author: Breaux, J.

text:
    No. 11,695.
    M. Landwirth vs. B. Shaphran.
    Defendant, whose occupation was that of a merchant, borrowed money from hi& clerk.
    The latter brought suit on the note evidencing the debt and on the acts of privilege- and pledge given for its security.
    The books of the defendant contain entries contemporaneous with dates of amounts charged as loans.
    The defendant signed acknowledgments of indebtedness to plaintiff.
    The defendant for relief alleged and attempted to prove that the books were “ cooked;” that the dates of entries are incorrect; that he was not a borrower; that the note, books and acknowledgments were untrue.
    He produced two receipts; the plaintiff denies the signature to them.
    The evidence of two witnesses as to whether it is the signature of the plaintiff is conflicting.
    It was expert testimony to prove signature by comparison.
    The note and the deed import consideration.
    The maker can not escape by alleging and attempting to prove that they were-fictitious, and executed to guard against claims of creditors.
    APPEAL from the Seventh District Court, Parish of East Carroll. Montgomery, J.

      Leonard K. Barber and Joseph E. Ransdell for Plaintiff, Appellee.

      Charles S. Wyly and Sanders, Miller, Smith & Hirsch for Defendant,. Appellant.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff claims two thousand five hundred dollars,, interest and attorney's fee evidenced by a note of the defendant in his favor, dated April 9, 1894, and matured November 1, 1894.

Crop liens were granted by the defendant on his crop to secure payment.

The first act bears the date of the note. Subsequently, a second act was granted, with the intention of supplementing the first. It bears the date of July 2, 1894, and both were recorded in September of that year.

To obtain a sequestration plaintiff alleged that the claim was due him; that he believed defendant to be insolvent and unable to pay his debts; that he was about to gather his crop and feared and believed that he would conceal, part with or dispose of them pending the suit or would send them out of the State before the note matured, to the injury of plaintiff and in fraud and violation of his legal rights. To all of which he swore.

The defendant took a rule on the plaintiff to show cause why plaintiff’s bond for a sequestration should not be increased, to cover the damages that the alleged illegal sequestration would cause.

He alleged a number of grounds:

Such as that the note does not evidence any indebtedness; that it was issued without consideration and was a simulation, that he was not insolvent and had not attempted to remove his crop.

The court refused to grant the rule.

Whereupon defendant filed a motion to dissolve the sequestration on the ground that plaintiff’s affidavit for the sequestration was false.

This motion also was overruled.

The defendant in his answer admitted his signature to the note, but alleged that he held written evidence showing the simulation of the note and of the acts of privilege and pledge.

Judgment was rendered for plaintiff for the amount claimed with privilege on the crops to the amount of one thousand three hundred and ninety-one dollars, with interest and attorney’s fee on the amount.

From this judgment the defendant appeals.

PREMATURITY.

The plea of prematurity is argued as a ground to dissolve the sequestration.

The defendant stoutly denies the debt, but does not by his pleadings raise the question of prematurity of the suit.

The prematurity of an action may be waived, and that plea must be interposed in order that the court may be enabled to decide as to its maturity vel non.

AFFIDAVIT FOR THE WRIT PRIMA FACIE EVIDENCE.

Moreover the case shows sufficient ground to sustain the writ of sequestration.

The requisites for the writ under Act 7th April, 1826, paragraph 9, p. 120, paragraph 7 of Code of Practice, are the same as under Art. 275, paragraph 6, in cases in which the claim is secured by special mortgage, and these have been followed by plaintiff in his affidavit for the sequestration.

The affidavit is, of itself, prima facie evidence of the facts authorizing the writ, and this presumption the defendant did not rebut by proof that it was not his intention to dispose of his property, as charged in the affidavit.

The motion to dissolve the sequestration is overruled.

On the Merits.

The plaintiff and the defendant, in their transactions with each other, seem to have ignored every business principle.

The plaintiff, as a witness, said that when he was employed by defendant he owned an amount earned by him since his arrival in this country, and he also swore that he brought a few hundred dollars from his home in Europe.

In 1890, the employer, who is now the defendant, sold to his clerk, plaintiff at this time, his entire stock of goods for a sum in cash.

The sale has no bearing upon the issues further than that it seems it was the first contract entered into between the plaintiff and the defendant, and that, at a time not suspicious, the plaintiff became the owner of a stock of goods for which he paid cash. We have noted this fact relating to cash plaintiff said he had for the reason that the defendant in argument contends that plaintiff did not have he amount to loan, and thereby seeks to establish the want of consideration of plaintiff’s note.

He certainly had an amount, and defendant is not in a position to prove that it was insufficient to enable plaintiff to make the loan.

Not only the defendant acknowledged his indebtedness originally, blit he is confronted with his own confirmations of the correctness of his acknowledgments.

Every note imports value received and an agreement to pay the amount.

It is true that in some respects plaintiff’s statement of amounts he had were hardly reasonable and highly improbable.

Can the defendant, who gave color to the correctness of plaintiff’s statement as to these different amounts by a number of entries in his books, now question the verity of the' statement?

He at different times credited the plaintiff on his books with amounts received from him. If the entries were untruthful and the declarations false, they seem to have had a charm in the eyes of the employer and his clerk. He gave him receipts, and finally executed his promissory note as evidence of the amount due, secured by an act of pledge and privilege.

Slight testimony of plaintiff in support of defendant’s acts and declarations have become cogent proof.

ALLEGED FORGERY.

The defendant produces two receipts he says were signed by the plaintiff.

They were written by himself — one in pencil, and contemporaneous with the note sued on and the deed of privilege and pledge; the other is dated 9th July, 1894, at a time he was seeking to obtain from plaintiff a waiver of his pledge on his crops.

The plaintiff denies that it is his signature. Defendant attempted to show that others knew of these receipts before the suit was brought. The proof is unsatisfactory and insufficient. The defendant himself referred to plaintiff as his debtor after the date of the receipts.

A number of witnesses were examined to prove whether the signature was real or fictitious.

There are witnesses who testify, by comparison, that it is the signature of plaintiff; other witnesses are equally as positive that it. is not.

One of the specially selected experts testified that only one of the signatures had the appearance of being genuine, and thereby casts discredit on both receipts.

The other of the experts certified that both have the appearance of being genuine.

It is generally granted, that standing alone, any of the modes of proof of signature by resemblance are worth little; in criminal eases, nothing; their real value being as adminicula of testimony. Best on Evidence, Am. Ed., 255.

By the conflict of expert testimony and the circumstances of this case these receipts are standing alone and áre not proof.

The testimony of the experts is about equally divided and of equal weight.

THE DEFENDANT IS CONCLUDED BY HIS BOOKS, DECLARATIONS AND CONDUCT.

If the entries in his books, and repeated acts and statements are correct, the mere receipts, not evidencing payments, would not be of any value.

The defendant, even with his receipts, has never succeeded in reconciling the differences between his books, vouchers, cheeks, deeds and declarations prior to the suit, with his present attitude that he never was plaintiff’s debtor for the amount claimed.

The defendant testifies that he and his clerk, the plaintiff, cooked up the books and prepared receipts and papers in order that they might be prepared to meet any emergency in his affairs by representing the clerk as a creditor.

He can not successfully urge his own turpitude.

He is bound by his acts and declarations.

The receipts he produces, under the circumstances, disputed as to their genuineness, do not sustain his contention.

He conceived the design of protecting himself against creditors. His wonderful method can not have judicial sanction.

If he is obliged to pay an amount he does not owe he has no one to blame but himself.

We will add if he does not owe the note he is one of the most singular tradesmen that has ever undertaken to sell goods for a livelihood.

The defendant is clearly not entitled to relief from the payment of his note.

We agree with the District Judge in his conclusion.

Judgment affirmed at appellant’s cost.

Rehearing refused.


source: Caselaw Access Project

license: Public Domain

text:
    No. 11,612.
    Mrs. Margaret Dauenhauer and Husband vs. Succession of Samuel Browne.
    The services for which compensation is claimed were rendered to an old man, wh was sielt and in need of special eare.
    He owned considerable property, hut was penurious.
    Although there was no contract for compensation, the law gives plaintiffs an action to recover a reasonable compensation for services rendered the deceased, in his lifetime, under the circumstances developed by the evidence in this case.
    PPEAL from the Oivil District Court for the Parish of Orleans. Bigktor, J.

      Henry P. Dart for Plaintiff, Appellee.

      G. V. Soniat for Defendant, Appellant.
   The opinion of the court was delivered by

Breaux, J.

Plaintiffs’ claim from the succession of Samuel Browne the sum of three thousand six hundred and fifty dollars, for personal services rendered during one year preceding his death. The plaintiffs are poor; the husband is a journeyman painter. They were his tenants, and under an agreement with them they gave him his board, lodging and washed his clothes, in consideration of the rental of the property they occupied as tenants. He was an old man; about one year before his death he became feeble, and frequently ill, and at times was physically incapable of taking care of himself. The plaintiff, Mrs. Dauenhauer, nursed him and attended to his wants in his helpless condition, and discharged menial services about his person.

He was a bachelor, had no kindred near him.

The inventory of his estate at his death amounted to more than sixty thousand dollars. The witnesses testify that he denied himself the comforts of life in his eagerness to accumulate money.

The suit was instituted against his executors, who, for answer, pleaded a general denial.

The case was tried by a jury, who found a verdict for the plaintiffs for twenty-eight hundred dollars.

The executors have appealed.

The plaintiffs sue on a quantum meruit, for the services rendered as they are not included in the terms of the contract to which we have referred supra. He received plaintiffs’ care, acknowledged that they were highly useful to him, but never fixed any compensation. The weight of the testimony makes it certain that she did render services for which she should be paid. They were known at the time. The evidence does not disclose any attempt on her part to recover for services to which she would not have had a right had she insisted upon payment prior to his death.

Her failure to present her claim to the deceased under the circumstances can not defeat her just claim from the succession. Gaines vs. Succession of Del Campo, 30 An. 245-246.

It remains for us to fix the amount of the compensation to be allowed the plaintiffs.

The learned judge of the District Court, in overruling the motion for a new trial presented by the defendants, expressed the opinion that the amount of the verdict was “ exorbitant.”

To avoid the delay and expense of another trial the motion was denied by him.

The verdict in so far as relates to the amount can not be given the consideration for which the plaintiffs contend. It is not supported by an unqualified opinion of the lower court. Moreover, it is not sustained by the evidence.

The following is applicable to the case at bar: “And for two other striking and many minor reasons, we do not feel authorized to adopt, as the measure of his remuneration, the large estimate made by the witnesses.

“ 1. The claimant might have insisted, which in all cases is the true course, on a precise and definite understanding with his employer. He being a man, not only not generous, but penurious, would in all probability have insisted on a small compensation, although payable only when their relations should terminate; and having the right to do we must consider his views as well as those of his agent.

“ In the next place, notwithstanding the judicious and successful administration of Fowler’s property, yet the agent was able to devote, all the time necessary to carry on the large mercantile business of his own house, which was greatly aided in its operations by the discounts of Fowler, although based upon the principle of interest.” Succession of Joseph Fowler, 7 An. 207-212. (Italics ours.)

The plaintiff did nob insist upon an understanding in regard to her compensation, and her time was not entirely taken up in rendering the services for which she claims payment.

In the Del Oampo case, ubi supra, the claimant washed and cooked for the defendant. She was near him night and day; the old man could not use his hands; she dressed and rendered him menial services, for which she was allowed two dollars and thirty cents a fiay. In the case at bar we think three dollars a day would be a fair compensation for a year’s services preceding the death of the late Mr. Browne.

It is therefore ordered, adjudged and decreed that the verdict of the jury and the judgment of the court be amended by reducing the amount allowed from twenty-eight hundred dollars to one thousand and ninety-five dollars ($1095) ; as amended the judgment is affirmed at appellees’ costs.


text:
    No. 11,627.
    Mrs. Martha E. Thompson vs. Mrs. Martha Baldwin et al.
    The plaintiff renounced her right as forced heir to one-third of her daughter’s succession.
    At the time her son-in-law promised, verbally, to transfer a tract of land to “some member of her family.”
    She sues as forced heir to recover one-third of her daughter’s succession, and treats her renunciation as void.

      Ij the renunciation is voidable all parties in interest must be made parties to the suit to annul the renunciation.
    PPEAL from the Oivil District Court for the Parish of Orleans. Rightor, J.

      Frank L. Richardson for Plaintiff, Appellant.

      Rice & Montgomery and Branch K. Miller for Defendants, Ap pellees.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff, mother of the late Gustavus A. Baldwin, alleges substantially that after the death of her daughter her son-in-law agreed, if she renounced her right in the estate of her daughter, he would return to her a tract of land in the county of Washington, State of Mississippi. She avers that he failed to comply with the agreement, and that in consequence she did not receive the consideration promised, and that in other respects the renunciation was illegal and invalid. The alleged renunciation was made separate and distinct from the agreement alleged, to transfer land.

An exception of no cause of action was interposed by the heirs of G. A. Baldwin. The said Baldwin died several years after the renunciation had been signed.

Subsequent to the filing of this exception plaintiff amended her petition.

She prays for judgment for such amount as will be shown as due after account rendered of the share of the community interest of her late daughter, in the estate of the late G. A. Baldwin/

The exception was overruled.

In their answer the defendants admit that the succession of plaintiff’s daughter, Mrs. Mattie Thompson, wife of Baldwin, was opened, and that as heirs of the latter they have accepted the succession, and are in possession of the property. They specially aver that it is movable. They also aver that the renunciation binds plaintiff.

On the trial the defendant reiterated that plaintiff had no right of action; the pleadings showing, the defendants aver, that if any right existed, it was not plaintiff’s, who reserved none, but in third persons in whose favor she stipulated, and that they, if any one, were parties in interest who could sue; that the resolutory condition has no application, and that even if the law regarding the resolutory condition applied, the Civil Oode provides for an action to annul, and astly that to prove the consideration would involve proof by paro of a sale or promise of sale.

The objection was sustained and the suit dismissed. Plaintiff reserved a bill of exception to the court’s ruling.

Mrs. Thompson renounced all rights to the succession of her daughter.

No question is raised regarding the form of the renunciation. As an original proposition a renunciation of a succession is a manifestation of will and consent to relinquish all rights to the succession renounced.

Our Oode is silent regarding causes of nullity of renunciation; we must therefore have recourse to those general principles applying to conventional obligations in cases of error, fraud and violence.

Causes which vitiate consent in matter of contracts may aiso yitiate the renunciation of a succession.

Error for instance, but to constitute error it must appear that the party acted in error.

Here error is not alleged, nor fraud or violence.

A renunciation may be gratuitous.

Consideration is not of the essence in a renunciation.

The renunciation upon its face'was valid, even without consideration.

The heirs of G. A. Baldwin, after the renunciation had been made, accepted the succession and were placed in possession. They hereby acquired certain rights and may have incurred responsibility.

Unless error is manifest, the person renouncing is bound by the act of renunciation.

The plaintiff urges that there was another consideration, to-wit: the transfer of land by her son-in-law, Baldwin, to “ some member of her family.”

She trusted to a verbal promise regarding title to certain land. At the time this agreement did not have the effect of divesting the renunciation of all reality. There was a renunciation. The renouncer had exercised her judgment and had given consent.

The plaintiff alleges “that the consideration of the said pretended renunciation was the verbal agreement that said Baldwin should return said land to some member of her family (not to herself as in the original petition alleged), and that said verbal agreement was of no validity, being a verbal agreement to transfer lands, thus making said renunciation to be without consideration.”

From these allegations we must conclude that it was a stipulation pour autruis. These third parties have an interest. If they remain quiescent we can not conceive that there remains a right in plaintiff to treat the renunciation as void.

Plaintiff has no such interest in this suit as can enable her to absolutely disregard her renunciation. Barron vs. Jacobs, 38 An. 370; Ashby vs. Ashby, 39 An. 106; Corral vs. Towboat, 37 An. 803.

The action is not in nullity of the renunciation, and if it were it would fail unless all parties in interest were before the court.

We think the judgment dismissing the suit was correct, and it is therefore affirmed at plaintiff’s costs, and right to sue is reserved to all persons concerned.

Rehearing refused.


author: Breaux, J. Miller, J.

text:
    No. 11,548.
    John Calder & Co. and D. R. Calder vs. Their Creditors.
    Motion to Dismiss tiie Appeal.
    The grounds are:
    Defectiveness and insufficiency of the clerk’s certificate.
    Diminution of the record of appeal.
    CLERK’S CERTIFICATE.
    An agreement had been made to bring up books in the original.
    The clerk’s certificate regarding these books was controlled by the agreement.
    DIMINUTION OF RECORD.
    Original documents not stamped were brought up by the clerk of a court in answer to the writ of certiorari issued to him to complete the record. They were brought up by him in the original and not stamped.
    As it occasions no delay and the law may be complied with (the case has not been called), time is allowed to affix needful stamps to the instruments of evidence. Motion to dismiss not allowed.
    On the Merits.
    ¿Entries in partnership books bind the partners, and on the issue whether immovable property has been acquired for the partnership, such entries are admissible. 2 Lindsley on Partnership, 537; Armistead and another vs. Spring, X Rob. 567.
    Whether the immovable is bought in the partnership name, or for it by one of the partners, they become joint owners, as the partnership can not own immovable property. C. C., Arts. 2825, 2836; 1 N. S. 295; 3 La. 496; 10 La. 420; 3 Rob. 256; 1 An. 434; 5 An. 532.
    Hence, being joint owners, one partner cannot dispose of the shares of his co-partner in such immovable; all must concur to make title, and hence a cession by one partner does not pass to the syndic the shares of his copartner in immovable property. Ibid.; 1 An. 484; 4 An. 56; 9 Rob. 372.
    But if the immovable is acquired for the partnership, each partner has the right in the appropriate proceeding to insist the property shall be applied to pay partnership debts, and, in the event of a cession by one of the partners, that right •passes to the syndic. Story on Partnership, Secs. 97, 98,360, 361; Civil Code, Art. .2823. Case vs. Beauregard, 99 U. S. 128.
    APPEAL from the Civil District Court for the Parish of Orleans. King, Jt

      Horace E. Upton and Henry L. Lazarus for Syndics, Appellees.

      Frank L. Richardson and Suthon <& Suthon for Peter Berger eí ais., Defendants in Rule, Appellants.
   ON Motion to Dismiss Appeal.

The opinion of the court was delivered by

Breaux, J.

From a judgment dismissing their demand, Peter Berger, Executor, et al. and Mrs. Emily P. Shields and her husband, William'Shields, have taken a devolutive appeal.

The syndics of John Oalder & Oo. and D. R. Oalder individually, •defendants and appellees, have moved to dismiss the appeal on the ¡grounds:

That the clerk’s certificate, made according to instructions of appellant, is defective and insufficient.

That material and important evidence for the defendant was not •copied in the transcript.

That the ledgers 6 and 4 of John Oalder & Co. have not been filed in original in this court.

After the motion to dismiss had been filed the appellant applied for a writ of certiorari to the clerk of the court to certify up the whole record in the case.

The clerk tendered his answer, alleging that he has complied with •the order.

In the event of an appeal an agreement was entered of record in the court a qua that the ledgers were to be brought up in the ■original.

The certificate required was properly made to yield to the agreement, for the clerk could not certify the books brought up in the ■original.

The appellants have, through counsel under oath, stated the •causes that prevented them from producing and lodging the books in the Appellate Court.

The books and documents are at this time before the court under a certiorari from this court.

“ When by subsequent order of court imperfections in a transcript .are cured, a pending motion to dismiss will be overruled as a matter of course.” Huyghe vs. Brinkman, 38 An. 837; Hughes vs. Murdock, 45 An. 935.

With reference to the documents not copied in the transcript, •being schedules or lists of property.

The defendants (although 'they were brought up by the clerk of •court as part of the record in answer to the writ of certiorari') urged that ib was proper on the part of the clerk not to include them in the transcript. They allege that while offered, the introduction, filing and stamping is lacking. The record discloses that the following question was propounded:

“ Will you examine this paper numbered 35,056, filed February 15, 1892, in case entitled John Calder & Co. and David R. Calder vs. Their Creditors, and state what this purports to be?”

To this question appellants objected. The court overruled the objection and admitted the document, to which ruling a bill of exception was reserved. Following this rule counsel for appellees offered “the schedule in the respite proceedings identified by the witness, and the schedule in the insolvency proceedings, which he has just identified, said documents being filed in suits Nos. 32,894 and 35,056.

The same objection was made as was offered to the admissibility of the documents just previously offered.

The ruling was the same and a bill was reserved.

The documents, the clerk’s statement of facts shows, were introduced and admitted in evidence.

They were as alleged not stamped.

. Though they, the appellees and defendants, should have had them stamped when they were offered; considering all the facts and circumstances in this case the court will permit the stamping at this time, as it will complete the record and as it does not occasion any delay in the hearing of the case on appeal.

The ease has not been submitted for decision. But the time within which appellees are authorized to stamp the documents is limited to three days from this date, otherwise they will not be considered as instruments of evidence before the court. W. S. Reddick vs. R. M. White, 46 An. 1198.

Appellees’ motion to dismiss the appeal is denied.

ON THE MERITS.

Miller, J.

The executors and heirs of John Oalder by their petition, filed in these proceedings, assert title to immovable property, charged to have been wrongfully included in the cession of David R. Calder to his creditors, and those of the firm of John Calder & Co. The syndics of the creditors, answering, aver the property, though bought in the name of John Calder, was purchased with the funds of the partnership of John Calder & Co., as such carried on their commercial books and belonged to the partnership. The judgment of the lower court was in favor of the syndics and comes here on the plaintiffs’ appeal. John Calder & Co., at and prior to 1876, was composed of John H. Calder, John Calder and David R. Calder, their respective interests being one-quarter, one-half and one-quarter. The partnership was renewed in 1880 to endure for five years, the interest of the partners remaining the same. John H. Calder died in 1884, before the expiration of the five years. The partnership was continued between the survivors, the interest of each being fixed at one-half each. This partnership was ended by the death ■of John Calder in 1885. D. R. Calder continued the business under the same firm ñamo. ■

Prior to the partnership formed in 1880, there was acquired in 1876 certain property on Peters street used by the firm, purchased in the name of John Calder. In 1881 there was acquired certain property on'Magazine street, and in 1888 the Bayou Sale plantation in St. Mary. These last purchases, like the first, were in the name ■of John Calder. The property embraced in these three purchases is that sued for by his executors and heirs. c'

David R. Calder in 1891 applied for a respite from the creditors of John Calder & Co. and his individual creditors. The respite was obtained, but proving of no service, in 1892 he made a cession to his creditors, as well as to the creditors of his late firm, John Calder & Co. In the respite and cession he included the immovable property involved in this suit, treating it as firm property, though acquired in the name of John Calder.

The plaintiffs rely on the title standing in the name of John Calder, and contend this title is conclusive. The defendants insist that the entries in the partnership books, and other testimony tending to show that the property was treated by the partners as firm property, was properly admitted, and establish the ownership of the firm.

We are met at the threshold of the case with the objection of the plaintiffs to the admissibility of the entries in the partnership books, and other testimony offered by defendants on the issue of title. The objection is based on the provisions of the Code that the authentic act conveying title makes full proof, and prohibiting parol ■testimony tending to contradict the act or to establish or affect the title to immovable property. Entries in the partnership books bind the partners; their admissibility can not be deemed to infringe on the dignity the law attaches to the authentic act, and manifestly are not to be viewed as parol proof. We therefore hold the entries admissible. In the same view, the declarations of the partners contained in the act of partnership of 1880, with respect to the Peters. street property, must have effect. For the purposes of our conclusion as to the title of the property, the objection under consideration needs no further discussion. 2 Lindley on Partnership, 537; Armistead vs. Spring, 1 Rob. 567.

With respect to the Peters street property acquired in 1876 by John Oalder, the entries in the ledgers are headed Warehouse, 99‘ Peters street, with a debit of. two thousand five hundred and fifteen dollars and seventy-one cents. It is in proof the firm used the property. The price paid for it was two thousand dollars. But, in addition to the significance of these entries, there is in evidence the-partnership agreement of 1880, accompanied with a statement of all the partnership property, in which the Peters street property is included, at the value corresponding with the debit in the ledgers.. The agreements by authentic act; refers to the partnership previously subsisting between the parties, John Oalder, John H. Oalder and David R. Oalder, and is signed by them. The interests in this, previous partnership was one-half in John and one-fourth each in. John H. and David R. Oalder. It is to be added that on the inventories of the estate of John H., 99 Peters street is mentioned as firm property, and not included in that of John. There can be but one conclusion: that, though standing in John Oalder’s name, the warehouse was firm property, i. e., acquired for it.

The evidence with regard to the Bayou Sale plantation is: that the firm held mortgage notes on the property; that John Oalder-purchased it in 1883, making a cash payment of five thousand dollars, and for the residue of the price assumed the notes held by his firm. Thereafter, an account was kept on the partnership books-headed Bayou Sale plantation, beginning with a. debit of the mortgage notes assumed by John Oalder. This account is continued with debits apparently for plantation supplies and expenditures; carries, no credits except a small item and closes with a large balance against the plantation. In the applications for a respite and for a surrender by David R. Oalder, he included this plantation as firm property. These applications were the first, more than five, and the last more than seven years after John Calder’s death. We find in the record the testimony that the firm paid taxes on the property, and, subject to plaintiff’s objection, there is testimony as to the appreciation of the title manifested by the acts and conduct of the partners. This testimony adds but little if any to the light afforded by the written title and the entries. In the book-keeper’s testimony occurs the statements substantially: that the firm paid taxes, insurance and other expenses of the plantation not charged to the account of John Oalder but to the plantation; that the plantation figures as a debtor to the firm; does not know whether it can be called an asset; that nothing he thinks, on the books indicates the plantation was the property of John Oalder, and the witness states, he could not state how the property was treated by the members of the firm; that the question never came up until the inventory of John H. Oalder, and with that witness had nothing to do. On the same line witness testifies on cross-examination : had heard John Oalder claim the plantation as his; he always so considered it; that goods were always shipped to John Oalder for Bayou Sale plantation, and he makes other statements carrying that significance. D. R. Oalder, though he twice placed the plantation on his schedules as firm property, yet testifies the plantation was that of John Oalder, and was so treated, and it is proper to add the witness states, in substance, he was troubled in mind and gave the schedules little attention. It is quite manifest the parol proof, if entitled to any consideration on an issue of title to immovable property, is not of a character to exert any material influence. It seems to us, it would , be straining the significance of the entries to hold they show this property was acquired for the firm. The account was kept in the name of the plantation, just as any other account might be kept of the firm with plantation owners. The mortgage notes were debited, the supplies 'and other expenditures were charged, and we gather from the testimony there were practically no revenues to be credited. One partner may well acquire during the existence of the partnership, separate property. Here, John Oalder made a large cash payment and there is no proof it was made with partnership funds. He assumed the payment of the mortgage notes, thus becoming a debtor to the firm, and accordingly the plantation account was charged with the noi es. Where partnership entries are relied on to overthrow the title of the partner to immovable property acquired by him, the entries should clearly import the acquisition was for the partnership. We think the proof is short of that requirement, and that the relation shown by the record is that John Oalder was the owner of the property, and the debtor of his firm on the plantation account. That debt and not the plantation was the asset of the firm.

The Magazine street property was acquired in 1881 in the name of John Calder. There is the testimony the firm paid the taxes; that they were not charged to John Oalder’s individual account; that the taxes figure in the expense account. The witness, asked to refer to the entries, answers, the firm paid no taxes for five or six years, and that the firm paid the taxes when they were paid. Whethex^any taxes were paid or charges for their payment were made in John Oalder’s lifetime does not appear. The property was, at all times after his deathin 1885, in the control of D. R. Oalder. No entry on the partnership books is produced with reference t o this property. It appears that on the inventory of John Oalder’s succession, this property was not included. The inventory was taken under the direction of D. R. Oalder alone, one of the executors, and was not signed by the co-executor, the widow of John Oalder. It must be manifest, the record discloses no basis whatever to hold the Magazine'property to be that of the partnership. We have detailed the parol proof, notto give it the character of testimony admissible to atfect the legal title, but to show the slender basis it would afford if admissible. In our view the title of John Oalder must stand.

It appears that the widow of John Oalder, one of the plaintiffs in this suit, in her capacity of his executor, signed the application of David R. Oalder for a respite, and his schedule embraced as firm, property all the immovable property standing in the name of John Oalder. Her testimony is she was told by David R. Oalder it was her interest to do so, and we gather from her testimony she had no appreciation that her signature implied any liability or relinquishing any right. In our view, her action has no bearing on the issue here. As to the schedules of David R. Oalder, filed years after the death of John Oalder, they can have no tendency to affect the widow and heirs.

The Peters street property, under the evidence shown to have been acquired during the partnership of John Calder & Co., first subsisting ending in 1880, it remains to consider the effect of that acquisition and the control the syndics of David E. Oalder can exert with respect to that property. Under our law a partnership can not own immovable property. When acquired in the partnership name, or when by competent proof it is shown to have been purchased in the name of one of the partners for the partnership, they become joint owners. The interest of the partners in that partnership was,, as already stated, one-half in John Calder and one-quarter each to John H. and David R. Calder. The result is that they became the owners in these proportions of that property. It follows, too, that no one of these partners could convey more than his interest. All must concur to sell the property, and no cession of one of the partners could have any effect on the shares of his copartners. It is our conclusion, therefore, that the cession of David R. Calder was without effect on the one-half interest of John Calder. Neither D. R. Calder or his syndic could pass any title to that half. The syndic by the cession can control and dispose of the one-fourth only of the Peters street property. C. C., Arts. 2825, 2836; Richardson vs. Packwood, 1 N. S. 295; Skillman vs. Purnell, 3 La. 496; Baca vs. Ramos, 10 La. 420; Thomas vs. Scott, 3 Rob. 256; Lee vs. Ferguson, 5 An. 552; Weld vs. Peters, 1 An. 434.

In equity, real estate acquired for the partnership is liable for the partnership debts. This principle has no place in the discussion as to the effect of the cession. That cession made by the partner in a commercial partnership passes the property of the partner, and the better opinion would seem to be, it passes the movable property of the partnership when made by the partner to pay partnership debts. Tyler and another vs. Their Creditors, 9 Rob. 372. But under our law, immovables bought for the partnership must be deemed owned jointly by the individual partners, and can not be regarded as owned by the partnership. Still, the partners have the right to require the application of such immovables to pay the partnership debts. That equity does not spring from the cession. With or without the cession it exists. It is not a lien of partnership creditors in their own right, but a lien in their favor through the equity of the partners. The partnership during which the Peters street property was acquired ended in 1880, fourteen years since. David R. Calder can not hold the half interest of John Calder for debts created since that dissolution in the course of business conducted by the survivors under the name of a firm dissolved years since. But if any debts of the partnership prior to 1880 still subsist, it is equitable that the right of the syndic be reserved in the appropriate form of proceeding to subject the Peters street property to satisfaction for such debts. Story on Partnership, Secs. 97, 98, 360, 361; C. C., Art. 2823; Case vs. Beauregard, 99 U. S. 126; McKee vs. Griffin, 23 An. 417. .

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed; that the plaintiffs in this suit be and they are hereby recognized and decreed to be the owners of one undivided half of the property No. 99 Peters street, as the same is set forth in the petition, and act referred to in the petition, reserving the right of the syndic to subject said property to the satisfaction of the debts, if any, of the partnership of John Oalder & Co., subsisting prior to 1880. It is further ordered and decreed that plaintiffs be and they are hereby decreed to be the owners of the Magazine street property and Bayou Sale plantation, as the same are set forth in the petition and acts of sale, and be put in possession thereof, and that defendants pay costs.

Rehearing refused.


author: McEnery, J.

text:
    No. 11,636.
    Mary Emily King vs. Paul L. Fourchy.
    An attorney at law with whom a deposit has been made for costs of suit is responsible in damages to his client if he permits the claim placed in his hands for suit to prescribe.
    A PPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      Omer Villeré for Plaintiff and Appellee.

      Albert Voorhies for Defendant, Appellant.
   The opinion of the court was delivered by

McEnery, J.

The testimony in the record convinces us of the following facts in this case: That the defendant was employed by the plaintiff to institute a suit for slander against one Salvadore Du-miglia; that a sum of thirty-five dollars was deposited with plaintiff for costs. That the defendant filed the petition in the suit, and deposited the necessary sum to cover the, costs for the filing of this petition; that he neglected to deposit the amount for service of citation, and through his neglect or inattention the demand of plaintiff against the defendant in the suit for slander became prescribed; that another attorney was employed to prosecute the suit, and the defendant on the trial pleaded the prescription of one year, and the plaintiff’s demand was dismissed; that the receipt offered in evidence by the defendant in this suit on the return of the money deposited by the plaintiff had no reference to, nor did it include the demand of the plaintiff against this defendant for damages for the neglect to deposit costs for the service of citation in the demand against the defendant in the action for slander; that the plaintiff in the slander suit had a good cause of action, and that had she obtained her judgment for a reasonable amount, the defendant had sufficient property to respond to the judgment.

On these facts the plaintiff, Mary Emily King, brought this suit to recover from the defendant, the attorney first employed by her to prosecute her suit for slander, damages for neglect to prosecute the same, by which prescription accrued, in the sum of five thousand dollars.

The case was tried by a jury. This jury heard all the evidence offered as to the slander and the ability of the defendant to pay the probable amount that would have been assessed had the suit been successfully prosecuted. The defendant is undoubtedly, on the facts stated, responsible for th6 prescription of the drmand, and is therefore responsible in damages. Thompson vs. Lobdell, 7 Rob. 369.

The jury awarded damages to the amount of two hundred dollars. We think the verdict was correct as to amount.

Rehearing refused.


author: Miller, J.

text:
    No. 11,667.
    William P. Nicholls vs. Mrs. Marie A. Bienvenue et als.
    In. a suit to dissolve the sale for non-payment of the price, brought by the transferee of the right of action, the defendant can not dispute plaintiff’s right on the ground that the board of directors of the bank, the unpaid vendor, did not authorize its president to make the transfer to plaintiff; no complaint of that character coming from the bank receivingtlie plaintiff’s money, the consideration for the transfer, and thus affirming it.

      The statement of facts by the judge granting the appeal reciting that a witness testified the tender was made as set forth in the petition, the petition containing the requisite allegation, is deemed, sufficient.
    In an action to dissolve the sale for non-payment of the price, it is no part of the plaintiff’s duty to provoke afamily meeting to advise whether or not, in the interest of the minors defendant, the tender by plaintiff of the price should be accepted; hence the judgment of plaintiff dissolving the sale will not be disturbed if such meeting was not called, even if such meeting was necessary.
    In confirming a default in such case no jury is necessary, Art. 313 of the Code of Practice not applying to such confirmation.
    When a statement of facts for an appeal is not applied for seasonably, in this case almost a year after the rendition of the judgment, when the memory of the judge naturally, as he states, has become indistinct, the court, if it does not dismiss the appeal because of deficiencies in the statement due to the delayed application, will, at least, construe the statement liberally, so as, if possible, to sustain the judgment. O. P., Arts. 602, 603; 31 An. 856; 10 An. 180; 7 Rob. 179.
    APPEAL from the Twentieth District Court, Parish of Assumption. Guión, J.

      Paúl Léohe and Beattie & Beattie for Plaintiff, Appellee.

      B. N. Sims for Defendants, Appellants.
   The opinion of the court was delivered by

Miller, J.

The defendant appeals from the judgment of the lower court dissolving, for non-payment of part of the price, the sale of a plantation, and for revenues of the property, less the cash payment, taxes, etc., as expressed in the judgment. The judgment was by default rendered on the 2d October, 1893. The appeal was taken in September, 1894.

The assignment of errors in this court is, that there was no authority conferred by the directors of the Citizens Bank on its president to transfer to plaintiff the right to sue for the dissolution of the sale of the plantation involved in this controversy; second, there was no allegation or proof of tender by plaintiff of the notes representing the unpaid price of the cash payment on account of the price paid by the purchaser; third, that if any tender, there was no authority on the part of the tutor of the minors to refuse it without the advice of a family meeting and the authority of the court; fourth, that the action being one of rescission of a contract, the default should have been confirmed on proof administered, and before a jury in pursuance of their verdict.

It appears from the record that the Citizens Bank sold the plantation in 1883 to F. A. Bienvenue, the cash payment being four thousand five hundred dollars, and notes given for the residue of the price aggregating ten thousand five hundred dollars, payable in one, two, three, four and five years. In 1893 the notes, save some interest, being wholly unpaid, the president of the bank transferred the notes to plaintiff, specially subrogating him to the bank’s right to sue for dissolution of the sale. The first assignment denies the right of the president to make this transfer and give this subrogation, no authority of the board of directors being shown.

The president of the bank presumed to be competent for acts of administration, the collection of the notes of the bank, whether by him or any other officer, is to be deemed authorized. In this case the subrogation to the action of the bank for the dissolution of the sale was an incident to the transfer of the notes given for the price of the plantation, and the transfer of the right of action to dissolve was to realize on the notes. It is enough on this branch of the case that under the transfer and subrogation the bank received fourteen thousand dollars on the notes. The bank could not question the subrogation under which it received the plaintiff’s money, and the widow and heirs of the maker of the notes can not deny that which the bank itself could not dispute.

The second assignment is, that no tender was alleged or proved. The suit was on the notes representing the whole of the unpaid price, and the petition alleged the tender of the price paid. The statement of facts is, that the judge remembers a witness testified to the tender, and that another witness testified to the value of improvements. We think this statement sufficient as to the tender.

The third assignment is, that a family meeting was essential to authorize the tutor of the minor heir, one of defendants, to accept or refuse the tender. All that is required of the plaintiff seeking to dissolve the sale made by him is to make the tender to the proper parties. It is no part of his business to call a family meeting in the interest, real or supposed, of the minor heir of ihe purchaser, nor can his tender or right to dissolve be in the least affected if such meeting is not called.

In reference to the fourth assignment, it is enough to say that in our view there was no necessity to call a jury on the issue as to the dissolution of the sale. C. P., Art. 313.

If there was any deficiency In the statement of facts it may well be doubted whether the plaintiff should for that reason be deprived of his judgment by the remanding of the cause. The law gives to the party the right of appeal on a statement of facts, when the testimony has not been taken down. We think this implies a seasonable application when it is in the power of the judge to give that statement. The application should be, primarily, made to the opposite counsel. In this case the judge of the lower court is applied to for the statement, nearly a year after the judgment was rendered. Naturally, the testimony of the witnesses is not remembered with particularity, as he states. We hold the statement sufficient to meet the assignments in this case, but if the statement was deficient we would not feel authorized to disturb a judgment because the appellant had not seen fit to ask for a statement of facts until the memory of the judge had become indistinct. See Code of Practice, Arts. 602, 603; Henri vs. Francincues, 31 An. 856; Lucas vs. Bell, 10 An. 180; Landry vs. College, 7 Rob. 179.

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

Rehearing refused.

The Chief Justice recuses himself in this ease.


author: Nicholls, O. J.

text:
    No. 11,743.
    State of Louisiana ex rel. P. H. Legendre et al. vs. The Clerk of the Civil District Court for the Parish of Orleans.
    The stenographer in the Civil District Court is an officer of the court. Sec. 1, Act No. 91 of 1876.
    Sec. 1, Act No. 8 of 1894 requires that the original testimony taken by tlie stenographer shall be embodied in the transcript of appeal.
    A rule of the District Court, which requires “leave of the court” to be obtained, before sending up original papers to the Supreme Court, yields to the statute. The “ order of the law ” takes the place of “ the leave of the coxtA't.”
    y^PPLICATIOfST for a Writ of Mandamus.

      A. J. Lewis for Relators.

      Armand G. Romain for Respondent.
   The opinion of the court was delivered by •

Nicholls, O. J.

Relators allege that they are appellants from a judgment rendered against them on January 2, 1895, and signed January 14, 1895, in favor of plaintiff, in the matter entitled Emile Muller vs. P. H. Legendre et als., No. 43,839 of the docket of the Civil District Court for the parish of Orleans. That the appeal which they have taken has been made returnable to this court on the third Monday of February, 1895. That the testimony taken in said case was taken down by a stenographer on October 17, 18 and 19, 1894, and that the original copy of his extended notes was duly filed in December, 1894, and is now in the custody and keeping of the clerk of the said Civil District Court. That Act No. 3 of the General Assembly of this State, approved June 4, 1894, entitled “ An act to provide for the saving of costs to litigants in cases appealable to the Supreme Court, and repealing all laws in conflict therewith,” makes it the duty of the clerk in preparing the transcript of appeal in any ease where the appeal lies to this court in which the testimony has been taken down by a stenographer, and the original copy of said testimony has been filed, to embody in the transcript of appeal the said original copy of said testimony. That for this testimony the clerk shall make no further charge. They aver that they have made due demand upon said clerk to deliver to them the transcript of appeal in said cause, made according to law, and particularly in conformity with the provisions of said Act No. 3, approved June 4,1894, and that said clerk refuses to comply therewith. That said action of the clerk operates a great hardship to relators and causes them a denial of justice against which they are without remedy other than that of invoking the powers of this court, which is now vested with sole and exclusive jurisdiction of said cause, as said lower court has granted relators an appeal from said judgment to this court, and re-lators have filed with the clerk the requisite bond of appeal; all of which was done prior to said demand being made on the clerk to comply with the law and to deliver to relators a transcript of appeal in accordance therewith, and his refusal to do so. That their only remedy is a writ of mandamus to compel him to perform that duty. They pray for a writ of mandamus ordering the clerk to embody in the transcript of appeal to this court the original copy of all testimony taken down by the stenographer in the suit of Emile Muller vs. P. H. Legendre, No. 43,389, Civil District Court for the parish of Orleans, and for which testimony said clerk shall make no further ■charge, or else that he show cause to the contrary. They further •pray for general relief and for an extension of time within which to file said transcript of appeal. The District Clerk having by this court been ordered to show cause why a writ of mandamus shall not issue as prayed for, assigns for cause:

“ That an appeal-was taken by relators from a judgment rendered against them in proceedings No. 43,389 of the docket of the Civil District Court, as recited by them in their petition.

££ That a demand was made upon him to furnish without charge a ■copy of the entire testimony filed in the original record of the said cause.

“ That said demand was refused and not complied with for the following reasons:

££ 1. That the act known as Act No. 3 of the session of 1894, invoked by relators, specially states and provides 1 that in all cases in ■the courts of this State wherein an appeal lies to the Supreme ■Court of this State and where the testimony is taken down by a •stenographer, that the stenographer, in reducing his notes to writing, shall make a duplicate copy of said testimony, without charge, the original of which, in case of appeal, shall be embodied in the transcript, while the duplicate copy of said testimony shall remain in the record of the case in the lower court.’ Vide Act 3 of 1894.

££ 2. That in the record No. 43,839, herein referred to, only one of ■said copies of the testimony taken down by the stenographer was •filed.

££3. That in accordance with the rules adopted by the Civil District Court sitting en bane £ neither the original testimony taken in a •cause nor the original documents offered in evidence therein shall be incorporated in or annexed to transcripts of appeal to the Supreme Court, without leave of the court first obtained, and without replacing said testimony and documents by copies certified by the clerk.’ Vide amendment to Sec. 7, Rule 21, June 28, 1893.

“That it was the duty of the relators to see that the stenographer furnished two copies without- charge, and that these two copies so furnished were filed in evidence in the record below. That it was not the clerk’s duty and office to see that records be completed by parties or persons over whom he has no supervision or control.” For these reasons he prayed that the application for a mandamus be •denied and dismissed.

We are of the opinion that the relator is entitled to the mandamus applied for.

By Sec. 1 of Act No. 3 of 1894, itis enacted that in all cases appeal-able to this court “the stenographer in reducing his notes to writing shall make a duplicate copy of said testimony, without charge, the original of which in case of appeal to the Supreme Court shall be embodied in the transcript, while the duplicate copy of said testimony shall remain in the record of the case in the lower court, nor shall the clerk of the court be allowed to charge for the testimony so embodied in the transcript.”

We are informed by the District Clerk in his answer that there is now on file in the record of the case No. 43,839 on the docket of the Civil District Court the testimony taken down in the cause by the stenographer, reduced to writing from his notes, but that the stenographer has failed to comply with the requirements of the law, in that the testimony has not been made out in duplicate; also that he (the clerk) is not justified in embodying the notes, actually furnished by reason of a rule of the District Court, which prohibits the sending up to the Supreme Court the originals of papers which have been filed in the District Court without leave of coux*t first obtained, and without the replacing of the said documents by copies certified by the clerk.

The reasons assigned do not justify the clerk’s course. If the stenographer has failed, as he states, to transcribe the testimony in duplicate, as he was legally required to do, all that was required was, that the clerk should report that fact to the District Judge. The stenographer is an officer of the court (Sec. 1 of Act No. 94 of 1876), and he would unquestionably comply with any orders of the court in respect to furnishing a duplicate. The testimony in the case is now on file in the cause evidenced by a paper, which has to be taken and considered as the “original” referred to by the law. This “original” is the document which is directed to be embodied in the transcript, and there is no reason why the requirements of the statute should not be complied with. The missing paper is not the original, but the copy, and this copy can be obtained, either from the stenographer, or it can be made out by the clerk himself, and the same be retained as part of the record should he fear to violate the rule he mentions.

The “ leave of court ” which the rule requires to be obtained applies to papers and documents other than the testimony taken down by the stenographer. The District Court would be powerless, in view of the statute, to withhold this particular document or paper from the transcript, and therefore its permission to embody it therein is not needed. The “ order of the law ” takes the place of “the leave of the court.”

Relator has applied for an extension of the time at which the transcript shall be filed. In view of the clerk’s refusal to perform an act specifically required of him in the making out of the transcript, we think he is entitled to the delay he asks. Succession of Jacobs, 5 Robinson, 270.

Por the reasons herein assigned it is ordered that the clerk of the Civil District Oourt for the parish of Orleans do embody in the transcript of the appeal to this court from the judgment, in the matter of the suit No. 43,839 of the docket of that court, the original paper furnished by the stenographer in that case, containing the testimony taken therein reduced to writing by the stenographer from his notes and filed in the said cause, and forthwith deliver the transcript with the said testimony therein embodied to the relator on his demand according to law, and that a writ of mandamus issue accordingly. It is further ordered that appellant, in the suit No. 43,839, be granted an extension of time within which to file the transcript in the said cause until February 27, 1895.


text:
    No. 11,734.
    The State of Louisiana vs. Robert Holland et al.
    The District Judge having, in a criminal case, rendered judgments upon the ap pearance bonds of the accused, which by their terms were not final, but provisional judgments, subject to re-examination and recall, and having subsequently set these judgmen s aside on rule, the orders of the court, setting them aside, and setting at large for future examination and determination ad questions touching the rights of parties upon and under the bonds, are not such judgments or orders as are appealable to the Supreme Court.
    APPEAL from the Seventh Judicial District Court, Parish of East Carroll. Montgomery, J.

      M. J. Cunningham, Attorney General, and Joseph,E.Ransdell, District Attorney, for Plaintiff and Appellant.

      Charles S. Wyly for Defendant and Appellee.
   The opinion of the court was delivered by

Nicholls, O. J.

In January, 1894, an indictment was found in the District Court for East Carroll parish, charging Lynmore Brown, Paul Gardham, Eddie Belden and Robert; Holland with shooting with intent to commit murder.

In the minutes of that court of January 11, 1895, we find the following entry:

State vs. Lynmore Brown et al. ) No. 210.

The accused, Lynmore Brown, Eddie Belden, Paul Gardham, and the sureties on their appearance bond, were called at the door of thé court house, to come into court and answer to the charge of shooting with intent to murder, and failing to do so, the sureties on their appearance bond were called on to produce the bodies of said accused, and failing to do so, it was ordered that there be judgment nisi against the principal and surety for the full amount of the appearance bond.

On the 18th of January, 1895, the three parties menoioned in this entry, and their sureties, moved to set aside the judgment “nisi,” urging that the parties were not called on at the court house door, as required by law: that ifrthey were ever called at all, it was at the door of the Stewart storehouse, which was at least five hundred yards from the court house.

On the same day Robert Holland (one of the parties indicted as stated) and his sureties moved “to set aside the pretended judgment “ nisi.” on the ground that it was physically impossible for him to have appeared at the time fixed, as he was a material witness in a murder case before the District Court for West Oarroll parish, then in session; that he had been arrested and was then held as a witness by that court. He further claimed that he had never been called at the court house door, but if called at all, it was at the door of the said Stewart storehouse.

On the same day (January 18, 1895), Brown, Belden and Gardham were arraigned, pleaded not guilty, and asked for trial by jury, and thereupon the court ordered that “ the judgment nisi, as to them, be set aside. To this action the District Attorney excepted, and tendered a bill of exceptions.

At a later hour of the same day Robert Holland appeared in court (after the jury had been discharged), was arraigned, pleaded not guilty, asked for trial by jury and moved again for the setting aside of the judgment nisi. The court ordered it to be set aside, and to this action of the court the District Attorney excepted and tendered’ a bill of exceptions.

On motion of the District Attorney “ appeals were granted to the State from the orders setting aside the judgment nisi against said parties.”

Appellees have moved to dismiss the appeal on the ground (1) that the order is not a final judgment or an interlocutory order causing the State irreparable injury, and. it is not appealable, the State’s right to further proceedings being unaffected; (2) that said order theoretically and practically is one granting a new trial which is not appealable.

The State vs. Cole, 39 An. 938, and State vs. Wilkins, Jr., 37 An. 62, are relied upon in support of the first position, and State vs. Cole and Wharton’s Criminal Practice, 7th Edition, paragraphs 3391, 3394a, in support of the second.

We do not find in the record any of the appearance bonds referred to in the pleadings, orders of court and briefs; neither do we find any “ judgment nisi ” against Holland and his sureties. The transcript is very carelessly made up.

No appeal was taken by the State from the “judgments nisi” themselves.

The object of the appeal is to have the orders “setting them aside,” be themselves set aside, and to have matters restored to the situation existing prior to these orders being rendered.

Were we to take jurisdiction in the matter and render the judgment which the State seeks, it would reinstate the “ judgments nisi ” against the parties and their sureties — nothing more. We could not alter the judgments themselves and convert them into absolute final judgments.

We could not be called upon in this appeal to review and declare error the action of the District Judge in not following, in respect to the appearance bonds, the provisions of Sec. 1032 of the Revised Statutes, but going back to the course of proceedings which existed anterior to 183Y, and rendering preliminary judgments of forfeiture, or, as they have been styled, judgments nisi. For the purposes of our present actions and conclusions we have to take the orders of the District Judge, not as perhaps they should have been, but as they are. As they are they are mere preliminary judgments of forfeiture, not final judgments.

In State vs. Toups, 44 An. 899, we alluded to changes of the law in respect to the forfeiture of appearance bonds, and calling, attention to the case of the State vs. Frith, 14 La. 191, decided in 1838, we said:

“The law in force at that date provided that when a party was regularly called upon his recognizance and failed to appear, a judgment nisi, or preliminary decree of forfeiture, should be entered up in the criminal case, and in order that same be made final and exi-gible a rule must be taken upon the defaulting parties to show cause why a final judgment should not be entered up.” But the law of 183Y so amended prior statutes in reference to recovery of the amount of bonds and recognizances in criminal matters as to authorize the courts having cognizance of such cases upon the failure of the parties to respond when called upon “ to forthwith enter up judgment against both principal and securities in solido for the full amount of the bond, etc. (Sec. 1, Act No. 104 of 1837). This statute was reenacted in 1855, and has since been embodied in the Revised Statutes under the title of ‘ Criminal Proceedings,’ and it is the law of to-day. See. 1032, Revised Statutes.”

The District Court, by its “judgments nisi," evidently intended to leave open for possibility of reconsideration the question of the liability of the parties accused and their sureties upon the bonds, and to extend to them an opportunity, before judgments should be made final, to show cause to the contrary. There was no direct reservation in favor of the parties in the judgments, but that was their clear import. In asking to have the judgments set aside, the parties availed themselves of a right which the court intended to reserve to them. The power and authority of the court, under the law, to make the reservation is not before us. In insisting that the provisional orders should be kept in force, instead of being set aside, either on appplication of parties or ex proprio motu, the State, for the purposes of this case, affirms the power. The power to make the provisional judgments being conceded, the power to rescind them follows, for interlocutory or provisional orders in their nature are subject to the control of the court. We could not, by any decree which we might render in this cause, convert judgments which on their face are provisional into final ones. As the judgments stood before they were set aside they were not susceptible of execution.

To make them susceptible of execution further proceedings would have to be taken contradictorily with the defendants. As they now stand no mere lapse of time or ex parte subsequent decree would make them absolute. On contradictory proceedings being taken the parties to the bonds would undoubtedly be entitled to be heard and to show cause.

The case is argued before us from the standpoint of the serious blow to the administration of justice which would flow from permitting District Courts to set aside judgments of forfeiture of bonds when once rendered unless and until the parties accused should have “appeared, been tried, convicted, and punished or been acquitted.” What is said may be true when final judgments have been in fact rendered, but where, as in this case, provisional judgments have been rendered forcedly entitling at some future stage of the proceedings the parties to have a day in court, the injurious results are not so apparent.

In this case the objections urged were directed exclusively against the proceedings which led up to the forfeiture of the bonds, and did not involve any question as to the validity of the bonds themselves, or raise any question as to eventual liability under them. If in the proceedings the legal requirements were not followed, it appears to us that the sooner that fact should appear and be corrected the better. These, however, are considerations foreign to the issue before us.

The District Oourt having rendered judgments of forfeiture of the bonds which were not final, but provisional judgments subject to recall, the orders of the court setting them aside, and setting at large for future examination and determination all questions touching the rights and obligations of parties upon and under the bonds, are not such judgments or orders as in a criminal case are appealable to this court. The appeals taken herein are therefore dismissed.


author: Nicholls, C. J.

text:
    No. 11,711.
    George Jurgens vs. G. B. Ittmann et al.
    Where, after a commercial partnership (created jby ■written articles of parfcner-sh'p for a fixed time) has expired by limitation, the business is continued for years orecisely as before, such conduct evidences reciprocal consent to the creation and the creation of a “partnership” between the parties, and the partners are bound interse and to third persons as if articles had been executed, and the rules governing “ partnership at will” control as to the dissolution of the partnership. The partnership is not one resting for its existence from day to day by force of reiterated affirmative daily consent, but is a continuing partnership, subject to termination only after notice, and under the rules of law governing the dissolution of partnerships. Until formally or legally dissolved it continues.
    A partnership, even at will, does not, by the weakening of the mental faculties of one of its members, become ipso facto, and, prior to interdiction, dissolved even between the partners, and still less as to the-customers of the firm. Some affirmative step has to be taken to bring about a dissolution, and the customers of the firm are entitled tonotice.
    It is no more the duty of the customers of a partnership at will to keep advised at their peril as to the mental condition of all the members of a firm than it is for those of a partpership with a fixed period of life. They have the same right . in one case as in the other, to assume, until notified to the contrary-by the parties in interest, that the partnership continues.
    There is no necessity for the consent of all the members of a firm to partnership contracts. The partnership being distinct from the individuals who compose it, the consent of any one of the partners is the consent of the firm. A partnership contract, made by one of thepartnersof sound mind, is not affected by weakness of mind of the other partner, especially where the other contracting party is ignorant of the latter fact.
    If the interest of one of two partners is jeopardized by the gradual impairment of his mental faculties, his presumptive heirs have sufficient legal interest to take the steps necessary for his protection.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      W. S. Benedict and H. O. Cage for Plaintiff, Appellee.

      James J. McLaughlin for Defendant, Appellant.
   The opinion of the court was delivered by

Nicholls, C. J.

Plaintiff alleges that the commercial firm of G. B. Ittmann and Jacob Ittmann and the succession of G. B. Ittmann are indebted to him in the sum of two thousand and thirty-one dollars and fifty-six cents, with legal interest from judicial demand, and he prays for judgment against them in solido for that amount.

The demand is based upon the allegation that the commercial firm of G. B. Ittmann was domiciled and doing business in New Orleans from 1881 down to the time it was dissolved by the interdiction of George B. Ittmann in the summer of 1893, and during that time it was composed of Jacob Ittmann and George B. Ittmann.

That plaintiff sold and delivered to said firm goods, wares and merchandise at the dates, in the quantities and descriptions and at the prices set forth in an itemized statement and bill annexed to the petition, subject to certain credits, .which, having been made, left as still due the amount sued for. That since the dissolution of the firm George B. Ittmann had died and his succession was represented by his testamentary executrix.

By the bill annexed it appears that the sales comprised in the statement began on January 19, 1892, and closed on the 23d of May, 1893.

The testamentary executrix filed an answer, pleading, after the general issue, that during the whole period covered by the dates of the alleged indebtedness of the defendant to plaintiff the said defendant (George B. Ittmann) was notoriously insane to the knowledge of the plaintiff and his agents and was incapable of contracting or of binding himself in any manner whatsoever. That said notorious insanity was patent to all coming in contact with him, and was of such nature that no one dealing with him could be deceived as to his condition. That said insanity was continuous from the month of October, 1892, until his interdiction.

That said insanity was the actual cause of his interdiction by the Civil District Court for the parish of Orleans by judgment pronounced July 12, 1893.

That co-defendant, Jacob Ittmann, had exclusive charge of the business with which the said alleged indebtedness is claimed to have arisen, and that George B. Ittmann was without capacity to bind himself in connection therewith, and that he was not chargeable therewith, neither in his succession to be held. The defendant, in view of the premises, prayed that the suit, in so far as it relates to the succession of George B. Ittmann, be dismissed, and plaintiff’s demand rejected.

The District Court rendered judgment in favor of the plaintiff against the commercial firm of G. B. Ittmann and Jacob Ittmann,. and the succession of George B. Ittmann, in solido, for the sum of two thousand and thirty-one dollars and fifty cents, with legal interest from January 9, 1894, until paid.

The testamentary executrix of the succession of George B. Ittmann has appealed.

We find in the transcript the following agreement:

“ It is agreed between counsel that the only issue in this cause is the notorious insanity vel non of George B. Ittmann and the claim made that his succession is not liable for the goods sold by reason thereof. The other issues are taken out of controversy by the admissions that the partnership existed as charged; that the goods were sold and delivered to the firm as charged; that the prices were just and reasonable; that the goods were used and consumed in the business of the firm, and that the price thereof has never been . paid. * * *

(Signed) “ W. S. Benedict,

11H. 0. Cage,

Attorneys for Plaintiff

* * sM * * :{; *

“Without waiving any legal deductions from the evidence adduced, above is agreed to.

(Signed) “James J. McLaughlin,

Attorney for Succession of George B. Ittmann.

The meaning of the reservation made by the attorney of the succession of Ittmann is explained by the position taken by him; that the commercial partnership of “ G. B. Ittman ” is, so far as it was based on articles of partnership, terminated and expired in 1882, and from that time forward it existed only from day to day by consent. That being dependent upon its existence for consent, it necessarily could not endure beyond the time when the parties to it could consent to its continuance. That, therefore, as soon as either .partner became incapable of consenting to its continuance the partnership ended ipso facto upon the other party being informed of his partner’s, incapacity. Counsel cite in support of this proposition a citation' from the American and English Encyclopedia of Law, Vol. 17, pages 1102 and 1103, to the effect that “ the permanent insanity of a partner is a ground for decreeing a dissolution ” * * * and “ if it is a partnership at will * * * the date of notice is the date of dissolution.”

On reference to the volume cited, we find Mellersh vs. Keen, 27 Beav. 236; Robertson vs. Lockie, 15 Sim. 285; 10 Jur. 533, quoted as the authorities in support of the statement made. We have been unable to And the authorities themselves, but the citation itself does not declare that a partnership at will ends ipso facto as contended for by counsel by the insanity of one of the partners, but refers to a notice to be given. This notice evidently must have conveyed the information that from that time forward the partnership would be held to be terminated.

We think the defendant is mistaken in making a continuance of the relations between the Ittmanns dependent upon their consent from day to day to such continuance, and in making them terminate ipso facto on any particular day, when such consent should not have been also aAirmatively given or legally inferred to have been given on such particular day.

We are of the opinion that the course of conduct pursued for many years between the parties evidences a reciprocal consent to the creation and the actual creation of a partnership between them. True, no writing was passed showing its precise terms or Axing any deAnite time for its duration, but a “ partnership” was created and existed none the less, and the parties were bound inter se and to third persons as if such writing had been executed and the rules governing partnerships at will would control. The “partnership” was one not resting on consent from day to day, and by force of such daily reiterated consent, but a continuing partnership subject to termination only after notice and under the rules of law relating to the dissolution of partnerships. Until formally or legally dissolved it continued as a partnership. Alba vs. Moriarty, 36 An. 680.

It is not alleged that any notice has ever been given either by the curator of George B. Ittmann, his presumptive heir, or his testamentary executrix, to Jacob Ittmann, or by the latter to the curator, executrix or heir, or by either to the public generally or the customers of the Arm. Matters were permitted by all parties in interest to follow the old course. Purchases were made and bills were paid as they always were, and no one was placed upon his guard. It is not claimed that the sales which form the basis of the account sued on were effected by George Ittmann, a man of weakened mind, and that they are open in any way to objections as to fairness or full consideration. On the contrary, defendant asserts that the business was conducted exclusively by Jacob Ittmann. That the prices charged were what the goods furnished were justly and reasonably worth, and that they were used in the business. The case comes to us freed from all complaint of fraud, deceit, overreaching or injury to George B. Ittmann. We think it very clear that if the business conducted at the “ Jewel of the South,” in the interval between the time when it is claimed that George B. Ittmann became so mentally incapacitated as to render him incapable of entering into a contract, and the period of his interdiction was prosperous — and we have no reason to believe that it was not — the succession of George B. Ittmann is entitled to share in the profits, for Jacob Ittmann is in no position to contest that right. His status as a partner has been fixed. Neither the curator appointed to represent the interdict during his life, nor his presumptive heir, nor his testamentary executrix appear to have repudiated the idea of a continuance of the partnership, or to have done anything by which the succession has been or will be cut off from asserting rights as under a continuing firm. For aught we know to the contrary it may at this moment be asserting such a. claim. There is nothing in the pleadings going to negative its right so to do. The testamentary executrix of George B. Ittmann is the only child of the deceased. As his relative and presumptive heir she had sufficient legal interest to have protected his rights if they were jeopardized by his mental condition during the time stated. C. C. 890, 880. She took no steps in that direction until almost the last moment, nor did she take any steps leading to the protection of third parties, and if loss results it should rather fall on her than on creditors who dealt with her father in good fath and in ignorance of the alleged existing situation. 0. O. 8029, 3034. Equity and justice require that this should have been done. We are of the opinion that quoad the customers of the commercial firm of George B. Ittmann the partnership must be held to have continued to exist certainly up to the date of the filing of the petition for interdiction — a date which fixes the plaintiff’s dealings as having been made with the partnership and binding upon both partners.

It is no more the duty of customers of a partnership whose duration is at the will of the partners, at their peril, to keep advised as to the mental condition of each of the members of the partnership than it is for those of a partnership with a fixed period of life. They have the right to assume, until notified to the contrary by the parties in interest, that the partnership continues. Art. 2876 of our Civil Code, under the heading of “ The different manners in which partnership ends,” assigns, among other causes:

1. The expiration of the time for which such partnership was entered into * * *

3. The death of one of the partners, or by his interdiction * * *

5. The will of all the parties legally expressed, or by the will of any of them, founded on a legal cause and expressed in the manner required by law.

Article 2883 declares that the interdiction of one of the partners or his bankruptcy has, as to the dissolution of the partnership, the same effect as the death of one of the partners. Art. 2285 is to the effect “ that if the partnership has been contracted without any limitation of time one of the partners may dissolve the partnership by notifying his partners that he does not intend to remain any longer in the partnership; provided, nevertheless, the renunciation to the partnership be made bona fide, and it does not take place un-reasonablyand Art. 2888 “ that there is just cause for a partner to dissolve the partnership before the appointed timé, when one or more of the partners fail in their obligations, or when an habitual infirmity prevents him from devoting himself to the affairs of his partnership, which requires his presence or his personal attendance.”

Assuming the existence of a cause sufficient to have been invoked as a ground for ending the partnership, neither of the parties (nor others acting for them) availed themselves of it; neither gave the notice required by Art. 2285, nor notice to customers of the firm.

If the partnership be held to have continued, there was no necessity for the assent or consent of the different partners to the different partnership contracts. The partnership being distinct from the individuals who composed it, the consent of any one of the partners is the consent of the firm. Jacob Ittmann’s capacity to contract being undoubted, his consent was sufficient to give validity to firm contracts independently of the consent of George Ittmann.

In Raymond vs. Vaughn, 128 Illinois, 256, the Supreme Court of Illinois held (even when one member was adjudged insane) that when his partner, without notice to third persons, continues to carry on the business as before, there is no dissolution of the partnership, and the managing partner must account to the insane partner for his share of the profits.

If the succession of George B. Ittmann be in a position quoad Jacob Ittmann to claim from him up to the date of the interdiction a share of the profits (and as we have said there is nothing to show that it does not occupy such a position), it could scarcely expect to share benefits and escape responsibilities.

In addition to what we have already said, we may say that there is. nothing in the record which would lead us to believe that the plaintiff in this suit had any knowledge during the period covered by the transactions, declared on, of the alleged mental incapacity of George B. Ittmann.

This case presents another feature, which is this: If it be conceded that the partnership of George B. Ittmann terminated in October, 1892, as between the partners, the business of the former firm continued thereafter to be carried on in the name of George B. Ittmann under the active control and management of Jacob Ittmann, and at that time the latter held a power of attorney constituting him his general agent for the transaction of his business, which' power antedated any impairment of the mental faculties of the principal. This power had never been revoked, and was not revoked, unless it was brought about ipso facto by the condition of George B. Ittmann subsequent to the paralytic stroke which he received in October, 1892.

A procuration is by Art. 3027 of the Civil Code declared to expire “by the death, seclusion, interdiction or failure of the agent or principal.”

In Phelps vs. Reinach, 38 An. 547, it was held that the word “ seclusion” found in Art. 3027, C. C., should be read “reclusion.” That ‘ ‘.reclusion > ’ means incarceration under a sentence to undergo an infamous punishment carrying civil degradation in a house of forced labor, whilst “ seclusion ” means a voluntary confinement or retreat from social life. That a power of attorney is revoked by the interdiction of the principal, but continues in force until the judgment to that effect has been rendered. That the mandate does not expire by the “seclusion” of the principal, or his confinement for treatment in an asylum, but it does by the “reclusion,” and that ignorance of the revocation of a power of attorney will protect an innocent third party dealing in good faith with the agent as such. See Interdiction of Dumas, 32 An. 684; Gernon vs. Dubois, 23 An. 26.

In the case at bar the testimony shows that whilst George B! Itt-mann was paralyzed in October, 1892, and his mind became much impaired thereby, the effect of the illness upon his mental faculties, and in fact the character of his disease, was not known to the public at large, or to the plaintiff, Jurgens. George B. Ittmann remained at his home for several months, but knowledge of his condition and situation seems to have been confined to his relatives and intimate, personal friends. At most it was a case of “ seclusion.” We are of the opinion that the judgment appealed from is correct and it is hereby affirmed.


text:
    No. 11,740.
    State of Louisiana vs. R. K. Breeden et als.
    Act No. 8 oí tlie estoa session of 1870 does not violate, and is not in conflict with Article 114 of the Constitution of 1868.
    APPEAL from the Sixteenth Judicial District Court, Parish of Tangipahoa. Reid, J.

      M. J. Cunningham, Attorney General, and Bolivar Edwards, District Attorney, for Plaintiff and Appellant.-'

      Kemp & Kemp for Defendants and Appellees.
   The opinion of the court was delivered by

McEnery, J.

The defendants were indicted under Sec. 6 of Act No. 8, extra session, 1870, tried and convicted.

They filed a motion in arrest of judgment, alleging “ that Act 8 of 1870, under which the indictment was framed, and under which they were convicted, is unconstitutional, contrary to and violative of Articles 114, 116 of the Constitution of 1868, under which said law was passed, and hence is null and void, and they pray,” etc.

Article 116 of the Constitution of 1868 has no application to the act, as it is not incorporated into the Act 96 of 1870, having been adopted after the passage of said act.

The trial judge sustained the motion on the ground that the act was in violation oí Article 114 of the Constitution of 1868, as the object of the law was not expressed in the title of the act.

This identical question was presented in the cases of State vs. Taylor, 34 An. 978, and State vs. Dubois, 39 An. 676, in both of which it was decided that Act No. 8 of 1870 does not violate Article 114 of the Constitution of 1868. These cases finally settled the question, and must be accepted as the law.

It is therefore ordered, adjudged and decreed that the judgment appealed from be avoided and reversed, and it is now ordered that this case be remanded to be proceeded with according to law.


text:
    No. 11,742.
    The State of Louisiana vs. Ben. Brodden.
    The defendant complained (X) of the want of time to prepare his defence, (2) and to summon his witnesses, (3) and that the twenty-four in number, from among whom the grand jury was selected were not qualified electors, (4) and that the terms of court were not fixed as required by law.
    The case was reassigned by consent and tried two days prior to the day at first set by the court.
    No bill of exception was taken to the refusal to grant time to summon three absent witnesses.
    The prosecuting officer, as authorized by Act 84 of 1894, admitted that if two of the absent witnesses had been present they would have testified as stated in the affidavit for a continuance.
    After the admission had been made the case was proceeded with and tried without objection, thereby rendering it impossible to sustain the objection made on appeal.
    The grand jury was composed of qualified electors.
    Objection was urged to one of the twenty-four men from which the grand jury was drawn. He was not one of the grand jurors. Those who constituted the grand inquest were electors.
    The evidence regarding the term of court does not show that the required three weeks had not elapsed since the beginning of a term of court in the district preceding that at which the defendant was found guilty.
    A PPEAL from the Seventh Judicial District Court, Parish of Madison. Montgomery, J.

      M. J. Cunningham, Attorney General, and Joseph E. Ransdell, District Attorney, for Plaintiff and Appellee.

      William S. Holmes for Defendant and Appellant.
   The opinion of the court was delivered by

Breaux, J.

The defendant was indicted, for murder.

He was tried in January last and found guilty.

From the verdict and sentence of the court he has appealed.

He alleges as errors:

1. The refusal to grant him a continuance, as he did not have time ■to properly present his defence and because three of his witnesses were absent.

2. The overruling of his motion to quash the indictment, on the ground that the twenty-four men who constituted those from which the grand jury was drawn were not selected from among the qualified electors, should have been sustained.

3. He also sets forth in another motion to quash that the terms of court as held and fixed by order of court were illegal.

• 1. The facts upon which the first point presented is grounded are, ■that the counsel appointed by the court to defend the accused was appointed on the 22d and the case fixed for trial on the 24th.

The minutes show that on the 24th the case was refixed by the court for Monday, the 28th January, 1895; but that by agreement of counsel for the State and defendant, the case was taken up for trial on Thursday, the 25th. Moreover, no bill of exception was taken to the action of the court refusing a continuance.

It is well settled that, without a bill of exceptions, this court will not review the decision of the court below, refusing a continuance.

With reference' to the absence of witnesses, the facts are that in his motion for a continuance the defendant alleged that three of his witnesses could not be found.

The record does not disclose that any application had been made to have these witnesses summoned; the affidavit for a continuance on the ground of their absence does not set forth that diligence the law requires.

In addition it was admitted by the District Attorney that two of these witnesses would swear to the facts set forth in the motion for a continuance.

After that admission had been made the case was tried without further objection.

The court would not be justified in assuming that the admission was not made in accordance with requirement of Act 84 of 1894, relative to admitting the testimony' of witnesses if present to testify, in the absence of objection in the lower court.

2. The fact is, with reference to the motions to quash the indictment, that they were filed after the accused had been arraigned and pleaded to the indictment.

The application on the part of the defence should be made before plea pleaded.

But in this case we have examined the points urged without regard to the time these motions were filed.

On the trial of the first motion to quash, it was admitted that one of the twenty drawn to complete the grand jury was not a naturalized citizen, but had filed his declaration to become a citizen. He was not one of the sixteen who composed the jury.

The error committed, if error was, did not prejudice defendant’s case. The jurors by whom the indictment was found were competent. Unless, perhaps, in a ease of abuse of'power, such a defence is of no avail on appeal.

3. The proof regarding the motion to quash, on the ground that, under Act 152 of 1894, the terms are illegal, consists of an admission that three weeks had not elapsed from the date of the adjournment of the court in the parish of Bast Carroll to the convening of the court in the parish of Madison. •

The admission does not prove that the law has been disregarded in fixing the days of the different terms of the district. The day of the opening of the court’s term, and not the date of closing, has engaged legislative attention. An abstract from that act reads: “And in districts composed of three or more parishes shall begin on days at least three weeks apart.”

This act has no reference whatever to the adjournment of courts, and to the time that should elapse after adjournment.

A jury has condemned this defendant to suffer the extreme penalty of the law.

On appeal, the record discloses that the forms of law have been followed, and the defendant proceeded against according to lawful rules of procedure. This being the conclusion, it remains for us to affirm the finding of the court below.

It is therefore ordered, adjudged and decreed that the verdict of the jury and the judgment of the court are affirmed.