author: Taliaferro, J. Howell, J.

text:
    No. 3805.
    Charlotte F. L. Stafford v. James M. Stafford, her husband— Calvin Tate and al., Intervenors.
    Tlie law reprobates a multiplicity of actions and aims at protecting parties against the-annoyance of repeated lawsuits in regard to the same subject matter.
    “If one demand less than is due him, and do not amend his petition in order to augment his-demand, he shall lose the overplus.” C. P. art. 156.
    from the Ninth Judicial District Court, parish of Rapides. Orsborn, J.

      B. J. Bowman and T. S. White, for plaintiff and appellee. Seay ds Manning, for intervenors and appellants.
    Justices concurring: Ludeling, Taliaferro, Howell, W.yly, Morgan..
   Taliaferro, J.

In this case a wife brings suit against her husband for $13,000, alleged to he for moneys of her separate estate, received by him and converted to his own use. Certain creditors of the husband intervene and contest her claims, averring that they are unfounded, and gotten up for the fraudulent purpose of depriving them of a tract of land formerly the property of the husband, but which they had purchased at sheriff’s sale, under legal process, to enforce payment by the husband of notes given by him for the price of the land. They further allege that in a former suit against her husband,, the plaintiff in this action obtained a judgment against him for $2000, decreeing likewise a separation of property, and dissolving the community of acquets and gains. There was judgment in the court below in favor of the plaintiff for the amount claimed, and the intervenors have appealed.

The litigation between these parties includes another suit recently decided by this eourt on appeal, in which one of the intervenors brought a petitory action to recover from the wife and her husband a tract of land and plantation in the parish of Rapides. It appears that the plaintiff in this suit obtained judgment for the sum of $2000 against her husband on the seventeenth of May, 1869, on account of paraphernal rights, and that she claimed at that time no larger sum as-owing to her by her husband. The present action was commenced on the eighth November following, and on the eleventh of that month-the husband by a notarial act transferred to his wife the property in contestation as a datíon en paiement of the claim against him for $13,000. The evidence in the record, we think, tends to raise well founded doubts of the fairness and genuineness of this claim set up by the wife. It is shown that the rights now set up by her, it bona fide- and unsatisfied, existed anterior to the time of her commencing her first suit against her husband, in which she claimed only the sum of two thousand dollars. There is nothing whatever tending to explain an omission so anomalous and unusual as that of praying judgment •only lor an inconsiderable part of her demand, the whole of which, as alleged in her petition in the first suit, was in danger of being lost from the embarrassed condition of her husband’s affairs. “If one demand less than is due him and do not amend his petition, in order to augment his demand, he shall lose the overplus.” C. P. 156; 14 L. R. 140; 2 Rob. 207; 14 An. 316.

The law reprobates a multiplicity of actions, and aims to protect parties against the annoyance of repeated lawsuits in regard to the same subject matter.

We conclude after a full consideration of this case that the plaintiff ought not to recover, and that the judgment of the lower court should not be sustained.

It is therefore ordered, adjudged and decreed that the judgment of ■the district court be annulled, avoided and reversed. It is further ordered that there be judgment against the plaintiff rejecting lier demand, with costs in both courts.

On Rehearing.

Howell, J.

After a careful re-examination of the pleadings, evidence and arguments in this case, we are unable to change the opinion we have already given. We think art. 156 C. P. must be held to apply to a case like this.

It is therefore ordered that the decree heretofore rendered by us remain undisturbed.


source: Caselaw Access Project

author: Morgan, J.

license: Public Domain

text:
    No. 3210.
    Joseph Bruin v. W. M. Sasser.
    is the settled jurisprudence of this court that there is no authority for rendering a judgment against the defendant in a suit on a promissory note given for the purchase of a slave, guaranteed to be such for life, hut subsequently set free by the Government of the United States.
    from the Ninth Judicial District Court, parish of Rapides. Lewis, J.

      Hyams & Jonas and Manning, for plaintiff and appellee.

      A. N, Ogden, By cm & White, for defendant and' appellant.
    Justices concurring: Ludeling, Taliaferro, Howell, Morgan.
   Morgan, J.

This case comes up on the following statement of facts:

“The note herein sued upon was given to the plaintiff, Joseph Bruin, by the defendant, Sasser, being the balance due on a slave for life, «uaranteed to be such by the said plaintiff, in the act of sale passed before a notary public in the city of New Orleans, Louisiana, at the time the note is dated.
■ “The slave was a mechanic, and. defendant paid the plaintiff $1600 ■cash, and gave besides the note herein sued upon, at the time of the purchase.
“ The slave so purchased, remained in possession of the defendant until he was emancipated or set free by the Government, in 1864 or 1865.”

Under the settled jurisprudence of this court, there is no authority for the judgment herein rendered against the defendant.

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

Wyly, J., being absent look no part in this decision.


author: Ludeling, C. J. Morgan, J.

text:
    No. 2746.
    David A. Martin v. Mrs. L. A. Cannon, Administratrix et al.
    Where an exception to tlie suit was filed on the ground that the heir had been put in possession of the property and the administratrix could not bo sued, and where,.on said plea, the exception as to tho administratrix was sustained, and the case was tried as to the heir •> Hold — That the suit should have boon dismissed.
    The Second District Court of tho parish of Orleans has only probate jurisdiction, and had not jurisdiction to try tho suit against tho heir who had been put in possession of the property of the succession.
    Where, on plaintiff’s appeal, tho judgment of the courts qua was reversed and plaintiffs suit dismissed;
    Held — On rehearing: That plaintiff is to pay costs in the court a qua, and appellee the costs of apjieal.
    APPEAL from the Second District Court, parish of Orleans, JDuvigneaud, J.

      Race, Foster & Merrielc, tor plaintiff and appellant.

      W. B. Koonte and L. Madison Bay, for defendants and appellees.
    Justices concurring : Ludeling, Taliaferro, Howell, Kennard.
   Ludeling, C. J.

This suit is brought to recover from the succession •of Elijah Cannon certain moneys collected by E. Cannon, as agent of the plaintiff, and to recover the amount of certain notes alleged to have been executed by E. Cannon. The petition alleges that Mrs. Marie Louise Cáunon, wife of W. B. Koonlz, has been put in possession of said property, after having given bond according to law, and .judgment is prayed for against the administratrix aforesaid, and in the event tire administratrix fails to pay the judgment, that there be judgment against the said heir.

An exception was filed to this suit, on the ground that the heir had betn put in possession of the property, aud the administratrix could not be sued. The exception as to the administratrix was sustained, ■and the case was tried as to the heir. We think the suit should have been dismissed. Article 996, Code of Practice, declares, “ the case is-different when such estates are in possession of heirs either present or represented in the State, although all or some of those heirs be minors .. for in such case the actions for debts due such successions shall be brought before the ordinary tribunals, either against the heirs themselves, if they he of age, or against their curators if they be under age or interdicted.’’

The Second District Court of the parish of Orleans has only probate jurisdiction, and had not jurisdiction to try the suit against the heir-who had been put in possession of the property of the succession.

It is therefore ordered and adjudged that the judgment of the court a qua be annulled, and that there be judgment dismissing the plaintiff’s-action, with costs, without prejudice to his right to bring the suit in a proper tribunal.

On Rehearing.

Justices concurring: Ludeling, Howell, Taliaferro, Morgan, Wyly.

Morgan, J.

A rehearing was granted in this case upon the question of costs of appeal. Costs follow the judgment, and as the judgment was in favor of appellant, it is now ordered that the judgment heretofore rendered by us be amended so as to read as follows :■

It is therefore ordered, adjudged and decreed that the judgment of the court a qua be annulled, and that there be judgment dismissing-the plaintiff’s action, without prejudice to his right to bring the suit, iu a proper tribunal, the costs of the lower courtpobe paid by plaintiff,- and the costs of appeal by the appellees.


author: Taliaferro, J.

text:
    No. 2676.
    Consolidated Association of the Planters of Louisiana v. E. Blanc and J. A. Blanc.
    Whore a rulo was taken on tlio holder of a judicial mortgage and on the recorder of mortgages to show cause why said judicial mortgage should not be¿cancelod and erased, on the ground that the notes on which the judgment was founded were given in part payment of the price of a slave;
    Held_That the judgment was db initio void. The court was withoutjpower to render it, the notes were illegal and invalid, and the judgment in which they merged necessarily so* likewise.
    from the Fifth District Court, parish of Orleans. Beaumont, J.

      J. Bavergne, for plaintiffs and appellants.

      Bornor &■ Benedict, for defendants and appellants.
    Justices concur ling: Ludeling, Taliaferro, Howell, Morgan.
   Taliaferro, J.

This is a proceeding to cause to be annulled the-recording of a judgment, from which a judicial mortgage purported. to exist. The facts are that in March, 1862, Everiste Blanc bought a slave on credit, and gave three notes for the price, each note for $216 66f. These notes were drawn by E. Blanc to the order of and indorsed bj' James Arthur Blanc, and were discounted in the ordinary way of business by the plaintiffs. On the eleventh June, 1866, the plaintiffs obtained final judgment on all three of these notes, and liad the judgment recorded to operate a judicial mortgage.

On the eleventh January, 1870, E. Blanc took a rule on the plaintiffs and the recorder of mortgages to show cause why the judicial mortgage showing on the records ot the office should not be canceled and erased, on the ground that the notes on which the judgment was founded were given in part payment of the price of a slave. The sale was made absolute, and the defendants in rule hace appealed.

The judgment was ab initio void. The court was without power to render it. The consideration for which the notes sued upon were given was one reprobated by law. The notes were illegal and invalid, and the judgment in which they were merged necessarily so likewise. Wainwright v. Bridges, 19 An. 234; Groves v. Clark & Carneal, 21 An. 567.

Judgment affirmed.


author: Ludeling, C. J.

text:
    No. 4624.
    The State ex rel. Nelson & Poppleton v. Judge of the Sixth District Court, Parish of Orleans.
    Where the defendant, after pleading to the merits, made a reconventkmal demai.ti, and the judge refused to fix the cause for trial unless the defendcmt should give security ior costs;
    Held — That there is no known law or practioe which could justify his conduct, and that-none had been referred to by said judge.
    APPLICATION for a Mandamus on Saucier, Judge of the Sixth District Court, parish of Orleans.

      George L. Bright, lor relator.
    Justices concurring : Ludeliug, Howell and Morgan.
   Ludeling, C. J.

The suit of the New Orleans and Bay Island Company v. Nelson & Poppleton is pending in the Sixth District Court. The defendant, after pleading to the merits, made a reconventional demand.

The Judge of the Sixth District Court refuses to fix this cause for trial unless the defendcmt shall give security for costs.

We know of no law or practice which would justify his conduct— nor lias he referred us to any.

It is therefore ordered and adjudged that the judge a quo cause the clerk of his court to reinstate the said suit on the jury docket, and that the said case be called and fixed for trial according to law.


text:
    No. 4417.
    State ex rel. John C. Bach v. Louisiana Levee Company.
    A party should not "be listened to, when urging technical irregularities in the proceedings to which he was himseli a party, in order that he should enrich himself at the expense of others.
    APPEAL from the Eighth District Court, parish of Orleans

      Dibble, J. Labatt & Aroni, for relator and appellant. A. Pitot and Semmes & Mott, for respondent and appellee.
    Justices concurring: Lndeling, Howell, Morgan.
   Ludeling, C. J.

This is a proceeding by mandamus to compel the defendant to issue to him a certain proportion of the sixty thousand shares of stock, which lie says has been illegally issued to various parties.

The capital of the company was originally three millions of dollars, represented by thirty thousand shares. Three thousand shares were to be used for incidental expenses; twenty-seven thousand shares were distributed between the twenty-seven incorporators, each receiving one thousand shares, to be reimbursed for labor, time and money expended in the organization of the company,” it is said.

The capital was afterwards raised to ten millions of dollars, and the balance of the unissued stock, seventy-three thousand shares, were given to Wilmans, under an agreement with him to furnish the means necessary to build the levees contracted for by the company.

Wilmans failed to comply with his contract, and he delivered his stock, minus thirteen thousand shares, to Governor Warmoth. The contract with Wilmans was declaied annulled by the company, and his position as president of the company was declared vacant.

At this juncture Governor Warmoth threatened to cause proceedings to be instituted to forfeit* the contract of the company with the State, unless steps were taken by it to enable it to comply with its contract. On the twenty-second of November, 1871, a committee was appointed to prepare modifications of the charter. The modification to reduce the capital to 22,104 shares was agreed to at a meeting of the stockholders. A committee was then appointed to receive the Wilmans stock from Governor Warmoth. It had been previously agreed that the sixty thousand shares held by Governor Warmoth was to be equally distributed between twelve persons, John G. Gaines, D. F Kenner, Generes and others, who were to furnish three hundred thousand dollars cash to the company. But in order to compel the origina^ twenty-seven incorporators to contribute their pro rata of money to the enterprise, it was stipulated that the stock should be made preferred stock by paying five dollars per share, and the preferred stock should be entitled to a dividend of twenty per cent before the ordinary stock should receive any. This seems to have been approved by all parties, and the sixty thousand shares were accordingly issued to Gaines, Kenner and their associates, who seem to have complied with their part of the agreement. Mr. Bach appears to have approved of these proceedings, for he was one of the commissioners of election when the directors of the company were elected on the tenth of April, 1872.

We do not think he should be listened to, when urging technical irregularities in the proceedings to which he was himself a party, in order that he should enrich himself at the expense of others.

There is no equity in his demand, even if he could proceed by mandamus against the company to accomplish the object of his suit.

Our judgment is that there is no error in the judgment appealed from.

It is therefore ordered that the judgment of the district court be affirmed, with costs of appeal.


author: Howell, J.

text:
    No. 4570.
    J. W. Weatherly, Agent, v. A. H. Baker. G. Johnson, Intervenor.
    Tlie lessee lias tlie riglit to sublease wlieu there is no interdiction to that effect, and on such terms as may be agreed on between him and the sublessee, and where it is shown that the sublessee did not make any payment in anticipation of the terms of his contract, he is not liable to the lessor for more than he owes the principal lessee. iTo law is referred to by the plaintiff which requires the lease made in this instance by the principal lessee to the sublessee to be in writing.
    from the Thirteenth Judicial District Court, parish of Tensas. Hough, J.

      Reeve Lewis and J. W. Montgomery, for plaintiff and appellant.

      H. W. JDralce and H. R. Steele, for intervenor.
    Justices concurring: Ludeling, Howell and Taliaferro.
   Howell, J.

The plaintiff brought suit on alease and caused certain property on the premises to be provisionally seized. One G. Johnson, as a sublessee of the defendant, intervened, claiming to be the owner of a portion of the property seized, and from a judgment in his favor the plaintiff has appealed.

He complains that the sublease was a verbal one, unknown to him, and the terms thereof so fixed as to enable the principal tenant to shield the price of the sublease from the pursuit of the principal lessor; and he asks that the court will expound the law on this subject for the benefit of owners of plantations who may wish to rent their lands.

Article 2625, R. C. C., declares that': The lessee has the right to underlease, or even to cede his lease to another person, unless this power has been expressly interdicted. The indiction may be for the whole, or for a part; and this clause is always construed strictly.”

Articles 2705 and 2706, give to the lessor the right of pledge on all the movable effects of the lessee found on the premises (except certain articles exempted), and also those of the under tenant, so far as the latter is indebted to the principal, at the time when the proprietor chooses to (¡zeroise his right. A payment made in anticipation, by the under tenant to his principal, does not release him from the owner’s claim.

Prom these provisions of the law, it is clear that, as there was no interdiction, the defendant had the right to sublease, as he did, and on such terms as might be agreed on. And as it is abundantly shown that the intervenor did not make a payment in anticipation of the terms of his contract, he was not liable to the plaintiff for more than lie owed to the principal lessee. This he admitted and did not claim the property to that extent. We are referred to no law which requires such leases to be in writing.

We think the judge a quo has done justice.

Judgment affirmed.


text:
    No. 4529.
    Lucien D. Coco v. James Hardie. J. V. & M. Rabalais, Warrantors.
    Damages for a suit, unless malice is shown, can not be recovered.
    There is no ground for a call in warranty in a case of trespass, and lienee there is no right of action against warrantors.
    from the Seventh Judicial District Court, parish of Avoyelles. Sutler, J.

      Overton, Waddill & Safbin, for plaintiff and appellee. Irion & Thorpe, for defendant and appellant. GuUum <& Joffrion, for warrantors.
    Justices concurring: Ludelling, Taliaferro, Howell, Morgan.
   Howell, J.

Plaintiff sues defendant for the value of a large number of cypress trees at ten dollars each, cut on his land by the defendant, who calls in warranty J. Y. & M. Rabalais from whom he obtained permission to cut cypress trees on their lands, and by whom the lines of their said lauds were pointed out to him, and he was authorized to cut within such lines, which he did. The warrantors deny that there is any cause of action against them; aver that they pointed out to defendant the limits of their own lands and did not authorize him to trespass on plaintiff’s land, and they pray for damages against him. Judgment was rendered in favor of plaintiff for $1350, just half of what he claimed, and in favor of warrantors; also against defendant, for one hundred and fifty dollars special damages; the defendant to pay all costs, and he has appealed.

The judgment in favor of the warrantors is erroneous. Damages for a suit, unless malice is shown, can not be recovered. Sedgwick, Measure of Damages, p. 38. There is no ground for a call in warranty in a case of trespass. 8 N. S. 549; 2 An. 219. And hence there is no right of action against these warrantors.

As to the plaintiff and defendant the only question is in regard to the value of the trees. Some witnesses say they are worth ten dollars, others five dollars, and others four dollars each, while it is shown that the two parties called in warranty sold theirs to the defendant at one dollar each ; but it is also shown that the trees cut by the defendant ■on plaintiff’s land were of better quality, never having been culled, and w'ere in better position than those on the lands of the said warrantors. Under the circumstances we see no good reason for adopting ■ a different law from that fixed by the district judge, whose opinion ■ upon this point is entitled to great weight.

It is therefore ordered that the judgment for $150 against the defendant in favor of the warrantors be reversed, and that in other respects the judgment appealed from be affirmed; the warrantors to .pay costs of appeal.


text:
    No. 4581.
    John Sevier v. Succession of James G. Gordon.
    . A rule against an executor or a succession can no* bo taken after tlie succession has been closed and the executor has been discharged, nor can an order to sell succession property be granted after the heirs have been in possession subsequently to a partition among themselves.
    APPEAL from the Probate Court, parish of Teusas. Cordill, J.

      T. J?. Farrar & L. V. Reeves, for plaintiff and appellee. Drake & Garrett and W. D. Spencer, for defendant aud appellant.
    Justices couearring : Ludeling, Taliaferro, Howell, Wyly, Morgan.
   Ludeling, C. J.

The plaintiff having a judgment against the succession of James G. Gordon, took a rule against the former executor of the will of said Gordon aud the heirs to show cause why the property of the succession should not be sold to satisfy the judgment in the suit of J. V. Sevier v. George Sargent et als. We have decided that the succession of Gordon had been closed, that the executor had been dis■oharged and his bond canceled, after having turned over to the heirs .at law the pioperty of the succession. A rule against the executor or the succession could not he taken after the succession had been closed and the executor liad been discharged ; nor could an order to sell succession property be granted after the heirs had been put in possession after a partition among themselves. The proceedings in this case are unauthorized by law.

It is therefore ordered and adjudged that the judgment of the lower court be annulled, and that there be judgment dismissing the suit at plaintiff’s costs.


text:
    No. 4524.
    Emmanuel Loeb & Co. v. A. Blum. J. G. Spor and Julius Krafts, Third Opponents.
    Where the vendee was putin possession in Germany of a certain quantity of wine which he had bought in that country and that possession continued across the Atlantic;

    Held — That the vendor’s privilege could not be stretched so far as to extend from the banks-of the Rhine to the banks of the Mississippi, and be made to last during a voyage from one continent to the other.
    A consignee’s privilege can not prevail against the seizure made by judgment creditors, if not recorded prior to the seizure.
    from the Fifth Judicial District Court, parish of East Baton Rouge. Posey, J.

      Barroio & Pope and Thomas J. Oooley,. for plaintiffs and appellants. Fuqua & Oalliham, for third opponents and appellees.
    Justices concurring : Ludeling, Taliaferro, Morgan, Howell.
   Morgan, J.

Blum purchased eight casks of wine from Krafts. The purchase was made in Germany. The price was to be paid, part cash, and part on credit. The wine was consigned to Spor.

Loeb & Co., judgment creditors of Blum in the sum of $324 98,. issued execution directed to the sheriff of the parish of Orleans, who seized the wine above referred to in the hands of Spor, the consignee,, and Casey, the collector of the port. The wine was sold by the sheriff and produced $891 80.

Before the sale, Spor, by third opposition, claimed to be paid the amount of his advances for freight, duties, brokerage, etc., amounting, to $393 66 by preference over the seizing creditor.

Krafts also intervened and claimed his vendor’s lien and privilege on the property seized, for the amount remaining due to him, $520,. and asked to be paid that amount in preference over Loeb & Co.

There was judgment in favor of Spor for the amount claimed by him; and then in favor of Krafts ior $520, with interest from November 21, 1871; Loeb & Co. to receive the balance if any remained. From this judgment Loeb & Co. have appealed.

A mol ion to dismiss the appeal is made on the ground that the amount in controversy does not come within the appellate jurisdiction of this court. The motion can not prevail. Krafts’ claim exceeds five hundred dollars, and this is sufficient to give us jurisdiction. Besides,, the sum to be distributed between the contestants largely exceeds that sum. 21 An. 487.

On the merits, we think there is error in the judgment appealed from.

The wine was purchased in Germany. To stretch the vendor’s, privilege from the banks of the Rhine to the banks of the Mississippi,, and to make it last during a voyage across the Atlantic is, we think, carrying the “ecelum, non animum, miUant, efe.,” doctrine too far.

The property went into the possession of Blum when he purchased it; it was shipped, as his property, to Spor, his consignee, and when it landed at this port it was liable to be seized by his judgment creditors. It may be true, as contended, that, by the commercial law, the vendor might have protected himself, but we apprehend that he could only have done so in case of the insolvency oí his vendee, and by seizing the goods in transitu; and this before the goods had been reduced to the possession of the vendee. In this case, Bloom’s possession of the wine occurred in Germany, and continued across the ocean, and Krafts never pretended to exercise any right over it until long after it had been seized by Loeb.

As between Spor, the consignee, and Loeb & Co., the latter, as seizing creditors, are to be paid first. Assuming that Spor has the privilege which he claims, but with regard to which we do not consider it necessary to express any opinion, still it was not recorded prior to Loeb’s seizure and can not, therefore, prevail against it. 23 An. 270.

It is therefore ordered, adjudged and decreed that the judgment of the district court, in so far as it relates to the claim of Loeb & Co., be avoided, annulled and reversed, and that there be judgment in favor of Loeb & Co. and against Spor and Krafts, third opponents, commanding the sheriff of the parish of Orleans to pay to the said Loeb & Co. out of the funds now in his hands, proceeds of eight casks of wine seized and sold herein by virtue of the fi. fa. issued in this case,, the sum of $324 98, with eight per cent, interest from April 23, 1867, and fourteen dollars and sixty cents costs, by preference and privilege over the said Spor and Krafts; and that in other respects the judgment be undisturbed ; the costs to be paid out of the proceeds of sale.


author: Howe, J. Wyly, J.

text:
    No. 3449.
    Felix A. Ducros, Testamentary Executor, v. Edward Gottschalk.
    Whore the defendant was sued for two mortgage notes left with him on deposit, and required' to restore them or pay the fall amount thereof;

    Held — That defendant disclaiming any ownership of said notes and having no personal interest in them, has no defense to set up for himself, and has no right to plead one for a third party and ash the court to pass upon a question that would not he binding if decided for or against that person.
    APPEAL from the Fourth District Court, parish of Orleans. Théard, J.

      Louis Gastera and M. JE. Livwudais, for plaintiff and appellee.

      Saucier <& Michi/nard, for defendant and appellant.
    On Motion to Dismiss the Appeal.
    Justices concurring: Taliaferro, Howell, Wyly, Howe.
   Howe, J.

The plaintiff has moved to dismiss this appeal taken by the defendant, on the ground, as stated in the motion, “that no appeal lies from any judgment which does not produce an irreparable injury.” The judgment appealed from is a final judgment in the cause against the defendant. It was neither confessed nor has it been voluntarily executed. The amount in dispute exceeds five hundred dollars. We see no reason to deny the defendant the right of appeal, or anything iu the proposition quoted from the motion to dismiss which deprives him' of such right.

Motion denied.

On the Merits.

Justices concurring: Ludeling, Taliaferro, Howell, Wyly, Morgan.

Wyly, J.

The defendant, who was sued for two mortgage notes left with him on deposit, appeals from the judgment requiring him to restore them to the plaintiff or pay the full amount thereof. It appears that the defendant was the notary who passed a deed from J. B. -St. Amand to Prank Michinard, on fifteenth October, 1859, for a tract -of land, a sawmill and some other property situated in the parish of St. Tammany, and that the two notes in controversy were executed in evidence of part of 'the price. It also appears that these notes were left on deposit in the hands of the said notary during the life time of -St. Amand, whose succession is represented by the plaintiff, and that .since his death the said depositary refuses to restore them.

Iu answer to the demand, the defendant alleges that the notes were left with him on deposit by St. Amand and Michinard, there to remain until St. Amand should furnish to said Michinard a detailed statement -of the advances made by him for the sawmill, and until the said Michinard had reimbursed said advances to said St. Amand; after which the said notes were to be delivered to said Michinard. “Defendant disclaims any ownership of said notes, but avers that long previous to the institution of this suit said Michinard had lodged in his hands a written notice to comply with the terms of deposit afore.sáid.”

The defendant excepted to the ruling of the court in refusing to allow him to pi ove the alleged stipulation in the contract of deposit in favor of Michinard. In this we think the court did not err, because having disclaimed any ownership of the notes, the defendant disclosed no interest in setting up such a defense, and he ought not to .have been heard proving a defense which concerned Michinard alone.

Whatever right, if any, Michinard may have to the notes, shown by :the notarial act to belong to the testator, can not be determined in this suit, because he is not a party, But the defendant suggests that it is not his duty to make parties, that this is plaintiff’s duty. To this the reply is, that a defendant who has no defense to set up for himself, has no right to plead one for another person, and ask the court to pass upon .-a question that would not be binding if decided for or against that person. It would be idle to hear evidence and entertain the defense of a party not before the court, and who would not be bound by the • decree. The notarial act drawn by the defendant shows that the notes belong to the testator, and it is conceded that the defendant has not the shadow of a title to them.

The judgment of the court below is correct, and'the appeal is frivolous. We can not impose damages, however, because they have not .been asked by the appellee.

Judgment affirmed.

Rehearing refused.


text:
    No. 2874.
    Fortune Avegno v. Lawrence Hart.
    Wlion a driver attempts to pass another on a public road, he does so at his peril. At least, he must be responsible for all damages which he causes to the one whom he attempts to pass, and whose right to the proper usp of the road is as great as his, unless the latter is guilty of such recklessness or even gross carelessness as would bring disaster upon himself.
    APPEAL from the Seventh District Court, parish of Orleans. Oollens, J.

      Koontg & Elliott, for plaintiff and appellee. Hornor & Benedict, for defendant and appellant.
    Justices concurring: Ludeling, Taliaferro, Morgan, Howell. ■
   Morgan, J.

The thoroughfares of tho city of New Orleans were never intended for race courses.

The plaintiff, driving on Canal street, was run into by the defendant, who was racing with a competitor, and, with his companion, was thrown from his buggy, which was badly damaged, and he and his friend much disturbed thereby in mind and body.

He sued the defendant for $400 special damages, and for $500 damages to his feelings. The judge gave him a judgment for $350, and the defendant has appealed.

Avegno seems to have been about tho middle of the street. Janny and Hart were racing behind him, and seem to have been close together, Janny somewhat ahead. Janny passed Avegno on the left; Hart attempted to pass him on the right. This was not Hart’s proper place.

We understand the law of the road in this country to be that when a driver attempts to pass a vehicle which is going in the same direction with himself, he must go to the left; when they meet, each must go to the right. So well is this rule understood that horses, well trained, are governed by it without any guiding. It is established in this case, that plaintiff’s horse is in tne habit of going to the right.. And so it would appear that Avegno, when Janny passed him, pulled to the right. This was proper for him to do ; and it was most natural that he should, for he could well take it for granted that Janny’s competitor, who was close behind him, would follow in Jauny’s track, and he was certainly justifiable in endeavoring to get as far out of the way of these reckless drivers as possible.

Besides, we take it that when a driver attempts to pass ano filer on a public road, he does so at his peril: at least, that he must be responsible for all damages which he causes to the one whom he attempts to-pass, and whose right to the proper use of the road is as great as his, unless the latter is guilty of such recklessness or even gross carelessness as would bring disaster upon himself. In this case, instead of being reckless or careless, the plaintiff did everything he could to protect himselt from harm — and all without success. The defendant has no one to blame but himself, so mucli so that if the plaintiff had asked for it, we would have increased the damages. As it is, we can only affirm the judgment.

Judgment affirmed.


text:
    No. 4556.
    A. D. Coco v. T. E. Thienman et als.
    A record is not defective because certain documents were omitted wbicb had been offered to prove a fact admited in said record. There was therefore no necessity to copy them in the transcript.
    Where the motion to dismiss the appeal is on the grounds that the sheriff who is party to the-suit is not a party to the appeal, and that the sureties to the injunction bond are notparties to the appeal as they did not sign the appeal bond;
    Hold — That these grounds are not valid, because the ap; eal having been taken by motion in open court at the time when the judgment was rendered, all who are not appellants are appellees in the case.
    Where a piece of property was bought at a tax sale, the deed for it made out by the sheriff and duly recorded in the office of the recorder of the parish, and said property was-seized by a creditor of its former owners, who treated tlie tax sale as an absolute nullity, and who, being injoined by said purchaser, proposed in the injunction suit to attack the title by showing irregularities and defects in the proceedings preceding the tax sale;-
    .Held — That on its face the title of the purchaser is regular, that he is in possession under a recorded title, that by a special provision of the constitution, article 118, the deed of sale is prvma facie evidence as to the title, that it is declared valid by section 59 of the-act of 1872, Ho. 42, and that for these reasons the injunction must be maintained.
    APPEAL from the Seventh District Court, parish of Avoyelles. Butler, J.

      Irion & Thorpe, for plaintiff and appellant. IMmards■ & JDucote, for defendants and appellees.
    Justices concurring: Ludeling, Taliaferro, Howell, Wyly, Morgan.
   Ludeling, C. J.

A motion to dismiss the appeal has been made, on the following grounds : That the record is defective, a part of the evidence offered, not being in the transcript j that the sheriff,, w.ho-is a party to the suit is not a party to this appeal; and that the sureties to the injunction bond are not made parties to the appeal as they did not sign the appeal bond.

The fact, to prove which the documents omitted were offered, is admitted in the record — there was no necessity therefore to copy them in the transcript. The appeal was taken by motion in open court at the term when the judgment was rendered. All who are not appellants .are appellees in this case.

On the Merits.

A tract of land was purchased by Coco, the plaintiff, at a tax sale in February, 3872. The sheriff made a deed for the property in favor of Coco, and the deed was duly recorded in the office of the recorder of the parish.

On the sixth of August, 1872, Thieneman, who had obtained a judgment against Moreau, individually and as tutor to his minor children, •caused the property bought at tax sale by Coco to be seized as the property of Moreau and of his children. The property had been sold to pay the taxes due by Moreau individually and as tutor. Coco injoined the sale on the ground that the property belonged to him. Thieneman, on the other hand, treats the tax sale as an absolute nullity by seizing it as the property of Moreau and his children; and he proposes in this suit to attack the title of Coco by showing irregularities and defects in the proceedings preceding the sale. On its face the •title of Coco is regular — he is in possession under a recorded title ; and the constitution declares “ all deeds of sale made, or that may be made, by collectors of taxes, shall be received by courts in evidence as prima facie valid titles.” Article 118.

And the act of 1872, No. 42, declares that “the tax collectors shall be and they are hereby authorized to give a title, in the name of the State of Louisiana, to all persons purchasing property sold iii pursuance of this act, and such title shall be held and recognized by all courts in this State as valid in law.” Section 59.

It is not disputed that the taxes were due and that the property was ■sold to pay said taxes ; and it appears that Coco, the purchaser, holds the property under a title from the tax collector. Under the constitution and the act above recited this title can not be treated as a mere nullity. The injunction should have been maintained.

It is therefore ordered and adjudged that the judgment of the lower court be reversed and set aside, and that the plaintiff have judgment perpetuating the injunction, and for one hundred dollars damages and for costs against the defendants, m soKclo.

Rehearing refused.


author:
Lodeling, C. J. Howell, J.,
      Wyly, J.,

text:
    No. 4499.
    State ex rel. P. H. Morgan v. J. H. Kennard.

    The provisions of the federal constitution relative to juries in civil cases refer only to trials-' in the federal courts, and not to those in the State courts.
    The fourteenth amendment of the constitution of the United States does not make any' change on the subject of jury trials in civil suits.
    The proceeding by rule is not new under the laws of this State, and whenever the Legisla., ture authorizes it, that summary form of remedy may be adopted by litigants, and the-want of citation or notice can not be pleaded by defendant. The delay allowed to answer would undoubtedly he extended by the court, on proper application, ii insufficient.
    The State law of January 13, 1873, merely provides a more speedy remedy for the settlement ot contests for judicial offices. Itis not violative oí section 1 of article 14 of the Constitution of the United States.
    Should it even he admitted that the law authorizes the suit in the name alone of the party claiming an office, the fact that the State has joined with him in his demand, advocated by private counsel, does not invalidate the proceedings TFtileper mutile non vitiatur.
    Although this court has not the power to decide who are the members of the General Assembly, yet the judges thereof are bound to know what assemblage of men constitute the State Legislature, for they are bound to know what are the laws of the State, in order to> adjudicate upon the rights of the litigants under the law.
    The constitution authorizes the Governor to convene the Legislature on extraordinary occasions. There is no reason, therefore, to maintain that art. 61 of that instrument refers only to the regular or annual sessions of the General Assembly in relation to executive appointments.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      A. P. Field, Attorney General, and William H. Hunt, tor relator. Semmes & Mott, lioioe <& Prentiss, John A. Campbell, for respondent.
    Justices concurring: Ludeling, Taliaferro, Howell.

       The oases of P. H. Morgan v. Kennard, Bonner v. Lynch, K. Collin v. J. W. Knobloch,. J. W. Knoblook v. E. Collin (consolidated); Kemp v. Ellis, are published here in a connected' series, in advance and out of their regular < rder and place, at the request of the Executive,, and also on account of their public importance.

   Lodeling, C. J.

On the sixteenth day of January, 1873, the following rule was filed:

“ On motion of A. P. Field, Attorney General of the State of Louisiana, herein appearing upon the relation of Philip Hickey Morgan, a resident of the parish of Orleans, and upon suggesting and giving the court to understand and be informed, as follows, viz :

“ That said P. H. Morgan was nominated by the acting Governor of the State to the Senate thereof to fill the office of Associate Justice of the Supreme Court of the State of Louisiana; that his said nomination was duly confirmed; that he was commissioned thereto on the fourth of January, 1873; that he lias taken and subscribed the oath required by law; that he is entitled and empowered to execute and-fulfill the duties of said office according to law, and to have and to hold said office, with all the powers, privileges and emoluments thereof. And on further suggesting that John H. Kennard, also a resident of said parish, unlawfully holds said office, and executes the duties-thereof, and. claims the right to the office and to the powers, privileges- and emoluments thereof, it is ordered that said John H. Kennard show cause on Saturday, January 18, 1873, at eleven o’clock A. M.,. why it should not be forthwith decreed and adjudged that he is unlawfully holding and exercising the duties of said office of Associate Justice of the Supreme Court of the State of Louisiana, and the said P.. H. Morgan be decreed and adjudged entitled thereto.”

On the day on which said rule was made returnable, the eighteenth, of January, John H. Kennard filed the following exception :

And now comes John H. Kennard, and excepts that there has been no citation issued herein, or served on him in this case, and prays to-be hence dismissed with costs.” The exception was overruled by the court a qua-, and then the defendant filed the following exceptions and answer, to wit:

“ Now comes John H. Kennard, defendant in this suit, and excepts-to the rule herein taken by A. P. Field, Attorney General, on relation of P. H. Morgan, on the ground that said proceeding by rule, in manner and form as set forth in said rule is not authorized by law, and further that the act of fifteenth January, 1873, entitled ‘An Act to regulate proceedings in contestations between persons claiming a judicial office ’ as to its first section is unconstitutional and void, not being in conformity to the title of said act. And further, that said act is prospective and does not apply to pending litigation. And further,. that said act in relation to sections two and three is unconstitutional, as it authorizes proceedings which amount to a denial of justice. And further, that if said act is to be construed as applicable to suits instituted prior to its passage, it is retroactive and void, as violative of article 110 of the constitution.

In case these exceptions be overruled, and not otherwise, for answer to said rule this respondent avers that he was duly appointed by the Governor of this State to the office of Associate Justice of the Supreme Court of the State of Louisiana on the third of December, 1872, vice W. W. Howe, resigned, during the recess of the Senate, and that on the same day he was duly qualified and took possession of said office, having complied with all legal requirements, and his term of office has not yet expired.”

The exceptions were overruled on the eighteenth of January, 1873 ; and tlie trial of the rule, which had been fixed for the eighteenth of January, 1873, was commenced, and was continued to Monday, the twentietli instant.

On the twentieth January the following amended and supplemental answer and prayer for jury was filed : “ Now comes J. H. Kennard and for further answer prays for a trial by jury, and pleads that the said act of the Legislature, under which relator, P. H. Morgan, claims - ito proceed, is null and void, as violative of section one, article fourteen, of the Constitution of the United States, which forbids any State from making any law, which shall abridge the privileges and immunities of its citizens, and prohibits any State from depriving any person of life, liberty, or property, without due process of law, or to deny to any person within its jurisdiction the equal protection of its laws, and if said law is void, this court has no jurisdiction to proceed by rule in the manner and form as set forth in said rule.”

The prayer for a jury was refused by the judge a quo on the grounds •that it was made only on the twentieth of January, after the trial of ■the case had been commenced on the eighteenth and continued for trial to the twentieth, and because the act of the fifteenth of January, 1873, ■■forbids it. The trial was concluded ou the twentieth day of January •and judgment was rendered in favor of the relator and against the •defendant on the same day. The defendant has appealed.

During the course of the trial several bills of exceptions were taken to the rulings of the District Judge, which we will proceed to notice.

The first bill of exceptions is to the refusal of the prayer for a jury, •on the ground that the defendant was entitled thereto under the constitution of the United States. It was decided by this court as early as 1818, that the provisions of the federal constitution relative to juries refer only to trials in the federal courts, and not to those in the State courts. Maurice v. Martinez, 5 Mart. 436. And in Dobbs v. Hemken, decided in 1842. this court said : ‘‘ The claim of a constitutional right to a trial by jury in all controversies where the amount exceeds twenty dollars, has been so long settled by this court, that it is unnecessary to comment upon it now.” 3 Rob. 126.

In the case of the City Bank v. Banks et al. Chief Justice Eustis said : “ The trial by jury in criminal cases is guaranteed by the Constitution ; in civil cases it rests with the Legislature alone, and they have provided that certain classes of cases shall be tried without the intervention of juries.” 1 An. 419.

But even if the defendant had been entitled to a trial by jury, he had forfeited his right by not claiming it in time. Code of Practice, articles 494,495; 2 An. 651, Louisiana State Bank v. Ledoux et al.; and 3 An. 198.

We do not think that the fourteenth amendment of the Constitution of the United States makes any change on the subject of jury trials in ■civil suits.

The plaintiff offered in evidence the following documents :

First — Extracts of the minutes of the executive session of the Senate •of the State of Louisiana, held January 4, 1873.

Second — List of the Senate of Louisiana, certified by P. G-. Desfonde, Secretary of State.

Third — An official notice in the New Orleans Republican, of December 9, 1872, on the fifth page thereof, being compiled returns signed by John Lynch and others, returning officers, declaring certain persons 'elected Senators of the State of Louisiana.

Fourth — The record in the case of the State ex rel. Attorney General, etc., v. Jack Wharton and others, No. 18 of the Superior District 'Court.

To the introduction of each and every one of said documents the -defendant objected on the ground that the evidence was irrelevant. 'The objection was overruled and the evidence was received. We are of opinion that the evidence was properly received.

The defendant alleged in his answer that he had been appointed, during the recess of the Senate, to fill the vacancy created by the ■resignation of Mr. Justice Howe, and “that the term of his office had ■not yet expired,” claiming that under article sixty-one of the constitution his commission did not expire until “the end of the next session” •of the Senate. It was pertinent, therefore, to prove that there had •been a session of the Senate, and that that Senate had confirmed the •appointment of the plaintiff. The fact that subsequently, during the Adjournment of the court, the counsel for defendant did not question the fact there had been a Senate of the State of Louisiana in session, •but contented themselves in simply contending that there had been but one session of the Legislature, which was still continuing, does not make the evidence offered less germane to the issues in this case. Nor is it a reason to reject the evidence that we might have taken judicial cognizance of the fact that there had been an extra session of the Legislature subsequently to the appointment of the defendant. Considering the technical objections which have been urged to prevent a trial on the merits of the case, it is not surprising that extraordinary prudence should have been exercised by the plaintiff in the introduction of evidence in support of his case.

We will notice the several exceptions urged against this suit. The first relates to the waut of a citation. The form and manner of bringing litigants into court is a matter entirely within legislative control. Code of Practice, article 97, declares: “ Civil actions may be prosecuted, according to the nature of the case, by three kinds of proceedings, to wit: ordinary, -executory and summary.” Article 98 declares that “the proceedings are ordinary when citation takes place, and all the delays and forms of law are “observed. They are executory when ■seizure is obtained against the property of the debtor, without previous citation, in virtue of an act or title importing confession of judgment, or in other cases provided by law.

“ They are summary where carried on with rapidity, and without the observance of the formalities required in ordinary cases, as when courts provide for the administration of vacant successions and the property of minors and absent heirs.”

In the case of City of New Orleans v. Elijah Cannon, the defendant was sued for the city tax of 1853, and was cited under the thirty-fifth section of the consolidation act of 1852, which substituted, in lieu of petition and citation, the constructive service, by advertisement, of the tax bill in the official newspapers of the city. Mr. Justice Yoorhies, being the organ of the court, held that such proceeding, in the absence of petition and citation, are not unconstitutional, and that “summary proceedings clearly fall within the term ‘ due process of law.’ ” 10 An. 764, 767.

In 11 An. 375, Chief Justice Merrick, as the organ of the court, said: It is in the power of the Legislature to determine in what manner parties may be brought into court, and we have recently decided, in regard to city taxes, that a decree rendered upon such notice is obligatory.” The proceeding by rule is not new under the laws of this State y and whenever the Legislature authorizes it, that form of remedy may be adopted by litigants. The delays allowed by the new law are in no-sense in conflict with the constitution of the United States. The delay of one day to answer, if insufficient, would undoubtedly be extended by the court, if requested to do so. The Code of Practice provides that “when the defendant appears, he may pray for further time to answer, and the court may grant further delay if necessary for the-purposes of justice.” Art. 316.

The exception that the law of January 13, 1873, violates section one of article fourteen of the constitution of the United States is utterly without foundation. It merely provides a more speedy remedy for the settlement of contests for judicial offices. It is based upon sound considerations of public policy.

The maintenance of the rights of person and property, the preservation of the public peace, security and order depend upon the prompt,, certain and uninterrupted administration of law. In order to secure such administration of the law, it is essential that those who exercise power should be clothed with unchallenged authority. For this purpose, no doubt, the Legislature of Louisiana passed the law, providing-fora-speedy trial and settlement of conflicting claims of persons to judicial offices. In Rice v. De Buys, this court said : “ Necessity appears to require that the possession of the elective offices shall be-determined without the delays of an ordinary law suit.” 5 An. 398. In Borgstede v. Clark the court said: “But in this proceeding no appeal is permitted, no matter what may be the pecuniary value of the office. In the case of De Buys the constitutionality of this provision-of the statute was debated. We sustained its constitutionality, and. refused to entertain an appeal, because we considered the contest a matter of public concernment, and not a law suit between individuals.” 5 An. 732.

Another exception to the mode of proceeding is that the suit should have been in the name of the claimant Morgan alone, and not in the name of the State, etc.

We deem it sufficient to state that Morgan is a party plaintiff with the State, and he has been represented by private counsel in both courts; if it be conceded, therefore, that the new law authorized the suit in the name alone of the party claiming the office, the State having been joined with him in his demand did not invalidate the proceedings — “ utile per inutile non vitiatur." But see 5 Wheaton 291; Wallace v. Anderson, 5 An. 732; State ex rel. Wickliffe vs. Delassize, 12 An. 711.

The other exceptions are equally without foundation.

Tlie title of the law does indicate sufficiently its object, and the law was not designed to have any retroactive effect. >

The suit was instituted on the sixteenth of January, 1873, after the promulgation of the law in question, which was in operation, by the terms of the law, “from and after its passage.”

On the merits, the question is, have the ■ plaintiffs proved their demand; have they shown that P. H. Morgan was appointed and confirmed to the office of Associate Justice of the Supreme Court of the State of Louisiana? The public is concerned in knowing this fact.

To determine that question, it is necessary to know if his appointment was made by the Governor of the State, and if that appointment has been confirmed by the Senate of the State?

The appointment was made by P. B. S. Pinchback, who signs the commission as acting Governor of the State of Louisiana. Was he acting Governor of the State ? We have no doubt of the fact. He was elected President of the Senate in December, 1871, after the death of Lieutenant Governor Dunn. As such he became Lieutenant Governor, during the unexpired term of Oscar J. Dunn. Section 1560 of the Digest of the Statutes of this State provides that “ in case of the vacancy in the office of Governor, the Lieutenant Governor shall be Governor; in case of vacancy in the office of Lieutenant Governor, the Senate shall elect a president, who shall be Lieutenant Governor.” Page 142.

The law does not say during bis senatorial term, but that be “shall be Lieutenant Governor.” If the Governor had died or resigned the day aiter, the Lieutenant Governor would have become Governor. Can it be pretended that under those circumstances the office of Governor would have become vacant by the expiration of the time for which P. B. S. Pinchback had been elected a Senator? We think not.

He was Lieutenant Governor when Governor Warmoth was impeached by the House of Representatives. During his impeachment the Governor was suspended, and the “powers and duties of the office devolved upon the Lieutenant Governor.” Constitution of La., art. 53.

Was the Senate, which confirmed P. H. Morgan, the Senate of the State of Louisiana 9

It was composed of persons, returned as elected, to the Secretary of State, by the returning officers recognized by this court to be the legal returning officers at the late election. Constitution, art. 45.

It was organized at the State House by those whose names had been furnished by the Secretary of State to the Secretary of the Senate, in accordance with the election law of this State; it was presided over by the Lieutenant Governor, and subsequently it was recognized by the acting Governor of the State, as a part of the General Assembly. It is tacitly admitted by the defendant that the body of men who confirmed the appointment of Morgan is the Senate, for he attacks a law, under which this suit is brought, enact.ed by the General Assembly of which this Senate forms a part, not on the ground that the act was not passed by the Legislature, but on the ground that the law violates the constitution of the State and of the United States.

Though we have not the power to decide who are the members of the General Assembly, yet, we, as judges, are bound to know what assemblage of men constitute the State Legislature, for we are bound to know what are the laws of the State, in order to adjudicate upon the rights of litigants under the law.

We are of opinion, therefore, that P. II. Morgan was duly appointed and confirmed Associate Justice of the Supreme Court, vice W. W. Howe, resigned.

But it is contended that during the recess of the Senate John H. Kennard was appointed Associate Justice of the Supreme Court, to fill the same vacancy, and that the term of his office has not yet expired. Article 51 of the constitution declares “the Governor shall have power to fill vacancies that may happen during the recess of the Senate, by granting commissions, which shall expire at the end of the next session thereof, unless otherwise provided for in this constitution,” etc.

We deem it unnecessary to decide, in this case, whether or not the commission of the defendant would entitle him to hold the office, after the appointment and confirmation of another person to the same office, until the end of the next session of the Senate; for, in this case, it is shown that a session of the Senate was held after the defendant’s appointment was made, and that that session ended on the sixth day of January, 1873, and before the meeting of the regular session of the General Assembly. The language of the constitution seems too clear to admit of but one construction — “ until the end of the next session of the Senate.” It is not denied that there was an extra session of the General Assembly convened on the ninth day of December, 1872; but it is contended that the constitution in article sixty-one refers to ordinary or regular sessions. The constitution authorizes the Governor to convene the Legislature on extraordinary occasions. There is no reason therefore to say that article 61 refers only to the regular or annual sessions of the General Assembly — and we can not construe article 61 in the manner contended for by the defendant, without interpolating the words regular or ordinary in the article — which, of course, we can not do. It is manifest from article 75 of the constitution that it was the intention of the framers of the constitution that the judges of the Supreme Court should be appointed by the Governor, “with the advice and consent of the Senate,” and article 61 provides for a contingency which might arise, but it limits the duration of the commission of the officer, appointed when the advice of the Senate could not be had, to the end of the “next session of the Senate,” during which session the Governor can, if he wishes, have the advice of the Senate. This limitation was a restriction upon the power conferred upon the Governor ex necessitate rei.

There is no merit in the defense.

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

Howell, J.,

concurring. In addition to the reasons given by the Chief Justice in this case, in which I concur, I desire to say that the right or title of either party to the office in controversy is fixed and governed by the Constitution of this State, and is in no manner dependent on, or affected by, the act approved fifteenth of January, 1873, which simply relates to the form of proceeding in certain cases, and if it should be unconstitutional in any or all of its provisions, we would still, I think, under our Constitution and laws, have the power to say who is prima facie entitled, without a judicial investigation by an inferior tribunal, to a seat with us on the Supreme Bench.

The Constitution of the State provides that the Supreme Court shall be composed of one Chief Justice and four Associate Justices, a majority of whom shall constitute a quorum; they (the five) shall be appointed by the Governor, with the advice and consent of the Senate, for the term of eight years (article 75); when a vacancy happens during the recess of the Senate the Governor has the power to fill it by granting- a commission, which shall expire at the end of the next session of the Senate (article 61); all commissions shall be in the name and by the authority of the State of Louisiana, and shall be sealed with the State seal, signed by the Governor, and countersigned by the Secretary of State (article 72).

Under these provisions the right of the plaintiff, P. H. Morgan, to a seat as Associate Justice of the Supreme Court, by virtue of a commission, showing his appointment by the Governor, with the advice and consent of the Senate, vice W. W. Howe, resigned, when he presented it (with an oath of office) after the expiration of the extra session of the Legislature convened on the ninth of December, 1872, was clear. The defendant’s commission was issued under article sixty-one of the constitution, and by that article could have vigor, at the best, only until the expiration of the above mentioned session, which occurred before the plaintiff claimed his seat, and we could rightfully have admitted him, or rather could not rightfully have prevented him, had he insisted on taking his seat. His right prima facie at least was equal to that of either one of us. We are bound to know who compose the Supreme Bench, and we knew the rights of these parties before this suit as well as we do now.

But as each member of the Supreme Court must be appointed by the Governor, with the advice and consent of the Senate, for the constitutional term, it follows, in my opinion, that a commission in due form, showing that an appointment to fill an unexpired part of such term has been made, with the advice and consent of the Senate, is, at least, prima facie evidence of the right to the immediate possession of such office, whether the session of the Senate had expired or nos at which such appointment had been confirmed. The appointment by the Governor without the aid of the Senate is in its nature and essence provisional only, and is necessarily and immediately superseded by a subsequent appointment made with such aid, it being the mode of appointment specially provided by the constitution for the Supreme Court.

In my opinion the defendant has, by his pleadings, clearly admitted the legality and validity of the authority under which the plaintiff, Morgan, claims the office of Associate Justice. He does not directly assail the commission issued to the plaintiff, the official capacity of those who signed it or the legality of the Senate which confirmed the appointment, or of the Legislature which enacted the law under which these proceedings were instituted. Yet as his exceptions and answer might possibly be construed in reference to plaintiff’s allegations, so as to raise the question, I think it not inappropriate for this court to express an authoritative opinion thereon in this case. It is confirmatory of the pleadings and facts of the case.

No question is raised as to notice of the rule, service of which was made on defendant, else he would not have been in court.

I really can not see any reasonable ground of defense.

Wyly, J.,

dissenting. This is a contest for the office of Associate Justice of the Supreme Court. The proceeding is under act approved fifteenth of January, 1873, entitled “an act to regulate proceedings in contestations between persons claiming a judicial office.” This act provides that if the incumbent shall refuse to vacate the office, the ■“ person so commissioned shall have the right to proceed by rule. ■» * * Such rule shall betaken contradictorily with such incumbent, and shall be made returnable within twenty-four hours, and shall be tried immediately, without jury, and by preference over all other matters or causes depending in such court, and the judgment therein shall be signed the same day of rendition. That either party to such rule may take an appeal from the judgment thereon, but such appeal shall be applied for within one legal day from the rendition of the judgment .on such rule, and shall be made returnable to the Supreme Court within two days. The appeal shall be taken up in the Supreme Court by preference over all other cases, immediately on the application of either party, and the judgment thereon shall become final after the expiration of one legal day, whether judicial or not.”

This law was approved on the fifteenth day of January, 1873, and on the next day the plaintiff filed the following motion or rule which I copy verbatim:

“ On motion of A. P. Field, Attorney General of the State of Louisiana, herein appearing upon the relation of Philip Hickey Morgan, a resident of the parish of Orleans, and upon suggesting and giving the court to understand and be informed, as follows to wit:

That said P. H. Morgan was nominated by the acting Governor of the State to the Senate thereof, to fill the vacancy of Associate Justice of the Supreme Court of Louisiana; that his said nomination was confirmed; that he was commissioned thereto on the fourth of January, 1873; that he has taken and subscribed the oath required by law; that he is entitled and empowered to execute and fill the duties of said office according to law, and to have and to hold said office, with all the powers, privileges and emoluments thereof;

And on further suggesting that John H. Kennard, also a resident of said parish, unlawfully holds said office and executes the duties thereof, and claims the right to the said office, and to the powers, privileges •and emoluments thereof;

It is ordered that said John H. Kennard show cause on Saturday, January 18, 1873, at 11 o’clock, A. M., why it should not forthwith be -decreed and adjudged that he is unlawfully holding and exercising the ■duties of said office of Associate Justice of the Supreme Court of the ■State of Louisiana, and the said P. H. Morgan be decreed and adjudged entitled thereto.”

On the eighteenth of January, 1873, the defendant filed the following exception, to wit: “And now comes John H. Kennard and excepts-that there has been no citation issued herein, or served on him in this-case, and prays to be hence dismissed with costs.”

On the same day the following exception and answer was also filed;, to wit:

“Now comes John H. Kennard. defendant in this suit, and excepts-to the rule herein taken by A. P. Field, attorney general, on the relation of P. I-I. Morgan, on the ground that said proceeding by rule in, manner and form as set forth in said rule is not authorized by law, and further that the act of the fifteenth of January, 1873, entitled ‘an act: to regulate proceedings in contestations between persons claiming a judicial office,’ as to its first section is unconstitutional and void, not. being in conformity to the title of said act.
And, further, that said act is prospective and does not apply to-pending litigation.
And, further, that said act in relation to sections two and three is unconstitutional, as it authorizes proceedings which amount to a denial! of justice.
And, further, that if said act is to be construed as applicable to suits, instituted prior to its passage, it is retroactive and void as violative of' Article 110 of the Constitution.
In case these exceptions be overruled- and not otherwise, for answer-to said rule this respondent avers that he was duly appointed by the Governor of the State to the office of Associate Justice of the Supreme Court of the State of Louisiana on the third day of December, 1872, vice W. W. Howe, resigned, during the recess of the Senate, and that, on the same day he was duly qualified and took possession of said' office, having complied with all legal requirements, and his term of.' office has not yet expired.”

On the same day, Saturday, January 18, 1873, these exceptions were-overruled by the court and the case was continued for trial till Monday, the.twentieth of January, 1873, on which day the defendant filed, the following supplemental answer, to wit:

“Now comes J. H. Kennard and for further answer, prays for a trial by jury, and pleads that the said act of the Legislature under which the relator, P. H. Morgan, claims to proceed, is null and void as violative of section one, article fourteen of the constitution of the United. States, which forbids any State from making any law which shall. abridge the privileges or immunities of its citizens, and prohibits any State from depriving any person of life, liberty or property, without • due process of law, or to deny to any person, within its jurisdiction,,, the legal protection of its laws; and if said act is void this court has - no jurisdiction to proceed by rule in the manner and form as set forth, in said rule.”

On the same day the prayer for trial by jury was refused, the case was tried and judgment entered up for the plaintiff. The defendant immediately took this appeal.

I have copied all the pleadings and noted the orders of court, because I differ with the majority of the court as to an issue upon which they pass, which issue I maintain is not raised in the pleadings; therefore all that the majority of the court say in reference to that point, to wit: the legality of the Pinchbaek government, is in my judgment a mere obiter dictum, and utterly without judicial effect.. The evidence upon which the observation of the court on this point is based was excepted to by the defendant on the ground of irrelevancy. It being offered to prove an issue not raised by the pleadings, I think the exception was well taken and the evidence should not have been received. Having copied the pleadings I now copy the bill of exceptions, in order that it may appear whether the evidence excepted to was pertinent to the issues made up by the plaintiff and the defendant. It is as follows :

“ Be it remembered that on the trial of this cause the defendant filed a prayer for a jury, as by the said prayer in the record will more fully appear; but the court overruled the said application, and refused to-permit the defendant to have said jury, to which ruling the defendant then and there excepted, on the ground that he was thereto entitled by the constitution of the United States.

And be it further remembered that in the trial of this cause the plaintiff offered in evidence the following documents.

First — “ Extract of the minutes of the extra session of the Senate of the State of Louisiana, held January 4, 1873,’’ and hereto annexed:

Second — “List of the Senators of Louisiana, certified by P. G. Deslonde, Secretary of State,” and annexed hereto.

Third — “ An official notice in the New Orleans Republican of December 9, 1872, on the fifth page thereof, being compiled returns signed by John Lynch and others, returning officers, declaring certain persons elected Senators of the State of Louisiana,” and hereto annexed.

Fourth — “ The record in the case of the State ex rel. Attorney General vs. Jack Wharton and others, No. 18 of the Superior District Court.”

And to the introduction of each and every one of said documents the defendant objected, on the ground that the same, and each of the same, were irrelevant thereto; but the court in each instance overruled the objection, and admitted said documents, severally, in evidence; and to said rulings, and each of them, the defendant then and there duly excepted, and reserves this his bill. '

The prayer for jury was asked only on the twentieth instant, and after the case had been begun on the eighteenth and continued, and ■the court on this account and because the law was not deemed unconstitutional, denied the prayer.

Now what are the issues'? It is alleged in the rule that on the fourth January, 1873, P. H. Morgan was duly appointed by the Acting' Governor and confirmed by the Senate; that he has taken the with of office, and is entitled to the possession of the office of Associate Justice; that J. H. Kennard unlawfully holds said office, and claims the right to exercise it, and also the privileges and emoluments thereof. Upon these averments it is asked that Kennard be decreed to be unlawfully holding said office, and that Morgan be adjudged entitled thereto.

To this the defendant has not pleaded the general denial. He simply •excepts to the form of the proceedings; pleads the unconstitutionality of the act of fifteenth January, 1873, and alleges that on the third day of December, 1872, he w|is appointed to said office by the Governor, during the recess of the Senate; that he qualified and took possession thereof, and that “his term of office had not yet expired.”

Under these simple issues what relevancy can be found for the introduction of a document containing a list of the Senators certified by Deslonde, Secretary of State; an extract from the New Orleans Republican showing the compiled returns signed by John Lynch and others, declaring certain persons elected Senators of the State; and the record of the case of the State ex rel. Attorney General v. Jack Wharton and others 1

Why should this case be encumbered with such documents, which 'have no more relevancy to the issues presented by the parties than they have to any other law suit pending in any of the district courts of the parish of Orleans ?

Indeed if these documents are pertinent to the issues of this case, then we had as well abolish the rule that proof may be refused for ■irrelevancy, that the plaintiff can not prove what he has not alleged.

• The list of the Senators, the returns of John Lynch and others, and the case of Jack Wharton, have no more to do with the allegations of •the plaintiff and tlie defendant in this suit, than the list of the jurors of the First District Court, the returns of the Presidential electors and any transcript that may be found in the clerk’s office of the Supreme Court would have to do with it.

The defendant does not plead that the statute of the fifteenth of January, 1873, is void, for want of authority in its authors to act as members of the General Assembly; nor does he aver that the commission issued to P. H. Morgan is invalid because Pinchback had no authority to act as Governor ; no such issues have been made by «the pleadings.

The questions are, is the act of fifteenth January, 1873, providing a remedy so summary, constitutional, and is the term of office of J. H. Kennard expired ■?

Believing that these aie the issues presented in this case, I feel constrained -.press my opinion that the observations of the majority of the court in regard to the late Acting Governor of the State, the organization of the General Assembly, and the legality of the late extra session thereof, are remarks not necessary to the decision of this case, and are merely opinions outside -of the issues involved in this controversy, and therefore not obligatory.

I find that the first section of the act of the fifteenth of January, 1873, declaring that the commission is prima fade proof of the right of the holder to the immediate possession of the office, is not covered by the title: “An act to regulate proceedings between persons claiming a judicial office,” and for that reason it is repugnant to article 114 of the constitution and void.

I find from the record that there was no citation, service of citation, or anything equivalent thereto; and that the defendant was not served -even with a copy of the rule upon which this action is based. His exception on this ground was undoubtedly well taken.

Citation, or some notice equivalent thereto, is the foundation of the action ; and a proceeding without it is utterly void, unless the defendant waives it and voluntarily enters an appearance. O. P. 206.

The act of fifteenth January, 1873, authorizing the proceeding by rule, 'does not dispense with the law requiring citation or notice. On the contrary, it declares that “ such rule shall be taken contradictorily with such incumbent, and shall be made returnable within twenty-four hour hours, and shall be tried immediately without jury,” etc. T understand from this statute that citation or notice of the rule shall be served, and that it shall be returnable within twenty-four hours from the time of service. This seems to be a fair interpretation of the statute, because it must be construed with reference to article 206, C. P., and other laws requiring notice of judicial proceedings.

If the law, however, requires the rule to be returnable within twenty-four hours from the time it is filed, and the trial to begin immediately, I think it contravenes the constitution of this State and •the constitution of the United States, because a proceeding under it would practically deny the defendant of some legal right without due process of law. Due process of law implies a fair hearing before .judgment. Cooley’s Constitutional Limitations, page 353 et seq., and ^authorities there cited.

To be a fair hearing, there must be legal notice of the demand, and a reasonable delay allowed for preparing the defense.

In my opinion, the statute under which this rule is taken does not allow such delay. It authorizes a proceeding by which the defendant in this case is deprived of his legal right to the office of Associate-Justice of the Supreme Court without due process of law.

The defendant is deprived of a legal right without citation or legal notice of the proceeding, and without reasonable delay to prepare and make his defense.

The statute as applied to this case, in my judgment, contravenes, the constitution of this State and the constitution of the United States, and it is therefore void. On this ground I think the demand of the plaintiff should be dismissed.

On tlie merits I find that the defendant was duly commissioned as-Associate Justice of the Supreme Court on the third of December, 1872, during the recess of the Senate; that he took the required oath of office and entered regularly on the duties thereof. He was appointed under Article 61 of the Constitution, which declares that “ the Governor shall have power to fill vacancies that may happen during the recess of the Senate, by granting commissions, which shall expire at the end of the next session thereof.” * * * * Article 17 declares that “ the General Assembly shall meet annually on the first Monday of January.” * * * * Article 64 provides that the Governor “ may on extraordinary occasions convene the General Assembly.”' * * * * Now in order to ascertain whether the term for which the defendant was appointed has expired, it is necessary to determine the exact meaning of that part of Article 61 which says his term “shall expire at the end of the next session” of the General Assembly. Does it mean at the end of the next regular session or the end of the next extra session? Was that clause used in reference to Article 17 fixing-the beginning of the regular sessions on the first Monday of January annually; or was it used in reference to Article 64, giving the Governor th.e right, on extraordinary occasions, to convene the General Assembly ? I believe the clause was used with reference to the regular sessions provided for in the Constitution, and not in reference to such extra sessions as extraordinary occasions might demand; that Article 61 refers to the normal state of things and not to the extraordinary or abnormal. As the regular session, beginning on the first Monday of January, 1873, has not yet expired, I believe the term for which Judge Kennard was appointed, under Article 61 of the Constitution, has not expired, and, therefore, the action of the plaintiff is premature, and his demand should be rejected.

For thé reasons stated I feel constrained to dissent in this case.

Writ of error to the Supreme Court of the United States, granted by Judge Bradley, and filed Feb. 5, 1873.