text:
    No. 12,341.
    State of Louisiana vs. David Martin et als.
    The object oí the State in forfeiting appearance bonds is not to enrich itself, but to bring parties who sign such bonds as sureties to a realization of the fact that in doing so, they assume actual responsibilities, which, if not faithfully met, will result in pecuniary loss to themselves; it is to impress upon those parties that suretyship upon appearance bonds is something more than a form.
    It will not suffice to set aside a judgment of forfeiture that the accused appears in court under the coercive power of this court at a time too late to be made effective for the purposes of trial at that term. State vs. Grice, 11 An. 605.

      APPEAL from the Sixteenth Judicial District Court for the Parish of St. Helena. Reid, J.

      Milton J. Cunningham, Attorney General, and Duncan S. Kemp, District Attorney (P. A. Simmons, Jr., of Counsel), for Plaintiff, Appellee.

      J. A. Reid for Defendants, Appellants:
    The object of a recognizance is not to enrich the treasury, but to combine the administration of justice with the convenience of a party accused but not convicted. 6 An. 257; 6 An. 282; 14 An. 446; 10 An. 285.
    Where the recognizance has ripened into a judgment the principal is fairly and truly tried and acquitted, the sureties on enjoining the execution against them will be relieved. 8 An. 489; 10 An. 235.
    Submitted on briefs January 23, 1897.
    Opinion handed down February 15, 1897.
    Rehearing refused March 15, 1897.
   The opinion of the court was delivered by

Nicholls, C. J.

On the 28th of September, 1895, one David Martin, as principal, and Levi Branch and W. G. Bates, as securities, executed a bond in favor of the Governor of the State of Louisiana for the sum of three hundred dollars.

The condition of the bond was that if the said David Martin should well and truly appear at the next jury term of the Sixteenth Judicial District Court at the court house, in the town of Greensburg, and there continue from day to day and from time to time during term time, and not depart thence without leave of the court being first had, then the bond was to be null and void, otherwise to remain in full force and effect.

Martin, the principal on the bond, had been indicted on the 30th of July, 1895, for receiving stolen goods, knowing them to be stolen.

On the 16th of November, 1896, the District Court, under Sec. 1032 of the Revised Statutes, entered up judgment in solido against the principal and sureties for the amount of the bond by reason of breach of its conditions.

On the 21st of November the defendant, David Martin, suggesting to the court that he was then in jail, and that the jury had not been discharged, prayed that the judgment forfeiting the bond be set aside.

On the same day the sureties appeared and also prayed that the judgment be set aside. They averred that they did not know of the absence of the accused on Monday or Tuesday of that week; that he was not absent by their procurement or consent; that they were by no means to blame; that the accused was then in custody and the jury had not been discharged.

After hearing evidence the court overruled the motion to set aside the judgment.

Defendant on his motion was granted an appeal. The sureties did not appeal.

The evidence shows that on Monday, November 6, 1896, the defendant, Martin, was called for arraignment — that he pleaded not guilty and asked for trial by jury. That his case was fixed for trial for Monday, November 16. That the case was called on that day and defendant did not answer. That his securities were then called on to produce his body in open court instanter. That Branch, one of the securities, when called answered to his name. That the other surety made no appearance whatever. That neither prodnced the body of the accused and neither of them made any effort to have him appear for trial either then or at any future day. That Martin was. in Greensburg (the parish seat) on the day the case was fixed for trial, but did not appear at the court house. That an order for his arrest issued returnable on November 20 and that on that day (in the afternoon) the sheriff returned that he had the accused in open court. That the court was then engaged in the trial of a criminal case and that within a few hours afterward the jury was discharged for the term. Defendant asked for no assignment of the cause. Some of the witnesses for the State lived in other parishes and it was practically impossible to have tried it at that late date. The judge so declared and assigned that as one of his reasons for discharging the jury. The next day (the last of the term) the securities moved to set aside the judgment of forfeiture on the grounds stated.

Article 1032 of the Revised Statutes, referring to the judgment so rendered upon a bond, declares: “The judgment so rendered may at any time dnring the same term of the court for all'the parishes of the State except the parish of Orleans * * * be set aside upon the appearance, trial, conviction and punishment of the defendant or party accused. Such judgment shall not be rendered in ease it shall be made to appear to the satisfaction of the court, by the evidence of one or more credible witnesses, that the defendant or party accused is prevented from attending by some physical disability existing at the time.”

The next article (1033) is as follows:

“The appearance and answer of any defendant or party accused, upon call made as provided in the preceding section (See. 1032),-shall not operate as a discharge or release of any surety from his .responsibility, and no such surety shall be discharged or released from his responsibility until the final trial and conviction or acquittal of such defendant or party accused.
“Any surety may be relieved from responsibility by making a formal surrender of the defendant or party accused to the sheriff or his deputy in open court, or within the four walls of the prison of the parish, and not otherwise.”

It is not claimed on the part of appellants that the accused was prevented from appearing by reason of any physical disability. No reason at all is assigned for his non-appearance on the day fixed for trial. The fact relied on for setting aside the judgment is that the accused is now in the parish jail.

The term of court at which the bond was forfeited ended on November 21, 1896. The accused has not been tried, convicted and punished.

He was on November 20 produced in open court in the parish of St. Helena, but the record does not show that he voluntarily appeared or that he was surrendered by his sureties; on the contrary, we infer from the minutes that he was produced by the sheriff in arrest under the order of arrest which had issued from the court. It is not claimed that his confinement in the parish jail was under any action of the sureties.

The State does not pretend that there was any collusion between the accused and his sureties that the accused was to fail to make an appearance on the day of trial. Evidence on that subject is immaterial in this case.

In State vs. Williams, 37 An. 202, the judgment of forfeiture of an appearance bond was set aside on an appeal taken by the sureties on the bond from a judgment of the District Court refusing to do so. The court said: “The sureties brought the accused in open court and offered him for trial. The object of an appearance bond is to secure the trial of offenders rather than to fill the coffers by forced contributions from sureties. That object was attainable through and by the action of the offender at the term when he was called. Where there is no collusion nor suspicion of collusion to defeat the ends of justice, sureties have always been relieved from a judgment of forfeiture. When they have produced their principal and surrendered him into the custody of the law.”

In State vs. Guice, 11 An. 605, where a judgment forfeiting an appearance was unsuccessfully sought to be set aside in the District Court and an appeal was taken against such action by the sureties, the Supreme Court affirmed the judgment. The ground upon which the appellants claimed that the judgment should be set aside was that the accused appeared at the same term of the court at which the bond was forfeited and demanded a trial, which was refused by the court, because the jury had been discharged for the term. The facts in that ease were very similar to those in the present case, and we are of the opinion that the views therein expressed by the court are correct. We are satisfied that the accused designedly evaded a trial. When he did appear in court it was not of his own accord or through the instrumentality of his sureties, but through that of the sheriff, under the coercive process of the court, which, resulted, as the record discloses, in an appearance (if it can be properly so-called), too late to be made effective for the purposes of a trial at that term.

We do not think the object of the State in forfeiting appearance bonds is to enrich itself, but to bring parties who sign such bonds as sureties to a realization of the fact that in doing so, they assume actual responsibilities, which, if not faithfully met, will result in pecuniary loss to themselves. It is to impress upon those parties that suretyship upon appearance bonds is something more than a form. If we were to accede to the proposition that the circumstances shown by the evidence disclose a proper case for setting aside the judgment of forfeiture, there would be no reason why the same condition of affairs should not arise at the next term of court, and the accused party again trifle with the administration of justice. The sureties in this case evidently acted upon the mistaken idea and conclusion that they had no affirmative duty whatever devolving upon them in the premises.

It is true, the accused was in the parish jail when the motion to set aside the judgment was made, but he was there, as we have seen, through no act of the sureties, but after he had defaulted upon his appearance and the judgment of forfeiture had been rendered.

We think fhe judgment appealed from was correct, and it is hereby affirmed.


source: Caselaw Access Project

author: Nicholls, C. J.

license: Public Domain

text:
    No. 12,347.
    Edmond H. Chadwick and another vs. The Gulf States Land and Improvement Company.
    A decree enjoining a person from reasserting title to the property involved is in reality one decreeing the plaintiff to he the owner of the same, though it may not so declare in express terms. Heirs of Delogny vs. Mercer, 43 An. 209.
    APPEAL from the Civil District Court for the Parish of Orleans. Théard, J.

      George L. Bright for Plaintiffs, Appellants.

      E. Howard McCaleb for Defendants, Appellees.
    Argued and submitted February 19, 1897.
    Opinion handed down March 1, 1897.
    Statement of the Case.
    The plaintiffs in this suit are Edmond H. Chadwick and Mrs. Elizabeth Johnson (widow of William S. Gilman) ; the defendants are the Gulf States Land and Improvement Company, and Domingo Negrotto, Jr.
    The petition alleged on behalf of Mrs. Gilman that she was, on and after the 21st of March, 1879, and up to the 3d of November, 1891, the owner of certain described property; that she sold said property on the 3d of November, 1891, to Edmond H. Chadwick, and transferred to him all her right, title and interest in and to the rents and revenues of five houses in said property, from July 27, 1889, to November 3, 1891, and she represented in the act of sale that she was seized of said premises in fee simple and had a right to convey the same, and promised and obligated herself to deliver possession thereof to her vendee; that since the 21st of October, 1891, and until the present time, Domingo Negrotto, Jr., and the Gulf States Land and Improvement Company had illegally and wrongfully taksn possession of said property and had deprived the plaintiffs of the possession, use and benefit of the same and continued to keep said possession and claimed to be the owners of the same; that they had collected the rents of said property, which had been and were still of the value of twenty dollars per month; the rents they so collected from 27th July, 1889, to November 3, 1891 (between the date they took possession and the date when Mrs. Elizabeth Johnson transferred the property to Chadwick), being five hundred and sixty-four dollars and sixty-two cents, and those from November 3, 1891, to September 6, 1896, being one thousand one hundred and sixty dollars. The petition alleged, in behalf of Chadwick, that by the act of sale from Mrs. Elizabeth Johnson (Mrs. Gilman) to him she obligated herself to deliver said property to him and to put him in possession thereof; that he acquired the property as stated in the petition and acquired also the right, title and interest in and to the rents and revenues of the five houses on the property from July 27, 1889, to November 3, 1891, the day of his purchase, which rents then amounted to five hundred and sixty-four dollars and sixty-two cents; that Domingo Negrotto, Jr., and the Gulf State Land and Improvement Company were further indebted to him for the fruits, rents and revenues of said property from the day he purchased it (3d November, .1891) until they should deliver possession to him at the rate of twenty dollars per month, the sum due up to 3d September, 1896, amounting to one thousand one hundred and sixty dollars; that he had been damaged by the wilful, wrongful, illegal deprivation of his property and the violation of his legal rights in the sum of one thousand dollars.
    The allegations made by Mrs. Elizabeth Johnson were adopted and reiterated. In view of the premises, plaintiffs prayed that there be judgment, recognizing that Mrs. Elizabeth Johnson (Mrs. Gilman) was the owner of the property on the 21st of March, 1879, when she purchased it from Thomas Pickles, up to November 3, 1891, when she sold it to Chadwick; that Chadwick isvnow the owner of the same; that judgment be rendered in solido, decreeing that the defendants have no right, title or interest in said property, and ordering them to deliver possession thereof to petitioners and pay them the sum of five hundred ond sixty-four dollars and sixty cents, with legal interest thereon from November 3, 1891, and the further sum of one thousand one hundred and sixty dollars, with legal interest from September 3, 1896 (date of judicial demand), and the further sum of twenty dollars per month, until they deliver possession of said property, and the further sum of one thousand dollars with legal interest from judicial demand.
    The defendants excepted to plaintiff’s demand.
    1. There was a misjoinder of parties, plaintiff and defendant, in the suit.
    2. Plaintiffs’ petition disclosed no cause of action.
    3. Plaintiffs were estopped from prosecuting the suit for the reason that in the case entitled “ Gulf States Land and Improvement Company vs. E. H. Chadwick, No. 34,819 of the docket of the Civil District Court, Division ‘ C,’ ” subsequently appealed and affirmed by the Court of Appeals for the parish of Orleans, all the matters and things herein involved were finally decided and the judgment rendered in said cause constitutes the authority of the thing adjudged and operates as a perpetual bar to plaintiffs’ demand.
    4. That in the case of E. H. Chadwick vs. Gulf States Land and Improvement Company, No. 12,103 of the United States Circuit Court for the Eastern District of Louisiana, and No. 405 of the United States Circuit Court of Appeals for the Fifth Circuit and Eastern District of Louisiana, all the matters and things herein involved were finally adjudged against said plaintiff, and defendants pleaded said judgment so rendered in said cause as res judicata to plaintiff’s demand; that the court was bound to give effect to said judgment so rendered by the United States Circuit Court of Appeals and recognize the validity of the same under the Constitution and laws of the United States. The District Court sustained the plea of “ res judicata” and rejected the demand of the plaintiffs. They appealed.
   The opinion of the court was delivered by

Nicholls, C. J.

We direct our attention, fii’st to the judgments rendered by the State courts. The action brought there by the plaintiffs, the Gulf States Land and Improvement Company, was one known in law as an action of jactitation or slander of title.

Livingston vs. Heerman, 9 Martin (O. S.), 713, was an action of that kind. The jury rendered a verdict in favor of the plaintiff for the land referred to in the plaintiff’s petition, and judgment having been rendered accordingly, defendant appealed. On appeal, counsel on his behalf said: “ Defendant, though he had asserted his right to the batture, does not in his answer claim anything more than to be dismissed. He denied the right of the plaintiff to the twenty thousand dollars damages for the alleged slander of title, but does not pray for anything in his favor. It is then most incorrect and unfounded on the part of the plaintiff’s counsel to say that if the jury’s verdict could have warranted it, judgment might have been awarded in favor of the defendant, to recover that which he does not pray may be granted him * * * for these reasons the court, disregarding all which occurred at the trial, ought to decree that the defendant (Heerman), as is prescribed by the Partidas, shall bring his suit within a specified time for the purpose of ascertaining by the judgment of a competent tribunal his rights to the property of which he has asserted himself to be the owner.” Mr. Justice Porter, as the organ of the Supreme Court, commenting on the position taken, said: “ It is contended by the law in virtue of which this action is brought, the only judgment which the court can pronounce is to decree that Heerman shall bring suit. Little earn be gathered from the books as to the particular practice adopted in Spain, in cases of this kind. The law, par. 3, title 2, 146, declares that no person can be compelled to bring suit except in particular cases, wherein the judge may by law, oblige him to do it; as when a man publicly says that another is his slave, etc. In these and like cases the person injured' may petition the judge to oblige the defamer to bring suit and prove what he has said or to retract or to make such reparation as the judge shall deem just; if he refuses to bring the suit the party aggrieved shall be forever absolved from the charge made against him.

“The law applies according to the Spanish authority to defamation respecting property, as well as person, and that whether it be movable or immovable. Gregorio Lopez on the above cited law No. 2; Elizando Practico Universal, Vol. 2, p. 136. Now when a suit is commenced like the present is the defendant should do one of two things, either deny that he has said so, which would amount to a waiver of title, or admit the accusation, and aver his readiness to bring the suit. In the first alternative this court would proceed to try the fact whether he had defamed the title or not, and give damages accordingly. In the second they would order suit to be commenced. This it appears to me is the regular course. The object of this law was to protect possession; to give it the same advantages when disturbed by slander as by actual intrusion. To force the defamer to bring suit and throw on him the burden of proving what he asserted. If this course had been pursued here, Heerman would have been directed to bring suit (in the language of the law) to prove what he said; and the plaintiff relying on possession would have been maintained in it until a better right was shown. Instead mf doing this he has chosen to maintain the truth of what he has :averred by setting forth his title in the answer and averring it to be :a better one than the plaintiff’s. Having done so I think the court ban examine it as well in that answer as if set forth in a petition; it is only, in fact, anticipating the order which the court must have given, and coming forward at once with that title which the court would have directed him to produce in another suit. His adopting this course, at his own choice, can not change the mode in which the proof must be adduced; he must make out his title alleged and can not take from the plaintiff the advantage which he derives from his possession by varying the form in which he has thought proper to make good his claim to the premises. If it should appear that he has a title' for the premises, I have no doubt that we can decree that he has not slandered the plaintiff’s title; that he has a better one; and that such decision would form res judicata as to their titles in virtue of which the defendant can, at any time, take possession by an action to that effect, for it is not necessary to enable this court to pronounce on title that there must be a prayer to be put in possession. If the plaintiff succeeds we can declare that the defendant has failed to produce a title; that the plaintiff be preserved in the quiet enjoyment of his property and the defendant be enjoined from reasserting this title to it. This case differs little from the case of Gravier vs. The Corporation of New Orleans, except that trespass as well as slander was alleged there. But if this point was doubtful, I should have a great reluctance to send the parties back on a mere matter of form to travel over the same ground again. .Interest reipublicæ ut sit finis litium. And never did the maxim have a more proper application than in the cases which have grown out of this subject.” The court affirmed the judgment appealed from.

Mr. Justice Matthews, in concurring in the opinion, said: “The law on which'this action is founded authorizes a judgment requiring -and compelling a person who speaks against the title of a bona fide ¿possessor, by asserting a right in himself, either to desist from such assertions or to bring suit in support of his alleged claim for the purpose of opposing his title to that of the possessor, in order that the respective claims may be finally settled according to law and justice. If the pleadings in the present suit do place the defendant in a situation similar to that which he would hold in an action which he might be compelled to institute, I can see no good reason for delaying a final judgment in the case, and that such is his situation, I agree in opinion with Judge Porter.” This case, as well as the action referred to, was brought to the attention of the Supreme Court in Proctor vs. Richardson, 11 La. 188, and though the absolute judgment of the District Court in favor of the plaintiff was reversed, for the reason that the defendant filed no answer, and did not set forth the title of his children or the grounds of their alleged pretensions, and because the defendant, the father, was not the proper defendant in the case, as he had interests conflicting with those of his children, it is clear that the court approved the opinion in Livingston vs. Heerman, that a defendant may well set forth his title in his answer and the court proceed to adjudiate upon the relative titles without the necessity of a new suit. The court remarked that actions of the kind were of rare occurrence in Louisiana, but that statement was made in 1837. The action, with its rules, is one familiar to the bar and bench. (See Dalton vs. Wickliffe, 35 An. 355.)

We think that an esamination of the pleadings of the plaintiff and defendants in the original suit in the Civil District Court fully sustain the District Court in declaring, in refusing Chadwick’s motion for a new trial, that the idea which he entertained that the judgment as rendered remitted the parties to further litigation was unfounded, and that the issues referred to in the motion had been definitely disposed of. The defendant was well aware, as his motion showed, that he had advanced his own title in his pleadings, for he complained of the judgment that it had- not “ quieted him in his title.” Defendant in his pleadings set out fully his own title and attacks that set up by the plaintiff and joined issue with the latter as to his right to be accorded the judgment he prayed for. We are of the opinion, as was the District Court which rendered the decree, that the parties went to trial in that case upon the strength and merits of their respective titles, and that the judgment rendered definitively closed all future discussion as to the ownership of the property. It maintained the Gulf States Land and Improvement Company in their possession and enjoined Chadwick from disturbing said possession by slander of title, actual intrusion or otherwise; in other words, it restrained him from thereafter ever reasserting the title he had set up in his pleadings. A decree enjoining a person from reasserting title to the property involved is, in reality, one decreeing the plaintiff to be the owner of the same, though it may nob so declare in express terms (Heirs of Delogny vs. Mercer, 43 An. 209). If our interpretation of the judgment of the District Court, pleaded as res judicata, be correct, the effect of the plea extended to Chadwick’s vendor as well as to himself (Gath vs. Broussard & Martin, 49 An. ).

The conclusions which we have reached as to effect of the judgments in the State court render unnecessary any expression of opinion as to those of the courts of the United States.

For the reasons herein assigned, it is ordered, adjudged and decreed that the judgment appealed from be and the same is hereby affirmed.

       January 25,1892, the Gulf States Land and Improvement Company bi-ought suit against Edmond Chadwick in the Civil District Court for the parish of Orleans. Petitioners alleged that they were the owners of the property in the city of New Orleans claimed by plaintiff. They prayed that Chadwick be cited to appear and answer the petition; that after due proceedings there be judgment in petitioners’favor protecting them in their possession of the property, and forever enjoining the defendant from disturbing said possession or enjoyment by slander, actual, intrusive or otherwise; that their title be recognized as valid and that Chadwick be ordered to secure the cancellation of the inscription of his pretended title from Mrs. Elizabeth Gilman, from the records of the Conveyance Office.
      The defendant, for answer, first pleaded the general issue. Further answering, he averred that he purchased property from the owner for seven hundred and fifty dollars, in entire good faith; that prior to said purchase, and prior to the execution of any pretended deed to the plaintiffs, he, defendant, went to Negrotto for the purpose of effecting a compromise; that Negrotto seemed favorably disposed and informed him that a compromise was generally effected on the basis of one-third of the assessment of the property; that then the defendant in good faith purchased said property from the owner thereof and returned again to the said Negrotto, fully intending to arrange and compromise the matter with him in an amicable manner; that on his second visit to Negrotto he was received in an unfriendly and uncompromising manner, and that even after the institution of the then pending suit he went again to Negrotto, but was unable to compromise. He averred that his said purchase «nd the inscription thereof constituted no slander of title to any property owned by the plaintiffs, and he specially denied that the plaintiffs had been damaged in any sum whatever.
      The District Court, on the 27th of June, 1892, rendered judgment in favor of the plaintiffs and against the defendant, ordering, adjudging and decreeing “that there be judgment in favor of the plaintiffs, the Gulf States Land and Improvement Company, and against the defendant Edmond H. Chadwick,maintaining said plaintiffs in their possession of the property, described in their petition; enjoining said Edmond H. Chadwick from disturbing said possession by slander of title, actual, intrusive or otherwise, and directing that said Edmond I-I. Chadwick cause to be canceled from the records of the conveyance office the inscription and registry of his pretended title from Mrs. Elizabeth Gilman of the property in question, otherwise that the same be canceled at his expense.” It was further ordered, adjudged and decreed that said Edmond H. Chadwick be condemned to pay to plaintiffs, the Gulf States Land and Improvement Company, the sum of one hundred dollars, as damages and costs.
      Defendant moved tor a new trial on the following grounds:
      “ l. The judgment was contrary to the law and the evidence.
      “2. The evidence showed that plaintiffs had no title, and that defendant had a good title.
      “ 3. No damages were proved and no malice shown, and the judgment for one hundred dollars damages was erroneous.
      “ 4. The judgment ought to have dismissed plaintiffs’ suit and quieted defendant in his title, without remitting the parties to further litigation.”
      The court refused the-rehearing, assigning as its reason that “ it considered that the issues presented in the rule for a new trial had been previously disposed of and the judgment rendered should remain undisturbed.”
      Defendant appealed to the Circuit Court of Appeals. That court on appeal amended the judgment by allowing plaintiffs the sum of two hundred and fifty dollars as damages, but otherwise affirmed the judgment.
      Subsequently, Edmond H. Chadwick brought in the Circuit Court of the United States, at New Orleans, a petitory action for this property against the Gulf States Land and Improvement Company.
      On the 31st of May, 1891, judgment was rendered in the case in the following terms:
      “By reason of the verdict of the jury herein and in accordance therewith, it is ordered, adjudged and decreed that there be judgment in favor of the defendants, Gulf States Land andlmprovement Company, and against the plaintiff,E. H. Chadwick, dismissing this suit with costs.”
      Plaintiffs having appealed from this judgment to the Circuit Court of Appeals, the judgment was by that court affirmed.


author: McEnery, J.

text:
    No. 12,389.
    State of Louisiana ex rel. Louis P. Paquet vs. Gabriel Fernandez, Judge of the Second City Court op New Orleans.
    Attorneys at law are subject to the license tax lor practising their professions imposea by municipal authorities and by the State. The license authorizing them in the first instance to pursue their profession, is an evidence of character and capacity, and carries with it no exemption from taxation by license tax. The profession has no special privilege from that of other occupations.
    Act No. 119 of 1882 authorizes municipal corporations to avail themselves of the remedies provided by the State for the collection of State taxes. Act 150 of 1892 authorizes any court having jurisdiction of the amount to issue a rule against the person owing a license tax, accompanied by an injunctionrestraining the carrying on the occupation until the license tax is paid, and to punish for contempt a violation of the restraining order.
    The Second City Court, therefore, had jurisdiction of the amount and was empowered to issue the rule, give judgment for the amount, issue the restraining order, and to punish as in contempt its violation.
    QN application for Writs of Gertiorari and Prohibition.

      Louis P. Paquet, in propria persona, and Thomas F. Maher (R. G. Cobb of Counsel), for Relator.

      Gabriel Fernandez, Judge, in propria persona, and W. B. Sommerville, Assistant City Attorney, for Respondent.
    Submitted on briefs January 18, 1897.
    Opinion handed down February 1, 1897.
    Rehearing refused March 15, 1897.
   The opinion of the court was delivered by

McEnery, J.

The relator is an attorney at law. The city of New Orleans proceeded against him by rule, to enforce the payment of a license tax for practising his profession within the corporation, under Sec. 18 of Act No. 150 of 1890, and the ordinance of the city of New Orleans in pursuance thereof.

The rule was accompanied by a prayer for an injunction against the relator, to compel him to cease pursuing his profession until he paid the license tax. There was no appearance made by defendant, and the rule was made absolute, and a judgment rendered against him for the amount of the license tax, and a restraining order was issued, forbidding defendant from pursuing the occupation of lawyer until he paid the tax. The restraining order was violated. A rule was issued against him for contempt of court, and he was adjudged guilty. To this rule the defendant filed an exception, alleging that he is an officer of the court, and can not, by the mode and manner of procedure in this case, be deprived of the privilege of practising his profession. That the proceedings against him are unconstitutional, null and void; that being an officer of the court his occupation is not subject to taxation; that the functions of the court are purely judicial, and it can not constitute itself a license collector; that any law which authorizes plaintiff’s imprisonment, under said proceedings, is unconstitutional; that the court is without authority to punish for contempt under the proceedings taken against him, as there is no law conferring jurisdiction upon the city courts to punish for contempt.

The refutation of defendant’s exception will require no extended argument. Lawyers have no more privileges than other citizens in the pursuit of their profession. The license to practise, granted to them under the law to pursue the profession of attorney, is only an evidence of character, fitness and ability. The privilege of pursuing the profession carries with it no exemption from the duties of citizenship, the sharing with others the expense of government, both State and municipal. If there is one thing more than any other which should impress itself upon the profession, it is the duty to aid and assist in the execution of the laws, and to bear the just proportion of expenses to make the government a vigorous and healthy instrumentality in the preservation of society and the protection of all citizeus, in all their rights and in the pursuit of their occupations.

Act 119 of 1882 confers upon municipal authorities the right to pursue all remedies provided for the collection of State taxes, then in existence or thereafter to be enacted.

Act 150 of 1890, Sec. 18, authorizes the pursuit of a delinquent license 'payer by rule, and the accompanying of the same by injunction to restrain the party who owes the license from pursuing his occupation until the license is paid. And it authorizes any court of competent jurisdiction to entertain the rule, and to punish for contempt the violation of the restraining order. The city court had jurisdiction of the amount, and was vested with full power to enter judgment against the defendant for the amount, and to restrain the pursuing of his occupation until he pays the license tax. Having issued a restraining order within its jurisdiction, the court had the right to treat its violation as contempt of its authority and to punish the same.

The provisional orders herein issued are set aside and the relief prayed for denied.


author: Miller, J. Nicholls, C. J.

text:
    No. 12,412.
    State of Louisiana vs. Nicholas Kraemer.
    On Rums.
    The court again affirms that on the question of the exceptions reserved by the counsel of the accused, the bills brought up and the statement of the trial judge must control us on the appeal. State vs. Romero, 5 An. 24=; State vs. Lacombet 12 An. 195.
    ON the Mebits.
    If a person being in possession of his mental faculties voluntarily gets into a fit of drunkenness, and during such drunkenness commits a homicide under a diseased mental condition occasioned by the same, he can not set up said diseased mental condition as an excuse for his act.
    In order that a man should stand excused for a homicide committed during drunkenness, and while in a diseased mental condition, the diseased mental condition which excuses the homicide should be able to be successfully urged as an excuse for the act of getting drunk.

      It is as possible for an insane man to get drunk asa sane man. The addition of drunkenness to insanity does not withdraw from such 'person the protection due to insanity, but when such a person commits a homicide during drunkenness reliance must be placed upon the original insanity itself, not the subsequent drunkenness.
    APPEAL from the Criminal District Oourb for the Parish of Orleans. Baker, J.

      M. J. Cunningham, Attorney General, and B. Ii. Marr, District Attorney, for Plaintiff, Appellee.

      Paul W. Mount and James Wilkinson for Defendant, Appellant.
    Submitted on rule for production of instructions February 15,1897.
    Opinion handed down March 1, 1897.
    On Rule.
    Submitted on briefs March 6, 1897.
    Opinion handed down March 15, 1897.
   The opinion of the court was delivered by

Miller, J.

The relator seeks by this application to compel the clerk of the Criminal District Court to transmit the request made of the lower court on behalf of the accused, to give certain instructions to the jury that tried him. The relator’s petition alleges that these instructions were asked, refused and exceptions reserved to the refusal.

The return of the clerk, in which the judge joins, is that but one bill was reserved, which we find in the record.

The judge states besides that although no bill was reserved other than that signed, he offered to counsel to sign a bill reserving all the exceptions the counsel claims to have reserved, bat he did not avail of this offer. We find in the record but one bill and the statement of the judge, that bill exhibits the only point reserved.

We have often had occasion to observe that we must be guided on questions of the character raised here, by the bills we find in the record and the statement of the judge. We must apply that rule in this ease.

It is therefore ordered, adjudged and decreed that the relator’s application be denied and our previous order on his petition be set aside.

On the Merits.

Nicholls, C. J.

Defendant having been indicted for the murder of Mary Cooney and the jury which tried him having returned a verdict of guilty without capital punishment, he was sentenced by the court to hard labor for life in the State penitentiary. Prom that sentence he has appealed.

He relies upon the following bill of exception:

Be it remembered that on the trial of this cause a number of witnesses having testified before the jury that the accused Nicholas Kraemer had from his boyhood to the present time been considered by his associates as light minded and had been known by the soubriquet of Crazy Nick;’ that the drinking of liquor seemed to put him in a frenzy; that he had previous to the time of the homicide been a steady drinker and on the morning of the homicide he had come home after a night’s absence at 8:80 A. m., terribly intoxicated; that he had called for his Sunday clothes and taking them into the yard chopped them up with a hatchet into little pieces muttering, and when deceased tried to get him to desist, threatened her life with a hatchet; that it was further shown that three hours later he was seen in the back yard of a grocery near by shrieking; that at about the time of the homicide, 12:30 P. M.,he returned to the house walking straight and went in to sit down to dinner with the deceased alone, from which place he came out and was seen bareheaded walking rapidly and straight away from place where deceased had been left with her throat cut and that when arrested was walking erectly with a staring look in his eyes; that he had taken a ten-year-old boy’s hat and put it on his head and when questioned, refused to answer, and it having been urged on his behalf by his counsel on the trial that if the killing of the deceased had been done by accused, it was done:
“1. Because he was insane and was not responsible for his acts.
“2. Because such insanity, though possibly slight, was enhanced and made dangerous and homicidal by the use of liquor, which acted as a poison to the mental disease of said accused, and that there was no-motive for said act.
“3. Because all the symptoms described in said testimony as to accused showed that such insanity or low order of intelligence was aggravated into homicidal mania by delirium, tremens, from which he was suffering at the time it is claimed he killed Mrs. Cooney, the deceased.
“And on the part of the defence, counsel having requested the court to charge the jury as per the written request set forward and numbered and made a part of this bill of exceptions, and the court having failed to charge Nos. — in said charge requested, and the said court moreover having failed to charge as to request Nos. —, and the said court having moreover charged that any temporary insanity the result of drunkenness will not excuse crime, and that only permanent insanity the result of drunkenness will excuse crime, or in words of similar import or effect, and the said counsel for cacused having thereupon, before the jury retired, taken the within bill of exceptions:
“ 1. To the failure of the court to charge as requested.
“2. To the refusal of the court to charge as requested.
“3. To the charge of the court to the jury as herein stated.
“ Counsel for the accused now having submitted this bill of exceptions to the District Attorney, now tenders the same to this Honorable Court for its approval and signature.
“ By the Court. The jury were charged fully as to the law of insanity, whether brought about by intoxication or other causes. The jury were instructed that temporary insanity produced by undue indulgence in spirituous liquors furnished no excuse for homicide or other crime, but that fixed insanity did. As to special request No. 6, they were further instructed that delirium tremens, or fixed insanity, formed an excuse for the act provided the party was not intoxicated at the time. My idea of the law is, that if the mental condition of the accused is the remote consequence of antecedent drunkenness, then he is not responsible, but that if his act takes place in a fit of intoxication, and is the immediate result of it, then he is. In my charge I endeavored to give the jury all the law applicable to the case.”

The sixth special charge referred to in the bill of exception reads-as follows:

“ Delirium tremens, although the result or consequence of continual •drunkenness, is insanity or a diseased state of mind, and effects responsibility for crime in the same way as insanity produced by any ■other cause. Delirium tremens like insanity, if it deprives a man of capacity of knowing right from wrong, saves him from any criminal responsibility for his acts.”

The charge given by the court is not in the record, so that we can not test the propriety of a particular portion of it by reference to it. The only way in which we come to a knowledge of any part of it is through the statement made by the court itself at the foot of the bill of exceptions.

The recitals of the bill as to what the testimony in the case showed •afford us no aid in passing upon the question before us, as the testimony was directed to the establishment of issues of fact, the conclusions as to which were to be disposed of and were disposed of by the jury. What those conclusions were, upon the different issues raised, we do not know. We know only the result reached in their •verdict. Whether the accused, as a fact, was at the time of the homicide jnsane or not, we do not know, nor do we know, if insane, whether he was at that time suffering from delirium tremens. The instructions asked seemed to have assumed that the nature, causes and consequences of delirium tremens were fixed facts, known to and to be announced by the court to the jury, and to have further assumed as a fact that accused at the time of the homicide was under its influence and effects. Those matters were matters under expert and other evidence in the case, to be determined by the jury.

The doctrine with reference to drunkenness, in relation to crime, is thus stated by Bishop:

“ If a man intending one wrong accomplishes another, he is punishable for what is done, though not intended except where a specific intent in distinction from mere general malevolence or carelessness is an essential element in the particular crime. The law deems it wrong for a man to cloud his mind or excite it to evil action by the use of intoxicating drinks; and one who does this, then, moved by the liquor while too drunk to know what he is about, performs' what is ordinarily criminal, subjects himself to punishment; for the wrongful intent to drink coalesces with the wrongful act done while drunk and makes the act complete ” (Bishop’s Crim. Law, 6th Edition, Chapter XXVII, par. 397).

The common law has always regarded drunkenness as being in a certain sense criminal. Since, therefore, a man who intends one wrong and does another of the indictable sort is punishable even when the wrong intended would not be so if actually done, voluntary-drunkenness supplies in ordinary cases the criminal intent. Thus when a man voluntarily becomes drunk that is the wrongful intent, and if, while too far gone to have any further intent, he does a wrongful act, the intent to drink coalesces with the act done while drunk, and for this combination of act and intent he is liable criminally. It is therefore a legal doctrine, applicable in ordinary cases, that voluntary drunkenness furnishes no excuse for crime committed under its influence. It is so even when the intoxication is so extreme as to make the person unconscious of what he is doing, or to create-a temporary insanity (Bishop, pars. 399 and 400). The author referring to limitations of the doctrine says:

“ The law holds men responsible for the immediate consequences of their acts, but not ordinarily so for those more remote. If, therefore, one drinks so deeply or is so affected by the liquor that for the occasion he is oblivious or insane, he is still punishable for what of evil he does under the influence of the voluntary drunkenness. But if the habit of drinking has created a fixed frenzy or insanity, whether permanent or intermittent, as for instance delirum tremens, it is the same as if produced by any other cause excusing the act. For whenever a man loses his understanding as a settled condition he is entitled to legal protection equally, whether the loss be occasioned by his own misconduct or by the dispensation of Providence (Bishop, par. 406).

Referring to cases requiring specific intent the author says:

It is plain that when the law requires as it does in some offences a specific intent in distinction from mere general malevolence t o render a person guilty, the intent to drink and drunkenness following can not supply this specific intent. Thus drunkenness as we-have seen does not incapacitate one to commit either murder or manslaughter at the common law; because to constitute either the specific intent to take life need not exist, but general malevolence is sufficient. But where murder is divided by statute into two degrees and to constitute it in the first degree, there must be the specific intent to take life — this specific intent does not, in fact, exist, and the murder is not in this degree, where one not meaning to commit a homicide becomes so drunk as to become incapable of intending to do it; and then in this condition kills a man. In such a case the courts hold that the offence of murder is only in the second degree. This doctrine does not render it impossible for one to commit murder in the first degree while drunk. If he resolves to kill another, then drinks to intoxication and then kilis him, the murder is of the first degree, because in this case he did specifically intend to take life. And a man though drunk, may not be so drunk as to exclude the particular intent. Drunkenness short of the extreme point, therefore, will not reduce the murder to the second degree.” Bishop, pars. 410, 401.
“ There are cases not requiring a specific intent where the precise state of the prisoner’s mind is under special circumstances important. Not conflicting with what has been previously laid down, it is pretty well settled that there are circumstances on which evidence of intoxication may be properly received to reduce a homicide to manslaughter. Some judges seem not willingly to yield this point, but the better opinion is that if, for instance, the question is whether the killing arose from a provocation which was given at the time, or from previous malice, evidence of the prisoner’s having been too drunk to carry malice in his heart may be admitted. And the consideration is not to be withheld from the jury that his drunkenness may render more weighty the presumption of his having yielded to the provocation rather than to the previous malice, because of the fact that the passions of a drunken man are more easily aroused than those of a sober one. This doctrine differs from the untenable one that drunkenness excuses or palliates passion or malice. So intoxication is relevant to the question whether expressions used by a prisoner sprang from a deliberate evil purpose, or were the mere idle words of a drunken man. This evidence, moreover, assists in determining whether a defendant acted under the belief that his property or person was about to be attacked.”

In Haile vs. The State, 11 Humph. 154, it was said that when the question was what was the actual mental state of the perpetrator at the time the act was done, whether it was one of deliberation and premeditation, then it was competent to show any degree of intoxication that might exist, in order that the jury might judge, in view of such intoxication, in connection with all the other facts and circumstances, whether the act was premeditatedly and deliberately done.

The court, however, said that when the question was whether drunkenness could be taken into consideration in determining whether a party be guilty of murder in the second degree, the answer must be that it can not. It was further said that the law implied malice from the manner in which the killing was done or the weapon with which the blow was stricken. In such cases it is murder, though the perpetrator was drunk. And no degree of drunkenness will excuse in such case, unless by means of drunkenness an habitual or fixed madness is caused.

“ The law in such cases does not seek to ascertain the actual state of the perpetrator’s mind, for the fact from which malice is implied having been proved, the law presumes its existence and proof in opposition to this presumption 'is irrelevant and inadmissible. Hence, a party can not show that he was so drunk as not to be capable of entertaining a malicious feeling. The conclusion of law is against him.”

In a note to Bishop, par. 400, Lord Coke is quoted as saying that although he who is drunk is for the time non compos mentis, yet this drunkenness did not extenuate his act or offence, nor turn to his avail, but it is a great offence in itself, and therefore aggravates his offence. The author adds that it is not, however, strictly true that drunkenness aggravates a crime; it simply furnishes no excuse (quoting McIntyre vs. People, 38 Ill. 514).

Drunkenness in its relation to crimes has been considered a number of times by this court. Among the cases bearing upon the subject, we note State vs. Mullen, 14 An. 570; State vs. Coleman, 27 An. 692; State vs. Watson, 31 An. 379; State vs. Willis, 43 An. 407; State vs. Ashley, 45 An. 1036; State vs. Hill, 46 An. 27.

We have given careful consideration to the argument in behalf of defendant by his counsel and have reached the conclusion that tested by the principles laid down in the commentators, the decisions of courts other than those of Louisiana and by our jurisprudence defendant has shown no proper case for relief.

We think that the jury was substantially instructed that when a prisoner urges that he should be held excused ” from criminality for a homicide which he had committed (we use that term in contradistinction to a plea for reduction of the grade of criminality charged) by reason of his having been laboring under “ delirium tremens ” at the time of the commission of the act and that he was therefore unable to know, realize, or appreciate, what he was doing, the delirium tremens must be shown to have antedated the fit of drunkenness, during the existence of which the act was committed.

In other words, that if a person being in possession of his mental faculties, voluntarily gets into a fit of drunkenness, and during such drunkenness commits a homicide under a diseased mental condition occasioned by the same, he can not set up such diseased mental condition as an excuse for his act.; that in order that a man should stand excused for a homicide committed during drunkenness and while in a diseased mental condition, the diseased mental condition which excuses the homicide should be able to be successfully urged as an excuse for the act of getting drunk.

It is a well-known fact that men who, at the time of voluntarily getting drunk are in full possession of their mental faculties, and who are in the same condition when the fit of intoxication passes away, frequently commit acts daring the drunkenness of which they have absolutely no recollection on regaining a condition of sobriety— acts committed under a substantial condition of temporary insanity* All writers agree that a homicide committed under such conditions does not stand excused. The effect of drunkenness upon the mind and upon men’s actions when under the full influence of liquor, are facts known to every one, and it is as much the duty of men to abstain from placing themselves in a condition from which no such danger to others is to be apprehended as it is for men to abstain from firing into a crowd or doing any other act likely to be attended with dangerous or fatal consequences. It would open the door wide to the commission of crime were we to justify the commission of a homicide committed under a condition of mind designated as delirium tremens, when it was, in all probability, nothing more nor less than the condition of mind usually resulting from a condition of thorough drunkenness.

It would be utterly impossible to distinguish between the two conditions of mind, if, in reality, there be a difference between the two.

It is, of course, as possible for an insane man to get drunk as a sane one. The addition of drunkenness to insanity does not withdraw from such person the protection due to insanity, but when such a person commits a homicide during drunkenness reliance must be placed upon the original insanity itself, not upon the subsequent drunkenness. We are of opinion the judgment should be affirmed. We have no different degrees of murder in this State, but parties accused get all the benefit which would arise from grading the crime, in the flexibility given to the punishment which is to be meted out in any given case, by allowing the jury, under a charge of murder,, to bring in a verdict of guilty without capital punishment. The jury are enabled to give to the accused the benefit of any extenuating or mitigating circumstances which would save them from suffering the-extreme penalty of the law. We gather from the record that the deceased in this case came to her death by having her throat cut by the defendant. The jury evidently gave some effect to the condition of drunkenness which, we infer, must have been established on the trial.

The judgment is affirmed.


text:
    No. 12,382.
    Lucien Adams vs. Succession of Fanny S. Mills.
    Parol evidence shall not be received to prove any acknowledgment or promise to pay any debt or liability, in order to take snch debt or liability out of prescription or to reverse the same after prescription has run or been completed. Art. 2278, C. C.
    The prescription of three years, formerly applicable to all open accounts, could not, under a law suchas now exists (in respect to the kind of evidence needed to establish an interruption or suspension of prescription), have been avoided by showing a verbal acknowledgment of the account by the deceased debtor and then converting the open account into an account stated. Thepres.ent case fully comes under the decision in Succession of Gaines, 45 An. 1424.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Lazarus, Moore & Luce for Plaintiff, Appellant.

      Chrétien & Suthon for Defendant, Appellee.

      Rogers & Dodds and .Chas. F. Claiborne for Intervenors, Appellees.
    Argued and submitted March 30, 1897.
    Opinion handed down April 12, 1897.
   The opinion of the court was delivered by

Nicholls, C. J.

Plaintiff seeks a judgment of twelve thousand dollars, with interest, against the succession of Fanny S. Mills.

The demand is based upon allegations that for a period of eight or ten years prior to March, 1893, petitioner had been serving the late Mrs. Fannie Seymour Mills, in the capacity of business, professional and confidential adviser; that during the said period, from time to time, and from day to day, he performed divers and sundry services for her, with references to her business and household affairs, the trouble between herself and her late husband, and in various other similar ways, the said services having been performed continuously during that time; that she had no relatives or connections; that her acquaintance was very limited, and that she had, during that time, no person in whom she had confidence and to whom she could look for advice and assistance in the matters aforesaid, except petitioner, from whom she daily received aid and assistance; that she was addicted to drinking, and was of an exceedingly quarrelsome, violent and irritable disposition; that that fact made the services more onerous and valuable; that her husband was also addicted to drinking heavily, and that during said period he was often called upon to give attention, at her request, to her and her husband; that the services rendered were too numerous to specify in detail; that during the month of March, 1893, or thereafter, compensation for the services which petitioner had rendered was fixed and agreed upon between petitioner and Mrs. Mills, at the sum of ten thousand dollars, and she, at that time, and on numerous subsequent occasions, promised to pay petitioner said sum, but she failed to do so.

That during the latter part of 1893 and the years 1894 and 1895 petitioner continued to perform services as the business and personal adviser of Mrs. Mills as set forth, and considering the nature of the services and the fact that she had become an invalid and blind, they were fully worth the sum of one thousand dollars per annum, making an additional sum of two thousand dollars due him, besides the ten thousand dollars fixed between Mrs. Mills and himself.

That she having promised to pay the amount due petitioner, he refrained from bringing suit to enforce his demand, relying upon her promise as well as considering her condition. That by reason of the agreement between her and himself he was entitled to the sum of ten thousand dollars, and to two thousand dollars additional for the services rendered after the date of said agreement up to the time of her death, they being well worth that amount.

The public administrator, who was administering the succession of Mrs. Mills, was made defendant. As such he answered, pleading the general issue and the prescription of three years. Two parties; claiming to be a brother and sister of the deceased, joined the defendant in resisting the demand. The District Court rendered judgment in favor of the plaintiff for one hundred dollars, and he appealed.

On the trial parol evidence was permitted by the court over defendant’s objections, to be introduced to support plaintiff’s allegations as to the promises made by Mrs. Mills to plaintiff. It was allowed under a reservation by the court that it would ultimately give it only such effect as it was legally entitled to. The objection urged was that the testimony had for its object to prove an acknowledgment of a debt by a party deceased in order to take the same out of prescription, a kind of evidence inadmissible for that purpose under the provisions of Art. 2278 of the Civil Code.

In rendering its judgment the court held that the objection had been well taken, and that all parol evidence necessary and tending to interrupt or suspend prescription should be disregarded.

Considering the ease as presented, it was of the opinion that the alleged verbal “ contract” sued on was not a contract, but a verbal promise to pay a prescribed debt, and therefore the claim for services rendered prior to 1893 was prescribed by the prescription invoked.

In reference to the claim for services rendered since 1893 the court said: “The only services for which plaintiff could claim compensation were those rendered in his capacity as attorney at law in court, or by giving the deceased legal advice as to litigation, pending or threatened. It is proved that the only litigation deceased had since 1893 was in reference to the succession of her deceased husband, in respect to a tomb in the St. Louis Cemetery, and in regard to a threatened litigation in regard to some gravel paving. In the succession of her husband she was represented by two able and experienced lawyers at this bar, both of whom have been compensated by her or her succession. In the matters in reference to the tomb and gravel paving, she was represented by another able lawyer of the bar, who has been compensated by her or her succession for his services. It is proved that the plaintiff never appeared for the deceased in any court of justice, in any proceeding in this city or elsewhere. It is proved that he advised her in reference to the litigation in court as to whether the attorneys she had employed had performed or were performing their duty. For this advice, given at different times and on various occasions and for the trouble to which the plaintiff was put in order to give that advice, the court considers that he is entitled to one hundred dollars. All the other services claimed and rendered by the plaintiff to the deceased, the court is satisfied, were rendered for friendship, in the capacity of her friend, for forty-six years. They are services for which the law grants no compensation.”

Plaintiff’s demand is for remuneration for services alleged to have been rendered to Mrs. Mills during her lifetime. It is not' claimed that either prior to, or as they were being rendered, there was any agreement or understanding that plaintiff was to be compensated, still less that the value or the manner or time of payment thereof had been fixed. He relies upon the vaguest kind of declarations of Mrs. Mills, after the alleged services were rendered, that she was under obligations to him, which she would remember and recognize in her will. The first decided promise by her to pay him for the same is set up by the plaintiff as being in 1893. Plaintiff attempts to bring his claim under the control of the principles announced in the Succession of Fowler, 7 An. 207; Alexander vs. Alexander, 12 An. 590; Nimmo vs. Walker, 14 An. 589; Copse vs. Eddins, 15 An. 528; Gaines vs. Succession of Del Campo, 30 An. 246; Danenhauer vs. Succession of Brown, 47 An. 342; Succession of McNamara, 48 An. 45; but we think that in several most important respects the cases differ. In the first place, in the different cases cited the extent of the services rendered were fully shown, as was also their character as being such, which both parties would naturally and properly expect to call for payment. C. C. 1773. In this case the difficulty which plaintiff encountered in specifying in his petition what the services performed by himself were, followed him into his proof, for leaving aside the acknowledgments of the same which are asserted to have been made by the deceased, the plaintiff’s claim rests practically on no evidence. Plaintiff in his own testimony makes no such showing as he could reasonably expect would form the basis for a judgment.

But even were the evidence in the case other than what it is, plaintiff would meet with an insurmountable obstacle in the objections urged and the result of the objections urged to allowing the introduction of parol evidence to establish the promises or acknowledgments which he declares were made by Mrs. Mills.

Article 2277 of the Civil Code declares that “ parol evidence shall not be received * * to prove any acknowledgment or promise to-pay any debt or liability in order to take such debt or liability out of prescription, or to revive the same after prescription has run or been completed.” The parol evidence tendered by plaintiff was not to establish a contract which, by its special terms at its inception, was of a character such as to withdraw it from the prescription ordidinarily applicable to contracts of that kind.

What he attempted to do was to prove that services which, as to their payment, would be prescribed by three years, had been taken out of such prescription and thrown under that of five or ten years by a subsequent promise or acknowledgment. Under the law, as it stood when the decision in the succession of Fowler was rendered, that could have been done, but subsequent legislation has changed the legal situation. The District Court correctly drew the distinction between parol proof of the original terms of a verbal contract and parol evidence of a verbal acknowledgment by a. a deceased person of a pre-existing claim, which, but for such acknowledgment, would be prescribed.

The prescription of three years, formerly applicable to all open accounts, could not, under a law such as now exists (in respect, to the kind of evidence needed to establish an interruption or suspension of prescription), have been avoided by showing a verbal acknowledgment of the account by the deceased debtor, and thus converting the open account into an “ account stated.” The present case fully comes under the decision in the Succession of Gaines, 45 An. 1424.

Plaintiff urges that the continuity of plaintiff’s services postponed the date of the beginning of the prescription applicable to them to the close of the services. Their character was such as to exclude them from the operation of such a doctrine, if one^ exists, as they seem to have consisted of small services, each separate and distinct from the other.

We are of the opinion that the court was correct in holding-that all claims of plaintiff, prior to 1893, were prescribed. We see no error in the court’s judgment upon claims subsequent to that date. We do not think it necessary to enter into an analysis of the testimony in the case.

The judgment is affirmed.


text:
    No. 12,450.
    State of Louisiana vs. Arthur Clark.
    Transcript of appeal filed after the expiration of return day will be dismissed.
    APPEAL from the Ninth Judicial District Court for the Parish of De Soto. Ball, J.

      M. J. Cunningham, Attorney General, and J. B. Lee, District Attorney, for Plaintiff, Appellee.

      H. T. Liverman for Defendant, Appellant.
    Submitted March 20, 1897.
    Opinion handed down April 12, 1897.
   The opinion of the court was delivered by

Nicholls, C. J.

Defendant, indicted for murder, has appealed from the judgment of the District Court sentencing him to hard labor in the penitentiary for life under a verdict returned against him of Guilty without capital punishment.”

The State moved for the dismissal of the appeal on the ground that the transcript was filed too late.

The prisoner was sentenced on February 13, 1897. On his application made the same day he was granted an appeal, returnable to the Supreme Court at New Orleans in ten days. The transcript of appeal was file<J in this court on March 9, 1897. No explanation of or excuse for the delay has been assigned, though defendant was represented by regular counsel. We have no alternative left to us.

The appeal is dismissed.


author: Miller, J. Watkins, J., Watkins, J., Miller, J. Watkins, J.

text:
    No. 12,099.
    Philip H. Sims vs. Blaney T. Walshe.
    On Motion to dismiss.
    When the petition avers the value of the property sued for is sufficient to give this court jurisdiction, and no issue has been raised on that point in the lower court, the motion to dismiss the appeal will not prevail, unless the record clearly shows there is no jurisdiction.
    Least of all, will the motion be favored when the appellee has affirmed our jurisdiction by dismissing the previous appeal to the Circuit Court, on the ground that the appeal was within our cognizance.
    On the Merits.
    When the authority exists for the sale made by the tax collector his deed is not vitiated by the reference in the deed to a superseded legislative act, instead1 of the existing act under which the sale is made.
    The case is discriminated from those in which no authority existed for the sale.
    WatTtins, J., Dissenting: A tax sale made in 1888, in the enforcement of taxes assessed in 1887, under and in pursuance of the revenue law of 1882, is null and void» because the same had been repealed and superseded by the revenue law of 1886.
    In case a tax sale is made under a current revenue law, enacted under the Constitution of 1879, the adjudieatee carries the burden of establishing, with a reasonable degree of certainty, that all legal requirements of assessment and sale-have been complied with, on pain of nullity.
    The nullity of the primary tax sale to the State is necessarily imparted to a subsequent title which the State conveys to a third person.
    A eo-owner of an undivided interest in real estate can not be permitted to imperil the interest of his joint proprietor, by means of a collusive combination with other persons to interpose an apparent, though fraudulent obstacle to the-enjoyment of his rights, through the instrumentality of an acquiescence in an illegal tax sale.
    APPEAL from the Oivil District Oourt- for the Parish of Orleans-King, J.

      Frank L. Richardson and Lloyd Posey for Plaintiff, Appellant.

      Gurley & Mellen and Buck, Walshe & Buck for Defendant, Appellee.
    On Motion to Dismiss.
    Argued and submitted May 28, 1896.
    Opinion handed down April 12, 1897.
   On Motion to Dismiss.

The opinion of the court was delivered by

Miller, J.

The defendant moves to dismiss this appeal, on the ground that the property plaintiff seeks to recover is shown by the record, it is claimed, not to be of the value sufficient to give jurisdiction to this court of this controversy.

The defendant relies in support of his motion on the assessments of the property for taxes for the years 1887 to 1893 at one thousand dollars: and on the fact that shortly before the institution of this suit the property was adjudicated, at public auction for one thousand four hundred and fifty dollars, the plaintiff then being the owner and defendant, the adjudicatee, failing to comply. Assessments can not be accepted as conclusive on the question of value, and those relied on in this case carry less weight, from the fact that the same valuation, one thousand dollars, has been carried on the rolls for the past eight years. A bid at an auction as a test of value depends upon the number of persons in attendance, the competition of bidders, and other circumstances. As against the assessments and the bid of one thousand four hundred and fifty dollars, there is, in the allegation in the petition, that the property is of the value of twenty-five hundred dollars, and the affidavit of two auctioneers, familiar with property values, that, the property is of value exceeding two thousand dollars. There was no contestation in the lower court as to the jurisdiction, and in the absence of any testimony specially directed to that issue, we do not feel authorized to dismiss an appeal, always to be maintained, unless the basis to deny the right is clearly established. We have the jurisdictional allegation in the petition not controverted by any pleading. Without passing on the question of plaintiff’s right to produce in this court the affidavits as to value, admissible as a general rule when the petition does not show jurisdiction as to amount, in our opinion the allegation in the petition, on this point, is not disproved by the testimony in the record. 1 Hennen’s Digest, p. 16, Nos. 1 and 3.

The brief for plaintiff states the appeal first taken to the Court of Appeals was dismissed on defendant’s motion, on the ground the petition showed the value of the property b eyond the jurisdiction of that court. The plaintiff’s case would be hard if now, on defendant’s motion, he was denied his appeal here.

It is therefore ordered, adjudged and decreed that the motion to dismiss is denied.

Watkins, J.,

concurring. The defendant and appellee moves to dismiss the plaintiff’s appeal on the ground that the matter in dispute is below the lower limit of this court’s jurisdiction. This is a petitory action for the recovery of real estate which is estimated in the petition to be worth twenty-five hundred dollars; and in this court plaintiff has produced the affidavits of two apparently competent persons who affirm that it is worth twenty-one hundred dollars.

Under the decisions, that is sufficient warrant to justify this court in assuming jurisdiction. In addition it may be properly observed that this ease was first appealed to the Circuit Court of Appeals, in which the appeal was dismissed for want of jurisdiction.

On the Merits.

The opinion of the court was delivered by

Watkins, J.,

And handed down on June 15,' 1896, affirming the judgment of the District Court.

On February 15, 1897, a rehearing was granted.

On the rehearing, the case was submitted on briefs March 19,1897.

The opinion of the court was delivered by

Miller, J.

This is a petitory action in which the basis of plaintiff’s demand is a tax title, and he appeals. from the judgment dismissing his demand.

The property was assessed as that of B. W. Elder; was sold in 1888 for the unpaid taxes of 1880 and bought by the State. Thereafter the State sold the property to Mrs. T. O. Starke, and she sold it to plaintiff in 1891. The defendant and Elder were joint owners, though the legal title was in Elder, in whose name the property was assessed.

The petition avers the tax sale to the State, the sale by the State to Mrs. Starke and the purchase from her by the plaintiff, Sims. The answer charges that by the fraudulent combination between Elder, the defendant’s coproprietor, and the plaintiff, the title was made to the piaintiff for Elder’s benefit; that defendant’s right could not be divested by this fraud of his coproprietor, and the answer further charges that the tax sale to the State, under which plaintiff charges claims, was void because the authority to make that sale stated in the deed did not exist, hence the answer insists defendant is still the owner of one-half the property.

The tax title by the State recites the sale in 1888 to the State for the unpaid taxes of 1887, under the authority of the Act No. 96 of 1882, and other acts in such eases provided. The defect to this title urged by defendant is that the revenue act of 1882, recited in the deed as the authority by which the tax collector sold to the State, had been amended by the Act No. 107 of 1884 and repealed by Act No. 78 of 1886. These later acts contain a repeal of laws on the same subject matter.

The section conferring on the tax collector authority to sell and buy for the State, contained in the act of 1882, Sec. 52, is repeated in the act of 1886, so that though the act of 1882, referred to in the tax deed had been superseded, precisely the same authority subsisted when the sale in this case occurred. We have been referred in support of defendant’s objection to the deed to the settled principle there must be authority in the tax collector for any sale he makes. Blackwell on Tax Sales, p. 405, et seq. Thus where no act existed directing the sale, when made under an authority withdrawn by later legislation; where the act directed sales to pay taxes of particular years, but not for the year or years for which the property was sold, or where the sale was authorized of one species of property, but not of that sold, and similar cases, tax sales have been annulled. Eldridge vs. Tibbitts, 5 An. 380; Collector vs. Britton, 23 An. 511; Prescott vs. Payne, 44 An. 650, cited by defendant, and there are cases of similar type. But in this instance there was no moment of time since 1882 when the authority to sell for unpaid taxes did not exist. If the act of 1882 was repealed, the later with the same authority was at once supplied. There was then the requisite authority when this sale was made to the State. We do not think the sale was vitiated merely and only because the deed referred to the repealed act, instead of the act of 1886, especially as the deed also referred to the laws in force on the subject, nor because there was a charge for the deed allowed by the former and not the later and existing act.

The defence there was a fraudulent combination between Sims, the plaintiff, and Elder to defeat defendant’s title, has had our attention. In this connection defendant has put in evidence a quit-claim to him to the property by Elder, executed after the tax sale, and .after, with Elder’s knowledge, the property had been sold by Starke to plaintiff. The quit-claim implied that no sale to Elder’s knowledge had been made to plaintiff, for Walshe could not suspect that Elder, with full knowledge of the sale to plaintiff, would execute the quit-claim, or at least without mentioning a fact so pertinent. The quit-claim, it is urged, shows fraud in Elder, especially .as it is shown he assisted in bringing about the sale by Mrs. Starke to plaintiff. It is in evidence that Mrs. Starke, after she bought, offered the property to Elder, who, declining, referred her to Sims, as likely to buy, and he did buy. Whatever room for comment there is, with reference to Elder’s course, the question remains, how is Sims to be affected in his purchase of the property from Mrs. Starke, whose title is not assailed? There is no testimony to connect Sims with Elder, except their relationship as brothers-in-law and occupancy of the same office. There is the testimony of Sims •of his ignorance of the relations of Elder and Walshe, and that he bought from Mrs. Starke and paid the price in good faith, acquiring only for himself. It was not until he sold the property, it appears, he had any knowledge of Walshe’s previous connection with the property, then acquired by the registry of the quit-claim by Elder to Walshe. It is urged on us as a circumstance of suspicion that before buying Sims required a quit-claim from Elder. Any purchaser from one holding a tax title it seems to us, might naturally seek, if he could get it, a quit-claim from the assessed owner on his coproprietor. Unless we can assume fraud in Sims from his relationship to Elder, Sims stands before us as a purchaser in good faith of property sold more than a year previous at a tax sale. Then too, that sale to the State, followed by the State’s sale to Mrs. Starke, completely divested the ownership of Elder as well as of Walshe. No fraud of Elder or complicity, real or supposed, of the plaintiff Sims, could have affected Walshe, who had by the tax sale lost the property and all right of redemption before Sims acquired or was brought in any contact with the subject.

It is therefore ordered, adjudged and decreed that our former judgment be set aside, and it is now ordered, adjudged and decreed that the plaintiff Sims be, and he is hereby decreed to be the owner of the property sued for described in his petition, and that defendant pay costs.

Dissenting Opinion.

Watkins, J.

Plaintiff claims the ownership of a square of ground situated in the Sixth District of the city of New Orleans, bounded by Oliver, Wall, Walnut and Fourcher streets, averring that same was derived through the following chain of titles, viz.:

First. Prom Dora Lambeth, wife of Theodore O. Starke, by authentic act of date 12th of September, 1890, for the price of three hundred dollars — the act containing the statement, that it was “ the same property which was acquired by the present vendor by purchase at a sale made thereof by the State Tax Collector of the city of New Orleans, on the 12th day of December, 1889, for the unpaid State taxes due thereon for the year 1887, as will more fully appear from an act of sale of the 2d of May, 1890, from the State of Louisiana (through) Benjamin W. Elder to Mrs. Dora L. Starke,” etc.

Second. Prom the State of Louisiana to Dora Starke, by authentic, act of date 2d of May, 1890, the act reciting that the sale was made in pursuance of Act No. 80 of 1888, for the consideration of twenty-five dollars.

Third. Prom Benjamin Elder to the State of Louisiana by authentic act of sale of date 13th of July, 1888, the act reciting that the sale was made at public auction by the State Tax Collector, in pursuance and by virtue of the power in him vested by the provisions of Act 96 of 1882, and of the laws in such cases provided, to enforce the payment of State taxes on the aforesaid property for the year 1877, and that same was adjudicated to the State for the price of thirteen dollars and fifty cents, same being the amount of the taxes for said year.

Under this statement, the ownership of the plaintiff is asserted under, and exclusively based upon the tax sale of July 13, 1888, and the tax collector’s adjudication of said property to the State of Louisiana, in satisfaction of the unpaid taxes of Benjamin Elder, for the year 1887; and, consequently, the plaintiff’s title must depend, for its validity, upon that adjudication, as his title states specifically and in detail its origin and source.

In addition to the chain of title, as thus set out, the petition avers, that the defendant claims to be the owner of said property, and has taken illegal possession thereof; and that he has caused to be recorded in the conveyance office a pretended transfer by one B. W. Elder, under private signature, bearing date 23d of February, 1891, and registered on the eleventh of the same month.

It avers that said pretended transfer is null and void,' and of no validity, for the reason that said Elder was not the owner of said property at the time of said transfer, and has no right in said property which he could convey to said Walshe.

Petitioner places the rental value of said property at ten dollars per month, and avers that he is entitled to claim rent at that price from the 13th of September, 1890 — the date he acquired title from. Dora Starke.

His prayer is for judgment decreeing him to be the legal owner of said property and entitled to possession thereof; and for ten dollars per month rent from the aforesaid date.

The substance of defendant’s answer is, that plaintiff is not the owner of the property, coupled with an averment that the title set up by him is illegal, null and void.

He avers that said property was originally acquired by him, jointly with one Benjamin W. Elder, on December 12, 1884, by purchase from M. J. Farrell, but that the title was, for mutual convenience, taken in the name of B. W. Elder alone — constituting each the owner of an undivided one-half interest therein.

That, by act of February 23, 1891 — the one above referred to — said B, W. Elder conveyed and delivered to him, for a valuable consideratiou, all of his right, title and interest in said property.

That the plaintiff entered into an illegal combination and collusive •conspiracy with said B. W. Elder and others for the purpose and with the object of defrauding him of his interest in said property.

That, in pursuance of said collusion and conspiracy, said Elder allowed said property to be sold} for taxes, and that, subsequently, to-wit, on the 27th of August, 1890, he gave to the plaintiff, without consideration, and without his (defendant’s) knowledge or consent, a paper purporting to be a quit-claim title to the said property; and that the intent and purpose of said pretended quit-claim title was to defeat his (defeudant’s) right therein, by an attempted confirmation of the aforesaid tax adjudication to the State, and from whom plaintiff acquired, through Mrs. Starke, on the terms and conditions already stated.

The defendant further avers that, at the time of all of these illegal and wrongful acts, both the plaintiff and Elder were aware of his interest in the property, but neither of them informed him of said proceedings.

Further answering, the defendant sets up his title and prays judgment in reconvention, decreeing him to be the sole owner, and annulling and setting aside the alleged titles of the plaintiff and his authors in title.

On the trial there was judgment in favor of the defendant in line with the averments and prayer of his answer and reconventional demand, decreeing him to be the lawful owner of the property and entitled to retain possession, and decreeing the illegality and absolute nullity of the plaintiff’s title, as well as those of his vendor and her author — the State; and that his [demands be rejected and disallowed, in toto.

From that judgment the plaintiff appeals.

In view of the foregoing recapitulation of facts it is quite manifest that the decision of this case must turn upon the effect that is to be given to the original tax adjudication to the State of Louisiana on the 13th of July, 1888, as it was the first, apparent divestiture of the Elder title; for if it possessed any inherent defect, or patent illegality, those claiming thereunder can not occupy any better position than their author.

And, in determining that question, we must consider the fact that, as the adjudication was made in pursuance of a current revenue law of the State which was enacted under the Constitution of 1879, the adjudicatee thereunder is bound to establish, with a reasonable degree of certainty, that all the formalities of law in assessment and sale were complied with on the pain of nullity of the title.

And, as an adjunct of said proposition, we are to consider the contemporaneous history of the transaction and the manner in which the parties in interest dealt with this tax alienation.

A conspicuous feature of the tax sale to which our attention has been attracted is that the sale was made under the revenue law of 1882, whereas the taxes were assessed in 1887 under the revenue law of 1886, which had superseded the act of 1882; and a conspicuous feature of plaintiff’s title is that, notwithstanding Elder had renounced and abandoned his right, title and interest in the property in favor of the plaintiff on the 27th of August, 1890, it was not set up by the plaintiff as a muniment of his title nor referred to in his petition; and it was for the first time discovered and adverted to by defendant in his answer.

And when its date is taken into consideration it becomes evident that same was intended to qniet and confirm the tax title; for it appears that Dora Starke acquired from the State on the 2d of May, 1890, preceding said quit-claim. And it is further of importance to notice that Mrs. Starke conveyed the property to the plaintiff a few days after its execution; and yet it was not recorded until the 11th of February, 1893 — more than two years thereafter.

And it is further important to observe that, notwithstanding Elder had executed in favor of defendant an absolute assignment of all his rights, title and interest in the property on the 23d of February, 1891, he failed to make any mention to him of the quit-claim he had previously executed in favor of the plaintiff on the 27th of August, 1890.

And, finally, it must be observed that this quit-claim in favor of the plaintiff was made while the title stood in the name of Mrs. Starke, but that same was almost immediately conveyed to him by Mrs. Starke.

Not being satisfactorily explained, these indicia of consent and collusion would indicate an intention on the part of Elder to defeat the interest of the defendant in the property, by attempting to revive and confirm an illegal tax sale, and place it securely in the name of the plaintiff as a party interposed for his (Elder’s) benefit; while, at the same time, apparently acknowledging the defendant’s ownership, by transferring his interest to him, notwithstanding he had previously executed a quit-claim to the plaintiff without defendant’s knowledge.

What other object could these transactions have been designed, or expected to have accomplished? It was evidently an intentional fraud on the rights of the defendant; and surely the plaintiff can not be deemed to have acquired by said quit-claim any muniment of title, considering that it merely declares that Elder thereby only abandons, releases and quit-claims to and in favor of Philip 8. Sims all of his right, title and interest in said property, without any consideration whatever.

Put these transactions in a light most favorable to the plaintiff and Elder, they suggest the latter’s attempt to defeat the plaintiff’s interest in the property through the instrumentality of a tax sale of more than questionable validity, to which he had yielded a tacit consent when made, and was afterward attempting to fraudulently confirm through a person he had interposed.

And, in this connection, it should be observed that, at the time when Elder made the gratuitous relinquishment of his interest in the property to Sims, the plaintiff, the latter had acquired no claim thereto from Mrs. Starke, or any one; nor in so far as the record discloses, had he at the time, any intention or expectation of acquiring any.

The proof shows that, after Mrs. Starke had taken title from the State, to whom Elder’s title had been adjudicated at tax sale, her husband, T. O. Starke, approached Elder, and requested him to purchase the property back from his wife; but that Elder declined to do so, and “brought Starke to Phillip Sims, the plaintiff, as a person who would like to buy.” It further shows, that Elder told Simms, as an alleged inducement, that “it is a pretty good thing for anybody who had the money and can afford to hold on the real estate.”

It was soon after this conversation that Elder executed the relinquishment of the title in Sims’ favor.

The proof shows that Elder and Sims are brothers-in-law, and on terms of business intimacy; and that Colonel Starke testified as a witness, that he would not have sold the property at so low a figure,' had he not been informed that Sims and Elder were brothers-in-law; and had he not “ considered it a family matter.”

It is conspicuous that all of these dealings and transactions occurred anterior to the sale and transfer from Elder to the defendant Walshe; and anterior to the signing of the agreement between Elder and Walshe, whereby Walshe was authorized to institute and prosecute certain suits against third parties for the purpose of perfecting title to the property.

My conclusion is that, under the circumstances detailed, Sims acquired no title to the property in controversy which he can successfully oppose to that of the defendant; because the proof makes' t clear that he was but a person interposed to take title for Elder, the object of which was to defeat the interest of the defendant by means of a tax adjudication to the State.

Such traffic in tax sales, either with the present knowledge or subsequent acquiescence of the tax delinquent, has been viewed by courts of justice and given effect merely as a receipt for the taxes due and unpaid, and the tax title as' enuring to the benefit of the owner of the property.

In our reports I find no case in which an attempt was made to divest an adverse title by the instrumentality of tax proceedings and sale, but there áre two appertaining to the attempted divestiture of an act of special mortgage in this way.

In the former (Austin vs. Bank, 30 An. 691) the court said, in speaking of a tax sale, that “ no government will permit its machinery, constructed to enforce the payment of public dues to the fisc, to be used to manipulate a fraud; and if the purchaser is a party to the fraud he must share in its punishment * * *

“ The purchase by Moss was nothing more or less than a purchase by Mrs. Austin, the debtor and mortgagor, through her son, the plaintiff. The money paid, as the price at the tax sale, was 'only what she, as owner of the property, owed the State, and what she honestly and in good conscience ought to have paid without and before, and to prevent a sale. If she could not pay it, the debt being exigiant and of so high a rank, she should have acquainted her creditor and mortgagee with its imminence, instead of observing the suspicious reticence which characterized her conduct. The creditor’s rights, as mortgagee and vendor, can not be imperiled by the mortgagor’s collusive combination with others to interpose an apparent but fraudulent obstacle in his way in enforcing those rights.”

In Beltram vs. Villere, 4 Southern Reporter, 506, we affirmed a like principle and said:

“Under this evidence all the defences of the various defendants fall. Argument is quite unnecessary to demonstrate that these were purely and simply consent proceedings that had for thetr object the divestiture of plaintiff’s special mortgage on the property and the investiture of Larendon with security for his unsecured demands,” quoting with approval the extract we have cited from Austin vs. Bank, supra.

And those authorities are pertinent to the issue now before us in that the testimony sustains the statement that the defendant’s title to an undivided interest in the property in controversy will be imperiled by his co-owner’s collusive combination with others to interpose an apparent but fraudulent obstacle to the enjoyment of his rights.

But in addition to this argument comes the very forcible suggestion that Act 96 of 1882, uDder which the tax adjudication to the State was made on the 13th of July, 1888, in the enforcement of taxes of 1887, had been repealed and completely superseded by Act 98 of 1886, under the provisions of which the taxes were assessed, and for that reason the sale was an absolute nullity on the face of the papers.

And I can not see how that argument can be resisted.

The nullity of the primary tax sale to the State necessarily draws to it the nullity of the title from the State to Mrs. Dora Starke — thus completely invalidating plaintiff’s principal title.

In Wilbert vs. Michel, 42 An. 853, this court held, that the validity of a title acquired from the State depends upon the validity of the adjudication, or forfeiture to the State; and if that is for any cause invalid, the State acquires no title and can transfer none.” Guidry vs. Broussard, 32 An. 926; Gatlin vs. Hutchinson, 36 An. 350; Atwood vs. Weems, 99 U. S. 183; Lee vs. Kaufman, 106 U. S. 196; Saunders on Taxation, p. 313.

And in Breaux vs. Negrotto, 43 An. 426, we said:

But if the State acquired no title to plaintiff’s property because of radical defects in the tax proceeding, she could convey no title to the defendant under the sale,” etc. Citing: Guidry vs. Broussard, supra; Gibson vs. Hitchcock, 37 An. 209; Baton Rouge Oil Works vs. Dundas, 34 An. 255; Denégre vs. Girac, 35 An. 952; Carig vs. Bush and Levert, 35 An. 1100.

My examination of the law and evidence has satisfied me that the opinion and judgment of our learned brother of the court below, in favor of the defendant, is correct.


author: Breaux, J.

text:
    No. 12,374.
    City of New Orleans vs. Eugene S. Reems.

      Plea Required. — So secure an appeal, tile amount involved being less than two thousand dollars, there must have been a contestation in the lower court antecedent to trial and a judgment in the lower court in the matter of- the illegality or unconstitutionality of a tax. State vs. Hennessey, 44 An. 805; State vs. Dean, 45 An. 441; State vs. Tsni Ho et al., 37 An. 50.
    APPEAL from the Second Oity Oourt of New Orleans. Fernandez, J.

      Samuel L. Gilmore, City Attorney, and W. B. Sommerville, Assistant City Attorney, for Plaintiff, Appellee.

      Wall & Watt for Defendant, Appellant.
    Argued and submitted February 20, 1897.
    Opinion handed down March 1, 1897.
   The opinion of the- court was delivered by

Breaux, J.

Plaintiff sued the defendant for one hundred dollars, amount claimed for a license for the year 1896, as retail liquor dealer. There was a judgment rendered for the city from which the defendant appealed.

The appellee moves to dismiss the appeal for want of jurisdiction.

The defendant is, it appears, a wholesale merchant. He averred that he was not a retail liquor dealer and did not sell in less quantities than original and unbroken packages or barrels. He charged here, in the brief, that the license tax sought to be imposed is illegal. In the lower court no plea was filed. We have not found that the case falls within the appellate jurisdiction of this court. There is no question of law involved. The manifest purpose is to show that defendant’s business, not being a retail business, can not be subjected to the payment of a retail license. This is exclusively a question of fact. While it is asserted that the law is illegal and unconstitutional, no ground of illegality or unconstitutionality is pleaded. This court has had occasion to decide, in a number of cases, in obedience to the article of the Constitution, that appellate jurisdiction would be exercised in all cases in which the constitutionality or legality of any tax shall be in contestation. In those cases the appeal comes up on the law and the fact needful to a proper determination of the question.

On appeal, questions exclusively of fact are not within the jurisdiction of the court. If we were to entertain jurisdiction of questions of fact where the imconstitutionality or illegality of the law, is merely suggested in argument at bar, the minimum limit as to amount of the court’s jurisdiction would become a dead letter, and nearly all cases would become appealable, without any reference to amount. We repeat: the excepted cases, as relates to taxes in the article in the Constitution are those in which their legality, or unconstitutionality, is at issue,.and in such cases the law and the fact are reviewable, but the facts alone, without any issue of unconstitutionally or illegality of the tax, are not reviewable on appeal. If an officer attempts to collect a tax from one who is not liable, the question of liability vel non (the law being, as to its validity, unquestioned) is one exclusively of fact, and appeal here is not the remedy.

In State vs. Deffes, 44 An. 581, this court said: We recently said in case the record discloses that there was raised in the recorder’s court no contestation as to the constitutionality or legality of the city ordinance under which the appellant is prosecuted, the appellate jurisdiction of this court does not attach.” The contestation must arise in the court a qua. State vs. Hennessey, 44 An. 805.

The appeal is dismissed.

Mr. Justice Miller dissents.