text:
    No. 7882.
    Eliza Johnston vs. Stewart Johnston.
    When a Judgment of Separation d mensd et thoro has been granted to one of the spouses, the other spouse is not, because a year has elapsed and no reconciliation taken place, entitled to a Judgment of Divorce.
    Such legal right belongs exclusively to the party in whose favor the Judgment of Separation is rendered.
    ^PPEAL from the Fourth District Court, parislfiof Orleans. Houston, J.
    Jas. C. Walker, Curator ad hoc, for Appellee.
    J. 0. Nison, Jr., for Stewart Johnston, Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

The question raised in the case now before this Court, under cover of the above 'title, is novel, interesting and important.

The plaintiff, having obtained a separation a mensd et thoro from the defendant, and more than a year having since elapsed, and no reconciliation taking place, the husband, averring those facts, has instituted in the original proceedings a suit in which he became a plaintiff, and asked for a judgment of divorce from his wife, the original plaintiff, dissolving the bonds of matrimony existing between them.

A curator ad hoc having been appointed to the absent wife, answered, pleading a general denial.

After hearing evidence and parties, the lower court dismissed the petition, as in case of nonsuit.

Stewart Johnston, the original defendant, appeals from the judgment so rendered.

The issue presented simply is: Can the spouse against whom a judgment of separation from bed and board has been obtained claim a divorce, after the expiration of a year from the date of the separation, on showing that there has been no reconciliation ?

It is not within our province, and we will not undertake to pass upon the propriety of the motives which have inspired the lawgiver in viewing marriage as a civil contract only, and in providing that .it shall be dissolved by death or divorce. The regulation of the civil character of such a contract, and of the rights of the parties thereunder, appertained, and still belongs, to another co-ordinate branch of the government, with whose action, when not violative of the organic law, the judiciary has no authority to interfere.

In cases of that description, as well as in all other cases of covenant, when a breach is alleged and established, the functions of the judiciary are confined to an inquiry into the fact of violation of the agreement, and when it is ascertained that the pact has been trampled under foot, it is the duty of the courts so to declare.it, leaving the parties to stand the legal and other consequences flowing from such denunciation.

The law considers marriage as a civil contract only, and provides that it shall last until death, unless dissolved by divorce. Oases in which the nullity of marriages is pronounced are not cases of dissolution. Oases in which, on account of prolonged absence of an unheard-of spouse, the bonds of matrimony are loosened, are, in a certain aspect, cases of dissolution. R. C. C., 86, 136, 80.

It is only in those cases in which the defendant has been sentenced to an infamous punishment, or convicted of adultery, that “a judgment of divorce can be rendered in the same decree which pronounces the ■separation from bed and board.” R. C. C., 139.

In all other cases, the law requires that “no divorce shall be granted unless a judgment of separation from bed and board be first rendered ■between the parties-, and one year shall have expired from the date of the judgment of separation from bed and board, and no reconciliation have taken place.” E. G. 0., 139.

The Constitution proclaims, and very justly, that “all courts shall be open, and every person, for injury done him in his rights, lands, goods, person or reputation, shall have adequate remedy by due process ■of law and justice administered, without denial or unnecessary delay.” Art. 11.

Previous to the announcement of this invaluable privilege, which existed without any such recognition and declaration, persons have always enjoyed the rights mentioned. The code of laws in force in this State for more than half a century, has provided for the mode in which ■such rights can be asserted and enforced. It declares that an action is the right given to every person to claim, judicially what is due, or belongs to him. O. P., 1.

It is elementary that no demand can be asserted and entertained judicially unless founded upon a valid cause of complaint — that is, one not reprobated by law.

The maxim: “Allegans suam turpitudinem, nullus audiendus,” is of the greatest antiquity, and has always received universal application, as based upon considerations essentially necessary for the preservation of public order and good morals. It is on that principle that, whenever the cause of action set forth is, in itself, immoral and illegal, courts of justice, upon mere mention, will turn deaf to the demand and reject it without mercy.

No one is permitted to enter the temple of Justice with a prayer for relief, unless with clean hands, and with the assertion of the violation of a legal right. An injury must have been done, and the law must have provided ior its reparation.

Applying that principle to the case before us, the inquiry arises : What is the legal right which the petitioner claims, which was violated ? In other words : What is the injury which he has sustained, and what is his relief?

The petitioner alleges, substantially, that his wife has obtained against him a separation from bed and board; that more than a year has elapsed since its rendition ; that no reconciliation has taken place between them. Wherefore he prays for a divorce.

From these allegations, it is irresistibly inferred that the petitioner charges that, upon a proper complaint of infringement against him and proof in support, a competent court has found against him some wrongful act, and on that account has put an end to the conjugal cohabitation and the common concerns which existed between his wife and him. R. C. C., 136. That since then time has elapsed, and no reconciliation has taken place ; that the judgment has been acquiesced in, and that by their inaction, their continued separation and persistent exclusion, the one of the other, they have admitted the impossibility, up to then, of their living together as husband and wife.

The record does not show that the original plaintiff has primarily asked for a separation, and ultimately for a divorce, nor does it show for what cause the first judgment was sought and obtained. Had she included the prayer for the divorce, it would have indicated, on her part, some intention of applying for a divorce in the course of time ; but she has not done so. It must, therefore, be deduced that such was not her intention. Such abstention would not, however, debar her from subsequently seeking that remedy.

It is manifest that, from the averments of his petition, the new plaintiff cannot pretend that he has asserted any injury done him by the wife, from whom he asks to be divorced. He does not aver that she has been sentenced to an infamous punishment, or that she has committed the shameful and disreputable act which brands forever the character of a married woman. He alleges no ill-deed committed by her. On the contrary, he prefers his own wrongs and his impenitence. She.is the one who had a cause of complaint against him. She is the one who has the right of asking relief, which was a separation first, and a divorce next, if she chose. She is the one who was slighted, who was aggrieved, who was injured, and to whom the courts are open for the redress of the injury done her. She has been forced by him to complain and to ask relief, and she has obtained it. Since, therefore, she has done her husband no injury, since she has become guilty of no offense which could justify a divorce, at the instance of her husband, he can claim, and the Court can allow him, none. Her husband has continued to offend her. He has not offered to amend and be reconciled ; or, if he has, she has not thought it safe to condone. He is the guilty party, and for his guilt towards the wife, whom he had chosen as a companion for life, the law inflicts a punishment upon him by forbidding him from marrying again; for it is not until after a divorce has been pronounced that he is permitted to do so. As long as the wife has not asked and obtained that final sentence, the door for repentance is open to him, and if his atonement is accepted, the separation becomes as though it never was pronounced. Por the lamentable situation in which he may find himself, that of a wifeless husband, he has no one to blame but himself, volenti non Jit in-juria. Por relief from the condition in which he is placed, he must look to his wife, and to her alone, for in her power it lies exclusively to release him civilly altogether, or to welcome him back to her affection and devotion. By withholding from him the faculty of procuring a dissolution of the bonds of matrimony, the law has done an act of justice to the wife, and has upheld the inviolability of conjugal engagements, for it forces him to repentance and to atonement. Had the law not done so, had it placed it in the power of the defendant in the separation judgment to ask and obtain a divorce aftér one year, no reconciliation taking place, it would have virtually provided for an easy violation and dissolution of the matrimonial pact, by conferring upon the transgressor the right of obtaining, at his whim and caprice, indirectly, that which he could not have procured directly. By that wise measure it protects the unsullied character of the spouse, who procured the separation, from the odious reflection which the decree of divorce, unexplained as it would be on its face, would otherwise east upon it. Her conduct, her feelings, her name, her reputation, are thus effectually shielded against both aspersion and attending humiliation. It is worthy of note, that the article under consideration is not to be found either in the Code of 1808, or in that of 1825. It is an innovation to the laws relative to the dissolution of marriage by divorce, and was inserted by special statutory disposition.

When subjected to judicial examination and dissection, it is found to mean and to say that divorces may be granted instantly in cases of infamous punishment and adultery, but not in any other case, in which they shall not be allowed, unless a separation d mensa et thoro has been previously decreed, unless a year has thereafter elapsed and no reconciliation has taken place. In no case does the law provide that either the judgment of separation or that of divorce shall be granted on application of the guilty party. It affords relief to none but the meritorious one, that is, the one whose rights have been violated, and who has sustained an injury, who claims protection, and for whom relief has been provided.

We have looked back to the French law, as it once existed, on the subject of divorce. We have done so with justification, as our system mainly derives from it. We thought we would find among its provisions precedents by which to be enlightened. Our search has not proved unsuccessful. We have found in the Napoleon Code, art. 260,' which was once in force, but which was repealed years .ago, as were also all laws on the subject of divorce, so effectually, that the only relief now accorded in France is merely separation from bed and board. That article reads:

" Aprés une année d’épreuve, si les parties ne se sont pas reunís, l’époux demandeur pourra faire citer l’autre époux á comparaitre au tribunal, dans les délais de la loi, pour y entendre prononcer le jugement définitif qui, pour lors, admettra le divorce.”

A reference to the Code of 1808 does not show that marriage could then be dissolved by divorce. We presume, however, that such was the law at the time, from a note on the subject in the “Travaux prépar-atoires ” of the Code of 1825. Amend, art. 30, p. 10.

Article 260 C. N. was not incorporated in the Code of 1808, no doubt because it was deemed that, in the cases in which the law merely authorized a separation mensa et thoro, no divorce should be granted at all. Neither was it embodied in the Code of 1825. The reason which induced the compilers of the first Code probably inspired thosb of the second Code. The Legislature that subsequently adopted the statute, which now forms the article under consideration, to all appearances did so on the theory which dictated article 260 C. N., and which can well be said to have been, that a denial of the right of asking for a divorce to the successful' plaintiff in the separation suit would be adding injury to injury by inflicting further hardship upon one well deserving of pity, protection and assistance.

Fenet Discours et Motifs, vol. 9, 436, 438, 484, 485.

While presenting this article, to the Corps Législatif, Mr. Treilhard, referring to a hasty decision on the part of the Court granting the separation, and to the propriety of allowing time for reflection, said : “ Telle a été la crainte d’une déeision trop légérement prononeée, que, le tribunal est autorisé á ne pas admettre immédiatement le divorce, quoique la demande soit bien établie et qu’il peut soumettre les époux á une année d’épreuves pour s’assurer encore plus de la persévérantevolonté de l’époux demandeur, et qu’il ne peut y avoir de sa part aucune espérance de retour,” p. 485.

It may well occur, that in the absence of reconciliation, in the legal impossibility of contracting a new civil alliance, the petitioner may be misled by and yield to those temptations which a fallen nature may prompt and which mortal flesh has inherited, and that deplorable disorder may ensue from his weaknesses, but with such considerations and consequences, however lamentable they may prove, courts have nothing to do. The responsibility attaching the commission of such reprehensible acts rests neither upon the consciences of judges nor upon those of law-makers, but weighs solely upon the heads of the violators of the miost solemn of human pacts.

To recognize in the petitioner the right of demanding and obtaining the relief which he seeks, would be to incorporate in the law a spirit and a letter which have been intentionally excluded from it as reprobated. It would be to judicially legislate- — a thing which we are prohibited from doing, and which we have no disposition therefore to do.

We have given this question our full consideration, and deem that we have correctly expounded the law. A different conclusion would have proved offensive to our moral sense and subverted our well-settled appreciations of the great fundamental principles according to which questions of right or wroDg are to be tested and determined, and which underlie the usages and customs consecrated by tens of centuries among men for the well being and greater good of society.

The lower court viewed the matter somewhat in the same light, but nonsuited the petitioner. The judgment should have been one-absolutely destructive of his demand, under the averments.

It is, therefore, ordered that the judgment of the lower court be reversed; and proceeding to render such judgment as it should have rendered,

' It is ordered, adjudged, and decreed that the petition of Stewart Johnston for a divorce from Eliza Johnston be rejected, with costs in both courts.


source: Caselaw Access Project

author: Poché, J.

license: Public Domain

text:
    No. 8012.
    State of Louisiana vs. Willis Rountree.
    The accused cannot object to going on trial, for want of liis witnesses, without presenting the proper affidavit.
    The absence of jurors who have been summoned, when the panel can be completed from those present, is no legal reason for not trying the case.
    A lack of sufficient understanding or intelligence is a legal cause for the discharge of a juror.
    APPEAL from the Sixth Judicial District Court, parish of Morehouse. Brigham, J.
    J. C. Egan, Attorney General, for the State, Appellee.
    When the accused does not make an affidavit of what he expects to prove by absent witnesses, the court will overrule his motion for a continuance.

      It is in the judge’s discretion to issue attachments or not for absent jurors, when there are enough presentía complete the panel. 11 A.81.
    The judge has the power to decide upon the competency of jurors. Act 94 of 1873.
    O. T. Dunn for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

The accused having been tried under an indictment for murder, found guilty without capital punishment, and sentenced to the State penitentiary for life, appeals from the verdict and sentence, and alleges the following irregularities during the progress of his trial:

1st. That he was not.allowed sufficient time to prepare his defense, and that he was forced to trial on the very day that he issued subpoenas to three witnesses, of whose testimony he was thus deprived by the arbitrary ruling of the court.

It does not appear from the record, nor from the bill of exceptions, whether the objections to the day of trial were made by the accused on the day that the case was fixed for trial, or on the day of trial itself.

If they were urged on the day that the case was called and fixed for trial, they were properly overruled by the court, as not urged at the proper time. If urged on the day of trial, they should have been made in the shape of a written motion, supported by proper affidavit as to the materiality of the facts which he expected to prove by the witnesses whose presence he required for his defense. In either case the court did not err in forcing him to trial.

2d. The accused complains in the second place, of the ruling of the judge in the following particular: That on being called, five jurors whose names were on the panel and on the venire, Daily; Roberts, Hatch, Campbell and Yaughn, failed to answer, whereupon the judge stated that three of said jurors, Daily, Campbell and Yaughn, had been excused by the court, two days previous, from further attendance by reason of sickness; upon which accused objected to proceed further with the trial unless it were shown that the three jurors were sick and unable to attend on that day, which objection was'overruled. And the accused further objected to proceed further with the trial without the presence and attendance of the two other jurors, Hatch and Roberts, who had failed to answer when called, and moved for attachments for said jurors, which were granted by the judge, who, however, refused to postpone the trial until said jurors could be brought into court. To both of these rulings the accused reserved his bill of exceptions.

"We must confess our surprise at the serious manner with which counsel for the accused urges this frivolous objection, the effect of which is to divest the district judge of all discretion in the conduct of a trial in bis court, and would compel him to suspend and postpone an important trial in order to secure the attendance of absent jurors, when there were enough present to complete the panel, as shown by the record in this case. 11 A. 81; 28 A. 631.

Finally, the accused complains of the discharge for cause of three jurors, who, upon examination by the judge, were pronounced incompetent, as lacking sufficient intelligence to act as jurors. In this the judge did not err. A lack of sufficient understanding or intelligence is as serious a disqualification as to be deaf and dumb, and it was a protection to the accused to refuse to place his life on trial in the hands of men incompetent to intelligently pronounce upon his guilt or innocence.

We see no error in the judgment appealed from, and it is, therefore, affirmed.


author: Levy, J.

text:
    No. 6741.
    J. M. Tupery vs. T. N. Edmondson. Gordon & Gomila, Intervenors.
    The declinatory Exception, if pleaded In the Answer, should precede the general issue, or 1 it will not he admitted.
    Defendant not insisting upon his Exception being tried first and passed upon by the Court, must be considered as having waived it.
    It is now well settled that a judgment against a Defendant rendered by another Court than that of his domicil, is valid, if he appears and pleads to the merits.
    The factors and agents of r.ie lessee are not third persons, in the sense of Article 288 of the Code of Practice, towards whom the lessor has to make the affidavit therein prescribed.
    A PPEAL from the Sixth District Court, parish of Orleans. Bightor, J.
    James Legendre and Victor Olivier for Plaintiff and Appellee.
    first — Intervenors cannot deny the jurisdiction of the court into which they have voluntarily come. 19 L. 165 ; 8 Rob. 123 ; 30 A. 754.
    Second — Neither can they urge the insufficiency of the affidavit on which the writ of provisional seizure issued. 21 A. 118; 27 A. 240.
    Third — The plea to the jurisdiction ratione persones should have been made in limine and before the defendant answered to the merits. C. P. 336 ; 4 Rob. 258 ; 7 A. 239 ; 15 A. 184 ; 26 A. 587.
    Fourth — It is now the settled jurisprudence that a defendant can, by pleading to the merits, waive his personal privilege of being suable only before the court of his domicile. C. P. 93; 29 A. 194; 30 A. 595; 31 A. 88 ; do. 583.
    fifth — Defendant, by proceeding to trial without asking for judgment on his plea to the jurisdiction, waived it. 10 L. 228 ; 11 Rob. 402 ; 13 L. 373 ; 30 A. 595.

      Sixth — When an absent defendant in an attachment suit appears through an agent and bonds the property attached, the court has a right to render a personal judgment against him, though he was not personally cited ; 7 A. 669 ; 12 A. 493 ; 16 A. 125 — and a fortiori should such be the case in a provisional seizure'where defendant was properly cited.
    Seventh — Besides its jurisdiction in personam the court below also had jurisdiction in rem, because the rice subject to plaintiff’s lien as lessor was found in this city, and he had the right to seize the same provisionally. See act 24th March, 1876, amending article 133 of 'the Code of Practice.
    Eighth' — Article 288 of the Code of Practice, authorizing a lessor to seize the effects subject to his lien in the hands of third persons, provided he declare on oath that the same has been removed without his consent within fifteen days previous to bringing the suit, is not applicable to this case. The intervenors were not third persons, they were merely the agents of the lessee and received'the consignment of the rice with the understanding and promise that plaintiff’s superior rights should be satisfied.
    Ninth — The claim of the owner for rent of the land on which the crop was produced is superior in rank to the pledge of the factor for his advances — Act 1874, p. 114 — and a fortiori is it superior to the mere privilege of the latter.
    Tenth — But, even if the intervenors should be deemed to have been third persons, then we contend that article 288 C. P., in so far as it requires the above affidavit, is inconsistent with Act of 1874, p. 114, which, providing for the shipment of the crop to the • factor, nevertheless expressly reserves the superior rights of the landlord, and is, therefore, to that extent, repealed by this subsequent statute.
    Edward Phillips for Defendants and Appellants.
   The opinion of the Court was delivered by

Levy, J.

Plaintiff sues to recover from the defendant, Edmondson, 434 sacks of rice or its equivalent, $1520 in money, and $360, with interest, the rental of a certain plantation in the parish of St. John the Baptist, leased by him to defendant for the years 1875 and 1876. He averred in his petition that he had by law a lessor’s privilege and pledge on the crop of rice raised during the term of said lease on the leased premises, amounting to 1303 sacks of rough rice, to secure the payment of said rent, and he obtained from the Sixth District Court of the parish of Orleans a writ of provisional seizure under which all of said rice was seized by the sheriff. The defendant released the rice thus seized by giving bond in accordance with the order of the Court, made on his own motion and application. Gordon & Gomila, consignees of the rice, filed an intervention and third opposition, alleging that they were privileged creditors of Edmondson in the sum of $355174 for supplies which they furnished him for cultivation of said crop and that they were entitled to be paid in preference to plaintiff.

Defendant answered with a general denial and special plea to the jurisdiction of the Sixth'District Court of Orleans either as to the personal action or that in rem. He averred that the provisional seizure had been wrongfully and illegally issued, and the seizure of his property under the same was illegal. He pleads in reconvention $500, as damages thereby sustained by him.

The defendant, Edmondson, was a resident of and domiciled in the parish of St. John Baptist and was cited therein.

There was a judgment in the lower Court in favor of plaintiff in accordance with the prayer of his petition, and the claim of intervenors was dismissed. Defendant and the intervenors have appealed.

The question of jurisdiction is the first which we shall consider.

Defendant contends that Act No. 64 of 1876 is confined in its operation to cases where legal seizures have been made under the writs enumerated; and that here the seizure was illegal; and, therefore, the Court had no jurisdiction either as to the demand for personal judgment or against the property sought to be subjected, for the reasons, that Act. No. 64 of 1876 provides, that, “in all cases of provisional seizure or sequestration, the defendant may be cited whether in the first instance or in appeal, either within the jurisdiction where the property provisionally seized or sequestrated is situated or found, though he has his domicil or residence out of that jurisdiction.” And this act further provides, that, "all judgments rendered in such cases shall only be operative up to the value of the property proceeded against and not binding for any excess over the value of the property, in personam against the defendant.” Article 288, C. P. provides, that, “ The lessor may seize even in the hands of a third person such furniture as was in .the house leased if the same have been removed by the lessee, provided he declare on oath that the same has been removed, without his consent, within fifteen days previous to his suit having been brought.” Defendant relies upon the laws just quoted to support his defense, as applicable to the facts as set forth in the record.

As to the jurisdiction of the Court, the defendant pleaded his declinatory exception to the jurisdiction ralione personce, too late. He should have declined the jurisdiction either before answering, and in limine litis, or if pleaded in his answer, previous to his answering to the merits. C. P. 334, 335, 336. The defendant appeared and in his answer before setting up his plea to jurisdiction did answer to the merits by denying generally, all the allegations of the plaintiff’s petition. He thus waived his plea and brought himself within the jurisdiction of the Court and by tending the issue of general denial before pleading to the jurisdiction, became liable to personal judgment as well as to the judgment in rem; further, if the plea had been made at the time prescribed by law, he went to trial without insisting that this plea should be passed upon by the Court below, and, therefore, waived it.

11 R. 402 ; 10 L. 228 ; 13 L. 373.

It is now well settled in our jurisprudence that “ a party may be sued and judgment rendered for or against him by a competent Court, other than that of his domicil, if he appear in such Court and plead to the merits.” 29 A. 194 ; 30 A. 595 ; 31 A. 88, 583.

As to the legality of the seizure, we consider that Messrs. Gordon & Gomila cannot be regarded as such third persons as are contemplated in the Code of Practice under article above cited. They were the consignees of Edmondson ; they had full knowledge of the right of Tupery to one-third of the crop, they expressly recognized the landlord’s privilege and lien and had indeed promised to pay the rent out of the property consigned to them and under these circumstances could not be treated as third persons rendering necessary the affidavit required as to the property being removed from the leased premises within fifteen days previous to the institution of the suit. It must be considered also, that the intervenors seek to enforce their claims as pledgees, the Act of March 24th, 1874, in regard to the pledge in favor of merchants,, etc., provides, “ that the right of pledge thus conferred shall be subordinate to that of the claim of the laborer for wages and for rent of the land on which the crop was produced,” and here, then, intervenors held this crop with a full knowledge of the landlord’s claims and subject to. his rights therein.

Besides, one-third of the crop belonged to the landlord, and the-pledgor having a right only to two-thirds of it, the pledgee could under-the act of pledge acquire greater rights than the pledgor himself possessed.

.The judgment appealed from is, therefore, affirmed with costs.

Mr. Justice Poché takes no part in the decision of this case.,


author: Todd, J.

text:
    No. 8091.
    Olympe Boisse and Husband vs. Hannah P. Dickson, Administratrix, et al.
    A receipt for payment in full of Ms rights in his father’s succession, given hy an heir to the administrator, cannot he contested hy a party "who subsequently becomes a creditor of the heir. All that such creditor can do, is to require proof of the date and genuineness of the receipt.
    When this Court has decided some of the issues of a case, and remanded it for further evidence upon other points; and when the case comes up again in this Court, on appeal from the judgment of the lower Court in the second trial, the questions originally decided will not he re-opened and this Court will only review the issues upon which the case was remanded.
    APPEAL from the Second Judicial District Court, parish of Bossier. Brew, J.
    Land & Land for Plaintiff and Appellee.
    Nutt & Leonard for Defendants and Appellees.
   The opinion of the Court was delivered by

Todd, J.

This case was argued and submitted at the recent term of this Court at Shreveport, and, by agreement of counsel, held under advisement to be decided at this place.

This is the second time this case has been before this Court on appeal.

It was first tried in the Parish Court of Bossier, and an appeal taken from the judgment rendered by that court; and, by a decree of this Court, rendered at this place on the 27th of May, 1878, it was remanded for another trial. It was again tried in the District Court of Bossier, which had, in the meantime, superseded the parish court, and from the judgment of that court, the plaintiffs, who were the appellants in the previous appeal, have again appealed to this Court.

As there is an issue between the counsel representing the parties litigant with reference to what was decided in the former appeal and what remains open for our decision on the present appeal, it becomes necessary that we should first critically review the pleadings, proceedings and previous decree of our predecessors in the case.

The plaintiff, Olympe Boisse, assisted by her husband, filed her petition in the Parish Court of Bossier, on the 14th of August, 1875, in which she alleged in substance :

That in 1872 she obtained in the Circuit Court of the United States, sitting at New Orleans, a judgment against Mary E. Dickson, then wife of Gen. Gideon J. Pillow, for $4231 40, with interest.

That under a writ'of H. fa., issued on the judgment, she had purchased at a marshal’s sale “all the right, title, interest, claim and demand of the said Mary E. Dickson in the succession of her father, Michael Dickson, the same being the undivided one-seventh interest in all the movables, immovables, rights and credits belonging to and composing said succession.”

That the property of said succession was in the possession of the defendant, Mrs. Hannah P. Dickson, the administratrix of the succession and partner in community with the deceased, and had been since his death in 1865, and that the administratrix had never rendered any account of her administration.

That the plaintiff was owner of the entire interest of Mary E. Dickson in the succession of her father, and as such owner, had the right to require an account from the administratrix, “so as to show the residuum, after paying the debts and. charges, to which the heirs are entitled, and to compel her to give bond as usufructuary.”

The petition concluded with a prayer that the administratrix be cited, that she be ordered to account, and that she be required to give bond as usufructuary. This was the entire relief asked for. Subsequently an amended petition was filed, praying that all the heirs be cited, which was done.

The administratrix was ordered to render her account, and in obedience to the order the account was rendered.

The account was opposed by the plaintiff and some of the heirs.

The administratrix’s answer was substantially:

1. A general denial.

2. A special denial of any interest in the succession being owned by Mary E. Dickson at the time of the alleged seizure of her interest by the marshal, and a denial that plaintiff acquired any “interest in the succession by the alleged sale.”

Mary E. Dickson and her husband, made parties through a curator ad hoc, further allege in their answer, that the marsnal’s sale was a nullity for various reasons urged.

The Parish Judge decided in effect:

1. That the marshal’s sale was a valid one, and that the plaintiff had acquired whatever interest Mrs. Pillow (Mary E. Dickson) had at the time of the seizure in the succession of Michael Dickson, but that before the seizure was made she, Mrs. Pillow, had received more than her share or interest in the cotton belonging to the succession, which constituted nearly all the movable property of value belonging thereto.

2. That the defendant and administratrix was liable for a considerable quantity of cotton and other movable effects used, wasted and lost, for which judgment was rendered against her, sustaining thus the opposition in part.

3: That plaintiff was.entitled to demand a bond from the defendant, Hannah P. Dickson, as usufructuary and widow in community.

From this judgment the plaintiff .appealed, and the defendant, Hannah P. Dickson, in answer to the appeal, prayed that the judgment, in so far as it was in favor of the plaintiff and against the defendant, be reversed. This Court reversed the judgment in favor of the plaintiff and remanded the case for further proceedings. The plaintiff applied for a rehearing, and the Court, in rendering its opinion on the rehearing, reiterated its conclusions on the several issues discussed in the first opinion, and refused to set aside its first decree.

The case was again tried in the District Court, and from a judgment therein rendered in favor of the defendant, the plaintiff has taken her present appeal.

On the trial of this second appeal before this Court, the able and distinguished counsel who represented the plaintiff orally and by brief, argued all the legal questions raised by the original pleadings in the case —the same questions they had discussed on the trial of the previous appeal and in their application for a rehearing — -and they insist that all these questions are res novae, still undecided, and still open for our decision. The large interests involved and the high respect we entertain for the counsel, their experience and legal learning, as well as in consideration of the zeal and earnestness with which their views have been pressed upon us, have induced us to scrutinize closely the opinions rem dered by our predecessors, so as to ascertain with certainty what has and what has not been adjudged by the previous decree; and with this object we shall proceed to quote from these opinions, and thus show all the questions and issues that have been passed upon and settled by them, and then take up such as are left for our decision.

We will note here that Mary E. Dickson (Mrs. Pillow) is called in these previous proceedings Mrs. Trigg, the name by which she was known before her marriage to Gen. Pillow, and by that name we shall continue to designate her.

First — -The Court held that the marshal’s sale was not a nullity for the defects in the proceedings alleged by the parties opposing it.

On this point, Mr. Justice DeBlanc, who was the organ of the Court in the first opinion rendered, says :

“ There was no actual seizure of any specific property, but a seizure of Mrs. Trigg’s interest in her parent’s estate, and that interest was not and could not have been reduced to possession. The fact remains that Mrs. Trigg’s (Pillow’s) inheritance was seized, advertised for sale and sold.”

Second — It was alleged in the answer that Mrs. Trigg, before any seizure was made by the marshal, had received more than her interest in her father’s estate, and relied on a receipt given by this heir, in which she acknowledges to have received payment in full of her share or interest in the succession.

The plaintiff’s counsel contended that this receipt only evidenced a sale or transfer of this interest by Mrs. Trigg and her mother, Mrs. Hannah P. Dickson, the administratrix, and, inasmuch as this writing had never been recorded prior to the seizure, it was without effect against the plaintiff, the seizing creditor.

On this point the Court held the following language :

“ In vain would it be contended that plaintiffs right to inquire into and annul any real transaction between Mrs. Trigg and her parents, accrued before plaintiff became a creditor of Mrs. Trigg, before the surviving parent was legally informed of the existence of appellant’s claim; and Mrs. Widow Dickson should have been allowed to prove what she has paid to, what was taken and received by her daughter from the estate of her father before the seizure of her daughter’s inheritance.”

“ As urged by the plaintiff’s counsel, from the date of her husband’s death, Mrs. Dickson was entitled to the usufruct of his share in the community of acquets and gains ; but when did she claim and exercise the right to which she was thus entitled ? Was it at the death of her husband? It was not; for then the. mutual understanding, the expressed intention of the mother and children, was that the property should continue to be held in common between them; “ that the property and family should remain as the father had left them.” Under that understanding the heirs of age took, and were allowed what they wished.”

“ In an instrument attached to one of the bills of exception, Mrs. Trigg acknowledged, on the 10th of January, 1867, that she had settled with her mother for her rights in her lather’s estate, and that she had been paid in full for her interest as an heir. In regard to plaintiff, as a third party, this instrument was not of itself an absolute proof of the verity of its naked and unsworn statements, but coupled with the evidence which the widow attempted to adduce to support its contents, it was relevant to, and an important part of, the. proof authorized by the issues presented. It was not the evidence of a transfer of any incorporeal right, but an acknowledgment by Mrs. Trigg, that she had received in cash, in kind, in someway, an amount which she considered equal to her share in the succession of Michael Dickson, and for that legitimate purpose it should have been admitted by the lower court.”

And in the opinion delivered on the rehearing, Chief Justice Manning, as the organ of the Court, on this same point, says;

“ Her receipt to her mother, the administratrix of the estate, and usufructuary of one-half of the property, is in full payment, and it appears to be conceded in argument if what she has received is chargeable to her as a part of her share, that it will turn out to be even more than her portion of the succession.”

Third — It was, however, insisted by the plaintiffs counsel, that Mrs. Trigg received nothing from the succession of her father. That Mrs.’ Hannah P. Dickson’s usufruct of the cotton and money, with which Mrs. Trigg was paid, was an imperfect usufruct, which vested her, the Widow Dickson, with the absolute ownership of the money and property used in making the payment.

On this point the Court declared :

“ The cotton and funds left at the death of Michael Dickson, did not, at that date, pass into the exclusive possession and become the absolute property of the widow as usufructuary ; but, by mutual agreement, remained, until they were disposed of and exhausted, in possession of the widow and heirs; and if at the date of the plaintiff’s seizure, Mrs. Trigg had already taken her share of said cotton and funds, her creditor cannot expect to be allowed to again exercise an extinguished, a satisfied right.”

Fourth — The parish judge by his decree had held Mrs. Dickson, administratrix, liable for a large quantity of cotton alleged to have been wrongfully disposed of and wasted by her. On this point the Court held, quoting their language:

“ The evidence does not support the assertion that Mrs. Widow Dickson disposed of twelve hundred bales of cotton belonging to the community, and that she was liable for their value, fixed by the lower court at one hundred and thirty-eight thousand dollars. Of the cotton raised during the war on the three plantations, less that which was stolen, contributed to the Confederate government, or taken by Mrs. Trigg, every bale was shipped to the city, and consigned to only one commission house, there sold for account of the estate of Michael Dickson, and every cent of the proceeds carried to the credit of said estate.”

Fifth — The judge a quo had held that Mrs. Widow Dickson should give bond as usufructuary, and by his decree required, her to do so. This Court declared that she could not be compelled to give bond, and that the widow in community, under the law, could be held to no such liability.

Thus it would seem that all the material issues involved in this litigation, raised either directly or indirectly by the pleadings and proceedings in the case, and which were so elaborately re-argued before us in the present appeal, were really passed on and decided in the previous appeal; and we are really at a loss,'upon a review of the case, with opinions so plainly pronounced on these issues, to understand why our predecessors should have remanded the case for any other proceedings. And it has required an exhausting scrutiny on our part to ascertain the exact purpose for which it was remanded. It was only by the closest examination we were enabled to surmise what that purpose was from the following language of the opinion rendered on the rehearing :

“ The crucial question, the answer to which determines this controversy, is what did the marshal seize and sell, and what did the plaintiff acquire by the adjudication to her ? ***** *

“ Our opinion is that the plaintiff has acquired only such interest as Mrs. Trigg, now Mrs. Pillow, had in the succession of her father at the time the seizure was made, and if she had received already a sum of money, or property that produced money equal to the value of her share of the succession, then she had no further interest therein.

"We are asked to put an end to this controversy by a present decree, but there is not complete evidence in the record what the value of the succession was at the time of the seizure of Mrs. Trigg’s interest; and although she has receipted to the administratrix for the whole of her interest, the verity, good faith and correctness of that receipt is open to attack by the plaintiff who may be able to establish that over and above the sums and property already received there is still something now coming to her as an heir of her father. If there be any thing still due her, the plaintiff is entitled to it. If there is not anything due her, the plaintiff has acquired nothing by her purchase.”

The ease was remanded and again tried, and evidence taken touching the date of this receipt, as also its reality, that is, as to the amounts Mrs. Trigg had really received in money or property from the succession of her father. The court a qua held that she had received more than her share of the estate before the marshal’s seizure, and rendered a judgment in favor of the defendant rejecting plaintiff’s demand, and from that judgment rendered upon that single issue, the present appeal was taken. From this statement it will be plainly seen how very limited is our inquiry.

The receipt, so often referred to, is in the following words and figures:

“ New Okleans, January 10,1867.
“ On settlement this day made with my mother, Mrs. H. P. Dickson, administratrix of the the succession of the estate of Michael Dickson, deceased, I have received payment in full for my interest in said estate, real and personal.
(Signed) Mary E. Trigg.”

In view of this writing, which our predecessors, as we have shown, decided to be, not a sale of Mrs. Trigg’s interest in the succession to her mother, as contended for by plaintiff’s counsel, but a receipt evidencing a settlement between her and her mother as administratrix of the succession, it seems to us that the inquiry, whether in this settlement Mrs. Trigg received more or less than her rights in the succession, or in fact what she did receive, was utterly idle and immaterial. Mrs. Trigg at the time was a widow, perfectly competent to make any contract or settlement she pleased; competent, if she chose to do so, to make even a renunciation or abandonment of her interest in the succession. And if she did sign this instrument, whether she received more or less than her share, is indeed nothing at all, was a matter of no importance so far as the rights of the plaintiff are concerned; for by making this settlement and giving this acknowledgment that she had received payment in full of her rights and interest, from that moment she divested herself of all right, claim and interest in the succession whatever. And inasmuch as it is shown that plaintiff was not then a creditor of Mrs. Trigg, she could not complain of the settlement nor inquire into it beyond requiring proof of its date and genuineness. If Mrs. Trigg had sued for her interest in the succession of her father, that settlement, if real, would have concluded her and barred any recovery. It will not be seriously questioned that the plaintiff, as the transferee of Mrs. Trigg’s interest, could possess no greater rights nor have any better claim than Mrs. Trigg herseff could set up.

Testimony was taken upon the last trial in the lower court, which established that the receipt was signed on the date it purports to have been, and that Mrs. Trigg actually .received the two hundred bales of cotton, which sold for $19,526 60, and which was decided in the first appeal to belong to the succession of Michael Dickson, and also at least ten thousand dollars in money. The money paid her, it appears, belonged to the administratrix, Mrs. Widow Dickson, personally; but this we deem of no consequence. The administratrix was under an obligation to settle with all the heirs of Michael Dickson. If she chose to advance her own funds to. make a settlement with any one of the heirs, she had the right to do so ; and the advance, thus made, was subject for adjustment in her final settlement with the succession.

We find, then, that the receipt given by Mrs. Trigg was given, and the settlement made of her interest in her father’s succession, on the 10th January, 1807, the date expressed in the instrument, and that the receipt was real; that is, it was intended to cover, and did cover, property and money that passed to her.

As we have shown that our inquiry was narrowed down by the action of our predecessors to these single issues, the whole case is disposed of.

We cannot extend our inquiry as urged by the plaintiff is counsel. We must confine our deliberations and actions to the identical questions, for the consideration of which the case was remanded, and which were considered and passed on in the Court a qua in the last trial. We cannot go beyond this, but must consider all the questions so ably discussed by the learned counsel for plaintiff, and to which our attention is so earnestly invited, as absolutely sealed to us.

In the last appeal to this Court the case was tried on all the issues presented by the pleadings, a decree was rendered, an application was made for a rehearing, and in the argument on this application all the original issues in the case were again discussed, and the Court maintained its first decree, which decided all the questions involved, with the exceptions mentioned. For us now to reopen the case as to those questions thus formally decided, would be,, in effect, to grant the rehearing refused by our predecessors, and revive issues which, under our rules of practice, had been formally and finally adjudicated.

In the case of Burbank vs. Harris, 30 A. 487, the identical question now presented arose. The case had been once before on appeal, and had been remanded for further proceedings in accordance with the views of the Court declared in its opinion. After another trial in the lower court, it again came up on appeal, and it was claimed by the appellant’s counsel in that, as in this case, that all the original questions were open for consideration and review.

■ In deciding this point the Court first made this statement:

Here, as they did in the lower court, plaintiffs contend that the judgment heretofore rendered by this Court is final as to defendant’s liability for damages, and that this case was remanded to the District Court for the exclusive purpose of ascertaining the amount of the incurred damages. The judgment referred to does declare that the defendant is liable for the destruction of the buildings and their contents, and for the injury done to the machinery. After that declaration by the Court, it pronounced the reversal of the judgment appealed from, and remanded the case to be tried according to law and in accordance with the views expressed in the opinion.”

Then follows this emphatic language of the Court:

Every line, every word of a decree has a legal value, and the decree already mentioned, when compared and applied to the declaration, is liable for the damages sustained, closes the door as to any inquiry relating to the already determined liability.”

23 A. 611; 80 A. 487.

We cannot depart from a rule of practice so well established.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be affirmed with costs.


text:
    No. 6503.
    Hermann Polhman vs. Anaïs De Bouchel, Widow Charles F. Berens.
    "Wlien laud is seized and sold by till© Sheriff, the buildings upon it, which are by law part of the realty, are equally seized and sold and become, as well as the land itself, the property of the purchaser.
    ^PPEAL from the Fourth District Court, parish of Orleans. Campbell,

    J. Tharpe for Plaintiff and Appellant.
    J. Ad. Rozier for Defendant and Appellee.
    First — A double dwelling house, stable, cistern and outstanding buildings, whether they have their foundations in the soil or not, are declared immovable by Art. 464 O. 0. They constitute a part of the immovable, and cannot be sold separately. 21 A. 324 ; 12 A. 227; 23 A. 749 ; 25 A. 436 ; 26 A 349 ; 2 A. 451.
    Second — The plaintiff does not pretend that he made or constructed the improvement, or that they were made or constructed out of his materials, but sets up that he bought them of a third person. Under no circumstances can he pretend to have the right to remove the improvements, as asked for in the petition.
   The opinion of the Court was delivered by

Levy, J.

The plaintiff in this suit seeks to be recognized as the owner of certain improvements," consisting of a double dwelling house, stable, cistern and outstanding buildings,” erected on a tract or parcel of land belonging to the defendant. He alleges that he became the purchaser of these improvements by an act of sale from George Kuntz (the former owner), passed on the 16th of July, 1875 ; that on the 17th of July, 1875, the defendant acquired the land, on which are the improvements, at sheriff’s sale ; that defendant withholds from him possession of the buildings and refuses to pay him their value, which he alleges to be $1500, and also refuses to allow him to remove the' buildings or improvements. He prays for judgment recognizing his ownership of said improvements, and that defendant be condemned to deliver to him the said improvements, or to allow him to remove the same, and to pay rent therefor, and in default to pay the sum of fifteen hundred dollars, with legal interest thereon from the 17th of July, 1875, till paid. Defendant answering, admits the purchase by herself of the tract of land, on which the improvements claimed were erected and now stand, at sheriff’s sale, under a writ of fieri facias, on the 17 th of July, 1875 ; that at and before the adjudication, under said sale, these improvements were on the land ; that in their nature they were and are immovable, and by said adjudication she became the owner of the land,and improvements as one immovable property. She avers that the alleged sale of George Kuntz to plaintiff is an absolute simulation. She further pleads res adjudicata, on the ground that plaintiff instituted a suit against this defendant in said Fourth District Court, numbered 43,784, in which suit the plaintiff set up the same allegations as contained herein and by judgment rendered on the 29th of November, 1875, and signed on the 8th of December, 1875, and in which the thing demanded was the same, there was judgment sustaining defendant’s exceptions of no cause of action and the said suits dismissed at plaintiff’s costs.

In this case there was judgment in the lower court in favor of defendant, and plaintiff has appealed.

At the time of the seizure and sale of the tract of land the buildings and improvements claimed by the plaintiff were on the land. Article 464 C. C. declares: “Lands and buildings or other constructions, whether they have their foundations in the soil or not, are immovable in their nature.” When the land was seized under the writ of ft. fa., the seizure included the buildings which were, as above declared, immov-ables. The plaintiff had no such right or privilege on these buildings and improvements as would entitle him to the benefits granted by Article 508 C. C. The law declares them to be immovable in their nature, and the seizure of the land to which they were attached included them. The sale by Kuntz to Pohlman did not, and could not, divest the seizure, and therefore was a nullity. 28 A. 430 ; 21 A. 324; 23 A. 749 ; 24 A. 436 ; 26 A. 349 ; C. C. 468.

The plea of res adjudicata was also well taken in this case, but the views above expressed render it unnecessary to enter upon the discussion of that question.

The judgment of the lower court is affirmed with costs.


author: Fenner, J.

text:
    No. 7970.
    Ada A. Walker vs. L. T. Barelli.
    This Court cannot, under the Constitution, entertain jurisdiction of an original aotion of nullity of one of its judgments.
    REPLICATION to bring an original action of Nullity of Judgment.
    Sam’l R. Walker for the Plaintiff.
    Ellis & Ellis, contra.
   The opinion of the Court was delivered by

Fenner, J.

This Court has never, from its foundation, so far as we have been able to discover, entertained an original action of nullity of judgment. When, therefore, the petition in this case was presented to us, the novelty of the proceeding and our serious doubts as to its propriety and as to our jurisdiction over it, prompted us to issue an order directing the parties to show cause, on briefs, why the prbceeding should- or should not be entertained.

The Constitution could not be more emphatic than it is, in declaring that “ the Supreme Court, except in cases hereinafter provided, shall have appellate jurisdiction only.” Art. 81.

The exceptions referred to are contained in Articles 89, 90 and 200, and they certainly do not embrace the instant case.

It will not be disputed that an action of nullity of judgment is an original suit entirely independent of the suit in which the judgment sought to be annulled was rendered.

The petition presented to us is not a petition for appeal which could only be presented to an inferior court. It brings up no record and asks no review of any ruling of an inferior court.

It is an original petition presented in this court, having no con-nexion with any other proceedings, asking us to cite a defendant, to require him to answer, to create a contestatio litis, to take and consider evidence, to hear-and determine the cause and to render judgment between the parties. It is, in no sense, an appellate proceeding ; and, not being such, whence are we to derive jurisdiction over it ?

The judgment sought to be annulled is a judgment rendered by this Court affirming a judgment rendered by an inferior court. We are referred to articles 608 and 610' of the Code of Practice declaring that the nullity of judgment must be demanded from the same court which has rendered the same. But, aside from all other questions affecting the applicability of those articles, it is plain that neither the Code of Practice nor other legislative act can confer upon this Court jurisdiction withheld from it by the Constitution.

It is said, however, that article 11 of the Bill of Rights which provides for open courts ” and “ adequate remedy by due process of law ” for all injuries, is appplicable to this case. But the Constitution elsewhere provides for what purposes this court shall be open, and what remedies it may administer. If we were to abandon the criterions thus established and to regulate our jurisdiction according to our own ideas of the adequacy and propriety of remedies, constitutional restraints would be of no avail.

We have examined all the cases referred to by counsel for petitioner (2 La. 8 ; 5 R. 288 ; 9 A. 28 ; 10 A. 18 ; 29 A. 597 ; 30 A. 794: 31 A. 468), and have made independent researches, without finding any remotely tending to sustain our jurisdiction.

None of them deserve notice except the case of Melangon vs. Brous-sard, 2 La. 8, which was an action brought in the District Court to annul a judgment rendered by the Supreme Court, and Judge Martin said: “ But the appellee’s counsel urges that, as this Court possesses no original jurisdiction and cannot receive any from the Legislature, its judgments may be attacked on the score of nullity, in the court which rendered the judgment appealed from, whether affirmed or reversed by this Court. This appears to us a non sequitur.” Whatever may be said of the soundness of this decision so far as it denies jurisdiction to the District Court, it certainly cannot be claimed that it asserts or admits,' such jurisdiction in this Court. On the contrary, it admits that this Court has not such jurisdiction, but holds that it is a non sequitur to say that, therefore, the jurisdiction rests in the District Court.

As to the jurisdiction of the District Court, we find no subsequent case reiterating the doctrine, and in the case of Grivat vs. Bank, 31 A. 467, its authority was impliedly disregarded. There, the suit was brought in the District Court to annul a judgment of this Court, and the latter determined the case, without questioning the jurisdiction of the inferior tribunal, upon other grounds.

We are not now called on to determine anew the question of the jurisdiction of the District Court, and will do so only when properly presented.

It is sufficient for present purposes, to say that we are clearly satisfied that this Court cannot entertain such an original action.

It is, therefore, ordered that the petition of plaintiff herein be not entertained, and that no further proceedings be had thereon.


text:
    No. 6768.
    City of New Orleans vs. W. H. Hill.
    Appeal from a judgment for $25, amount of a License tax.
    Tliis Court only lias jurisdiction in such, cases, when the constitutionality or legality of the tax ie in contestation.

    Defendant and Appellant has not hy his Answer or otherwise put at issue the constitutionality or legality of the tax complained of.
    This Court is, therefore, without jurisdiction.
    ^Furthermore, the City ordinance imposing the tax is not in evidence ,• had this Court jurisdiction, it could not review the judgment appealed from.
    APPEAL from the First Justice’s Court, parish of Orleans. Childress, J.
    Isaiah Tharp for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

The defendant has appealed from a judgment rendered by París Childress, First Justice of the Peace of the parish of Orleans, for twenty-five dollars.

The counsel for the defendant has filed in this Court a brief in which he attacks the validity of the judgment, on the ground that the city ordinance on which it was based was violative of the Constitution of the State and of the United States.

We have carefully examined the record, and find that the defendant, when sued for the license imposed by the ordinance in question, did not by his answer or otherwise put at issue the constitutionality or legality of the license, nor of the ordinance imposing it. The language of the present Constitution, which confers appellate jurisdiction on this Court, in this kind of cases, is as follows : “ To all cases in which the constitutionality or legality of any tax toll or impost whatever, or any fine, forfeiture, or penalty imposed by a municipal corporation, shall be in contestation, whatever may be the amount thereof.” And such too is the language of the Constitution of 1868, in operation when the appeal was taken. Inasmuch as there was no contestation ” made touching the constitutionality or legality of this license in the court of the first instance, and as that contestation arising there can alone confer jurisdiction on this Court, there is no issue or question presented by this appeal which brings the case within the jurisdiction of this Court, or which this Court can review.

Even had that question been properly raised in the lower court, we would still be without power to review the proceedings, for the reason that the municipal ordinance complained of was not offered in evidence, and is not in the record.

The appeal is dismissed at the cost of the appellant.


text:
    No. 7983.
    State of Louisiana vs. Wm. W. Beasley.
    The accused, haying accepted a juror and gone to trial without objection, cannot, after conviction, raise the question of the legality of the drawing whereby said juror was selected as a talesman.
    APPEAL from the Superior Criminal Court, parish of Orleans. Whitaker, J.
    J. C. Egan, Attorney General, for the State, Appellee.
    It is too late, after accepting a juror and after judgment, to move for a new trial on the ground of the incompetency of a juror.
    Jas. C. Walker for Defendant and Appellant.
    A new trial should be granted where a bill of exceptions establishes the truth *oi the iaet that on a trial ior murder, in the parish oí Orleans, the names of the talesmen were drawn from the jury wheel by an unauthorized stranger and not by the sheriff or his deputy, as the order of the judge and the law required.
   The opinion of the Court was delivered by

Levy, J.

The defendant was indicted for the crime of murder, was tried by a jury, convicted of manslaughter, and by judgment of the Superior Criminal Court of the parish of Orleans, sentenced to twenty years’ imprisonment at hard labor in the State penitentiary.

After the rendition of the verdict, defendant filed a motion and supplemental motion for a new trial, on the grounds in the original motion that “ the verdict is against the law and evidence; that the jury disregarded the charge of the court in not giving the accused the benefit of reasonable doubt; that the case being one of circumstantial evidence, and there being no evidence adduced tending to show any collision between the accused and the deceased, the verdict was manifestly the result of conjecture, and is not based on legal evidence and that “the verdict of manslaughter was manifestly a compromise verdict, the result of doubts in the minds of the jurors, to which the prisoner was entitled, and which should have operated to his acquittal, and of the benefits of which he was deprived.” Those set forth in the supplemental motion are: “ That, whereas, as appears from the minutes of the court, it was ‘ ordered that the criminal sheriff or one of his lawful deputies draw the names of twenty tales jurors from the jury wheel, and that said jurors be summoned to attend before the court forthwith ; ’ and although the names of twenty tales jurors were drawn from the jury wheel and were presented to the defendant to serve as jurors, one of whom was sworn and served as a juror on the trial of this cause, yet not one of the names of the twenty tales jurors so ordered to be drawn as aforesaid was drawn from the jury wheel by the criminal sheriff or any one of his lawful deputies, but they were all drawn from the jury wheel by a third person, other than the ‘ criminal sheriff or any one of his lawful deputies,’ without any warrant in law, and in violation of the positive order of the Court; ” and in support of these allegations in this motion, the affidavits of Waugh and Clark, two of the lawful deputies of the criminal sheriff, ■who were present when one J. C. Potts actually drew the twenty names from the wheel, are attached to and made part of said motion. The court ■a qua overruled the motions, to which ruling the defendants took a bill ■of exceptions.

The only ground presented by the defendant which merits consideration is that touching the alleged irregularity or illegality in drawing the names of the talesmen. The reasons urged in the original motion are not pressed by the counsel oí defendant in his brief, and if they were could not be deemed by us sufficient to justify us in overruling the action of the judge a quo in refusing a new trial, the application for which was based on these reasons. The sound discretion vested in him seems to us to have been wisely exercised in regard thereto. Nor do we think that the reasons presented in the supplemental petition and bill of exceptions can prevail with us. It is too late for the defendant, after having accepted the juror and gone to trial without any objection, now, to raise the question as to the legality of the drawing whereby he was selected as a talesman. To establish a different rule would be counter to-well-settled jurisprudence, determined by frequent decisions of the Supreme Courts of our own and other States of the Union. In State vs. Turner, 6 A. 310, it was held that, “a motion in arrest of judgment, or for a new trial, will not be sustained upon the ground that one of the grand jurors who found the indictment was one of the jurors who tried the case. The objection would have constituted a good ground of challenge, but could not avail after verdict.” In a like case it was so held in Soujh Carolina ; and in the same State, that an alien having sat upon the trial, although incompetent by law, it was not a sufficient reason for granting a new trial, inasmuch as he was not challenged. 2 Bay’s R. 162. The same principle was maintained by the Supreme Court of Pennsylvania, viz., that alienage might have been a cause of challenge before the juror was sworn, but that advantage could not be taken of it after verdict. 4 Dallas, 354 ; 5 Binney 3481 See also 17 Johnson (N. Y.) R. 133.

A somewhat analogous ease is presented in State vs. Kennedy, 8 Rob. 596. There the Court said : “ Our act requires a residence of twelve months prior to the formation of a venire as one of the qualifications of a juror. The juror had not acquired this residence and therefore could not have been legally drawn or presented to the accused. The want of residence is not an exception which the juror alone can plead, but a defect of which the accused may, at the proper time, avail himself. The law requires this term of residence in order that the juror may acquaint himself with the laws and institutions of the State and incorporate and identify himself with its people before he shall be permitted to sit in judgment upon their lives and property. The objection, however, comes too late. It should have been made when the juror was offered to the accused. 1 Chitty, 545, 546.” 21 A. 546 ; 28 A. 794.

The judgment appealed from is affirmed with costs.


text:
    No. 6736.
    New Orleans Insurance Association vs. Mrs. Mary E. Harper, Surviving Widow, etc., and E. Waggaman, Civil Sheriff.
    A suit brought against a sheriff in office and his predecessor, in solido, for the value of property alleged to have been seized by the former and lost whilst in charge of the latter, is an illegal joinder of parties. Either oue or the other of the two officers is liable because the property was lost whilst in his official possession; both of them cannot be responsible for that same reason.
    ^PPEAL from the Fifth District Court, parish of Orleans. Rogers, J.
    W. S. Benedict and Singleton & Browne for Plaintiff and Appellee.
    Ellis & Ellis for Defendant and Appellant.
    First — There is no privity of interest, quoad seized property, between a sheriff and his successor in office, and the plaintiffs allegation of liability for the loss of such property by neglect, against the former sheriff, is inconsistent with a similar charge quoad the same property against the latter.

    Second — In such case the official acts of the two successive sheriffs, quoad the same property sued for, are wholly distinct, and plaintiff cannot sue both sheriffs, in solido, as co-defendants in the same suit. 12 A. 74, Mayor vs. Amant; 14 A. 181.
    Third — Where suit is brought for money, the value of seized property lost by a sheriff, and not for the return of the property, plaintiff must allege and prove that defendant was put in mora. 16 A. 389 ; 30 A. 264-266 ; 27 A. 176; B. C. C. 1934.
   The opinion of the Court was delivered by

Todd, J.

This action was instituted in' October, 1875, against the legal representative of William P. Harper, deceased, ex-civil sheriff of the Parish of Orleans, and Eugene Waggaman, the then Civil Sheriff, and successor of the said Harper. The allegations of the petition were substantially as follows:

That under a writ of fieri facias issued in the case of D. & J. D. Edwards vs. Fairbanks & Gilman, the said Harper, sheriff, seized a large quantity of machinery appertaining to a sugar refinery in a building situated on the corner of Erato and New Levee streets, in the city of New Orleans.

That upon the expiration of the term of office of said Harper, the seizure still continued in force when his successor, Waggaman, was inducted into office, who took possession and remained in charge of the property seized till the 30th of July, 1875, when the seizure was released.

That upon the release of the seizure certain articles embraced in a schedule filed with the petition and valued at $4094, which wore in the building when the seizure was made, were found-missing. And it was charged that those articles “ were negligently lost or disposed of illegally while in the care and keeping of said W. P. Harper and the said Eugene Waggaman.” That this property so lost or disposed of belonged to the petitioner.

Judgment was prayed for against the succession of Harper and Waggaman, in solido, for the value of the property as stated.

The executrix of the estate of Harper answered, denying any technicalities on the part of Harper’s succession, and alleging that all the property seized had been turned over to his successor, Waggaman.

Waggaman filed an exception to the action, which was overruled. He then answered, denying any liability on his part, for the reason that he had delivered to the plaintiff, when the seizure was released, everything he had received from Sheriff Harper.

The case was tried on these issues. There was judgment in favor of the succession of Harper, rejecting plaintiff’s demand, but against Waggaman for $980 50. From this judgment Waggaman alone has appealed.

The conclusion we have come to with respect to the pleadings in this case, dispenses with any examination of the merits.

The exception referred to, presented by Waggaman in the lower Court, contained among others, the following grounds, which we quote literally:

“ He further excepts that plaintiffs allege and show no privity of interest between the estate of W. P. Harper, deceased, and this exceptor, as civil sheriff or otherwise, and that the non-liability of said W. P. Harper must be shown by plaintiffs before they can sue this exceptor, the liability of said W. P. Harper as predecessor in office of exceptor being inconsistent with his liability as the present and acting sheriff.”

“ He further excepts that the alleged causes of action against ex-ceptor and said estate arise from different alleged acts, and there being no privity of interest, as above stated, the joinder of separate defendants in said distinct causes of action in one suit is not legal.”

The petition charges that Harper and Waggaman were liable to the plaintiff in solido for $4094; that is, Harper’s estate is bound for this sum, and Waggaman is also bound for the same amount. How could Harper have become bound for this amount ? Only because that during the time this property was.in his keeping as sheriff, from the 29th of November, 1873, to the 26th of November, 1874, it was- lost by his neglect or illegally disposed of by him. If this were true, Harper, and Harper alone, would be liable to plaintiff.

Why or how could Waggaman owe the amount to the plaintiff ? ’Only for the reason that he suffered the articles to be lost or illegally disposed of them during the time they were in his charge, from the 26th of November, 1874, to the 81st of July, 1875, and in that case he alone ought to pay for them.

If, however, they were lost by Harper’s neglect or act during his charge of them, and he was liable for them, the loss could not have occurred during Waggaman’s control of them and he also be chargeable with them, and vice versa. In other words, the demand against Harper excludes and precludes the demand against Waggaman, and the demand against Waggaman bars the demand against Harper. The respective demands are utterly inconsistent with and exclusive of each other.

The defendants cannot be liable in solido, for they must each have participated equally in the emission or act that caused the loss. This was impossible, for during the time that Harper was under responsibility growing out of his charge of the property as sheriff, Waggaman did not, and could not, share that responsibility, for he was but a private individual, having no connection whatever with the matter. And during the time that Waggaman was chargeable with the property, Harper’s responsibility could not continue or exist, because with the commencement of Waggaman’s responsibility, his (Harper’s) had ceased.

They could not have been jointly bound, for they could not be ■charged with any joint acts of omission or commission, since their terms of responsibility were different and their acts separate and at separate times. It was impossible that both could have been liable in any manner for the debt claimed. And it is equally true that if one was liable the other could not be.

Nor was there any distinct and certain liability charged against either one of the defendants. It was uncertain under the allegations which one, if either, was liable for the debt, and that uncertainty was left for the evidence to dispel on the trial.

There was no privity between the defendants. So far from such privity or anything like a common interest existing, there was an antagonism between the parties, a conflict of interests, as illustrated by their respective answers, under which each one sought to escape liability to himself by throwing it on the other, and ready to form an alliance with the plaintiff for this purpose.

We are of opinion that this action, for the reasons stated, violates the well established principles of pleading and rules of practice, settled by an unbroken line of precedents, which forbid the joinder of two or more parties as defendants in the same suit in causes of action essentially distinct and separate. The exception, therefore, filed by Waggaman should have been sustained. 12 A. 74 ; 14 A. 181; 15 A. 10 ; 24 A. 614. The plaintiff and the estate of Harper being appellees, the judgment as between them cannot be disturbed ; besides, it is admitted by plaintiff’s counsel that the judgment in favor of this defendant was a proper one.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court against Eugene Waggaman, late Civil Sheriff of the Parish of Orleans, be annulled, avoided and reversed; and it is now ordered, adjudged and decreed that the exception filed by said de^ fendant in the court a qua be, and the same is hereby, sustained, and the suit dismissed — plaintiff to pay costs of both courts.

Rehearing refused.


text:
    No. 7962.
    George W. Cary vs. Jno. P. Richardson.
    It is only after the appeal bond is filed that the jurisdiction of the Appellate Court attaches? until then the Court a qua has full control of the case, and can rescind an order of appeal improvidently granted.
    ^PPEAL from the Sixth District Court, parish of Orleans. Mghtor,
    E. H. Earrár and Breaux & Hall for Plaintiff and Appellee.
    First — An order of appeal is an essential formality, in the absence of which an appeal must be dismissed. C. P. Art. 574 ; 6 N. S. 323 ; 2 A. 752, 902 ; 5 A. 666 ; 9 A. 158 ; 22 A. 373 ; 2 A. 628 ; 20 A. 193 ; 24 A. 276 ; 23 A. 543.
    Second — The order rescinding the order of appeal herein granted, before the former was entered in the minutes, and before the bond was filed, left the appellant without an order of appeal.
    Third — The court had power to grant such an order, because it still had jurisdiction of the case. It did not lose its jurisdiction until that of the Appellate Court attached, and this could not take place until the bond was filed.
    Hennen’s Digest, vol. 1, p. 73, YII (a), 3.
    State ex rel. Mount vs. Judge Sixth Court, 22 A. p. 37.
    Bayne & Renshaw for Defendant and Appellant.
    When an appeal has been granted and the bond has been fixed by the judge of the court a qua, his jurisdiction ceases and the jurisdiction of the Supreme Court attaches.
    A judgment which has been signed and the execution of which would cause irreparable injury is appealable.
    .John A. Campbell on same side.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Todd, J.

This is a motion to dismiss the appeal on grounds :

1st. That there was no order of appeal.

2d. That the appeal was taken from an interlocutory decree, "which did not work an irreparable injury.

This is a suit to have declared an alleged partnership between plaintiff and defendant dissolved, and for a settlement of the same.

A decree was rendered by the judge a quo, styled by him in the •decree itself an interlocutory one, in which he decreed the existence and dissolution of the partnership and appointed auditors with a view of •effecting a settlement between the partners.

From this order or decree an appeal was asked for and granted .■and the amount of the bond therefor fixed. This order was afterwards rescinded by the judge, and his right or authority to do so is denied toy the appellant’s counsel.

From the statement of facts signed by the counsel for both parties, and filed in this Court, we obtain the. following facts in regard to •this proceeding:

First. That on the morning of the 3d of July, the defendant in ■open court presented a motion for an appeal.

Second. That the appeal was granted.

Third. That twenty minutes subs'equently plaintiff’s counsel called the attention of the court to the decree or judgment as interlocutory.

Fourth. That thereupon thp court, without notice to appellant, ordered the clerk to enter the following order :

“ In this case a motion having been made this morning in the press •of business, occurring at the opening of the court, for a suspensive appeal, and the same having been inadvertently and unadvisedly allowed by the court, and the attention of -the court having been called to the interlocutory character of the judgment herein rendered, and to the fact that the same could not, under any circumstances, cause the defendant irreparable injury, the said judgment being a mere expression •of opinion as to what basis a final moneyed judgment is hereafter to be rendered on, and being merely preparatory to the determination of that judgment, and the said order of appeal not yet entered-on the minutes of the court, it is ordered that said order of appeal be rescinded and the same refused.”

Fifth. When this order of rescission had been entered, the order granting the appeal and fixing the bond had been made by the court, but had not been entered on the minutes, nor had the bond been filed by the appellant. The bond was filed about two o’clock on the same ■day, the 3d of July. .J

Sixth — The clerk, in writing up the minutes of the court, first entered the order granting the appeal, and then immediately afterwards-the order of rescission given above.

The question to be determined is whether, under this state of facts,, the judge a quo was authorized to rescind the order of appeal ? If he was, and the same was legally set aside, then there was no order to authorize the appeal and the same must be dismissed.

There is some contrariety of opinion in the decisions of this Court on this point, but the weight of authority seems to be that the jurisdiction of the lower court over the question of appeal, and the orders rendered with reference thereto, ceases only when the bond is executed and filed,, and that it is only .when the appeal bond is filed that the jurisdiction of. this Court attaches, and that until it does so attach the order is within the control and jurisdiction of the lower court.

In the case of Bridge et al. vs. Merle et al., 7 L. 448, the Court uses-this language:

“ The jurisdiction of the appellate court attached as soon as the-bond was filed, and the lower court of the first instance had no longer authority to take any steps in the case.”

And in case of Fink vs. Martin, 10 R. 152, the same expression occurs..

The converse of the rule laid down by these decisions must be equally true, that is; that until the jurisdiction of the appellate court attached in the manner stated, the judge of the lower court had authority in regard to all orders he may have made touching the matter in, question.

The very terms of the order for “an appeal would seem to imply that the appeal asked for was contingent upon the giving of the bond. The usual language of such order is that found in the order in this case-—the appeal is granted upon the appellant giving bond and security for-an amount stipulated, etc. The appeal only takes effect under the terms of the order when the bond presented is executed and filed. See,, also, Bates et al. vs. Weathersby, 2 A. 484.

State ex rel. Mount vs. Judge Sixth District Court, 22 A. 37. In. this case it is to be noted, also, that the order of appeal was revoked or rescinded before it had been even entered on the minutes of the court.

The view we have taken of the question involved in the first ground of this motion, and the conclusion we have come to, renders the consideration of the second ground contained therein unnecessary. And it is equally unnecessary to cite authorities to show that without an order to authorize it no appeal can be taken.

It is, therefore, ordered that the appeal be dismissed at the cost of the appellant.

Mr. Justice Eenheb recuses himself, having been of counsel.


author: Bermudez, C. J.

text:
    No. 6728.
    M. Shelly & Co. vs. G. M. Bayly and B. M. Pond.
    Under the "bankrupt laws of the United States, a creditor is not remitted to his original right to sue at law, by the failure of the bankrupt to comply with the terms of his Composition. The State Courts have, therefore, no jurisdiction of the suit of the creditor.
    j^PPEAL from tlie Sixth District Court, parish of Orleans. Bightor, J.
    Thos. J. Semmes for Plaintiffs and Appellants.
    A debtor who has made a composition with his creditors under the Bankrupt Law of the United States, and failed to comply with its terms, can be sued in a State court, and compelled to pay the entire debt of the creditor whose share of the composition has not been paid.
    The Supreme Court of Massachusetts, in a similar case, says : “ Having refused to pay according to their composition, the defendants cannot now protect themselves by it.”
    National Bank vs. Porter, 122 Mass. 308.
    This composition law, enacted by the United States in 1874, is derived from England; the statute of the United States is almost copied verbatim from that of England.
    Failure to comply with the terms of the composition, it has been held in England, remits the creditor to his original right to sue at law, and he is not obliged to go into the Bankrupt Court to enforce the composition. The creditor has his option to sue at law for the full debt, or apply to the Bankrupt Court to enforce the composition, or set it aside.

      In re Hatton, L. R. 7 ch. app. 723.
    Edwards vs. Coombe, L. R. 7 C. P. 519.
    Newell vs. Van Praagh, L. R. 9 C. P. 104.
    Edwards vs. Honcher, L. R. 1 C. P. Div. US.
    Kennard, Howe & Prentiss for Defendants and Appellees.
    First — Under the Constitution, and by the laws of the United States, the Federal Courts of Bankruptcy have exclusive jurisdiction of all matters and proceedings in bankruptcy. R. S., 711.
    After bankruptcy proceedings commenced, a creditor having a probable debt, and a fortiori creditors who have proved such debt, cannot pursue the bankrupt in a State court thereon, save in certain excepted circumstances which do not exist in the case at bar. Rev. Stat., 105, 106, and amendment of June 22, 1874, 8th Bump. 675, et seq. By the act of June 22,1874, a composition in bankruptcy was provided for. 8 Bump, p. 668.

      This was not a mere conventional compromise, but a proceeding which, when confirmed by the court, attained the dignity of a decree, and could only be enforced or set aside by the court that rendered such decree. Billings, J. Ms. opinion in re Bayly & Pond. Same case on petition of review, Woods, Circuit Judge, 19 B. R., 73 ; Deford vs. Hewlett, 18 B. R., 518.
    Second — The difference between the English laws on this subject and the American statute is plain. The English cases are not in point against defendants, and the cases cited above control on reason and authority.
    Third — The decree of the Court of Bankruptcy confirming a composition does not terminate the proceedings. That court retains the ’ cause, the parties and the subject-matter. The bankrupts administer the assets under its orders ; they may be punished for contempt, and their administration may be terminated when, and only when, that court sets aside the composition, and directs the cause to move on to the election of an assignee, and for other purposes. 18 B. R., 552 ; 19 B. R, 73.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is a suit for a balance due on an open account.

The defendants excepted to the jurisdiction of the court, alleging that they, individually, and as composing the firm of G-. M. Bayly & Pond, had obtained a decree from the U. S. District Court for Louisiana, sitting in bankruptcy, granting and confirming a composition offered by them, by the payment of twenty-five cents on the dollar, and that said decree was affirmed by the U. S. Circuit Court, and became final before the filing of the petition herein; that the plaintiffs’ claim was contracted before, and is embraced within, said composition, granted under the Bankrupt Act and the amendments thereto, and that said composition can be set aside only by the U. 8. District Court, which has sole and exclusive jurisdiction concerning the same and their bankruptcy. They, therefore, prayed for the dismissal of the suit.

On the trial of the exception a statement of facts was made by the parties, which establishes the averments of the exception. The District Court sustained the plea to the jurisdiction, and dismissed the suit.

Prom this judgment the plaintiff has appealed.

By section 611 of the U. S. Revised Statutes, enacted in furtherance of section 8 of article 1 of the Constitution of the United States, which vests Congress with power to “establish uniform laws on the subject of bankruptcies throughout the United States,” it was provided that the Federal Courts should have exclusive jurisdiction of all matters and proceedings in bankruptcy, and that where a creditor has a favorable claim, and where he has proved it in the bankruptcy, he cannot sue on it in the State Court after the proceedings in bankruptcy of the debtor been commenced, until the proceedings have been terminated without a discharge, or after a discharge has been refused.

B. S. U. S., 5105, 5106, and amendment of June 22d, 1874.

By the amending act provision was made for a composition between the bankrupt and his creditors, which was to be a proceeding which, when confirmed by the court, became a decree of the court, which the court alone could set aside, under a special provision, when the creditors asked that relief. When the decree is set aside, the cause in bankruptcy proceeds and the estate continues to be administered upon.

Bump, 8th ed., 668, 670.

Belying upon the statement of facts, the plaintiff insists that the defendants, having failed to comply with the terms of the composition, the creditor is remitted to his original rights, and may sue at law, to recover his entire debt.

In support of- that position he argues that the composition law, enacted in 1874, is derived from England, and is copied almost verbatim from the English statute. He claims that it has been held in England that a failure to comply with the terms of the composition remits the creditor to his original right to sue at law, and that he is not obliged to go to the Bankrupt Court to enforce the composition, and that he has his option to sue at law for the full debt, or apply for relief to the Bankruptcy Court. He cites in support of this position : In re Hatton, L. R. 7 ch. app. 723 ; Edwards vs. Coombe, L. R. 7 Com. Pl. 519 ; Newell vs. Van Praagh, L. R. 9 Com. Pl. 104; Edwards vs. Honeher, L. R. 1 Com. P. Div. 118 ; also National Bank vs. Porter, 122 Mass. 308.

It is apparent that there exists a material and vital difference between the English act (4 B. B. 192-200) and our own. Under the former, composition can take place before and withoiot any proceeding in bankruptcy, while under our statute it can only take place in the course of the proceedings, in the manner and form prescribed, and subject to the restrictions mentioned.

In re Scott Collins & Co., 15 B. R., p. 78.

In the case of Deford vs. Hewlett, 18 Nat. Bank. Rep. 518, the Court of Appeals of Maryland, after scrutinizing the peculiar form of the American act, has decided that, after a composition provides that the installments shall be secured by the notes of the debtor, a creditor who has proved his debt cannot sue for his original debt in a State court, although the debtor has made default in payment of one of his instal-ments.

In 19 National Bankruptcy Register, 73, 77, 78, the U. S. Circuit Court for the District of Louisiana (in a case coming from the District. Court sitting in bankruptcy, on a petition of review, which was dismissed), has endorsed that ruling as well founded in law, announcing-clearly that the remedy for the failure to comply with the terms of the composition is pointed out by the statute, which does not permit the creditor to sue for and recover his original debt, but provides for an application to the court for the enforcement of the composition, or resumption of the bankruptcy proceeding.

The decree of composition does not divest the court making it of further jurisdiction. It merely keeps its powers in suspense. The bankrupt becomes a trustee, and is amenable to the orders of the court.. Where the composition is annulled or set aside, the proceedings in bankruptcy are resumed, and continue until the final liquidation has taken place.

We, therefore, think that the plea to the jurisdiction was properly sustained. •

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