text:
    No. 12,391.
    Mrs. Claudia Pearce, Wife of, et als. vs. State of Louisiana ex rel. P. Breazeale, District Attorney, M. J. Foster, Governor, and the Sheriff.

      Motion to Dismiss. — There is no difference, in so far as relates to the action of the judge granting the appeal, between an order fixing a return with date therein inserted, and a petition to him presented with an order appended fixing the return on a day fixed. In either case it is the judge who named the day, and if he commits an error, the appellant, who has sought no undue advantage, can not be prejudiced by the judge’s act.

      Locus Standi. — The State has the right and power to stand in judgment against a defaulting tax collector for levee taxes.

      .Judgment Confessed is Valid. — The tax collector and his sureties can confess a valid judgment recognizing the existence of a mortgage on the immovable property of the former.

      Scope of Mortgage Resulting from Rond. — The mortgage confessed covers the amount of State and parish taxes that are delinquent and the amount of levee taxes that are delinquent.

      Boudin Favor of All Persons Interested for Taxes Collected. — The tax collector’s bond, which gave rise to the mortgage is conditioned for the faithful performance of •the tax collector in the collection of and accounting for State and parish taxes and the levee tax. The language of the statute is that the bond shall operate as a mortgage in favor of the State, parish and all persons interested in matter, the court holds, of amounts collected as taxes.

      Liability of Vendees of Property Mortgaged. — As there existed a mortgage on the property, those who bought the property are in a position similar to that of their vendor, as relates to the mortgage.

      Bond Covers Duties Contemplated When it Was Signed. — The bond covers the duties imposed before it was signed and may cover duties imposed since it was signed, provided they were within the scope of the contract.

      Effect of Pact de non Alienando. — The clause de non Alienando, dates from the date of the registration of the bond. Art. 834, R. S., provide^ a date from which it shall exist, but does not limit the effect to the one day upon which the bond was registered.

      Damages Not Allowed. — The appellant has admitted an error and ordered a re-advertisement of the property for sale. The state of the facts at the tim'e the injunction issued must control. Appellant’s prayer for damages is rejected.
    ^PPEAL from the Tenth Judicial District Court for the Parish of Avoyelles. Cullom, Jr., J.

      J. C. Cappel and Wm. H. Peterman for Plaintiffs, Appellees.

      M. J. Cunningham, Attorney General and Phanor Breazeale, District Attorney (A. V. Coco, of Counsel), for Defendants, Appellants.

      Argued.and submitted February 17, 1898.
    Opinion handed down March 1, 1897.
    Rehearing refused April 12, 1897.
   On Motion to Dismiss.

The opinion of the court was delivered by

Breaux, J.

The appellees filed a motion to dismiss the appeal.

They allege as facts upon which the motion is founded that the record shows that judgment was entered in chambers on December 30, 1896. On the same day the appellant filed a petition for an appeal and prayed “that a suspensive and devolutive appeal be granted from the judgment rendered in said above cause, returnable on the second Tuesday of January next, the twelfth day of said month.” The order of appeal, in conformity with the appellant’s prayer, made the cause returnable on the second Tuesday of January, 1897, the twelfth day of the month.

The return day was not the second Tuesday but the second Monday of January. There was an error committed.

Whether it is good ground to dismiss the appeal is the question for our determination.

The act of the Legislature of 1839, relative to appeals, provides: “That hereafter no appeal to the Supreme Oourt shall be dismissed, on account of any defect, error, or irregularity in the petition or order of appeal, or in the certificate of the clerk or judge, or in the citation of appeal or service thereof or because the appeal was not made returnable at the next term of tbe Supreme Oourt, whenever it shall not appear that such defect, error or irregularity is imputed to the appellant; but in all such cases the court shall grant a reasonable time to correct such errors or irregularities (in case they are not waived by the appellee) and may impose on the appellants such terms and conditions as in their discretion they may deem necessary for the attainment of justice; and may impose such fine on the officer who shall have caused such irregularities as they may deem proportionate to the offence.”

It is here argued by the appellees that the error was attributable to the fault of the appellant or his counsel. In Trimble vs. Brichta, 10 An. 779, cited by the appellees in support of their motion to dismiss, the motion for an appeal was made verbally and the court said that as it was the duty of the judge in granting the appeal to fix the return day in accordance with the law and rights of the appellees, and as there was nothing in the record to show that the appellant suggested any particular return day the order of appeal was considered as the act of the judge and the appeal was not dismissed.

In Citizens Bank vs. Ruty, 26 An. 747, the court said: In this case the appeal was made in writing and the time fixed for the return thereof by the judge was the day asked for by the appellants. If they erred the error is their own.

A similar question arose on a motion to dismiss in the case of Chaffe & Sons vs. Heyner, 31 An. 574, in which the court held that where an application for appeal was made in open court, and the time for the return day made by the judge was in compliance with the motion of appellant’s attorney, it was none the less the act of the court and not the act of the attorney. While in this case the court did not overrule the 26 An. case ubi supra, it withheld its approval and used the following language with reference to the decision: “Perhaps we should not have ruled as the court then did.”

In Wooton vs. LeBlanc, 32 An. 692, the court reached the conclusion that the error was attributable to the appellant, and dismissed the appeal.

In State vs. Dollwood, 33 An. 1229, in matter of a similar error, it was held that it was the error of the judge.

There is a diversity of views expressed in the different decisions upon the subject. There were dissents, which necessarily lessen the certainty of decisions as authority. Under the circumstances we feel at liberty to consider the question as res nova. The judge in signing the order was exercising one of the judicial functions with which he is entrusted. It is the judge who fixes the date. It was his act and not the act of the counsel by whom the motion was made for an appeal. We can not take it for granted that he was misled by counsel, and that he intended to issue another order and fix another date different from the date fixed.

Whatever antagonism there may be between the law and the act. It is the act of the judge. The error committed is his error, until it conclusively appears that it was caused by the appellant. The order of appeal is one removed from the appellant. The order was that of the judge, uninfluenced, in so far as we know, by the petition, or the order which was presented to him for his signature. There is, in our view, substantially no difference between a motion with an order fixing the return day and a petition with an order fixing a return day. In each, on the face of the papers, non constat that it is not the order of the judge or that he was misled.

The motion to dismiss is therefore overruled.

STATEMENT OF FACTS.

Plaintiffs seek by an injunction directed against the execution of a writ of ft. fa. issued upon a judgment obtained by the State of Louisiana against Clifton Cannon, formerly sheriff and tax collector of the parish of Avoyelles, to restrain the execution of the judgment.

We are informed by the record that the State, by confession of Cannon and the sureties on his bond, procured a judgment against them, with recognition of a mortgage on property described in the petition filed for the State, which included the plantation seized under the judgment enjoined; the judgment confessed rejected all pleas and right of discussion.

Cannon, it appears, qualified as sheriff on the 23d of June, 1892, by furnishing bond as required, which was duly recorded. One of the bonds was dated and placed of record June 23, 1892; the other, March 10, 1893. It was upon these bonds that suit was brought and judgment obtained.

Plaintiffs inherited the property seized from their mother, Mrs. Mary E. Bennett, wife of S. S. Pearce, Sr., who had purchased it from Cannon on April 13, 1893.

The following are the grounds upon which is based the right for an injunction:

1. That the State was without right or power to sue a delinquent tax collector for levee taxes. And, in the alternative, should the court hold that the State can properly sue to recover levee taxes, and that the defaulting tax collector and his sureties can confess a judgment which recognizes the existence of a mortgage on the lands of the appellees, plaintiffs contend that the effect of the mortgage must be limited to the amount of the State taxes that are delinquent and not extended to cover delinquent levee taxes; for the reason that the tax collector’s bond, which alone gives rise to the mortgage, is conditioned only for the faithful performance of his duty in the collection of and accounting for State and parish taxes; that the mortgage resulting from the recordation of the tax collector’s bond covers alone his delinquencies in the matter of State and parish taxes, and can not be extended so as to include levee taxes.

In the second place, the plaintiffs urge as grounds for the injunction-that if payments had been properly applied by the Auditor there would have been a reduction of the shortage on all accounts, licenses, State and levee taxes, and that as to the levee taxes, the judgment for their amount should have been personal as against Oannon and without mortgage effect.

Another ground of injunction denies the right of appellants to proceed against appellee’s property by direct seizure.

Another ground is that the property was advertised to be sold under the writ of fl. fa. on the fourth Saturday, the 20th of June, and that there is no such day in the calendar, and lastly, that the judgment enjoined is, so far as these appellees are concerned, an absolute nullity, because it decrees mortgage rights against the property of the appellees upon the confession of persons who are strangers to the title, in a proceeding in which the appellees were not made parties.

The injunction was maintained in the District Court. The State prosecutes this appeal. It is correctly alleged by plaintiffs that the amount of the levee taxes collected by Cannon, sheriff, and not paid over by him i^as four thousand nine hundred and ninety-one dollars and thirty-seven cents, and that this amount was included in the judgment which the State obtained against him on the petition in the suit in which Cannon and his sureties confessed judgment — i. e., the judgment enjoined in the case before us.

ON THE MERITS.

We take up the first ground before us for our determination: the power vel non of the State to sue for and recover moneys collected by the sheriff for account of the levee district.

If we should grant all that is claimed by plaintiffs on the ground just stated, the judgment obtained would be a nullity only to the extent that the amount of the levee taxes was collected and not paid over by the sheriff. The judgment would remain valid for the .State and parish taxes. The entire judgment would not be null. A judgment may be annulled in part and in part maintained. The consideration of the judgment does not appear to have been disputed in the lower court. But even as to the levee taxes the judgment is not a nullity on the ground urged.

It can not be denied that the statutes secured to the Red River, Atchafalaya and Bayou Boeuf Levee District the right to sue in all matters affecting the interests of the board. Section 3 provides that the board shall have the power to sue and shall be sued in its corporate name, but it does not follow that all suits in any manner affecting the rights or the revenues of the levee district must be brought by or against the Board of Levee Commissioners in the absence of all statutory declaration upon the subject.

The sheriff, under Sec. 9 of Act 79 of 1890, was in duty bound, whenever ordered by theBoard of Commissioners, to collect the t ixes levied on the tax rolls furnished him for the purpose at the same time and in the same manner as was prescribed for the collection of State and parish taxes; and he was bound to account to the State Treasurer for the collection; in other words, the sheriff is responsible to the State Treasurer for the levee taxes collected. That officer is made the keeper of the fund and the sheriff is required to settle with the Auditor for this tax as he is required to settle for the other taxes he collects.

It does not by the language of the statutes appear to have been contemplated by the legislator that the boaz’d would institute suits against defaulting sheriffs and compel them to settle and pay over to it the taxes collected and that the board would at some period of time not stated pay over to the treasurer. On the contrary, these taxes were placed on tlze same footing as any other tax; to be collected, accounted for, and subsequently paid out by the State Treasurer. The Levee Board was not in any manner made the custodian of th6 levee fund. By the language-of the statutes the bondholders and other creditors are to look to the State Treasurer for payment— that is, all warrants are to be drawn on this officer and to the extent of the funds received the State is placed in a fiduciary position. Sec. 20 of the Act of 1892 provided that all funds collected for the board shall be transferred to the credit of the district by the State Treasurer and the officers shall proceed to collect the taxes.

In addition, it is manifest that the amount, was, in every respect, a tax. It must as such fall within the control of the section of the Revised Statutes which provides that the Auditor shall direct pros-editions in the name of the State for all official delinquencies in relation to the assessment, collection and payment of the revenue. With reference to the provisions of Sec. 17 of the same act of 1890, we find it impossible to agree with counsel. Mandamus was not the remedy. The Board of Levee Commissioners may appeal to the courts; the amounts collected would have to be paid in to the treasurer; the process (Mandamus) would only be ancillary to the State’s authority and can not in a case such as the one at bar be the remedy. Moreover, the defendant sheriff and his sureties having confessed judgment, they have admitted the authority of the plaintiff in the case to stand in judgment.

This brings us to the next question involved here: that the mortgage resulting from the tax collector’s bond covers his delinquencies in the matter of State and parish taxes, and can not be extended so as to include levee taxes.

Considered as an original question the sheriff and his sureties on the bond are responsible for all taxes collected by him. As to the mortgage which results from the recorded bond the statute provides-that the “ bonds ” when so registered shall operate from and after the date of registry, as a mortgage on all real estate of the principal obligors therein, in favor of the State, parish and all persons interested.” (Italics ours.)

This includes, in our judgment amount of the taxes assessed under State authority; collected by the sheriff as taxes which he has failed, after collection, to pay to the State Treasurer; to be placed by that officer to the credit of the levee board of the district.

The conditions of the sheriff’s bond as tax collector are that he shall perform all the duties incumbent upon him as tax collector; this includes surely an accounting for all taxes collected. The performance of the principal’s duties as collector of taxes is secured by the mortgage which has been recognized in the judgment confessed and by which unquestionably the tax collector is bound.

The plaintiffs consider that this position is correct in so far as the judgment confessed affects the right of those who confessed judgment and make no complaint personal to them; but they urge that-confession resulting in a judgment recognizing a mortgage upon their property can not operate to their prejudice; that they have a standing to defeat it if they can.

In answer to this complaint, we think it is sufficient to say that, as we have already reached the conclusion that there existed a mortgage on the property after the tax collector had qualified and his bond had been recorded, those who bought the property are in no better position than the vendor was at the date of the sale. They purchased from the tax collector after his bond bad been recorded and after the levee district had been created by statute. A valid mortgage against the tax collector was a valid mortgage against them as his vendees,

We pass to the next objection urged: that the levee district was not in existence when the conditions of the tax collector’s bond were defined by law; and that those conditions can not be enlarged so as fo include a liability arising under a subsequent statute. We can not overlook the fact, in deciding this point, that the sheriff’s bond was recorded subsequent to the creation of the board, and that its conditions included the duty of collecting the levee taxes. The Constitution directed the Legislature to maintain a levee system and to that end to levy taxes. The duty of collecting those taxes in the parish for which he was sheriff, devolved upon him at the date the bond was recorded. He acted under it and received the taxes. The plaintiff, despite the State’s mortgage, chose to buy the property.

A similar question was decided it McGuire vs. Bry, 3 .An. 196. As the syllabus covers the point decided, we extract from it: “The sureties on a bond given by a sheriff for the collection of the parish taxes can not, when sued as sureties for a portion of the taxes collected, but not paid over by the sheriff, contest the legality of the police jury making the assessment. By receiving tax roll and executing bond, the sheriff and his sureties recognized the authority of the police jury.

“ It is too late to contest the validity of their ordinances after having acted upon them and collected the taxes.”

This principle was affirmed in Police Jury vs. Brookshier, 31 An. 736.

If the sureties can not contest the legality of the tax collected which their principal has in his possession, it follows that purchasers of property from the tax collector can not set up the defence that the principal, their vendor, never legally contracted to collect the taxes which he has collected.

Here, before the execution of the official bond of the sheriff, the duties under the statutes had been imposed. If an individual had furnished such a bond and mortgage for the faithful performance of a duty he certainly would be held bound by the conditions expressed in the bond, and his mortgage would be valid, as no alteration has been made since it was given.

The Legislature has the power to change the duty of the officers, and those who subsequently enter upon obligation upon bonds required or purchase property affected by a mortgage under the bond can not claim or contest the validity of the mortgage on the grounds here urged.

It has been held by a number of courts of this Union that the Legislature has power at any and all times to change the duties of officers, and that it is in effect as though the power was recited in the bond, provided they were within the scope of the contract as originally contemplated by the parties. This covers duties subsequent to the date of the bond as well as those preceding that date. Am. and Eng. Ency. of Law, Vol. 24, p. 882.

Here the case is much stronger for the appellants than the one to which we refer, for the duties were imposed to collect the tax before the bond was signed.

The question of credit given by the Auditor is before us for our determination. The complaint is that the Auditor credited payment made in reduction of the defalcation to the levee fund; that the whole tax collected during stated months was applied by that officer to the credit of the levee fund. This, it appears, was done by request of the tax collector. Having already determined that the collection by the tax collector of the levee tax gave effect as a mortgage to his bond to the extent of the amount collected, it would serve no purpose to pass upon this question. The officer was bound for all the taxes collected, and his bond operated as a mortgage to secure the payment of all taxes collected by him.

Another objection insisted upon by the plaintiffs, is the direct seizure made of the property owned by them; in other words, it is urged that the plaintiffs should have proceeded by hypothecary action and not by direct seizure, as (they assert) the property at the time of seizure was in the hands of third parties. It is a fact as stated by the plaintiffs, that Cannon, sheriff, became the purchaser of the property in controversy after his bond had been recorded; and that a few days subsequent it was sold to Mrs. Mary Pearce, and that upon her death it descended to the appellees, her heirs. The point here is grounded by the appellee on the fact clearly stated that the lands which had been seized did not belong to Cannon, the principal obligor at the date of the registry of his official bond. That he did not acquire title to the land until after the registry, and that therefore Sec. 354 of the Revised Statutes did not apply, as it limits the pact de non alienando to mortgages on lands which may have belonged to the principal obligor at the date of the registry of his official bond.

In our judgment, the section does not limit the fact to the extent urged by the appellees.

The right to the pact dates from the registry of the bond, but is not limited to that date alone in our view. This court said in School Board vs. Cousin, 31 An. 298: “ For the security of these bonds the law has seen proper as it were to write on them a sweeping clause de non alienando, as provided in 354, R. S.”

We think that it is, as it were, a maximum as to remedy which includes a minimum; covering all property bought and sold, after registry, as well as all property of the sheriff at the time of the registry.

The pact de non alienando is not statutory save in this statute here. It owes its existence to jurisprudence. It has been recognized, as is well known, in a number of decisions.

Interpreting the statute here this court has said that it was as if it had been written in the bond. Case cited ubi supra.

.In another case, Fluker vs. Bobo, 11 An. 609, with reference to the State here, the court held, that it was intended to give to the registry of the bond (as to the property sold, after its registry) the same effect as that conferred in acts of sale by the clause of non-alienation (italics ours), thus including all property on which there is a mortgage by the registry of the bond.

The last of appellee’s grounds is that the property was advertised 4o be sold under a fi. fa. “ on the fourth Saturday, the 20th of June, and that there is no such day in the calendar.”

The appellants here, in effect, admitted the error, and it appears that a re-advertisement was ordered.

It appears of record that the admission of error was made after the injunction had been issued. The state of the facts at the time the writ of injunction issued must be considered, and not facts subsequently happening.

The applicants claim damages for the reason that plaintiffs’ action presents a case of an aggravated abuse of the equitable writ of injunction.

We do not think that damages should be allowed. The writ was not absolutely without any ground. The plaintiffs in the writ have withdrawn the sale of the property included in the erroneous advertisement and have ordered a re-advertisement since the injunction was issued.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed.

It is further ordered, adjudged and decreed that plaintiffs’ injunction be dissolved and all their demands rejected, save the one that the property be not sold before the date of sale is advertised as required — that is, be not sold as it was at first advertised, “on the 20th day of June.”

The appellees pay costs of appeal.


source: Caselaw Access Project

author: Miller, J.

license: Public Domain

text:
    No. 12,381.
    Perkins Bros. et als. vs. Ferdinand Gumbel, Liquidator, and the Sheriff.
    The articles of the Code relative to the payment with subrogation have no reference to the purchase of promissory notes secured by mortgage. C. C., Arts, 2160, 2161; 9 Bob. 476; 13 An. 273.
    The sale of the note secured by mortgage and privilege carries as accessories the privilege and mortgage. O. C., Art. 2615, and 2 La. 576; 13 An. 273.
    A PPEAL from the Tenth Judicial District Court for the Parish of CT. Avoyelles. Lafargue, J. ad hoc.

      J. C. Cappel, Joffrion & Joffrion for Plaintiffs, Appellees.

      G. H. Couvillon and Saunders, Miller, Smith & Hirsch for F. Gumbel, Liquidator, Defendant, Appellant.
    Argued and submitted February 17, 1897.
    Opinion handed down March 29, 1897.
   The opinion of the court was delivered by

Miller, J.

This case was before us on a previous occasion, and was remanded to enable the plaintiff to offer testimony in reference to one of the notes on which he sued. Coco vs. Gumbel, 47 An. 966.

There is a motion to dismiss the appeal, on the ground that the decree remanding the case restricting the issue to one of the notes for one thousand and eighty dollars, the amount involved on this appeal, is insufficient to give this court jurisdiction. But the contest of the plaintiff in the lower court is with other creditors of the defendant for payment from a fund exceeding two thousand dollars, derived from the sale on execution of his property, and the amount of the fund gives this court jurisdiction. Constitution, Art. 81.

The plaintiff, P. Gumbel, liquidator, sues on three notes, made by R. Ooco, for ten hundred and eighty dollars each, maturing 1st of January, 1889, 1890 and 1891, to secure the payment of which there was the vendor’s lien and special mortgage. Plaintiff claims-to have acquired the notes by purchase from the original holder. Subsequently, the property became subject to other mortgages, and when the plaintiff sold the property under his judgment and execution, his right to the fund was disputed by the oppositions of the other creditors, on the ground that the notes had been paid, and thereby the plaintiff’s mortgage and vendor’s lien had been extinguished. Our previous judgment, on grounds unnecessary to be stated, freed the controversy from the objection that the third opposition claiming the proceeds was inconsistent with the denial of any mortgage. Our decree recognized plaintiff’s mortgage and privilege for fhe note maturing in 1891, and as the testimony produced by the opponent tended to show payment, and the note maturing in 1890 had on its back “Received January 3, 1890, from Gumbel Bros. & Meyer, without recourse,” signed by the agents of the original holder, we, at first, giving effect, as we thought, to the testimony, aided by the writing on the back of the note, held that note was paid. On the rehearing we remanded the case for proof as to plaintiff’s demand on this note, maturing in 1890. The case comes back to us with additional testimony on the point at issue.

The only testimony offered to establish the payment alleged by the opponents is that of the maker of the notes. He testifies that he' requested plaintiff to pay one of the notes, maturing January, 1889,. given with the three notes sued upon to his vendor, and it is shownl this note maturing in 1888 was paid. Along with the testimony of the witness that the notes sued upon were paid, is his answer in effect to the question of the source of his knowledge, that they were paid unless “ different from the first note.” It is plain his statement of the payment of the notes sued upon is simply his inference based on the payment by plaintiff of the first note. The witness very frankly states he has no knowledge on the subject other than that he states.

The opponents, however, insist that the transaction which plaintiff claims to have acquired was a payment. By this is meant that the plaintiff firm paid the money for the notes to the agents of the original holders. But the question is whether the money was not paid for the purchase of the notes, as plaintiff maintains. The opponents rely on the articles of the Oode that require a subrogation to the creditor’s mortgage when he receives payment from a third person, and on the line of decisious following the Code, that such payment, without subrogation, extinguishes the mortgage. Civil Code. Arts. 2160, 2161; Nicholls vs. His Creditors, 9 Rob. 476; Washburn vs. Green, 13 An. 332. The articles of the Oode, with reference to payment and subrogation, have no reference to the purchase.of notes or other incorporeal rights. The sale of the note carries the mortgage and privilege securing it. C. C., Art. 2615; Moore vs. Louaillier, 2 La. 576; Oakey & Hawkins vs. Sheriff, 13 An. 273. The plaintiffs do not claim title by payment and subrogation. They allege title by purchase. On that issue we have the writing on the back of the note, “Received from Gumbel Bros. & Mayer ” put on it by the holder when he delivered it to the plaintiff. It is consistent with the purchase, or, at least not inconsistent with it. In the light of the testimony it is to be viewed as an acknowledgment of the money received from plaintiff: We have, too, the testimony of the original holder of his impression the notes were purchased, naturally not very distinct, with reference to a transaction years ago conducted for him by an agent. We have the accounts of plaintiff’s factors of the maker, in which the notes are not charged to him, the natural course if they had been paid. The agents of the original holder from whom the notes were received are dead, but there is the positive testimony of the plaintiffs that the notes were purchased and not paid, the presumption too arising from the presentation of the notes by plaintiff. 3d Randolph on Commercial Paper, Sec. 1438. In our opinion the plaintiff has supported his title to the note the subject for examination under the previous decree.

■ We are asked to treat our decree, remanding the case as to one only of .the notes in controversy, as an error. The subject received our full consideration when the case was before us on the first appeal. On the testimony in the record we reached the conclusion our decree carried into effect.' The decree must stand.

It is therefore ordered, adjudged and decreed that the judgment of the lower court appealed from be reversed and avoided, and it is now ordered, adjudged and decreed that the oppositions be and they are hereby dismissed, claiming to be paid by preference over Ferdinand Gumbel, liquidator, out of the fund derived from the property sold by the sheriff, subject to said Gumbel’s mortgage to secure the two notes of one thousand and eighty dollars made by Ooco held by said Gumbel, maturing January 1, 1890, and 1891, and it is now ordered, adjudged and decreed that the proceeds of said property be paid by preference over said opponents to said F. Gumbel, liquidator, to the full amount of said notes, interest and costs, including five per cent, attorney’s fees.

Mr. Justice Breaux dissents.


author: McEnery, J.

text:
    No. 12,344.
    J. P. Mirandona vs. Nicholas Burg.
    The specific performance of a contract will not be ordered when compensation can be made in damages. Nor will it be decreed when the contract requires the doing of an act solely within the volition of the obligor, such as the signing of a lease, or the appointing of an arbitrator, or the exercising of the option to purchase property.
    APPEAL ‘from the Civil District Court for the Parish of Orleans. Monroe, J.

      Dinkelspiel & Hart and F. B. Thomas for Plaintiff, Appellee.

      W. S. Benedict for Defendant, Appellant.

      Argued and submitted February 18, 1897.
    Opinion handed down March 1, 1897.
    Rehearing refused April 12, 1897.
   The opinion of the court was delivered by

McEnery, J.

The plaintiff and defendant entered into the following agreement:

“ New Orleans, January 18; 1896.
I hereby agree to sell Mr. J. P. Mirandona stock in grocery occupied by me at present, corner Claiborne and St. Anthony, at market value to be appraised by two appraisers, one to be selected by Mr. Mirandona and one by myself. Mr. Mirandona to deposit one hundred ($100) dollars to bind sale. Place to be leased at sixty dollars per month; lease to extend for five years, with a privilege of a.further lease of five years at same terms, and privilege to buy said property at any time during the lease at appraised value.
“ (Signed) N. Burg.”

The plaintiff demands a specific performance of the same. In the lower court there was judgment decreeing a specific performance.

Article 1926, Oivil Code, provides that the obligee is entitled either to damages or, in cases which permit it, to a specific performance of a contract to do or not to do.

Article 1927, C. C., says: Ordinarily the breach of such a contract entitles the party aggrieved only to damages, but where this would be an inadequate compensation, where the party has the power of performing the contract, he may be constrained to a specific performance by means prescribed in the laws which regulate the practice of the courts.

Article 1928, C. C., provides that anything which has been done in violation of a contract may be undone if the nature of the case will permit and things be restored to the situation in which they were before the act complained of was done, and the court may order this to be effected by its officers, or authorize the' injured party to do it himself.

By reference to Sec. 11, Oode Practice Art. 680 ef seq: “ Of the execution of judgments,” it will be seen that the obligation entered into by the parties is not of that kind that can be enforced in the way of a decree of specific performance.

The sheriff would not be able to deliver the specific object, the delivery of which was ordered.

The parties to the agreement have to select each au appraiser, and ^rom the appraisement the price of the thing has to be fixed. Besides there is to be a lease contract entered into with the privilege of buying the leased premises.

There is in the decree appealed from that intrenching upon the personality of the obligor that is repellant to our system of jurisprudence.

In case of Laroussini vs. Werlein, 48 An. 18, we said: “The principle is appealing that in the matter of the discharge of obligations by the debtor personally, he can not be compelled to act against his will; that his liberty must be respected.”

In all its phases this case comes directly under the rulings of the case referred to. We can not compel the defendant to appoint an appraiser, nor can we compel an acceptance of the price and ascertain the market value of the stock from such appraisement. The appraisers may not agree and we can not appoint an arbiter. We can not compel the signing of the rent notes, nor can we compel the enforcement of the option to purchase the property leased.

The case is one for damages, for the inexecution of an obligation. No decree of specific performance could be equivalent to the doing of the act required to be performed.

The judgment appealed from is annulled, avoided and reversed, and it is now ordered that plaintiff’s suit be dismissed without prejudice to further judicial proceedings in asserting what rights he may have under the contract.


author: Breaux, J.

text:
    No. 12,351.
    Lewis Baillie & Co., Limited, in Liquidation, vs. Western Assurance Company of Toronto.
    The plaintiff sued for amount due on property destroyed by fire.

      Appraisement Waived. — Haviug in the answer denied ail liability, the defendantwas without right to sustain the plea of want of appraisement as a condition precedent to filing suit, although the policy contained a stipulation relating to appraisement.

      The Defendant's Denial of Liability was in Effect a Waiver. — If the defendant was not liable there was nothing to appraise. Moreover, there was no such demand made to at once proceed with an appraisement as the law contemplates should be made by one claiming an appraisement under the terms of a policy.

      Proof of Loss. — Acts do not give rise to a presumption o £ Iraud if they could be accounted for on the basis of good faith and honesty,

      Liquidators for Plaintiff. — The right of parties to represent a corporation not contested in the court of first intanee can not be examined on appeal.

      Evidence of Value. — From necessity the opinion of ordinary witnesses acquainted with the value of property is admitted, although they are not experts in mat ters of value.
    A PPEAL from the First Judicial District Oourt for the Parish of Oaddo. Land, J.

      Bell & Randolph, Wise & Herndon and Alexander & Blanehard for Plaintiffs, Appellees.

      William Thompson for Defendant, Appellant.
    Argued and submitted January 20, 1897.
    Opinion handed down February 1, 1897.
    Rehearing refused April 12, 1897.
   The opinion of the court was delivered by

Breaux, J.

The defendant insured fixtures of the plaintiff, of a drug store, occupied by the latter.

The amount of the policy was twenty-five hundred dollars, less the three-fourth value clause.

The premises were destroyed by fire.

Plaintiff brought this suit for the amount of the policy.

The plaintiff alleged that the required notice was given and proof of loss prepared and forwarded to the defendant within sixty days from the date of the fire, and that more than sixty days had elapsed since the proof of loss had been delivered.

Further, the plaintiff alleged that it has complied with all obligations imposed by the contract and policy of insurance.

The defendant relies upon two grounds. The first is:

That no appraisement had been made in the manner specified in the policy.

The second is:

Incorrect and untrue statement of the assured.

It is also alleged in the answer that the loss did not amount to or exceed two thousand dollars. The fact is, that appraisers, in case of differences, were to determine the amount' of loss by fire.

The policy stipulates: The loss shall not “become payable until sixty days after the notice, ascertainment, estimate and satisfactory proof of loss herein required have been received by this company, including an award by appraisers, when appraisal has been required, and that no suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity until after a full compliance by the insured with all the foregoing requirements.”

As bearing upon the necessity of appointing appraisers as a condition precedent to the suit, we note the fact that the adjuster on the ground, offered nineteen hundred dollars, and some time after, again when present at Shreveport, he offered two thousand dollars, which the plaintiff declined to accept. The defendant, by the appraiser, made the offer without admitting that it was indebted for that much.

The plaintiff in due time forwarded the proof of loss.

The defendant acknowledged the receipt only a few days before the sixty days had elapsed from the date it had been received, and in its answer it objected to the proof of loss as incorrect and unsatisfactory; it required a schedule of articles covered by the policy. The defendant further demanded full compliance with the contract and exacted an appraisement. The letter expressly reserved, in conclusion, “ all the rights under our policy and without waiver or admission of any description.”

The schedule was forwarded in compliance with defendant’s demand. The defendant in its pleadings does not admit the validity of the policy or its liability in any amount. In other words the issue was not limited to a question of amount of defendant’s indebtedness.

On the contrary, in its answer the defendant denies all and singular the allegations contained in plaintiff’s petition.

The facts as relate to the alleged untruthful statement are in the schedule furnished by the plaintiff to the defendant. There were included “one cash register, one hundred and twenty-five dollars; three trunks, forty-eight dollars, and five show-cases, estimated at two hundred dollars.”

We are informed that the fire destroyed all the books of the assured, save the cash book and ledger of date subsequent to July, 1893.

In making the inventory of goods purchased originally, the data were, it appears, not entirely exact, owing to the loss of plaintiff’s books. The facts needful in the premises, as we are led to infer, were all submitted to the adjuster before the plaintiff furnished its proof of loss. From a judgment condemning it to pay the amount of two thousand dollars, the defendant prosecutes this appeal.

The question of appraisement as a condition precedent vel non, to filing a suit for recovery on the policy is the first before us for our determination. The policy issued by the defendant contains the stipulation that notice of proof shall be furnished to it,-preceded by an award of appraisers, “ when appraisal has been required.” Some time after the loss, and after its agents were at some considerable distance from the place of loss, the insurer by letter demanded an appraisement There was no offer made by it to name one of the appraisers and to proceed to the appraisement. The clause of the policy appears to have been considered by the defendant company as a condition precedent, the performance of which was left entirely with the assured, who were to be left to themselves, without suggestion or offer of any kind from the assurer. In a similar case, upon this point, it was said: “But it can not be contended that in such a case as this an appraisal of the loss is an absolute sine qua non to the bringing of a suit, If it were, all that an insurance company would have to do in order to avoid payment of a loss against which it had insured its patron would be to refuse to name an appraiser, or otherwise arbitrarily prevent an appraisement.” 62 Fed. Rep. 257.

A stipulation for an appraisement should have for its sole object the ascertainment of the amount of the loss. The stipulation ceases to have force where the insurer disputes to the insured the right to recover anything at all under the policy. We think the conclusion reasonable: in the presence of an absolute refusal to pay anything, the assured should have the right to file a suit and maintain an action for the loss. That a denial of all accountability leaves nothing to arbitrate. On the refusal of the defendant to pay, and in the presence of defendant’s neglect actively to avail itself of the stipulation in regard to the appraisal, the plaintiff might well infer that nothing was left for him to do save to sue, and have any right he had passed upon by the courts. Millaudon vs. Insurance Co., 8 La. 557, 562. See also upon this point, Hamilton vs. Liverpool and London and Globe Insurance Company, 136 U. S. 242; Hamilton vs. Home Insurance Company, 137 U. S. 370; Wood on Insurance, 2d Vol. 1013; Beach on Insurance, 1st Vol., Sec. 200; 2d Vol. 1247.

The defendant insisted that an untrue proof of loss had been furnished and that the untruthful statement had the effect of invalidating the policy.

The proposition that wilful swearing, with the view of deceiving the assurer, will defeat the right of recovery, does not admit of any question. It must be made evident, however, that the alleged false swearing was intentionally committed.

The burden of proving the truth of the allegations of fraud rests on the defendant. Fraud is never to be presumed from acts which maybe accounted for on the basis of honesty and good faith. To avoid the policy it must appear that the intention was to defraud.

National Bank vs. Insurance Company, 95 U. S. 673; May on Insurance, Secs. 443, 447; Wood on Insurance, Secs. 451, 455; Balestracci vs. Ins. Co., 34 An. 344; Daul vs. Ins. Co., 35 An. 98; 2 Beach, Sec. 808.

With reference to the cash register, one of the articles not destroyed, the book-keeper testified that it was not in the building, •and it was not destroyed by fire as it was being repaired at some distance from the store; it was brought back some time after the fire, which accounted for the oversight in his charging it on the schedule of articles of property destroyed by fire. As to the show-cases and two empty trunks we agree with the District Judge that the omission may have been the result of inadvertence, and is not gross enough to justify a presumption of fraud. After having considered all the evidence upon this point we have not found that there was wilful intention (o gain an advantage by false swearing.

The defendant in the brief complains of the judgment, because no proof was made, it is insisted, of any right in W. A. Baillie to bring suit, either as liquidator or assignee, the policy having been issued to Lewis Baillie & Co.

The facts are that the suit was brought by Baillie, Ledbetter & McOranej', who alleged that they had been appointed and had qualified as liquidators of Lewis Baillie & Co., Limited, a corporation.

The pleadings did not deny that there was such a corporation. The general denial or the special demurrers did not put at issue the capacity of the liquidators. The right of parties to represent a corporation, not contested below, can not be examined on appeal. Player vs. Tarkington, 4 An. 396.

Lastly, the objection of defendant was to the evidence of a witness, admitted over objection, to testify as to the value of property; the objection was that his examination disclosed his unfamiliarity with values such as was involved in the ease.

The witness was not examined as an expert. It has been held on authority and reason, that the opinions of ordinary witnesses acquainted with the value of property are often admitted from necessity, even though their knowledge is not the result of peculiar skill.

The judgment appealed from is affirmed.


text:
    No. 12,323.
    Smith Bros. & Co., Limited, and Gentry Bros. vs. W. J. Athens Lumber Company, Limited.

      Amending Judgment at instance of Appellee. — While it is true that appellees can not have a judgment amended inter se, a judgment may be amended between one of the appellees and the appellant, on the former’s anwer to the appeal, if the amendment does not affect the interest of his co-appellees.

      General Privileges. — Although different properties are covered by two mortgages, in an insolvency the general privileges must be borne by the junior mortgage, if the proceeds of unencumbered property are not sufficient to satisfy the general privileges.

      Clerk's Salary. — The claim for clerk’s salary, prior to insolvency, not recorded, is not secured by privilege on the immovable property of the insolvent.
    A PPEAL from the Civil District Court for the Parish of Orleans. ñ. Théard, J.

      Henry P. Dart and Benjamin W. Kernan for Henry Wellman, Opponent, Appellee.

      Harry H. Hall and N. R. Roberts for J. A. Fay & Co., Opponents, Appellees.

      F. L. Richardson for New Orleans National Bank, Opponent, Appellee.

      Mercer W. Patton for F. W. Bandy, Opponent, Appellee.
    Argued and submitted on briefs April 2, 1897.
    Opinion handed down April 12, 1897.
   The opinion of the court was delivered by

Breaux, J.

The liquidator of the W. J. Athens Lumber Company, Limited, filed an account of his administration.

Seven oppositions were tendered to the account. The questions raised were considered and passed upon and the account subsequently waB approved in accordance with the views of the court a qua and a judgment rendered.

One of the opponents, Henry Wellman, appealed from the judgment of homologation. He was a mortgage creditor of the insolvent company; this mortgage was a junior mortgage. The decree ordered that the costs of administration be paid out of the proceeds of unencumbered property. The amount of the sales of unencumbered property was not large enough to pay the cost of administration. There remained unpaid, after supplying the amount as just stated, the sum of six hundred and seventy dollars and ninety-four cents, which balance the court ordered to be'paid out of the proceeds of the mortgaged property, by preference over the mortgage creditors.

The appellant does not object to the ruling, but on the contrary admits that the amount, his proportion, is correctly charged.

In the account it is fixed at three hundred and forty-nine dollars and twenty-nine cents. The proportion of another creditor, the New Orleans National Bank, whose claim is^secured by mortgage preceding the Wellman mortgage in rank, is three hundred and twenty-seven dollars and fifty-one cents.

The last named creditor is an appellee before this court. It urges as a reason why it should not be charged with the sum last stated, that the mortgage junior in rank should be required to pay the two amounts just stated: expenses of administration, without regard to the fact that the mortgages rest against different tracts of land.

We have noticed that the creditor whose mortgage is first in rank does not appeal, but filed an answer before this court, asking that the judgment be amended so as to relieve him from the contribution of three hundred and twenty-seven dollars, and fifty-one cents, the only amount involved in so far as it is concerned on appeal.

The appellant, opposing this demand to amend, avers that the amendment can not be made on an answer. That the creditors other than this appellee, and the appellee himself, are all co-appellees and an appeal is the remedy.

The appellant Wellman, in the District Court, opposed items for the salaries of clerks, on the ground that if due, they were not privileged.

This opposition having been dismissed, the account as amended! and reinstated by the Judge of the District Oourt, was homologated.

We take up the first issue for our determination, growing out of appellants’ objection to an amendment of a judgment on the answer of one of the appellees, affecting the interests of the co-appellees.

It is true, this court is seized of jurisdiction to amend a judgment, as between appellant and appellee, and not as between the appellees, but we do not understand in this case that the answer, praying an. amendment filed by one of the appellees, can, in any manner, affect the rights of the other appellees. The question is exclusively one between the appellant and the appellee praying for an amendment of the judgment. Be the result what it may between the appellant and this appellee, not one of the other appellees will receive less on his claim. Whether the mortgage prior in rank shall suffer a contribution in favor of the law charges and otfier expenses of administration, is the only issue.

The proceeds of unencumbered property had been applied to the payment of cost. The appellees, other than the mortgagee Well-man, have interest in the contribution which must be made to pay the balance.

The position may be summed up thus: The mortgage creditor* appellee, says to the creditor with mortgage junior in rank: “Your mortgage must be charged with this amount and not my mortgage.”

Be the answer and result what it may, the other creditors are-without interest.

Two appellees with concurrent rights, one remaining silent and; the other seeking to have the judgment amended, the case would be-different. The rule invoked by the appellant would apply. Here-no interest of any other appellee, prior, concurrent or subsequent,, is involved.

The next issue in the case involves the application of the principle that the first mortgage creditor, having his mortgage upon a single immovable, has in the event of insolvency the right to-insist that the proceeds of the movables and of the immovablesupon which rest mortgages junior in rank, be exhausted before his fund can be made to contribute to the payment of the general privileged claims. The mortgage of the appellant we have seen was» the junior mortgage. The decisions invariably hold that the junior mortgage must contribute the required amount. Devron vs. His Creditors, 11 An. 482; Deverges vs. His Creditors, 18 An. 169; Succession of O’Laughlin, 18 An. 142; Ventress vs. His Creditors, 20 An. 359; Succession of Rousseau, 23 An. 3; Succession of Marc, 29 An. 414. It follows that the amount of three hundred and twenty-seven dollars and fifty-one cents, heretofore charged to the appellee, must be charged to the appellant.

This brings us to the objection of appellant to the salaries of three clerks, amounting to five hundred and seventy-three dollars and fifty-one cents, viz.:

Bondy......................................................................................................$253 70
LeBlane................................................................................................. 142 00
Navra.................................................................................................... 177 81

The record does not show that these claims were recorded, nor does it appear that the services for which salaries are claimed were rendered after the insolvency had been declared. These claims were all opposed. The onus of proof was with these creditors. We are compelled to hold that they have no privilege whatever, as against immovable property, since it does not appear that their claims were recorded.

The law is clear, no privilege on immovable property, such as here claimed, shall affect third persons unless dulyr recorded.

These claims were numbered 40, 41, 42 in the account and were charged to items 12 aud 13 of assets in their proper proportion. These last-items, assets, cover the immovable property upon which the appellant had a mortgage.

It is ordered, adjudged and decreed that the judgment appealed from be amended oy crediting the appellee, the New Orleans National Bank, with the amount of three hundred and twenty-seven dollars and fifty-one cents, and debiting the appellant, Henry Well-man, with the sum of three hundred and twenty-seven dollars and fifty-one cents.

■ It is further ordered, adjudged and decreed that the claims of Bondy for two hundred and fifty-three dollars and seventy cents, of O. L. LeBlane for one hundred and forty-two dollars, and L. J. Navra for one hundred and seventy-seven dollars and eighty-one cents, be not charged to said items 12 and 13. The claims of these three clerks for salaries in so far as relates to a privilege on appellants’ property are dismissed.

The liquidator’s account and the judgment of homologation having been amended, as amended the judgment is affirmed at appellees’ costs.


text:
    No. 12,436.
    The State vs. M. Keaveny.
    An application for time to file a rule for new trial is properly refused when based on an affidavit of newly discovered testimony only contradictory, in its character, and on other testimony when no diligence is shown to have been used for obtaining the testimony on the trial.
    APPEAL from the Criminal District Court for the Parish of Orleans. Baker, J.

      M. J. Cunningham, Attorney General, and R. H. Marr, District Attorney, for Plaintiff, Appellee.

      J. Q. Flynn for Defendant, Appellant.
    Submitted on briefs March 6, 1897.
    Opinion handed down March 29, 1897.
   The opinion of the court was delivered by

Miller, J.

This is an appeal from the sentence following the verdict of guilty against defendant on an indictment for inflicting a wound less than mayhem.

The appeal comes here with no bill of exceptions reserved during trial. The reliance of counsel for the accused is on his application for time to prepare affidavits and file a rule for new trial and the bill reserved to the denial of the application. The application and affidavit in its support assigned as grounds the discovery of material testimony since the trial. The testimony, it is claimed, would prove statements of the deceased at the time of the cutting, contradicting the testimony of the police officers who testified against the accused, and another witness, an eye-witness, it is claimed, would confirm •the statement of the accused.

The law gives the accused ample opportunity to prepare for his defence and exhibit it by testimony before the jury. When after conviction, an application for new trial is made, on the ground of newly discovered testimony, the law exacts that due diligence must be shown why the testimony was not produced on the trial. It is further required the names of the witnesses and the materiality of their testimony should be exhibited. It is settled that the mere production of contradictory evidence affords no basis to give a new trial. Here, instead of a rule for new trial there is only an application for time to frame an application, manifestly, we think inadmissible and open to the objections to which the rule for new trial would be subject.

It is therefore ordered, adjudged and decreed that the sentence of the lower court be affirmed.


author: Watkins, J.

text:
    No. 12,372.
    William Grant vs. John A. Buckner.
    A party who is proceeded against in a State court by a receiver in a Federal court for the payment of rents due, may plead in compensation and extinguishment thereof, a sum said receiver has previously collected in excess of what he was entitled to have received.
    APPEAL from the Seventh Judicial District Oourt for the Parish of East Carroll. Montgomery, J.

      C. S. Wyly and J. D. Rouse for Plaintiff, Appellant.

      Joseph E. Ransdell and Saunders & Miller for Defendant, Appellee.
    Argued and submitted January 23, 1897.
    Opinion handed down February 15, 1897.
   The opinion of the court was delivered by

Watkins, J.

This is a suit for rent, and it was defended mainly upon the plea of offset or compensation, and on the trial there was judgment in favor of the plaintiff for the amount of the debt, and a corresponding judgment in favor of the defendant, one judgment compensating and extinguishing the ocher. From that judgment the plaintiff prosecutes this appeal.

The facts necessary to be stated are very fairly recited in the original brief of defendant’s counsel, and to which there appears to be no objection urged on the other side, and consequently we append an extract therefrom as. furnishing an historical resumé thereof, viz.:

“The present suit grows out of a receivership proceeding which has been pending for many years in the United States Circuit Court for the Eastern District of Louisiana.
“ The controlling facts bearing upon this testimony may be briefly stated.
“Oliver J. Morgan was, in ante-bellum times, a rich planter, owning five plantations in Carroll parish, Louisiana. His wife died intestate, in 1844, leaving but two children. All the property standing in her husband’s name at the time of her death belonged to the community of acquets and gains that existed between them. Her two children, therefore, as her sole heirs, became, on her death, the owners of her undivided one-half of the community property.
“Mr. Morgan, however, wished to settle, during his own lifetime, the rights of his two children in his wife’s estate and his own. In execution of this design, he conveyed, in 1858, certain property to Mrs. Julia Morgan, one of his daughters, then living, partly as a donation from himself and partly in satisfaction of her rights as one of her mother’s heirs. And to the children of a pre -deceased daughter, Mrs. Kellam, he made a similar conveyance of other property, partly as a donation and partly in satisfaction of their rights as heirs of Mrs. Kellam. The defendant, John A. Buckner, is now the sole representative and heir of the interest of the Kellam children.' Melbourne plantation was the property so conveyed and donated by Mr. O. J. Morgan to the children of his pre-deceased daughter, Mrs. Kellam, in satisfaction of their interests in his wife’s estate and his own. Mr. Morgan died in 1860, and there was then no question as to the enormous solvency of his estate. But as the result of the war partly from the emancipation of the slaves and partly for other causes, the value of the estate was greatly decreased by 1867. In that year an administration of the estate of Oliver J. Morgan was opened and all of his property sold. At these sales the heirs bought in the plantations so as to continue owning them in the same manner as had been intended by, Mr. Morgan.
“ Some years after these sales Gay, a personal creditor of .Oliver J. Morgan, and not of the community, filed a bill in equity in the Federal Circuit Court to set the probate sales aside on the ground of fraud. After along litigation the probate sales were set aside. Rut the avoidance of these sales simply subjected the community interest of the succession of Mr. O. J. Morgan in the several plantations to the pursuit of his creditors, bub did not forfeit or affect the interests of the descendants of his two daughters to their mother’s rights in the community. It became, therefore, incumbent on the Federal court to determine in what proportion and by what title the several plantations belonged to the heirs of Mrs. O. J. Morgan, and in what proportion they belonged to the succession of Mr. O. J. Morgan, her husband. The determination of this question was complicated by the fact that the plantations and their equipment constituted a part, and not the whole, of the community property as it had existed from Mrs. Morgan’s death, in 1844, to her husband’s death, in 1860, the slaves and much other property having disappeared during the war. It was further complicated by the fact that each branch of Mrs. Morgan’s heirs had accepted from her husband, after her death, specific property in satisfaction of their interests in her estate, and that the whole of the property so accepted had from that time on been in the possession and enjoyment of the heirs.
“The Supreme Court of the United States finally adjusted the interests of the heirs and of the creditors. Mellen vs. Buckner (139 United States, 410). In this adjustment it was decreed that John A. Buckner, as sole surviving representative and heir of one branch of Mrs. Morgan’s' heirs, should be recognized as owner of one-half of Melbourne plantation, and that the other half of said plantation should be liable for the personal debts of Oliver J. Morgan. The decree was silent as to the ownership of the revenues of the plantation, bub contains nothing indicating that the revenues were not to follow the title. The decree of the United States Supreme Court recognized that the acts of donation and conveyance executed by Mr. O. J. Morgan in 1868 were valid in so far as they conveyed specific property to his wife’s heirs in satisfaction of their interest in her estate, but held that they were void in so far as they purported to be donations of property of his own. That this is the effect and meaning of (that decree has been declared by the Circuit Court. The result, therefore, of this decree is to establish that John A. Buckner, or those of whose rights he is now sole heir, have been, since 1858, owners of an undivided one-half of Melbourne plantation. The decree simply ascertains and declares the fact as it had always existed.
“Before the final decree of the United States Supreme Court in 1891 (Mellen vs. Buckner, 139 United States, 388), all the plantations had been in charge of a receiver appointed by the Federal Court in the suit to set aside the probate sales. This receiver had rented Melbourne plantation as an entirety to the defendant, John A. Buckner, for the years 1886, 1887, 1888 and 1889, and by his admission (Tr., p. 63) had collected from him nine thousand nine hundred dollars, as the rent of the whole of said plantation for said years. According to this showing, the receiver, acting as receiver, had collected from Buckner, for rent, four thousand five hundred dollars more than he was entitled to collect during the years 1886 to 1889.-He now brings this suit to collect from Buckner the rent for one-half of Melbourne plantation for the years 1891 to 1892; one-half of the taxes on Melbourne for those years, and a trifling sum for the rent of some other property, aggregating in all two thousand and fifty dollars and twenty-two cents.
“To this demand Buckner pleads in compensation and reconvention the amount due him by the receiver, about four thousand six hundred and fifty-four dollars and twenty-five cents. The lower court allowed the plea, so far as required to extinguish the claim propounded by the receiver in this suit, but did not give judgment-over against the receiver for the surplus (p. 75).
“ The contention of the defendant is that the plaintiff, in his capacity as receiver, has already collected from him (defendant) more than double the amount now sued for; that this amount was collected by the receiver as rent for the very plantation, for additional rent of which this suit is brought; that on a full accounting of rents due to and collected by the receiver from defendant for rent of Melbourne plantation, the receiver has been overpaid by several thousand dollars; that what the plaintiff owes defendant is due in his-capacity as receiver for money actually paid by defendant to plaintiff since his (plaintiff’s) appointment as receiver, and which, having been unjustly collected, should be at once withdrawn from the funds of the receivership and returned to defendant.”

In response to this plea the plaintiff argues:

“ That the decree of the United States Supreme Oourt gave defendant one-half of Melbourne plantation in payment and satisfaction of a debt due him by the succession of O. J. Morgan, but did not give him the revenues accruing therefrom antecedent to the gift.”

As explanatory of the situation of - affairs in the United States Circuit Oourt we append the following decree of that court, which ■embraces the primary subject of the contestation in the instant case. It is as follows viz.:

“ United States Circuit Oourt, Eastern District of Louisiana.
“ D. O. Mellen, Administrator, etc.
vs.
“ Oliver J. Morgan, Testamentary Ex., etc., et al.
John A. Buckner et al. vs.
“ D. O. Mellen, Administrator, etc.
“ Naroisse K. Johnson, et al.
“ D. O. Mellen, Administrator etc.
>-All Consolidated.
“ On application of John A. Buckner ef al. for a partial rehearing.
“ The decree complained of, and the master’s report upon which the decree is based, are founded on the proposition that in the main case, originally, Gay, Administrator, etc., vs. Morgan, Dative Testamentary Executor, etc., et. al., the complainant for himself and the -other creditors recovered from the estate of Oliver J. Morgan, deceased, and brought into court as a fund to be distributed to the creditors and claimants of such estate,- a large landed property belonging to said Oliver J. Morgan, situated in Oarroll parish, State of Louisiana, and consisting of five plantations contiguous to each -other, to-wit: Wilton, Melbourne, Westland and Morgan.
“ The opinion of the Supreme Oourt, rendered in the case and reported in Johnson vs. Waters, 111 United States, 640, in connection with the decree there directed to be entered, seems to support such proposition.
“ The only reservation referred to in the opinion found in the decree directed is thus stated in the decree:
“The said master may apply to the court from time to time for further .directions, which are hereby reserved, especially as to the ■question whether the succession of Julia Morgan, deceased, is entitled to any portion of the proceeds arising from the sale of said lands by virtue of the act of sale and donation made to her by Oliver J. Morgan in 1858, so far as the said act was a sale and not a donation.
“The opinion of the court is clear that the act of 1858 was void as a donation, and it apparently intimates, as this court afterward decided, that it was equally void as a sale. The opinion and decree of the Supreme Oourt, however, rendered in the consolidated cases-of Mellen vs. Buckner and Mellen vs. Johnson, reported in 139 United States, 388, when carefully read and considered in the light of the facts and circumstances of the case, puts a different view upon the matter. In that case the act of 1858, while still held to be-void as a donation, is held to be valid (as a sale or appropriation) for so much of the lands in question as were received by the heirs of Narcisse Deeson in payment of the debts due by them on account of the interest Narcisse Deeson had as the wife of Oliver J. Morgan in the community property, and it is said that this was substantially the view which the court entertained, -although not fully explained in the case of Johnson vs. Waters.
“ And the Supreme Oourt, probably, in order that no further mistake might be made as to the scope and effect of their opinion, rendered a specific decree in which after consolidating the causes then before the court with the principal case of Gay, Administrator, vs. M. F. Johnson, Executor, etc., and by way of supplement to the decree in said principal case, it was among other things decreed that the heirs of Julia Morgan, deceased, and of Oliver H. Kellam,. deceased, as creditors of the estate of Oliver J. Morgan be rejected, and that in place of such supposed claims the said heirs were entitled to have and retain a certain claim portion of said Oliver J. Morgan’s estate, free from the claims of his creditors, to-wit: one two-fifths of the other four plantations to the Julia Morgan heirs; the decree then provides that all the remaining interests in said plantations shall be subject to the payment and satisfaction of the debts due to the creditors who shall have established their debts before the master in said original suit, and then for a partition in kind, or by liei - tation, as the said heirs should direct.
“ From this last opinion and decree of the Supreme Oourt in the matter, we are forced to conclude that the portions of lands set off and adjudged to the heirs of Julia Morgan and heirs of O. H. Kellam, Jr., were so si t off and adjudged, to them as the owners thereof in their own right, as the heirs of Julia Morgan and O. EL Kellam, Jr., who were the heirs of Narcisse Deeson, the wife of Oliver J. Morgan, and not to them in any way as the heirs of Oliver J. Morgan, or as creditors or claimants of his estate.
“ This would be very clear to us were it not for the increase of about fifteen per cent, allowed to the heirs of Julia Morgan and about seven per cent, allowed to the heirs of Oliver H. Kellam, Jr., over the portions said by the Supreme Court to have been acquired by them under the act of 1858, so far as it was valid, which increase was certainly taken out of the estate of Oliver J. Morgan, but which was considered' admissible by the court on general principle of equity.
“To the extent of this increase the heirs of Julia Morgan and Oliver EL Kellam, Jr., participated in the fund recovered in the original ease of Gay, Administrator vs. Morgan, Executor, et al., but the careful reading and consideration of which we have given the opinions and decrees of the Supreme Court, and particularly the supplemental decree in all the cases consolidated, give us the firm impression that the court intended to hold and declare that the portions recovered by said heirs were theirs of right, and that they were to have them not only free of the claims of creditors of the estate of Oliver J. Morgan, but free from all costs and claims, except as in the several decrees adjudged, and as thereafter might be necessary in effecting partition.
“It follows that the petition of the Kellam heirs for a rehearing of the final decree, rendered June 2, 1893, should be granted, but only granted so far as said heirs are concerned, unless the maintenance of the exceptions filed by them necessarily required a revision of the decree of distribution. If such revision is not necessary, then it seems that, as we have fully examined the question of the liability of the Kellam heirs to contribute to the expenses in the original suit of Gay, Administrator, vs. Morgan, Testamentary Executor, we may now grant an order granting a limited rehearing, and at the same time pass a decree sustaining the exception of the Kellam heirs, but otherwise maintaining the decree of June 2, 1893, and thus put an end to the long litigation of the case as far as this court is concerned.
“ (Signed) Don A. Pardee, Circuit Judge.
“ Judge Parlange concurs.
“April 17, 1895.”

Vide Johnson vs. Waters, 111 U. S. 640; Mellen vs. Johnson, 139 U. S. 388.

From the ioregoing opinion and statement of facts, it is clear that prior to the final adjudication by the Supreme Court of the relative rights of the respective parties, all of the plantations involved in the litigation had been under the control and management of the receiver, and that he had rented the entire Melbourne plantation to the defendant, John A. Buckner, for the years 1886, 1887,1888 and 1889, and had collected rents of him therefor, aggregating nine thousand nine hundred dollars in amount — that is to say, four thousand nine hundred and fifty dollars more than he was entitled to collect during those years.

As the present suit involves the rent of the years 1890 and 1891, and some small arrearages of taxes, the defendant pleads, in compensation and extinguishment thereof, a sufficient amount of said sum in excess, to satisfy the receiver’s demands.

In this court the defendant and appellee has answered the plaintiff's appeal, and prayed that the judgment appealed from be so amended in his favor as to reserve him “ the right to demand and recover from said William Grant, receiver, the difference between the amount required to compensate the demands of the said William Grant, receiver, set up in this suit, and the amount due to said John A. Buckner, by the said Wm. Grant, receiver.”

• It seems to us to be perfectly apparent that the decree of the court recognizing the right of the heirs of Julia Morgan to one-half of the Melbourne plantation, ofneeessity carried therewith a right to a proportionate amount of its annual revenue and equally so the right to demand of the receiver a restitution of the amount he has unduly received.

We are of opinion that the defendant has th.6 right to urge the plea of compensation to an amount sufficient to relieve himself from personal liability to the plaintiff. As the receiver has sought the enforcement of his demands in a court of the State, he can not, at the same time, turn the defendant around to another recourse in the United States Circuit Court.

The demand in compensation herein made is but a claim to discharge a present obligation for the rent of two years now due, by the application thereto pro tanto of the avails of previous years during which the receiver collected a greater sum than he was entitled to have received. Beattie, Syndic, vs. Scudday, 10 An. 404; Mercer Admr., vs. Lobit, 10 An. 47; Lemane vs. Lemane, 27 An. 694.

The doctrine quse temporalia sunt applies to the defendant’s demands. What he might not use as a sword he may use as a shield.

We are of opinion that defendant is justly and equitably entitled to compensation.

That while admitting possession of rents taken from the defendant to a greater amount than he was entitled to receive, the receiver can not stay the defendant’s demand in compensation, as a means of enabling him (the receiver) to still further increase his receipts and relegate him to another tribunal for ultimate settlement thereof.

The judgment should be so amended as to conform to the answer of the appellee, and as thus amended, the same should be affirmed.

It is therefore ordered and decreed that the judgment appealed from be so amended as to reserve the defendant’s right to demand of and receive from the plaintiff the residue of the amount of the rents he has collected in excess of the sum actually due by the defendant, after a sufficiency thereof has been used to extinguish by compensation the demands of said receiver in this suit; and that as thus amended same be affirmed at the cost of the plaintiff and appellant in both courts.


author: Breaux, J. McEnbry, J. Breaux, J.

text:
    No. 12,325.
    State ex rel. Crescent City Railroad Company vs. A. C. Bell, City Engineer.
    In the first contract between the plaintiff and the municipality, that the lines and levels of the contemplated road would be furnished by the surveyor.
    That duty is incumbent upon that officer, under the terms of the contract. He can not in law decline to act before he is stopped by the legal action of the constituted authorities.

      Mandamus lies to compel the performance by an officer of dutiespurelyministerial.
    The defendant joined issue on the merits.

      McEnery, J., dissenting: When the public officer is to be reached by mandamus, it must be when liis duties, which are sought to be enforced, are public, clear and unequivocal, in which there is no latitude for the exercise of his discretion.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      Farrar, Jonas & Kruttschnitt for Relator, Appellee.

      James J. McLoughlin, Assistant City Attorney, and Samuel L. Gilmore, City Attorney, for Defendant, Appellant,

      Henry P. Dart, amicus curiæ, submits a brief.
    Argued and submitted February 5, 1897.
    Opinion handed down February 15, 1897.
    Rehearing refused (reasons assigned) April 12, 1897.
   The opinion of the court was delivered by

Breaux, J.

The relator applied for a writ of mandamus to compel the Oity Engineer to furnish it lines and levels, for the construction of its railroad through the neutral ground of Carrollton avenue, from Second to Fourth streets.

The relator claimed that it owned a railroad franchise and that subsequently the Oity Council passed an ordinance, under which certain changes were made in the matter of the line of the railroad; that instead of the right to use either Fourth or Second street from Broadway to the upper terminus, it was ordained that it shall construct its road on Second from Broadway to Carrollton avenue, thence through the neutral ground of Carrollton avenue to Fourth, thence along Fourth street to the parish line. The relator alleged that the whole road has been completed except that portion which runs through Carrollton avenue from Second to Fourth street; that the whole of the line has been for some time operated from the lower terminus up Second street to Carrollton avenue, and relator is anxious to connect its line so as to operate its line from terminus to terminus.

The respondent returned in answer to the preliminary order issued on the application for a mandamus, that it was not his duty to deliver to relator lines and levels, because the amending ordinance under which the relator claims a franchise has been repealed by the City Council.

If it has not been repealed, then relator sets up that relator’s allegations are vague and indefinite, and that they do not indicate upon what neutral grounds to establish the lines and levels; that they do not designate upon which of the three strips of neutral ground on Carrollton avenue the tracks are to be laid.

And, lastly, the grounds are that the relator has no contract with the city and holds no franchise from the city; that the alleged contract is void.

As a question of fact, it is not disputed that the relator has constructed its line of road as alleged in its petition.

The ordinance under which relator claims a franchise was considered and discussed in the ease of Crescent City Railroad Company vs. New Orleans & Carrollton Railroad Company, 48 An. 856, 866. It relieves us from the necessity of discussing at length the original ordinance, under which the relator acquired its franchise.

It is also a fact that relator accepted the terms and conditions of the ordinance.

Subsequently, the council took it in hand to repeal the ordinance granting the franchise claimed. It appears that the action of the City Council was made final after the service of the alternative writ of mandamus upon respondent. If there is a right of action, no question is raised as to the want of authority to proceed by way of mandamus; in other words, it was not contended that the relator had mistaken its remedy. Prom the specifications made part of the first ordinance we extract: “This road shall follow the route described in the above ordinance, and indicated in the accompanying plan. The full red lines in said plan shows the route proposed, and the dotted red lines the route which the purchasers have the option of using.”

“ It shall be built on lines and levels given by the City Surveyor.”

Prom a judgment making the writ of mandamus peremptory the respondent prosecutes this appeal.

The repeal of the ordinance vel non, authorizing a change in the route of the road, is the first question before us.

The council had entered into a contract with relator, and adjudicatee of a franchise. So far as the record reveals, the relator had complied with the terms of the adjudication; the amount of the bid had been paid. The relator, in so far as we are informed, had complied with its contract. It had constructed its road on lines and levels furnished, and only a short distance remained to be constructed from terminus to terminus. There was an existing contract between the city and the corporation relator. It was no longer within the power of the city to treat this contract as an absolute nullity and to pass an ordinance canceling the prior ordinance changing the route and abrogating all possibility of claiming any right under it. There was no question of fraud or unfair dealing of any kind disclosed by the record. By its execution the contract acquired a validity to which effect should be given until it is regularly annulled contradictorily with the party in interest.

In our opinion, in the case of Railroad Co. vs. Mayor, 48 An. 1102, 1115, in regard to a similar question, we said: “We would not be justified in treating the ordinance as void. It must remain in force until decreed null in proceeding to that end. It may be that the council, desiring to encourage plaintiff’s enterprise, has conceded more than it should have conceded; nevertheless, the concession was made and has been accepted and the conditions complied with. It has become a fait accompli, which under any view is not void and can not be absolutely ignored by the defendant as attempted by ordering the reopening of the street.”

We must adhere to the principle laid down in that case. It applies here. It is an equitable principle applying even if a contract is null in its origin. Multa fieri prohibentur quse si facta fuerint, obtinent firmitatem. If a contract is voidable proper steps must be taken to have its nullity declared.

The respondent insists in the second place, for reasons stated, that he can not furnish the lines and levels. The ordinance pleaded by the relator directs the course to follow. Lines and levels having been given in other streets, there is no good reason for coming to a stop-with this work at Carrollton avenue. Manifestly there is a neutral ground on that avenue.

Respondent admits in his answer that there are such grounds; the difficulty it appears consists in the fact alleged by him that they are divided into three strips. That of itself should not be considered enough to prevent the running of the line. The line can be drawn under the ordinance despite the strips.

Lastly, the respondent insists that the relator has no contract with the city, and holds no franchise from the city; the alleged contract offered in evidence by relator being absolutely null and void.

In discussing the second proposition of respondent’s answer, we found that the relator did enter into a contract with the city as alleged, and we decided that it was not subject to collateral attack-We will only add that, in our judgment, a ministerial officer called Tipon to execute an ordinance is without authority to raise the question the position here taken implies.

The question was carefully considered by us in the case of State ex rel. N. O. Canal and Banking Company et al. vs. Heard, 47 An. 1679, and the conclusion was reached that a doubt as to the validity of a statute would not justify a ministerial officer, who has no interest involved, in raising questions of irregularity of its adoption.

In our judgment the decree of the lower court was correct. It must be and it is affirmed.

Nicholls, O. J., rests his concurrence on the ground of acquiescence.

Dissenting Opinion.

McEnbry, J.

I dissent from the decree in this case for the following reasons:

I will briefly refer to two grounds assigned by the respondent why •a mandamus should not be granted.

First. The nullity of the grant to the plaintiff corporation to change the route previously granted to it and to occupy the territory through which the respondent officer is required to give lines and levels; in other words, to locate the plaintiff’s street railway. Probably this would in itself not be a sufficient excuse, but it is to be considered in connection with the repealing of the ordinance granting said franchise, which is set out as an excuse.

But, if under the authority of State ex rel. Nicholls, Governor, vs. Shakespeare, Mayor, 41 An. 156, and Railroad Co. vs. Railroad Co., 47 An. 315, he has no right to question the validity of a law which defines his official duties, the same authority is good for the assertion that he must respect the law which repeals the former and imposes new duties upon him. He must conform his duties to the immediate law which defines them. It is the duties vel non of the officer under consideration. We have no right without all parties interested are made parties to break down the immediate law and look for his duties in the ordinance which was repealed by the City Council.

Act No. 135 of 1888 requires the franchises of all street railways to be offered at public sale, and adjudicated to the highest bidder. The Legislature has declared that these franchises are of value, and that the city is without power to gratuitously grant them.

My attention has been called to the case of East Louisiana Railroad Company vs. City, 46 An. 526. In that case the issue presented was whether or not the railroad was a street railway. If so the grant was null and void, notwithstanding the acceptance of the grant by the railway corporation and the money expended by it in perfecting the same. This was conceded in the case. The court found that the railroad corporation was engaged in transporting freight, passengers and mails beyond the city limits, and did" not come within the purview of said act. It was a railroad and not a street railway, and the City Council of New Orleans, without complying with the provisions of the act, could grant the franchise.

The same principle was decided in the case of New Orleans City & Lake Railroad vs. Dr. W. H. Watkins, 48 An. 1550. This court held that it was a street railway, and not a railroad, and the grant was null and void, because of a failure to comply with the provision of Act No. 138 of 1888.

There can be no acceptance of a grant null and void, which will give it validity, and no amount of money expended in utilizing it can have the effect of giving validity to that which has none.

In the instant case, the Crescent City Railroad Company was granted the privilege of changing its route and occupying parts of other streets to the distance of many squares. It is held by the court that the corporation accepted the grant and built its tracks to Carrollton avenue. If the City Council has the right to grant the use of one street to the distance of several squares, it has undoubtedly the right to extend the distance indefinitely. The act of the Legislature gives them no such right, but declares the occupancy of any street by a street railway company has a value for which it must pay the city. How easy it would be to defy the act of the Legislature, by a council complacent in its disposition to gratify corporations, by allowing a bid for a franchise on important thoroughfares, and then grant the privilege of occupying streets over which the franchise would be immeasurably advantageous and valuable to the corporation. The Crescent City Railroad Company got a valuable franchise without complying with the law, for which it paid nothing, and the City Council of New Orleans had the undoubted right to repeal it; to declare it null and void, and to require the corporation to occupy the territory to which it was legally entitled, and for which it paid the city.

Second. It is the repeal of the ordinance granting this franchise which the respondent pleads as against the-mandamus. It is a complete defence. The question presented is the enforcing of a duty from an officer by mandamus, whether it contemplates a public duty which the officer is required to perform. Is there any public duty imposed upon the officer, the City Engineer, to give lines and levels to the plaintiff corporation?

There is at issue between the city of New Orleans and the plaintiff corporation the construction of a contract. The city is not a party to this proceeding. The attempt is to force the specific performance of a contract through the respondent officer. The City Engineer is called upon to interpret that contract, and to reach him and to enforce this quasi-judicial function upon him without the appearance of the city, this court declares the repealing act null and void, and proceeds by mandamus to compel the specific performance of a contract. What will be the results of the decree?

In the case of Crescent City Railroad Co. vs. New Orleans & Carrollton Railroad Co., 48 An. 856, we held that there was lacking legislative permission from the City Council for the plaintiff corporation to occupy the roadbed of the defendant corporation, the Carrollton Railroad; that there was no right to occupy said roadbed, unless the grant could not be enjoyed without it. We held that under the issues presented in that case there was unoccupied territory over which the company could place its track. The whole matter of the location was, in fact, left to the discretion of the City Council, which could at any time locate the proper route, even over the road of the Carrollton Street Railroad.

The decree in this case is that lines and levels shall be given over the neutral ground. Where is this neutral ground? There are spaces on each side of the Carrollton Railroad tracks. Where shall the city official locate the roadbed?

If on the upper side the City Council may say this is not the proper location, and by ordinance, which it has the undoubted right to enact, say the roadbed must be located on the lower side.

Suppose the officer locates the road over the tracks of the Carrollton Railroad Company, it will be in violation of the decree of this court, which said that no right in the Crescent City Railroad Company had been shown to authorize the occupancy of the Carrollton railway tracks. The decree, in its execution in this way, would require of the City Engineer to do that which we said in the last case referred to, the City Council had failed to do, and which failure prevented the Crescent City Railroad Company from going over the Carrollton Railroad tracks. The decree makes the City Engineer the instrumentality to supply deficiencies in the legislation of the council, and it also imposes upon him a quasi-judicial function in the interpretation of a contract between the city and the Traction Company.

The City Engineer gave the Crescent City Railroad Company lines- and levels on the upper side of the street. See cases ut supra. If the theory of the court is correct, that by accepting a gratuitous, franchise it became perfected, the Crescent City Railroad Company was bound by this location, for it occupied the same, and commenced! work along the location. But it was dissatisfied with the location, and subsequently procured an ordinance from the City Council, declaring that it should occupy the neutral ground of Carrollton avenue. See case of Crescent City Railroad Company vs. New Orleans & Carrollton Railroad Company, 48 An. 856. That neutral ground has not yet been ascertained. The council has failed to-designate it. The City Engineer is required by the decree to do so-The most serious complaint, however, against the decree, is that it makes the writ of mandamus the means of inquiring into and interpreting a contract and ordering its specific performance in order-to enforce the duties of a public officer, which are declared to be public, when, in fact, they arise out of a purely private obligation. The City Engineer, having at one time complied with his duty in giving lines and levels, he can not be compelled to perpetually perform his duty.

When the public officer is to be reached by mandamus, it must be when his duties, which are sought to be enforced are public, clear- and unequivocal, in which there is no latitude for the exercise of' discretion.

In my opinion this whole controversy should be left to the City Council of New Orleans.

Street railways are multiplying in a city in which the streets as a. general rule are narrow. These corporations are fighting for territory. Efforts are daily made to occupy streets and the roadbeds of other roads. Cars are sent over the tracks in such number as now to threaten danger to life and limb. The City Council should not be-hampered in its dealings with these corporations to prevent future-calamities.

A grave responsibility is now upon the Oity Council in dealing with the demands of these corporations, and the courts should reluctantly interfere, and set a rule for the guidance of the city authorities, which may prevent the application of a heroic remedy in the interest of the safety of the citizens.

There are times and there are occasions when vested rights give way to public safety. The time will come when the Oity Council will be compelled to give attention to the free use of the streets in removing the danger which is now so imminent to those who daily pass upon them.

The repealing ordinance recites, in my opinion, good reasons why the Orescent Oity Railroad Company should go back to its first grant. I think it should be respected on the ground that the council has the discretion to judge of the necessity of forbidding too many cars on a street, and the proper regulation of the same in the interests of the convenience and safety of the inhabitants.

On Application por a Rehearing.

Breaux, J.

We have re-examined the questions involved in this case.

In the defence, before our decision was handed down, respondent suggested the difficulties confronting him in surveying the roadbed over the neutral ground of Oarrollton avenue and averred the additional ground that the ordinance, under which relator holds, was repealed.

Under the rules of this court it is not possible, on the application for a rehearing, to have other issues considered than those previously •submitted, particularly if not raised in the pleadings. The inability •of the defendant to stand in judgment had not been pleaded, notwithstanding it is argued in one of the briefs filed by an amicus curiæ on rehearing.

But granted that the point has been pleaded for the sake of the argument. In our view, we state ex industria; mandamus could be issued. This officer had been selected by the city and the relator to make needful surveys to carry out the contract and deliver lines; we concluded that he should, in accordance with the terms of the contract, indicate the locus granted for the right of way, and that the difficulties suggested are not sufficient to prevent him from indicating what should be occupied as a roadbed.

If there are other interests concerned they must be urged by those by whom they are owned or by those who have a right to stand in judgment.

With reference to the repeal of the ordinance invoked as a defence, we cite the following decisions in support of the refusal to grant a rehearing: State ex rel. City vs. Railroad Co., 44 An. 526;. City of New Orleans vs. Wardens, 11 An. 244.