text:
    No. 1181.
    William H. Thomas vs. U. A. Guilbeau, Sheriff, et als.
    A motion to dismiss an appeal cannot be predicated upon a charge that the appeal is frivolous. Damages claimed because an appeal is frivolous cannot he allowed in a motion to dismiss.
    Claims of homestead exemptions, affecting debts and contracts which existed previous to the adoption of the Constitution of 1879, must be controlled by the legislation in force at the time that the contract was entered into.
    Homestead rights existing under the Act of 1865 cannot be affected by the provisions of the present Constitution, or of any laws passed in pursuance thereof. Affirming Poole vs. Cook, 34 An. 331; G-ilmer vs. O’Neal, 32 An. 980.
    APPEAL from the Twenty-first District Court, Parish of St. Martin. JPontelieu, J.

      Mouton & Martin for Plaintiff and Appellee :
    1. Homestead rights arising trader prior laws are unaffected by the Constitution of 1879, and must be construed as if that Constitution had never been adopted. Const. Art. 220. Mills vs. Sheriff, 25 An. 336; Roupe vs. Caradine, 20 An. 244; Gilmer vs. O'Neal, 32 An. 980; Poole vs. Cooke, 34 An. 331.
    2. A debtor by judgment concluded on a moitgage debt created and contracted in 1877, having a wife and three children actually dependent on him for support, is entitled to the homestead and exemptions provided by law of 1S65. R. S. 1691.

      Hdivard Simon and Henry Denis for Defendants and Appellants.
   The opinion of the Court was delivered by

Poché, J.

This ease involves a homestead exemption which plaintiff claims out of the seizure of his property in execution of a judgment rendered against him in favor of the Hope Insurance Company of New Orleans.

The judgment, which was rendered in May, 1880, recognized and enforced a mortgage granted by the plaintiff in June, 1877, which affected his farm containing about one thousand acres of laud, together with the improvements and other appurtenances thereto belonging. Plaintiff enjoined the sale of a portion of the farm, on which his house of residence and other buildings were situated, containing 160 acres, together with working animals and farmiug implements, which he claimed as his homestead and which he values at $1,965.

The seizure progressed as to the remainder of the lands, which were sold in duo course and realized the sum of $2,250, paid over to the seizing creditor.

This appeal is taken by the defendants froma judgment recognizing plaintiff’s homestead as claimed by him.

The evidence shows conclusively that plaintiff combines all the conditions prescribed by the Homestead Act of 1865, to entitle-him to the exemption which he claims under that legislation, and that the property which he seeks to exempt does not exceed in value two thousand dollars.

Defendants’ only contention on that score involves the value of the lands which they represent to he worth from twenty to twenty-five dollars an acre, while plaintiff values them at five or six dollars. But it appears from the evidence, that the residue of tlic lands were sold under execution for less than three dollars an acre. Admitting the superior quality and greater value of the portion exempted, it is clear to our minds, from that circumstance and from the testimony of comjrntent and uncontradicted witnesses, that these lands are fairly valued at five dollars an acre.

The most serious contention of the defendants is, that plaintiff’s right to the homestead which he claims must be tested under the provisions of the Constitution of 1879, and of the Act of 1880, adopted in pursuance thereof, on the subject of homestead exemptions.

Their argument rests on the ground, that the judgment which they are endeavoring to execute was rendered in May, 1880, since the adoption of the present Constitution, and that their debtor registered liis claim to a homestead in October, 1880, subsequent to the seizure of his farm under the Avrit which is herein partially enjoined.

They are in error in both of their propositions. The debt which they seek to enforce was not created by the judgment of October, 1880, Avhieh conferred no new rights, but merely recognized rights and obligations which Avere created by the act of Mortgage of June 26th, 1877. Hence, the contract from which plaintiff’s obligation sprung was made and entered into in 1877, and all homestead rights affecting the same must be governed by the laws then in force. The fact, as shown by the record, that plaintiff attempted by his recorded declaration of October 20th, 1880, to fortify his homestead claim by a compliance with the provisions of the Act of 1880, cannot alter the case, and cannot impair the rights which he had under the Act of 1865. (It. S. 1691.)

The Constitution itself provides that: “rights to homesteads or exemptions, under laws or contracts; or for debts existing at the time of the adoption of this Constitution, shall not be impaired, repealed or affected by any provision of this Constitution, or any laws passed iu pursuance thereof.”

This Court has had occasion to apply this unambiguous reservation, and has held, that homesteads affecting contracts which had been entered into previous to the adoption of the Constitution, must be controlled and governed by the provisions of the Act of 1865, precisely as if the present Constitution had never been adopted. Gilmer vs. O’Neal, Sheriff, 32 An. 980; Poole vs. Cook et al., 34 An. 332.

The homestead legislation of 1865 required no registry of homestead exemptions, and no such requirement can be invoked to affect the claim of plaintiff in the present case. Hence, his registered declaration has no weight or effect, either for or against him in the determination of his rights under his pleadings, AA'hich contain no reference to such registration. There is no error in the judgment which perpetuated his injunction.

In a motion which his counsel erroneously treat and style as a motion to dismiss this appeal, they urge that this appeal is frivolous, and presents no serious defense; hence, they pray for damages in the sum of one hundred dollars. Believing that appealants’ error is honest, and that it was in a measure superinduced by plaintiff’s own error in registering his homestead claim, and considering that plaintiff’s motion is contradictory in asking the dismissal of an appeal, and in praying for damages which could be granted only after an examination into the merits of the appeal, we shall allow no damages.

Judgment affirmed.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 1188.
    Susan Webb, Wife, etc. vs. Amelia E. Keller. J. U. Payne, Intervenor.
    2io appeal lies from a judgment by default rendered and signed prior to Act 24 of 187$, amending and re-enacting Art. 575, C. P., where more than one year bas elapsed since the passage of that law.
    Prescription of the right óf appeal runs from the passage of said statute.
    APPEAL from the Thirteenth District Court, Parish of St. Landry. Hudspeth, J.

      H. L. Garland for Appellee.

      K. Baillio for Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

The intervenor and appellee moves to dismiss the appeal, taken by the defendant from the judgment in his favor, on the ground, among others, that it was asked and obtained more than one year after the judgment had been rendered and signed.

The record discloses the fact that the appellant was cited personally, on the 7th day of January, 1874, to answer intervenor’s demand; that judgment by default was rendered against her, and made final by signature oh the 9th of February following; that on the same day, as appears from the minutes of the court, feeling aggrieved by said judgment, the plaintiff took an appeal from the same, and that on the 16th of June following the judgment was affirmed, and has since become final. 26 An. 596. Nevertheless, the defendant, Mrs. G-alligar, on the 8th of June, 1883, applied by petition for an appeal from the same judgment, and was allowed the same, returnable to this Court at this place at the present term.

Under the legislation, such as it existed previous to 1876, a cast litigant was considered as entitled to appeal, in an appealable case, within the delay prescribed by law, the initial point for computation of time being either the date of the signature of the judgment, or that of the notification of the judgment, according as the party had or not joined issue.

In a case arisen prior to, but determined since, 1876, 33 An. 609, Sentmanat vs. Soulé, the Court went to the length of holding that, notwithstanding the legislation of that year, a third party was entitled to an appeal, in 1877, from a judgment rendered in 1872, against the defendant, because taken within the year following the passage of the Act.

That statute (No. 24, p. 49,1876) which amends and re-enacts Art. 575 of the C. P., provides that “ whenever a judgment has been rendered in a suit in which defendant has had personal service to appear and file his answer, * * * the party cast in the suit shall be considered duly notified of the judgment, by the fact of its being signed by the Judge.”

This is a remedial or curative law.

It was well said in the case cited, “of course, that statute cannot have a retroactive effect and deprive appellants of an appeal taken within twelve months after its passage. By the previous law the appellants had twelve months from service of notice of judgment, within which to appeal. No part of this delay had run when the Act 24 of 1876 was passed, dispensing with notice of judgment in cases where citation is personally served. Prescription of appellants’ right of appeal began to run, then, only from the date of the Act 24 of 1876, and was not complete when the appeal was taken, February 28th, 1877.”

In the present instance, the right, if any, of the defendant, to appeal from the judgment rendered and signed on the 9th of February, 1874, therefore clearly determined in March, 1877. Hence, the appeal taken by her within the tenth year after the signature of the judgment, and in the sixth year after the passage of the Act, was sought and obtained too late.

It is, therefore, ordered and decreed that' the appeal be dismissed with costs.

Fenner, J., recused on the ground of affinity.


author: Todd, J.

text:
    No. 1203.
    Baptiste Simien, Adm’r, et al. vs. J. and A. Perrodin et als.
    Land held under a certificate of entry entera the domain of private property and becomes a subject of contracts, and is fully under the operation of our laws touching the property rights of all classes of persons, and such certificate is sufficient evidence to support a petitory or other real action.
    Where land is entered in the name of the wife during the marriage, but the patent issued after the community is dissolved by a judgment, the land will be presumed to be an acquisition of the community. The title dates from the certificate and not from the patent.
    APPEAL from the Thirteenth District Court, Parish of St. Landry. Hudspeth, J.

      K. BailUo for Plaintiffs and Appellants.

      F. F. Perrodin, F. B. Fstíllette and O. W. Buroxj for Defendants and Appellees.
   The opinion of the Court was delivered by

Todd, J.

The plaintiffs, administrator and heirs of Margaret Provost, bring this petitory action to recover the land described in their petition.

They allege that the land was acquired from the United States government by the said Margaret Provost, by enti-y in her own name and right, and after she had been separated in property from her husband, Frangois Simien, by a proper judgment. The plaintiffs are all the issue of the marriage between said parties.

The defendants claim title to the property under a sheriff’s sale, in a proceeding directed against Frangois Simien, the husband.

The judgment of the District Court was in favor of the defendants and plaintiffs appeal.

The property having been acquired during the marriage is presumed to belong to the community of acquets and gains resulting from the marriage, notwithstanding the title may have been taken in the name of the wife.

The certificate of the register and receiver shows the entry in the name of the wife, and the patent is also issued in her name. The first bears date before the judgment of separation, and the latter after its rendition.

The plaintiffs’ counsel contend that the land was acquired by the mother of the plaintiffs,, by or through the patent, which, as stated, issued when she had the capacity to acquire in her own name and right, being separated in property. The defendants contend that the acquisition must date from the certificate of entry, or the receipt that evidenced the payment of the money for the land.

The whole case hinges upon the determination of this question. It is true, that a wife, though not separated in property, may acquire in her own right during the marriage, where the title is taken in her own name, and the price is paid with money that belongs to her separately, and which has never been under the administration of her husband, or is taken in payment or restitution for a debt of the husband. The testimony, however, fails to satisfy us that the case falls within any of .these exceptional conditions, and we must determine whether the property was acquired before.or after the rendition of the judgment of separation, or, in other words, whether the certificate or the patent must control with respect to the title.

Though we have been cited to no authority on this vital question by the defendants’ counsel, either in their oral or written argument, we have given the question an exhaustive examination, and our conclusion is, that the acquisition must date from the date of the receiver’s certificate, in other words, from the entry of the land.

Prom'the repeated adjudications of our own courts on the subject, we gather the settled doctrine to be this:

That whilst a receiver’s receipt or certificate is not of equal dignity with a patent, as showing- the complete and absolute divestiture of the title of the government, yet that land, so held under the former, enters fully into the domain of private property;' that such certificate of entry is sufficient evidence of title to support a petitory action; that the land is subject to taxation, unless reserved therefrom-by special congressional legislation; that it is the subject of any kind of contract under the operation of our laws touching the rights of each and every class of persons in their various and manifold relations. 4 N. S. 260; 10 L. 159; 11 L. 321; 19 L. 334; 4 An. 262; 5 An. 197; 9 An. 137; 13 Peters, 436; 3 Howard, 461.

It is, however, suggested that the rights of the wife, separated in property, must be determined, not by the date of her judgment, but by the date of the filing of her petition in the separation suit, since all property acquired by her after the institution of the suit, if followed by a proper judgment, must be held paraphernal, and it is urged that we should presume that the proceeding or suit commenced, in this instance, before the entry of the land was made. The absence of proof showing when the separation suit began cannot be supplied by presumption— there is no room for presumption—and we might just as well, or even more reasonably, conclude that the filing antedated the judgment by six days as by six months.

Entertaining these views of the matters in controversy, we cannot disturb the judgment of the lower court, and it is therefore affirmed with costs.


text:
    No. 1180.
    Edgar Richard vs. Jules Rousseau.
    A police jury lias the power to remove a treasurer appointed "by it.
    There exists no antagonism between R. S., Sec. 2743 and Article 201 of the Constitution. The right of removal delegated by the statute was not abrogated by the Article. The constitutional provision relates to certain parish and municipal officers elected by the people or appointed by the Executive, and does not apply to subordinate functionaries chosen by a police jury.
    APPEAL from the Twenty-first District Court, Parish of St. Martin. Fontelieu, J.

      JS. Simon for Plaintiff and Appellant.

      Mouton & Martín for Defendant and Appellee.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is a proceeding to test the power of a police jury to remove and replace a treasurer appointed by them.

The plaintiff became such treasurer in May, 1880. Charges having been preferred agdinst him, in January, 1882, he was then discharged or removed by the police jury who, in April following, appointed the defendant to succeed him.

By Section 2743, R. S., pars. 10'and 11, power is expressly delegated to police juries to appoint a treasurer for the Parish, and all officers necessary to carry into execution the parish regulations and to remore them from office.

Article 201 of the present Constitution provides, that, for causes, district attorneys, clerks of court, sheriffs, coroners, recorders, justices of the peace, and all other parish, municipal and ward officers, shall be removed by judgment of the District Court of the domicil of such officer.

There exists no antagonism or inconsistency between the two provisions.

The Section of the R. S. refers to functionaries appointed or chosen by a political corporation. The constitutional Article applies exclusively to quite different classes of officers, namely: to such as are elected by the people, or appointed by the Executive.

In conferring on police juries the right of appointment and removal, the legislature intended to enable those bodies, in cases of expediency and urgency, to act promptly, for the protection and preservation of the public interest.

Plaintiff’s bill of exception to the admission of an extract from the minutes of the police jury, offered to establish his removal, has not escaped our attention ; but affords him no relief. His objection went, not to the admissibility, but to the effect. The District Judge ruled correctly.

Judgment affirmed.


author: Fenner, J.

text:
    No. 1190.
    Fanny K. Phillips vs. Her Creditors.
    When the record contains no order granting the appeal, it must be dismissed.
    An original document, purporting to be a certificate of the Judge of the District Court, declaring that the order of appeal had been granted, and directing by order at chambers that the minutes of the court be corrected, never entered or filed in the District Court, but offered for original filing in this Court, after the unreserved submission of the motion to dismiss, comes too late, and, even if considered, must be treated, not as a part of the proceedings in the District Court, but as a more certificate of the Judge to the facts stated therein, -which cannot avail to cure the absence of the order of appeal.
    APPEAL from the Twenty-fifth District Court, Parish of Lafayette. Clegg, J.

      M. IS. Girard for Plaintiff and Appellant.

      Geo. H. Wells and C. DeBaillon for Opponents and Appellees.
   The opinion of the Court was delivered by

Fenner, J.

A motion is made to dismiss this appeal on the ground that the record exhibits no order granting the appeal.

The following is the entry appearing on the minutes of the court:

“ counsel then moved for a suspensive and devolutive appeal. Bond was fixed at $100 for the devolutive, and in the amount fixed by law for the suspensive appeal.”

In a similar case, where the entry on the minutes was as follows : . “plaintiff’s motion of appeal filed, and defendant’s counsel takes cognizance, and appeal bond fixed at two hundred and fifty dollars,” this Court said: “ this is not a sufficient compliance with Arts. 574 and 573, C. P., and the amendment thereof, which requires that the Judge shall fix the amount of security and cause the same, with the order granting the appeal, to be entered on the minutes of the court.’ The entry that the motion of appeal was filed does not show that it was granted.” Norris vs. Warren, 22 An. 458.

The precise parallelism of this authority with the instant case is apparent. It accords with the express requirement of the law, and with the uniform tenor of decisions prior and subsequent to the effect that the appearance in the record of an order granting the appeal is an indispensable condition for the maintenance of the appeal. 20 An. 193; 22 An. 353, 458; 21 An. 649; 23 An. 543; 24 An. 276; 27 An. 97; 34 An. 833.

No contrary precedent is, or can be cited.

Since the motion to dismiss was submitted to the Court by consent óf both parties, and without any reservation whatever, appellant has offered and moved to file against the objection of appellees, an original document, being a certificate of the Judge of the District Court, in the following words : “I hereby certify that on the 29th of March, 1883, on motion of plaintiff’s counsel made in open court for an appeal, the motion of plaintiff was granted and the appeal allowed in open court, returnable at the next session, of the Supreme Court at Opelousas, although that fact may not distinctly appear in the entry as written by the clerk on the minutes, and said minutes should be and are hereby corrected to that extent. Granted at Chambers at Vermillion ville, La., this 5th day of July, A. D. 1883.

(Signed) John Clegg, Judge 25th Dist.”

This attempt to remedy the defect cannot avail: First, it comes too late, after unreserved submission of tire motion to dismiss; secondly, it is an original document, never filed in the District Court or entered on the minutes thereof, but offered for original filing in this Court. Obviously an order, signed by a Judge at chambers to correct the minutes of the court, never filed or entered in the court, is without effect to operate the correction. Non constat that it would ever be filed or entered. The document can be treated in no other light than as a simple certificate by the Judge of the facts therein stated, and it has been distinctly held, that even an affidavit by the District Judge to the same effect, filed in this Court, could not supply or cure the absence of an order of appeal in the record. Moore vs. Simms, 21 An. 649.

In matters of practice it is essential to preserve, as far as possible, uniformity of ruling.

Appeal dismissed.


text:
    No. 1189.
    Edward and Emma Thomas vs. Numa Bienvenu. Aug. Maraist, Intervenor.
    Where an appeal bond was given for the amount prescribed in tlie order for a suspensive appeal, and was filed within the time prescribed for such appeal, it is a good bond for a suspensive appeal, though it is recited in the body of the bond “that an appeal, suspensive or devolutive, was granted,” and it is not stated for which appeal the bond was given.
    Where an administrator suffers a valuable plantation, mortgaged to the succession, to be sold for taxes for a nominal sum and buys it in through one of the heirs interposed, who subsequently sells it, but the entire price—cash and credit-goes into hands of the adminis' trator, such purchase and sale enures to the benefit of the succession. And where two of the notes representing part of the price are delivered by the administrator to an heir who sues thereon, a creditor of the succession may intervene and have said notes declared the property of the succession.
    APPEAL from tlie Twenty-first District Court, Parisli of St. Martin. Fontelieu, J.

      Mowton & Martin for Plaintiffs and Appellants.

      Felix Voorhies for Intervenor and Appellee.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Todd, J.

This motion is based on an alleged irregularity in the appeal bond.

It is contended that it is a bond in the alternative for a suspensive or a devolutive appeal; that this is-shown by a recital in the bond in these words: Prom -which said judgment Edward and Emma Thomas have prayed for a suspensive and, in the alternative, for a devolutive appeal.”

The bond is for the amount fixed for a suspensive appeal •, it was filed within the time prescribed for such appeal, and it was evidently intended to further such appeal, and complies in its conditions and time of filing with the order therefor.

The motion is, therefore, denied.

On the Merits.

The plaintiffs sued the defendant on two promissory notes secured by mortgage on the property described in the petition. These notes were made payable to and endorsed by H.onoré P. G-uilbeau, and were given for part of the price of a tract of land purchased by the defendant that once belonged to the succession of John H. Thomas, of which Guilbeau was the administrator. ,

A. Maraist, syndic, a judgment creditor of the said succession, intervened in the suit, alleging that the notes sued on were the property of the succession of Thomas and had been improperly transferred or delivered by the administrator to the plaintiffs, who were heirs of the deceased j. and that, as a judgment creditor of the succession, he had a right to be paid his debt before the heirs are entitled to receive anything therefrom; their interest being residuary.

Exceptions to the intervention were filed by plaintiffs and defendant, mainly to the effect that no cause of action was set forth by the intervenor, inasmuch as the succession of Thomas was not alleged to be insolvent, and that Guilbeau, the indorser of the notes sued'on; had not been made party to the suit. ’

These exceptions were referred to the merits. :

The plaintiffs and defendant answered jointly, alleging, substantially, that plaintiffs were the owners of the notes, sued on; and that the. property, the price of which the notes represented, had ceased to belong to the succession by virtue of a previous conveyance long prior to the sale at which the notes were given. There was no issue raised by the pleadings between the plaintiffs and defendant; the contest is solely between the plaintiffs and the intervenor.

From a judgment in favor of the intervenor the plaintiffs have appealed.

The evidence shows that the succession of John II. Thomas was opened in 1865, and that Gdilbeau, the husband of one of his daughters, became administrator of his succession, which was inventoried at over thirty thousand dollars. The administrator caused all the property to be sold, although the debts were inconsiderable, and has never filed any account of his administration, though repeatedly ordered to do so.

The plantation was sold for $10,090, one-half cash and the balance on credit.

After instituting suit to recover the credit portion of the price, he suffered the plantation to be sold for taxes, and through one of the heirs interposed, bought it in for $100, evidently for himself. After-wards, the adjudicatee at the tax sale sold the property for $6,000, part cash and part on time, aiffi the entire proceeds of the sale, cash and notes, went into the hands of Guilbeau, the notes being made payable to him or his order. Two of these notes were transferred by him to the plaintiffs, who, as stated, are forced heirs of the deceased.

The record shows that many thousand dollars have been received by the administrator Guilbeau during the course of his administration, not a dollar of which has been applied to the debt of the intervenor owing by Thomas at his death in 1865.

The District Judge, under this state of facts, came to the conclusion that the purchase at the tax sale was but a device on the part of the administrator to secure the property of the succession to himself, and that this purchase and its subsequent sale should enure to the benefit of the succession, and that the notes in suit representing the property sold should go to pay its debts.

We cannot say that lie erred. In fact, any other conclusion, in the face of a flagrant maladministration and a palpable diversion of the funds of the succession, would virtually sanction its wilful and continued spoliation by the administrator. Under the facts developed on the trial, there was no necessity that the petition should have alleged the insolvency of the succession or that Guilbeau should have been made a party. The exception, therefore, which had been referred to the merits, was properly overruled.

For these reasons, the judgment of the lower court is affirmed with costs.


author: Manning, J. • Bermudez, C. J.

text:
    No. 1186.
    John N. Pharr vs. Martha Collins et als. John Calder, Intervenor.
    A common carrier cannot seize goods for a debt due himself individually and wholly unconnected with the shipment, while they are in transit and for the safe carriage and delivery of which he has given a bill of lading. He cannot protect his private interests at the expense of his public duty as a carrier.
    The carrier is in some sort a public officer, invested with power, burdened by duty, and held to responsibility. He cannot by his own act prevent himself from doing his duty. He cannot place an obstacle in the way of performing his contract, and then plead that obstacle as an excuse for not performing it.
    APPEAL from tho Nineteenth District Court, Parish of St. Mary. Goode, J.

      F. JET. Mentg and ill. J. Foster for Plaintiff and Appellee :
    A being indebted toB, delivers property to B to sell, and to apply the proceeds to the extinguishment of the debt; the title to the property remains in A. 8 An. 435; 12 An. 672 ; 31 An. 600; Allen, Nugent & Co. vs. Ben Buisson, 35 An. not reported; H. D. p. 839.
    Such a contract makes B the agent of A. 8 An. 435; 12 An. 672; H. D., p. 839.
    Intervenor makes the following allegation, viz: “The sugar and molasses belonged to the owners of the Bedell Plantation in the Parish of St. Mary, and was turned over to the plaintiff (in intervention) to be sold and the proceeds applied to the satisfaction of a claim, held by him against them;” this judicially declares that the title to the property remained in the Bedells, and that intervenor held it for them. See authorities quoted above. . ,s
    It is essential to tho contract of sale, that there should be a fixed price and a weighing. C. C. 2439, 2458, 2459, 2464. And these things are likewise essential to a dation enpaiement. C.C. 2656.
    An insolvent cannot make a dation to the predjudice of creditors. C. C. 2658. The law “forbids” this, hence it is absolutely null. C. C. 12; 6 La. 82.
    In a dation everything doubtful or ambiguous is construed against the donee. 3 An. 280.
    An intervenor claiming ownership is confined to his plea; and cannot question the plaintiff’s proceedings, nor the manner in which the seizure was made. 8 M. 55; 8R. 123; 21 An. 118.
    To repel the intervenor, plaintiff has only to show that intervenor is not owner. 8 La. 143,
    When an agent transfers the property of his principal to extinguish his own debt, the transfer is absolutely null. H. D. 853.
    The pledgee of a judgment represents the pledgor in collecting it.
    A bargain made by a seizing creditor, with a seized debtor, in order to prejudice a superior creditor, in which it is stipulated that the sheriff, who agrees to it, shall dispose’of the property in violation of law, is absolutely null and void.
    If A invoke an estoppel against B, and destroy the assumed effect of the estoppel by his own pleadings and his own testimony, he cannot complain of B who stands by and sees him lose his case.
    A party who creates an apparent condition of things by interposing persons as agents While representing them as principals, has no ground for estoppel against the person who was influenced to act by the concealment of material facts. 33 An. 1198.
    The essential features of estoppel are: 1, that there must he a false representation or concealment of material facts; 2, made with the knowledge of the facts; 3, to a party ignorant of the truth of the matter; 4, with the intention that the other party should act on it, and 5, which induced the other party so to act. Bigelow on Estoppel, Outline, p. lxxxi; Idem, pp. 484, 501, 529, 541, 549 ; "Wait’s Actions and Defences, 6th Volume, verbo Estoppel, p. 567; 5 R. 523; 1 An. 11; 5 An. 368; 9 An. 528; 30 An. 50; 30 An. 201; 33 An. 1198.
    A creditor who seizes the property of his debtor cannot claim the property as his own, so long as the sheriff, by his direction, holds the property under the writ issued at the creditor’s instance. 28 An. 60.
    Bills of lading are assignable; but are not negotiable; and are symbols of the property named in them. The endorsement and transfer of a bill of lading conveys no moro title than th e endorser had. Hutchinson on Carriers, p. 100, Sec. 129; Idem, p. 338, Sec. 414.

      D. Oaffery for Intervenor and Appellant:
    1. A common carrier cannot dispute the title of the shipper of the goods. When a third person claims tho ownership, the carrier withholds the delivery at his peril. Story on Bailments, Sec. 582; Hutchinson on Common Carriers, Secs 400, 407; Kent’s Com. Vol. 2, part V., Sec. XL., p. 604.
    2. The carrier’s contract to deliver according to the directions of the shipper, is absolute. “Tho act of God and tho kings enemies,” inevitable accident, or tbe excepted perils of the bill of lading, will only excuse a non-delivery. Story on Bailments, Secs. 489, 490; Hutchinson, 338.
    3. Under the Code, carriers are subject to the same responsibilities as tavern keepers, under tbe title of deposit, and no depositary can withhold th© thing deposited on pretense of a debt due to him from the depositor, on an account distinct from the deposit, or by way of offset. Rev. C. C. 2756, 2956. And every carrier is a bailee or depositary. Hutchinson, Sec. 1.
    4. The bill of lading is conclusive on the carrier as to the ownership of the goods. The consignee, unless the bill is so drawn as to skowjhtó disponendi in the consignor, is the abso lute owner, so far as the carrier is concerned. Hutchinson, Sec. 130 ; Benjamin on Sales, book 2, chap. 6, (see foot note).
    5. A carrier, contracting to carry beyond his own route, is bound for the whole distance, notwithstanding a connecting carrier is to carry a part of the distance. Hutchinson, Sec- " 145.
   The opinion of the Court was delivered by

Manning, J. •

The plaintiff Pharr held a mortgage upon the Bedell plantation in St. Mary owned by tbe defendants, and was also a privileged creditor for supplies furnished and advances made in 1880 to enable tlie owners to work it.

Calder tbe intervenor was a creditor of the same parties, and held as collateral a recorded judgment against two of the owners of tbe plantation. In December, 1880, Calder bad execution issued upon this judgment, and the sheriff seized a portion of the sugar and molasses then in the sugarhouse. Shortly thereafter the sheriff, under an agreement between the seizing creditor and tbe defendants, tbe seized debtors, shipped 35 hhds. of sugar and 50 bbls. molasses to New Orleans, to be sold for the benefit of the parties.

The shipment was made on Pharr’s line of steamboats plying the Teche, and connecting with the Morgan Railway, which took the steamer’s freight from Morgan City to New Orleans. A through bill of lading was given the sheriff by tbe clerk of the steamer for the transportation of the goods froni the point of shipment to New Orleans. This bill was transferred to Calder.

. When the steamer reached Morgan City the sugar and molasses were landed on the Railway wharf at the usual place where the Railway took in the steamer's freight, and instead of being forwarded was detained three or four days by Pharr. He had learned that the sugar was from the Bedell plantation and determined to seize it. Hutchinson of the Railway telegraphed him from New Orleans to let it come forward lest liability for damages be incurred, but it did not go forward and was finally seized by Pharr under a sequestration issued in this suit upon his privileged claims. Calder bonded it, having intervened to protect his interest.

The question is thus presented: can a common carrier s.eize goods while in transit, for which he has given a bill of lading, to satisfy a debt due himself, not for charges of transportation but wholly outside of the shipment, and due not by the shipper but by the parties from whom the shipper derived the goods.

Common carriers are held to the strictest responsibility. Public policy required it in the beginning of commerce, and as trade developed and commerce increased, experience demonstrated the wisdom of the rules already formed and judicial construction added to them, and completed a system wdiieli all courts concur in enforcing.

The carrier is likened to the depositary and cannot withhold the goods on the pretence of a debt due him by the shipper, and a fortiori he is forbidden to adopt the pretence of putting them in the custody of the law to be there held to satisfy a debt due him wholly unconnected with the shipment, and not due by the shipper but by other parties.

Irresistible force unless from the King’s enemies has been said not to relieve the carrier when’ he has been robbed of the goods, and this because otherwise he might undo all who have dealings with him by combining with thieves, and promoting the robbery in such clandestine way as to be undiscoverable. Story on Bailments, § 490. The same principle of public policy must restrain a carrier from seizing goods which have been placed in his custody, and for the safe carriage and delivery whereof he has contracted with a shipper, for it would not be difficult for him by collusion with others who sought to enforce claims upon the goods to hamper and impede the transit of them, and thus defeat the object and purpose of the shipper, and destroy confidence and trust in a business which contributes equally to public convenience and to private gain.

Tlie carrier is in some sort a public officer, invested with power, burdened by duty, and held to responsibility. He cannot by his own act prevent himself from doing his duty. He cannot place an obstacle in the way of performing his contract, and then plead that obstacle as an excuse for non-performance of it. If sued upon the bill of lading, he could not plead 1ns own seizure of the goods, while in transit, to satisfy a debt not due him as carrier, but individually, as a bar to recovery.

The case is as strong for Pharr as it could well be for any earlier. He had a privilege individually on this sugar for supplies furnished in making it. The sugar was being removed under his ejms, and the law gave him process to retain it. But he cannot make his duties as carrier secondary or subservient to his individual interests. The highest demands of public policy require that we shall enforce his duty as carrier to be detriment of rights which he could have enforced if he had not been a carrier.

It is therefore ordered and decreed that the judgment of the lower court maintaining the plaintiff’s writ of sequestration, and recognising his privilege upon the produce sequestered, is avoided and reversed, as also that part of the judgment which orders the restitution of the produce or the payment of the proceeds of its sale by the intervenor to the plaintiff. And it is further ordered and decreed that the intervenor John Calder have and recover of the plaintiff John N. Pharr his costs in both Courts, and that in other respects the judgment below be and remain undisturbed.

On Application por Rehearing.

Bermudez, C. J.

The decree made in this case is not to be construed as denying that plaintiff had a privilege at the time he resorted to the sequestration, for the opinion formally recognizes such security. We held merely that, under the circumstances, that privilege could not be made the foundation for the sequestration asked, granted and sustained.

Neither is the decree to be so construed as to be a final judgment on the rights of the intervenor to the sugar or its proceeds free from such plaintiff’s privilege.

Rehearing refused.


text:
    No. 1185.
    Ernest J. Smith vs. Wm. W. Johnson.
    The hypothecary action against the third possessor is not barred by the proscription of ten years, -when the principal obligation has been kept alive, and the mortgage securing it has been properly inscribed and reinscribed.
    When, after the minor’s mortgage has been preserved, by the inscription of the abstract of inventory under the A.cb of 1869, the minor arriving at the age of majority has liquidated his mortgage by account and judgment against his tutrix, the inscription of such judgment is sufficient to preserve his mortgage thereafter, and there is no necessity of rein-scribing the abstract of inventory.
    APPEAL from the Nineteenth District Court, Parish of St. Mary. Goode, J.

      fJ. Gaffery for Plaintiff and Appellant.
    Jtf. J. Foster for Defendant and Appellee.
   The opinion of the Court was delivered hy

Fenner, J.

The plaintiff, E. J. Smith, was born in 1848. His father, Simeon Smith, died in 1853, and, in the same year, his mother, Mrs. Arpha M. Smith, was confirmed as his natural tutrix. As required by the Constitution of 18(58 and legislation thereunder, the minor’s mortgage was recorded by inscription of the abstract of the inventory of estate of Simeon Smith on November 9th, 1869. At this date, plaintiff was already of age. On June 10th, 1870, defendant Johnson bought the property here in question from Mrs. Smith for $12,500, and since said purchase has been in peaceable and public possession thereof.

In 1872, Mrs. Smith filed her account of tutorship to plaintiff, and on December 2d, 1872, judgment was rendered homologating her account, giving judgment in favor of the minor against the tutrix for the sum of $10,734.85, and decreeing that “the tacit or legal mortgage of said ward on the property of his said tutrix be and the same is hereby recognized to have effect from the date of her confirmation as such tutrix.” The judgment was recorded on August 1st, 1873, and rein-scribed on August 1st, 1^81, and the judgment itself was revived in February, 1881.

The original inscription of the minor’s mortgage resulting from the recordation of the abstract of inventory in 1869 was never reinscribed.

On August 15th, 1882, plaintiff brought the present hypothecary action to subject the property bought by Johnson in 1870 to his mortgage, setting up his judgment and the mortgage recognized therein, and alleging that said mortgage was originally properly inscribed, and had been kept alive by said judgment and its inscriptions and revival.

To this demand the defendant opposed :

1. The prescription of ten years as a bar to the action under Arts. 3528, 3529, C. C.

. 2. The peremption of plaintiff’s mortgage by failure to reinscribe the same within ten years from the date of 'its original inscription in 1869.

I.

The question whether the prescription of ten years declared by Art. 3529, C. C., applies to the hypothecary action against the third possessor of property, has been the shuttle-cock of our jurisprudence.

The Article declares, that “ this prescription has also the effect of releasing the owner of an estate from every species of real rights to which the property may have been subject, if the person in possession of the rights has not exercised it during the time required by law.”

In the case of Lanusse vs. Minturn, 11 La. p. 256, the Court held, that this prescription barred the hypothecary action against the third possessor.

In Bibbs vs. The Union Bank, 3 An. 334, precisely the opposite doctrine was announced. ...

This last interpretation received, greater or less countenance from the Court in 5 An. 590, 12 An. 715, and 14 An. 106, down to the case of Adler vs. Prudhomme, 16 An. 343, wherein the Court expressly overruled the case of Bibbs vs. Union Bank, and reaffirmed the earlier doctrine. But in the case of Gentes vs. Blasco, 20 An. 403, the Court in a well considered decision returned to the doctrine of Bibbs vs. Union Bank, and held that the hypothecary action was not barred by the lapse of ten years, but may be exercised at any time while the mortgage remains in force. ■

This latest interpretation appears to have remained undisturbed to the present day, unless by a careless dietivm of Mr. Justice Marr, in the case of Chapman vs. Citizens’ Bank, 31 An. 395, which is so distinctly obiter and unconsidered as to merit no attention. In this conflict of-authority, we have given serio us. consideration to the reason of the matter, and conclude that the doctrine denying the applicability of the prescription is the better founded.

We are satisfied that the “real rights,” referred to in Art. 3528, do not include mortgages, but only such real rights as are evidenced and preserved by their exercise. The contention that mortgages are included therein requires too much, since it would make the prescription, applicable to all actions to enforce mortgages, whether against property, in hands of original mortgagees or against third possessors. The construction contended for is equally.inconsistent with our registry laws. Of wliat use would it be to reinscribe mortgages at the end of ten years', for the purpose of keeping the mortgage alive', when, by the mere lapse of the ten years, regardless of reinscription, the action to enforce the 'mortgage is prescribed 9

Another consideration mentioned in Bibbs vs. Union Bank seems conclusive. The Art. 2180 of the Napoleon Code contained an express disposition, that prescription is acquired by the third possessor of mortgaged property by the lapse of time fixed by law for the prescription of the property itself. The omission of this provision -from Art. 3374 of the Code of 1825, which is otherwise identical with the above Article, must be taken to have been done ex industria, and. to indicate the unwillingness of the authors to adopt that rule.- Hence, the argument of Mr. Justice Bullard, in Lanusse vs. Minturn, to the effect that “it would seem as clear as that the greater includes the less, that if the plaintiff could not recover the property in a real action, she could not, a fortiori, enforce any real right in it,” falls to the ground.

With these views, we hold that the prescription pleaded against the action is untenable. ' • ■

n.

Is the mortgage perempted for want of legal reinscription 9 Plaintiff having been of age at the date of the original inscription, it may now be considered as settled that he was not exempted from the operation of the laws relative to reinscription. Thompson vs. Lemelle, 34 Án; 1041.

. But the question is whether, having within four years after his majority obtained a judgment liquidating his claim against his tutrix, and recognizing his mortgage therefor to date from the time of her appointment, and having inscribed and reinscribed that judgment, he has not done all that was necessary for the preservation of. his rights.

Defendant contends that he should have reinscribed the abstract of fke inventory. Fo.r what purpose 9 The registry of that abstract was merely intended as notice to. third persons that there existed a supposititious, unsettled, possible rightin the minor secured by mortgage on the property of his tutrix, which it would be his duty, within four, years after his majority, to take action to settle and liquidate. After thus liquidating his right by judgment fixing the amount of his claim, and expressly recognizing his mortgage as dating from the appointment of the tutrix, it would seem that the inscription of the abstract of inventory had performed its function, and that it would be worse than useless to reinscribe such an effete instrument, when, by the inscription of the liquidating judgment, he would give to all the world so much more distinct and definite information as to his claims and rights.

In Morrison vs. Citizens’ Bank, 27 An. 401, it was held, that the recordation of such a judgment prior to the adoption of the Constitution of 1868, dispensed with the necessity of the inscription directed therein, and in Act 95 of 1869, and by parity of reasoning, a like recordation afterward would seem to dispense with the necessity of reinscription.

The asserted anology between this case and those authorities holding that recordation of a judgmentrecognizingaconventionalmortgage does not dispense with reinscription of the mortgage itself, does not exist. In the one case, the mortgage springs from the act or convention, which is the complete and perfect evidence thereof; while, in .the other, the mortgage springs from the law. The inscription of the inventory abstract is made for want of better evidence of the claim, and merely to give notice of the right until such better evidence is obtained, and with a view to the liquidation and settlement of the right within the period fixed by law. When such liquidation is had and such better evidence is furnished by judgment, its inscription supersedes the original imperfect one, and leaves no reason or necessity for its reinscription.

This judgment was rendered in the same proceeding in which the inventory previously recorded was taken, viz: in the succession of Simeon Smith, and, practically, its inscription afforded defendant every notice which would have resulted from reinscription of the abstract.

We discover no cause for complaint by defendant in the long indulgence which has been granted him. He bought this property subject to the mortgage of this minor; he has never discharged it; and as it has been kept alive and prosecuted within all the limitations imposed by law, the lapse of time affords him no ground for relief or complaint.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, that defendant’s pleas of peremption and prescription be overruled, and that the case be now remanded to the lower, court, to be there proceeded with according to law; defendant and appellee to pay costs of his exceptions and of this appeal.


author: ' Manning, J. Poché, J.

text:
    No. 1183.
    Bourdier & Bellesein vs. Morgan’s Louisiana & Texas Railroad Company.
    A. person cannot treat a railroad’s entry upon his land as tortious after he has by conduct acquiesced in it, and stoQd silently by until, it was accomplished, and the road bed was equipped with ties and. rails.
    But a railroad company must not so construct its road as to inflict injury upon the proprietor of land over which it passes. It is liable in damages for injuries to the land occasioned by closing ditches and obstructing drains, whereby water is impeded or obstructed in its passage, and the crops are thus injured or destroyed.
    The liability of a railroad company is substantially the same as that of an individual for torts or actionable injuries occasioned by its improper or defective construction, and for obstructions created by it to thenatual flow of water, whereby adjacent land is injured in its cultivation.
    APPEAL from the Nineteenth District Court, Parish of St. Mary. Goode, J.

      JB. F. Winchester and A. L. Tuclcer for Plaintiffs and Appellees :
    1. The plea of the general issue, and special defenses in justification are inconsistent issues, and cannot stand together; the former is waived by the latter, and the defendant should have been required to elect between them. 10 L. 306; 28 An. 239, 109; 29 An. 136; 31 An. 84.
    2. The charter of a company is a private statute, not a special law, requiring plea and proof to be noticed judicially. 33 An. 956, 954; 23 An. 415.
    3. After issue joined an answer cannot be amended so as to change the original issue, nor can it be amended after the parties have gone to trial; a fortiori, it cannot be amended after plaintiffs have closed their direct evidence. 14 An. 355; 19 L. 547-8; 22 An. 350-1 j 1 Bob. 581; 3 Bob. 126.
    4-. The right of passage or of way, taking earth or sand is a servitude. C. C. 721.
    The right of passage or of way is a discofitinuous servitude. ■ C. C. 722, 737.
    Discontinuous servitudes can be established only by title; immemorial possession itself is not sufficient to acquire it. C. C,. 766.
    The title to the right of way to be valid against the third parties must be recorded within the . time required for the registry of mortgages. C. C. 1554-6-7, 3447, 3346.
    5. The donation of the right of way to a railroad must be granted under the formalities required by the Civil Code for donations inter vivos, must be accepted in the manner required by law; and the act of donation and acceptance must be recorded within the time, and in the manner required by law, in order to affect third parties. C. C. 1554 et seq¡ 3346-7.
    6. Servitudes are extinguished by abandonment or by ten years non-usage. C. C. 783, 789. And the time of prescription for non-usage begins for discontinuous servitudes from the day they ceased to be used; and for continuous servitudes, from the day any act contrary to the servitude has been committed. C. C. 790.
    7. One co-proprietor of an undivided estate cannot impose a servitude thereon, without the consent of his co-propietor. C. C. 738.
    8. Morgan’s La. & Texas B. B. Co., incorporated in 1877, is not the legal successor of the IN', O., Opelousas & G-. W. B. B. Co. and has shown no title from the same.
    9. Since the right of way could only be acquired by.a written title from the proprietors or by expropriation; and consent could not be shown by parol to occupy the land, hence* defendant Company could acquire no right from the mere inaction of plaintiffs, and it affords “no excuse against tlie payment of these damages, that the plaintiffs made no opposition or objection.” 17 L. 396; 32 An. 839; Salabah vs. Marsh, 34 An. 1053.
    10. Entering upon land without the consent of the proprietor, and without authority of law is an act of trespass for which damages lie. 37 Miss. R. p. 700.
    31. Measure of damages—authorities quoted in brief p. 23; Shearman on Negligence, 3d od. ' p. 677; 8 Otto, 407 to 410.
    12. Prescription cauuot bo set up against a continuous damage. 2 Add. on Torts, 1163; 7 Otto, 668-9 ; Wood on Nuisance, 823.
    13. Plaintiffs are entitled to recover for loss of profits in business. 1 Sedgwick on Damages, 7th ed. 274, note 130 to 133, note 134-7-8,143; 4 English Law & Equity Reports, 20 to 23; 1 Addison on Torts, Banks & Bro. ed. 242; Woods on Nuisance, 890-2-3, 688.
    : D. Gaffery for Defendant and Appellant:
    1. A grant, or license, or request from the land owner, will justify the Company’s interference with his property, which would otherwise be a trespass. Pierce on Railways, chap, 9, pp. 260-265.
    2. Vindictive or punitory damages can only be inflicted where there are circumstances of fraud, malice, gross negligence or oppression.
    Intent and malice are essential ingredients in cases of vindictive damages. Sedgwick on Damages, chap. 1, Sec. 38 ; lb. chap. 22, Secs. 529, 530, 461.
    3. Where, in an action for vindictive damages, certain actual damages, not specified as to amount, are included in the ad damnum, in aggravation of the wrong complain ed of, no recovery can be had thereon, independent of the matter alleged as the main trespass.
    Where the action is not sustained on the main charge, the matters of aggravation incidental to it, fall with their principal. G-reenleaf, Vol. 2, Sec. 273.
    When a right of way, under private signature, is granted to a railroad company, in consideration of contemplated benefits, it is a valid grant and not a donation. 31 An. 549.
    4. Where two own the land and one signs the grant and the other does not, and the one not signing is shown to have acquiesced, permitted and solicited the building of the road bed ■ through the joint property, the grant, imperfect without the consent of the co-owner not < signing, becomes perfect through his express and implied consent. Rev. O. C. 738.
    5. When the ©state on which a co-proprietor has granted a servitude is sold to effect a partition, and afterwards the heir of the co-owner not signing, but consenting to the servitude, becomes proprietor’ of the whole estate, the heir stands where the author would have stood, ánd is bound to permit the servitude. Rev. C. C. 741.
    6. Where the owner or owners of real estate stand by and see the construction on their property of the costly and extensive work of a railroad, without protest or dissent, their consent is implied, and they cannot object'to the use of the property by the railroad. 31 An. 478, Jefferson & Lake Pontcliartrain Railroad Company vs. New Orleans.
    7. All claims for land or damages for its extra-judicial expropriation for works of public improvement and utility are barred by two years from the actual taking and occupancy of the land for such purposes. Rey. C. C. 2630 ; 31 An. 478.
    8. A railroad is a public road or highway. The proscription of ten years does not apply to '* a forfeiture of its right of way by non-user for that time. 3 An. 482, Hatch vs. Arnault; Mills on Eminent Domain, Sec. 14.
    Permitting one’s property to be used and appropriated for a railway or highway is in the nature of a dedication to public use, and may be proved by parol. 29 An. 38; 12 An. 108 ; 20 An. 339.
    9. Amendments, conducive to justice, may be allowed at any time. 27 An. 316.
   The opinion of the Court was delivered by

' Manning, J.

The plaintiffs own a sugar plantation below Pattersonville in St. Mary through which the defendant has constructed its road, and has so built it that damage has been inflicted upon them to the extent they allege of ten thousand dollars. The cause of the damage is the closing of numerous ditches which prevents drainage, and: dams up the water, and particularly a canal which is the main outlet. The road bed is built through the heart of the plantation, and runs between the stables and the sugarhouse and laborer’s cabins, and is thus claimed to constantly endanger them. The defendant’s acts were committed in the summer of 1879, and the suit was filed in November of the same year.

The defendant sets up title to this road bed by derivation from the New Orleans, Opelousas & Great Western Railroad, upon the validity of which we do not find it necessary to pass, nor upon its binding force quoad the defendants. The bed was constructed by that Company about 1858 or 1859, but remained without rails or cross ties for twenty years. The plaintiffs acquired the land in 1875, and when the defendant’s employees commenced the repairs of the bed four years later, preparatory to the immediate laying of ties and rails, the plaintiffs were quiescent. They called the engineer’s attention to the necessity of making culverts and having a bridge fixed, but although of course perfectly aware that the road was to be finished and operated qtiickly, they not only did not evince any unwillingness to its passing over their land but made suggestions to the constructing officer of works which they deemed necessary. This is the more remarkable since the road bed separated their buildings, and it must have been manifest that inconvenience and danger must result from the location of the bed in such place. One of the plaintiffs, replying to the question whether he did not know of the defendant’s entry for the purpose of building the road, answers well, I heard they were coming through from Morgan City up, but I paid no attention to it, as I thought they would ask my permission to pass.”

In civil conduct, not less than in military affairs, the arm that strikes a prompt and vigorous blow achieves success before the adversary recovers from his surprise. The Company went straight forward, and the dazed plaintiff was roused from his attitude of waiting for his permission to be asked by the scream of the locomotive.

. All that part of ¡the complaint which is based upon an alleged tortious entry must therefore fall. If the entry was unlawful, the plaintiffs condoned it. They should .at once .and peremptorily have forbidden the entry of the defendant in 1879, if they intended to dispute its right to the road bed which was already upon their land when they bought and was too prominent an object to be ignored. They should have denied the defendant access, and have prevented it by using legal process.

But the defendant has no right in constructing its road to cause injury to the owners of land over which it passes. The successful cultivation of land depends upon its drainage in great degree. Obstruct that, and you convert á soil that would annually teem with the.richest product, into a pestilential marsh. The flow of the water in its natural-course upon this plantation is from front to rear. The plaintiffs had made a reservoir or pond in order to supply water to their machinery, and that pond is supplied' from the Atchafalaya. The flow of water to the pond has been materially impeded and obstructed by defendant’s road, and the plaintiffs have been put to additional expense annually in consequence thereof. They had dug a canal, by means of which the water was drained from their front lands, and several years of successful tillage had demonstrated the wisdom of their work and its absolute necessity. Other ditches; dug with reference to this main canal, perfected a system of drainage, the beneficial results from which were visible in each crop. Through the Company’s fault in locating culverts which do not correspond to those ditches, the whole of this system of drainage has been made awry, and thwarted, and damage to crops has ensued.

The evidence leaves no doubt that it was the defendant’s road that destroyed this system by obstructing the outlets for the water, and closing the ditches. Bellesein says, there were twenty-five or thirty ditches. The culverts being insufficient in number and size, water was1 spread over 122 acres. Fifteen or twenty acres of cane next to the Railroad were nearly all killed while the cane elsewhere was good, and' the road passes through the best land of the plantation, producing an1' average of 2,000 pounds of sugar to the acre.

He continues: “ Before the Railroad was put there by the defendant we were, able to drain the front lands across the old road bed. If the’ Company had made 4 culverts through there 7 feet wide, that is, four more than that one that is there, it would -have been sufficient. I' would have saved several crops on the front.- I crould have had a ditch opposite each culvert, and-drained the rear and saved the back lands from overflow. Twenty acres of this back land overflowed as good-as the front, and capable of producing 2,000 pounds' of sugar to the acre. Overflows every timé there is a heavy rain.”- - :

' Two other witnesses shew the disastrous effect? of the defendant’s' works: ■ • . - -

- Wilson -Danis: there were four openings through the oíd road bed.' They were filled-up by the Company. Before the new road, there were ■ ditches straight across the old bed. We never raise good cane next to the Railroad on that portion since the Railroad has been constructed. Before that crops were not affected as now. The ditches were filled up by grading the road and drainage was obstructed.”

J. M. Charpantier: “ Five ditches ran through the old road bed; this Company filled up two. All the water from 150 acres on the Bayou, North side, has to come through one culvert; it would require for the natural drainage as many culverts as ditches. Plaintiffs have one ditch for every acre. They have fifteen leading ditches; if there were the same passage through the road opposite- them, the front would drain as well as the back. All has to come through a culvert of eight feet—the water stands and .causes injury. The openings closed has, and will continue to affect the plantation and drainage for the future.”

The consequence is that fifteen acres of the front land next the railroad is so overflowed as to materially injure if not to destroy the crops upon it, and twenty acres in the rear are similarly affected. The liability of a railway company for torts or actionable injuries to real estate is substantially the same as that of individuals, and the proof is abundant that the injuries of which the plaintiffs complain are the direct result and consequence of the defendant’s acts in the construction of its road without regard to the need of the plaintiffs to keep their system of drainage in unobstructed operation. The obstruction was wilful and in contempt of their protest. The danger was pointed out, and their efforts to avert it by having drains left open were disregarded.

The jury found for the plaintiffs and assessed the damages at $3,333.33. The plaintiffs pray an increase of that sum. It is enough and not too much.

Judgment affirmed.

On Application i?or Rehearing.

Poché, J.

We have carefully read and maturely considered the earnest application for a rehearing, of this cause made by defendant’s counsel, in a petition and a supplemental petition.

As urged by him in the latter petition, we have no mean's of ascertaining the elements of damages considered by the jury and made the basis of their verdict. In appeals of this character the whole case in all its features is before us, and our conclusions are based on the result of our own examination of the pleadings and of the evidence, and in affirming the judgment in such cases, we are not held to the same reasons which may have actuated the jury in their finding. 33 An. 642, Vredenberg vs. Behan et al.

Defendant’s main reliance.is on the fact, as alleged by counsel, that the issue of actual damages was not tried below and that the pleadings in tbe cause present exclusively the question of punitory” or vindictive damages for the alleged tortious entry on, and occupancy of plaintiffs’ lands by the Railroad Company. He concedes that the petition does contain averments of actual damage's, such as injury to the drainage of plaintiffs, the obstruction of the flow of water from the river through a leading ditch to the sugarhouse pond, as a means of supplying the machinery, etc., but he contends that such damages are not alleged with sufficient clearness .and precision, either as to the .nature or the amount of the alleged damages. But we find that issue was joined by a general denial, on these allegations as well as on all the other averments of'the petition, and it was therefore’ competent for plaintiffs to support these allegations by testimony which we find in the record, and which has led us to the conclusion that they had suffered damages in the amount which the jury had allowed.

Understanding that the amount recovered includes all damages incurred, which are continuous in their character, up to the date of the judgment, we see no reason to disturb our decree.

Rehearing refused.


author: Fenner,' J. •

text:
    No. 1178.
    Walter D. Denègre and Wm. P. Denègre vs. Jean Gérac and Romain Francez et al.
    "Where, by proceedings absolutely null and void, property has been adjudicated to the State in tax proceedings, and subsequently the State transfers the same by adjudication to third persons, under Act 107 of 1880, the owner, iu reclaiming, his property, is not bound to make the State a party, and is not remediless because the State is exempt from suit.
    Assessment, advertisements, notices, sale of property, in.the name of Denegre and Powell, are absolutely null and void when the property had never belonged to such joint owners, but ' had been owned by Jas. D. Denegre alone from the moment of its severance from the public domain.
    APPEAL from the Twenty-first District Court, Parish of St. Martin; Fontelieu, J. .

      A. é It. FeBkmo.iov Plaintiffs and Appellants.

      G. II. Mouton and Fchuard Simon, for Defendants and Appellees.
   The opinion of the Court was delivered by

Fenner,' J. •

Under patents from the State of Louisiana dated in-1856, James D. Denegre of New Orleans was the sole and exclusive owner of certain lands in the Parish of St. Martin. He died in 1865 and the property then passed to his widow and heirs, whose entire title thereto is no^y represented by plaintiffs.

. ■ These lands were assessed.in 1870, 1871 and 1872 in the, naine of “Jas. D. Denegro', and A. L. Powell, non-residents.” The taxes.not having been paid, the lands were advertised for sale in 1873, the advertisement stating that they were •“ assessed in the name of Denegre and Powell.” . .. .

Application was made to .the Parish Court, as directed by law, for the appointment of a curator ad lion to represent non-resident deling quents, amongst whom are mentioned in the petition Jas. D. Denégre and A.’ L. Powell.”

, These names, thus joined by the conjunction and, .appear in the middle of a long list of names in such shape as to indicate that.the conr junction was used to designate those two persons as joint owners of' the same property or joint delinquents for the same tax. The curator ad hoe testifies in the case that he cannot state how the notices served on-him were addressed,; but that when notices were addressed to joint owners, he. forwarded the same similarly addressed and not one to each joint owner.

At the sale the property was adjudicated to the State under Act 47 of 1873, and the tax collector’s act of adjudication describes the property as •“ assessed in the name of Denegre and Powell.” Matters thus stood until 1881, when, under Act' 107 of 1880, providing for the sale of property forfeited or sold to the State, the property was again advertised and adjudicated to. the defendants, Gérac and Francez, at the price of fifty dollars. The deed to them describes the property as “ formerly belong to Denegre and Powell.” The present action is brought by plaintiffs to have these titles declared null and void, to recover the property and for other ancillary relief.

The attempt of defendants to shelter themselves beneath, the wing of the State cannot be .countenanced.

It is true, the effect of this action is to annul or to declare null a salé made to the State. But if the proceedings were, as contended, absolute nullities, neither the State nor her transferree can pretend that the owner is remediless because he cannot sue the State. Bights of property would be indeed.insecure if the State, in proceedings to which the true owner was neither actually nor constructively a party, could order her own tax collector to adjudicate to herself a man’s property, and then’ protect the. title and possession so acquired from attack on the ground of her sovereign exemption from suit. Oil works Monition, 34 An. 255.

It is clear in this case that the taxes were assessed in the name of Denégre and Powell; that the proceedings were conducted against Denégre and Powell; that the notices, actual or constructive, were addressed solely to them; that the sale was of their property; that the only title acquired by the State was the title of Denégre and Powell, and such was the only title transmitted to defendants. If Denégre and Powell had never been owners of the property and had never held title thereto, obviously the State acquired no title and transferred none to the defendants. The true owner is in no manner affected by these proceedings and transfers. They “ touch him not.” He goes for his property where he finds it, and when the possessor sets up such pretenses of title, he rightly demands that they be swept aside, and that his property be restored to him.

It is clear that the property in controversy could never have been lawfully assessed except in the name of Jas. D. Denégre, or, after his death, in the name of his succession or of his widow and heirs. If there had been fault on the part of the owner—as, if he had acquired the property from Denégre and Powell, and had not recorded his transfer—different questions might arise. But here, his title was derived directly under patents from the State, and under the law, for the very purpose of correct assessment, list of sales and entries of State lands are required to be sent by the auditor to the assessor, thus conveying knowledge of the title. Act No. 197 of 1855.

It does not appear that Denégre and Powell ever had any connection with these lands, nor does the record offer any explanation whatever how or why such an error crept into the assessment roll. James D. Denégre and his widow and heirs were-in no manner affected by assessments, advertisements or notices touching lands in the name of Denégre and Powell. Having no connection with Powell in the ownership of lands, they would have been justified in assuming that such proceedings did not refer to or affect lands which, from the moment of their severance from the public domain, had stood in the exclusive ownership of Jas. D. Denégre. Having no interest in any lands standing in the name of Denégre and Powell, they were not concerned with proceedings for the sale of such lands.

The case falls clearly within the doctrines expounded in the case of Stafford vs. Twitchell, 33 An. 520, and the authorities there cited.

As to plaintiffs all these proceedings were absolute nullities, and the prescriptions pleaded have no application. Lague vs. Boagni, 32 An. 913; Person vs. O’Neill, Id. 228.

Plaintiffs are entitled to relief, so far as the recovery of the property is concerned; but tbe evidence furnishes no sufficient support to the claim for damages. 1

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed; and it is now ordered and adjudged that the adjudication of August 27th, 1873, by the tax collector to the State, and of April 4th, 1881, by the.tax collector to Gérac and Francez, of the lands described in the petition, be declared to be absolutely null and void; that the Recorder of the Parish of St. Martin, made defendant herein, be ordered to cancel and erase the inscription of said deeds, and that the title of plaintiffs to the said lands be recognized and that they have and recover possession of the same; and that plaintiffs’ demand in damages be dismissed as of non-suit; defendants, Gérac and Francez, to pay costs in both Courts.


author: P'oché, J.

text:
    No. 1193.
    Elza B. Mentz vs. Delphine Train et als.
    An injunction staying an executory process cannot have the effect of impairing the legal value of the notes and mortgage on which the process had issued.
    If the property he seized by the holder of a mortgage inferior in rank, during the pendency of the injunction, and if it be adjudicated to the owner of the ranking mortgage, the adjudicatee has the legal right to retain the amount of his mortgage in satisfaction pro tanto of his bid.
    4 PPEAL from the Nineteenth District Court, -Parish of St. Mary. Goode, J.

      JB. B. Winchester and A. L. Tucker for Plaintiff and Appellant.
    P. H. Mentz for Defendants and Appellees:
    An injunction, sued out by the purchaser of real estate, to prohibit his vendor from selling the property under his privilege, does not prevent this vendor from purchasing the property when it is sold later under a junior mortgage, nor retaining his bid in his hands in satisfaction of- his mortgage. C. P. 679, 706.
    The defendant in injunction obeys and exhausts the writ by abstaining from the sale; the writ only prohibits the acts named in it. C. P. 296..
    The tender by the plaintiff of the sum applied to the extinguishment of his valid obligation, ’is a condition precedent to recovery. 3 L. 544; 21 An. 385; 28 An. 854; '24 An. 324; H. D.p. 610.
    Judicial titles will not be disturbed at the suit of one who does not show an injury done to him, and an interest in the result of the suit; nor without an offer of indemnity to the parties sought to be affected. 9 An. 581; 31 An. 840; 30 An. 174.
    If a mortgage creditor buys at forced sale the property hypothecated to him, and the sale is afterwards declared null, the mortgage will revive against the property when it goes back into the hands of the original owner. 31 An. 840; 34 An. 565.
    “The jurisprudence of this State has long since consecrated the salutary doctrine that courts exist to enforce rights and to redress wrongs, and that they will not lend their aid to the annulment of 'titles, where the party seeking their interposition cannot possibly take relief from the granting of the remedy invoked.” 6 An. Ci, 535; 8 An. 503; 31 Ah. « 840.
   The opinion of the Court was delivered by

P'oché, J.

Plaintiff seeks to be recognized as the owner of certain lots of • ground in Morgan ‘ City, which the defendants hold under aii adjudication made in execution of a judgment obtained against the plaintiff by Mrs. Mary J. Carlin.

He charges the nullity of this adjudication' on numerous grounds'; which will be better understood in connection with the following facts, which have given rise to this controversy : ’ ,

Plaintiff acquired the property in 1874, by purchase from Jose Barba, for two thousand dollars, fifteen hundred dollars of which were represented by his three notes of five hundred dollars each, secured by mortgage and vendor’s privilege on the property sold.- Executory process was issued by Barba on his mortgage notes in May, 1876, and was enjoined by Mentz in June following; that injunction was dissolved with damages in'March, 1878. ' • ■ ■'

I While this injunction was pending, Barba’s mortgage notes were acquired by Mrs. Mary E. Moore, to whom the property was adjudicated on the 2d of February,'1878, under the execution issued by Mrs. SM.'J. Carlin on her judgment against E. B. Mentz. The price of the adjudication was $1,960, part of which was paid in cash, for costs and faxes, by the purchaser, who retained, the balance in satisfaction of the Barba notes which she owned.

Of the many grounds of nullity urged by plaintiff, one only is sufficiently serious to deserve consideration from a court of justice; it is the following: ; ' ■ - - ,

• It is charged, that when the salé was effected under the Cai'lin judg: "ment, the injunction staying Barba’s proceedings was in full force, and bad the legal effect of enjoining .the payment of the vendor’s notes which were thus paralyzed, and-that therefore Mrs. Moore could not legally use them in satisfaction of the price of adjudication.

' This proposition eaniiot be sustained either in law or in fact.

The injunction sued out by Mentz' in June, 1876, was merely intended to, and did not in fact, as it could not in law, do more than stay the sale of the property under the executory process.

Previous to the rendition of a judgment making it perpetual and .effective, it had no effect on the legal value of the notes and mortgage held by the seizing creditor or his subrogee.

■■ It therefore follows, that on the day of sale under the Carlin judgment, whose bindingforce was avowedly not affected by the injunction, the mortgage securing these motes was fully .alive, and binding as a ranking incumbrance on the property then’offered for Sale. - ;

Under the law, no adjudication could have been made in default of a bid sufficient in amount to satisfy that mortgage. C. P. 679, 706. .

If the adjudication had been made to a third person, the purchaser would have retained the amount of that privilege añd-mo'rtgáge, which could have subsequently been claimed by Mentz, if he had succeeded in his attempted feat to annul the' Validity of his purchased' notes, or otherwise, the amount-retained would have enured to the holder of the notes. But as the adjudicátee happened to be the holder:of the notes, can it he pretended that she should have been subjected-to a harsher rule and compelled to pay the'amount in cash? Evidently not. She retained the amount which the judgment-dissolving Mentz’s injunction decreed-to be hers. At that moment, that the- injudction was swept away, she combined the two capacities óf debtor and creditor; the law declared the extinction of the obligation by confusion, and thus her title was completed. And thus plaintiff’s cáse is Stripped of all foundation. The defendants purchased the property from Mrs.- Moore-, the true and lawful owner, and their titles were correctly quieted by the judgment of the District Court. ’

Judgment affirmed.


author: Poché, J.

text:
    No. 1206.
    Mrs. A. Duperier and Husband vs. Theogene Viator, Sheriff and Tax Collector, et al.
    Aot2To. 126 of 1882 is the legislation intended to make effective Article 209 of the Constitution, and a tax levied under its provisions is legal and "binding.
    But Section 2 of said Act, which requires the vote of the majority of the property taxpayer*, is antagonistic to the proviso of Article 209, which requires only the majority of the legal ■ votes cast at the election. That provision of the Act is therefor© ineffectual, and the Act must conform in that particular to the constitutional requirement.
    The failure to publish the names of all the signers of a petition fora special tax, in excess of the rate as limited by Article 209, will not invalidate the tax.
    APPEAL from the Twenty-first District Court, Parish of Iberia. Fontelieu, J.

      Breaux & JBenoudet for Plaintiff and Appellant.

      O. JBJ. Mouton and JR. 8. Perry for Defendants and Appellees. . .
   The opinion of the Court was delivered by :

Poché, J.

Plaintiff attacks the legality of a special tax of four, mills levied by the Police Jury of the Parish of Iberia, for the purpose of building a courthouse in said parish.

She urges that the election which was made the basis of the levy was not held in compliance with the provisions of Act No. 41 of 1882, passed in pursuance of Article 209 of the Constitution,'under which alone such a tax, in excess of the ten mills’ constitutional limitation, can be justified or enforced.

The defense is a general denial, and a special averment that the tax was levied under the provisions of Act 126 of 1882, alleged to be the enabling Act of Article 209 of the Constitution. Defendants further contend, that if Act 41 of 1882 can be construed as the enabling Act of the Article in question, it is violative of the Constitution, in so far as it imposes prerequisites to a tax election not contemplated by that instrument, and that it has been repealed by Act 126, which ■ contains later expressions of legislative will on the same subject matter, in conflict with the provisions of the previous Act.

Plaintiff’s appeal, taken from a judgment maintaining the legality of the tax, presents for solution the following propositions; on which she rests her case:

1. That the legality of this tax must be tested under the provisions of Act 41 of 1882.

2. That the tax is illegal, because the petition for the levy of the tax was not signed by parties or their representatives owning one-fourth in value of the assessed property of the parish, as required by ■ that Act.

3. That the petition of taxpayers presented to the police jury, was not published in full, as required by Act 126 of 1882, should that Act be held as governing the case.

4. That the majority of the property taxpayers of the parish did not vote in favor of the tax, as required by Act 126.

The record shows that the intention was to raise the tax under the provisions of Act 126. ■

There are 2,573 property taxpayers, representing :an assessment of $1,868,814.

The petition was signed by 303 taxpayers, representing an assessed value of $417,413.

The petition was published with the ordinance of the police jury, but the names of only fifty signers of the same were mentioned, followed by the word's, “ with some four hundred and twenty-five others.

The number of tax paying electors who voted at the election was 223, and the number who voted against the tax was 23.

Under this statement of the salient relevant facts of the case, we will now discuss the propositions of law involved therein, as hereinabove stated.

I.

Both parties agree, and it is quite certain, that the constitutional authority to levy and collect this tax must emanate from Article 209, which confers the authority to increase the rates of taxation, as therein limited, “ for the purpose of erecting and constructing public buildings, bridges and works of public improvements in parishes, * * when the rate of such increase and the purpose for whichitis intended shall have been submitted to a vote of the property taxpayers of such parish * * entitled to a vote under the election laws of the State,' and a majority of same voting at such election shall have voted therefor.”

The legislature passed in the year 1882 two separate Acts, both of which apparently intend to put in operation the provisions of that Article.

Act 41, approved June 26, 1882, is entitled an Act to enable the police juries of parishes and municipal corporations, the Parish of Orleans excepted, to levy an annual rate of taxation-to carry on public improvements in accordance with Article 209 of the Constitution.”

It exacts as a' prerequisite to a tax election, the presentation of a petition signed by parties or their representatives, owning one-fourth in value of the assessed property of a parish, etc.

Act 126, approved July 6,1882, is entitled, an Act to make effective the two hundred and ninth Article of the Constitution, to prescribe the manner in which special elections may be held in the parishes and incorporated cities, towns and municipalities in this' State, for the purpose of constructing public buildings, bridges and works of public improvements in the parishes, cities and towns.”

It prescribes as a prerequisite to a tax election, a petition signed by one-tenth of the property taxpayers of any parish, city, incorporated town or municipal authorities, and requires the publication of the petition and of the ordinance ordering the election, at least twenty days before the election is held.

A mere glance at the two Acts satisfies the mind that they are materially different, both in the objects expressed in their respective titles and in their respective provisions.

Article 209 contemplates three distinct purposes for which the limited rat£ of taxation may be increased, to-wit: public buildings, bridges and worlcs of public improvements. It is clear that the building of a courthouse must come under the heading of public buildings.

Now, a reference to the title of Act 41 shows that it does not include the subject of public buildings, but that it refers to only one of the three purposes enumerated in Article 209, and that is the subject of public improvements; whereas, Act 126 embraces, both in the title and in the body of the Act, all three of the purposes contemplated in the proviso of Article 209.

, It is true, that in the body of. Act,41 the subject of public buildings is'included as o.ne of-its purposes, but it is not included in the title, and must therefore be considered as unwritten. Constitution, Art; 29. Surget vs. Chase, 33 An. 840.

" We therefore conclude,- that Act 126, and not Act 41 of 1882, is the law intended by the legislature to make effective Article 209, and that the legality of the tax under consideration must be tested under the provisions of the former.

. Fertile purposes of this investigation it becomes therefore unnecessary to pass upon the alleged unconstitutionality of Act No. 41, or to judicially determine the precise object therein contemplated by the law maker. !

II.

■' The conclusion reached on plaintiff’s first proposition virtually disposes of her second objection. The petition was signed by more than bne-tenth of the property taxpayers of the parish, and is on that point in strict compliance with the Act governing the case.

III.

The official publication of the petition does not contain the names of all the signers, as shown by our foregoing statement of facts. It is a slight irregularity, but it is not sufficient to invalidate the proceeding. The publication is a substantial compliance with the provision of the Act, the object of which, in requiring such publication, was to give notice of the proceeding to all property taxpayers who had- not signed the petition, and who could by an examination of the same, ascertain the names and the status of the signers.

IV.

The fourth objection offers more difficulty, as it involves a proposition, urged by the defendants, that Section 2 of Act 126, in requiring the vote of the majority of the taxpayers of the parish, in favor of the tax, is not in keeping with Article 209, which only requires the majority of the votes of taxpayers cast at the election.

. It is clear that the enabling Act of an Article of the Constitution can contain no provision antagonistic to the title or spirit of the Article which the legislature proposes thereby to render effective. , ,

■ The solution of this difficulty involves a mere grammatical construction of the sentence on this subject, which concludes the proviso of Article 209. It reads as follows : that the purpose for which the tax is intended, “ shall be submitted to a vote of tbe property taxpayers * * entitled to a vote, * * and a majority of same voting at such election shall have voted therefor.”

In our opinion, this language is liable to no other construction but that the tax must receive the vote of the majority of the taxpayers who voted at the election or, in other words, the majority of the legal votes cast at the election.

Similar provisions have received such a construction whenever they have been subjected to judicial interpretation.

The Supreme Court of Minnesota, interpreting a similar provision, ruled that: when a constitution requires the submission of a questiou to the electors of a county at a general election, and to the assent of a majority of such electors voting thereon, it means a majority of the electors who vote at such election.” Bayard vs. Klinge, 16 Minn. 249.

Thus construing the language of our Article, we hold the provision of Act 126, prescribing a different requirement, to be ineffectual. The vote of the majority of the property taxpayers who voted at the election ordered by the police jury, was therefore sufficient to carry the election. The record shows that such was the result of the election in this case, and we therefore hold, that the tax was constitutionally levied and that its payment must he enforced.

Judgment affirmed.


text:
    No. 1123.
    Joseph David vs. Frederick C. Rode. The Liverpool, London and Globe Insurance Company, Garnishee.
    When the answer of the garnishee denies any indebtedness to tbe defendant, no judgment can be rendered against tbe said garnishee,without a rule or other proceeding to traverse tbe answers of tbe garnishee. C. P. 264; 16 An. 253, 348;'19 An. 374; 27 An. 93; 28 An. 691; 6 An. 122; 31 An. 865; 32 An. 280.
    It is only when the answers of the garnishee are an unconditional and unqualified confession of indebtedness to the defendant, that j udgmenfc can he rendered pro condesáis against him. C. P. 246.
    Any proceeding to traverse or disprove the answers of a garnishee must he filed within twenty days after such answers are filed, or the garnishee is released. Act No. 27 of 1877 j 31 An. 546.
    APPEAL from the Nineteenth District Court, Parish of St. Mary. Goode, J.

      Foster & Brother for Plaintiff and Appellee.

      Jos. P. Bornor and F. W. BaJcer for tlie Garnishee and Appellant:

      First. When the answer of the garnishee denies any indebtedness to the defendant, no judgment can be rendered against the garnishee, without a rule or other proceeding to traverse the answers of the garnishee. O. 3?. 264; 16 An. 253, 348; 19 An. 374; 27 An. 93 ; 28 An. 691; 6 An. 122; 31 An. 865; 32 An. 280.

      Second. It is only when the answers of the garnishee are an unconditional and unqualified confession of indebtedness to the defendant, that judgment can be rendered pro confessis against him. 246.

      Third. A judgment rendered against a garnishee, without any rule or other proceeding putting at issue the truth of the answers, and without notice to the garnishee, and in his absence, is irregular and should be set aside. 24 An. 32; 6 An. 122; 16 An. 253.

      Fourth. Any proceeding to traverse or disprove the answers of a garnishee must be filed within twenty days after such answers are filed, or the garnishee is released. Act Ho. 27 of 1877; 31 An. 546.

      Fifth. Positive written proof, or the oath of two witnesses worthy of belief, is necessary to overthrow the answers of a garnishee. C. P. 264.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Todd, J.

The motion to dismiss the appeal is made by plaintiff and appellee on two grounds :

1. Because the appellee is not given, in the order and citation of appeal, the delay to which the law entitles him.

2. Because there is no seal on the citation of appeal.

First. The petition for an appeal was filed and the order granted on the 22d of June, 1881. Citation issued same day. The appeal was made returnable on 1st Monday of July, at Opelousas. Service acknowledged on the 30th of June, by the counsel for plaintiff and appellee, and served on the defendant, the other appellee, on the 25th of June, and the return day was the 5th of July.

The plaintiff and appellee resides in the City of New Orleans, and the defendant in the Parish of St. Mary.

“ The delay to he expressed in the citation consists of ten days, to be counted from the time the citation has been served, which are allowed to the defendant to comply with the demand of the petition, if the defendant reside in the place where the court is held, or within ten miles from such place. If the defendant reside at a greater distance, the aforesaid delay shall be increased by one day for every ten miles that his residence is distant from the place of holding the court, before which he is cited to appear.” C. P. 180.

It is evident in this case, that the delays in which the appellee had to answer had not expired on the day fixed in the order of appeal, and that the appellee did not have the delays to which he was legally entitled. On referring however to the petition of appeal, we find that the return day was not suggested by the appellant, but was fixed by the Judge granting the order on his own motion, and that therefore the error mentioned was not a fault imputable to the appellant, and therefore does not come under the authority of the cases cited.

Second. We cannot ascertain from the record whether the Citation of appeal was or not without the seal of the court, and therefore this part of the motion is without force.

We cannot dismiss the appeal, but must continue the case, and thus allow the appellee the delays denied in the order and citation of appeal.

On the Merits.

The plaintiff proceeded by attachment before the District Court, Parish of St. Mary, to recover of the defendant $1,523.86, and made the Insurance Company above mentioned, of the City of New Orleans, garnishee, propounding the usual interrogatories.

The garnishee answered the interrogatories, substantially denying any indebtedness to the defendant.

These answers were never traversed. The case was tried as to the defendant, and judgment rendered for the amount of the claim, and at the same time, after certain testimony had been taken going to show an indebtedness on the part of the garnishee to the defendant, and in effect contradicting the answers of the garnishee, judgment was given against the garnishee for the same amount awarded against the defendant.

Prom this judgment, the garnishee appeals and assigns the following errors:

First That the court was without jurisdiction.

Second. That the answers of the garnishee denied any indebtedness to the defendant, Bode, and therefore no judgment could be rendered against the garnishee without a rule or other proceeding to traverse the answers of the garnishee.

Third. That no rule or other proceeding to traverse the answers of the garnishee was had, and no judgment could therefore be rendered against the garnishee.

Fourth. That the judgment against the garnishee was rendered without any rule, answer or other proceeding putting at issue the truth of the answers of the garnishee, and without fixing, or notice of any proceeding to the garnishee, and in his absence.

Fifth. That the delay prescribed by law, Act 27 of Extra Session of 1877, within which time the answers of the garnishee could be traversed, liad elapsed when the trial was had and the judgment was rendered against the garnishee, and the trial and judgment, in the absence of such traverse after the lapse of that time, are void.

The plea to the jurisdiction is waived by the appellant’s counsel. The assignment in other respects must be sustained.

No judgment can be rendered against a garnishee who denies an indebtedness to the defendant in answer to interrogatories, unless such answer has been properly traversed. C. P. 264; 16 An. 253, 348; 19 An. 374; 27 An. 93; 6 An. 122.

And the proceeding to traverse must be taken within twenty judicial days after the answer of the garnishee is iiled. Act 27 of 1877; 31 An. 546.

It is, therefore, ordered, adjudged and decreed that the judgment of the District Court against the garnishee—the Liverpool & London & Globe Insurance Company—be annulled, avoided and reversed, and that there be judgment in favor of the said garnishee, rejecting plaintiff’s demand, with costs in both Courts.