony of the one witness in that particular case, being both contradicted and uncorroborated, was insufficient to discharge the burden resting upon plaintiff, irrespective of Code of Practice, Article 325.

Defendant’s counsel contend that- John P. Scott’s testimony should be eliminated for the reason, as he says, that it destroys itself; and that he does not testify that he saw him sign, the note or that he is familiar with the handwriting of his brother by having often seen him write and sign his name, or does he qualify as an expert.

We do think this contention sound. In stating that if the signature in question was not his brother’s signature it was such a good imitation that the witness could not tell the difference, we think the witness was emphasizing the previous part of his answer to the effect that he was bound to say the signature was his brother’s. We do not think it implies any doubt of its being so beyond the doubt which would exist in any case where a signature apparently genuine was examined and where, of course, the bare possibility existed of its being a perfect forgery.

In view of the relations between the witness and Marvin Scott (they -being brothers and Marvin an employee of -plaintiff’s corporation, which position of necessity required him to do a great deal of writing and signing his name, and Marvin being, besides, a man of considerable affairs to the knowledge of the witness), we are satisfied that the witness must have seen him write and sign his name frequently and would have so testified in express terms had he been asked the direct, question.

His answer did amount to saying that he knew the signature, and the only deficiency in the proof, if any, is his failure to state that he knew it from having seen him often write and sign his name.

The testimony of the witness was not objected to on the ground that he had not been qualified to testify to the signature either from having seen it made or from having aften seen him write and. sign; but it was objected to solely on the ground . that parol proof was not admissible. If the first objection had been made, we have no doubt'that the witness could have qualified by stating that he had often seen his brother write and sign his name. If, without having made that particular objection, the defendant would be in position to object to his testimony on that score in this court, the sustaining of the objection would not warrant final judgment against plaintiff but at most either a remanding for a new trial or dismissal of his action as of non-suit. We think, though, that under all the circumstances of the case we should hold the testimony of Scott admissible notwithstanding his omission to state (because, as we think not questioned), that he was familiar with the signature from having often seen him write and sign his name.

Holding, as we do, that the. testimony of both Scott and the' plaintiff is - properly to be considered, this, makes the testimony that of - two witnesses which, we think, fulfills the measure required by Code of Practice 325. '

It was expressly held in the case of Pinckard et al. vs. Hampton, 22 La. Ann. 439, that it was a sufficient compliance with this article where one witness testified that he had seen the defendant sign the instrument and another witness testified that 'he was familiar with the defendant’s signature and knew the disputed signature to be genuine.

This case is clearly in point here and with the. sole exception that in that case the facts are similar to the facts here the witness testifying to the signature by reason of being familiar with it, qualified to give such testimony by stating he had often seen .defendant write his name; while J. P. Scott in this case does not do so. .. .

As said above, though, we think the qualification of the. witness, considering all the circumstances, sufficient.

The unfortunate situation of the defendants, suddenly hereft of a husband and father and as suddenly reduced from, 'supposed affluence to comparative poverty, which situation is so forcibly depicted by defendants’ able counsel, appeals strongly to our sypmathies as men, but we cannot permit it to becloud our judgment as judges.

The judgment of the lower court is, we think, correct in holding defendants liable on the note but erroneous in holding them liable in solido. Their obligation is only joint.

■It is decreed that the judgment of the lower court be amended by decreeing Mrs. May Elliston . Scoti, widow of Marvin Scott, individually, and Mary Rose Scott, liable on the note sued on, not in solido but only■ jointly;' the minor’s liability, of the estate • .of. Marvin- Scott as' shown ■ by course,, .¡to -he: limited • to her interest in the inventory in the tutorship; and, as thus amended, that it be affirmed. Costs, of the lower court to be paid by defendants; those of the appeal to be paid by plaintiff.


author: ODOM, J. CARVER, J.

text:
    No. 2062
    Second Circuit Appeal
    HARRY S. LEDERMAN v. JAMES S. McCALLUM
    (February 3, 1925, Opinion and Decree)
    (March 2, 1925, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Registry—Par. 8, 11.
    In view of Articles 3322 and 3323 of the Civil Code and Act No. 190 of 1918, which provide for the effect of the recordation of a judgment, a judgment of the Court of Appeal on which a reheating is pending which has been filed by the deputy clerk of the district court, but not recorded, does not take effect against the property of the judgment debtor because the law requires recordation and not mere filing.
    2. Louisiana Digest — Registry—Par. 7.
    Act No. 215 of 1910, which has reference to the rank of the claims of creditors who file such acts or judgments on the same day is not in conflict with Act 190 of 1918, which provides for recordation of acts and judgments and iheir effect.
    3. Louisiana Digest — Registry—Par. 12.
    Act No. 190 of 1918, makes it possible for a' litigant who obtains a judgment against the adversary in an appellate court to record this judgcourt thereby making it act as a mortgage against the property of judgment debtor before this judgment becomes final.
    4. Louisiana Digest — Registry—Par, .7, 12.
    Under Act 190 of 1918, judgments are given effect between the date on which a judgment is rendered in an appellate court and the date upon which it becomes final provided the party in interest has obtained a copy of the decree and has the same registered. The mere filing of the decree is not sufficient. ...

      Appeal from the Thirteenth Judicial District Court of Louisiana, Parish of Rapides, Hon. Leven -L. Hooe, Judge.
    This is an hypothecary action brought against the purchaser of property which was sold after a judgment had been fileij, but not recorded, against the record owner.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    Hawthorne and Stafford, of Alexandria, attorneys for plaintiff, appellee.
    B. T. Dawkins, of Alexandria, attorney for defendant, appellant.
   ODOM, J.

On a date prior to June, 1919, the plaintiff in this suit was run over and injured by an automobile owned and driven by R. E. Pool. He brought suit in the District Court of Rapides Parish to recover damages sustained on account of said injuries. His demands were rejected and his suit dismissed. . Prom that judgment he appealed to this court where, on June 28, 1919, the judgment of the lower court was reversed and judgment rendered in his favor for the sum of $500.00. On the date that the judgment was rendered by this court, to-wit: June 28, 1919, the defendant Pool owned certain real estate in the city of Alexandria, Louisiana, and on the same day J. W. Hawthorn, one of the attorneys for the plaintiff, Lederman, took the original judgment of the Court of Appeal from the records and handed it to A. Y. Hundley, a deputy clerk of the District Court of Rapides Parish, and asked him to file it for record. The deputy, clerk, Hundley, then and there made the following endorsement on said judgment:

“Filed, June 28, 1919, at 2 o’clock P. M. A. V. Hundley, Deputy Clerk.”

Hundley was at the time at his desk in the District Court clerk’s office.

Subsequently thereto, but on the same day, P-. M. Hetherwick, clerk of the District Court of Rapides parish, instructed his deputy, Hundley, not to index or record said judgment in the mortgage records of the parish. Thereupon Hundley, the dep-. uty clerk who had filed the same, notified Hawthorn, the attorney, that he had been instructed by Hetherwick, the clerk, not to index or record said judgment. Hundley says that his recollection is not clear on the subject but that he presumes he then took the original judgment and placed it back in the record with the other papers and documents in the case of Lederman versus Pool. It is not clear whether these papers were then in ' the District Court clerk’s office or elsewhere. We think that makes no difference whatever.

An application for a rehearing in the case was timely filed and a rehearing was denied by the court on December 5, 1919, on which, date the said judgment became final. This judgment was indexed in the mortgage indices and duly recorded in the mortgage records of Rapides parish on March 23, 1920, and the record now in the mortgage office bears the following notation:

“Filed June 28, 1919, at -2 o’clock P. M. A. V. Hundley, Deputy Clerk.
“A true record, March 23, 1920.”

As stated already, on June 28, 1919, the day on which the Court of Appeal rendered judgment in favor of Lederman and against Pool and the day on which said judgment was handed to Hundley, deputy clerk, and the above noted endorsement made thereon, said Pool, defendant, owned certain real estate situated in the city of Alexandria, Rapides parish.

On the 14th day of August, 1919, sixteen days thereafter, he sold his said real estate to James S. McCallum, the defendant in this suit, for the sum of $4000.00 cash, under authentic act of sale, which was filed and recorded in the conveyance, records of Rapides parish on the following day.

- Prior to this sale said judgment had not been noted, recorded or registered on the daily register of conveyances, mortgages’ or other instrument's kept and used by the District Court clerk and’ ex-officio recorder of mortgages for Rapides parish, where the property is situated, nor had the same been recorded in the mortgage records of said parish nor indexed in the in-dices thereof.

It will thus be seen that at the time the defendant in this suit, McCallum’, purchased said property the application for a rehearing in the case of Lederman versus Pool was still pending in the Court of Appeal, said application having been filed on July 9, 1919, and finally disposed of on December 5, 1919; and, as stated, said judgment was not indexed or recorded in the mortgage records of the parish of Rapides Until March 23, 1920.

Prior to the sale of the property by Pool to McCallum the purchaser employed counsel to examine and pass’ on Pool’s title to the property. After examining the records the attorneys reported to McCallum that Pool’s title thereto was good and that said property was unincumbered with the exception of two mortgages which were paid and cancelled at the.time of the sale.

It is admitted that at the time the defendant, McCallum, purchased the property neither he nor his attorneys had any knowledge of the suit of Lederman versus Pool or of the judgment rendered by the Court of Appeal.

The present suit is an hypothecary action brought by Harry S. Lederman, plaintiff in the suit of Lederman versus Pool, against the property which his judgment debtor,’ Pool, owned on June 28, 1919, the day on ’ which the Court of Appeal rendered judgment in the case, but which said Pool sold to McCallum, defendant in this suit, on August 14, 1919, in order to have it seized and sold for the payment'of his debt. . :

There was judgment in the District Court for plaintiff and against defendant, ordering the defendant, McCallum, to deliver and relinquish the said property, describing same, into the hands of the sheriff of Rapides parish in order that it might be sold to satisfy plaintiff’s hypothe-’ cary debt recovered in the suit of Lederman versus Pool. Prom this judgment defendant has appealed.

OPINION.

Act 16 of 1910, page 28, provides:

“That judgments rendered in the Courts of Appeal of the state shall become final and executory on the fifteenth calendar day after the rendition * * * provided that in the interval parties in interest shall have the right to apply for rehearing;

If an application for rehearing is filed within fifteen days as prescribed by the statute, the judgment does not become final until said application is finally disposed of by the court.

The judgment in the suit of Lederman vs. Pool was rendered by the Court of Appeal on June 28, 1919. On July’ 9, 1919, following, within fifteen days, an application for rehearing Was filed by Pool. This application was not finally disposed of until December 5, 1919, on which date and not until then did the said judgment become final and executory.

Whatever force or effect the judgment in this case may have had on the day it was rendered was suspended by the application for rehearing timely filed. A judgment of any court cannot affect the title to real property or act as a mortgage thereon until it becomes final, unless there be some codal provision or legislative act prescribing a method by which it may sooner take effect.

If .provision has been made for judgments ,to become operative between the .date .of .rendition and the date on which they become final the method prescribed must be. strictly complied with.

. Article '3322 of the Civil Code provides:

“The judicial mortgage takes effect from the' day on which the judgment is recorded in the manner hereinafter directed.”

Article 3323 provides:

“If there be an appeal from the judgment and it Is confirmed, the mortgage relates back to the day when the judgment was recorded.”

Article - 3323 and 3322 prescribe a method by which' a judgment of the District Court may be made effective as a mortgage or otherwise prior to the day on which it is made final by a court of last resort in case of an appeal.

The Code provides that it must be recorded.- Until recorded there is no mortgage, and unless recorded a judgment appealed from can have no effect as a mortgage even though it should be affirmed.

' Certainly no one will contend that the mere filing of a judgment of district court with the recorder of mortgages would give it effect as a mortgage from the date of such filing in case of an appeal unless such judgment was timely recorded. It is not the filing but the recordation of the judgment which gives it effect as' a mortgage. The Code is specific on that point.

The Code, however, makes no provision for the protection of the rights of a litigant who obtains a judgment, as in this case, in an appellate court. Such judgments may be and usually are. rendered in a parish other than the one in which the litigation arises, and it does not become a part of the records of the parish where such litigation arose, and there is no provision made in the Code for the removal of the original judgment or for the recordation of a copy thereof. Therefore, if a litigant who obtains a judgment against his adversary in an appellate court is to gain any advantage therefrom between the date of its rendition and the date on which it becomes final, he must find the method to be pursued for gaining such advantage in some special legislative enactment.

We find that the Legislature. has provided for just such contingencies. Act 190 of 1918 provides:

“That when any decreé has been rendered by any court of appeal or by the Supreme Court, any party to the / suit in which said decree may have been rendered, shall have the right to demand a copy of the said decree, and to have the same registered in either the mortgage or conveyance office of any parish in this state without regard to whether an application for a writ of certiorari or review, or for a rehearing, has or has not been made.”

And, Section 2:

“That the registry of a decree according to the provisions of Section 1 of. this act shall operate as a judicial mortgage, or as a recognition of title, or otherwise, according to the terms' of said decree, and shall continue to have that effect unless set aside or modified by the final decree in the proceeding.”

The purpose of this act is expressed in its title and is perfectly clear. It is to authorize the registry and regulate the effect of decrees of appellate courts in the interim between the date of their rendition and the date they become final. The act is specific in its terms.

It provides a method for giving effect to judgments between the date of rendition and the date on which they become final and it is specific in what shall be done. Any party in interest may obtain á copy of the decree and have the same registered, which- registry of such decree shall operate as a mortgage or as a recognition of title, etc. It is not the filing of the decree but, according to the specific terms of the act, the registry thereof which gives it effect.

Counsel for plaintiff, appellee, contends that Act 215 of 1910 governs in this case. We do not think so. That act is to “require the recorder of mortgages to endorse on all acts importing mortgages or privileges the date, the hour, and the minute of filing, and to make such instruments effectual against third persons from the date of their filipg.

The purpose of this act was not to give effect, to acts importing mortgages but to give them rank according to the date of their filing. The act contemplates that actual registry shall follow the filing and when timely registered they take effect from the time of the filing. •

Counsel cites the case of Godchaux Sugars, Inc., vs. Leon Boudreaux, 153 La. 685, 96 South. 532, in which the court made use of this expression:

“It is apparent, from a mere reading of the statute, that it is not from the date of recording, but from the time of filing, that the instrument becomes effective against third persons.”

And the court says:

“The law governing tlie issues involved 'in this case is to be found in' Act No. 215 of 1910.”

• The litigation in that case arose over the distribution of certain funds in the hands of the sheriff among creditors, all of whom had recorded judgments; three of them rendered on the same day and recorded " on the same day. The issue was as to which of these judgment creditors should receive said fund, and the court, in discussing that issue, made use of the above quoted expression.

We must not lose sight of the fact that the filing with the recorder of mortgages of an act importing a mortgage or lien makes the act filed a part of-the archivés of his office and that said act must not be removed therefrom, and that the law contemplates that such document shall ultimately be recorded in order to giye it effect.

Article 3322 of the Civil Code provides:

“That the judicial mortgage takes effect from the day on which the judgment is recorded.”

All that Act 215 of 1910 was intended to do and all that it did was to make it certain that such acts take effect from the very hour and minute of the day on which they are filed; that is, to rank the claims of creditors who file such acts on the same day.

Counsel’s construction of the act would bring it into conflict with the provisions of the Code on the subject of registry of judgments. There is no conflict, nor is there any conflict between Act 215 of 1910 and Act 190 of 1918.

To illustrate the purpose of Act 215 of 1910 let' us suppose there had been two cases against the defendant Pool in the .Court of Appeal and that that court had rendered judgment against him in both cases on the same day; and let us suppose further that the parties at interest had complied with the provisions of Act 190 of 1918 by getting a copy of said judgments and had had them registered in the mortgage records the same day. It might become a question as to which judgment would take rank.as a mortgage. The. act of 1910 provides for a case like that.. Under it the. clerk is required to stamp npt only- the day but the hour and minute of the filing of each document, so that there can be no question as to .which creditor would have the first lien or mortgage...

In the case at bar the original judgment was carried to a deputy recorder who marked it filed. It was then removed from the office. No note, record or minute of its filing was left in the office of the recorder. The original judgment was finally returned to the recorder^ office and recorded on March 23, 1920, and it bears the original filing date of June 28, 1919. We are asked to hold, that the effect of the recording of this judgment dates back to June 28, 1919. To do so would have to ignore both the spirit and letter of the law relating to the registry of judgments and disregard the plain and simple provisions of Act 190 of 1918.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be reversed and set aside, and that plaintiff’s demand be rejected and his suit dismissed at his cost.

ON APPLICATION FOR REHEARING.

CARVER, J.

Counsel for plaintiff very earnestly and very ably contend that the court erred in refusing to hold that, under Act 215 of 1910, the judgment in question took effect on the day it was filed in the clerk’s office. That act provides as follows:

“AN ACT to require the recorder of mortgages to endorse on all acts importing mortgages or privileges the date, hour and minute of filing; and to make such instruments effectual against third persons from the date of their filing.
“Section 1. Be it enacted by the General Assembly of the State of Louisiana, That all acts or instruments of writing which import mortgage or privilege shall when deposited with the recorder of mortgages for record be immediately endorsed by him with the date, hour and minute of filing; which endorsement shall be recorded with the registry of such instrument.
“Section 2. Be it further enacted, etc., That all such instruments shall be effective against all persons from the time of their filing.-
“Section 3. Be it further enacted, etc., That all laws or parts of laws in conflict herewith be and the same are hereby repealed.”
“AN ACT to authorize the registry and regulate the effect of decrees of Appellate Gourts in the interim between the date of this rendition and the date when they become final, and to repeal all laws in conflict with the provisions of this act.
“Section 1. Be it enacted by the General Assembly of the State of Louisiana, That when any decree has been rendered by any court of appeal, or by the Supreme Court, any party to the suit in which said decree may have been rendered 'shall have the right to demand a copy of the said decree, and to have same registered in either the mortgage or conveyance of fice of any parish in this state without regard to whether an application for a writ of certiorari or review' or for a rehearing, has or has not been made.
“Section 2. Be it further enacted, etc., That the registry of a decree according to the provisions of Section 1 of this act shall operate as a judicial mortgage, or as a recognition of title, or otherwise, according to the terms of said decree, and shall continue to have that effect unless set aside or modified by the final decree in the proceeding.
“Section 3. Be it further enacted, etc., That nothing in this act shall be construed to permit a writ of execution of a decree to issue until said decree is final.
“Section 4. Be it further enacted, etc., That all laws or parts of laws in conflict with the provisions of this act be and the same are hereby repealed.”

The Legislature must be presumed to have known the distinction between filing an instrument and registering it. As early as 1878 the Supreme Court, in an exhaustive and well-reasoned decision, had pointed out the difference between conveyances and mortgages as to the time of their taking effect — conveyances when they were filed and mortgages when recorded.

State ex rel. vs. Rogillo, 30 La. Ann. 835.

Thirty-two years after this the Legislature passed Act 215 of 1910 placing “all acts or instruments of writing which import mortgage or privilege” on the same footing as conveyances in that regard.

This act had no special reference to decrees of appellate courts, if any reference at all, as to which we express no opinion.

Eight years thereafter Act 190 of 1918 was passed, referring to decrees of appellate courts and to nothing else. In providing in this act that the registry of such a decree should operate as a judicial mortgage, we are not at liberty to presume that the Legislature was ignorant of the distinction between filing and registry and meant that the mere filing of such a decree, either a copy or the original, should so operate.

If the act. of 1910 applies to decrees of appellate courts, and if, for that reason, it conflicts with the act of 1918, the latter must govern because the last expression of the legislative will. Furthermore, the concluding section of the act of 1918 repeals all conflicting laws.

Rehearing refused.


text:
    No. 2165
    Second Circuit Appeal
    DOCTORS BLAKE AND ZEAGLER v. O.F. HACKNEY ON INTERVENTION AND THIRD OPPOSITION OF MRS. ANNIE L. DUPUY HACKNEY
    (February 3, 1925, Opinion and Decree)
    (March 2, 1925, Rehearing Refused)

      (Syllabus by the Editor.)

    1,Louisiana Digest — Marriage—Par. 127.
    Article 2399 of the Civil Code provides that every marriage 'contracted in this state superinduces a partnership or community of acquets and gains, if there be no stipulation to- the contrary.
    2.Louisiana Digest — Marriage—Par. 97, 99, 159.
    Article 2402 of the Civil ‘ Code' provides that “this partnership or community consists of the profits of all effects of which the husband has the administration and enjoyment”. Where it is proven that the property purchased by the wife after the marriage was boughjt with her paraphernal funds it does not fall into the community.
    Appeal from the Thirteenth Judicial District Court, of Parish of Rapides, Hon. Leven L. Hooe, Judge.
    This is a suit in which an injunction was issued against the sale by the sheriff on a writ of fi. fa. and enjoining the sale of the wife’s separate property on a judgment against the husband. There was judgment perpetuating the writ of injunction; and plaintiff, the defendant in injunction appealed.
    Judgment affirmed.
    Provosty and West, of Alexandria, attorneys for plaintiff in injunction Mrs. Hackney, appellee.
    K. Hundley, of Alexandria, attorney for defendant in injunction, Doctors Blake and Zeagler, appellants.
   OPINION.

ODOM, J.

On January 26, 1923, the plaintiffs, Doctors Blake and Zeagler, obtained judgment against the defendant, O. F. Hackney, in the sum of $250.00.

On April 12, 1923, the plaintiffs procured the issuance of a writ of fi. fa., which writ was placed in the hands of the sheriff for execution. Under this writ the sheriff seized fifty acres of land situated in the parish of Rapides, which land was seized as the property of the defendant, O. F. Hackney. He Was about to sell this property under the writ in satisfaction of said judgment when he was met with an injunction by Mrs. Annie L. Dupuy Hackney who sets up in her . petition that she is-the wife of O'. F. Hackney and she is the owner of the property seized under the writ. She alleges that the property is her separate paraphernal property, the same having • been acquired from L. J. Hakenyos on October 15, 1917, with her separate paraphernal funds; that said property is hot the property of O. F. Hackney- but that it belongs to her and that; should the sheriff sell it such sale will result in injury and damage to herself. She attaches to her petition the deed from L. J. Hakenyos to herself.

The plaintiffs in the original suit, defendants in injunction, filed an exception of no cause of action, which was properly overruled by the lower court, and then filed an answer in which it was denied that the property seized belonged to the' plaintiff in injunction and especially denied that it was purchased with her separate paraphernal funds.

It is especially alleged in the answer that the plaintiff in injunction had never possessed any separate and paraphernal funds, that she owned nothing when she was married to O. F. Hackney, and that in truth and in fact the property which had been seized, while standing in the name of the plaintiff in injunction, belonged to the community which existed between her and her husband, O. F. Hackney, and was therefore subject to the community debts.

The case was tried and resulted in a judgment in favor of the plaintiff - in injunction perpetuating the writ, declaring that' the property seized belonged to the plaintiff in injunction and was not subject to the -community debts and ordering the same released and awarding $50.00 as damages for attorney’s fees.

■ From this- judgment the plaintiffs in the original suit and defendants in injunction, have appealed.

OPINION;

We find in the record this agreement as to attorney’s fees:

, “It is agreed by and between counsel for ‘plaintiffs and defendant that $50.00 for attorney’s fees is allowed either on the dissolution or the sustaining of the writ of injunction in this case, with right to sue for additional attorney’s fees.”

Upder this agreement the court below properly awarded judgment in favor of plaintiff in injunction for the sum of $50.00 as attorney’s fees.

The deed from L. J. Hakenyos to Mrs. Annie L. Dupuy Hackney which is dated October 15, 1917, contains the following stipulation:

“The vendee declares that this property is purchased with her own paraphernal and separate funds and is to remain her separate property.”

The deed is signed by her . and her husband who makes himself a party thereto for the purpose of authorizing his wife to purchase.

The plaintiff. testifies that she was married to O. F. Hackney in the year 1907, some ten years previous to the acquisition of the property in controversy in this suit. She testifies that she made the cash payment of $225.00 with money which she acquired from the sale of personal property which was donated by her father previous to her marriage. She says, in substance, that .her father gave her a mare and colt and two cows and calves. She does not state the exact date on which her father gave her the property. She says that about one year after her father gave . her the property she sold the mare and colt back to him for the sum of $150.00 in cash and that subsequently she sold a cow for $50.00 and a yearling for $10.00 and • at other times sold the increase - from these cattle, so that within a few years. she accumulated more than enough money to make the first payment on her land. She testified that she kept the identical money which she had received from the sale of her livestock until the date on which she purchased the land; that she had kept this money in an armoir; that 'she did not let her husband get possession of it, as she feared if she did he would spend it.

Her testimony on the point of her ownership of the livestock is corroborated by that of her sister, her' husband, her stepson, a man by the name of Lackney, á colored man by the name of Hinson, and a blacksmith by the name of Reed, who says that he made a branding iron for Mrs. Hackney. All these parties say that when Mrs. Hackney .was married to O. F. Hackney she carried the livestock with her to the place of her husband.

Mrs. Lackney testifies that she bought a cow and calf from Mrs. Hackney and paid her .$50.00 for the same.

There were some witnesses introduced by the defendants, to-wit: J. A. Baker, W. M. Hathorn, C. S. Dupuy, and one or two others, who testified that they had known Mrs. Hackney and her father for many years and some of them spoke positively that she carried no livestock with her when she was married, and that if she ever Owned any they knew nothing of it. Others state that they had known her for a great many years and that she may have owned livestock but if she did they knew nothing of it. There is also testimony in the record that Mrs. Hackney’s father owned no real estate and but little personal property. However, it is conceded by all who testified on that point that he did own some livestock, and one of the witnesses testified that when he knew him he owned a mare and colt and two cows and calves.

After examining all of the testimony carefully we are thoroughly convinced that Mrs. Hackney, the plaintiff in injunction, did own at the time of her marriage some livestock. and that she later disposed of a portion of them and of the increase, and that in this manner she had acquired enough money to make the cash payment on the property in 1917. The witnesses who testified for the plaintiff are positive to the effect that she did own the property and those who testified in favor of the defendants, with one or two exceptions, are not so positive. Their testimony, as a rule, is of a negative character.

So that we hold that the cash payment on the property made by plaintiff in injunction was made with her separate and paraphernal funds, and therefore that the property became her separate property.

There was a deferred payment of $300.00 represented by a note. The plaintiff says that she leased her property for the year 1918 to her stepson and that she received as rental that year one-fourth of the crops produced, which netted her an amount more than sufficient to pay this note. Her husband, O. F. Hackney, and her stepson, who cultivated the land during that year, corroborated her on this point. Her stepson says that he cultivated the land and that he made $1700 or $1800 worth of cotton, onefourtli of which amount he paid to her.

On the question of the administration of the property, plaintiff says that her husband did not have control or management thereof, but that at all times' she had fed and looked after her livestock and that she looked after her real estate, and that at no time had her husband had anything whatever to do with either the livestock or the real estate.

Mr. L. J. Hakenyos, who sold her the property, testified that all negotiations leading up to the purchase were conducted by Mrs. Hackney herself and that she personally made the initial payment as well as the last payment; and that he had never had any interview with her husband except possibly' when he came with her to authorize her to make the purchase.

There was no intimation on the part of anyone that this is not true.

We think under the testimony the property seized under the writ is that of the wife and is not subject to the debts of the community.

Civil Code, Article 2399, provides that every marriage contracted in this state superinduces of right partnership or community of acquets and gains, if there be no stipulation to the contrary.

So far as the record shows, there is no stipulation to the contrary and therefore a community existed between Mrs. Hackney and her husband.

Article 2402 of the Civil Code provides that;

“This partnership or community consists of the profits of all the effects of which the husband has the administration and enjoyment.”

The plaintiffs in the original suit, defendants in injunction, in their brief cite the case of Knight vs. Kaufman and Meyer, 105 La. 35, 29 South. 711, where it was held that the fact that title was taken in the wife’s name and the property paid for out of her earnings for personal services rendered after marriage did not take it out of the category of community property, there being no separation of property.

They also cite to the same effect Succession of Manning vs. Burk, 107 La. 459, 31 South. 862; Succession of Manning, 150 La. 1008, 91 South. 435, and Schwab vs. Hava, 154 La. 922, 98 South. 420.

It is unquestionably true that the taking of title in the wife’s name does not take it out of the category of community property; and it is also true that property purchased during the existence of the community is presumed to be community property. No citation of authority is needed on this point. But it is also true that property which is purchased by the wife after marriage with her separate paraphernal funds is her separate property and does not fall into the community. That is the case here.

The plaintiff in injunction purchased this property with money, the proceeds of the sale of personal property which she owned prior to the date of her marriage. Therefore the property in controversy in this suit did not fall into the community.

Bower and Garner vs. F. Frindell and Wife, 17 La. 301; Knoblock & Rainold vs. Posey, 126 La. 610, 52 South. 847; Mary G. Shaw vs. Artemus Hill, 20 La. Ann. 531; Stauffer, MaCready & Co. vs. Henry L. Morgan, 39 La. Ann. 632, 2 South. 98; Philip Drumm vs. Louisa Kleinman, 31 La. Ann. 126, and many other cases which might be cited.

For the reasons assigned, it is ordered that the judgment of the lower court be affirmed with costs.

ON APPLICATION FOR REHEARING.

CARVER, J.

Counsel for appellants ask a rehearing on the grounds:

1. That the court erred in accepting as true the testimony of Mrs. Hackney which, he says, is vague and indefinite, parrot-like, self-contradictory, supported only by her own relatives, and contradicted by disinterested witnesses.

2. That the court erred as to the law, which is thát in cases of this kind the wife must show by indubitable proof that the property was bought with her separate, paraphernal funds, under her separate administration and control.

I.

On the question of the source from which was derived the cash payment of $250.00, Mrs. Hackney says that her father, ■Mr. Dupuy, before her marriage gave her a mare and colt and two cows and calves; that she subsequently sold back the mare and colt to him for $150.00; that from time to time she sold cattle, the progeny of the cows, mentioning one item of a cow sold to her sister for $50.00 and saying she sold others to butchers; that she looked after the cattle herself and her husband had nothing to do with them; that she kept the money she received in her armoir and made the cash payment with this money.

All this may be false, but it is not vague -or indefinite. Counsel have not pointed ■ out any self-contradictions in her testimony nor have we found any. Neither do we perceive anything parrot-like in her testimony. Her sister corroborates her as to buying the cow for $50.00 and a negro man corroborates her as to bringing the 'Cows and calves and the- mare and colt to her new home when she married. S. J. 'Reed also corroborates her as to her father’s giving her “some cows and calves,” etc. He was not asked as to the specific items. Her husband also corroborates her as to her bringing the mare and colt, cows and calves, selling the mare and colt back to her father, and also selling some cattle, but was not asked as to the number.

The counter testimony was as follows:

J. A. Barker said that at the time of Mrs. Hackney’s marriage her father had no plantation; worked on halves; and the only property he had “that witness knew of” was a cow and calf and a .small pony. He further stated that when she moved to her new home she did not bring any cattle, horses or stock of any kind “that he knew of”, and that if she had brought any he “guessed” he would have known of it. He says he lived within four or five miles of the Hackneys at the. time they married, and further, that he did not know Mrs. Hackney at all before she married and had only a passing acquaintance with her father. His testimony was given sixteen years after her marriage.

W. M. Hawthorn says he knew Mrs. Hackney’s father at the time of- her marriage, lived about three miles from him, and that he worked on shares, but that he did not know how much livestock he had or whether Mrs. Hackney brought any livestock in the marriage or not.

C. S. Duprey says that he knew what cattle and livestock Mrs. Hackney’s father had while living at Egg Bend, but was not asked to tell what it was. He further says that he did not know of any cattle Mrs. Hackney brought and if she had brought any he would have known it and that when her father moved away he had a couple of cows and a pony. This witness moved away from the community Where the Hackneys lived in .1911 — twelve years previous to the time he was testifying.

Kit -Hathorn, asked how much livestock the father had, answered: “All I saw was a pony and a couple of cows and calves.” He further states that Mrs. Hackney did not bring any cattle “that he knew of” and that if she had brought any he guessed he would have known it.

Thus it appears from the testimony of defendants’ own witnesses that the father had a pony and' a cow and calf, and according to Duprey and Kit. Hathorn, two cows and calves. None of them state that this was all he had but only that it was all they knew of.

Manifestly this testimony, negative and qualified as it is, cannot rebut the positive testimony of Mrs. Hackney and her supporting witnesses.

The testimony as to the money with which the credit payment was met is 'not so convincing, but we think that the character of paraphernality was stamped on the title at the time Mrs. Hackney received the deed, having been bought for her separate account, the cash part being paid for with ■ her separate funds, under her separate administration and control, and the credit portion not being beyond what she might reasonably expect to meet with her separate funds. We think it became her separate property.

The crop of 1918 was profitable and it is likely her one-fourth amounted to a large part if not all of the $300.00 balance due on the price; and according to her testimony she also had money left from cattle sales. But even if some of $300.00 balance was paid with the husband’s money, this could not operate as a conveyance to the husband of what became her separate property when acquired.

II.

The Original petition states: “But it is also, true that property which is purchased by the wife after marriage, with her separate, paraphernal funds, is her separate' property and does not fall into the community.”

Counsel claims that this is an erroneous statement of the law, which requires the wife to show not only that the funds invested were her separate, paraphernal funds, but that' they were under her separate administration and control.

But the opinion elsewhere substantially states that Mrs. Hackney testified that ,the funds vised to make the cash payment were the identical moneys received from the sale of her livestock and had been kept under her separate' administration and control, having been kept in her armoir; and this testimony was accepted by the court as true.

Rehearing denied.


author: REYNOLDS, J.

text:
    No. 2179
    Second Circuit Appeal
    MINGO HICKS, ET AL., v. ELLA BELL, ET AL.
    (Feb. 3, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 512.
    Additional damages of fivé per cent will be allowed for a frivolous appeal even though the original judgment have eight per cent interest and ten per cent attorneys’ fees under Act 225 of 1918,
    Appeal from the First Judicial District Court, Parish of Caddo, Hon. J. H. Stephens, Judge.
    This is an appeal from a judgment for plaintiff on a rule. Defendant appealed.
    Judgment affirmed with damages for frivolous appeal.
    Foster, Looney, Wilkinson and Smith, of Shreveport, attorneys for plaintiffs and appellees.
    Scheen & Blanchard and Robert Roberts, Jr., of Shreveport, attorneys for defendants and appellants.
   REYNOLDS, J.

Action by Mingo Hicks, et al. to compel Ella Bell and her surety on bond, to pay the amount of $628.50 and 10% attorneys fees provided for under Act 225 of 1918.

Plaintiff obtained judgment against Ella Bell in the sum of $15.00 and recognition of a lien and privilege resulting from an attachment and garnishment on the sum of $628.50 which had been attached in the hands of the American Bank & Trust Company.

Ella Bell obtained an order of court under which these funds were released to her upon her giving bond as prescribed by law with F. A. Blanchard as her surety.

The writ of attachment was sustained and judgment rendered in favor of the attaching creditors for the amount of $628.50 and costs. From this judgment no appeal was taken.

After giving the notice required by law to Ella Bell to deliver the $628.50 and to her surety on bond, this rule was taken. On the trial thereof, the only defense set up by the defendant was that there was no judgment sustaining the writ of attachment. A copy of this judgment was introduced in evidence and there was judgment for the plaintiff.

From this judgment defendants have appealed. Their only defense in this court is, that the apeal was taken in good faith, and they ask to be relieved from damages for frivolous appeal.

Under the evidence in the case we are forced to the conclusion that the appeal must have been taken for delay, and there must ’be judgment affirming the judgment of the lower court, with damages for frivolous appeal.

The judgment originaly rendered bore 8% interest and there had already been assessed in this case 10% damages under Act 225 of 1918. We are of opinion that 5% damages for frivolous appeal would do substantial justice.

State vs. Schonhausen, 37 La. Ann. 42.

Carroll vs. Chaffe, Jr., Syndic, 35 La. Ann. 83.

Harris vs. Peel, 17 La. Ann. 140.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed with costs and with 5% additional for frivolous appeal.