author: Howell, J. Morgan, J. WyLT, J.,

text:
    No. 5915.
    Succession of John A. Miller. On Opposition of Mrs. M. P. Metcalfe to the Account of the Executrix.
    This succession was opened in the State of Louisiana and in the State of Mississippi, in both of which States the deceased, who resided in Mississippi, left a large amount of property. In an account of her administration, containing a partial tableau of distribution, the administratrix charged Mrs. Metcalfe with the amount of two drafts drawn in her favor by the deceased and subsequently paid by the administratrix. Mrs. Metcalfe objected to it on several grounds, among which, because said two drafts having been donated to her by her deceased father in the State of Mississippi, and said gift having been perfected by delivery in said State, whore the donee was also domiciled at the time, can not be the object of collation in this State, wherefore she prays that the said charge be stricken from the account and the amount paid to her.
    In this case the only duty of the administratrix in respect to the drafts was to place the item on the account as so much paid or to be paid in the course of administration, leaving the question of partition and distribution to bo settled in other proceedings, if it should not be remitted to the State of Mississippi, where the principal succession was opened, the one here being ancillary. But as the judgment appealed from might be successfully urged as res judicata in any future proceeding, it should be amended so as to resorve opponent’s right to objoet to the charge as against her, one of the heirs. The questions of partition and collation can be determined at another time.
    APPEAL from the Second District Court, parish of Orleans. Tissot, J.

      W. H. Hunt, for administration and appellee.

      E. H. Mo Caleb, for opponent and appellant.
   Howell, J.

John A. Miller, a resident of Washington county, Miss., died in that county on the twenty-eighth of June, 1874, leaving fpur daughters as his only heirs residing in said State, and a large amount of property both in Mississippi and Louisiana. His succession was opened in both States, and Miss M. Georgie Miller, one of Ms heirs, was appointed and qualified as administratrix. The account of her administration filed by her contains the following items: “ To amount paid two sight drafts for Mrs. Metcalfe, 51849 80and in her partial tableau of distribution forming a part of or accompanying said amount are the following : “ Mrs. Metcalfe has received $2849 80; balance of her share is $2767 63 — $5617 43.”

To these items Mrs. Metcalfe, who is one of the heirs, filed an opposition, alleging that she had received only one thousand dollars, and she was wrongfully charged with the amount of the two drafts, which she alleges were a donation made to her by her father just before his death. She subsequently filed a peremptory exception to the charge of the said two drafts on the grounds—

“ First — Because it is now pretended that said two drafts were given to this opponent as an advancement by her deceased father, which pretense, even were it true (which it is not), would not authorize or permit said charge on the. account and tableau, as no collation can be compelled as an incident to the action of partition.
“ Second — Because in the partition suit of Mrs. M. P. Metcalfe vs. Mrs. L. H. Sterling et al., No. — of this Honorable Court, said administratrix and her co-heirs have in their answer therein filed, which is here referred to as part hereof, expressly waived any supposed right which they might have to claim collation in this State, reserving all such claims to be asserted hereafter, if they should so desire, in the State of Mississippi, where John A. Miller was domiciled at the time of his death, where his estate has been opened and is now being administered upon, where all of his heirs reside, and where the drafts in question were given to this ap-pearer by said deceased; that the averments and reservation in said answer contained j udicially estop said administratrix and her co-defendants from claiming any collation in this State.
“ Third — That said two drafts having been donated to this opponent by her deceased father in the State of Mississippi, and said gift having been perfected by delivery in said State, where the donee was domiciled at the time, can not be the object of collation in this State.”

And she prayed that the said charge be stricken from the account and the amount be paid to her.

Her opposition and exceptions were overruled, and the account was homologated, and she appealed.

It is no part of the duty of an administrator to make a partition among heirs, and if objection is made thereto it can not be binding. In this case the only duty in respect to these drafts was to place the item on the account as so much paid, or to be, in the course of administration, leaving the question of partition or distribution to be settled (as we understand the attorney of the succession to admit and contend) in other proceedings, if it should not he remitted to the State of Mississippi, where the principal succession was opened, the one here being ancillary. The judgment appealed from might successfully be urged as res judicata in any future proceeding, and should therefore be amended so as to reserve opponent’s right to object to the charge as against her, an heir. The questions of partition and collation can be determined at another time.

It is therefore ordered that the judgment appealed from be amended so as to reserve to opponent, Mrs. M. P. Metcalfe, the right to contest in any future proceedings the charge against her of $1849 80, amount of two drafts paid by the administratrix, and that as thus amended said judgment be affirmed, costs of appeal to be paid by the succession.

On REHEARING.

Morgan, J.

Another examination of the record and the matters in controversy in relation thereto has satisfied us that the judgment heretofore pronounced is correct.

It is therefore ordered that our former judgment remain undisturbed.

WyLT, J.,

dissenting. The succession here is ancillary to the succession in Mississippi, where the deceased, was domiciled and where all the heirs reside.

The two drafts, amounting to $1849 80, which the deceased gave to his daughter, Mrs. Metcalfe, the day before his death, were by the laws of Mississippi presumed to be an absolute gift, and not an advancement to be brought into hotch-potch with the estate of the deceased for final distribution. Eatheree vs. Eletcher, 2 George (Miss.) Reports, 205; 5 Smeedcs & Marshall (Miss.) Reports, 700. There is no proof in the record to overcome this presumption.

I think, therefore, the opponent, Mrs. Metcalfe, was right in objecting to being debited on the account of the administratrix with $1849 80. It was proper to charge the succession with the payment of this sum, being the amount of two drafts drawn by the deceased. But as the drafts became the property of Mrs. Metcalfe the day they were executed and delivered to her by her father in Mississippi, she ought not to be debited with the amount thereof on the account filed herein. To do so would be tp compel her to collate the sum of $1849 80 which she does not owe and •which she can not legally be required to collate.

I therefore ■ dissent from the opinion and decree of the court in this case.


source: Caselaw Access Project

author: Morgan, J.

license: Public Domain

text:
    No. 6024.
    A. Roos & Co., L. B. Cain, Subrogated, vs. Merchants’ Mutual Insurance Company. John Cockrem and W. Halsey, Receivers.
    This caso is deeidocl in accordance with the settled doctrine laid down in the eases of Raboteau vs. Valeton, 11 R. p. 218 (221); Simpson vs. AJlain, 7 R. 500; and Malta vs. Thomas, 21 An. 58. In Raboteau vs. Valeton this court said; “ It seems to us clear that tho proceedings lo bo had under the law of 1839 are tho necessary consequences of the placing of a writ of ña-i facias in tho hands of the sheriff, and that tho property and effects or the slim of money found in the possession of the garnishees as belonging to the defendant, and which are to be delivered up to the sheriff, can not bo levied on unless said sheriff has in his hands a writ of execution from which ho derives his authority to act, and to the satisfaction of which tho property levied on or the money received is to be applied.”
    APPEAL from the Fourth Judicial District Court, parish of Orleans. Lynch, J.

      Cotton & Levy and JE. Howard Me Caleb, for plaintiff and appellee.

      Clarice, Bayne & Benshaw, for defendants and appellants.
   Morgan, J.

A. Boos & Co. obtained judgment against the Merchants’ Mutual Insurance Company. L. B. Cain became subrogated to the rights of Boos & Co.

Upon the judgment to which he was subrogated, Cain issued • execution, and the amount of the writ was paid to the sheriff.

The contest in the present case arises out of the following state of facts:

Plaintiffs had recovered two judgments in the Sixth District Court, one against Frank, Haas & Co. as a firm, and against the individual members thereof, viz.: Ferdinand Beer, Leon Haas, Jr., and Henry Boos, for the sum of fifteen thousand dollars. They had also a judgment against the firm of A. Boos & Co. for fifteen thousand dollars.

They issued & fieri facias against Frank, Haas & Co., and the individual members thereof. No fieri facias issued on the judgment against A. Boos & Co.

It was in the suit of the plaintiffs against A. Boos & Co. that tho Merchants’ Mutual Insurance Company were garnisheed, and the funds resulting from the judgment of Roos & Co. vs. the Merchants’ Mutual Insurance Company, and now in the hands of the sheriff, are now in conr tost, Cain claiming them by right of subrogation from Boos & Co., the plaintiffs claiming them under their garnishment.

Tho difficulty in the plaintiffs’ way is that no fieri facias had issued against Boos & Co. when the notice of garnishment and the interrogatories thereunder were served on the Insurance Company.

In the case of Raboteau vs. Valeton, 11 R. p. 218 (221), it was said: “ It seems to us clear that the proceedings to he had under the law of 1839 are the necessary consequences of the placing of a writ of fieri facias in the hands of the sheriff, and that the property and effects, or the sum of money found in the possession of the garnishees as belonging to the defendant, and which are to he delivered up to the sheriff, can not be levied on, unless said sheriff has in his hands a writ of execution from which he derives his authority to act, and to the satisfaction of which the property levied on or the money received is to be applied.”

The same doctrine was announced in Simpson vs. Allain, 7 R. 500, and Matta vs. Thomas, 21 An. 58.

But plaintiff contends that Henry Roos was a member of tho firm of A. Roos & Co. as well as a member of the firm of Frank, Haas & Co., and that as execution issued against Frank, Haas & Co. the requisites of the law have been complied with. AVc do not agree with him. As regards Henry Roos, the partner in the house of Frank, Haas & Co., he was a stranger to the house of A. Roos & Co., and tho assets attempted to be seized in this proceeding belonged to the firm of A. Roos & Go., and not .to the individual members thereof. It was not, therefore, liable for the individual debt of the partners, no liquidation of their affairs having-been had.

Judgment affirmed.


author: Wyly, J. Taliaferro, J.

text:
    No. 4643.
    Magdalena Laicher, Tutrix, Christoph Laicher, Co-Tutor, vs. New Orleans, Jackson, and Great Northern Railroad Company.
    The fault in not fixing tho return day is not attributable to the appellant. It was an error oí the judge, and the appeal can not be dismissed on account thereof.
    It is well settled that where there is contributivo negligence, damages can not be recovered. In this case, conceding there wás a want of proper prudence and care on tho part of tho employees of the. company in giving the usual signals of the approach of thetrain, which is not clearly rstablished, still the negligence of him in whose behalf damages are claimed contributed to the unfortunate result and precludes him from recovery.
    APPEAL from the Second Judicial District Court, parish of Jefferson. Pardee, J. Jury trial.
    TP. Z?. Hyman, N. Commandeur, and O. TT. Besangon, for plaintiff and appellee.

      L. E. Simonds, for defendant and appellant.
   On Motion to Dismiss.

Wyly, J.

The plaintiff moves to dismiss this appeal because tho transcript was not filed in this court within three judicial days from the return day.

It appears that on tho twentieth ofj December, 1872, the defendant filed a petition for appeal, and the judge, in granting the order, omitted to fix a return day. Subsequently, to wit: on the eighth of March, 1873, he made an order fixing the return day on the third Monday of March, 1873, at which time the transcript was filed in this court.

The fault in not fixing the return day is not attributable to the appellant. It was an error of the judge, and the appeal can not be dismissed on account thereof. Revised Statutes of 1870, section 36.

The motion to dismiss is therefore denied. 10 An. 779.

On the Mebits.

Taliaferro, J.

This suit is brought to recover damages for serious injuries received by the plaintiff’s son, a-youth about twenty years of age, from being struck by a car of a freight train passing over the road, the accident having arisen, as plaintiff alleges, from the gross carelessness and fault of the officers and employees of the company, and for which the company is now sought to be made liable. Judgment is prayed for the sum of twenty-five thousand dollars.

The answer is a general denial. The case was tried before a jury, who awarded the plaintiff damages to the amount of two thousand dollars.

As usual, in cases of this sort, the testimony is conflicting. The facts seem to be that the plaintiff’s son, who was to some extent deaf, was walking on the railroad track outside the rails, stepping from one cross-tie to another, when the train was approaching him from behind, and was struck with great violence, knocked over, and rendered unconscious and insensible, having received asevere wound on the head, the scalp on the back part of the head being cut from four to six inches in length. The surgeon who was called in testified that he dressed the wounds, and i n a few days the patient was able to be up, and to get about, but that his condition was semi-idiotic; ho was unable to hear, except when spoken, to in a loud tono of voice, and remained in that state for a long time after the accident, the probabilities being that the injuries received would be permanent.

At the time of the accident there were upon the track and near the unfortunate person who was so badly hurt several laborers called section-men, who, upon the approach of the cars, got off the track; there were two children, also, near, at play on the track, who were caught up and taken off by some of the men out of danger of the train which was nearing at the time at the rate of about seven miles per hour. The young man who was struck seemed to have not known of the approach of the train, and made no effort to get off the track. Some of the witnesses say that no signal was given by the engineer that the train was coming, while the engineer himself swears that he saw the section-men and saw a young man passing across the track; that he had been whistling and giving signals “ for all of a quarter of a mile.” Two other witnesses say that signals were given before the boy was struck.

We think it clear from all the evidence that thore was negligence on the part of the young man in walking along the cross-ties and taking no-care to look back or get off the track. It is shown that he had labored under the infirmity of deafness, and this shows further a want of care and prudence on his part to expose himself to the danger of being run over. One of the witnesses states that “ we tried to get to him and get-him off, but he would not look up nor get off, and never raised his head.”'

It is well settled that where there is contributive negligence damages-can not be recovered. In this case, conceding that there was a want of proper prudence and care on the part of the employees of the company in giving the usual signals of the approach of the trains, which is not clearly established, still the negligence of him in whose behalf damages are claimed contributed to the unfortunate result and precludes him from recovering.

' It is therefore ordered that the judgment appealed from be annulled find reversed. It is further ordered that there be judgment in favor of the defendant, with costs in both courts.


author: Taliaeerro., J.

text:
    No. 6178.
    Frank H. Neal vs. Valentine Faggert et al.
    Plaintiff sues to annul a. judgment against the succession o£ his father. Among other pleas defendant set up that of res judicata. That plea must prevail. The elaim of a creditor of a succession established by a judgment obtained against the executor after a contestatio litis can not afterward be examined at the suit of the heirs, but must bo classed as a liquidated debt of the succession.
    APPEAL from the Ninth Judicial District Court, parish of Rapides. Orsborn, J.

      T. G. Manning, for plaintiff and appellant.

      James G. White, for defendants and appellees.
   Taliaeerro., J.

The plaintiff, the sole heir of his father, Merady Neal, who died in the year 1867, sues to annul a judgment rendered against the succession of his father in favor of the heirs of John Franklin. He represents that at the time of his father’s death the plaintiff in this suit was a minor, that his mother became his tutrix, and was also appointed administratrix of the succession. The grounds taken by the plaintiff in this action are that the administratrix of the estate on the first of January, 1862, executed a promissory note for !?3396 50 in favor of John Franklin, for overseer’s wages due him for the years 1857,1858,1859,. 1860, and 1861, and a note given first of June, 1864, for balance due for overseer’s wages. He alleges that the representative of his father’s estate could not legally bind it by giving these notes upon which is-founded the judgment sought to be annulled. He further alleges that the claim of Franklin was in great part prescribed at the time of its ac-knowledgmcnt, and lie pleads prescription against it; that no part of the indebtedness for which the notes were given was the debt of petitioner’s father, who had died five years before they were given, and that the administratrix was legally without authority to carry on the.plantation at the expense and risk of the intestate, and without authority to incumber the property with debts incurred in cultivating it.

The defendants filed an exception that the petition sets forth no cause of action, because it does not allege that the judgment attacked was obtained through error or fraud! They further plead res judicata, and the prescription of one, two, three, four, and five years against plaintiff’s action. There was judgment in the lower court in favor of the defendants, and plaintiff appeals.

'We think the plea of res judicata should be sustained. In the matter of the Succession of D’aunoy, 3 An., p. 36, it was declared that “ the claim of a creditor of a succession established against the executor after a contestatio litis can not afterward be examined at the suit of the heirs, but must be classed as a liquidated debt of the succession.” See, also, 14 An., p. 231.

It is therefore ordered that the judgment appealed from be affirmed with costs.

Rehearing refused.


author: Howell, J.

text:
    No. 6162.
    Succession of Meredith Calhoun.
    Tho administrator excepted, to tho rulo on him to show cause why ho should not bo dismissed for not filing a full account as ordered by the court, and averred that the action for removal must be instituted by petition and citation as required by law. The court below overruled the exception and dismissed tho administrator on tho second day after the rule was taken.
    This was irregular, and in violation of articles 1017 and 1018 of tho Code of Practice. The account of the administrator, if not full and accurate, should have been opposed and overruled in the usual manner. If there was a cause for the removal of the administrator, it should have been effected in the form proscribed by law.
    APPEAL from the Parish Court, parish of Grant. Stokes, J.

      W F. Blackman and A. Combat, for the administrator and appellant.

      T. C. Hanning, tor Albert Baldwin, a recognized creditor of the succession and appellee.
   Howell, J.

Albert Baldwin, alleging himself a judgment creditor of this succession, took a rule on William S. Calhoun, administrator, to file an account of his administration, and in default thereof show cause why he should not be removed. The administrator obtained a delay in which to file his account, at the expiration of which he filed an account, which lie asked to be advertised and homologated. Two days thereafter the said creditor filed another rule averring that the administrator had not filed an account of his gestión as ordered, but a tableau of debts, and praying that he be now dismissed for not complying with the order of court, and that mover be appointed administrator of said succession.

The administrator excepted to the rule as irregular, and averred that the action for removal must be instituted by petition and citation as required by law. The court overruled the exception, and dismissed the administrator on the second day after the rule was taken. This was irregular, and in violation of articles 1017 and 1018 of the Code of Practice, which require that the removal of curators and administrators should be by petition and citation, and the proceedings conducted in the usual form. 9 R. 350; 21 An. 561; 22 An. 94.

The account, if not full and accurate, should have been opposed and corrected in the usual manner. If there was cause for the removal of the administrator, it should have been effected in the manner prescribed by law.

All the proceedings subsequent to this rule were irregular. ■

It is therefore ordered that the judgment appealed from, dismissing W. S. Calhoun from the administratorship of this succession, be reversed, and all the proceedings thereafter annulled, with costs.


author: Wvly, J.

text:
    No. 6086.
    Widow M. C. Rathbone vs. Parish of St. James.
    This suit is against the parish, a juridical person, and the appellants are third persons who claim that they are taxpayer’s, and therefore have an interest. But they have failed to allege or to show that they have a pecuniary interest in the suit exceeding five hundred dollars, and there is no affidavit showing that they are taxpayers. The appeal must be dismissed.
    APPEAL from the Fourth Judicial District Court, parish of St. James. 1Flagg, J.

      Legendre & Foche, for plaintiff and appellee.

      R. Beauvais, Parish Attorney, for defendant and appellee.

      Alfred Roman, St. If. Bérault, J. K. Gaudet, and W. R. Winchester, for taxpayers and appellants.
   Wvly, J.

Lucien Malus and one hundred and forty-four other persons, claiming to be taxpayers of the parish of St. James, appeal from the judgment which plaintiff recovered against the parish of St. James for seventy-seven hundred dollars and ordering a tax to be collected for its payment.

The motion of plaintiff to dismiss this appeal must prevail, because ■appellants have failed to allege or show that they have a pecuniary interest in the suit exceeding ñve hundred dollars. There is no affidavit showing- that they are taxpayers, and in the petition for appeal they do not allege an appealable interest.

The suit is against the parish, a juridical person, and the appellants are third persons who claim that they are taxpayers, and therefore have an interest.

It is therefore ordered that the appeal herein bo dismissed, costs of appeal to be paid by appellants.


text:
    No. 4937.
    J. H. Hopkins vs. Garthwaite, Lewis, Miller, et al.
    This is a suit in damages for malicious arrest, false imprisonment, and cruelty while in prison. The evidence shows a probable cause for the arrest of the plaintiff. The defendants did not prompt the treatment of the party while in the “lock-up” of the police station, and are not responsible for it, nor liable in damages for the arrest, as charged in this case.
    APPEAL from the Fourth District Court, parish of Orleans. Lxjnch, J. Jury trial.

      Simeon Belclen and Foley, for plaintiff and appellee.

      Labatt, Aroni & Clinton, for defendants and appellants.
   Howell, J.

The defendants have appealed from a verdict and judgment against them for four thousand dollars for malicious arrest, false imprisonment, and cruelty while in prison.

The facts are: On the morning of nineteenth February, 1873, the plaintiff, Hopkins, and his friend, Wuesclier, called at the store of defendants, dealers in ready-made clothing, purchased for cash a suit each, worth together forty-two dollars, each one putting on the suit bought by him, asked the partner from whom they purchased to send the bill and the bundle containing their old clothes with them, by a porter, to their room in the St. Charles hotel, which was done. The parties went to the office of the hotel, where the bundle was left on the counter, and by request the porter accompanied the two to the office of A. Eimer Bader & Co., on Carondelet street, when one of them with the porter remained outside and the other entered and wrote the following note:

“ New Oeleans, February 19,1873.
“ Messrs. Garthwaite, Lewis & Miller, present:
“Gentlemen — The cashier being out at present, be so kind as to send the bill at twelve o’clock, or sooner if convenient, and oblige yours, etc.,
“(Signed) CHAS. A. WUESCHER,
“at Eimer Bader & Co., Carondelet street.”

This letter was sent by the porter to the defendants, and when received they became suspicious of the good faith of said parties and instituted inquiries at the office of A. Eimer Bader & Co., and the hotel, and learned that neither Hopkins nor "Wuescher was employed at the one place or stopping at the other, nor were they known there. Whereupon one of the defendants reported the matter at the police headquarters, and two officers were detailed to attend to it, and who, after some days search discovered the two men, wearing the said suits of clothing, on Canal street, arrested them, and caused them to take off the new clothes (as is usual in such cases it is said), to be kept for identification, leaving them for a day or more with only their underclothing. Immediately after the arrest, one'of the defendants made the proper affidavit for obtaining goods under false pretenses. When the new suits of clothes were about to be taken from them they were asked where their clothing was, with the view of sending for what was necessary for them to put on, and they refused to give the information. They remained two or three days in the lock-up, and were transferred to the parish prison, where they remained about as long, and were released upon giving bonds. The case on the affidavit was fixed by the recorder for hearing on the eleventh of March, 1873, which was after the release, but neither party appeared, and nothing more was done therein. The day before (on the tenth of March), the clothes bought by plaintiff were paid by his uncle. This action was instituted on ninth April, following.

We think the foregoing statement shows a probable cause for the arrest of the plaintiff. The defendants did not prompt the treatment of the parties while in the lock-up of the police station, and arc not responsible for it, nor liable in damages for the arrest as charged in this case.

It is therefore ordered that the judgment and verdict in the lower court bo se.t aside and annulled, and that there be judgment for defendants with costs in both courts.

Rehearing refused.


author: MORGAN, J.

text:
    No. 6181.
    Marzelie E. Marsh and Husband vs. Julius Sevin and Louis Boniol.
    In this petitory action the evidence in support ot plaintiffs’ title is an “ alleged deed in trust,” which has been lost, and of which there is no record. In Louisiana this is no title.
    In a petitory action the plaintiff must recover entirely upon the strength of his own title, and not upon the weakness of his adversary’s.
    APPEAL from the Ninth Judicial District Court, parish of Rapides.

      S. J. Bowman, attorney-at-law, acting for the district judge, recused.

      M. Ryan, TV. F. Blackman, and James G. White, for plaintiffs and appel-lees.

      Manning, for defendants and appellants.
   MORGAN, J.

This is a petitory action. Plaintiff claims the property in dispute by right of succession from her father and mother. The evidence in support of her title is an alleged “ deed in trust,” which has been lost, and of which there is no record.

In Louisiana this is no title. In a petitory action the plaintiff must recover entirely upon the strength of his own title, and not upon the weakness of his adversary’s, and as the plaintiff here has shown no title she must suffer nonsuit.

It is therefore ordered, adjudged, and decreed that the judgment of the district court be avoided, annulled, and reversed, and that there be judgment in favor of the defendant as in case of nonsuit, plaintiff to pay costs in both courts.

Rehearing refused.


author: Ludelissg, 0. J;

text:
    No. 6028.
    The State of Louisiana vs. Joseph Richie.
    A bill of exception was taken in this case to th6 ruling of tlio judge a quo admitting a child six years old to testify against the prisoner, under the age of fourteen a child will not be presumed to have a sufficient understanding to be a witness, and inquiry is made by the judge to ascertain his capacity to bo sworn, and his admission or rejection must depend upon the sound discretion of the judge. The law fixes no precise age when the witness shall be excluded. In the present case the district judge examined the child and considered him of sufficient understanding to be sworn. No reason is shown why his ruling should bo reversed.
    APPEAL from the Fourteenth Judicial District Court, parish of Rich-land. Bay, J. Criminal case.

      W. M. Poits, District Attorney, pro tern., and A. P. Field, Attorney General, for plaintiff and appellee.

      Thos. H. Clarlx, for defendant and appellant.
   Ludelissg, 0. J;

The defendant was indicted.for the crime of man-■slaugliter and was convicted and sentenced to imprisonment at hard labor in the Penitentiary. He has appealed. A bill of exception was taken to the ruling of 'the judge a quo admitting a child six years old to testify against the prisoner. Two reasons are given why the evidence should not have been received — because it was impossible for a child so young to understand the nature of an oath; and because in consequence of the youth of the witness defendant was deprived of the opportunity to cross-examine him.

It is not a fact that no child six years of age can understand the nature ■of an oath. Greenl. on Evidence, vol. 1, sec. 367, says: “ On the other-hand, it is not unusual to receive the testimony of children under nine, and sometimes even under seven years of age, if they appear to be of .sufficient understanding; and it has been admitted even at the age of five.” See, also, Roscoe’s Crim. Ev. 94.

Under the age of fourteen a child will not be presumed to have a sufficient understanding to be a witness, and inquiry is made by the judge to ascertain his capacity to be sworn, and his admission or rejection must depend upon the sbund discretion of the judge. The law fixes no precise age when the witness shall be excluded. In the present case the district attorney examined the child and considered him of sufficient understanding to be sworn. We can not imagine why the witness could not be cross-examined by the defendant; in fact, it appears he was cross-examined by the judge.

It is therefore ordered that the judgment of the lower court be affirmed with costs.


author: Ludeling, C. J.

text:
    No. 6088.
    The State of Louisiana vs. D. R. Fenderson.
    The court is urged by the counsel for the defendant to take judicial cognizance of the fact that at the time the grand jury which found the bill of indictment in this ease was impaneled Judge Braughn was presiding in the court, and that he was not then judge of the court, but was illegally acting under appointment from Judge Atocha, tho presiding judge. This can not be done. This court has no legal means of knowing whether Judge Atocha presided in his court on that day or not, oven if the grand jury was impaneled before Judge Braughn was legally appointed judge of that court; nor can this court tell when the grand jury was impaneled. The fact which counsel wishes this court to assume as true should have beon shown in some legal way by the record, if It be a fact.
    APPEAL from the Superior Criminal Court, parish of Orleans. Braughn, J. Criminal case.

      John McPhelin, District Attorney, and A. P. Field, Attorney General, for plaintiff and appellee.

      J. FT. Haggins, for defendant and appellant.
   Ludeling, C. J.

On the twelfth of May, 1875, the defendant was indicted for murder, and the indictment was duly filed in the Superior Criminal Court of New Orleans, of which G. H. Braughn was then judge. He was regularly tried, and on the twenty-sixth of May, 1875, the jury' returned a verdict of “guilty.” In due time, the defendant was sentenced to suffer the penalty of death. A reprieve was granted by the Governor to enable defendant to obtain a writ of habeas corpus; and after a careful consideration of the application, relief, under that writ, was refused by this court. Then a suspensive appeal from the judgment of the court a qua was obtained.

There is no motion for new trial, no bill of exceptions, and no assignment of errors in this record. Nor have we been able to discover any error in the proceedings, as exhibited by the record before us, which is not alleged to be defective, but which is duly certified by the clerk to be a full and complete transcript of the record, proceedings, and judgment in tlio cuso. Under these circumstances, this court can not reverso the judgment appealed from.

Tlio counsel for defendant has urged the court to take judicial cognizance of the fact that at the time the grand jury which found the bill of indictment in this case was impaneled Judge Braughn was presiding in tlio court, and that lie was not then judge of tho court, but was acting under an appointment from Judge Atocha, the presiding judge. This we can not do. We have no legal means of knowing whether Judge Atocha presided in his court on that day or not, oven if tho grand jury was impaneled before Judge Braughn was legally appointed judge of that court. Nor can we tell ichen the grand jury was impaneled. The fact which counsel wish us to assume as true should have been shown in some legal way by this record, if it be a fact.

It is therefore ordered that the judgment of tho lower court bo affirmed with costs.


author: Waxy, J. Ludelixg, O. J.

text:
    No. 5613.
    Isaac F. Riley vs. J. Oscar Howell.
    As tho appeal was taken within twelve months from tho service of notice of tho j udgment confirming a default against tho defendant, it was in time for a devolu-tive appeal.
    The appeal boiid was given in favor of John S. Lanier, his heirs, ote., and it appears from tho eertilleato to the transcript as well as from tho documents filed and the orders of court throughout the record that Lanier was tho elorlc of the court, although mention of the fact was not made in the bond, probably on account of a clerical error in drawing tho instrument. Tho bond is sufficient.
    The, judgment appealed from having been rendered before the constitution of 1808, the court below had jurisdiction, although the amount in dispute, exclusive of interest, was less than five hundred dollars.
    The plea of prescription having been filed in this court by appellant, on application of appellee, the ease will be remanded to try the plea of proscription.
    APPEAL from the Fifth Judicial District Court, parish of East Feliei-. ana. Fosey, J.
    TF. F. Kernan, for plaintiff and appellee.

      D. C. Hardee and Cross <£• Pipkins, for defendant and appellant.
   Waxy, J.

Appellee moves to dismiss this appeal on tho following grounds:

First — Tho amount in controversy being less than five hundred dollars, e.raliisire of ■interest, the district court, under article eighty-five of tho constitution, was without jurisdiction, and -therefore this court is without jurisdiction.

Second — The appeal was not taken within one year from tho time the judgment was rendered, as required. C. P. 593.

Third — The appeal bond has not been executed in the name of the clerk, as required by article 575, C. P.

Tho jurisdiction of this court as fixed in article seventy-four of the constitution- extends to appeals in all civil cases “ where the matter in dispute shall exceed five hundred dollars.” * * *■ And it has long been held that the principal and interest added at the time of judicial demand constitute the matter in dispute. 22 An. 111, 125; 12 An. 87; 10 An. 170; 7 An. 109; 2 An. 793, 911; 5 R. 90; 1 R. 25; 12 L. 156; 1 N. S. 138. In this ease tho principal is §497 25, and interest accrued at the time of judicial demand exceeded two hundred dollars. This court therefore has jurisdiction, although the'court a qua was without jurisdiction ratione materias, because in the unambiguous language of article eighty-five of the constitution “ the district court shall have original jurisdiction in all civil cases where tho amount in dispute exceeds five hundred dollars, exclusive of interest.” And here the amount exclusive of interest is less than five hundred dollars, although with interest added at the time of judicial demand it exceeded seven hundred dollars.

As the appeal was taken within twelve months from the service of notice of the judgment confirming a default against the defendant it was in time for a devolutive appeal, ancl there is no force in this objection. 25 An. 212; 22 An. 90.

The bond was given in favor of “ John S. Lanier, his heirs and assigns, etc,” and it appears from the certificate to the transcript as well as from the documents filed and tho orders of court throughout the record, that John S. Lanier was the clerk of the court. The devolutive-appeal bond for fifty dollars was in favor of a person who was clerk of tho court, although mention of tho fact was not made in the bond, probably on account of a clerical error in drawing the instrument. Wo think the bond sufficiently complies with article 575, C. P., and that it is good.

On tho merits, we find that the court below was without jurisdiction ratione mater ice, the amount in dispute, exclusive of interest, being less than five hundred dollars. Article eighty-five of tho constitution; 13 a-deaux vs. Blake, 24 An. 184; 22 An. 459. Consequently, tho judgment herein is an absolute nullity. .

It is therefore ordered that tho judgment appealed from be annulled, and that the suit be dismissed at the costs of the appellee in both courts.

Ox Rbhbaeixg.

Ludelixg, O. J.

In tho former opinion and decree in this case the court fell into tho error of fact of supposing the judgment had been' rendered by the district court organized under the constitution of 1868, and tho court was misled by tire brief of counsel. The fact is, the judgment appealed from was rendered in June, 1867, and the court rendering the judgment had jurisdiction.

The plea of prescription has been filed in this court; and on the application of appellee the case will be demanded to try the plea of prescription.

It is therefore ordered and adjudged that the case be remanded for the purpose of trying the plea of prescription.

Howell, J., recused.


author: TuLiafeebo, J. Wyey, J.

text:
    No. 5725.
    Elvira Horton and Husband vs. W. C. Cutler.
    Tlio testimony shows satisfactorily that the plaintiff has hold continuously the note upon which tlio mortgage was predicated, and the same on which she proceeded i'ia exeeutiva; it is also clear that she was not a party to the proceeding by which it is pretended that said mortgage was erased,-and that she know nothing of it.
    The mortgage contains the pact de non alienando, which enables the holder of the mortgage to proceed against the property into whose hands soever it may have passed, unless by some act or admission she has lost her right to this remedy.
    There is no force in the intervonor’s plea that such an admission or-estoppel results from a certain suit instituted in the Second District Court by the plaintiff in the matter of the succession of Scott. The case, it seems, was tried and decided against the plaintiff, a new trial was granted, the suit was discontinued, and the present one brought. There was then nothing like an admission of any sort made, or act dene, which barred the right of the plaintiff to proceed now in the manner in which she has proceeded.
    As to the judgment decreeing the erasure of plaintiff’s mortgage, it was obtained through fraudulent moans, and is therefore without effect. The plaintiff’s rights wore not compromised by these proceedings, which were, as to her, res inter alios acta.

    That the intorvenor should be protected as an innocent third purchaser who was shielded by the mortgage certificate at the time he purchased can scarcely be conceded, whore, as in this ease, the effect of the protection would be to destroy the rights of the holder of the mortgage, who was entirely innocent of all participation in the acts which exposed the intorvenor to loss and injury.
    ft lias been frequently held that a mortgage certificate is only prim,a facie evidence of the facts staled in it. The mortgagee may show that the mortgage certificate is untrue; that the recorder acted on insufficient evidence; or, in case of erasure by judgment, that ho was not a party to the action brought or proceedings instituted to cancel his mortgage. In such cases the mortgage exists unimpaired, even against tlio innocent vendee who has bought on the faith of a certificate that there was no mortgage on the property.
    Not only were tlio proceedings in the Second District Court to erase the plaintiff's mortgage not binding on her, becauso she was not a party thereto, but, furthermore, that court was without jurisdiction to adjudicate upon her rights, it being a court of merely probate j urisdietion.
    APPEAL from tlio Sixth District Court, parish of Orleans. Saucier, J.

      E. D. White, for plaintiffs and appellees.

      W. B. Koonte and James Lingan, for the third opponent and appellant.
   TuLiafeebo, J.

This is a proceeding via exeeutiva to enforce the payment of a note for forty-eight hundred and fifty dollars with interest, secured by special mortgage on certain property in the city oí New Orleans'. The act of mortgage contains the clause de non alienando. The defendant being absent, a curator was appointed to represent him. Otto Thoman, the intervenor, enjoined the execution of the process on several grounds:

First — That he is the bona fide owner of the property upon which the mortgage was sought to be enforced, having bought it from G. Marks, by act before A. Pitot, notary, on the twelfth of April, 1873, to which act was annexed a certificate of the recorder of mortgages showing there were no mortgages against the property.

Second — That the note sued on had been legally compensated, the mortgage securing the same canceled, and its inscription erased prior to his purchase under a decree of the Second District Court for the parish of Orleans, validly rendered in the matter of the succession of G. H. Scott.

Third — That the effect of the erasure was that the property passed to him unincumbered.

Fourth — That plaintiffs by judicial admissions made in a suit by them instituted in the Second District Court under No. 36.552 of the docket wore estopped from proceeding to enforce their pretended mortgage by executory process, and must exercise their rights, if they have any, by the hypothecary action.

Fifth — That plaintiffs were not bona fide owners and holders of the note sued on.

To this intervention a general denial was pleaded by the original plaintiffs, with a prayer only for the dissolution of the injunction with damages.

The issue thus made was tried and the injunction was dissolved without damages, and the intervenor appealed. In this court he pleads the prescription of one year in bar of the plaintiff’s suit. The controversy in this case is between the plaintiff and the intervenor.

It appears that on the eighteenth of January, 1868, Wyatt C. Cutler borrowed of Mrs. Elvira Lamb, widow of George H. Scott, the sum of $4850, for the payment of which he gave the .note sued and secured its payment by mortgage on the property now claimed by intervenor as having been purchased by him free from incumbrance. In July, 1872, Cutler filed in the Second District Court an application to administer the estate of George H. Scott, deceased. His application was opposed by the public administrator, who obtained the administration. An inventory was made, and Cutler declared at the making of it that “ to his personal knowledge the deceased left a sum of from five to six thousand dollars; that a part of that sum, $4850, was invested in a mortgage granted by him in favor of Laura Lamb, widow of George H. Scott, by act before tlie recorder of Jefferson, dated tenth January, 1868.” Upon this declaration the appraisers valued the mortgage at §4860. Cutler subsequently took a rule against the administrator to show cause why he should not be recognized as a creditor of the estate in the sum of $4871 64. The rule was made absolute, and Cutler recognized as a creditor of the estate for $3153 87, with interest. The next step taken by Cutler was by rule upon the public administrator and the recorder of mortgages, in which he alleged that being a creditor of the succession of Scott in the sum of $3225 81, and being indebted to the succession in the sum of $4872 86 secured by mortgage, the two amounts were pro tanto compensable; that he had paid to the administrator the sum of §1647 05, the difference between the said amounts, and therefore that the mortgage against his property should be canceled. The service of this rule was accepted by both the recorder and the administrator. It was made absolute, and a decree rendered and signed directing the erasure of the inscription of the mortgage.

Tlio hinge upon which this controversy will turn is the determining the character of this proceeding and settling upon its legal effect.

The testimony shows satisfactorily that the plaintiff has hold continuously the note upon which the mortgage was predicated and the same on which she proceeded via executiva. It is also clear that she was not a party to the jn’oceeding by which it is held the mortgage was erased, and that she knew nothing of it. She produces a number of Cutler’s letters in which he treats with her as the holder of the note, remits her the interest — some of the letters having been written and one of the payments of interest having been made after he had procured the order of erasure from the Second District Court. She shows clearly how she obtained the money she loaned to Cutler, when she got it, and by what means..

The intervenor contends that the property having been acquired by him, he should have been proceeded against. But the mortgage contains the pact de non alienando, which enables the holder of the mortgage to proceed against the property .into whose hands soever it may have passed, unless by some act or admission he has lost his right to the remedy. And hero on the part of the intervenor it is contended that such admission or estoppel results from a certain suit instituted in the Second District Court by the plaintiff against Scott’s succession and Cutler to have “ the seeming decree of the fifteenth of October, 1872, recognized as absolutely null and void ab initio. The case, it seems, was tried and decided against the plaintiff, a new trial granted, when the suit was discontinued and the present suit brought. The question seems to be, was the mortgage legally erased ? We think it was not. There was beyond doubt fraud practiced in procuring the pretended erasure. The facts before adverted to make it olear. There is nothing in the proceeding taken in the Second District Court by the plaintiff that in any way recognized a third owner of the property or in any manner recognized the illegal decree of erasure. There was then nothing like an admission of any sort made or act done which barred the right of the plaintiff to proceed in the maimer in which she has proceeded. Fraud vitiates every thing with which it is commingled. The judgment decreeing the erasure of the mortgage, being concocted and obtained through fraudulent means was without effect. The plaintiffs rights were not compromitted by those proceedings, which were as to her res inter alios acta. That the intorvenor must be protected as an innocent third purchaser, shielded by the mortgage certificate at the time ho purchased, can scarcely bo'con-ceded, where as in this case the effect of the protection would be to destroy the rights of a party on the property acquired and held in good faith, and who was entirely innocent of all participation in the acts which exposed the intervenor to loss and injury. A mortgage certificate, it has been frequently hold, is only prima facie evidence of the facts stated in it. 20 An. 424, and authorities there cited: “ The mortgagee,” it is there said, “ may show that the mortgage certificate is untrue, that the recorder acted on insufficient evidence, or in case of erasure by judgment, that he was not a party to the action brought or proceedings instituted to cancel his mortgage. In such eases we think the mortgage exists unimpaired even against the innocent vendee who has bought on the faith of a certificate that there was no mortgage on the property. In this opinion, as to the effect of an illegal or unauthorized erasure, we fully concur.”

We come to the conclusion that the decree of the district court was properly rendered.

Judgment affirmed.

Ox EeheaRixg.

Wyey, J.

After re-argument of this case, and on further consideration thereof, wo have concluded that our first judgment herein was correct.

The proceeding in the Second District Court to erase the mortgage owned by plaintiff was not binding on her, because she was not a party; furthermore, that court was without jurisdiction to adjudicate upon her rights, it being a court of merely probate jurisdiction. The wrongful erasure of plaintiff’s mortgage did not impair her rights.

It is therefore ordered that our former judgment herein remain undisturbed, -


author: Wyly, J.

text:
    No. 6214.
    Succession of Amy Anderson. On Rule for Sale of Property.
    Tho succession. o£ Benton obtained judgment against tho succession of Anderson, and two days thereafter, without authority of court and on his own responsibility, the administrator of the succession of Benton transferred or rather signed a private a-t transferring said judgment to Montgomery & Delony, attorneys-at-law, who were creditors of tho succession of Benton for professional services rendered. ■ Subsoiiuently, Montgomery & Delony toolc a rule on tho administrator of the succession of Anderson to compel him to sell property and pay this d-bt.
    The administrator of the succession of Benton intervened, alleging the invalidity of the transfer he had made, praying to bo recognized tho owner of the transferred judgment, and praying that the administrator of the Anderson succession be compelled to sell property and pay it.
    The administrator of the Anderson succession in his reply denied that tho plaintiffs in rule were the legal owners of tho judgment, and alleged that it still belonged to the succession of Benton.
    The court a qua correctly decided that tho transfer to plaintiffs In rule was not valid, and that the judgment against the Anderson succession, alleged to be transferred, still remained the property of tlio Benton- succession.
    Wlint object tlio administrator of the Anderson succession can have in appealing,. other than to obtain a delay in settling the succession, can not be perceived; for he docs not deny tho indebtedness, and tlio court below agreed with his allegation that the judgment against the succession ho represents still belongs to the Benton succession.
    It is cuually incoa prehensiblo why Levi Prewett, an allcgod creditor of tho Benton succession and an intervenor in this suit, seeks relief by appeal from the judgment in favor of that succession, which is looking to tho recovery of funds to be distributed aiming the creditors thereof, of which he is one. Tho administrator of the Benton succession is tlio common agent of all tho creditors, Levi Prewett included, who is therefore without interest in this litigation.
    As to Montgomery * Delony, tlio pretended transferees of the judgment, from their admission in the record and from tho privato act of transfer made by tlio administrator without authority of court, it clearly follows that tlioy have no semblance of title to said judgment. Upon tlioir own showing they are not entitled to relief.
    i PPEAL from the Parish Court, parish of Carroll. ■ Moss, J.

      Montgomery A: Delony, personally, plaintiffs in rulo and appellants.

      E. II. Farrar, for the samo.

      J. W. Montgomery, for tho administrator of tho Benton succession, intervenor and appellee.

      Leonard & Kennedy, for tlio administrator of the Anderson succession, .appellant, and for Levi Prewett, intervenor and appellant.
   Wyly, J.

On the sixth of June, 1874, tho succession of Warren M. Benton obtained judgment for $823 60 against tho succession of Amy Anderson, and two days thereafter, without authority of court and on his own responsibility, tlio administrator of the succession of Benton transferred, or rather signed, a privato act transferring said judgment against the succession of Anderson to Montgomery & Delony, attorneys-at-law, who were creditors of 'the succession of Benton. Montgomery & De-lony subsequently took a rule on R. K. Anderson, the administrator of the succession of Amy Anderson, to compel him to sell property and pay this debt.

Tlio administrator of the succession of Benton intervened, alleging the invalidity of tlio transfer of said judgment which the succession of Benton obtained against the succession of Anderson, and prayed to be recognized as the owner thereof, and that the administrator of the succession of Anderson bo required to sell property and pay it.

The administrator of the succession of Anderson excepted to the rule, on tho ground that the judgment sought to be collected belonged to the succession of Benton, and had not been legally transferred to plaintiffs in rule, Montgomery & Delons’!

Levi Prowett, claiming to be a creditor of tho succession of Benton, sought to intervene, and was not permitted to do so by tho judge. 'Wo think the court did not err in refusing tlio intervention, because, on his own showing, he was without interest to interfere in the proceeding to collect a debt from tho succession of Anderson. Tho ruling of the court was correct, although tho reason given was not tho proper one. Wo think the judgment of the court recognizing the succession of Benton as the owner of tho judgment in question, and requiring the administrator of tho succession of Anderson to sell property and pay it, was correct.

Plaintiffs in rule, whose demand was refused, the administrator of the succession of Anderson, the defendant in rule, and Levi Prewett, the alleged creditor of the succession of Benton, whose right to intervene was denied, have all appealed from the judgment of the court a. qua.

What object the administrator of the succession o'f Anderson had in taking an appeal, other than to obtain a delay in settling the succession under his administration, is not perceived. He does not deny that tho succession he represents owes the amount of tho judgment sought to bo collected. And as the court agreed with him in tho objection set up that the judgment still belongs to the succession of Benton, we can not perceive that he is entitled to relief from the judgment requiring him to soli property and pay the judgment to the administrator of the succession of Benton. And why Levi Prewett, an alleged creditor of the succession of Benton, should seek relief by appeal from tho judgment in favor of that succession looking to the recovery of funds to bo distributed among the creditors thereof, we can not imagine. The administrator of the succession of Benton is the common agent of all the creditors, Levi Prowett in eluded, if he is one. Ho is without interest in this litigation, and can not bo relieved.

Montgomery & Delony, the pretended transferees of the judgment which the succession of Benton recovered from the succession of Anderson, now sought to be collected, can not be relieved; by their admission in the record and tho private act of transfer made by the administrator without authority of court, they have no semblance of title to the judgment which tho succession of Benton recovered against the succession of Anderson. Their right to enforce the judgment was opposed by the administrator of the succession of Anderson, and, upon their own showing, they are not entitled to relief. The intervention of the succession of Benton is not like the intervention of the commissioners of the Merchants’ Bank in the case of Erwin vs. Lowery, 1 An. 276, where the in-tervcnor was not allowed in the probate court to raise the question as to tho title of the notes in the litigation between plaintiff and defendant, the court being of opinion that a court of ordinary jurisdiction was the proper tribunal to determine his title to the property ho claimed. Here a court of ordinary jurisdiction had rendered the judgment in favor of tho succession of Benton against the succession of Anderson, and it was this judgment in favor of the intervenor that is sought to be enforced by him.

The motion to dismiss the appeal is denied.

Judgment affirmed.


author: Morgasst, J.

text:
    No. 6099.
    Mary E. Pradat, Widow A. W. Norcross, vs. Margaret C. Legare and John C. Legare.
    This is a suit against the principal and surety on an appeal bond, in winch plaintiff claims damages against both principal and surety for upward of one thousand dollars, the judgment as to the surety to be satisfied upon the payment of six liundrod dollars, tho amount of tho bond.
    There is not in this ease an improper cumulation of distinct causes of action against different defendants. The cause of action as against the original defendant is the damage suffered by plaintiff by reason of her being deprived of her property. As against the other defendant, tho cause of action is the bond which was given to respond to the value taxed in said bond, of tho property of which she had been deprived the use.
    There is no force in tho defendants’ plea that plaintiff, having obtained a writ of distr'.mns, about the propriety of which a dispute is still ponding, eannotpro-e led in an action for damages and on the appeal bond; that one of two reme-dios was subject to her choice, but that she can not avail herself of both. Judgment was given against the original defendant for illegal detention of property-. Said judgment,to effect the suspension of which tliebond was given, was affirmed. Execution issued thereon, and the sheriff returned the writ unsatisfied. The surety’s liability then attached.
    It is contended that tho valne of the property is not established, and therefore that the action must fail. But the value of the property was fixed in the bond, and this is sufficient.
    APPEAL from the Fourth Judicial District Court, parish of Asccnsioh. Flagg, J.

      James D. Augustin and Morris Marks, for plaintiff and appellee.

      Nicholls & Pugh, for defendants and appellants.
   Morgasst, J.

Plaintiff sued the defendant, Margaret C. Legare, in the parish court, claiming to bo the owner of certain furniture. There was judgment in her favor. Prom this judgment a suspensive appeal was taken to the district court. John O. Logare was surety on tho appeal bond. The bond was for six hundred dollars. Tho conditions of tho bond wore that whereas “ Margaret 0. Legare has this day obtained a suspensive appeal from a final judgment rendered against her and in favor of "Widow A. W. Norcross, administratrix, and in her personal right, decreeing her to bo tho owner of certain property now in the possession of your appellant, to wit: furniture valued at tho sum of three hundred and sovonty-iivo dollars and costs in tho suit No. 369 of the docket of the honorable parish court of tho parish of Ascension, and signed on the twenty-fifth day of October, 1873, this bond is given as security that tho abovc-bound.cn appellant, Margaret C. Legare, shall prosecute her said appeal, and that she shall satisfy whatever judgment may bo rendered against lior, or that the same shall he satisfied out of tho proceeds of tho sale of her estate, real and personal, if she be east in lior appeal, otherwise that the said-, lior surety, shall bo liable in her place.”

The judgment of the parish court was affirmed by the district court. Thereupon plaintiff instituted this suit in the district court against the principal and surety on tho appeal bond, in which she claims damages against both principal and surety for upward of a thousand dollars, tho judgment as to the surety to bo satisfied upon the payment of six hundred dollars, tho amount of the bond.

There was judgment against the principal and surety, in solido, for three hundred and seventy-five dollars, together with all costs "of the suit in which the bond was given, and the costs of appeal. Upon tho question for damages a nonsuit was ordered.

Defendants severally excepted to the petition on account of its vagueness and generality. It seems to us that the exception was properly overruled. The cause of action is sot out with sufficient distinctness. They then excepted—

First — That there was a nonjoinder of proper parties plaintiffs; and,

Second — That there was a misjoinder of parties defendant and an improper cumulation of distinct causes of action against different defendants.

We do not see wherein there was a nonjoinder of proper parties plaintiffs. This suit is instituted by the same party and in the same capacity that the suit out of which it springs was instituted, and wo do not see who else there was as plaintiffs to join in it. Neither do we see an improper cumulation of distinct causes of action against different defendants. The cause of action as against the original defendant is the damage suffered by the plaintiff by reason of her being deprived of her property. As against the other defendant, the cause of action is the bond which was given to respond to the value of the property fixed in tho bond of which tho plaintiff had been deprived the uso.

In this court defendants filed tho peremptory exception that plaintiff’s petition discloses no cause of action. But the cause of action rests, we think, upon the grounds just expressed.

The next question argued is whether or not a principal on an appeal bond can be sued on the bond ?

Tho suit as against Mrs. M. C. Logare is not on tho appeal bond, properly speaking. She is sued for damages arising from an alleged illegal detention and uso of certain property claimed by the plaintiff. It is not, therefore, necessary to answer the question propounded.

Tho next question presented is, docs plaintiffs petition disclose any cause of action against John C. Logare, the other defendant, as surety on the appeal bond ? Tho argument is that in order to recover against a surety on an appeal bond, the face of the papers must affirmatively show that all the necessary steps have been taken to enforce payment against the principal; that an execution must bo shown to have been issued and returned unsatisfied, and that until thoso steps have been taken no cause of action exists against the surety.

After the judgment appealed from the parish court was affirmed by tho district court execution issued. Tho sheriff returned the writ, saying that he was unable to find any of tho articles of furnituro described in the writ of possession, they not having been produced by defendants. Then plaintiff issued a writ of distringas, the execution of which was prohibited. Then this suit was instituted.

Now, the defendants say that article 635 of the Code of Practice provides that if the party who has been condemned to deliver an object con-coals it, or carries it out of the jurisdiction of the court, so that tho sheriff can not seize it, tho party in whose favor the judgment was rendered shall have the choice either of instituting an action for damages or of compelling a specific execution of the judgment by obtaining a sequestration of his other property until he has satisfied it; and that article 63C of the Code of Practice provides that when the judgment orders, not the delivering, but the doing or- refraining from something specified in it, the party ■ condemned, on demand made by the sheriff that he shall comply with it, refuses or neglects to do so, and this refusal or neglect appears by a certificate of the sheriff, the party in whose favor the judgment was rendered may obtain, on motion, an order to distrain all the property, movable and immovable, of tho party who is in default, until ho shall have fully satisfied the judgment. And defendants say that haying obtained a writ of di siringas, about the propriety of which a dispute is still pending, plaintiff can not proceed in an action for damages and on the appeal bond; that one of two remedies was subject to her choice, but that she could not avail herself of both.

As we have before said, tire suit as against the original defendant is for damages caused by her illegal detention of the property, and is, therefore, distinct from tho suit in which the title thereto is set up. As to the surety, her .obligation is fixed by the bond. The judgment, to effect tho suspension of which the bond was given, was affirmed. Execution issued thereon, and the sheriff returned the writ unsatisfied. The surety’s liability then attached. It is contended that the value of the property is not established, and therefore the action must fail. The value of the property was fixed in the bond, and this is sufficient. The judgment was for the amount designated in the bond, three hundred and seventy-five dollars, with the costs of suit in the original action. The judgment was correct.

Judgment affirmed.

Rehearing refused.


author: Taliaferro, J.

text:
    No. 6222.
    Gervais and Romain Schlater vs. Ed. J. and Andrew H. Gay.
    On tlie trial oí tho Case a Question arose as to whether, in estimating the damages, tho value of tho timber cut down on tho land of the plaintiffs should ho estimated by the price of limber of that Quality at tho time it was out, when, prices ranged below the average rate, or whether an average of several years should be taken. The ruling of tho court below, refusing to admit evidence of tho price of timber during other years, was correct. Tho yalue of tho timber at the time it was felled should determine the amount of loss sustained by the owners of it.
    under tho state of facts prosemted in this case, defendant should-bo held responsible for the acts of his employees.
    APPEAL from the Fifth Judicial District Court, parish of Iberville. Dewing, J.

      Samuel Matthews, for plaintiffs and appellants.

      Barrote & Pope, for defendants and appellants.
   Taliaferro, J.

The plaintiffs sue the defendants for the value of one hundred and ninety-five cypress trees, alleged to have been felled by them on lands belonging to plaintiffs, and a part of the timber so cut down, removed, and converted to the defendants’ use, the remainder being left on the ground to decay and become useless. The plaintiffs aver their damages to bo eleven hundred and fifty dollars, the value of the one hundred and ninety-five trees, and the further sum of three hundred and fifty dollars as general damages to the plantation from the destruction of so large an amount of valuable timber growing upon it.

The defendants excepted to being joined in the same suit, as they were not alleged to be co-trespassers; that from the allegatioiis it would appear that each is charged with the commission of a separate and distinct .act of trespass, and, there being no privity alleged between them, they were improperly joined in the same suit.

The court sustained the exception, but reserved to the plaintiffs the right to amend by striking out the name of one of the defendants. The amendment was made, and the suit proceeded against Edward J. Gay alone. He answered by general denial. He specially denied that he or any person employed by him caused the plaintiffs damage; that all employees engaged by him to deliver cypress trees at his saw-mill, on the Woodland plantation, were employed under contract at a stipulated price per log, to be paid on delivery at his saw-mill, the defendant having no control or superintendence over such employees; that it was understood they should cut timber on his land, and he specially charged them not to cut timber elsewhere; that if these employees have trespassed upon the plaintiffs’ land defendant is not responsible therefor.

The judgment of the lower court condemned the defendant to pay the plaintiffs nine hundred and seventy-five dollars, with interest at five por cent from judicial demand, reserving to the defendant the right to remove the timber felled down by his employees from the plaintiffs’ lands. The defendant appealed.

It appears the parties to this litigation own adjoining tracts of land; that upon the back or swamp lands of both parties there is a fine growth of valuable cypress timber; that in 1874, from the Hickey crevasse in the levee of the Mississippi, these back lands were submerged by the out-flowing waters, and the defendant, Gay, availed himself of the opportunity thus afforded to have a quantity of cypress timber cut and floated out from his rear lands to be sawed into timber at his saw-mill. To this end he employed a man acquainted with the business of rafting timber to go into his rear lands and cut cypress timber and float it to his sawmill. The marks and lines showing the boundary between his lands and those of the plaintiffs were covered by water and could not be definitely known under the circumstances existing. Gay, the defendant, it appears, instructed his employee to be careful and cut trees only on the lands of Iris employer, but gave him no other information in regard to the division line than by exhibiting to him Ponel’s map, and explaining from that how his lands lay in reference to those of the plaintiffs. His .son was afterward sent out into the swamp to see about the employee, and he was met by two men who were acquainted with the locality, and one of them informed him that he thought they were cutting timber on the plaintiffs’ land. Thereupon, in reply to a question by the employee as to what he should do, the reply of the son was “ cut away.”

On the trial of the case a question arose as to whether, in estimating the damages, the value of the timber cut down should be estimated by the price of timber of that quality at the time it was cut, when prices ranged below the average rate, or whether an average of several years hould be taken. A bill of exceptions was taken to the ruling of the court refusing to admit evidence of the price of timber during other years.

¥c think the ruling correct. The value of the timber at tho time it was felled should determine tho amount of loss sustained by the owner of it.

We conclude the judgment of the lower court does justice between tho parties. The defendant should be held responsible under the state of facts presented for the acts of his employee.

It is therefore ordered that the judgment of the lower court be affirmed with costs.

Rehearing refused.


author: Ludeliu», C. J.

text:
    No. 5897.
    State of Louisiana ex rel. P. A. Simmons et al. vs. J. F. de Vargas et al.
    In this suit under tho intrusion-iiito-offioo act for tlio offices of mayor and eouneil-mon of Natchitoches, the defendants excepted to tho jurisdiction of tho court and to tho iinpropor joindor of parlies, etc.
    Tho ploa to tlio jurisdiction should have boen maintained as to tho suit against tho councilmen. There is no pay attached to said office, and nothing to show that the amount in dispute as to said office exceeds five hundred dollors.
    It is, however, different as to tho office of mayor. It is alleged and proved that tho term of office in dispute is eighteen months and the salary is four hundred dollars per annum, making tlio amount in dispute six hundred dollars. This court therefore has jurisdiction as to that portion of the issue.
    APPEAL from the Twelfth Judicial District Court, parish of Winn. Taliaferro, J. Jury trial.

      D. B. Gorham, District Attorney.

      J. M. B. Tucker, for plaintiffs and appellants.

      Jack & Pierson, S. M. Brian, for defendants and appellees.
   Ludeliu», C. J.

This is a suit under the intrusion-into-office act for the offices of mayor and councilmen of Natchitoches.

The defendants excepted to the jurisdiction of tho court and to tho improper joinder of parties, etc.

We think tho plea to the jurisdiction of the lower court should have been maintained as to tho suit against the councilmen.' There is no pay attached to said office, and nothing to show that the amount in dispute as to said office exceeds five hundred dollars. It is, however, different as to the office of mayor. The allegation and proof is that the term of office in dispute is eighteen months and the salary is four hundred dollars per annum, making the amount in dispute six hundred dollars. On the merits-, the proof shows that the relator, Simmons, is entitled to the office of mayor of Natchitoches.

It is therefore ordered, adjudged, and decreed that the verdict óf the jury be set aside, that the judgment of the district court be reversed, and that there be judgment dismissing the demand of tho State and the relators for the offices of councilmen, with costs of tho lower court; and that there be judgment in favor of the State and relator, Simmons, decreeing him to be entitled to the office of mayor of the city of Natchi-toches, and for costs in both courts.

Rehearing refused.


text:
    No. 5617.
    George C. Benham vs. Parish of Carroll.
    Because the certificate of the clerk does not state that the transcript contains all the proceedings had in said suit in tho court below, it is no eaus 5 for dismissing the appeal. It is not imputable to tho appellant, and, there being no suggestion of any specific proceedings that are omittod, there is no ground for a continuance to supply any defect.
    That this appeal was taken and is prosecuted against the wishes of the alleged appellant, as shown by tho affidavit of plaintiff’s counsel, can not be taken into consideration; said affidavit, for the purpose for which it is offered, being original evidence.
    If tho police jury wore without authority to issue the warrants sued on, they were without authority to bind the parish by confessing judgment for thoir amount.
    In this ease the evidence does not show that tho debts for which the warrants are alleged to have issued wore regularly created, and that means were provided for their payment as required by law.
    APPEAL from the Thirteenth 'Judicial District Court, parish of Carroll. Hough, J.

      Leonard & Kennedy, for plaintiff and appellee.

      F. F. Montgomery, District Attorney pro tern., for defendant and appellant.
   On Motion to Dismiss.

Howell, J.

Plaintiff instituted this suit upon several parish warrants, asking judgment for the aggregate amount thereof, with legal interest from their respective dates. The parish through the district attorney pro tem. answered denying any indebtedness to plaintiff as set forth, and averring that the warrants sued on were issued without authority of law ; that if the police jury contracted any debt in favor of plaintiff or any former holder of said warrants tho parish is not bound, because the ordinance creating the debt did not provide the means of paying the same ; that no consideration for said warrants inured to the parish ; and that they were procured by a fraudulent combination between plaintiff and a majority of tho police jury.

Subsequently, plaintiff filed an amended petition averring that certain of the warrants described in the original petition were issued to Benliam and Leonard for rent of the courthouse and public offices owned by them ; one of said warrants was issued to D. B. Gorham for salary as district attorney pro tern.; others to one J. W. Boise, for building a bridge ; one to H. W. Tyler, for building another bridge; and that they were issued pursuant to law and in accordance with regular estimates and assessments, and all evidence just and valid claims against the parish of Carroll. From a judgment in favor of plaintiff for a part of his claim this appeal is prosecuted.

A motion is made to dismiss the appeal on the grounds—

First — Because the certificate of the clerk does not state that the transcript contains “cell the proceedings had” in said suit in the district court.

This is not a cause for dismissing the appeal, as it is not imputable to the appellant, and, there being no suggestion of any specific proceedings that are omitted, there is no ground for a continuance to supply any defect.

Second — Because the appeal was taken and is prosecuted against the wishes of the alleged appellant, as shown by the annexed affidavit of plaintiff’s counsel.

We can not entertain this affidavit for the purpose for which it is offered, being original evidence.

Third — Because the judgment was confessod'in the lower court by defendants.

There is in the record an ordinance of the police jury purporting to have been adopted after the institution of this suit, and after the defense was set up, and confessing judgment in this suit for the amount claimed. . If the police jury were without authority to issue the warrants sued on, they wore without authority to bind the parish by confessing judgment for their amount. Such action would be taking advantage of illegal or usurped authority, which courts of justice can not sanction. The lower court seems not to have regarded the alleged confession.

The motion is denied.

On the MeRits.

-We must regard the suit as one upon the warrants of the parish and within the ruling in the cases of Edwards vs. Parish of Bossier, 24 An. 457, and Sterling vs. Parish of West Feliciana, 26 An. 59. But if considered as founded on the amended petition, the evidence does not show that the debts were regularly created and means provided for their payment, as required by law. R. S. 2786.

It is therefore ordered that the judgment appealed from be reversed and the demand of plaintiff dismissed with costs in both courts.


author: Taliaferro, d.

text:
    No. 6227.
    Mrs. A. Nachman vs. G. LeBlanc, Sheriff, et al.
    Tho properly seized vas mortgaged by the plaintiff’s husband to the seizing creditors on tho twenty-sixth of March, 1868. The plaintiff's judgment against her husband vas rendered on the eighth of July, 1868. Tho husband conveyed the same property to his wife on the ninth of August, 1869, in payment of her judgment against him. Hero eleven months elapsed after tho rendition of the plaintiffs judgment against her husband before any move vas made to enforce it. More. than one year before the rendition of her judgmont her, husband had been owner of the' houses and lots he conveyed to her in payment, to the extent of their value, of the judgment rendered against him. Thoro is no reason why the nation en paieinent could not have boon made at once, or at least within a far briefer period of time than eleven months.
    Through plaintiff’s laches in failing to comply strictly with the law requiring prompt and continuous proceedings to enforce tho payment of her judgment, said judgment had become null before she instituted this injunction proceeding, and she was at that time without any legally ascertained rights that authorized her to interfere in the efforts of the defendants to enforce their mortgage against the property in question. The sale from tho husband to the wife after her judgment had lapsed was simply null. They wore then in the same situation they were in before the rendition of the judgment. They wore not separate in property, and there was no judgment of tho wife which tho husband was required to' satisfy.
    For the same reason she was without interest or right to show that tho debt upon which is predicated the mortgage from her husband to tho defendants was paid and extinct at the time t-lioy took out their order of seizure and sale. It was a matter for the husband alone to look to.
    APPEAL from the Fifth Judicial District Court, parish of East Baton Rouge. Dewing, J.

      T. & 6?. W. Burgess and A. 8. Herron, for plaintiff and appellant.

      JS. W. Boherlson and B. F. Jonas, for defendants and appellees.
   Taliaferro, d.

In this case a married woman, alleging herself to be separate in property from her husband by judicial decree, and claiming to be owner of two lots of ground, with tho buildings and improvements thereon, situated in the city of Baton Rouge, complains that Moyer, Weiss & Co., merchants of New Orleans, have caused an order of seizure and sale to issue against the property of her husband, and that under that order the sheriff has seized her said property and advertised' it for sale. She thereupon applied for and obtained an injunction restraining the sheriff from proceeding to sell- the property. In her petition the wife sets forth various grounds and reasons why tho property seized should not be sold. She avers that the note and mortgage given to Mej^er, Deutch & Weiss, upon which the order of seizure and sale was taken out, were not intended to be for an' absolute indebtedness to the amount of tho note, but were executed as a continuing guarantee and security for future advances to be made to her husband by them; that in truth and reality the real sum for which her husband was indebted to' them has been fully paid by shipments of cotton made by him to his said merchants, and that ho does not, on account of said noto and mortgage, owe thorn any thing.

She declares that, in signing the mortgage with her husband and renouncing her legal rights cn tho property mortgaged, she did so in ignorance of her rights; not having, them detailed and explained to her as required by law; that she is illiterate, not knowing how to write; that she is therefore not bound by tho said renunciation.

Tho plaintiff is met by various exceptions interposed by tho seizing creditors. They aver in their answer that tho pretended judgment of separation of property sot up by tho plaintiff has lapsed and become null and without effect through her failure to execute tho same within the time required by law, and is without offoct, cron as between tho parties to it; that the effect of said judgment on tho mortgage records could have no effect as to the respondents, for tho reason that plaintiff joined in tho act and specially renounced whatever mortgage rights or other claims she may have had on the property. They deny generally all tho averments of the plaintiffs petition, and pray that the injunction bo dissolved, with damages.

The judgment in tho court below was rendered in conformity with the prayer of tho defendants’ answer. Tho injunction was dissolved with ton per cent damages on the amount enjoined as general damages and special damages as attorney’s fees in the sum of §350, to bo recovered in solido against tho plaintiff and her sureties on tho injunction bond, and all costs of suit.

Tho plaintiff .lias appealed.

The property seized was mortgaged by the plaintiff’s husband to the seizing creditors on the twenty-sixth of March, 18G8. The plaintiff’s judgment against her husband was rendered on tho eighth of July, 18C8. The husband convoyed the same property to his wife on tho ninth of August, 1869, in payment of her judgment against him.

The ease would soom to turn upon the question of validity of the wife’s judgment.

The article 2428 [2402] of the Civil Code provides that: “ tho separation of property, although decreed by a court of justice, is null, if it has not boon executed by the payment of the rights and claims of tho wife, made to appear by an authentic act, as far as the estate of the husband can meet them, or at least by a bona fide non-intorrupted suit to obtain payment.”

For obvious reasons this “ bona fide non-intorrupted suit” to obtain payment and satisfaction of tho wife’s judgment is imperative, and nullity results from its non-observance. Here eleven months elapsed after tho rendition of the plaintiff’s judgment against her husband before any movo of any kind was made to enforce it. More than one year before tlio rendition of her judgment her husband had been owner of the houses and lots he conveyed to his wife in payment, to the extent of their value, of the judgment rendered against him. There is no reason why the dation en pcdement could not have been at once, or at least within a far briefer period of timo than eleven months. We can not but conclude with the judge a quo that through her laches in failing to comply strictly with tho law requiring prompt and continuous proceedings to enforce-the payment of her judgment, it had become null before she instituted this injunction proceeding, and was at that time without any legally ascertained rights that authorized her to interfere in the efforts of the defendants to enforce their mortgage against tho property in question. The sale from the husband to the wife after her judgment had lapsed was simply null. They were then in the same situation they wore before the rendition of the judgment. They were not separate in property, and there was no judgment of the wife which the husband was required to satisfy. For the same reason, she was without interest or right to show that tho debt upon which is predicated the mortgage from her husband to tho defendants was paid and extinct at the time they took out their order of seizure and sale. It wTas a matter for the husband alone to-look to. We'do not find the allegations of the plaintiff in relation to the-instructions given her by the notary before she signed her renunciation of her rights on the property mortgaged fully made out. The instructions seem to be sufficiently clear and explicit.

It is therefore ordered that the judgment appealed from be affirmed with costs in both courts'.

Rehearing refused.


author: Taliaferbo, J.

text:
    No. 6186.
    O. K. Hawley, Public Administrator, vs. Abraham Heyman et al.
    Two quostions are to be examined in this instance: . First — Is the decree of tlio parish court rendered on the twenty-eighth of November, 1808, ordering the sale of the plantation called Quantico, to be regarded as an order of seizure and sale, and, if so, was it legally issued? Second — If not a decree via ejecutiva, is it valid as an order of sale rendered upon the application of creditors for the sale of propc-ty of the estate of Linton, who was the owner of the aforesaid plantation, to pay tlioreby debts in pursuance of articles 990 and 991 of the Code of Practice V
    The prayer of tho petition for the sale of tho property is, “that tho lands and improvements described in the act of mortgage be sold at public auction for cash, and the proceeds thereof be ratably divided among your petitioners.” Then immediately follows tlio declaration “that tho petitioners show the court that tho deceased, Linton, never resided in your parish, that he died during tho present year, and that his succession is vacant, wherefore they pray tho order of sale, as allowed by law, for all other orders, and for general relief.” Tho order rendered by tho parish judge was responsive to the prayer of the petition.

      It is impossible to regard tliese proceedings otherwise than as utterly null. The succession was wholly unrepresented; there was no curator or administrator appointed to administer it; no one contradictorily with whom the. creditors could contest and enforce their claims. The petitioners, at the same time they prayed for a sale of property of the succession to pay their debts, ignored in substance and effect the jurisdiction of the tribunal whose authority they invoked to obtain the payment of their claims. No legal effect can result from proceedings so illegally conducted.
    APPEAL from the Ninth Judicial District Court, parish of Rapides. Orsborn, J.

      B. J. Bowman, for plaintiff and appellee.

      T. G. Manning, M. By an, and James (?. White, for defendants and appellants.
   Taliaferbo, J.

The plaintiff seeks by this action to annul a judgment or decree of the parish court of the parish of Rapides, rendered on the twenty-eighth of November, 1868, at the instance of various creditors of Stephen Duncan Linton, deceased, who prayed a sale of the property of his succession to pay their claims against it. By this decree it was ordered that the plantation called Quan.ti.co, under mortgage to these creditors, bo sold for cash upon the requisite advertisement being made. In conformity with this order, the property was sold on the second of December following, and adjudicated to the Louisiana State Bank at the price of sixteen thousand nine hundred dollars. On the third of February, I860, the Louisiana State Bank sold this property to Charles Robertson and Abraham Heyman for thirty thousand dollars “ paid and to be paid.”

The grounds set forth by the plaintiff in the case before us for annulling the sale of the Quantico property are that the creditors, pretending to have a mortgage and judgment affecting that property sued out a pretended order of seizure and sale from the parish court of the parish of Rapides, a court without jurisdiction, ratione materice, of the amount claimed, which exceeded eighty thousand dollars; that in these proceedings the land was unrepresented; that no notice was given, as required by article 735 of the Code of Practice; that the Louisiana State Bank, knowing it had no title, conveyed only such title as it acquired by that sale to Robertson and Heyman, refusing to warrant a perfect title, but agreeing to return the purchase price in case of eviction, with eight per cent interest from date of judgment; that under this quit claim Heyman and Robertson are possessors in bad faith, and liable for rents and revenues from date of sale.

The Louisiana State Bank, the Bank of Louisiana, (by E. E. Norton and Ar. Miltenberger, assignees,) Anna DeBoigne, an absentee, represented by her curator T. C. Manning, Eli Bush, and Charles Robertson and Abraham Heyman, were all made parties defendants. Robertson called in warranty his vendor, the Louisiana State Bank, praying that he have such judgment over against the bank as may be rendered against defendants.

The plaintiff prays judgment annulling the sheriff’s sale of the Quan-tico plantation under the alleged illegal order of the parish court; that all the said parties be cited; that plaintiff recover from Robertson and Heyman for rents and revenues, specifying the amounts claimed.

Heyman, one of the defendants, it seems during the litigation that followed went into bankruptcy. His assignee was cited, but made no appearance, and is not represented. The bank answered this call, disclaiming any right in Robertson to recover from it in case of eviction any thing more than the amount he actually paid the bank, with interest, etc.

The defendants filed a peremptory exception to the right of plaintiff, as public administrator, to represent the succession of Linton, as the office of public administrator had been abolished by law. This was overruled. The defendants filed their answer denying all the plaintiff’s allegations, and denying that the parish court of Rapides has jurisdiction of the succession of Linton, who never had a domicile in that parish. It is further alleged that the object of this suit is not to protect but to injure its interests, the heirs, and creditors. It is also alleged that the heirs of Linton have accepted his succession with benefit of inventory, and that no others than they can complain of the judgment sought to be annulled, there being no other creditors concurrent with them in the first mortgage on the property. They pray a dismissal of the suit at plaintiff’s costs, and for general relief.

The heirs of Linton intervened, joining the defendants in resisting the plaintiff’s demand, and pray that they alone be allowed to represent the succession, averring the want of legal right in plaintiff to represent it.

The judgment of the lower court dismissed the intervention, annulled the sale by the sheriff of the Quantico plantation, decreed that property to belong to the succession of Stephen Duncan Linton, deceased, that-the plaintiff’s demand for rents and revenues be rejected, and, lastly, that Charles Robertson, who called his vendor in warranty, recover from the Louisiana State Bank the sum of seven thousand eight hundred dollars, with interest at eight per cent per annum from the final decision of this case, with costs of suit. All the defendants have appealed.

In tins court the plaintiff asks an amendment to the judgment by giving him the value of the rents of the property, as prayed for in his petition. Various bills of exception are found in the record, none of which we consider it important to examine.

Two questions are to be considered:

First — Is the decree of the parish court rendered on the twenty-eighth of November, 1868, ordering the sale of the plantation called Quantico, to be regarded as an order of seizure and sale, and, if so, was it legally issued ?

Second — If not a decree via exeat diva, is it valid as an order of sale rendered upon the application of creditors for the sale of property of the estate to pay debts, in pursuance of articles 990 and 991 of tho Code of Practice ?

The prayer of the petition for a sale of'the property is “that the lands and improvements described in tho act of mortgage be sold at public auction, for cash, an d tho proceeds thereof be ratably divided among your petitioners.” Then immediately followed the declaration that “ the petitioners show tho court that tho deceased Linton never resided in your parish, that ho died during the present year, and that his succession is vacant. Wherefore they pray the order of sale as allowed by law, for all other orders, and for general relief.” The order rendered by the parish judge is responsive to the prayer of the petition.

Wo can not regard these proceedings otherwise than as utterly null. The succession was wholly unrepresented. Theic was no curator or administrator appointed to administer it. No one contradictorily with whom tho creditors could contest and enforce their claims, the petitioners, at the same time they prayed for a sale of property of tho succession to pay their debts ignoring in substance and effect the jurisdiction of tho tribunal they invoked the authority of to obtain payment of their claims. No legal effect can result from proceedings so illegally conducted.

. It is therefore ordered that the judgment appealed from be affirmed with costs.

Rehearing refused.