author: Howell, J. Wyi.y, J.,

text:
    No. 3514.
    John Davidson v. Executors of Wm. Silliman et als.
    In this caso the executors procured an order from tlie probate court to sell the property composing the succession of ‘William Silliman solely for account of the succession. At the sale the widow in community was present, and bought more than one-half of the property. Plaintiff bid for a portion of the property, but failing to comply with the terms of his bid, and after being put iu default the executors reoffered it for sale at his risk. To this second offering hy the executors plaintiff prayed an injunction, on the alleged ground that tho executors had failed to give him a title by procuring the signature of tho widow to tho act of sale, the property being owned in commnnity with her, and only sold as the succession property of her husband, William Silliman, deceased.
    Held — That tho widow in community being present at the sale, and making no objection thereto, and having purchased a large portion of the property, she was by her own acts, concludod from thereafter making any objection to tho validity of the sale, or of sotting up any right or title to the property bought by tho plaintiff, and that plaintiff was not, therefore, entitled to the injunction claimed on that account. That the widow having participated in the sale, she had ratified the same, and any further ratification was unnecessary on her part. That finally, tho sale was valid without her signature to the act.
    Hold further — That tho attorney’s fee for dissolving tho injunction may he assessed against tlie plaintiff as damages for wrongfully suing out tho same.
    A PPEAL from tlie Eighth. District Court, parish of Orleans. Dibble, JA. J.

      J. D. Hill, for plaintiff and appellee. Eaee, Foster & FI. T.

      Iferr-ielc, for defendants and appellants.
   Howell, J.

The plaintiff alleges that at the succession sale of William Silliman, deceased, on the eighteenth December, 1869, he became tlie purchaser of certain real estate for a price, which, according to the conditions of the sale, was to be paid one-lialf in cash, the remainder in twelve months in notes secured by mortgage and vendor’s lien, eight per cent, interest from date of salo and the clause of five per cent, for attorney’s fees; that he was 'billing- to comply with his engagement, and made a formal tender of the price of adjudication and a demand for a compliance with tho obi’Rations of the defendants through a notary, but his demand was refused; that the title which was offered to Mm was defective, because the property sold belongs to the community formerly existing between said William Silliman, deceased, and his surviving widow, but was sold as succession property and without tlie concurrence of the said widow, and because it is within the limits of tlie claim recently set up by Mrs. Myra Clark Gaines; that ho demanded that the said widow Silliman should sign the act of sale, and that a guarantee against eviction be .furnished, which were refused by tlie executors, who are now proceeding to sell the said property for Ms account and risk, which, if permitted, will inflict upon him a serious loss and injury; and he prayed that they be injoiaed from making said sale and compelled to comply with his demands.

The executors answer by a general denial and the averments that under one and the same order, fourteen pieces of property in New Orleans, belonging to the late William Silliman, were sold; ten of which wore bought by the widow for $114,500, three by one John E. King for $86,500, and the fourteenth piece by plaintiff,, at $18,000 making the total of $219,000, of which the widow purchased more than her half interest therein, which was a ratification of the sale of all the property sold; all of which was well known to the plaintiff, who was frequently urged to comply with the terms of the sale; but he answered that he had not the money to make the cash payment and asked indulgence therefor, until the examination of the titles, which the said King was making through counsel, should be concluded, when lie would comply if King did, which plaintiff refused to do, and they caused him to bo put in default and proceeded to sell the said property for his account and risk, when, on the day preceding the day of sale,, they were injoinod. They ask for a dissolution of the injunction and for damages, which they claim in reconvention, averring that the objections of plaintiff are frivolous, vexatious, and made for the sole purpose of delay.

After the case liad been pending for over a year, and most of the testimony had been taken, plaintiff, on ex parte, motion discontinued so much of his suit as calls for the completion of the title to the property, with guaranty, etc., leaving this suit purely as an injunction restraining defendants from selling the said property for his account and risk,” without prejudice to the reconventional demand. To this the defendants excepted on the ground that the law prohibits a discontinuance of a portion of a suit after a reconventional demand is filed.

From a judgment perpetuating the injunction the defendants have appealed.

We think the discontinuance made by plaintiff of a part of his suit,, did not affect or impair defendants’ right to recover on their reconventional demand, and it is only in this respect that he is not permitted to dismiss or discontinue his suit. Tho plaintiff asked that defendants he injoined not to make the sale complained of, and also be compelled to give him a satisfactory title to the property purchased by Mm. It is this latter demand which he discontinued, leaving his demand for an injunction of tho second sale in force; and it is for tins injunction tho defendants have asked damages in reconvention. If the injunction is maintained, tho reconventional demand must bo rejected. If it is dissolved the damages, it any, will be such as have been caused by the injunction, and not by a decree on the demand of plaintiff for a good and perfect title to the property. Wliat effect this change in the pleadings will have upon the character and scope of the judgment which must be rendered between tho parties, need not be determined here. The general rule is that, “the plaintiff may, in every stage of the suit, previous to judgment being rendered, discontinue the suit on paying costs.” C. P. 491. The cxception or limitation is where the exercise of this right will tend to defeat or impair tho demand of his antagonist. See 9 La. 310; 9 R. 210; 3 An. 660.

The question arises: Has plaintiff shown his right to a perpetual injunction of the second sale1? If the title tendered by the defendants is not a good and legal title to the property purchased by him, he has. The objection that the property is within the limits of a claim sot up by Mrs. Gaines, from which eviction may result, seems to be waived. Tho complaint here is, “that the title offered him is defective, inasmuch as tho property sold belongs to the community formerly existing between William Silliman, deceased, and his surviving widow; that the property was sold upon the application of the executors of Wm. Silliman, under an order of the Court of Probates of East Feliciana, solely for account of the succession of the said Silliman, and without the concurrence of his said widow in community;” that it is necessary that the said widow should sign the act of sale tendered to her, but the executors have refused to obtain her signature thereto. To this the executors reply that the concurrence of the widow in community in the sale of the whole property is amply and conclusively shown by her attendance at the sale, and purchasing more than one-half thereof herself, which forever concludes her and her heirs in law and equity from contesting the validity of tho said sale or attempting to disturb the plaintiff in his title or possession; that the proees verbal of the sale of all the fourteen stores, including the one to plaintiff, was annexed to and made a part of tho first act of sale to Mrs. Margaret A. Silliman, and all subsequent acts of sale to said Mrs. Silliman, to said J. E. King, and the one tendered to the plaintiff, refer to said proees verbal as the sale, and to tho notarial act as merely in confirmation of said adjudication at public auction on the eighteenth day of December, 1869, by N. J. Hoey, of C.'E. Girardey & Co., auctioneers, the proees verbal of which is deposited in this office, and annexed to an act of sale to Mrs. Silliman, dated twentietli December, 1869; that all these facts were and are well known to the plaintiff, and constitute as complete a concurrence in and ratification of the sale as if she were to sign tho act as demanded by him, and that they can not be required to do a vain thing.

This, to us, seems so plain as scarcely to need demonstration. In no stronger manner could Mrs. Silliman show her concurrence in the proceedings resulting in the sale. It is not simply a ratification by her after the sale, but a participation in the sale — a continuing, manifest authorization of the sale, which she can not repudiate. Blanchard •v. Allain, 5 An. 367, and authorities there cited. No such bad faith on her part can be presumed or permitted. Whether the judgment in this case will be res judicata against her as she is not a party to the suit, is not a material question. The facts of this case show that as between the plaintiff and the defendants, the executors of William Silliman, deceased, the latter have tendered to tho former a perfect and complete title — as to the objection raised — to the piece of property purchased by him at the succession sale on the eighteenth December, 1869, and that he had no reasonable ground to refuse its acceptance. The apprehension that the widow or her heirs might at some future day institute suit against him for the property ou the ground set up by Mm, is shown by the defendants to be without legal foundation.

If it be said that the act of sale or written title must, on its face, be complete and show that the widow has parted with her rights, the reply is, that nothing in the act indicates that she has any right whatever to the property. It is only upon an examination of the records and transactions in relation to the origin and chain of title that it is discovered that the property belonged to the community, and the same examination shows with equal clearness that the widow is concluded from setting- up any claim as owner of one-half of this particular property. Her rights, as widow in community, are dependent on a settlement of the community, and the record shows that she has consented to the sale of this property as belonging to the succession of William Silliman, as is enunciated in the proces verbal, to which she is a party. The injunction should have been dissolved.

The defendants claim, the damages which may be allowed on the dissolution of an injunction where an execution of a judgment is in-joined, and quote the laws and authorities on that subject. They do not apply to a case like this. The injunction here is to prevent a sale, not under a judgment against plaintiff, hut under a law, which, under certain circumstances, authorizes the sale to be made at his risk, and makes his liability depend on tho contingency that the price of the second sale is less than that of the first, and measures the damage to the deficiency in the price and the expenses incurred subsequent to the first sale, for which the first purchaser is the debtor to tho vendor. R. C. C. 2611. These can not be ascertained until the second sale is made, and as the pleadings now stand, a dissolution of the injunction permits this second sale to proceed. The attorney’s fee in this suit, which is specially claimed, may, however, be allowed.

It is therefore ordered that the judgment appealed from be reversed, and that the injunction herein he dissolved, and that defendants recover.of plaintiff on their reconventional demand the sum of ono thousand dollars as attorney’s feo, without prejudice to their right of action, under article 2611 R. C. C.

Plaintiff and appellee to pay costs in both courts.

Wyi.y, J.,

concurring. The plaintiff had no right to require Mrs. • Silliman to join as covendor in the sale. This was not part of the aggregatío mentkm, resulting from the offering and the adjudication. It was not stipulated in the order of sale, in the advertisement and in the offering. The title offered was good and valid, and such only as the purchaser had the right to demand. It is not always necessary for the widow in community to join as vendor in the sale of community property. Where such property is sold to pay debts, or where the widow has renounced the community, it is not necessary. Nor is it necessary in a case like this, where the widow sanctioned and ratified the sale, the proees verbal showing that she was the adjudicatee of at least two-thirds of the entire property sold. This ratification was an estoppel as effectual as that resulting from the renunciation of community. The title offered was, therefore, not a mere equitable title; it was a legal title, just as binding on the widow who ratified the sale, as her renunciation of community would be. I therefore concur in this case.


source: Caselaw Access Project

author: IIowe, J.

license: Public Domain

text:
    No. 2993.
    Mrs. M. J. Veazie v. Sarah Ann Stokes.
    Iu an action by tbo beif to annul a disguised donation, on tbe ground tbat it was made by tbo deoeased to a person intorposed, tbe plaintiff must show -with legal certainty tbat tbe puroliaso money vas not tbo donee’s, or tbat tbe transactions were really donations from tbe donor to the person interposed.
    from the Seventh District Court, parish of Orleans (Jollens, J

      Samuel R. & O. It. Wallcer, for plaintiff and appellant. IF. S. Stmt, for defendant and appellee.
   This case was tried by a jury in the court below.

IIowe, J.

The plaintiff, representing herself to be sole heir, with benefit of inventory, of Elijah Smith, deceased, brought this suit to nullify a disguised donation of certain property alleged ’to have been made by Smith to the defendant, his concubine, and to declare such property to belong to the succession of Smith.

The cause was tried by a jury who rendered a verdict for defendant, and plaintiff appealed.

We have given a careful examination to the testimony in this case, and are not satisfied that the verdict was erroneous.

The property in question was not conveyed by Smith to defendant, but by third persons. It is not established with' legal certainty that the purchase money was not the defendant’s, or that the transactions wrere really donations from Smith to defendant, in disguise. Nor is it established with legal certainty that, even if the money paid by defendant for the property was donated to her by Smith, it exceeded iu amount one-tenth of his movable property. Rev. C. C. 1481.

Judgment affirmed.

Rehearing refused.


author: Howe, J.

text:
    No. 3750.
    Hyams & Jonas v. Henry M. Rogers, Tutor, etc.
    Ordinary partners aro not “bound in solido for attorney’s fees for services rendered fclio firm under the employment by one of its members. In such a case each, one of the partners is bound for his virile share, if no agreement has been made between the attorney and Hie partner who employed him. R>. C. C. 3872, 3873.
    Appeal from tile Ninth Judicial District Court, parish of Rapides. H. W. Bowman, attorney at law, judge acl hoc, in place of Orsborn, judge, recused.

      T. O. Manning, for plaintiffs and appellees. IL S. Losce,

    for defendant and appellant.
   Howe, J.

This is an action for attorney’s fees against the representative of the estate of W. H. Orsborn. The services were rendered, as alleged, by plaintiffs “ to tbe firm of J. & W. H. Orsborn,” a planting partnership. J. Orsborn lias gone into bankruptcy, and W. H. Orsborn bas departed this life.

There is no doubt that the plaintiffs performed the services at tbe request of J. Orsborn for the firm, and we do not perceive any force in the reasons 'urged by the defendant, who has appealed, for a reversal of the judgment.

The prescription of three and five years can not apply. The services of the plaintiffs as attorneys ceased in the case in which they were employed in May, 1869, and this suit was instituted in April, 1871.

The court a qua gave judgment against defendant as representing the succession of W. H. Orsborn for half the fees. The appellee has prayed for an amendment of the judgment in such way as to compel the defendant to pay the whole claim of plaintiffs, on the ground that by art. 3026 of tbe Revised C. C. it is provided that “if the attorney has been empowered by several persons for an affair common to them every one of these persons shall he bound in solido to him. for all the effects of the procuration.”

This article is copied verbatim from the Code Napoleon, art. 2002, which, in its turn, is a statement of the civil law doctrine, as laid down by Pothier, Du Mandat, No. 82, and fortified by the authority of Paul in L. 59, $ 3, ff, Mandatum. And under this system it has been decided in Franco that solidarity would exist in favor of an attorney, a syndic in insolvency, an arbitrator, an expert appointed at the request of parties and in their common interest, and a liquidator of a commercial partnership. See Dailoz, 1830, 2, 105; Troplong, Du Mandat, No. 691. But, as remarked by M. Troplong, No. 693, it is to bo observed that in order that solidarity may exist as against the principals, two conditions are required—

First — That the mandatary shall have been constituted by several persons, and,

Second — That the affair should be common to them, and therefore the article would neither apply where several persons by a single instrument should empower an attorney for affairs not common to them, nor where one person should empower for an affair of common interest to several.

If John Orsborn and W. H. Orsborn, several persons, had employed plaintiffs to protect their common rights they would doubtless have been bound in solido. But we ñnd no precedent in decisions or commentary for solidarity in such a case as this, where one partner of an ordinary partnership employs on its behalf and for its protection a mandatary. He may bind himself possibly for the full amount of fees. Ho may bind the partnership for the full amount. But construing' the article above cited with articles 2872, 2873, which limit the liability of tho ordinary partner to his virile share, we are constrained to think that the obligation of W. H. Orsborn, who did not actually join in the act of empowering tho plaintiffs, springing as it does from the fact merely that they were employed by and for an ordinary partnership ■of which ho was a member, must bo limited to one half their fees.

Judgment affirmed.


text:
    No. 3765.
    R. L. Pruyn v. James H. Gibbens.
    XUo affidavit} of a defendant that ho is sick and unable-to attend court as a witness on tho day of trial, is not good cause for a continuance of the case, if it be admitted by tho opposite party that he would, as a witness, if present, swear to what ho had set forth in the affidavit. C. I\ 4GG.
    Appeal from the Fifth Judicial District Court, parish of East Baton Rouge. Posey, J.

      Favrot & Lcunon and A. S. Herron, for appellee. Fuqua <& Gallihan, for appellant.
   Howe, J.

Tho defendant, who has appealed, states in Ms brief that •“the thing of which he most complains and wishes to press upon the attention of this court is the harsh and extraordinary exercise of power on the part of the judge below in forcing him to trial at the time he did.”

The answer, a general denial, was filed on fourth December, 1871, and on the same day a motion for continuance, in which the defendant’s counsel state that their client has been absent from the State; has only returned within the last two weeks; has special defenses to make, which they have been unable to learn from Ms wife with sufficient clearness to enable them properly to set up, or present them to the court.

This motion was overruled, and the ease reassigned for seventh December, 1871.

On the sixth December defendant filed an amended answer, from which it appears that counsel must have been thoroughly acquainted with Ms grounds of defense.

On the day fixed for the trial of the case, defendant filed another motion for continuance, supported by affidavit. The reading of this motion will show that defendant must have had a conference with his counsel, and apprised them of all the facts upon which his defense rested. He swears as to the facts he intends to prove both by his own and Viglini’s testimony.

It was admitted by plaintiff that if defendant and Viglini were present they would swear to the facts as stated in the affidavit for continuance. They are the only two witnesses of whose absence defendant complains. Defendant’s affidavit does not show that he was not aware of the witness’ intended departure, and could not have obtained his testimony. 15 L. 276.

The district judge overruled this second motion for continuance, and we do not think he erred in so doing. The requirements of art. 466, C. P. were fulfilled by plaintiff’s admission j and we are not aware-of any rule of law which prescribes that in such a ease a plaintiff shall not recover his judgment until the defendant recovers his health.

Upon the merits there is some conflict of testimony as to the precise amount due, but we do not feel authorized to disturb the judgment. At the same time we are not satisfied that damages should be awarded for a frivolous appeal.

Judgment affirmed.


author: Howell, J.

text:
    No. 2542.
    W. H. Clay et als. v. E. O’Brien.
    "Wliere the heirs oi“ a deceased person seek "by petitory action to recover real estate from the owners who have acquired title thereto at a judicial sale to enforce the payment of taxes due hy said property, the burden falls upon the heirs of showing that the proceedings to enforce the payment of the taxes assessed on the lands were irregular and illegal. If in such an action tho record discloses that the requirements of the law have been complied with in making the sale, then, and in such case the title will be declared good and valid, and the petitory action by the hoirs will be dismissed.
    Appeal from the Sixth District Court, parish of Orleans. Oooley, J.

      A. & M. Voorhies, for plaintiffs and appellees. Ootton & Levy, for defendants and appellants.
   Howell, J.

This is a petitory action, in which the plaintiffs, as legatees of Mrs. A. M. Heifer, seek to recover of defendant twelve lots of ground in the square hounded by Bienville, Napoleon, Solomon and Conti streets, in Now Orleans, purchased hy said Mrs. Heifer on twenty-seventh May, 1837. The defendant sets up title under a sale made on twenty-eighth January, 1860, hy virtue of an order of seizure and sale in the ease of C. Boselius, receiver, v. Three Squares of Ground, instituted under the fifth, sixth and seventh sections of act No. 49 of 1839, to enforce the mortgage created hy said act in favor of the New Orleans Draining Company to secure the tax assessed on the land to-be drained; he avers that the said sale having been made in conformity to law can not thus be attacked collaterally, and asks that if he be evicted he be paid the price of the adjudication before possession is given to plaintiffs. Eugene Lasere, the adjudicator at said sale, intervened as defendant, and from a judgment in favor of plaintiffs both defendants have appealed.

First — Plaintiff's deny that there was a compliance with the said act of 1839 in making the assessment, appraisement and advertisement of the said property.

It seems from the record that the assessment was made on the whole square bounded by the above named streets, as belonging to unknown, owners, and the advertisement was made of the whole square. The act directed a plan of the property within the draining district or section to be made by the company, showing as much as possible the subdivision of the property and the names of the proprietors; authorized the necessary assessment to bo made on each portion of the property as found and a mortgage and privilege decreed thereon, which decree was to be recorded and an order of seizure and sale allowed against tho property in the name .of the proprietors, or in rem as belonging to unknown persons, if, notwithstanding diligent inquiry, the draining company should not be able to ascertain who are the owners, and upon making certain advertisements, containing a clear description of the property referred to, the fact of the assessment, and that the owners are unknown, in order that the owners may appear, and upon the appointment of a curator ad hoe. These formalities appear to have been observed. The act also directed the property to be sold without appraisement.

Second — The seizing and selling for tax three squares of ground is irregular and in violation of law.

In what respect it is irregular and illegal is not explained. The proceeding was against the said property as belonging to unknown owners, and we do not see in it anything contrary to the provisions of the act in question or any other law relating to the subject. The squares were correctly described and the necessary notices published.

Third — The company could not seize and sell the property of plaintiffs to pay the tax owing by other parties. We find in the record no evidence that such was the case.

Fowth — The seizure and advertisement of tho square bounded by certain streets to pay §400 56, and selling one-half thereof for §650, and staying the sale for the other half, as shown by the sheriff's return, is irregular aud the whole proceedings are vitiated thereby. And if, as contended, it was seized and sold to pay half the tax, then the proceedings were defective, as they do not show that the writ was enforced for such purpose.

The record-shows that the said square was assessed for $400 56 with ten per cent, interest from twentieth January, 1851, and costs of advertising, the one-half vdtieh, at the day of sale, in 1860, with the city and State taxes duo amounted to not greatly below the price of adjudication. It has been decided by this court that the half of a piece or tract of land can be legally sold under an advertisement of the whole if there is a legal cause for stapling the sale of the other half. See Losee v. DeLacey, 23 An. 287. As the advertisements were intended in part to give owners an opportunity to make themselves known, we may well presume from the proceedings that'the owner of the half not sold made himself known and paid his proportion of the assessment on the whole square. At any rate there is no such irregularity in this respect as to render the sale absolutely null.

Fifth — The sale was in palpable violation of sections five and seven, in selling the property for eash; it should have been sold on one and two years’ credit as therein directed.

By the said sections the owner had the privilege of giving notes at one and two years if his tax exceed $100, and have the property sold accordingly, hut it is not made the duty of the company to so soil.

Sixt% — The act provides that each owner’s property shall he assessed and proceedings carried on against him for the collection of the assessment. This is true where the owners are known or can be ascertained, but not where the owners are unknown.

Seventh — The proceedings do not show that the receiver used due diligence to discover the owners of this property, and the sale of it as the property of unknown owners was not warranted. The question of what was due diligence at the time, on the part of the receiver, can not properly be determined in this suit, to which he is not a party, and we will presume he did his duty. Had the law prescribed what particular acts would constitute diligent inquiry, it would present a question like that of particular formalities necessary in making such forced sales. The facts that Mrs. Heifer’s title was recorded in 1837; that her succession was opened in the probate court and the plaintiffs wore prat in possession of the properbpr as her legatees; and were represented by a tutor and undertutor, are not facts that the receiver was bound to know. The assessment rolls of the’ city or State are not in evidence, and we can not say in whose name this property was assessed, conceding that it was the duty to have the said rolls examined.

Eighth — The advertisement, seizure and sale of u square No. 873, bounded by Bienville, Solomon, Conti and Napoleon streets,” where the square was described as No. 25 in the act of sale to Mrs. Heifer, and on a plan in the office of the notary who passed said act, is not such a description as to serve as a notice of the proceedings to plaintiffs, the owners of half of said square.

The names of the streets bounding the square were given, and the difference in the numbers given in the two plans, is not fatal. The plan of the company, showing the No. 373, was made official by the law. Onr conclusion is that the law was complied with in the proceedings under which defendants purchased.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment in favor of defendants with costs in both courts.


author: Ludeling, C. J.

text:
    No. 3894.
    City of New Orleans v. Edward J. Rigney.
    A stipulation in a contract of lease to collect wharfage lor a given period of time, which reserves the right to the city to have it annulled if the other contracting party fails to comply with his obligations, is a law between the parties, and the failure to comply with his obligations, on the part of the other contracting party, gives the city the right to have the contract annulled by judicial proceedings.
    Appeal from the Eighth District Court, parish of Orleans. Dibble, J.

      George S. Lacey, city attorney, for plaintiff and appellant.

      Wooldridge <& Thomas, for defendant and appellee.
   This case was tried by a jury in the court below.

Ludeling, C. J.

This is an action by the city of New Orleans, as successor to the rights of the late City of Jefferson, to annul a contract between the defendant and the City of Jefferson, on account of the failure of the defendant to comply with his obligations.

The city asserts this right under a clause in the said contract, which is in the words following :

It is understood and agreed hereby that any failure or refusal on the part of the said Edward J. Rigney, to pay the said notes at maturity, shall operate to annul and cancel this contract.”

The evidence shows that one of the notes was due on the thirteenth day of November, 1871, and that it was presented for payment to the defendant, Rigney, and was duly protested for non-payment. That on the following day the agent of the defendant offered to pay the note to the Deputy Administrator of Finance, who refused to receive payment, because he liad been instructed not to receive payment thereof after the protest.

The defendant insists that the clause above quoted does not authorize the construction contended for by the city, as the note is not domiciliated, and ho further insists that no demand was made of him until after three o’clock of the last day of grace, when it was not convenient for him to make the payment, on account of the lateness of the time of clay. And he further insists that under article (2541) 2563 R. C. C., ho had the right to make payment and prevent the rescission of the contract at any time before judicial demand.

The judge of the district court charged the jury to that effect.

We do not conceive that article 2563 C. C. applies to this contract, which is a lease or sale of the right to collect wharfage in Jefferson City, for a limited number of years. Article 2563 applies to the “ sale of immovables.”

The clause aforesaid of the contract is the law between the parties. It is an accidental stipulation, which belongs neither to the essence nor to the nature of the contract, but which depends solely on the will of the parties. R. C. C., article 1764. They had a right to stipulate that the contract should be null if the obligor did not pay on a particular day,- and we think they did so stipulate. The clause is meaningless unless it gave the right to the city to annul the contract on the failure of the defendant to pay the notes as they matured.

“Where a term is given or limited for the performance of an obligation, the obligor has until sunset of the last day limited for its performance to comply with his obligation, unless the object of the contract can not be done after certain hours of that day.” R. C. C., article 2057. By the terms of this contract the defendant was in default by the mere failure to pay within the term specified. C. C. 1911, No. 1. But the evidence shows that he was put in default by a demand and protest. C. C. 1911, No. 2.

“ The object of the putting in default is to secure to the creditor Ms right to demand damages or a dissolution of the contract, so that the debtor can no longer defeat this light by executing or offering to execute the agreement. After the debtor has been put in moro Ms offer to execute his engagement comes too late and can not be listened to.” 8 R. 161; 20 An. 292; Toul., vol. 6, p. 253, No. 246.

The defendant knew the term within which his obligation should be performed, and it was Ms fault if he neglected to perform it; and Toullier says: “ Ain si les tribunaux, qui ne sont établis que pour juger les faits et appliquer la loi, excéderaient évidemment leurs pouvoirs, et s’exposeraient á la corsure, si, sous pretexte d’équitó, ils se permettaient encore de modifier une pareille convention, ou de n’y point avoir égard.”

The plaintiff has pra3 ed for damages but they have failed to make satisfactory proof of an3'.

It is therefore ordered and adjudged that the judgment of the lower court and the verdict of the jury be set aside, and it is further decreed that there be judgment in favor of the plaintiff against the defendant, canceling the contract between the City of Jefferson and the defendant, and perpetuating the injunction.

It is further decreed that the unpaid notes of the defendant be canceled and be delivered to Mm, and that defendant pay costs of both courts.


text:
    No. 3906.
    Succession of Charles Massieu—Opposition of Mrs. E. LeBlanc.
    An exception to tlio authority of an attorney to bring a suit should not be sustained, if the evidence offered on the trial leaves it in doubt as to whether the attorney was prosecuting the suit without the sanction of his client, because in all cases of doubt the authority of the attorney is presumed. In this case the authority of the attorney to bring the suit was shown. But exception being taken to his authority to prosecute the suit, application was made to the court for a continuance to enable the attorney to procure the testimony of the client, a non-resident, on the point. The court refused the continuance on the ground that a telegram had been shown, purporting to be from the client, showing a change of mind.
    Held — That the continuance should have been granted, because the telegram, if true, did not make it certain that the client had changed her mind about the suit.
    Appeal from the Second District Court, parish of Orleans. Duvigneaud, J.

      JS. Bermudez and J. Culbertson, for executors, appellees.

      C-. Schmidt, for appellant.
   Ludeling, C. J.

Charles Massieu died in the City of New Orleans on or about the third of November, 1871, and on the thirteenth of December, 1871, his executors, DeEerriet & Monrose, filed their final account and tableau of distribution. Whereupon Mrs. LeBlanc filed a petition, alleging that she had a claim against the estate for ten thousand dollars, based on the following disposition mortis causa:

Good for ten thousand dollars, payable to Miss Ernestine L. Chauveau, after my death, value received.
“ New Orleans, September 26, 1842.
“C. MASSIEU.”

She prayed that her claim should be recognized as valid, and that her opposition to the tableau of distribution should he sustained.

The executors filed an exception to this suit, on the ground that the attorney who instituted it acted without authority. Before the trial of the exception, the attorney who instituted the suit made an affidavit for a continuance to procure the testimony of his client, who resides in France. He swears that ho expects to prove by her that she did authorize and employ him to bring this suit. The continuance was refused on the ground that it was unnecessary, inasmuch as the judge was satisfied from a telegraphic dispatch which purported to come from her, that she had revoked her authority. The dispatch is in the following words;

Voulant pas entamer proees, renvoie le billet Massieu.
“LbBLANC.”

It was addressed to Madame Francis, care of Dieter Gladstein, New Orleans, and it is dated December 30. Mrs. Francis says sho is not certain that tlio telegram came from Mrs. LeBlanc. The letters from LoBlanc to Mrs. Francis and G. Schmidt, the attorney who instituted the suit, clearly prove that she authorized him to institute the proceedings, on condition that she should not be called upon for any expenses unless she succeeded in her suit. We think, under the circumstances, that the continuance should have been granted.

Aside from the proof in the record, the authority of the attorney will be presumed. 9 M. 88; 10 M. 639; 12 R. 95; 3 An. 558; 5 An. 118; 10 An. 66.

Wo do not regard the dispatch received by Mrs. Francis as proof of a revocation of the authority to the attorney to prosecute the suit. He had received no instructions on the subject from his client, and it is probable that she may have sent the dispatch under a misapprehension of the facts. It is certain that her wishes, as expressed in her letters, are in direct conflict with those expressed in the dispatch, as 'interpreted by the judge a quo, and we will not easily believe that she wantonly violated her contract with her attorney.

It is therefore ordered and adjudged that the judgment of the district court be annulled, and that there be judgment overruling the exception and remanding the cause to be proceeded with according to law. It is further ordered that the costs of appeal be paid by the succession.


text:
    No. 3839.
    Babcock & Kernochan v. A. C. Watson.
    A defendant who alleges that the consideration of the obligation on which suit is brought grew out of an illicit transaction between himself and the plaintiffs in order to succeed in his defense, must support his allegations by clear and undisputed evidence. The doctrine in the case of Weaver v. Anfoux, 20 An. 1, is reaffirmed by this decision.
    Appeal from the Thirteenth Judicial District Court, parish of Tensas. Hough, J.

      Julius Aroni, for plaintiffs and appellees. Farrar & Beeves, for defendant and appellant.
   This case was tried by a jury in the court below.

Howe, J.

This suit was instituted upon a promissory note given by defendant in 3866, in settlement of an account of plantation goods sold to Mm by plaintiffs in 1861.

His principal defense is that these goods were knowingly and unlawfully furnished to him by the plaintiffs for the equipment of a rebel battery, organized by defendant, and known as Watson’s Battery. In brief he avers that the plaintiffs were co-conspirators with Mm against the Government of the United States and he invokes their common turpitude as a defense.

The cause was tried by a jury, who rendered a verdict for plaintiffs, and from the judgment entered thereon the defendant has appealed.

The jury doubtless believed that the defendant did not make out his case with that clearness which such a suspicious sort of defense requires (20 An. 1), and wo are not prepared to say they were mistaken. The defendant had the benefit of his own testimony before the jury (while the plaintiffs were represented only by a written deposition oí ono of them); and he began Ms testimony with the rather damaging admission that he would not swear that the account presented was the one on which the note was based. Ho confesses that the dozen linen cambric handkerchiefs and the dozen half cotton hose, set forth in the account, were probably not for the use of liis cannoneers, and it is likely the same might he said of six pieces of brown cotton,” also mentioned in the bill. He fails to account for the fact that about half the goods were purchased by him in January and February, 1861, two months before the war began, while his battery was not organized till nearly four months after the war broke out, or in August, 1861. He fails entirely to show any knowledge, on the part of plaintiffs, of the destination of the goods. He says :

I represented to Mr. Deery, their clerk, who. conferred with the members of the firm (whom I don’t think I ever knew) that the articles purchased as enumerated were for army use, and the house thereupon made a reduction in the price. * * When I gave the note I stated to the party to whom I gave it, that the goods purchased had been for army use, and that he ought to make a reduction in the-price.”

If this testimony refers in the first instance to the timo tho goods were purchased, it is contradicted by testimony on behalf of plaintiffs, which shows that the goods were charged at full prices, and by testimony for defendant, which shows that they were purchased not by defendant personally hut, in Ms absence from New Orleans, by his-factor, now deceased, at the request of his sister-in-law, who had no personal interview with either Deery or plaintiffs about them,, and states that she can not say the plaintiffs were aware of their destination. And furthermore, if the plaintiffs made this reduction in 1861, when the goods were purchased, wily did the defendant when he gave the note in 1866, ask for a reduction for the same reason ? But if the testimony above quoted refers throughout, as seems most natural, to what took place in I860, when it seems a reduction was made by throwing off some arrears of interest, it can not prejudice tiie plaintiffs’ right growing out of a sale in 1861.

Tho testimony for plaintiffs goes to disprove any knowledge of the destination of the goods, and this seems credible enough. Why should dry goods merchants supplying plantation goods to tho factor of a planter, suspect that lie was about to heat Ms plowshare into a sword, and use such innocent and bucolic materials as “ stripes,.” ‘‘jeans” and “liuseys, ” to equip a company of artillerymen ?

Judgment affirmed.


text:
    670.
    W. S. McLean, Testamentary Executor, v. Keegan & McCann and Eugenie Guillaume.
    A title to real estate is acquired by thirty years’ peaceable and uninterrupted possession as owner.
    In a suit for the recovery of real estate on the ground that the title of the possessor is simulated, the plaintiff can not be permitted to treat the title of defendant as a pure simulation, and at the same time urge the sale as real, for the purpose of defeating the plea of prescription.
    from the Second District Court, parish of Orleans. Whitaker J.

      O. B. Singleton and JB. JD. White, for appellant. O. Boselms, for appellee.
   Ludeling, C. J.

Tlie testamentary executor of John Hagan, the brother and universal legatee of Thomas Hagan, instituted this petitory action to recover from defendant a lot of ground and the buildings thereon situated on Canal street.

Eugenie Guillaume answered that she is the rightful owner and possessor of the property sued for, under and by virtue of the act of sale mentioned in plaintiff’s petition, which act is dated the twenty-eighth of June, 1828. That even if the said act were a disguised donation (which, however, is denied), still her title had become valid in law, inasmuch as John Hagan, the universal legatee and only heir of Thomas'Hagan, had knowingly, publicly and repeatedly, before and after the death of Thomas Hagan, recognized, given effect to, approved, ratified and confirmed the same, and thus placed it beyond the power of his heirs or executors to attack her title. She also pleaded the prescription of ten and thirty years.

It appears that Thomas Hagan sold to Eugenie Guillaume the property now in dispute, on the twenty-eighth of June, 1828. This is the act which is attacked as a disguised donation to a concubine.

Eugenie Guillaume sold the same property to Thomas Hagan on the seventeenth of April, 1833. On the twenty-second of April of the same year, Hagan sold it to John G. Greeves, who sold it to Nicholas Sinnott on the third of May, 1833; and on the thirteenth of May, 1833, Sinnott sold it to Eugenie Guillaume.

Thomas Hagan died in Paris on the sixth of April, 1850. By his will his brother John Hagan became his universal legatee and sole heir. John Hagan became Eugenie Guillaume’s agent for this property before the death of Thomas Hagan; his letters and accounts rendered to her show that as early as 1846 he was her agent, paying taxes and receiving rents on the property. And he continued to act as her .agent for the property after the death of Thomas Hagan, up to the period when he left this country, when Mr. John Clay was appointed by him to act for the defendant. In 1851 John Hagan advised the •defendant to sell the property.

John Hagan died in September, 1857, in Prance, leaving a will, whereby he appointed four executors, only one of whom qualified and received letters of executorship.

The conclusion we have reached in regard to the plea of prescription, renders it unnecessary to decide the other questions, which have been learnedly and ably discussed by counsel.

It is alleged in the petition that the sale by James Hagan to the defendant was made on the eighth of June, 1828, and the deed in evidence proves that fact. This suit was instituted on the twenty-ninth day of March, 1860; consequently more than thirty years elapsed between the date of the deed and the institution of this suit. And from the testimony of James Hopkins, a witness for the plaintiff, who was intimate with Thomas Hagan and the defendant, it appears that Eugenio Guillaume and not Thomas Hagan was in possession of the'property before they went to Europe. He says: “I know the property alluded to in these proceedings. He (Thomas Hagan) never ■lived there j his residence was not there. He resided at the corner of Customhouse and Royal streets. Eugenie Guillaume, the. person who lived with Thomas Hagan, lived there; she lived there a length of time; she lived there up to the time she went away.”

James Puech, a witness for plaintiff, says : “She lived on the property referred to; she was living there until she went away. * * Thomas Hagan lived there with her.”

Mr. Thomas Clay says: “I always knew her to occupy it (the premises) until she went to Prance, some twenty-five years before she left.”

We conclude from the foregoing and other corroboratory evidence that the defendant had occupied and possessed, as owner, the property in dispute more than thirty years before the institution of this suit.

The plaintiff contends that Thomas Hagan and the defendant resided on the premises at the date of the sale or donation, and continued to reside together until they left for Europe. We think the evidence leaves no ground for a reasonable doubt, that at the time of the sale, the eighteenth of June, 1828, Thomas Hagan did not reside at the bouse sold. Hopkins says : “ He resided at the corner of Customhouse and Royal streets.” It is true Puech says: “Hagan lived there with her.” But this statement only confirms the testimony of Hopkins. It means at most that he visited her at her residence, and stayed there with her sometimes. *

The plajntiff further contends that the prescription only began to run from the death of Thomas Hagan, the sixth of April, 1850; that •otherwise a prohibitory law can be violated with impunity, if the donor should live thirty years after the donation. Practically such .might be the effect. But it would not result from the prohibited act of donation, winch, would remain always null, but simply from the fact, of actual and uninterrupted possession, during the time required by law to acquire the ownership. C. C. arts. 3499, 3500; Troplong de la Préscription, vol. 2, Nos. 846, 820; Marcadé, vol. 5, p. 99.

The plaintiff further contends that, granting that the act of June, 1828, transferred the legal possession to the defendant, then the same effect must be given to the act by which the defendant resold the property to Hagan in 1833, causing the prescription to commence its course, de novo, from that date; and that the purchase irom Sinnott, in 1833, operated an interruption of prescription ; that though these acts were not good as sales, because “they were all simulated and tainted with the original vice, they are efficacious as interruptions of prescription.” The fallacy of this reasoning is in supposing that in recognizing the defendant’s possession, effect is given to the act of sale; whereas it is the fact of the actual possession of the defendant which alone gives her a title.

The plaintiff can not be permitted to allege and treat the acts of sales to and from the defendant as pure simulations, and at the same time claim that they interrupt prescription. If it be conceded that all these sales were simulations, and we disregard them entirely, still we are satisfied from the evidence and the admissions of the plaintiff) that-the defendant had been in the actual public and uninterrupted possession of the property, as owner, for more than thirty years, when this suit was brought; and the plea of prescription should be maintained.

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


author: I-Iowe, J.

text:
    No. 3665.
    M. Marks, Administrator, v. The Town of Donaldsonville.
    The gratuitous investiture by the State, in a municipality, oí the administration of a public ferry, with the right to collect and enjoy the revenues arising therefrom, is not a contract between the State and such municipality, and the State may, therefore, through her legislature, at any time, resume the control of such ferry herself or vest it elsewhere.
    The doctrine in the case of police jury of Bossier -y. Shreveport, 5 An. C61 is reaffirmed by this decision.
    * PPEAL from the Fourth Judicial District Court, parish of Ascension. Beauvais, J.

      B. N. Simms, for plaintiff and appellee. Nichols <& Pugh, for defendant and appellant.
   I-Iowe, J.

The question presented in this case was very fully discussed and finally settled in Police Jury of Bossier v. Shreveport, 5 An. 6C3.

Following the language and theory of that case, we may say in this, that “the State, through its legislature, in the exercise of its sovereign power to regulate ferries, which are parts of the public highway, conferred in former times upou one of the subdivision's of the internal administrations of the State,” namely the town of Donaldsonville, the right to keep a ferry across tho Bayou Lafourche, and to receive the revenues therefrom, which revenues the State itself might have retained had it so chosen. This right, which it is not pretended was perpetual, was conferred “ without any consideration innring to the Stato, or anjr onerous condition imposed on the town.” There was no contract between the State and the town, nor any right “vested”in the latter.

When, therefore, in 1870 the State, through its legislature, chose to resume its contract over this ferry or public highway, and to confer the right to keep it on the persons whom the plaintiff represents, upon condition that they should pay the town a certain sum per month, the town has no legal right to complain.

It may be that tlie revenues thus coming to the town from this highway of travel may he reduced in this way, hut if the State, through iis Legislature, might have resumed the right in toto, and thus taken the revenue away from the town entirely, it certainly can not bo good ground of complaint that there has been merely a reduction made.

With the policy of the particular act of the Legislature involved in this ease, we, as judges, have nothing to do.

Judgment affirmed.

Rehearing refused.


author: Wyly, J.

text:
    No. 3498.
    Succession of Charles Kock—Opposition to account of Testamentary Executor.
    Tlio designation and fixing fiy tlio testator in liis will tlio per cent, wliich liis executors arc to receive as compensation for administering his estate, does not constitute them universal legatees, or legatees by universal title. And thoy, the executors, are not therefore bound to contribute to the payment of the debts.
    ■Whore the rate or per cent, of commissions allowed the executors has been fixed by tho testator for administering his estate, they' are entitled to such rate of commissions on all the property inventoried as composing the estate, and the heirs who have postponed by legal proceedings the sale of certain property which tho executors are directed by the will to sell, can not make successful opposition to the payment of tlie commissions, on the ground that tho property has not been administered upon and sold according to the wishes of the testator.
    Appeal from the Second District Court, parish of Orleans. Duvigneaud, J.
    IF. O. Denegre, for opponents and appellants. J. A. Dosier, and Olarh, Bayne & Benshatv, for executors appellees.
   Wyly, J.

Tho question presented for adjudication in this case is, shall the testamentary executors of Charles Kock receive as compensaron for their services the commissions stated in the will, on the proceeds of filie entire estate, or only on the proceeds remaining after the payment of all the debts? In the will we find the following clauses: “I appoint as tutors of my children, of which five are minors yet, my brother-in-law Michel Musson, and my son-in-law Edmond Cramer, and also as executors of my last will, asking them to take for their counsellor and legal adviser, Judge J. N. Lea, allowing each of these three persons, a commission of two per cent, on the proceeds of my individual property. If any of them should decline to act as executor or tutor, the accepting ones may choose another one. I make it incumbent and obligatory upon my executors to realize the whole of my rcal estate in the city and country, whenever and as soon as it can be done at anything like a fair price. * s * * The whole amount realized after deduction of the expcnses'and commissions and the legacies mentioned hereafter, shall, like the portion coming to my children from their mother, be equally divided among the surviving children. * * * ’■ * If Judge Lea should decline or is prevented from becoming my executor, I wish that Charles Andrew Johnson may take his place.”

In the codicil to the will there is the following clause: “I nominate and appoint the tutors of my children, Mr. Edmond Cramer and Mr. Michel Musson and in conjunction with them, Judge J. N. Lea, the executors of this my last will, having all confidence in any and all of them that they will do justice to my widow and children. ”

A fair interpretation of the clauses of the will cited, is that the executors named by the testator shall receive as compensation for their services, two per cent, commissions each on the entire mass of the property or its proceeds. This was the undoubted intention of the testator. But the heirs who oppose these items of the executors’ accounts contend, as the rate of compensation is a per cent, on the whole estate, therefore, the executors are heirs by universal title; and as such, they are each bound for his share of the debts. Of course the heirs by universal title can only take the property remaining after payment of the debts; and in case they accept the succession unconditionally, they become bound each for his virile share of the debts of the deceased. But because the testator has fixed in the will the commissions of his executors at a different rate from that fixed by law, shall wo say that they thereby became his universal legatees or heirs by universal title, and are bound, therefore, to contribute to the payment-of the debts?

Will it for a moment be contended, that the interest of these executors in the estate would be enhanced by the death of the other heirs, or by the lapse of the special legacies from the incapacity of such legatees to take, or from any cause? Surely not. The death of all the heirs, the forced heirs, named in the will, if occurring prior to the death of the testator, would not inuro to the advantage of the executors or increase their interest in the estate.

Tile percentage allowed by the testator to tho executor, was not an unconditional legacy to them. They were to receive it only after accepting the appointment and discharging the duties of the office. It was merely a remuneration for the services of these executors to ho performed after tho death of the testator. Now, whether tho rate of compensation for these services was fixed in tho will, or supplied by tho law as part thereof, is of no consequence. In neither case would if constitute the testamentary executors the universal legatees or legatees by universal title.

If the lapse of the special legacies, or the death of the co-heirs prior to the death of tho testator, would not inure to the advantage of tho executors or increase their interest in the estate, they certainly are not the universal legatees.

A bare glance at the will, will show who are the universal legatees of the testator.

It says: “The whole amount realized after deduction of the expense and commissions and tho legacies hereafter mentioned, shall, like the portion coming to my children from their mother, ho equally divided among tho surviving children,” etc. * * * *

The children of the testator are undoubtedly his universal legatees 5 and tbe lapse of tho special legacies from any causo, would inure to their advantage and not to the. benefit of the executors. The conclusion is, therefore, inevitable, that the executors aro not the universal legatees, and arc not hound to contribute to tho payment of the debts of the testator. It was not the intention of tho testator that they should have the commissions mentioned in the will only on tho residue of the estate after the payment of all tbe debts. In case tho debts were equal to tho entire proceeds of the estate, under the theory of tho opponents, the executors would get no compensation, notwithstanding the services performed, and notwithstanding their large responsibilities ' in administering tho estate inventoried at $ 535,514 64. The greater the embarrassment of the estate, tho greater the responsibilities of those administering it. And the interpretation sought to be placed on the will by the heirs, is a manifest legal absurdity. The commissions charged in tho account and homologated by the court, notwithstanding tho objections set up in tho opposition of tho heirs, we think the executors are entitled to have under the will.

As to the objection that tho executors should not have commissions on that part of the property administered by them in tho parish of Assumption, because the plantation has not been sold as was contemplated by tho dispositions of the will, we will remark that it is mad© with bad grace by tho heirs, who have caused it to bo postponed by tlio advice of a family meeting advising that said property be not sold, but that the said plantation be cultivated for the benefit of the heirs. After preventing the executors from selling this part of the property according to the directions of the will, the heirs ought not to be hoard to complain because the executors demand their commissions on its appraised value, which is presumed to be equal to the proceeds thereof if sold.

There are other objections which it is unnecessary to examine, because the view we have taken of tlie leading question presented disposes of the case.

As we are bound to give effect to the dispositions of the will, not prohibited by law, it is useless for the heirs to appeal to the sympathies of the court.

Judgment affirmed.


author: Taliaferro, J.

text:
    No. 3856.
    Jas. Brewer et als. v. A. M. Kelly, Administratrix, et als.
    An action by judgment creditors to annul a mortgage given by tbo judgment debtor on tlio grouud that it is fraudulent and was given by tlio judgment debtor in fraud of their rights, is prescribed by one year. Revised Civil Code 1978.
    Appeal from the Seventh District Court, parish of Orleans. Col-lens, J.

      Miles Taylor, J. 8. Whitaker and J. Colwell Bierce, for plaintiffs and appellants. Lea, Finney & Miller, Clarke, Bayne & Renshaw and Race, Foster & JS. T. Merrick, for defendants and appellees.
   Taliaferro, J.

This is an action by several judgment creditors of A. D. Kelly & Co., and A. D. Kelly and G-. A. D. Kemper, in solido, to annul and set aside an act of mortgage executed by the lato A. D. Kelly in favor of J. C. Patrick, to secure an indebtedness of eighty-nine thousand six hundred dollars. This act of mortgage, the plaintiffs aver, was executed in order to give an undue preference to other creditors of Kelly & Co., and in fraud of the rights of the plaintiffs and to their injury, the said Kelly being at the time insolvent and without means to discharge all his debts and liabilities.

The representatives of A. D. Kelly and J. C. Patrick with various persons designated as the preferred creditors, were made parties defendants. The defense is placed mainly on two exceptions pleaded in bar of the action — res judicata and the prescription of one year. There was judgment in the lower court in favor of the defendants and the plaintiffs have appealed.

It is contended by the plaintiffs that the facts presented by tbis case require that articles 2221 and 1978 of tlie Revised Code, should be ■construed together to determine the question of prescription. They allege that they discovered the fraud only in May 1870, and that, by the suits brought on many of the mortgage notes given by Kelly to Patrick, by the holders of these notes, whose names had been previously concealed. That in such a case the prescription of one year is not applicable, prescription commencing to run in cases of error or deception from the day on which either was discovered. The plaintiffs show that they commenced this action within one year from May, 1870.

Articles 2221 and 1978 Revised Code both treat of rescission of contracts. But article 1978 and the succeeding articles of paragraph two of section six, have a special application to contracts made in fraud of the rights of creditors. The first clause of article 2221 clearly points out that the article 1978 and those that follow to 1994 inclusive, form an •exception to the provisions of section 7, commencing with article 2221, and which treats “of the action of nullity or of rescission of contracts ” That section commences by declaring that “in all cases in which the action of nullity or of rescission of an agreement is not limited to a shorter period by particular law, that action may be brought within ten years.” But in cases of rescission of contracts made in fraud of the rights of creditors, the action is limited to a shorter period than ten years; it is limited to one year. Therefore, the provisions of section seven, treating of the action of nullity, etc., are not intended to be applied where creditors institute actions to annul contracts made in fraud of their rights. The article 2221 and those of the same section would seem intended to apply in the main, to causes for rescission that arise between the parties to the contract. Hence a longer term is allowed within which the action may be brought than where third persons are permitted to annul contracts to which they are strangers; for this right is accorded only where the complaining party has suffered injury by the fraud of his debtor, and he is limited to one year to commence his action. There is not in this respect, conceded to him so great a power as that granted to the parties themselves, and in its exercise he must comply strictly with the law. A creditor complaining that his debtor has made a fraudulent contract by which he has disposed of his property or given to others an undue preference over it to the injury of his creditors, seems not to have any good reason why he should be allowed ten years within which to bring Ms action to annul. The fraudulent transfer or incumbrance made by his debtor can not affect him unless made a matter of record. The creditor can not reasonably assert that the act has been concealed from Mm or that his debtor has kept 'him in ignorance of it, when it has been placed upon the public records. The creditors in the present case obtained judgments against their debtor and had them recorded within a few months after he executed the mortgage to Patrick. That act was then duly recorded in the proper office. It informed them that all the real estate of their insolvent debtor was mortgaged to Patrick, and that the mortgage had precedence of their judicial mortgages. They knew that Patrick was a preferred creditor, if they did not know that the act gave preference to others. They chose to remain passive until December, 1869, four years after the mortgage to Patrick had been recorded, and then attacked it as a simulation. It -was declared not to be a mere simulation as they alleged. They now sue to annul it as an actual though fraudulent contract, and allege that not until May, 1870, did they discover the fraud, and that by finding out that Kelly, Tackett & Ford, the Wallaces and Gordon, had possession of most of the mortgaged notes and had instituted suits upon them. They now set up that under the article 2221 construed with article 1978 prescrption would begin to run only from, the time they discovered the names of the preferred, creditors.

We think differently, and conclude that the prescription of one year under article 1978 Revised Code, pleaded by defendants, bars their action. It becomes unnecessary for us to consider the plea of res judicata.

It is therefore ordered, adjudged and decreed that the judgment of the district court bo affirmed with costs.


text:
    No. 3738
    Mrs. M. P. L. Evans et als. v. Mrs. M. A. H. G. De L’Isle et al.
    A motion to set delimit, aside on the ground that the wifo was not legally authorized to sue will not he maintained, if it appears from tho record that tho hushand joined his wifo as co-plaintiff; nor is a peremptory exception that the notes sued upon belonged to the community, a good defense to the action brought by the wife to recover thoreon, if in this action the hushand has joined the wife in tho suit as co-plaintiff.
    from the Seventh District Court, parish of West Feliciana. Miller, J.

      Wieldiffe & Fisher, for plaintiffs and appellees. Oollins & Leake, for defendants and appellants.
   Howe, J.

This action was instituted on two mortgage notes, for §1250 each. Judgment hy default was rendered, when defendants moved to set the default aside on the ground that the plaintiff, Mrs. Evans, was not legally authorized to sue. The motion was overruled, and tho defendants filed an answer. The cause was tried and judgment rendered for plaintiffs as prayed for and defendants appealed.

Wo do not perceive that the court erred in overruling this motion, as Win. R. Evans, the hushand, joins the wife as co-plaintiff. 4 N. S. 388. And as, to remove all possible objection, the plaintiff, Mrs. Evans, was authorized hy the judge, and a special authorization of her hushand, filed in the suit before the trial on the merits, we are somewhat at a loss -to know for what valid reason the point is still pressed. 10 An. 504.

Tho point that the judge below improperly refused a continuance,, seems to be abandoned.

The answer averring ownership of the notes to be in one Mrs. Perkins, was not only not proved but was disproved; and next, under the-banner of a peremptory exception the defendants contended that tho notes belonged to the community existing between Mr. and Mrs. Evans, and that Mrs. Evans could not therefore sue. It is by no means clear that the notes were community. We incline to tho opinion that they were paraphernal. But conceding them to have been community, tho husband joins in and authorizes this suit; the defendants allege no defense against him of which this form of action can deprive them; and he is concluded from ever making any other demand on the notes. Lapice v. Lapice, 21 An. 226.

And finally in this court the defendants allege that the judgment has been sold to the firm of M. Hiller & Co. for $2000, that this is a sale of a litigious right, and they ask “that they may be permitted to pay and satisfy the judgment at $2000.” There is no evidence offered of this allegation except a certified copy of a transfer of the judgment,, and in this there is no price named. But even if there had been a sale ¡pendente lite, it behooved the defendants, if they wished to avail themselves of the advantages of the law in this regard to do so by paying the vendees the purchase price, and not to protract the litigation, as they have done by persisting in defenses more remarkable for ingenuity than merit. 4 An. 104 ; 22 An. 338.

The appellees pray for damages. It is therefore ordered that the judgment appealed from be affirmed with one hundred and twenty-five dollars damages and costs.


text:
    No. 3829.
    Amaron Ledoux v. Hyacinthe Morgan et als. — Third opposition of J. P. Harrison.
    In a contest between mortgage creditors ovo» tho proceeds realized from the sale of mortgaged property, tho mortgage creditor holding the superior mortgage is entitled to bo first paid, whether the obligation for which his mortgage was given has matured or not,
    from tho Seventh Judicial District Court, parish of Points Coupóo. Posey, J.

      Fdward Phillips, for plaintiff. Farrar & Montgomery, for opponent and appellant.
   Wyly, J.

This is a contest, between tho creditors of tho defendant, Mrs. Morgan, for the proceeds of her property, sold under the fi. fa. issued in tho judgment of the plaintiff against the defendants.

Two oppositions were filed; ono by J. P. Harrison, claiming the proceeds by virtue of the alleged priority of his judgment, and the other by James Vignes and others, who claim priority by virtue of their comventional mortgage, which has been rendered executory in the judgment which they hold against the defendant Mrs. Morgan.

The court gave judgment recognizing the superiority of Harrison’s mortgage, and ordering the proceeds in dispute to be applied to the payment thereof. From this judgment the plaintiff, who was the seizing creditor, and the third opponents, James Vignes et als., have appealed. The conventional mortgage, granted in favor of James Vignes et als. is superior in rank to both the other mortgages; and it has been rendered executory in the judgment obtained by said mortgages against the defendant Mrs. Morgan. This conventional mortgage was given to Vignes et als. in order to secure them or to indemnify them from any liability or loss they might sustain from having signed as securities the notes given by the defendant Mrs. Morgan to the plaintiff, being the same on which the judgment sought to be enforced was based.

The opponent Harrison, concedes that the conventional mortgage in favor of these securities, Vignes et als., is superior in rank to his; nor does he contest the validity thereof; but he insists that as it is not alleged nor shown that they have yet suffered any loss by reason of their securetyship their mortgage is inoperative and the proceeds in dispute should be given to him or be applied to the satisfaction of his judgment.

The judgment under which the proceeds in dispute were derived is a judgment in solido against Mrs. Morgan and her securities Vignes and others. They have been held liable as securities for Mrs. Morgan. Now whether their mortgage was prematurely foreclosed or not, on the ground that they had not at the time of the foreclosure suffered the loss contemplated in the mortgage, is of no consequence. The mortgage has a legal cause; it is valid and obligatory and is prior in rank to that of the third opponent J. P. Harrison. Whether it was due and exigible at the time of its foreclosure or not, does not concern the said opponent. Assume, for argument, that it is a conditional conventional obligation, secured by mortgage, and that the condition has not yet happened. It is a mortgage, nevertheless, superior in rank to that of Harrison ; it attaches to the property and can not be removed by the execution of the judgment of a junior mortgage creditor.

But it has been decided that the debt secured by the conventional mortgage is due and exigible; and although that judgment is not binding on the third opponent Harrison, because he was not a party, he can not attack it collaterally. He might have brought a direct action to set it aside if it stands in his way or if its annulment for prematurity would benefit him. But this has not been done; and as before remarked the mortgage is superior in rank to his, whether exigible or not at the time it was foreclosed. A mortgage secures an immature obligation as effectually as a mature one. The only question between •creditors in a contest like this, is as to the rank of their respective mortgages; and here we find tlie rank of the mortgage set up by Vignes and others superior to that of Harrison, and also to that of Ledoux.

The funds realized from the sale of the common debtor’s property, Mrs. Morgan, should, therefore, be applied to the satisütQ|ion of the judgment set up by James Vignes et al., which amounts to more than tho proceeds in the hands of the sheriff.

It is therefore ordered that the judgment appealed from be annulled; that the opposition of J. P. Harrison be rejected with costs, and that the opposition of Vignes and others be maintained, and that the funds in controversy be applied to the satisfaction of their judgment. It is further ordered that appellee pay costs of appeal.


author: Ludeling, C. J. Howell, J.,

text:
    No. 2254.
    John P. Walworth v. John C. Stevenson.
    A judgment that has heen rendered without legal citation is absolutely void, and any person having tho least interest therein, may show such nullity wherever and whenever it is sought to be enforced.
    In attachment proceeding^ the forms of citation prescribed by the law maker must be strictly observed under penalty of nullity.
    A purchaser undor a judicial sale is in bad faith, and is liable for rents and damages, if tho judgment under which ho purchases is absolutely void for want of citation.
    Appeal from the Sixth District Court, parish of Orleans. Cooley, J.

      jRoselius & Phillips for plaintiff and appellant. Miller & Huntington and Fellows & Mills, for defendant and appellee.
   Ludeling, C. J.

William Wren, a tenant of John P. Walw.orth, having caused certain improvements to be made on the premises for his own account, by John Page, gave said Page his note for the balance due by him, $418 65,

On the eleventh of December, 1862, Page proceeded against Wren and Walworth, by attachment, and caused the property of Walworth which had been leased to Wren to be seized under the writ of attachment. Oil the eleventh of February, 1863, judgment was rendered against both defendants, in solido, with, privilege upon the property attached. In execution of this judgment the sheriff sold the property to one George Hawes, who sold it to Wilson, he sold it to Seiler, and Seiler sold it to the defendant.

On the fourteenth of April, 1866, Walworth and Wren instituted suit against John Page to have the judgment rendered against them in 1863, and by virtue whereof the property in question had been sold by the sheriff, declared a nullity, on the ground that they had not been cited.

A decree was rendered in that case, declaring the judgment in the case of John Page v. John P. Walworth et al. null and void, for want of citation.

Thereupon the plaintiff instituted the present suit against John C. Stevenson, who possesses as owner, to recover the property which had been seized and sold under the judgment, in the case of John Page v. Walworth etál. He alleges the absolute nullity of the judgment for want of citation; he invokes the benefit of the decree declaring the judgment null, and he asserts title to the property by virtue of a purchase made on the first of April, 1853, by notarial act duly recorded.

It is not necessary to decide what is the effect of the decree in the suit by Walworth and Wren against Page, declaring the nullity of the judgment in the case of John Page v. John P. Walworth ct al., as to persons not parties to that suit, for the pleadings and the evidence in this suit will enable us to examine the validity of that judgment.

The proceeding was by attachment against John P. Walworth and William Wren, both absent from the State, and they do not appear to have been cited. Citations addressed to Mrs. John P. Walworth et al., were posted at the doors of the court house and the church, and one was served upon a curator acl hoc, but no citation was addressed to John P. Walworth or William Wren.

The district judge who had the original citations before him says: It appears that the judgment under which the above fieri facias was issued was a radical nullity; no citation such as the law requires having been served upon the defendant,' and it is conceded that the proceedings which resulted in the judgment against John P. Walworth and Wren, in No. 19,232, are absolutely null and void, as there is no legal, citation in the case.” The same fact was found by the judge who tried the suit of Walworth and Wren v. Page, for the nullity of the judgment against them.

Articles 179 and 254 of the Code of Practico proscribe how the defendants in tlio attachment suit should have been cited. It is well settled that the forms of law required in cases of attachment against absentees or non residents, are to be strictly pursued; and that when the law designates, in lieu of personal citation,, certain notices or publications in derogation of the common right to be heard before condemnation, courts of justice will require a strict compliance with 'the peculiar forms indicated by the law maker. 1 N. S. 9; 8 N. S. 145; G La. 577; 13 An. 150; 2 An. 403.

The defendant contends that purchasers at sheriff’s sales can not be required to go behind a judgment; and that if a judgment and a writ of fieri facias be shown, and the proceedings under the writ be regular, the purchaser will be protected.

The error he commits is in supposing there can be a judgment when the defendant has neither been cited nor appeared to defend the suit.

In Bernard v. Vignaud, Judge Porter said: “ In every judgment the agency and presence of these parties are required; judex, actor et reus. To condemn without first hearing a defendant or giving him an opportunity to he heard, is contrary to all principles of equity and law. Therefore, a judgment rendered against a person without citing' him in the ordinary manner, without Ms appearing, or anything deemed by law equivalent to citation or appearance, is utterly void, and imparts such absolute nullity that any one the least interested in opposing its effects may have such nullity pronounced.” 1 N. S. 9.

Tile broad aud well recognized distinction, that judgments absolutely null have no existence in law, while those only relatively null have an existence until they are set aside, seems to have been ignored by the learned judge a quo. C. C. art. 12; 1 N. S. 1; 6 La. 377; 11 R. 321; Baldwin v. Carlton, 6 An. 265 ; Uzee v. Biron, 2 An. 492 ; Galbraith v. Snyder, et al.

The defendant’s title is without foundation, as it rests upon a judgment which has no legal existence, and which, therefore, can not be the source of any legal right or obligation. 6 R. 205; Lowery, curator v. Erwin, 2 An. 569 ; Branghton v. King, 2 An. 503 ; Gibson v. Foster, 5 An. 633 ; Adel v. Auty, 13 An. 431.

Not being a possessor in good faith, the defendants owe rents. 6 R. Lowery v. Erwin, 192 ; Bry v. Fouché, 11 An. 665.

The evidence shows that the use of the property from the twenty-eighth of November, 1864, to the eleventh of February, 1869, was worth at least fifty dollars per month, for which there should be judgment in favor of the plaintiff C. C. 2427. It is also proved that the defendant has paid fourteen hundred and forty-two dollars for work and repairs necessary for the preservation of the property, and for taxes. This ho is entitled to be reimbursed by the plaintiff. It is further proved that he paid to William W. Wilson and John Seiler 84000 for the property, and S40 broker’s bill, and $16 50 notary’s bill, expenses of the sale, and that he has incurred a liability of five hun.dred dollars for attorney’s fee for defending this suit. -These sums the defendant is entitled to recover from Ms vendors and warrantors. C. C. 2482, 1960. William W. Wilson and John Seiler called their vendor in warranty, but there was no issue joined between them.

It is therefore ordered and adjudged that the judgment of the lower court bo annulled, and that there be judgment in favor of plaintiff against the defendant, recognizing the plaintiff as the owner of the 'property described in the petition, and ordering that the defendant be put in possession thereof. It is further ordered that the plaintiff have aud recover judgment against the defendant for twenty-five hundred and twenty-one dollars and fifty-eight cents, as rents, with five per centum per annum interest thereon from this date, and costs of suit; subject to a credit of fourteen hundred and forty-two dollars and fifteen cents.

It is further ordered and adjudged that the defendant recover against his warrantors, William W. Wilson, and John Seiler, the sum of four thousand five hundred and fifty-six dollars and fifty-one cents, with five per centum per annum interest thereon from this date, and the costs of this suit.

It is further ordered and adjudged that the rights of William W Wilson and John Seiler against their vendor and warrantor be reserved to them.

Rehearing refused.

Howell, J.,

dissenting. In my opinion the citation, brought in

question in this controversy, is in legal form as to the plaintiff. It X>ossesses all the requirements of the law, and I do not think the action of the clerk in prefixing the letters or characters “ Mrs.” can render that citation void. These characters at most are conventional, and can not properly be considered as controlling the names of parties. A citation good in form in an ordinary action is good in an attachment suit.

The purchaser is reqhirod to look only to the existence of a judgment by a competent court, the writ of execution and the sale.

I therefore think the sale should not be set aside.

Mr. Justice Wyly concurs in this opinion.


text:
    No. 3840.
    Joseph Hewitt, Jr. v. George S. Roudebush.
    A person wlio lias contracted with another to run a gin, can not recover damages from his employer who has discharged him “before the contract expired, for just cause, such as a failure to discharge Ms duties properly.
    An agent who contracts without authority from Ms principal binds himself.
    Appeal fromthe Thirteenth Judicial District Court, parish of Tensas. Sough J.

      Mayo c& Spencer, for plaintiff and apx>ellee. T. P. Parrar, for defendant and ax>pellant.
   Wyly, J.

The plaintiff sues for the reimbursement of moneys expended by him, as agent of the defendant, in running a gin in the parish of Tensas, during the months of October, November, December and January, of 1870 and 1871. He also claims $555 33& damages for the violation of the contract by the defendant in discharging him.

The court gave judgment for $354 48, and decreed that the proxierty attached be sold to pay the amount. The defendant ai>peals, and the plaintiff prays that the judgment be increased to the full amount claimed.

From the evidence we are satisfied that the defendant had sufficient cause to discharge the plaintiff. He was not taking proper care of the machinery, and lie was not acting for his employer as a prudent and faithful agent should. T-Ience there is no foundation for the claim, of damages.

From the evidence we are satisfied the district judge did not err in giving judgment for the plaintiff for §354 48. That much of the account we think correct. There are many items embraced in the account that were not necessary, and for which the agent and employe had no right to charge his principal as expenses for running the gin.

As to the defense that the defendant should not be held liable because he only contracted with the plaintiff as agent, we will remark, there is no force in it. He fails to show he had authority from Oakland College to make the contract with the plaintiff. It is well settled that an agent contracting without authority binds himself.

Judgment affirmed.


text:
    No. 3795.
    S. M. Chase v. C. G. Hale.
    During tlie late war parties residing on opposite sides of the lines of military occupation were prohibited from having any business transactions, or of contracting with each other. But if two parties contracted who both resided within the federal military occupation at the time, although residing in different localities, the contract was legal and binding on the parties.
    Appeal from the Seventh Judicial District Court, parish of Pointo Coupée. Miller, J.

      JEdwcvrd Phillips, for plaintiff and appellee. Haralson <& Claiborne, for defendant and appellant.
   Wyly, J.

Th.e defendant appeals from the judgment against him on a note or due bill for $1618 50.

The defense is, the contract is void because at the time it was made, in September, 1864, the dofendant'was a citizen of the parish of Pointo Coupee and the plaintiff 'was a citizen of New Orleans, and under the act of Congress and the proclamation of the President all intercourse . between them was prohibited. It is admitted that the plaintiff resided in New Orleans and the defendant in the parish of Pointe Coupée at the time the note sued on wras given. Bat the national forces were then occupying a portion of the parish of Pointe Coupée.

The residence of the defendant was on the river, a few miles below Morganza, where the troops were stationed. It is fair to presume, and indeed the evidence satisfies us, that federal authority prevailed over the plantations in the immediate neighborhood, and that the residence of defendant was not in rebel lines. It also appears that the due bill was given in settlement of a partnership between the plaintiff and the defendant for buying and selling cotton, which was carried on under permits issued by competent authority.

Judgment affirmed.


author: Howe, J. Howell,, J.,

text:
    No. 3792.
    E. T. Merrick v. Robert McCausland — On rule against Jessie B. Sims et als.
    A,judicial mortgage creditor of inferior rank to that of a conventional mortgage creditor may proceed by rule against the latter to show cause why his conventional mortgago should not he erased, without proceeding by direct action to sot aside the conventional mortgago, and the conventional mortgage creditor must plead to the rule, and not except to the judicial mortgage creditor proceeding in that form to got rid of the mortgage.
    Appeal 'from the Seventh Judicial ’District Court, parish of West Feliciana. Cooley, J.

      Samuel J. Powell, for plaintiff and appellant. Dirhammer & Kennard, for defendant and appellee.
   Howe, J.

The plaintiff claims to be a judicial mortgagee of the ■defendant by registry of June 16, 1866. Jessie B. Sims and others claim a conventional mortgage, recorded October 19, 1865.

The plaintiff having caused the land to be seized for sale, and being ■embarrassed by the presence of this prior conventional mortgage took :a rule on Sims and others and the recorder of mortgages, to show cause why it should not be erased, on the ground that it was a mere pretense,, without any real consideration, or if given for any consideration ■made for notes of tlio so-called Confederate States.

A portion of the defendants in rule excepted that the plaintiff could •not proceed in this summary way, but must bring a direct action, and their exception being sustained and the rule dismissed, the plaintiff has .appealed.

We think the court a qua erred. It seems to be settled that “where the property of one, against whom judgment has been rendered, appears to be subject to privileges or mortgages, entitled to a preference over the judgment creditor, the latter may, by rule to show cause, as incidental to the proceedings had for the purpose of selling the prop•er.ty, call upon those claiming such privileges, or mortgages, to show •cause why they should not bo erased. The seizing creditor cau not be required to resort to a direct action against such persons holding such privileges or mortgages.” 1 An. 333.

It is true that in Bank v. Delery, 2 An. 650, it was held that the litigation concerning all such privileges and mortgages was not to he cumulated with the rule, and the apparent prior incumbrancer deprived of a jury; but it was still held that he was bound to pload, the ■court having power to compel him to litigate or else to have erased from the records an incumbrance which he was refusing to execute and which might be kept on the records for purposes of collusion and fraud.

It seems then that in this case the defendants in rule should plead .and not except. Whether their answer when filed will prove to he one which under the decision in Delery’s case will justify the lower judge .in declining to pass upon tho rule until the reality and validity of their mortgage shall have been elsewhere decided is a matter in regard to which we aro not called upon to prophesy or adjudicate.

Let the judgment be reversed, the exception dismissed, and the cause remanded for further proceedings, at the costs of appellee.

Wyly, J., concurring.

Howell,, J.,

dissenting. I can not concur in the opinion or conclusion of the majority of the court in this case.

The appellant is seeking to get rid of a mortgage which ranks his, and the ground on which he relies is thus stated: “That said pretended mortgage was given without any real consideration; or, if a supposed consideration, the same was for the unlawful notes or currency of the so-called Confederate States.” Now it seems perfectly clear to me that this is “ a cause of action,” which can only be presented to a court by petition and citation. The consideration, the validity and legality of the adversary’s rights are, on the face of the rule, brought in question, and the latter has a right by all the rules of litigation, to have the issues made and tried in the regular form of action and to demand a jury if he wishes.

The question is asked, could the appellant, having the property under seizure or execution, and holding a junior mortgage on this property compel the owners of the senior mortgage, by rule, to show cause why their mortgage should not be erased ? Whether or not there may be cases where this could be done need not here be decided; but this is not such a case, for here the merits of the debt and mortgage are involved and should be ascertained in a regular suit. I know of no law which authorizes the proceeding by rule in a case like this, and it is settled that summary proceedings can not be extended beyond the cases expressly authorized bylaw. See C. P.98, 170, 754, 756; 3 An. 434; 12 An. 182, 201, 799; 17 An. 317.

In the section of the R. C. C., upon the erasure of mortgages, it is ■declared that the inscription of mortgages may be erased by virtue of a judgment ordering such erasure; but, excepting as between parties ■to a pending suit, it is clearly indicated that there is a right of action existing to compel the creditor in case of refusal to grant the erasure, ■and that this creditor must be cited.

Why say the defendants in rule must plead and allege a real defense, before they can be heard to object to the form of proceeding, when tlie issue is tendered in the rule, and a general denial, if it were a petition, would put the plaintiff upon the proof of Ms allegations ? The very act of excepting is evidence that the defendants wish to avail themselves of any defense they may have, if plaintiff persists in his demand. The exception to the form of action is one which must be pleaded in limine, and may be waived by pleading to the merits. A simple allegation that he has a defense added to the exception can have little weight.

The appellant’s'case is simply this: He holds a second mortgage on certain lands, which will not sell under his execution, after several trials, for sufficient to cover the first mortgage, and -he is therefore, he says, entitled to a summary proceeding to get rid of that mortgage on the allegation or ground that its consideration is not a good one in law or morals. In my opinion he must resort to the ordinary form of action to try this question.


text:
    No. 3779.
    Walmsley, Carver & Co. v. George W. Whitfield. Airey & Colton, Intervenors.
    A dismissal, on motion oi’ fclio defendant, of the main action’ necessarily carries with it the-dismissal of the intervention ñlod in the case.
    Appeal from the Ninth Judicial District Court, parish of Natchitoches. Lewis, J.

      William Jaalc, for defendant and appellee. II. Stafford, for intervenors and appellants.
   Howe, J.

This suit was instituted in 1861 upon a claim against dedefendant, Whitfield, for plantation supplies and money loaned, and certain cotton was sequestered. Airey & Colton intervened, claiming-the amount of a debt due them from defendant, of which a part was alleged to bear privilege on the same cotton, and demanding also a judgment against the plaintiffs and the sheriff for the value of the sequestered cotton which they alleged had been unlawfully taken from-the possession- of the warehousemen who held it for intervenors.

Plaintiffs answered the intervention, denying the claims of intervenors and their right to intermeddle with the plaintiffs in their pursuit of the defendant.

In 1866 the defendant answered plaintiffs’ petition. In 1871 defendant answered the petition of intervenors. At the November term of that year the plaintiffs not appearing to prosecute their suit, the defendant caused them to be called in open court and their “ suit dismissed without prejudice to the rights of the intervenors, and that the intervention he dismissed as in case of nonsuit.”

The intervenors appeal, and claim that while the defendant had a right to dismiss the plaintiffs’ suit against himself, he had no right to have the intervention dismissed at the same time, and cites 7 Rob. 10,. and 11 Rob. 314.

The defendant, appellee, contends that with the dismissal of the principal suit intervention necessarily fell to the ground, and cites 3 An. 331; 4 An. 279 ; 9 An. 54; 14 An. 426.

We are of opinion that the views maintained by appellee are correct-

judgment affirmed.


text:
    No. 3826.
    John G. Scott v. John F. Goodrich.
    The signature of the judge to the minutes of the oourt is only his attestation of their correctness, and can not he regarded as his signature to a final judgment.
    An appeal taken from a judgment attested in this way will be dismissed on motion because it is not signed by the judge.
    from the Thirteenth. Judicial District Court, parish of Tensas. Hough, J.

      Aroni & JOeiuis, for plaintiff and appellee. Farrar ds lieevcs, for defendant and appellant.
   Taliaferro, J.

There is a motion to dismiss this appeal on the ground that there was no final judgment rendered in the court below from which au appeal can be taken, and no judgment ax>pearing in the record dismissing plaintiff’s action.

The order sustaining the exception to the jurisdiction of the court and dismissing the action is followed by an order of appeal granted on motion in open court on the part of the plaintiff, to which is immediately subjoined, after the words “ minutes signed,” the official signature of the judge. We think the signature of the judge was appended merely as attesting the correctness of the minutes of the court, and is not to bo regarded as his signature to a final judgment. The motion must therefore prevail, and it is accordingly ordered that the appeal he dismissed at costs of appellant.