author: "Watkins, J.

text:
    No. 12,639.
    Succession of Mrs. Louisa J. Bidwell.
    Syllabus.
    Upon tlie production oí a bank-box containing a sum oí money wliicli is placed in an envelope that is endorsed in the name of a third person to the knowledge of the deceased, and his claim is otherwise supported by testimony, It will be upheld as against the executor of the deceased, and such third person decreed entitled to the possession thereof.
    ON APPEAL iroiii the Civil District- Court for the Parish, of Orleans. Monroe, J.

      Chaffe & Bowers for John T. McDonald, Plaintiff and Appellant

      James McConnell, Jr., for George K. Pratt, Testamentary Executor and Appellee.
    Argued and submitted April 4, 1898.
    Opinion handed down June 22, 1898.
    Judgment amended and rehearing refused June 29, 1899.
   (Miller, J., dissenting, filed a separate opinion.)

On application for rehearing, per curiam.

The opinion of the court was delivered by

"Watkins, J.

Louisa J. Bidwell died testate on the 16th day of May, 1897, leaving considerable property situated in New Orleans, Louisiana, and some in Pass Christian, Mississippi, of which she disposed by last will and testament — appointing George K Pratt executor.

Soon after her death, the aforesaid executor produced her will in the Civil District Court for the Parish of Orleans, as that of her domicile, and had same probated and was qualified thereunder.

Not long subsequent to his qualification, a rule was taken by him upon the Whitney National Bank for the production of a certain box in its vault; and to that rule an opposition was filed by John T. Me-Donald, of Pass Christian, Mississippi, claiming the bank box and its contents.

The demand of opponent is best detailed in the language of the opponent’s answer to the rule, and for that purpose we make the following extracts therefrom, viz:

That he, the said John T. McDonald, is the owner of said bank box, and its contents, to-wit:

“One certain sealed envelope, marked ‘John T. McDonald, Pass " Christian, Miss./ said envelope containing money to the amount and of the value of two thousand eight hundred dollars; two ladies’ “ gold watches, one gentleman’s gold watch, one diamond bracelet, two “ old-fashioned flat gold bracelets, one solitaire diamond ring, two long “ nec-k watch chains, one gold necklace with head design, one necklace “locket (design of cross, anchor and heart), one small gold locket “(containing hair), one pair cuff buttons, one Masonic charm (made of “ twenty-dollar gold piece), one pair imitation diamond earrings, one “pair of gold hoop earring's, one'Strawberry diamond breastpin, one “ breastpin, and other small items of jewelry, one chamois purse, with “old-time coins, etc.”

We have, italicized the significant portion of the demand because it appertains to the special and particular object to be attained by his ■opposition, that is to say, the sealed envelope which was contained in the bank box, and marked “John T. McDonald, Pass Christian. Mississippi”, with twenty-eight hundred dollars therein.

We make the further extract from the petition of opposition, for the purpose of emphasizing that statement, viz;

“That the deceased, Louisa J. Bidwell, gave to him all of this property, and all the contents of this bank box, save and except the en- “ velope, the money contained therein, which was the property of the "said John T. McDonald prior to the gift of the hank hox, and had “hceti deposited hy the said John T. McDonald in the said hank hox “ for safe keeping, hy and with the consent of the said Louisa J. Bid-''well; same were given to the said John T. McDonald by the said “ Louisa J. Bidwell on March 26, 1897, she then being sick in bed and not being able to obtain the manual possession of said contents of “ the bank box, she gave him the key of said bank box, together with “en order on the Whitney National Bank, to turn over the contents “thereof to him, John T. McDonald; that from and after said date, *" Mrs. Louisa J. Bidwell continued to be sielc and confined to her. “ house, and a further delivery by her .was thereby rendered impossi- “ ble prior to her death.”

We have, again italicized a similar part of opponent’s demand, for the purpose of limiting the discussion thereto, and of disembarrassing it of unnecessary details.

From the foregoing extracts it is plain, that the opponent claims ownership of the twenty-eight hundred dollars, which were contained in an envelope sealed, endorsed and deposited therein, by a title different from, and of a date anterior to that by which he claimed the bank box and its other contents.

In ether words, that his contention is, that on or about the 23rd of December, 1890, Mrs. Bidwell gave him, by a manual delivery, $2500, in currency, which he placed in an envelope, and endorsed his name and the date of the transaction thereon, and in her presence and with her permission deposited same in her hank box, No. 215, in the safe deposit vault of the Whitney National Bank, for safe keeping — Mrs. Bidwell at the same time placing therein, the sum of five hundred dollars loosely in the box.

That on or about the 3rd o£ March, 1897, Mrs. Bidwell gave him three hundred dollars in addition to the twenty-five hundred dollars, the two sums aggregating twenty-eight hundred dollars; and that on that occasion he opened and destroyed the envelope first described, and deposited the twenty-eight hundred dollars in another one, and with her consent and permission, he placed same in the bank box as before, Laving placed a similar endorsement thereon.

His contention is further to the effect, that on the aforesaid 23rd of December, 1896, Mrs. Bidwell drew out of the New Orleans National Bank the sum of $3,000 on her check and placed same in her bank box in said bank; and that same was sealed up and was about to be returned to its place in the vault of the bank, when an officer of the bank advised her to hire a box in some safe deposit vault. And, acting upon that suggestion she hired a box in the vault of the Whitney Bank, as is above stated.

That when she had done so, she found that her box was too large for the vault box, and, thereupon, she opened her box and transferred its contents to a new one. That it was upon that occasion that Mrs. Bidwell gave him, McDonald, $2,500 of the $3,000 she had that day drawn from the New Orleans National Bank, and which he, in her presence, placed in the envelope and deposited in the bank box.

That on the 3rd of March, 1897, when she drew out of the New Orleans National Bank the sum of $4,000 on her check for that sum, she gave him, McDonald, $300, and placed the remaining $3,700 in her hank box, together with the $500 she had previously placed therein; and that he, McDonald, placed the $300 she then and there gave.him, in a new envelope, together with the $2,500 she had previously given to him, and deposited, same as aforesaid.

That as the result of these transactions, Mrs. Bidwell had drawn from the New Orleans National Bank wherein she kept an account, the total sum of $7,000; and that of this sum she gave to McDonald $2,800, and retained $4,200 thereof.

For the purpose of identifying the transaction — and for other purlooses not necessary at present to be mentioned — counsel for the executor, over the objection and exception of counsel for the opponent, introduced in evidence the check-stubbs appertaining thereto, and which are of the following tenor, to-wit:

“$3,000.

“December 23, 1896,

“Order of Mrs. L. J. Bidwell, †or to put in bank box 88% three thousand dollars

“$4,000.

“March 3, 1897.

“Order of Mrs. L. J. Bidwell, four thousand dollars to put in bank box in Whitney National Bank, making a total in said bank $7,000.”

These check-stubbs, or the originals of which the foregoing purport to be copies, are alleged to have been filled out by McDonald; and while not committing himself to the correctness of their recitals in the absence of the originals, he, as a witness, admitted that he had prepared the two checks therein referred to, at Mrs. Bidwell’s request, and dictation. '

It is undoubtedly true that the cheeks referred to in the stubbs, are the identical ones to which McDonald referred in his testimony; and it is manifest that they exactly correspond in dates and amounts with the sums drawn from the New Orleans National Bank, and deposited by Mrs. Bidwell as described by the witness.

But in addition to this evidence and the statement of McDonald as a witness, these two check-stubbs bear upon their face strong corroborative details; for instance, the first one recites that the $3,000 was to be “put in bank box 332,” which was the number of Mrs. Bidwell’s bank box in the New Orleans National Bank, and the $4,000 was to-be “put in bank box in the Whitney National Bank,”-etc., — in exact keeping with the parol testimony.

An. effort is made by counsel for the executor to show that the concluding phrase of the sub-entry, viz: “making a total in said bank $7,000,” is adverse to McDonald’s contention; on the contrary we think it is literally true and confirms the truthfulness of his statement — for there were certainly “$7,000 in said bank,” though it was claimed in part by McDonald, and in part by Mrs. Bidwell, ostensibly.

But the truthfulness of McDonald’s statement is borne out by a written statement of contemporaneous date which was signed by Mrs, Bidwell and which is of the following tenor, viz:.

“(The envelope which McDonald “saw fit to preserve and produce upon the trial, instead of carelessly destroying or easting it in the waste basket after depositing its contents in bank.)”

The endorsement at the foot of the foregoing exhibit was evidently-made by counsel for the executor, and it contains the significant admission of its genuineness; and that McDonald preserved the torn •envelope with the accompanying endorsement, which was written by him and signed by Mrs. Bidwell contemporaneously with the transaction of March 3rd, 1897, in the Whitney National Bank, for the purpose of establishing his claim, in case of an emergency arising requiring it.

This paper furnishes a very important link in the chain of evidence as it bears the genuine signature of Mrs. Louisa Bidwell; and is an admission in writing over her signature, endorsed upon an envelope of the Whitney National Bank, that $4,200 had been segregated from the $7,000 which she had checked out of the New Orleans National Bank, and placed same therein, and deposited the package in her bank box then in the safe-deposit vault of the Whitney Bank.

The proof being clear that Mrs. Bidwell had drawn from the New New Orleans National Bank, the total sum of $7,000, and of her having segregated $4200 therefrom, under the circumstances related, is a powerful circumstance corroborative of McDonald’s claim to the $2,800, which was the exact residue.

Tie check-stubs, and the exhibit last referred to, confirm the fact that very intimate and confidential relations existed between McDonald and Mrs. Bidwell, which of themselves suggest plausibility for the appellant’s contention, to the fact that the manual gift of the $2,800 was in fact, and intended to have been a remunerative donation in recompense for prior valuable services rendered by McDonald to Mrs. Bidwell.

On the trial McDonald was sworn as a witness, and the opening part of his interrogation gives his version of the transaction, and for the purpose of accuracy we reproduce the following extract from the record, viz.: • '

“Q. — Mr. McDonald, a moment ago, you said something about twenty-eight hundred dollars which was at that time in that bank box —did that belong to you?

“A. — Yes, sir.

“Q. — Please decribe that twenty-eight hundred dollars — state the denomination of the bills, if yoü remember. State how the money got into that bank box, and who put it in there. Describe the envelope in which it was enclosed, and give us any other identification of the money and the packakge that you got ?

“A. — Well, there were fifty fifty-dollar bills, and around these fifty fifty-dollar bills was a piece of paper marked twenty-five hundred dollars; and then there were three one hundred-dollar bills.

“Q. — Was that money loose in that bank box?

"A. — No, sir; it was placed in an envelope.

“Q. — A sealed envelope.?

“A. — Yes, sir; a sealed envelope,, with my name on it — John T. McDonald, Pass Christian, Miss.

“Q. — In whose handwriting ?

“A. — In my handwriting.

“Q. — Who placed this money in Mrs. Bidwell’s bank box?

“A. — I did.

“Q. — How came you to put it in her bank box ?

“A. — Mrs. Bidwell gave me the use of her bank box at that time to place this money in there. She had some of her own money in that bank box, at the same time, for safe keeping. She left it in that bank box.

“Q. — When did you place that twenty-eight hundred dollars in that bank, box — approximately ?

“A. . About a year ago — may be a little more than a year ago.

“Q. — Did you put it all in there at one time ?

“A. — No, sir.

“Q. — Well, tell us how you put it in there ?

“A. — I put twenty-five hundred dollars in at one time, the first time, and about six months thereafter she gave me three hundred dollars. The first envelope was destroyed, and a second envelope placed in there with the twenty-eight hundred dollars. At this time Mrs. Bidwell had an envelope in there containing an amount of money belonging to herself at the same time,” •*

In speaking of Mrs. Bidwell’s gift to him of the bank box and its contents, subsequently, the following occurred, viz.:

“Q. — -What did she say with reference to the contents of the box ?

“A. — I give everything to you — the money and the jewelry.

"Q. — What money did she refer to?

“A. — The money that was there in the box.

“Q. — At the time of this donation to you, was there any money belonging' to her at that time in this hank box in the Whitney vault?.

“A. — Yes, sir.

“Q. — How muoh ?

“A. — Eorty-two hundred dollars.

“Q. — What became of that forty-two hundred dollars?

“A. — I took that forty-two hundred dollars out and placed it to Mrs.. Bidwell’s credit in the New Orleans National Bank.

“Q. — Why was it you placed the money you got, which was in the bank box at the time she made the donation to you, to' her credit in the Now Orleans National Bank?

“A. — Mrs. Bidwell asked me to do it so she would have the money to check against for her expenses?’

This testimony is quoted, not for the purpose of supporting McDonald’s claim to the .bank' box and its contents, inclusive of the money of Mrs. Bidwell therein, hut for the purpose of showing that the dealings and transactions between McDonald and Mrs. Bidwell, subsequent to the placing of twenty-eight hundred dollars in iho envelope and depositing same in the banh box, were exclusively predicated upon the sum of forty-two hundred dollars as the amount Mrs. Bidwell owned; and that in this manner Mrs. Bidwell recognized McDonald’s ownership of said twenty-eight hundred dollars by the strongest possible implication.

With regard to the situation of the parties at that time, we quote the following extract from appellant’s brief, viz.:

“In March, 1897, Mrs. Bidwell was taken ill, and with various “ fluctuations of condition continued sick until the sixteenth day of “ May, when she died. From the thirteenth day of March she was “ practically confined to her room, and a great part of the time to her “ bed. During- all this time, McDonald, at her instance, was in con- “ stant attendance upon her, never leaving her except upon her “ errands, completely in charge of all her affairs, and even directing “ the management of her household. On March 26th, at which time “ she was very ill, Mrs. Bidwell called appellant to her bedside, and “ stating to him that she had not made for him the provision which “ she had intended to make, directed him to write an order, or paper, “ conveying to him the contents of her bank box 'in the Whitney “National Bank, which then contained not only the twenty-eight “ hundred, dollars belonging- to McDonald, but forty-two hundred " dollars belonging to Mrs. Bidwell, together with jewelry of the “value of three or four hundred dollars. This McDonald did, and “the paper was written in the following terms:”

“Notwithstanding the foregoing- assignment in writing by Mrs. Bidwell to McDonald of the ‘whole of the contents, moneys and other valuables in (her) bank box,’ the latter made no effort to take possession thereof, but contended himself by preserving same as a title thereto — Mrs. Bidwell rem'aining sick at Pass Christian in the meantime, and he being unable to leave her bedside.”

This is ah endarsoment by appellee's counsel.

On the 10th of May her physician gave her the following certificate, viz.: j i

And thereupon she executed the following order:

On the presentation of this last order, McDonald was permitted by the custodian of the Whitney Bank vault to “have access to (her) bank box No. 215,” he being in possession of the “keys and pas? word.” *

Having access thereto, McDonald opened the envelope containing the forty-two hundred dollars, which Mrs. Bidwell had endorsed, and removed said sum, leaving the tom envelope in lieu thereof, as a voucher in her bank box; and he, thereupon, deposited the forty-two hundred dollars in the New Orleans National Bank to Mrs. Bid well’s account, as she had desired him to do. This fact is shown by the following deposit slip, viz.:

We have thus traced the sum of $7,000.00 from the New Orleans National Bank into the safe deposit vault of the Whitney National Bank, where same was divided between McDonald and Mrs. Bidwell, Mrs. Bidwell placing $4,200.00 in one envelope, and McDonald placing $2,800.00 in another envelope, both of these envelopes having- been appropriately endorsed and put in Mrs. Bidwell’s bank box by mutual consent.

We have, also, traced the same identical sum of $4,200.00 from the Whitney vault, back into the New Orleans National Bank, and at Mrs. Bidwcll’s credit, again.

We wish to make it very plain, that we are not -dealing with the foregoing exhibits and the testimony relating- to the $4,200.00 as furnishing proof of McDonald’s ownership of it, but as exhibiting the separation of the fund into two parts, as a conclusive admission on the part of Mrs. Bidwell, that McDonald owned the $2,800.00.

In our opinion, the proof of McDonald’s ownership and posession of the $2,800.00 is placed beyond the- peradventure of a doubt; for upon what other hypothesis could these transactions have taken place ?

They do not depend upon the truthfulness of McDonald’s parol statements, but, on the contrary, they are established by instruments of writing which were signed by Mrs. Bidwell, and upon which she as well as McDonald predicated their subsequent actions in reference thereto.

The $4,200.00 went to Mrs. Bidwell’s credit in the New Orleans National Bank, and she cheeked against it in paying current obligations, but the $2,800.00 remained in the envelope, and that remained unbroken in the bank box until same was produced and opened in court.

In so far as McDonald’s claim to the bank box and its contents, as they stood on the 26th of March, 1897, -are concerned, including the $4,200.00 in currency, we prefer to express no opinion at this time, because, as we have already shown, the same was withdrawn from the box on the 10th of May, 1897, by McDonald, at the request of Mrs. Bidwell, and does not form an element in the present controversy.

Inasmuch as McDonald’s title to the $4,200.00 depends upon the self-same evidence as his title to the other articles which were therein contained, it would be manifestly unjust and incorrect for us to' decide whether his title thereto is legal and valid, under the circumstances stated.

It is our conclusion that McDonald’s claim to the twenty-eight hundred dollars is made out and must be sustained, but that in respect to his ownership of the bank box and its contents, including the $4,200.00, we are of opinion that a non-suit should be entered with a full reservation of all rights in respect thereto.

There were numerous witnesses interrogated, and their testimony covers many pages of the record, but it chiefly refers to Mrs. Bidwell’s donation of the bank box and its contents, including the forty-two hundred dollars, with which we have chosen not to deal, for the foregoing good and sufficient reasons.

Much of it, also, refers to McDonald’s alleged ownership of the pleasure schooner, “Queen of the Fleet,” by virtue of- a title derived from Mrs. Bidwell, and with this we can not deal for the plain reason that it is not a subject of any controversy in this suit.

Whether or not McDonald was in ample funds to have purchased an interest in the vessel at the time indicated in the testimony, is fully answered by his account current with the New Orleans National Bank, which shows a deposit of $580.00 on August 10th, 1890, and $60.00 on the 9th of September, 1896, aggregating $646.00, and checks aggregating $74.50 up to and including January 18th, 1897, leaving him a credit balance June 8th. 1897 — subsequent to Mrs. Bidwell’s death — of $501.50.

All of these are facts — indisputable facts — which in no manner or form depend upon the parol testimony of witnesses.

There is another important distinction between the manual gift of the $2,800.00 to McDonald, and the donation of the bank box and its-contents at a subsequent period, which is founded upon the citizenship, of the donor, Mrs. Bidwell, who, it is claimed by the counsel for the donee, was a citizen of the State of Mississippi at the time when and the place where the written instruments purporting io evidence same were signed — their contention being that the principles of law therein obtaining must govern its interpretation.

This is an additional reason why the two demands should be separately considered.

But it is insisted in the argument on the other side, that the evidence -shows that opponent’s pretensions of ownership of the bank box- and its contents — including the $4,200 — are utterly groudless, and that -his testimony in support of same is entirely unsupported and unworthy of belief; and that being so, his entire testimony in respect to the gift of the $2,800.00 must be disregarded and rejected, on the theory fal$us in uno, falsus in omnibus.

Let us apply this test.

On the 25th of March, 1897, Louisa J. Bidwell signed in her own handwriting an order in the following wordj, viz.:

“To the keeper and officials of the Whitney National Bank of New Orleans:

“I command you to turn over to Mr. John T. McDonald, of Pass Christian, Miss., the whole of the contents, moneys and other valuables in my banh box without hindrance or further orders from me.”

There is no question of the fact, that this order was broad enough, and succinct enough in its terms to embrace all the moneys in the box; the $2,800.00 as well as the $4,200.00, as both of these sums were then in the box.

Can it be said that the testimony of the opponent is at variance with that order, the genuineness of which no one denies ?

Certainly not.

Then the claim of the opponent is not only supported by the signature to the endorsement upon the torn envelope which contained the $4,200.00, but by the positive terms of said order.

The evidence shows that the $2,800.00 had been segregated from the $4,200.00 and the two amounts placed in separate envelopes in the bank box, just three weeks prior to the date of said order; and that those two envelopes remained therein intact until the 8th of May, ,JS97 — six weeks subsequent' to the date of said order.

The contention on the other side is that the order .which Mrs. Bidwell gave the custodian of the Whitney Bank on the last named date, places an altogether different construction upon her previous order, and one that is destructive of opponent’s claim to the contents of the box, moneys, etc.

The order says:

“I authorize Mr. John T. McDonald, my legal representative, to have access to my bank box No. 215 to -attend to some business for me.”

Does this language necessarily mean that Mrs. Bidwell intended a revocation of her former order ?

We think not.

In ease there be doubt with regard to the proper construction of a contract, a good rule for its interpretation is that found in the manner in which the parties have acted in carrying same into execution. This is the rule established by Rev. Civil Code, 19S6.

Applying that rule we find that McDonald opened the bank box, removed the $4,200.00, and deposited the same, on the same date it was withdrawn, to the credit of Mrs. Bidwell in the New Orleans National Bank.

Of this Mrs. Bidwell made no complaint, but on the same date checked this identical amount out again.

But the evidence shows that McDonald did not withdraw from the bank box either the jewelry and other contents of same, or the $2,800.00.

Is it not, therefore, clear that the “business” which McDonald was instructed to attend to only related to the $4,200.00 transaction? We thirds so.

In the discussion of McDonald’s truthfulness, wo need not go into the question of his ownership vel non of the $4,200.00; but that transaction does, at least, give color to that pretension, and tends to fortify his claim to the $2,800.00.

In addition to the foregoing, another witness who attended Mrs. Bidwell in her illness, confirms, in a circumstantial way, the truthfulness of opponent’s statements.

Under the circumstances, and in the absence of any countervailing evidence, we are not warranted in applying the rule that is insisted on.

The proof discloses, and the fact is, that for years previous to the death of Mrs. Bidwell, the appellant had been her confidential and trusted agent and man of affairs. That he abandoned all other work, m great part, and devoted 'his time, attention, and talents to the care and management of her business; and the proof abundantly shows that she had every confidence in him, and there is not a scintilla of evidence tending to show that her trust had been, in the smallest particular, betrayed.

There is another circumstance which is worthy of mention, and which possesses significance, which is, that there is on the bank account of McDonald for the years 1896 and 1897, no credit which is apparently derived from Mrs. Bidwell; and not an entry on her bank book which shows any payment to McDonald — 'both of their accounts being in evidence.

Thus it becomes apparent that Mrs-. Bidwell, an aged and wealthy woman, felt under obligation to make to McDonald this remunerative donation,, in view of her approaching dissolution, as a partial recompense for his appreciated and valuable services.

Therefore, the demands of the opponent must be sustained, and be be decreed the owner of the bank box and the contents thereof, and entitled to the possession of same; but it is declared not to include the sum of forty-two hundred dollars to which reference, is herein made.

It is therefore ordered, adjudged and decreed, that the opposition and demand of John T. McDonald Be sustained, and that the demand of the executor of the deceased, Mrs. Louisa Bidwell, be disallowed and rejected at bis1 cost; and that said opponent’ and appellant be decreed the owner of the bank box and the contents thereof, including the sum of twenty-eight hundred dollars contained therein, but not to include the sum of forty-two Hundred' dollars to which reference is made.

Miller,. J., with whom concurred the1 Chief Justice, handed down a dissenting- opinion in this case.

Per Guram;

The application for rehearing filed herein on behalf of the executor, and the able briefs submitted by his counsel in support thereof, have I ad our consideration, but our conclusions remain unchanged that the opponent has’made good his claim for the $2,800 contained in the bank box of the deceased".

We do not deem it necessary to review again the facts and circumstances upon which this conclusion rests..

But in the draft of the decree heretofore handed down an error was made in this, to-wi’t: That opponent was adjudged to he “the owner of -file bank box and the contents thereof, including the sum of twenty-eight hundred dollars therein contained, but not’ to include the sum of forty-two hundred dollars to which reference was made.”

A reference to the body of the opinion will show that the only award intended to be made in his favor was for the $2,800. *

For instance it was there stated as follows:

■ “It is our conclusion that McDonald’s claim to the twenty-eight hundred dollars is made out, and must he sustained; but that in respect to his ownership of the bank box 'and its contents, including the $4,200, we are of opinion a non-suit should be entered with full reservation of all his rights in respect thereto.”

The decree in the particular referred to must be amended.

It is therefore ordered that the former decree of this court herein be set aside, and it is now adjudged and decreed that the opposition of John T. McDonald be sustained to the extent that his demand to be declared the owner of the sealed envelope marked “John T. McDonald, Pass Christian, Miss.,” and containing twenty-eight hundred dollars, found in the bank box of the deceased, be recognized, and that George X. Pratt, executor, be directed to deliver to him the said envelope and its contents, twenty-eight hundred dollars.

It is further ordered, etc., that the demand of said McDonald for the bank box itself and the remaining contents thereof, including the sum of forty-two hundred dollars withdrawn on May 10, 1897, be rejected as in case of non-suit, and that the said 'bank box and its contents be given into the custody of the said George X. Pratt in his capacity as executor aforesaid.

It is further ordered, etc., that the cost of the opposition of said McDonald, in both courts, foe paid by the Succession of Louisa J. Bidwell.

Nioholl, O. J., dissents.

Monroe, J., takes no part, having sat in the case in the trial court as district judge.


source: Caselaw Access Project

author: Monroe, J.

license: Public Domain

text:
    No. 13,102.
    In Re City of New Orleans Praying to Be Put in Possession.
    Syllabus.
    1. Where property is advertised lor the purposes of a tax sale, on Tuesday, December 17th, Tuesday, December 24th, and Tuesday, December 31st, 18S9, and on Tuesday, January 7, and Saturday, January 18th, 1S90, this is a sufficient compliance with the law requiring the advertisement to be made once a week for thirty days. A week is a fixed period of seven days and the law does not require that the advertisement shall be made on the same day in each week.
    2. The affirmative evidence of a disinterested witness, strongly corroborated by public records which he participated in making, is sufficient to overcome the bare denial, under oath, of the party in interest upon the subject of the notice required by Article 210 of the Constitution of 1879.
    J^PPEAL from the Civil District Court, Parish of Orleans — King,

      Walter B. Sommerville, Assistant City Attorney, and Samuel L. Gilmore, City Attorney, for the City of New Orleans, Petitioner, Appellant.

      Benjamin Bice Forman for Edward Ilansen, Defendant, Appellee.
   The opinion of the court was delivered by

Monroe, J.

The city of New Orleans filed a petition in the Civil District Court, which fell to Division “B”, praying to be put in possession of lots “1” and “2” in the square 308, bounded by Girod, Franklin, Basin, and Lafayette streets, in New Orleans, alleging that it became the purchaser thereof from Edward Hansen, at a public sale, made by it, January 18th, 1890, for delinquent taxes of 1886 and 1887, as evidenced by an adjudication, of that date, and an act of sale before Taylor, Notary, of date March 23rd, 1891. A writ of possession was accordingly issued, and, thereupon, Hansen enjoined, upon the grounds:

That he is the owner of lots “20’ ’and “21”, in the square mentioned, and that under the writ, as issued, notice demanding possession has been served on him with the intention of dispossessing him of said lots.

That the tax sale under which the city claims ownership was attacked by him in the suit entitled “Edward Hansen vs. Victor Mauberret, Sheriff”, filed in the Civil District Court, August 30, 1895; that the city was therein enjoined from disturbing his possession of said property; that said injunction is still pending, in Division “E” of the Civil District Court, and that the writ of possession herein was therefore issued improvidently, and in violation of said injunction; that said tax sale is void, for the reasons, that the assessment for 1882 was made in the name of John Cousley, who was dead at the time, and that there was no description sufficient to identify said property. That for the years 1886 and 1887 said property was erroneously assessed by a wrong description, and said assessments were annulled by judgments, but that, notwithstanding said assessments were thus annulled and cancelled, the City Treasurer proceeded thereunder and made the alleged sale under which the city now claims; that no notice or demand was made, for the payment of the taxes, prior to said alleged sale, and that the property was not advertised once a week, for thirty days, as required by law. He prays for the perpetuation of the injunction, and for judgment decreeing the nullity of the title set up by the city, and of the alleged assessments upon which it is based.

To this the city answers, denying that the injunction previously issued restrained it from proceeding to take possession of the property as owner, denying that the assessments for 1886 and 1887 have been annulled or cancelled, and alleging that the assessment for 1882, made in 1881, was valid, for the reason that the plaintiff in injunction acquired the property, from Cousley, June 2, 1881, during the life of said Cousley and after the assessment had begun. She also pleads the prescription of three, five and ten, and other years.

There was judgment annulling the title under which the city claims, perpetuating the injunction, and quieting Hansen in his possession, but rejecting the demand for the cancellation of the assessments of 18S2, 1886, and 1887. From this judgment, the city appealed and the plaintiff in injunction has answered the appeal, praying an amendment of the judgment in so far as it rejected the demand for the cancellation of the assessments.

The judge a quo does not specifically pass upon the question, whether, in view of the pendency, in Division “E”, of the suit entitled “Edward Hansen vs. Victor Mauberret, Sheriff”, he could properly proceed with the case before him. It does not appear, however, that any request for a ruling upon that point, as a preliminary to a trial on the merits of the ease, was made, or that an objection was made to the trial upon the merits, nor has the point been pressed in this court; the plaintiff in injunction praying an affirmance of the judgment appealed from. We.will therefore consider it waived, and deal with the case, as decided by the judge a, quo, upon its merits.

As to the assessment of 1882.

The tax deed filed in evidence shows that the property was not sold for the tax of 1882, but for the taxes of 1886, and 1887, with interest and costs. The invalidity of the assessment for the taxes of 1882, if such invalidity exists, would not therefore constitute a cause of action for the purposes of the attack upon the title set up by the city and of the injunction against the writ of possession based on that title.

As to the assessments of 1886 and 1887.

Plaintiff in injunction offered in evidence records in suits Nos. 18,889 and 22,385 of the Oivil District Court, being suits brought by Hansen against the Board of Assessors. There was an objection of irrelevancy, which was sustained.

The ruling was correct. The suits were for reductions of' assessments on various pieces of property, but did not include the property here in controversy, and the records are irrelevant.

As to the notice required by Article 210 of the Constitution of 1879.

Plaintiff in injunction denies under oath that he received such notice. Upon the other hand, the city produced what is called a “Tax Notice Book”, shown to be part of the records of the “Back Tax Bureau”, of the Treasury Department of the city of New Orleans. In this book were stubs, bearing the name of Hansen, the plaintiff in injunction, and to these stubs were pasted the original notices which had, apparently, been taken from them, served upon Hansen, and returned, including a notice with reference to the property in question, dated August 9, 1889, addressed to Edward Hansen, informing him that the taxes of 1886 and 1887, upon the two lots in question, amounting to $66.00 and $60.00, respectively, were unpaid, and delinquent, that they bore interest, and that, after the expiration of twenty days from the service of the notice, unless payment was made, the property would be advertised and sold. This notice, a copy of which is filed in evidence, bears the signature of J. N. Hardy, City Treasurer, and what purports to be a return of service, in the following language, to-wit:

“Served Aug'. 9, ’89, on Edw. Hansen in person.”
“S. F. Moore, S. C.”

It has also written upon the face of it, the following-: “Please extend to Oct. 20, ’89. A. P. Harrison, Treas. Ad Int.” And conspicuously-printed upon its face are the words, “Bring this notice with you."

It was objected that -this notice was inadmissible, for the reason that S. F. Moore, who was supposed to have been the “Service Clerk”, by whom it purported to have been served, was not produced, his signature was not proved, and there was no law making the document, as it stood, admissible in evidence. There would, no doubt, be great force in this objection if the offer had no other support than such as has been stated, but there is something more.

W. IT. Michel, sworn for the city, testifies that in 1889, he was employed in the “Back Tax Bureau” of the City Treasurer’s office; he identifies the “Tax Notice Book”, as a record of that office, and his testimony then proceeds as follows, to-wit:

“Q. How did these notices get pasted in that book?
“A. I attached them, to that book, sir.
“Q. Where did you get them from?
“A. From the treasurer ad interim. They came to me by Mr. Hansen.
“Q. This Mr. Hansen?
“A. Yes, sir; and I indorsed them ‘Not advertised’. They were taken to the Treasurer’s office. The Treasurer asked an extension of time. I made the extension; put in ‘Do not advertise’, and I attached them to the book, to show my authority for the extension.
“Q. And you know that Mr. Hansen brought the notices back ?
“A. I do, sir.
“Q. This Mr. Hansen? (pointing to the plaintiff:).
“A., Yes, sir.
“On cross-examination.
“Q. Mr. Hansen brought them in?
“A. Yes, sir; he had evidently been in the treasurer’s office, and Mr. Harrison had sent him over to me.”

We find this testimony in the transcript No. 13,084, (being the transcript of the appeal in the ease of Edward Hansen vs. Victor Mauberret, Sheriff, et als.), concerning which the parties litigant have placed the following agreement in the record in the instant case, to-wit:

“It is agreed in this ease, that record No. 46,920 on tie docket of “ this court, entitled Edward Hansen vs. Vic. Mauberret and the City “ of New Orleans, offered in evidence by Edward Hansen, need not be “ copied in the transcript; and that the transcript of said suit now on file in the Supreme Court of the State of Louisiana shall be used in “ said Supreme Court, in connection with the transcript of appeal in “ this case, the same as if copied herein.”

That there was some further extension (whether intentional or accidental, does not appear), beyond that thus asked by the Treasurer ad interim,, is evident, since it is otherwise shown that the property was first advertised December 17, 1889.

Hansen’s testimony, on the subject, is as follows:

“Q. Did you ever receive from Joseph N. Hardy, previous to that sale and adjudication, any notice of demand for the taxes for which that sale appears to have been made?
“A. No, sir.”
Cross-examination.
“Q. Where were you, Mr. Hansen, on the 9th day of August, 1889 ?
“A. What is that?
“Q. Where were you on the 9th of August, 1889 ?
“A. In 1889, I was in New Orleans.
“Q. And you say that you did not receive a notice that your property was going to be seized and sold, unless the taxes of 1886 and 1887 were paid to the city of New Orleans; yes or no ?
“A. No, sir.
“Q. You state positively that you did not?
“A. I did not.
“Q. Whereabouts in New Orleans were you, on that day, August 9, 1889?
“A. I have been in New Orleans since 1852, and I suppose I was-there then.”

We have, therefore, the positive, affirmative testimony, of a disinterested witness, to the effect that Hansen had the notice in his possession, and turned it over to the witness, and that the witness pasted it back on the stub in the Tax Notice Book, where it was found; together with his explanation as to why this was done, all of which is entirely corroborated by the appearance and indorsements on the notice, and its surroundings when found, in its proper place, as a public archive, in a public office.

And, as against this, we have the bare denial of the party plaintiff, with reference to the receipt, or non-receipt, nine years before, of a notice such as, being the owner of a number of pieces of property, he probably received not infrequently.

We think the evidence in the affirmative preponderates, and that the requisite notice is brought home to the plaintiff in injunction.

As to the advertisement.

It is claimed that the property was not advertised once a week for thirty days. The evidence shows that the advertisements appeared upon Tuesday, December 17th, Tuesday, December 24th, Tuesday, December 31st, 1889, and upon Tuesday, January 7th, and Saturday, January 18th, 1890. The two last advertisements, concerning the interval between which the complaint is made, appeared, therefore, in two consecutive calendar weeks, and there were five advertisements within the thirty days proceeding the sale.

The law of the case (Constitution, Article 210, O. C. 1117, Act No. 104 of 1878, p. 157) is to the effect that “as for those advertisements, for which the .term óf thirty days is fixed, it suffices, if they are published in a daily paper, once a week during .that time”. In a case aiming under an act of'Congress similar in its terms to our law, except that it required the advertisement to be made once a week for three months, it appeared that there were three intervals, between advertisements, of eight,, ten, and eleven days, respectively, and the Supreme Court of the United States said, upon the subject:

“ In examining the dates of the publication, it appears that eleven “ days at one time ,transpired between them, and at another ten days, “ at another eight. These omissions, it is contended, are fatal: that “ the publication being once made, it was essential to the validity of “ the notice that it should be published every seventh day thereafter. “ The words of the law are 'once a week’. Does this limit the publica- “ tion to a particular day of the week ? If the notice be published on “ a Monday, is it fatal to omit the publication until the Tuesday (of “ the week) succeeding? The object of the notice is as well answered “ by such a publication, as if it had been on the following Monday. “ A week is a definite period of time, commencing on Sunday and end- “ ing on Saturday. By this construction, the notice in this case must “ be held sufficient. It was published Monday, January 6, and omitted “ until Saturday, January 18, leaving an interval of eleven dáys; still, “ the publication on Saturday was within the week succeeding the no- tice of the sixth. It would he a most rigid construction of the Act “ of Congress, justified neither by its spirit nor by its language, to say “ that this notice must be published on any particular day of a week. “ If published once a week for three months, the law is complied with; “ and its object effectuated. The circuit court erred on this point, in “ their instruction to the jury.”

Ronkendorf vs. Taylor’s Lessee, 4th Peters, 360.

We concur in this construction, and adopt it for 'the purposes of the case now before us.

The conclusions thus reached render it unnecessary that we should pass on the plea of prescription filed on behalf of the city, and place the question of the validity of the assessment for 1882 as entirely outside of the case presented, of which we have appellate jurisdiction, as though that question had not been raised in the same pleadings.

It is therefore ordered, adjudged, and decreed that, in so far as the judgment appealed from rejects the demand of the plaintiff in injunction for the cancellation of the assessment of 1882* the appeal be dismissed; and in so far as said judgment rejects the demand for the cancellation of the assessments of 1886 and 1887, the same be affirmed, and, in all other respects, that said judgment be annulled, avoided and reversed, that the injunction herein issued be dissolved, and that the demand of Edward Hansen, plaintiff in injunction, be rejected and his suit dismissed at his cost, in both courts.

Rehearing refused.


author: Blanchard, J.

text:
    No. 13,449.
    State of Louisiana ex rel. Francis Daubert vs. Louis Arnault, Recorder Sixth Recorder’s Court of New Orleans, Louisiana.
    Syllabus.
    When the Recorder of the Sixth Recorder’s Court, city of New Orleans, Imposed upon the relator a fine of $25 and five days’ imprisonment, and then added that in case of default of payment of the fine he should suffer 25 days’ additional incarceration in the Parish Prison, he was within the pale both of the statutory law and the ordinance of the city relator was charged with violating.
    PPLICATION for Writs of Certiorari and Prohibition.

      Joseph B. Kiernan for Relator.

      James J. McLoughlin, Assistant City Attorney, for Respondent.
   The'opinion of the court was delivered by

Blanchard, J.

The relator was charged with violating the second section of ordinance No. 12,569, Council Series, City of New Orleans.

This ordinance, adopted in August, 1896, declares that the owner, lessee, or proprietor of a building, who shall permit any person or persons to gamble with dice for money, in or about the premises, shall, on conviction, be fined not less than $10, nor more than $25, or imprisoned not more than thirty days, or both, at the discretion of the court.

Its violation by the relator is charged to have taken place in August, 1899.

He was put upon trial before the respondent Recorder, found guilty and sentenced to pay a fine of $25, and to be confined in the Parish Prison for five days, and, in default of the payment of the fine, to serve an additional term of twenty-five days in prison.

From this conviction and sentence, he prosecuted a suspensive appeal fo the Criminal District Court for the Parish of Orleans.

That tribunal affirmed the judgment and remanded the case for execution of the sentence.

Following this, the respondent Recorder notified the relator to appear before his court, on a day fixed, to serve out the sentence that had been imposed upon him and affirmed on appeal.

Whereupon, the relator then applied to this court for its writ of prohibition to stay the hand of the Recorder, and for its writ of certiorari to enquire into the validity of the proceeding through which he had been convicted and sentenced.

The allegation is made that his arrest, trial, conviction and sentence are null and void for the reason that the Sixth Recorder’s Court had no jurisdiction to sentence him for the violation of any ordinance of the city of New Orleans in a penalty greater than a fine of $25, or, in the alternative, to imprisonemnt not exceeding thirty days, and as sustaining this position See. 12 of Act 181 of the Acts of 1877 is pointed to.

This section vests the Recorders of the Police Courts of the city of New Orleans with authority to enforce all ordinances of the city, and enacts that they shall have power to impose fines not to exceed $25 for each offense of violating a city ordinance, and in default of payment of the fine, to sentence the guilty party to imprisonment for not more than thirty days.

The accused here was sentenced to pay a fine of $25 and to serve five days in prison, and in default of payment of the fine, to serve an additional twenty-five days in prison.

This sentence is warranted by the city ordinance hereinbefore referred to, but not by the Act of 1877, which limits the maximum penalty to a money fine of $25, and does not authorize imprisonment, except in case the fine is not paid, in which event thirty days’ imprisonment may be imposed.

So that, “the bone of contention” here is the'five days’ imprisonment which the Recorder added to the fine of $25.

Other grounds of alleged nullity are set up by relator, but none of them have merit enough to justify serious consideration.

For answer to the rule to show cause why the writs applied for should not issue respondent Recorder avers the legality of his action in the conviction and sentence of the relator, and that the penalty inflicted was that authorized by the city ordinance, the enactment of which ordinance, he contends, was a valid exercise of the power vested in the Common Council.

The question presented is, did the Recorder, in the infliction of the fine of $25 and imprisonment for five days, and in default of payment of the fine, a further imprisonment of 25 days, exceed his authority and jurisdiction.

The Common Council of New Orleans may not go beyond the law in vesting Recorders of the City Courts with authority in the matter of the infliction of penalties for violation of city ordinances, and if the instant case rested alone on Section 12 of Act 131 of 1877, as relator seems to think it does, he would, perhaps, be entitled to relief to the extent of the setting aside of the sentence complained of, and the remanding of the case, to the end that a legal sentence might be pronounced;

State ex rel. Taquino vs. Recorder, 49 La. Ann. 104.

But there is other and later law on the subject than the Act of 1877. Act No. 41 of the Acts of 1890 is authority for Recorders of City Courts to punish violators of city ordinances “by fine, or imprisonment, or both, or by imprisonment in default of the payment of the fine”, but in. no case is the fine to exceed $25, nor the imprisonment, all told, to exceed 30 days. 49 La. Ann. 104; State vs. Voss, 49 La. Ann. 444.

And this was re-enacted and reproduced in Act No. 143 of the Acts of 1898.

City Ordinance No. 12,569 had, therefore, the authority of law for ordaining that any owner, lessee, or proprietor of a building who permits gambling with dice for money on the premises may be both fined and imprisoned, and when the respondent Recorder imposed upon the relator a fine of $25 and five days’ imprisonment, and then added that in case of default of payment of the fine he should suffer twenty-five days’ additional incarceration in the Parish Prison, he was within the pale both of the law and the ordinance.

Eor these reasons, it is ordered that the rule nisi issued herein be discharged at the costs of the relator, and that the execution of the sentence pronounced upon him by the Recorder’s Court be proceeded with.


author: Breaux, J.

text:
    No. 13,417.
    The City of New Orleans vs. Vincent Graffina.
    Syllabus.
    1.. The ordinances of the City Council assailed are not ultra vires, unreasonably discriminative or oppressive. They are not ultra vires because they lie within the scope of the police power of a city for the purpose of enabling it to enforce inspection laws and to see to sanitary conditions. They are not unreasonable; because no evidence shows their unreasonableness, and the presumption is that it gives all convenience possible to the vendors and consumers, consistent with sanitary conditions. It is not discriminative and oppressive, because the ordinances are of a general character and affect all interests alike.
    2. Judgment as relates to the issues of law affirmed and issues of facts reserved, to be passed upon in same case, on application for a writ of certiorari.

    APPEAL from the Eirst Recorder’s Court of the City of New Orleans. — Finnegan, J.

      James J. McLoughlin, Assistant City Attorney, and Samuel L. Gilmore, City Attorney, for Plaintiff, Appellee.

      Stafford & Lambert for Defendant, Appellant.
   The opinion of the court was delivered by

Breaux, J.

The affidavit made against the appellant, by the city authorities, sets out the ordinances he is charged with having violated, and the particular acts of the defendant complained of as being violative of those ordinances. It appears that the defendant keeps a fruit stand at the corner of Jackson Avenue and Magazine streets, where he sells fruit and vegetables in small quantities to consumers.

The place at which he keeps this fruit stand is within 2,100 feet of the nearest public market. This is within the limits prohibited by an ordinance of the Council. Defendant assails the ordinances of the Council he is charged with having violated, on a number of grounds, chiefly because they are ultra vires, unreasonable and discriminative. The ordinances attacked by the defendant are not ultra vires.

The State has the right tou-egulate the markets, and it may also delegate that power to the municipal corporation in which the markets sought to be regulated are situated. Regulations' regarding markets are indispensable in cities; and ordinances adopted for that purpose are not ultra vires when the municipality is authorized; as in this case, to regulate them. The right to establish a public market necessarily covers or embraces the right to prevent the establishing of private markets, and the right to prevent the sale of market commodities within the police regulations of a city for sanitary puiposes and for convenience. The object, primarily, is to enforce the inspection laws more strictly, and to prevent the sale of articles or provisions that are not sound.

The enforcement of inspection laws would be attended with great difficulty and annoyance, if all articles of food were sold at any place chosen by the vendors of such articles. Such regulations have always, been held permissible.

Not long since, this court had occasion to consider a similar question regarding the very ordinance now at hand, and it held that the municipality liad the.power to establish public markets, and to prevent the establishing' of private markets, or prohibit the sale of provisions and articles of daily consumption by peddlers. State vs. Namias, 49 Ann., 618.

This subject received consideration in another case,-in which it was held .that the right to establish public markets is accompanied by the right to prevent the establishing of private markets within certain prescribed limits. State vs. Gish, 31 Ann., 544.

It follows that the ordinances attacked by the defendant- are not amenable to the charge of being ultra vires.

But defendant contends that if they are not ultra vires, then, that they are unreasonable. The business of the retail fruit dealer is the only subject before us for decision. The right to carry on that business, within designated limits, may be made subordinate to the rights of public and other markets without violating the requirement that an ordinance shall be reasonable. All retail fruit dealers are brought within the terms of the ordinance. The municipality having the power to regulate the markets, the court will presume the ordinance to be reasonable, until the contrary is shown.

Defendant’s next complaint is, that it is discriminative and oppressive. In support of that complaint he avers, that if Section 34 of Ordinance 4155 forbids the keepers of fruit from selling anything other than fruit, that it is discriminative; as the prohibition is limited to fruit dealers, exclusively. It, may be that the Council, from a sanitary point of view, had reasons to exclude fruit dealers. There is no evidence before us regarding the necessity vel non of adopting an ordinance prohibiting fruit dealers from selling vegetables, but we do not take it that the prohibition is as limited as defendant contends. The ordinances under which public and private markets are established look to the sale of vegetables at these markets, and do not seem to sanction their sale at all hours, and at all places. It is ordained that they shall be sold at certain places, and under such conditions as defendant has not observed. This ordinance was before us for interpretation not long since in a case in which this court said, that “under the terms of the law referred to above, we are unable to see wherein any of the rights of defendants were infringed.

“They were dealers in vegetables, which the ordinance required should not he sold if in the market limits, within market hours. They were not excluded from the sale of their produce in the markets.”

State vs. Sarradat, 46 Ann., 700.

In that view, defendant has no ground whereon to urge the complaint of discrimination, because all vegetables must be sold in thf markets.

If his neighbors and others violate the ordinance, it affords him no ground of defense on this point. The law is general. In enacting the ordinance, the Oouncil, as we interpret it, made what they deemed an exception to the general rule, and ordained that there should be no interference with those carrying on the business of fruit vendors, provided it was limited to the sale of fruit only. In this we do not find that there was discrimination.

We decline to pass upon the questions of fact pressed upon our attention, as they properly come up for consideration on the application for a writ of certiorari.

It is therefore adjudged, ordered and decreed that the sentence and judgment appealed from is affirmed, to the extent that the defendant was condemned to pay two dollars and fifty cents for offereing for sale and selling vegetables within the market limits, and in default of the payment thereof, imprisoned for the stated number of days.

It is further adjudged, ordered and decreed that in all other respects the questions herein, being of facts, are left open to be decided in case No. 13,430, on relator’s application for a writ of certiorari. Appellee to pay costs.

Rehearing refused.