author: PoctUí, J.

text:
    No. 9029.
    Succession of Will Steven.
    Testamentary dispositions, by which the testator provides that his estate is to remain under the control and administration of his executor for an indefinite length of time, to he preserved for the persons instituted as legatees hy the will, and by which he directs that a part of his estate shall he paid over to the minor children of one of the legatees after they become of age aud marry reputably, show a manifest intention to create a trust estate, which is considered in our jurisprudence as a fidei commissum. and are therefore void under the laws of Louisiana.
    APPEAL from the Civil District Court for the Parish of Orleans. . Mom-oe, J.

      A. J. Lewis for the Heirs, Appellees.

      •Tas. I). Sill for the Executors, Appellants.
   The opinion of the Court was delivered by

PoctUí, J.

This litigation involves the validity of the will of the deceased, which is attacked by his two sisters, his sole legal heirs, on the ground that it contains substitutions and fidei eommissa in contravention of the laws of this State.

The will reads as follows:

“ New Obleans, November 30th, 1880.
I, William Steven, being of sound mind and having a realistic idea of the uncertainty of human life, do hereby make this my last will and testament, viz: I give and bequeath to Richard Michael O’Brien and William Priestley Richardson, jointly, or in the event of the death of either, to the survivor, individually, all real and personal property of which I may die possessed, hereby giving them full and complete seizin and possession of the same (to manage and arrange as they may see fit), but in trust, however, for the use and benefit of my sisters, Mrs. E. P. Armstrong aud Miss Jess Steven, as also the children of the former.
My object is first to preclude the possibility of their suffering for want of necessaries or comforts of life, as far as possible. And second, to guarantee as good an education to the children as may be, but mfi; more than one thousand dollars of principal or interest shall be disbursed in any one year. Each of the children on coming of age, aim marrying properly and reputably, shall receive one thousand dollars. I trust that Miss Jess Steven may in future take some interest in the rearing of her sister’s children.
“ I desire that my executors as above shall pay themselves for their services and they shall make a fair and equitable adjustment of such claims as may be brought against me for medical services and other expenses, connected with my injury or otherwise. I know of none, however, except for medical services and an amount to Mr. John A. Morris. I shall endeavor to leave intelligible memorandums of all business matters, etc.
My executors are authorized to close up my estate any time and in any way they may deem proper, after ten years shall have elapsed after my death.”
“I desire that £5 to £10 per annum shall he remitted to my aunt, Mrs. Janet Steven, in Scotland, as long as she lives.
I have no forced heirs. Mr. John A. Morris disbursed, 1 presumí!, $1200 or more on my account while I was lying ill and disabled in New York. All this is written and signed by me this thirtieth day of November, 1880. ■ ■ Will Steves.”

The defense of tlie executors is a general denial; and they are appellants from an adverse judgment.

The striking feature of the will is the manifest intention of the testator to establish a trust estate, to be held by the executors and to bo preserved by them for other persons, a disposition which has uniformly been treated in our jurisprudence as a fidei eommissum, and always held as falling under the prohibition contained in article 152 of the Civil Code.

This proposition flows so clearly by the mere reading of the will that it needs no argument in its support. An attempt to demonstrate it by-reasoning and legal deductions would involve the proof of a self-evident proposition and would be a useless waste of time. Arnaud vs. Tarbe, 4 La. 506; Clague vs. Clague, 13 La. 6; Rachal vs. Rachal, 1 Rob. 115; Ducloslange vs. Ross, 3 Ann. 432: Succession of Foucher, 30 Ann. 1017; Beaulieu vs. Ternoir, 5 Ann. 480.

In the case of Clague, cited above, this Court said :

“ A disposition by which the property of the estate is to remain in the hands of the executors until the majority of the testator’s, children, one of whom is under ten years of age, cannot be distinguished from one' that would authorize the executors to preserve for or to returmbhe estate to them at the period of the majority of the children and heirs.” “Such a disposition is indeed a fidei eommissum, or trust which the law forbids.”

' In the will now under- consideration, the testator contemplates that the estate shall be held in trust at least until the- children of- one of his sisters shall have become of age and shall marry properly and reputably ; -thus incorporating a disposition clearly reprobated by-the law!

If the necessities of the case required, it could be shown that the will is further obnoxious to our laws because it also contains a substitution ; but such an argument would serve no useful purpose, and we pretermit the discussion of that point, which would at most be a cumulative reason for the conclusion which we have reached.

The district judge annulled all the dispositions of the will which were repugnant to our laws, recognized opponents as the legal heirs of the deceased, and ordered that they he put in possession of all the property of the succession. But in so far as the dispositions in favor of his aunt, Miss Janet Steven, are concerned, he did not pass upon the same, and required opponents to furnish a bond, under the provisions of articles 1012 and 1671 of our Code. The heirs complain of that part of the judgment, and urge that it he amended in that particular.

The judge correctly held that, as Miss Janet Stevén was not before the court and had not been made a party to the suit for the nullity of the will, he could not legally pass upon her rights under the will. Hence he committed no error in exacting a bond from the heirs as a condition of their obtaining possession of the estate. The motion to amend must therefore be denied.

Judgment affirmed.


source: Caselaw Access Project

author: Fenner, J. Bermudez, C. J.

license: Public Domain

text:
    No. 9015.
    Succession of Gayle Woods.
    An opponent who does not dispute the correctness of any of the items of an administrator’s account, "but simply claims to he placed thereon for a larger amount, has no interest to attack a judgment of homologation on the ground that proof was not administered of the correctness of the account.
    The rulings of an instance court on the admission or rejection of evidence are not subject to review by this Court in absence of exception reserved thereto.
    The correctness of the judgment appealed from must be tested by the law and the evidence upon which the court acted, in absence of exceptions to rulings made in course of the trial.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      A. B. Philips and Albert. Voorhies for the Appellant.

      W. S. Benedict and A. J. Murphy for the Appellee.
   The. opinion of the Court was delivered by

Fenner, J.

The administrator’s account was filed on December 21, 1882. Several oppositions were filed. On January 2, 1883, after due advertisement, judgment was rendered homologating said account so far as not opposed.

On March 7,1883, M. Scooler filed an opposition, in which he averred that he was a creditor of deceased in the sum of $252; that he had supposed his claim had been correctly placed on the administrator’s ae-count, but had since discovered that he had been placed thereon for the sum of $52 only; that he was entitled to be placed there for the sum due him; and his prayer was “ to be allowed to file this opposition nrnic pro tuno and to be placed on said account for the sum of $250, and for general relief,” etc.

It will be observed that the opposition raises no issue as to the regularity of the proceeding on which the judgment of partial homologation was founded, nor as to the correctness of any.items of said account except his own, and that the sole relief sought is to have the latter increased.

The case came on to. be heard on the oppositions and the final homo-logation of the account. Scooler appeared and offered to prove up his account. Counsel for administrator objected on the ground that, having been placed on the account and having filed no timely opposition, and the account having been homologated so far as not opposed, it was then incompetent for Scooler to prove himself a creditor for a larger amount. This objection the court sustained, reserving Scooler’s right to establish the verity of his claim as placed on the account.

This ruling was twice made by the court and, in neither case, was any exception reserved thereto in any form.

After hearing, a final decree was rendered, passing- on the various oppositions except Scooler’s, which was passed sub silentio, and concluding that “the account herein filed be amended in accordance with this judgment and, as amended, that it be approved and homologated, and that the funds be distributed accordingly.”

Scooler then appealed from the two judgments, viz: 1st. The judgment homologating the. account so far as not opposed; 2d. The final judgment of homologation.

His attack here is directed mainly against the first judgment, on the ground that the record exhibits neither testimony of witnesses taken in writing, nor list of documents produced, nor any proof of any kind of the correctness of the account, as required by C. P. 1042.

Conceding, argumenti gratia simply, that such an objection to this judgment might have force under some circumstances, the question presents itself, what interest has appellant to raise it when he presents no issue as to the correctness of any of the items of said account, except that in favor of himself, which he claims should be increased? What does it matter to him whether the correctness of the account was supported by evidence, if he does not dispute its correctness'?

But, even beyond this, hew would it avail appellant to disturb the first judgment, unless the first judgment of homologation was also set aside?

He points out no error in the last-mentioned judgment, except that it fails to sustain his opposition. But the judge had before him, and we have before us, no evidence upon which his opposition could be sustained. It is true that evidence to that effect was offered, but it was excluded by the judge. Even if erroneous, which we do not decide, that ruling, not having been excepted to, was absolute and final, and upon the most elementary principles is not subject to review by this Court. The case stands precisely as if no such evidence had been offered. It follows that, upon the evidence before him, the judgment rejecting appellant’s opposition was correct.

However strong our inclination might be to relieve appellant, we are bound to maintain regularity of precedence and to decide issues as presented.

We observe that another party, who was an opponent in the lower court, has filed in this Court an answer to the appeal, in which he prays an amendment to the judgment.

The amendment asked is one that does not affect che appellant and has no connection with the subject-matter of his appeal. It is simply an attempt to disturb the judgment as between co-appellees, which is not permitted.

Judgment affirmed.

.On Application foe Rehearing.

Bermudez, C. J.

It is impossible to conceive how the appellant can justly complain of the decree herein made.

He appeals from two judgments: one homologating, as far as not opposed, an account on which he was placed for part only of his claim and which he had not seasonably opposed; and (mother which disposes of other oppositions but fails to pass, and therefore ignores the opposition filed by him after the qualified homologation.

The grounds on which he asks the reversal of the’first judgment are that he was not placed on it for his full claim and that there was no proof administered in support of the items of the amount which the eourt was asked to approve.

He should have made a timely opposition and adduced evidence to justify the allowance of his claim.

He has not established, in the mode required by law,"that the judgment was rendered without proof. If he could be heard to say so, his own claim, allowed in part, should be rejected.

The certificate of the judge, issued after the appeal had been obtained and perfected, does not meet the requirements of the law and cannot be considered.

The certificate of the clerk is complete. We must presume, in the absence of legal evidence to the contrary, that the district judge did not render a judgment without proof to support it. The presumption is not rebutted in this case. \

It is not for us to suggest how the appellant should have proceeded .to have established the absence of proof complained of; but it would .appear that Articles C. P. 602 and 606, which relate to statements of facts, before appeal, may have some significance on the subject.

We are at a loss to perceive how the judgment ignoring the unseasonable opposition can be reversed. The district judge had a right not to notice it, as it was not rightly in court, Besides, there is no evidence to support it, beyond the allowance on the account. The exclusion from the transcript of the bill of exception which the appellant claims to have taken to the refusal of the judge to hear evidence further, is not to be attributed to us.

Rehearing refused.


author: MANNING, J.

text:
    No. 8371.
    L. E. and E. F. Herwig vs. Their Creditors.
    Even though the meeting of creditors convened to vote on a respite has been formally closed by the Notary after having been adjourned from day today, each day receiving votes, yet if other creditors present themselves on the next succeeding day, before the proces verbal has been returned to court and within the ten days from the opening, their vote • • should be received.
    In ascertaining what is a majority of creditors in number and amount, those alone who appeared at the meeting, proved their claims, and voted aré to he reckoned. None other, whether on the hilan or not, are to be taken into account.
    PPEAL from the Civil District Court for the Parish of Orleans Monroe, J.

      Charles Longue, for the Appellant.

      Jas. B. Guthrie and J. Q. A. Fellows, contra.

   The opinion of the Court was delivered by

MANNING, J.

This is an appeal from a judgment, refusing a respite and decreeing a oessio bonormn.

The meeting of the creditors was held before a Notary on Oct. 15th and was adjourned from day to day, some creditors appearing each day and voting. On the 20th. the Notary appears to have supposed that no one else was coming, and he formally closed the meeting and summed up the result, hut on the next day more creditors appeared and voted, and the final result was that of forty-four creditors representing $8,336.77 debts, twenty-seven representing $4,414.81 voted for a respite. The votes of the last-appearing creditors were properly-received. They were tendered before the prooes verbal was returned to court, and the meeting was closed before the tenth day. Rev. Civ. Code, art. 3090.

The lower judge refused the respite, and he was right as the law had been interpreted up to that time, but this court has since adopted the construction that in estimating the majority in numbers and amount of creditors, those alone are to be reckoned who have appeared at the meeting, proved their claims and voted. Anderson v. Creditors, 33 Ann. 1155.

The number of creditors voting was not a majority of those placed on the schedule, nor did they represent more than half of the amount of debts, but those creditors who did not attend and vote are not to be counted in ascertaining what is a majority either in numbers or amount.

It is therefore ordered and decreed that the judgment of the ¡lower court is reversed, and the proceedings of the creditors’ meeting are homologated, and a respite is granted the petitioners as”prayed for, the appellees to pay costs.


author: Bermudez, C. J.

text:
    No. 9189.
    The State of Louisiana vs. François Bayonne.
    The words "goods and chattels” are not sacramental in an indictment for larceny. The word "property ° used is generic and implies personal property, goods*and chattels.
    A PPE AL from the Eleventh District Court, Parish of Natchitoches. r\ Pierson, J.

      J. C. Egan, Attorney General, and D. C. Scarborough, District Attorney, for the State, Appellee.

      Ponder & Ponder for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

The accused appeals from the judgment, rendered on a verdict of conviction, sentencing him to one year at hard labor, on a charge of larceny. ,

He complains, in his motion in arrest, that the indictment is defective.

The charge is couched in the following language:

“ Did feloniously steal, take and carry away, one pistol of the value of ten dollars, the property of J. J. Garland.” (The name of the owner was subsequently replaced, by amendment, by that of William Powell.)

The objection is that the indictment does not contain the words: “ goods and chattels ” which are alleged to be sacramental, in all prosecutions for larceny.

In overruling the motion to quash the district judge properly said :

The language employed does not admit of two interpretations and imports a charge of larceny. The property alleged to have been stolen, viz: a pistol, is necessarily personal property or chattel.”

Indeed, the word “property” used is generic and implies the words “ goods and chattels.”

In the case of State vs. Odem, 11 Tex. 17, it was expressly decided that the indictment that charged the larceny of one piece of domestic as “ the property of ” was good, notwithstanding the omission of the words “ goods and chattels.”

On the other hand, it has likewise been held that, charging the larceny of bank-bills as “ the goods and chattels of A” is sufficient, without alleging that they were the “property of A,” the word chattel denoting-property and ownership. Waterman, C. D. p. 392, No. 221.

In the case of State vs. Carter, 33 A. 1214, the present Court has ruled that the description of the thing stolen, in an information for larceny being: “ one hog, the property of A B,” is sufficient. See authorities there cited.

Judgment affirmed.


author: Poché, J.

text:
    No. 8843.
    Adelia Denny vs. R. K. Anderson.
    The rule which strikes with nullity the purchases by attorneys-at-law of litigious rights which fall under the jurisdiction of the tribunal in which they practice, will apply to purchases made by attorneys who reside in a different parish or district from that in which sits the court in which the suit originated. The fact that the attorney has never practiced in that particular court will not shield him.

      APPEAL from the Eighth District Court, Parish East Carroll Pilcher, Judge, ad hoc.

      Breaux & Hall for Plaintiff and Appellant.

      J. M. Kewiieckj for Defendant and Appellee.
   The. opinion of the Court was delivered by

Poché, J.

This is a suit on a promissory note for $2000, alleged to have been executed by the defendant to the order of plaintiff’s father, and to have been subsequently acquired by her in good faith, and to have been thereafter lost.

The defense is a denial of the plaintiff’s ownership of the note, coupled with the allegation that if she has a title, to the same, it was acquired after maturity, and that plaintiff is amenable to the defenses of compensation, which the defendant proceeds to set up against the original payee of the note.

Pending this litigation, plaintiff made a transfer of all her rights and interests in the note to W. R. Mills, Esq., a member of the bar, residing in the city of New Orleans.

Plaintiff then filed a supplemental petition, in which she was joined by Mills, setting forth her transfer to him, suggesting a notice of the transfer to the defendant, and praying that Mills be subrogated as plaintiff in the cause.

That petition is styled an amended petition and petition of intervention.” Judgment was rendered against plaintiff; whereupon plaintiff prayed for and obtained an order for a devolutive appeal on a bond of fifty dollars. '

The appeal bond in the sum fixed by the order is executed by W. R. Mills, styling himself an intervenor.

On that ground appellee has predicated his

MotioN to Dismiss.

He urges that the order of appeal was obtained by and granted to plaintiff and not to the intervenor. Hence, he argues that there is no appeal as to plaintiff because she has furnished no bond; and that there is no appeal as to intervenor because he has obtained no order of appeal.

The fallacy of this argument consists in the conception that the true character of a party to a suit must be tested by the style or name which he assumes or by which he is described in the record.

Such is not the case; and courts cannot adopt a rule which, would convert a party plaintiff, as shown by his own pleadings, into an inter-vener or any other appearer.

. The legal result of the petition of Adelia Denny, the original plaintiff, suggesting her transfer to Mills, who joined in the statement and in the prayer to be recognized as the owner of the claim in suit, was to make him the real and only plaintiff in the case. His legal attitude in the cause could not’be, and was not, affected by the fact that his petition was erroneously endorsed as a petition of intervention, or that he was misnamed as an intervenor in several parts of the record.

He was therefore the plaintiff who was cast in the suit, who obtained the order of appeal, who furnished the appeal, bond required by the order, and who is now the appellant before this Court. Hence, the motion to dismiss must be disallowed.

On oche Merits.

In a supplemental answer the defendant urged several other grounds of resistance, one of which is sufficient to defeat plaintiff Mills’ right of recovery.

That presents the nullity of Ms purchase of a litigious right, which falls under the jurisdiction of the court in which he practices his profession of attorney-at-law, under the provisions of article 2447 of the Civil Code.

The claim which he purchased from Adelia Denny was in suit at the time of his purchase, and payment was resisted on serious grounds of defense. These circumstances actually demonstrate that the claim was a litigious right.

The record shows that W. R. Mills, Esq., is an attorney-at-law residing in New Orleans, practicing his profession in the courts of this State. True, the record fails to show that he has ever practiced in the courts of the parish of East Carroll, but such an incident as having practiced in that parish is not necessary to render him amenable to the prohibition contemplated by the Code. The claim falls within the jurisdiction and is actually under the judicial action of this Court, in which it is shown that he has been for years a prominent practitioner.

The reasons which have prompted this litigation apply with equal force to attorneys who reside in the different parishes in the State, and will not sanction a restriction of the rule to attorneys who are actually practitioners of the court in which the suit originated.

Those reasons are of easy conception, and are well known and thoroughly understood by the profession ; hence, it becomes unnecessary to enter into details on the subject. The elevated standard which the learned profession must occupy in public esteem makes it the imperative duty of courts to exact a rigid compliance with a rule calculated to enhance the honor and usefulness of the profession, even when the transaction shows no unfairness of dealing or desire to, obtain undue iidvantage. In our opinion, the present instance presents a dealing of that character, and our conclusions can justify no inference to the detriment of this plaintiff. But under our sense of duty we cannot escape the conclusion that his purchase of the claim now in suit is stricken with the nullity contemplated by the article now under consideration. Buck & Beauchamp vs. Blair & Buck, 36 Ann. p. 16; Duson vs. Dupré, 33 Ann. 1131: Watterson vs. Webb, 4 Ann. 173.

We are not yet informed by the judge who tried the case below as to which of the defenses prevailed in his mind, but we reach the same conclusions on the merits of his decree, in so far as it affects the rights of W. R. Mills.

But nothing in our decree or in our opinion is to be.construed as affecting the rights of the original plaintiff under the issues raised by the defendant’s answer, as she was not a party to the appeal.

Judgment affirmed.


author: Fenner, J.

text:
    No. 8955.
    Henrietta Davidson vs. Henry Lindop.
    The prescription established by law for privileges resulting from taxes, does not apply to mortgages therefor, affirming State ex rel. Jackson, 34 Ann. 178. The prescription provided in sec. 36 of Act 96 of 1877, only applies to future taxes. As to such taxes it is merely a statute of prescription operating as a defense in bar of action and judgment, and does not apply to city taxes which have been reduced to judgment recorded as pro vided bylaw. Article 176of the Constitution fixes a limitation of three years on the excepted privileges for taxes, only when unrecorded and the limitation does not'apply to recorded privileges. , • > • • '
    APPEAL'from the Civil District Court for the Parish of Orleans. Monroe, J. •

      B. R. Forman for Plaintiff and Appellant.

      J. C. Egan,, Attorney General, John McEnery and W. B. Sommerville, contra.

   The opinion of the Court was delivered by

Fenner, J.

Plaintiff, bolder of a conventional mortgage inscribed in August, 1871, foreclosed and bought the property under an adjudication made on March 8,1881.

On April 6, 1883, she took a rule to cancel all inscriptions for State and city taxes more than three years old, on the ground of prescription.

1. The State taxes involved are those of 1871,1875 and 1880.

So far as the tax of ,1880 is concerned, its inscription was not three years old at the date of the rule or judgment thereon.

Those of 1871 and 1875 are recorded as mortgages and are fully covered by our decision in State ex rel. Mrs. Jackson vs. Recorder, 34 Ann. 178, to which we adhere.

2. The city taxes involved are those for the years 1871 to 1879 inclusive.

Section 20, of the city charter of 1879, provides: “That the taxes assessed and levied by virtue of this act * •* * are hereby declared to be a lien and privilege upon said property, * * * and said lien and privilege shall exist in favor of the city of New Orleans * * * until the same shall be fully paid; and the same shall be paid in preference to all mortgages and encumbrances other than taxes due the State.”

Under this law the tax privileges of the city of New Orleans were practically imprescriptible. It remained unaffected by any subsequent legislation until Act 96 of 1877. Sections 36 and 102 of that act, taken together, leave the impression that they were intended to apply to tax privileges in favor of the city of New Orleans as well as to others. But they manifestly apply only to future taxes. The language is: “That from the filing of the assessment rolls, as provided in this act, the property therein mentioned shall be affected with a lien, privilege and right of pledge, * * * provided that the privilege and right of pledge be not considered as lasting for a longer period than three years.” It is obvious that the privileges referred to are those arising from the recording of assessment rolls to be made thereafter, “ as provided in the act,” and these privileges are to be subject to the prescription of three years. But, clearly, privileges existing for prior taxies are entirely outside of the language and meaning of the law.

Conceding then that the law applies to the taxes of the city of New Orleans, after its passage, it is, nevertheless, merely a statute of prescription, subject to interruption m the modes provided by law and applicable only as a defense in bar of action and judgment.

But here we find that, in every case, the city had sued and recovered judgment, with recognition of the lien and privilege, which had been recorded in the mode prescribed by law. This, removes these taxes from the operation of the statute.

It only remains to consider the effect of Art. 176 of the Constitution, which reads:

“No mortgage or privilege on immovable property shall affect third persons, unless recorded or registered in the parish where the property is situated, in the manner and within the time as is now or may be proscribed by law, except privileges for expenses of last illness, and privileges for taxes, State, parish or municipal, provided such privilege shall lapse in three years.”

The language has not the clearness which should characterize a constitutional provision; but we are satisfied the limitation of throe years only applies to the special privileges named when they are imrecorded. We understand the article to mean and to say, that no unrecorded privilege shall affect third persons, except the special ones mentioned, which, though unrecorded, shall have effect, “provided such (unrecorded) privileges shall lapse in three years.” To hold otherwise would be to impose upon these favored privileges, when recorded, a term of prescription not applicable to other recorded privileges. The purpose of the Constitution was to discriminate in favor of, not against, these privileges. The article, under this view, has no application in the instant case.

We concur, on all points, with the district judge.

Judgment affirmed.

Rehearing refused.


author: Manning, J.

text:
    No. 8962.
    Allen, West & Bush vs. Sun Mutual Insurance Company.
    Where the lessee of a plantation "builds a ginhouse upon it under an agreement with his lessor that the latter shall "buy the ginhouse and its appurtenances at the close of the lease at a price to be then agreed on, the lessee is owner of the ginhouse and has an insurable interest therein, and will recover on a policy therefor, the fire having occurred during the lease.
    PPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

      A. Goldthwaite and Branch K. Miller for Plaintiffs and Appellants.

      Leovy & Kruttschnitt for Defendant and Appellee.
   The opinion of the Court was delivered by

Manning, J.

This suit is upon a policy of insurance for eighteen hundred dollars, the value of a gin-house, cotton-press, gin-stand engine, shafting and belting destroyed by Are. The value of the engine and boilers, $450, was eliminated from the demand on trial below, and it must submit to a further reduction because of the f country clause.

The defence is a denial of ownership^)!' any insurable interest in the insured, and nullity of the policy by reason of the failure to disclose the nature of his interest.

The plaintiffs are a firm of New Orleans, factors of S. & T. L. Morrow a planting Arm of Tensas. The gin-house, etc. is on the Tensas plantation which was cultivated by the Morrows, and was insured by the plaintiffs for account of the planting Arm.

The Morrows were cultivating the plantation under a lease. They built the gin-house, and their lessors were to buy it of them at a price to be agreed on at the termination of the lease. The Are occurred pending the lease.

There is testimony of a modification of this agreement, and of the impressions of the lessors of how the ownership stood or was to stand, and arguments thereon that if so and so was the agreement then the ownership was in this or that one, but both the, Morrows state the agreement was substantially as above, and they had the best means of knowing what it was.

Upon the ascertainment of this fact the defence collapses. The Morrows had an insurable interest and had truthfully disclosed it.

It is therefore ordered andjdecreed that the judgment of the lower court is reversed, and that the plaintiffs now have judgment against the defendant for one thousand and twelve 50-100 dollars with legal interest from judicial demand and for costs of both courts.

Rehearing refused.


author: Behmudez, C. J.

text:
    No. 9221.
    The State ex rel. N. W. Haus vs. Judge Division C, Civil District Court for Parish of Orleans.
    A. Prohibition does not lie to prevent a- court which has jurisdiction ratione personce and mtiona materia from entertaining a suit to remove a tutor, where it appears that, after exceptions to the jurisdiction on the ground that the case was not allotted as the Constitution requires have been overruled, the defendant has filed an answer praying for trial by jury.

      Although hy thus joining issue Le has not waived his right to have the judgment overruling his plea reviewed on appeal, still ho has, hy asking to be tried, abandoned his right to in voke the powers of this Court, in the form of a Prohibition, He should have done so after his plea was overruled and before answering. The application comes too late,
    PPLICATION for Mandamus, Prohibition and Certiorari.

      A. J. Ker and J. Michinard for the Relator.
   The opinion of the Court was delivered hy

Behmudez, C. J.

This is an application for writs of mandamus, pro hibition and certiorm-i.

The relator complains that the district judge has usurped jurisdiction over him as tutor hy nature of his minor children, in proceedings which were not allotted to him under the constitutional requirements.

His main averments seem to he: that he was confirmed as such tutor in the succession of his deceased wife; that his minor children, having inherited hy representation of their mother in the successions of their maternal grandfather and grandmother, a partition of the property composing the same was ordered; that the same took place hy sale; that the minors’ share of inheritance, in cash and notes, was ordered hy a family meeting to he invested in property, in their name, hy the tutor and under-tutor jointly; that on grave charges against him for dereliction of duty, the under-,tutor took á rule against him to punish him for contempt, for not carrying out the instructions of the family meeting, and also another rule to compel a deposit of the money and notes in hank; that subsequently the court suspended him, ordered him to turn over the notes to the under-tutor, and directed the hank to retain the funds on deposit with it; that subsequently the. court ordered the notes to he deposited with the judicial depository in the name of the minors; that the court afterwards directed the under-tutor to institute proceedings for the tutor’s removal; that exceptions wére filed to the jurisdiction of the court in said case, on the ground that it had not been allotted as the Constitution provides; that said exceptions were overruled and that the case was put at issue hy an answer, accompanied with a prayer for a jury.

The district judge returns that he is justified in his conduct for several reasons. He states that the relator never objected to the jurisdiction of his division and to the form of the proceedings against him; that the facts disclosed, in the course of the proceedings anterior to the suit to remove establish, not only that tlie tutor does not take charge of the persons of his minor children, but squanders their estate.

The course pursued by the district judge was dictated by a proper sense and appreciation of Ms sworn duties as the tutor of tutors. This is not the first instance in which the exercise of extraordinary powers was sanctioned by this Court on the part of a judge similarly situated. 32 Ann. 324; Succession of Walker.

But with all those anterior proceedings, this Court has presently little or no concern. If the order of November 28, 1883, susi>ending the relator, be erroneous, it can be reviewed on appeal.

The sole complaint is: that the court has assumed jurisdiction in the suit to remove, which has not been allotted as the Constitution requires, and that the exception to its jurisdiction on that ground was overruled.

It is unnecessary to consider and determine how far the acquiescence and submission of the relator to anterior proceedings may or not have autliorized the district judge to assume jurisdiction over the suit to remove, as his action can be sustained on different grounds.

Assuming that those piroceedings have never taken place, and that the suit to remove relator is the first step taken against the relator, it is clear that, if the case had not been allotted, he had a right to except, and if his exception had been filed^.and overruled, he could have invoked the powers of this Court to prohibit the district judge from proceeding further in the matter; but relator’s own averments show that, instead of seasonably appealing for relief to this Court upon the overruling of his exception, he has joined issue by answer and prayer for a trial by jury.

The court is competent ratione personen and materice to hear and determine a suit of that description, when allotted or when the allotment has been waived. 33 Ann. 1425.

However much his exceptions, if well founded, may secure a reversal of the judgment on them on appeal, it is clear that, by not addressing himself to this Court after they had been overruled, and by answering and asking a trial by jury, the relator has waived his right to the interposition of the powers of this Court by writ of prohibition, although he cannot be said to have thereby abandoned the plea itself. 29 Ann. 806, 360.

Application refused.


author: FenNER, J.

text:
    No. 9197.
    The State of Louisiana vs. Boy Vincent.
    is no bar to an information for manslaughter, that the grand jury has, prior to its filing, ignored an indictment for murder, for the same homicide. Omission in the information, of the averment that the deceased -was, at she time of the kill ing, “ in the peace of Grod and of the State,” is no ground for arrest of judgment
    APPEAL -fro-m the Thirteenth District Court, Parish of St. Landry. Hudspeth, J.

      J. 0. Egan, Attorney General, for the State, Appellee.

      Oil <& Perrault and G. L. Dupre for Defendant and Appellant.
   The opinion of the Court was delivered by

FenNER, J.

The following are the alleged errors on which the defendant claims reversal of the judgment, viz :

1. Denial by the judge a quo of a motion to quash the information on the ground that, at the same term which it was filed, the same homicide had been jiresented to the grand jury in an indictment for murder and had been returned by them, not a true bill.” After such finding, it is claimed the district attorney was without authority to file, an information for manslaughter, based on the same facts.

We find it impossible to distinguish the case from that of State vs. Boss, 14 Ann. 367, where the Court said: “The material question is whether the district attorney, at the same term of the court and on the same day that the grand jury had ignored the indictment, could file the information after this action of the grand jury. Article 103 of the Constitution of 1852 provides that prosecutions shall be by indictment or information. The State can select either mode, but cannot prosecute by both at the samo time. After, however, it has prosecuted by indictment, and the grand jury, not being satisfied by the evidence or for other causes, have not found a true bill against the accused, it is the same as if the matter had never been before a grand jury, and the district attorney, in commencing new proceedings, has the right to select indictment or information as provided by the Constitution.”

We know of nothing in our later jurisprudence shaking this doctrine; and, indeed, it rests on reason and very ancient authority. 2 Hale, 243-246; 2 Hawk. Pleas of Crown, C. 35, sec. 6; 1 Whart. Cr. L. sec. 544.

The contrary contention would give to such a finding of a grand jury, the effect of a valid plea of autrefois acquit, of which it does not possess the essential elements.

The right of the district attorney to prosecute for manslaughter by information is not questioned, and as that foxm of proceeding reaches the court without the intervention of a grand jury, the objection to proceeding at tlie same term, wliicli would exist to a second proceeding by indictment for the same offense before the same grand jury, does not arise.

2. It is claimed that the judge erred in overruling the motion for new trial, on the ground of newly discovered evidence. In absence of any bill of exception to .the judge’s ruling on this motion, we cannot consider his action.

3. In a motion in arrest of judgment, the information is attacked as fatally defective, because not containing the allegation that the deceased, when killed was in the peace of tlie State and of God.” This objection calls for no further remark than to say that it is well settled that the omission of this averment is no ground for arrest of judgment. 5 Whart. Cr. L. sec. 1055; Com. vs. Murphy, 11 Cush. 472.

The objection here appears nowhere except in the motion in arrest. Other errors assigned are frivolous.

Judgment affirmed.


text:
    No. 9065.
    Edward Irwin vs. Great Southern Telephone and Telegraph Company.
    where from tlie allegations oí the plaintiff it appears that the apprehended injury is com-pensable by money, and the bond for the dissolution of the injunction covers the sum fixed by the plaintifl as damages, no appeal will lie from tlie order of dissolution.
    APPEAL from the Civil District Court for the Parish of Orleans. Lagan-us, J.

      T. Gilmore & Sons for Plaintiff and Appellant.

      Bayne & Denégre for Defendants and Appellees.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Manning, J.

The motion is based on tbe allegation that the order appealed from is interlocutory and cannot work irreparable injury.

The suit is an injunction of erecting a telegraph pole in front of the plaintiff’s property because it will interfere with access to it, and will obstruct Ms lights and view, and will become a permanent nuisance. On application of the defendant the injunction was dissolved on a bond of $2,500, under art. 307 Code Prac. The appeal is from this order for dissolution.

The sum claimed as damages in the petition is “over two thousand dollars.” The bond required of the defendant covers the full claim. We have held that an order dissolving an injunction cannot work irreparable injury where the bond upon its dissolution equals the amount of damages that will be sustained, Osgood v. Black, 33 Ann. 493, and that when the plaintiff alleges that the act complained of is compensable by money, the injury which he apprehends is reparable. Levine v. Michel, 34 Ann. 1181.

It does not appear from any of the allegations of the plaintiff that the injury apprehended is of such nature that it cannot be compensated by money, e. g. the injury to the balcony of his building in weakening its support may be repaired by the sum required to strengthen it as before — the diminution of rents, by the sum lost during the pendency of the suit, etc.

The appeal is dismissed.


author: PiüNNBR, J. Bermudez, C. J.

text:
    No. 9137.
    Mrs. M. M. Ada Lane and Husband vs. Robt. S. Cameron and Ludlow McNeely.
    Defendants’ title under a judicial sale is attacked by plaintiff on sundry grounds:
    1. It is charged that the sheriff who made the sale was one of the purchasers thereat. The evidence negatives the charge.
    2. That the sheriff’s deed to the purchasers is not in the form, prescribed by law. The adjudication was sufficient to convey the title.
    3. That there was no seizure of the property. The sheriff did seize, but as the property was only an undivided half-interest, the whole of which was owned and possessed by plaintiff, he did not maintain a keeper. He could not take physical possession or divest plaintiff’s possession which washer my and per tout. Moreover, plaintiff was represented at the sale by her attorney, who took part in the bidding and offered in her behalf to take defendants’ purchase and furnish the twelve months’ bond, and no objection was urged on ground of defective seizure. She is estopped.
    4. That there was no legal appraisement. The same estoppel applies and, besides, the ap-praisement was legal.
    5. That the defendants failed to comply with adjudication by furnishing a valid twelve months’ bond. In this matter plaintiff has no interest.
    6. That the bid did not exceed the prior special mortgages on the property. The mortgage certificate did not show any prior special mortgage. Plaintiff, who was only a third possessor, is incompetent to raise questions involving the existence, record and rank of an alleged mortgage, which we cannot decide in absence of the creditor of that mortgage.
    7. That the thing sold was a litigious right and that one of the purchasers was a deputy clerk of the court. So far as the title is concerned there was no litigious right involved. As to the litigated encumbrance by the alleged mortgage above referred to, that can only be opposed by the encumbrancer.
    A defendant in writ is not permitted to attack the sale of his property thereunder, on the ground that the price of adjudication is not in excess of an anterior conventional encumbrance, where the creditors, in whose favor it exists, has filed a third opposition, claim-ng to be paid out of the proceeds of sale.

      PPEAL from the Twelfth District Court, Parish of G-rant. . Barbin, J.

      JS. X>. White, Jos. P. Hornor and F. W. Baiter for Plaintiff and Appellant.

      liobt. P. Hunter and J. 0. Wielcliffe for Defendants and Appellees.
   The opinion of the Court was delivered by

PiüNNBR, J.

Lionel L. Levy held a judgment against W. S. Calhoun operating as a judicial mortgage on his immovables from the date of its recordation in the parish of Grant, viz: July, 1870,

Mary S. Calhoun, the mother of W. S. Calhoun and of plaintiff, Mrs. Lane, died in 1871, and her two said heirs accepted her succession and were put in possession thereof, whereby the undivided half of her property thus falling to W. S. Calhoun became affected by the judicial mortgage resulting from the recordation of said judgment.

In 1873 W. S. Calhoun sold his interest to his sister, Mrs. Lane, whereby it became necessary for Levy to proceed by hypothecary action against her, in order to subject said property to his judgment.

Such an action was brought in which she was personally cited, and resulting, after due proceedings, in a final judgment recognizing the mortgage “upon the undivided one-half interest formally belonging to W. S. Calhoun in the property belonging to his mother, Mary S. Calhoun, deceased, and more particularly described as follows, viz: “ setting forth specifically the properties here in contest, besides others situated in the parish of Rapides. The judgment proceeds to recognize the operation of the judicial mortgage as unaffected by the sale from W. S. Calhoun to Mrs. Lane, and to order and decree that the said above described property, or so much thereof as may be necessary, be seized and sold according to law, to pay the said judgment and judicial mortgage, etc.”

Under this judgment, a writ of seizure and sale was issued describing the property fully, under which the undivided one-half interest in the Grant parish property was seized and advertised for sale for cash.

There being no sale at the cash offering, the property was readver-tised for sale on twelve months’ bond, and was finally adjudicated to defendants, who furnished the bond and received the sheriff’s deed.

Plaintiff brings the present action in which she alleges ownership and possession of the property; that defendants, pretending to be owners of part thereof are attempting to take possession : that their pretended ownership and title are mill and void for various reasons set forth; and she prays for relief by injunction and for a judgment decreeing the pretended title of defendants to be null and void.

It is unnecessary to notice the proceedings further; nor is it essential to classify the action as to its nature. The entire merit of the case hinges on the question of the validity of defendants’ title which is distinctly and properly put at issue.

Amongst a multitude of objections to that title, the appellant plaintiff urges the following only as necessary to be considered,” and we shall treat them in the order in which they are presented in the able brief of hér counsel.

1. That the sheriff himself, who made the sale, was one of the purchasers. If the fact alleged were sustained by the evidence in such manner as to show that the sheriff was, directly or indirectly, actually or contingently, a purchaser, we should not hesitate to strike the sale with nullity. This would result, not only from the express provision of section 157, Revised Statutes, but, even independently thereof, from the common principles of honesty and morality.

But the eviden ce distinctly and unequivocally negatives the allegation. The only connection the sheriff is shown to have had with the matter is this: after the adjudication and after the defendants had procured the names of several sureties on the twelve months’ bond, and had presented the same to the. sheriff for acceptance, the counsel for the seizing creditor objected to its sufficiency, whereupon defendant, McNeely, asked Mr. Teal, the sheriff, to sign the bond personally as surety, and Teal, saying that he was good for the amount of the bond, consented to sign and did sign it.

It appears that, in order to obtain sureties, defendants had held out as inducement'that upon paying their pro rata of the investment, they should have an interest in the property. One of the defendants, Cameron, testifies that he tlmiks he stated this to Teal before he signed the bond, but is unwilling to swear to it. Teal, on the other hand, swears positively that Cameron is mistaken and that he received no such communication. It would be going great length to charge Teal with perjury upon the mere vague impression of Cameron to the correctness of which he is unwilling to swear. But, even were we to do so, we are not prepared to say that the signature of the sheriff would invalidate the bond or the sale. Defendants had already tendered securities. The law is clear that “the sheriff, being the creditor’s agent in taking the bond, is liable to him (upon proper proceedings) if he accept insufficient, and, to the purchaser if he refuse sufficient, security.” Wells vs. Moore, 3 Rob. 154.

Under this bi-lateral responsibility, the sheriff was bound to act upon the security offered. It is not shown that it was insufficient, or that if the sheriff had rejected it, he would not have been liable to defendants. The seizing creditor has no other lawful interest than to get a safe bond. Tf the sheriff’s personal signature added to the security, we see no room for complaint on his part and no such complaint is j>reseuted here. As to the plaintiff, Mrs. Lane, it does not appear that she is concerned in the question. The purchasers’ rights surely cannot be destroyed by the fact that the sheriff consented to sign the bond. Had he refused, non constat that the security already offered was not sufficient and would not have been accepted, or, if declined, that they would not have given other additional security.

2. That the sheriff’s deed to defendants was not in conformity to the requirements of articles 693,694 of the Code of Practice. The variances are insubstantial; but, in any event, in view of the full proof of the adjudication, and of articles 695 and 690, C. P., and 2608 C. C., and repeated adjudications of this Court on this question, the learned counsel will hardly expect us to consider these objections as serious.

3. That there was no seizure of the property. The return shows that he seized and that he duly served notice of seizure upon Mr. and Mrs. Lane. The sheriff, in his testimony, says: “I appointed no keeper. I considered myself in possession, being upon the property every day.”

The property to be seized was only the undivided half interest. The whole was in possession of Mrs. Lane as owner, and the other undivided half was not subject to the seizure. That half interest existed in every fragment of the soil. The sheriff could not divest her possession or take any exclusive of hers. How was he to take the property into his physical custody without divesting hers, which he had no right to do? The utmost he could have done would have been to establish himself as joint possessor with her. The object of actual seizure is to terminate the possession of the seized debtor and to destroy the indicia of untrammeled ownership resulting from the debtor’s title and possession combined. Where the possession is such that it cannot be lawfully disturbed, as in this case, it would seem that there would be no more necessity for appointing and maintaining a keeper than in the case of property in the possession of a tenant under lease.

But, in any event, tlie evidence establishes that defendant was represented at the sale by her attorney, who took, in her behalf, an active interest in the proceeding, and who suggested to the attorney of the seizing creditor to bid, and who afterwards offered, in her name, to take defendants’ place as purchaser and to furnish the bond required of them. No opposition was made to the sale on the ground of any irregularities in the proceedings, and we consider that she is estopped from urging such objections now. Mullen vs. Follain, 12 Ann. 838.

4. That there had been no legal appraisement of the property. The estoppel just mentioned also applies to this point; though the record, in our opinion, establishes fully the legality of the appraisement.

5. That the defendants had failed to comply with the adjudication by giving a valid twelve-months bond.

We have puzzled our wits in vain to discover what interest plaintiff can have in this question. The bond has been given and accepted by the sheriff. It is for the exclusive benefit of the seizing creditor or others having claims upon the price. If they are satisfied, plaintiff may well hold her peace.

6. That the adjudication was not legal because the bid did not exceed the prior mortgages on the property.

To maintain this point, plaintiff seeks to establish the existence and priority of a special mortgage in favor of the Mechanics and Traders’ Bank, which did not figure on the official certificate of mortgages. The want of interest or power in plaintiff to raise this question is apparent from the fact that, in its assertion she presents for our determination, in the absence of the bank, a number of nice questions as to the existence, validity and rank of the bank’s alleged mortgage, in the determination of which the bank is vitally interested, and which we must absolutely refuse to consider without a hearing of the bank.

Her counsel says that this objection of want of interest is answered by the case of Lawrence vs. Birdsall, 6 Ann. 688, wherein it was held that such nullity could be urged by defendant. But in that case the defendant was the personal debtor, and remained bound for whatever part of the debts had not been satisfied by the sale of his property. Hi's interest that his property should not be sold at a less price than the law required was obvious. But plaintiff here is only liable as third possessor of mortgaged property, without any personal liability for either the seizing creditor’s or the bank’s debt. What does it matter to her whether the property sold for only $4500, or for $4500 plus the bank’s claim, since, even in the latter case, there would remain a large deficit due on tlie mortgages priming her title; and since, in any event, she cannot he held for a dollar beyond the price of the property ?

7. That the sale was that of a litigious right, and that one of the defendants having been at the time of the purchase an officer connected with the court in the capacity of deputy clerk, the sale is null under the provision of C. C. art. 2447.

The Code imposes two classes of restrictions upon the acquisition of litigious rights:

First.. As to all persons, it provides that the title acquired by transferee',may be divested by the debtor’s paying to him the price of the transfer. Art. 2652.

Second. It strikes with nullity purchases by public officers connected with courts of justice of litigious rights falling under the jurisdiction of the tribunal in which they exercise their functions. Article 2447.

Under the former article it has been repeatedly decided that it applied only to conventional transfers, and not to judicial sales. Early vs. Black, 12 La. 205; Succession of Tilghman, 11 Rob. 124; D’Apremont vs. Berry, 6 Ann. 464.

It is contended by defendants that a like distinction applies to the prohibition under article 2447. Much might be said in support of this contention if the question were open; but it has’twiee been decided that the article applied to judicial sales. Copley vs. Moody, 2 Ann. 487; McCarty vs. Splane, 8 Ann. 482.

The question remains, whether the thing sold was a litigious right.

There is no dispute as to the validity of Levy’s mortgage and .judgment and as to the right to have the property sold. There is no dispute as to W. S. Calhoun’s heirship or to his original title to the property, or as to the title of Mrs. Lane derived from him. The thing sold possesses in itself no feature of a litigious right. The only matter of litigation affecting the case in any manner is that touching the existence and rank of the Mechanics and Traders’Bank’s alleged mortgage. But the bank had filed a third opposition in the proceeding under which the sale was made, in which it claimed to be paid by preference out of the proceeds of sale. How a dispute over the distribution of the proceeds of a sale can make the thing sold a litigious right, we do not perceive.

But, besides, it has been held that the nullity resulting from a purchase in violation of article 2447 is a relative nullity, in the sense that only one whose right is violated can invoke it. N. O. Gaslight Co. vs. Webb, 7 Ann. 168.

The case of Consolidated Association vs. Comeau, 3 Ann. 552, relied on by plaintiff’s counsel, negatives, rather than sustains, her right to set up this objection. There, the purchase had been made during'the pendency of a litigation in which the Consolidated Association was seeking to subject the property to a mortgage claimed by it. The purchaser, attorneys of the court, opposed their title derived by this purchase to the litigating mortgage creditor. The court said: “The naked title they had a right to buy; but so fax as the question of encumbrance was involved, and so far as they avail themselves of their purchase to resist the claim of plaintiffs, the purchase is a nullity, and can confer no rights.”

From this it clearly appears that defendants’ title is not questionable; and that is only when their purchase stands in the way of the litigating mortgage creditor that the latter may invoke its nullity so far as it forms an obstacle to his right.

Obviously, the plaintiff here has no concern with anything but the question of title, and cannot be listened to in championing the rights which, if they exist, adhere to the bank alone.

Our investigations leave no doubt in our minds that plaintiff has no valid ground upon which to contest this sale.

Judgment affirmed at appellant’s cost.

ON APPLICATION POR REHEARING.

Bermudez, C. J.

The only grounds upon which this application could be sustained would be: that the price of adjudication was not in excess of an alleged anterior conventional encumbrance, and that the plaintiff here, defendant in writ, had an interest in seeking the nullity of the sale, although perhaps not personally bound for the debt secured by the mortgage; but when it is considered that the creditor whose rights the plaintiff herein seeks to champion has filed a third opposition, asking to be paid out of the proceeds, and has thereby ratified the sale, the seeming foundation gives way and the superstructure falls through. This we say without prejudice to any adverse rights of that opponent.

Rehearing refused.


author: MANNING-, J.

text:
    No. 9024.
    Felix Duplessis vs. Adolph H. Siewerd et al.
    The action to annul a judgment for fraud of the plaintiff must he brought within a year after its discovery, and the interruption begins from the service of the citation and not from the filing the suit.

      APPEAL from the Twenty-fourth District Court, Parish of Plaque-mines. Livaudais, J.

      B, Howard MoOaleb for Defendants and Appellees.
   The opinion of the Court was delivered by

MANNING-, J.

A judgment was rendered against the plaintiff in favo l of the defendant on March 24, 1882. This suit is to annul that judgment on the ground that it was obtained by fraud and ill-practice.

The judgment was a confirmation of a default, and the alleged fraud is a deception charged to have been practiced upon Duplessis by the attorney of the defendafit in this; — thathewas advised by that attorney not to employ a lawyer to defend the suit as it would be compromised, that he offered a compromise which was accepted, and when calling on the attorney to perfect it, he was put off on the pretext of pressing business from time to time until the day when, to his great consternation, he was served by the sheriff with the notice to vacate, this being the first intimation he had of the existence of the judgment. There is much more of like tenor.

It is a fabrication out of whole cloth. The plaintiff himself on the witness stand says he knew of the judgment the day after it was rendered. It was n it signed till a week after that, during which time he had ample opportunity to have taken any measures open to him, and this was of course some time before service of the sheriff’s notice.

The story of the attorney’s alleged deceit and cozenage is rejected without hesitation. Mr. M’Caleb’s character and uniform conduct forbids a moment’s credence being given to it. He denies it m toto as a witness and is fully corroborated by those who were present, even by the plaintiff’s sister.

Prescription would have barred the present suit even if not against the plaintiff on the merits. That of one year was pleaded. This suit was instituted, that is to say was filed, March 3, 1883 within the year, but citation was not served until Sept. 4, 1883.

The action to annul a judgment for fraud must be brought within the year of its discovery, and the year must be reckoned from the date of service and not from the filing of the suit. Code Prac. art. 613; Stafford v. Smith, 6 La. 91; Rev. Civ. Code, art. 3518.

Judgment affirmed.


author: Fenner, J. Pociié, J.

text:
    No. 9148.
    Mrs. M. T. Pipkin and Husband vs. The Sheriff et als.
    The assignee, as a general rule, can acquire no greater rights than his assignor, and is bound by estoppels -which were binding on the latter.
    Where property is leased or rented the Code o£ Practice forbids the sheriff, in levying ex ecution, from taking possession. In such case actual seizure is not essential, but notice of seizure is sufficient.
    Failure to collect rents during seizure may render sheriff liable to seizing creditor, but does not invalidate the seizure.
    APPEAL from the Sixteenth District Court, Parish of East Feliciana. Wedge, Special Judge.

      T. B. Lyons and Ellis & Ellis for Plaintiff and Appellee.

      T. J. Kernan for Defendants and Appellants.
   The opinion of the court was delivered by

Fenner, J.

On March 5th, 1879, defendants, Fuqua, tutor, and Miss Clinton, under execution on a twelve months’ bond, claim to have seized a house and lot in the town of Clinton, then belonging to L. M, Pipkin, husband of the present plaintiff.

In April, 1879, L. M. Pipkin, the owner and seized debtor, filed a petition in which he judicially alleged that the sheriff had seised and was about to sell the property and upon grounds therein set forth, none of which attack or impeach the validity of the seizure, applied for and obtained an injunction restraining the sale.

During the pendency of this injunction proceeding, his wife sued for and obtained a judgment of separation of property, including a moneyed judgment against him.

He then executed á dation en paiement in her favor, by which he transferred to her this property in satisfaction of her judgment.

Subsequently, his injunction suit was finally decided against him, and the defendants again proceeded with the sale of the property under their original execution.

Thereupon the plaintiff wife instituted the present action, in which she alleges ownership of the property under her üaüon en paiement, avers that the same passed to her free from any privilege resulting from the execution of defendants’ fi. fa., for the reason that no valid seizure was made thereof, and applied for and obtained an injunction against the sale.

Defendants, among otter grounds, plead: First, that she is estopped from denying that the property was seized, by the judicial admissions of her husband and assignor contained in his original injunction petition ; second, that the seizure was legal and valid.

Both grounds are fatal to the plaintiff’s pretensions.

1. It is obvious that L. M. Pipkin could not be heard in such an action as the present for two reasons: first, because he could not contradict his judicial admission that the irroperty liad been seized, and, second, because he was bound to allege all his grounds of opposition to the sale in his first suit and could not resort to successive injunctions. His, wife, as his assignee, can acquire no rights which he did not pos sess and is bound by estoppels which were binding on Mm at the date of her acquisition. The relation of husband and wife which existed between them has no influence upon the question. She stands like any other transferree.

If the seizure was incontestable by the husband, he could not transfer to any other a greater right than he himself possessed.

2. The objection to the seizure is that the sheriff did not take actual possession of the property but only served notice of seizure on the debtor.

It is undoubtedly true that, as a general rule, the law requires, in the country parishes, an actual taking and holding of possession by the sheriff to constitute a valid seizure. But the law itself makes a distinct exception in the case of immovables which are leased or rented. C. P. 657; Decoux vs. Bank, 2 Ann. 157.

In that case, the sheriff is not required or permitied to take the property into his custody. The ceremony of going on the property and immediately retiring therefrom, would be too idle and objectless to suppose that it was within the contemplation of the law. In such a case we hold that due notice of the seizure to the owner and judgment debtor is all that the law requires.

It is admitted that this property was leased at the date of the seizure. Due notice was served upon the owner and debtor. The tenant, though not in an official or formal manner, was notified of the seizure. Nor is the case affected by the failure of the sheriff to demand and collect the rents. That may involve a question of his responsibility to the seizing creditor, but does not affect the seizure of the property.

It is, therefore, ordered and decreed that the judgment appealed from be annulled, avoided and reversed; and it is now ordered, adjudged aucl decreed that there be judgment rejecting- plaintiffs’ demand and dissolving the injunction, plaintiffs and appellees to pay costs in both courts.

ON Application fob Rbhbaking.

Pociié, J.

Mrs. Pipkin enjoined the seizure of apiece of property seized as her husband’s, on the ground that she had acquired the same since the pretended seizure, and on the further ground that there has been no legal or valid seizure of the same.

Our decision maintained the plea of estoppel on the ground that .the wife as transferree of her husband under a title executed subsequently to the alleged seizure, was bound by. his judicial admission, made in a previous suit for injunction instituted by himself with a view to restrain the same seizure, iu which he had not only admitted, but had alleged, the legality of the seizure .which he had sought to arrest on other grounds.

In applying for a rehearing, her present counsel urge with confidence, and argue with great zeal, that we had entirely misunderstood the real issue in the case.

Their contention is, that the real issue hinged upon the validity of her title as affected by the nullity of her acquisition of the property while it was in the possession of the sheriff under execution. They argue that when the dation en jjaiement was made in her favor by her husband in August, 1879, the writ under which the sheriff had seized, and which had issued in Mai ch preceding, had expired in May following, and had not been returned and renewed as the law requires; and that therefore the property was not under seizure at the date of the transfer to her.

Hence, it is asserted that our decision is predicated on an issue which was not an element in the case.

A reference to the petition of injunction shows that no allusion is even made to the now alleged extinction of the writ, and nothing in the defendants’ answer justifies even a¿u implication that such an issue was made in the pleadings.

The sheriff’s return from which, it is argued, flows the proof that the writ was extinct in August, 1879, was not offered in evidence by plaintiff, but by the defendants themselves. *

On the first page of the brief presented to us on appeal by the counsel who thus represented plaintiff, we find the following statement, which is full of significance: “The point in this case is, whether on March 5,1879, the sheriff made a valid and legal seizure of certain property in the town of Clinton.” That was the issue which the defendant met by their plea of estoppel, ana that was the issue which our decision disposed of. Nothing in the record justifies the remotest inference that any other or different issue was tendered, met or passed upon in the lower court.

The ingenious feat of injecting a new and entirely distinct issue in the case on an application for rehearing is as bold as it is impracticable. It stands to reason that we cannot sanction such a practice, which is ' repugnant to all known rules of precedence-in our jurisprudence.

Rehearing refused.


text:
    No. 1111.
    S. Meyer vs. W. W. Farmer.
    The right to amend pleadings is not reducible to inflexible rales. It must be determined in the exercise of a sound legal discretion. Amendments should always be allowed for the promotion of justice, where they cause no injury, provided time may be asked and allowed to a party pleading and showing surprise.
    A supplemental answer which simply amplifies a general denial by enumerating the reasons for which plaintiff should not recover, and does not change the original relief asked, can he allowed to be filed shortly before trial and the case will be proceeded with when no motion for a continuance, for time to prepare, is made.
    Exceptions to the admission of an act of sale in a case wherein recovery of the price is claimed by a purchaser, in consequence of his eviction from the property sold him cannot avail. The act is the fundamental fact on which the litigation rests. Exceptions to the refusal of the judge to admit cumulative testimony and to the reception of irrelevant proof need not be passed upon.

      A purchaser who buys property adjudicated to a succession representative at a judicial or forced sale of the same, in furtherance of an agreement between them that he will not bid thereon against him, and whose purchase is subsequently annulled in consequence of such reprobated combination, must be considered and dealt with as a buyer who purchases with knowledge of the danger of eviction and at his peril and risk. Under such circumstances he cannot, after eviction, repete the price paid.
    ISfo case can be found where, money having been paid by one of the parties to the other upon an illegal contract, both being pw'ticypes crvminis, an action has been maintained to recover it back.
    PPEAL from the Fifth District Court, Parish of Ouachita. Mehardson, J.

      Ji. Mehardson and M. J. Liddell for Plaintiff and Appellee.

      Talbot Stillman for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an action to recover the price of property sold by defendant to plaintiff and from which the latter was judicially evicted.

The defense was: first, a general denial, and next, a specilication or enumeration of the grounds for which plaintiff should not recover.

The case was tried by a jury who found for plaintiff. Judgment having been accordingly entered, the executor of the defendant, who died since suit, has taken this appeal.

The record contains four bills of exception. One by plaintiff to the ruling of the district judge allowing the supplemental answer to be died, and three by defendant; the first to the admission of the act of sale, the second, to the refusal of the court to allow the introduction, of the testimony of the defendant in another case; the third, to the refusal of the judge to permit him to contradict plaintiff, whom ho had made his witness, by plaintiff’s own testimony in a different- suit against him.

The objections urged to the filing of the supplemental answer, are: that it changed the previous issues and raised new ones, entirely inconsistent with those originally formed, and that the amendment came too late.

The substantive allegations of the petition are: that plaintiff bought property of defendant, for a paid price; that he was subsequent!y evicted by judgment of court and that he is entitled to recover the price.

The pith of the general denial is a protest against the liability charged. Such a defense leaves the burden of complete proof on the plaintiff, but does not justify special defenses implying a pre-existing but extinguished obligation and which should be expressly set up.

A petition may be amended, provided, the amendment does not alter the substance of the demand, that is: the prayer, by mating it different from that originally formed.

An answer can likewise be amended, subject to the same rule. The defendant may even add peremptory exceptions to it. C. P. 419, 420.

Amendments are reducible to no unbending rule. Each case must be left to the sound discretion of the court. They should always be permitted where they tend to the furtherance of justice and cause no injury, without prejudice to the right of the other party, who may plead and show surprise, to ask time to prepare himself. H. D. 1182 (9) C. P. 421; L. D. 554 (1).

The amended answer, complained of in this case, does not alter the prayer of the original one. It contains no allegations antagonistical to the previous defense, shaped into a general denial. It elaborately enumerates the reasons for which the defendant cannot be hold liable. It sets up facts and legal deductions therefrom, likely to have arisen, after proof by plaintiff of his allegations. It is practically nothing more than a peremptory exception filed after the closing of the evidence, which is permissible at any stage of the proceedings.

It does not appear that the plaintiff has pleaded surprise, asked time and was refused the same. We cannot say that the district judge erred in allowing it to be filed.

We deem it unnecessary to consider the bills of exception of defendant, as the admitted evidence cannot prejudice him and the rejected testimony is cumulative and actually superfluous.

The facts, indisputably established, are:

S. Meyer purchased from W. W. Parmer, for $4500, paid, a piece of property known as the King place, in Monroe, adjudicated to him with other real estate for $7383 33, under executory proceedings by a mortgage creditor, against the succession of Morrison, of which he, Parmer, was to Meyer’s knowledge, the administrator. The purchase was made in furtherance of an understanding between them, previous to the crying, that Meyer, who intended bidding on that property, would not do so, against Parmer, who also proposed and was anxious to buy it; that after the adjudication to Parmer he would sell it to Meyer, for the price agreed. The entire property, inventoried at $12,000, was adjudicated in block, including the King place, to Parmer for $7383 33, that being the two-thirds of the appraisement. There was no other bid besides Parmer’s. Meyer had absented himself from the place of sale on the occasion.

Parmer was subsequently removed as administrator and suit was instituted by his successor, both against him and against Meyer, for the nullity of the adjudication to him and of the sale by him tó his vendee. The litigation ended by final judgment annulling the two transactions complained of and the two pieces of property reverted to the succession.

The reasons assigned in the suit against Parmer expressly form part of the opinion in that against Meyer, the facts being identical, or nearly so, in both controversies.

In the opinions which we delivered at the time (34 A. 1020 and 1031), we emphatically stigmatized the two transactions as offensive and prohibited by law. In the case of Chaffe vs. Meyer, this very defendant, it was said: If the sale to Parmer was a nullity, the sale by him to Meyer who was aware of all the circumstances of the same and a party thereto, is likewise a nullity.” We adduced authorities establishing the proposition, that, agreements whereby parties combine not to bid against each other, at public auction, especially in' cases where such auctions are required by law — are void — for they are unconscientious, against public policy and have a tendency to injuriously affect the character of such sales, to mislead private confidence and operate, virtually, as a fraud upon the sale.

Prom that state of facts and this appreciation of the law applicable thereto, it is manifest that the contract, one of the elements of which is sought to be enforced in this case, was palpably immoral and such as courts of justice cannot enforce without desecrating their lofty mission.

It is also .apparent that, as no one can claim ignorance of the law and is bound to know it at his risk, Meyer lemew that his previous understanding with Parmer, who was the administrator of the succession of Morrison, and the subsequent execution of it, culminating into the sale and purchase, was reprobated, because against good morals and public policy. He cannot, therefore, be listened to say, in the present suit, that the particular act in question has been proved not to be fraudulent or not contrary to public good, R. C. C. 19, as the law transgressed by him was enacted to prevent fraud, or for some other motive of public order or interest, declared the act void. lie further knew that the adjudication to Farmer was one susceptible of annulment on that ground. He, nevertheless, i>urchased from Parmer and paid the price.

Under those circumstances can he, as an evicted purchaser, claim the return of the price ?

The law, it is true, is positive that even in case of stipulation of no warranty, the seller, in case of eviction of the purchaser, is liable to a restitution of the price; but after laying this rule down as a general principle, it formally announces the exception, that this shall not be the case, where the buyer, at the time of sale, was aware of the danger of eviction and purchased at his peril and risk. R. C. C. 2505.

In the application of this law this Court has frequently announced that whore the vendee was aware of the defects of Ms title, and therefore purchased at all hazards, he was entitled to no claim by reason of eviction. 5 R. 76 ; 3 A. 326; 5 A. 314, 491, 667, 683; 6 A. 297; 21 A. 248, 721; 6 L. 550; 3 R. 434; 4 A. 321; 18 A. 232.

This article of our Code is borrowed from the Napoleon Code. C. N. 1629; and derives, on principle, from the Roman law.

While commenting upon it, the French writers say:

“La connaissance dont parle notre article n’est pas seulement celle que le vendeur a donnée oxpressément du danger de la chose, mais celle que l’acheteur pouvait avoir au moment du con brat par quelque moyen que ce soit.” V. Dalloz, garantieNo. 125; Troplong, Vente, 484.
“Celui qui acháte, á'ses risques et périls, soit qu’il le declare en termes exprés, soit que'son intention se révele par des expressions analogues, n’a pas le droit de réelamer le prix par lui payé; ear ce prix n’est pas précisenjent la reprósentation de la chose qui lui est transmise. II est l’équivaíent des pretentions, des chances qui lui sont offertes.” Duvergier, Vente No. 339; Favard, Vo. Vendeur, sec. 2, § 1, No. 5.

In proper cases the law affords a loom penitentiw to the particeps crimims and allows him to plead as was done in this case, that a contract into which he has voluntarily formed is contra l)onos mores. The authorities make an exception to the general rule : nemo állegans tur pitudinem sxiam midiendus, which is founded upon the necessity of the case and the paramount interest of the public. Gil vs. Williams, 12 A. 221.

In cases of that description, this Court has distinctly announced that the law whose mission is to right the innocent and to enforce the performance of licit obligations only, leaves parties who traffic in forbidden things and then break faith, to such mutual redress as their own standard of honor may award. Boatner vs. Yarsborough, 12 A. 250.

It was also said, more than once, that courts of justice will not aid parties in the enforcement of the effects of contracts made in violation of law. 12 A. 167; 1 A. 178; 19 A. 332; also, 3 M. N. S. 48; 17 L. 120; 7 Wall, 548, Cappel’s case; 11 Wheaton, 258, Armstrong’s case; 4 Peters, 189, Parties’ case; 68 N. Y. 558; 57 N. Y. 518, (533).

Eighty years and more ago, Lord Kenyon, in tlie Court of King’s Bench, emphatically said:

“No case can he found where, when money has been paid by one of two parties, to the other, upon an illegal contract, both being participes criminis, an action has been maintained to recover it back.” Houson vs. Hancock, 8 T. R. 575.

Under the weight of those conservative expositions of the law, we cannot conceive how it is possible for us to allow the plaintiff the relief which he seeks.

The jury who rendered a verdict in his favor took rather a business than a legal view of the nature of his demand and the district judge who rendered judgment on their finding, no doubt thought it was preferable to do so, as the case was to be taken up for review on appeal.

It is, therefore, ordered and decreed that the verdict of the jury be sot aside and the judgment upon it avoided, annulled and reversed, and it is now ordered, adjudged and decreed that there be judgment in favor of the defendant or his succession, rejecting plaintiff’s demand, with costs in both courts.


text:
    No. 1112.
    Orr & Lindsley vs. William Hamilton.
    Article 2203 of tlie Civil Code, winch provides that* the remission or conventional discharge in iavor of one of the co-debtors in solido discharges all the others,” applies to obligations eat delicto as well as to contract obligations.
    Parol testimony is inadmissible to prove a compromise, which must be reduced to writing.
    But a judgment of a competent court of record predicated on a compromise and a resulting consent between the parties, is admissible in proof of a compromise.
    APPEAL from the Fifth District Court, Parish of Ouachita. Richan'dson, J.

      Talbot Stillman for Plaintiff and Appellees.

      Boatner & Boatner for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

In a suit on a promissory note of the smn of four hundred and twelve dollars, plaintiff sued on an attachment of defendant’s property, consisting of goods, wares and merchandise, on the alleged ground of the debtor’s intention to dispose of the same in fraud of Ms creditors.

On motion of the defendant, the writ of attachment was dissolved as having been wrongfully obtained. That judgment hawing been affirmed by the Court of Appeal, is now final.

In Ms answer the defendant pleaded in reconvention damages in the sum of five thousand five hundred dollars, alleged to have been caused by the illegal attachment of his property, and lie has taken this appeal from the verdict of a jury allowing him only one hundred dollars as damages, which he finds insufficient. Plaintiffs pray for an amendment of the judgment rejecting entirely the claim for damages.

To the demand in reconvention, plaintiffs first pleaded a peremptory exception urging in substance that simultaneously with their attachment several similar proceedings had been instituted by other creditors of the defendant, whose property was seized under these several writs, in consequence of which all the attaching creditors became responsible in solido for all damages suffered by the defendant. They then aver that by subsequently entering' into a compromise with several of the seizing creditors, and granting them a conventional discharge, the defendant had lost all recourse on any of the other co-debtors as alleged tort-feasers. Their exception was overruled; but it was well taken and it should have prevailed.

Defendant contends that the provisions of article 2203, Civil Code which declare that the remission or conventional discharge in favor of one of the co-debtors in solido discharges all the others, does not apply to obligations arising ex déheto, but only to contract obligations.

The plain and unambiguous language of the Code does not warrant the distinction invoked, which is practically a distinction without a difference. Each wrong-doer is responsible for the full amount of the damages suffered; and any amount paid by one of them on the score of damages in discharge of the legal obligation resulting from the tor-tious acts of several wrong-doers, must operate the discharge of all of them, unless the party injured has expressly reserved his right against the latter.

Such is the construction placed on the article by this Court in the case of Owen vs. Brown, 13 Ann. 201. That was an action for damages for an alleged wrong, and the defense was the discharge of the defendant by reason of a compromise between plaintiff and one of the alleged wrong-doers. The defense prevailed, the court holding that “ a settlement with, and an unconditional discharge of, one of the tort-feasers has discharged the other.”

The next contention of the defendant is, that parol testimony was inadmissible to prove a compromise, and his bill of exception to the judge’s ruling on that point was well taken.

But discarding all such evidence, we find in the record judgments rendered in the several cases, which furnish ample and the highest kind of evidence of the compromise entered into between the defendant and several of his wrong-doers.

These judgments recite in substance that the parties have compromised their respective claims, and by reason of their consent the creditors recover judgment on their demands, and the defendant recovers a stated amount on his reconventional demand for damages.

This Court must presume that the district judge had legal proof of the compromise which made the basis of his judgment; and besides, the admission of both parties in open court of the existence of a lawful compromise would estop them from denying that the contract had been reduced to writing as the law requires.

Defendant’s last point, touching Ms alleged reservation of his rights against plaintiff is not supported by the record. The evidence on that point consists mainly of loose statements of Ms attorneys that they intended “to fight Orr & Lindsley,” and of their own construction of the meaning and purport of the language used. Irwin vs. Scribner, 15 Ann, 583.

It is therefore ordered that the judgment of the lower court and verdict of the jury on the reconventional demand be set aside and annulled. It is now ordered that defendant’s reconventional demand be rejected at his costs in both courts.

Judgment reversed.


text:
    No. 1113.
    Emily Filhiol vs. R. G. Cobb.
    It is not vicious pleading where two demands are coupled, not inconsistent nor contrary and where one does not exclude the other, as where there is an express warranty of title with stipulations that in case of eviction the vendor will return the purchase price and reimburse the cost of improvements, or will reimburse the vendee such sum as he may pay to avoid dispossession.
    In such case, where there has not been an actual eviction but a purchase of the superior title, the vendee will recover the sum paid for such title to avoid dispossession.

      APPEAL from the Fifth District Court, Parisli of Ouachita. Mehardson, J.

      'EfiTbot Btillmcm for Plaintiff and Appellee.

      JR. G-. Oobb in pro. per.

   The opinion of the Court was delivered by

MANNING, J.

The plaintiff acquired from the defendant through a mesne conveyance a tract of land below the town of Monroe of 142 acres, from which she was evicted" or was about to be evicted, when she bought a title from the party who was about to dispossess her. She prays judgment in the alternative, either that she recover the price paid by her to her vendor and the cost of improvements put by her on the land, or the sum paid by her to avoid eviction to the party who was about to dispossess her.

The defendant moved that the plaintiff be compelled to elect, and the judge refused the motion.

There is no inconsistency in the two demands. Neither excludes the other, nor is one contrary to the other. Cross v. Richardson, 2 Mart. N. S. 323; Montross v. Hillman, 11 Rob. 87. The cause of action is eviction from land, the title to which was warranted, and the prayer is for payment for one or the other of the resulting consequences.

The plaintiff bought from the vendee of the defendant with subro-gation to all Ms rights. The defendant’s deed to that vendee, after warranting against all claims, mortgages, and incumbrances whatsoever in order to secure him against eviction and against all losses and expenditures he may suffer, or find it necessary to make in order to avoid eviction by any adverse title or mortgage, specially mortgaged to him another tract of land, to secure to the vendee or his assigns the . return of the purchase price and the value of the improvements existing at the time of the eviction. Then follows a separate stipulation, if the vendee or his assigns shall be required to pay any sum to prevent being dispossessed, such sum shall be refunded to him with interest.

The plain meaning of these stipulations is, if Cobb’s vendee, or any subsequent purchaser who has been subrogated to that vendee’s rights, shall be evicted from the land and lose it altogether, Cobb will refund him the purchase price and the cost of improvements, but if he shall not lose the land altogether but retain it by paying a sum to avoid dispossession, then Cobb will refund that sum with interest.

Tlio subsequent history of the land was, it was sold under foreclosure of the Citizens’ Bank mortgage and bought by the Bank. Mrs. Filhiol was permitted to remain on the jdace and nothing she had was disturbed. A custodian was put on the plantation — this land of Mrs. Filhiol being a part of a large plantation once owned by Powers, and the whole plantation having been acquired by the Bank under its foreclosure — the putting the custodian there being evidently intended to denote a formal taking possession by the Bank. It is true that such an act constitutes a technical eviction of the former possessor, for actual dispossession is not essential to constitute eviction, but it is manifest the particularity of Cobb’s recitals in .his deed was intended to provide for both contingencies, actual eviction and impending dispossession. In the first case, the party evicted was entitled to reimbursement of his purchase price and cost of improvements, in other words to reimbursement of what he had lost. In the second, he was entitled to be refunded what he should pay to avoid dispossession, and that is the smaller sum for which judgment is prayed, and which alone can be recovered.

Mrs. Filhiol has not yet paid all of this sum, having arranged with the Bank to pay by instalments. The sum agreed on is $1420 and Cobb’s stipulation was to pay eight per cent, interest. May 22, 1883 is the date from which interest runs.

A call in warranty upon F. P. Stubbs was made by the defendant which was answered. No disposition is made of it. The judgment does not affect it, and" we have not considered it. The plaintiff should not be delayed, and it would seem the defendant’s rights therein should be reserved, for which we shall provide.

It is therefore ordered and decreed that the judgment of the lower court is amended by inserting in lieu of the sum therein stated, fourteen hundred and twenty dollars with eight per centum per annum interest from May 22, 1883, and'that the rights of the defendant against F. P. Stubbs are reserved, and as thus amended that it is affirmed, the plaintiff and appellee to pay costs of appeal.

On Application por Rehearing.

The plaintiff calls attention to the omission to include in our decree the attorney’s fees which were secured by Cobb’s special mortgage, and which were fixed at ten per centum upon the amount Ms vendee had to pay, and must therefore be computed upon the judgment we have rendered for the reimbursement of that amount. We shall amend accordingly.

The defendant points out that our decree does not conform to the terms of payment and rate of interest obtained by Mrs. Eilhiol from the Bank. If the Bank has granted her time and a reduced rate of interest, that does not alter or affect his stipulation, which we have enforced..

The rehearing prayed by the defendant is refused, and that prayed by the plaintiff need not be granted for the purpose of amending. Proceeding to amend, it is ordered and adjudged that the former decree is amended by inserting therein that the plaintiff have and recover one hundred and forty two dollars of the defendant as attorney’s fees, and as thus amended that it be and remain the judgment of this court.

Rehearing refused.


text:
    No. 1110.
    S. Meyer vs. F. P. Stubbs.
    When a suspensive appeal had been perfected in a case then appealable, before the promulgation of the constitutional amendment, our jurisdiction thereof vested, although the return-day and actual filing of the transcript did not occur till after such promulgation. CL'he case stands on the same footing with appeals of the same character which had been filed prior to the promulgation, and the transfer thereof to the Circuit Court will be granted.
    APPEAL from the Fifth District Court, Parish of Ouachita. Fichardson, J.

      Mehan'dson & Liddell for Plaintiff and Appellee.

      F. P. Stubbs for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The amount in dispute in this case does not exceed two thousand dollars exclusive of interest. Our appellate jurisdiction over it, therefore, ceased with the promulgation of the recent constitutional amendments.

The only point in which it differs from the case of Walmsley vs. Nichols, just decided, is that the transcript of the appeal had not yet been lodged in this court until after the promulgation. It is a difference without a distinction.

The appeal had been taken and perfected long prior to the promulgation, and was made returnable, according to law, to this court at its present term.

It is elementary that our jurisdiction over the cause attached as soon as the appeal was perfected, and continued in full vigor as if the transcript had been filed, until divested by the promulgation of the constitutional amendment.

The filing of the transcript was a mere act of obedience to the order granting the appeal and to the law.

It was necessary for the appellant to pursue this course, in order to preserve the effect of his suspensive appeal.

We act upon the case as we find it at the moment when we arc called upon to act. Our jurisdiction had attached prior to the promulgation of the amendment. That jurisdiction has been taken from us and vested in the Circuit Court. The transcript is lawfully in our records. All we have to do is to make the necessary order to enable the appeal to pass to determination in due course of law by the tribunal to whose jurisdiction it has been transferred.

It is, therefore, ordered that this appeal and the transcript and record thereof be, and the same is, hereby transferred to the honorable the Circuit Court of Appeals for the Second Circuit, sitting in the parish of Ouachita, and that the clerk of this court be authorized to execute this order.