text:
    No. 11,236.
    Elizabeth Schneider et al. vs. James Burns.
    The recording* in the office of the recorder of the certificate of the clerk of the court of the amount of the minor’s property, according to the inventory on file in his office, operates as a legal mortgage in favor of the minor for the amount therein stated on all the immovable property of the tutor as a security for his administratiou, from the day of his appointment until the liquidation and settlement of his final account.
    This mortgage is not only to cover administration of the particular money or property included in the inventory, hut covers the eventual balance which will be due by the tutor at the close of the tutorship. All the property owned by the tutor during the tutorship is struck by this mortgage, whether acquired by him before or after the receipt of particular funds, and whether it had been sold prior to such receipt, unless said property had been withdrawn from the operation of the general mortgage byrestricting the latter upon specific property, under the statutes specially providing for and governing such cases.

      3. The inscription of the clerk’s certificate having been once made can not be erased from the records until the close of the tutorship, although its effect may be restricted to particular property under conditions specially affixed by law.
    4. Accounts of tutorship presented during minority and homologated contradictorily with the under-tutor are not final judgments fixing absolutely the relations between tutor and pupil up to a certain date — they are provisional in character, merely prima facie correct, and subject to revision and correction up to the final account of tutorship. When revised, and corrected, the amount . actually due is supported bv the mortgage resulting from the inscription originally made.
    There is no law authorizing the absolute release of the tutor’s personal responsibility or of the tutor’s property from the legal mortgage securing that responsibility until the termination of his functions.
    PPEAL from the Civil District Court for the Parish of Orleans. King, J.

      James Timony for Plaintiff and Appellee.

      H. C. Gage for Defendant and Appellant:
    1. The minor’s legal mortgage on the property of his tutor arises under the ancient law of Louisiana, contained in Art. 3282 of the Code of 1825, now Art. 3314 of the Code of 1870. Skipwith vs. Glathary, 34 An. 28.
    2. The provisions of law contained in Act 95 of 1869 and Arts. 321 and 322, C. C. of 1870, simply restrict the legal mortgage to the sum named in the clerk’s certificate, and provide for its registry so as to affect third parties, in view of Art. 123, Const. 1868, and Art. 175, Const. 1879.
    3. During the minority of the pupil, the legal mortgage can only be canceled by a special mortgage on particular property by the advice of a family meeting. 33 An. 49; 19 An. 55; 12 An. 78; 12 An. 361; 5 An. 497.
   The opinion of the court was delivered by

Nicholls, C. J.

Plaintiffs allege that at a public sale made by Baumgarden & Fredericks, auctioneers, on the 25th of January, 1893, certain property described in their petition was adjudicated to James Burns for the price of $2200; that they are the owners of said property and that they tender a good unencumbered title to said adjudicatee, but that he refuses to accept the same and to comply with the adjudication. They pray that he be cited and that they have judgment ordering him to comply with the adjudication and pay the price thereof, and on his refusal to do so within ten days from judgment that they have execution against him for $2500, with interest from January 25, 1893, and costs.

Defendant pleaded first the general issue — further answering he said “ that the property described was duly exposed at public auction and was adjudicated to him at the price and sum of $2200 as the last and highest bidder. That a title was offered him to said property, but he specially denied that the same was clear and unencumbered for the reason that Mrs. Elizabeth Schneider, one of the vendors, was married to one Andrew Schneider, who died on the 8th day of November, 1890, leaving separate and community property in the parish of Orleans, and leaving a minor child, Antonia Schneider, aged about eleven months, being the issue of the marriage between him and said Elizabeth Schneider. That the succession of said Schneider was opened in the Oivil District Oourt for the parish of Orleans; that an inventory was taken which showed the said minor’s interest to amount to the sum of $1440. That a certificate of said inventory was filed in the mortgage office of the parish of Orleans upon the application of Mrs. Schneider to be confirmed and qualified as natural tutrix of said minor, and said inscription became a general mortgage upon all the property of said Mrs. Schneider, and especially upon the piece referred to, for the amount shown by said certificate, thereto remain and act as such until the final settlement between Mrs. Schneider and her said pupil.”

That Mrs. Schneider has illegally and wrongfully caused said minor’s mortgage to be nominally canceled and erased from the books of the recorder of mortgages, and notwithstanding said illegal and wrongful cancellation said minor’s mortgage remains in full force and effect, and the property tendered to respondent is liable under said mortgage to secure and make good to said minor whatever sum. or sums which may be due to said minor upon final settlement with her tutrix. He therefore prayed that the demand of plaintiffs be rejected.”

The case was tried upon an agreed statement of facts, which was as follows:

1. Mrs. Elizabeth Schneider filed an attested account which is signed by the under-tutor and which was duly homologated by the udgment of the court. This account shows that the tutrix owed the minor nothing, the succession of Andrew J. Schneider being insolvent.

2. Mrs. Elizabeth Schneider took a rule upon the under-tutor and the recorder of mortgages, alleging the fact as herein stated in No. 1 of this “ statement of facts ” to show cause why the inscription in the mortgage office resulting from the filing of the clerk’s certificate ■ of the amount of the inventory should not be canceled, and the rule was made absolute and the inscription canceled.

■3. The paternal grandmother of the minor is aged, and when she dies there will probably devolve upon the minor an inheritance amounting to about $ 1000.

The District Court rendered judgment in favor of plaintiffs against defendant as prayed for by them and defendant has appealed.

The proposition contended for by the plaintiffs is that if at any period between the appointment of a tutor and his discharge at the termination of his trust, he should file an account which after due proceedings would be homologated contradictorily with the under-tutor, by which it would appear that at the date of filing and homologation there was nothing due by the tutor to his pupil, and nothing for which he was then responsible, the tutor would be authorized to obtain a subsequent decree (on proceedings also taken contradictorily with the under-tator) for the erasure from the mortgage records of the inscriptions which up to that time evidenced a mortgage in favor of his ward, and a judgment declaring the non-existence of any mortgage on his property. That a decree to that effect would enable the tutor to sell his property, and a purchaser from him to acquire his property free from the minor’s mortgage.

The proposition is not sustainable in law. It rests upon false premises and false assumptions.

In the first place the account which is rendered by a tutor pending the tutorship, and which may be homologated contradictorily with the under-tutor, is not a final judgment and does not definitively fix the situation or condition of affairs even up to the date at which it is rendered. It is at best only prima facie correct, and is subject to be reopened by the minor when he becomes of age and is subject to amendment or correction to the full extent of error.

In Stafford vs. Villain, 10 La. 329, this court said: “Tutors under an order of the Court of Probates must, and without it may, exhibit an account of their administration and the court may make certain orders thereon, but nothing authorizes it to homologate such accounts so as to render them conclusive and binding on the minor, for the law gives to the latter the right until the expiration of a certain delay after he becomes of age to examine and contest all the accounts of his tutor. The court, therefore, can in no case relieve and discharge the tutor from his responsibility.”

The first error in plaintiff’s position is in ascribing to a provisional account homologated during the tutorship the effect of determining absolutely the relative position of tutor and ward at any given fixed period.

The next error is in assuming that the inscription of the certificate of the district clerk, furnished by him in compliance with Art. 3351 of the Oivil Code, showing the amount of the minor’s property according to the inventory on file in his office, operates a mortgage in favor of the minor for the amount therein stated, to secure the faith - ful administration of the tutor for the property therein stated, and that upon showing that that particular property or money has been legally expended or accounted for, the mortgage (being a secondary or accessory obligation for that particular sum or property), falls and disappears, leaving the future rights of the minor to be secured by a new inscription as to their existence and as they arise, to be made by the tutor or under-tutor.

It has been repeatedly held by this court that the legal mortgage of the minor was not for the accounting of any particular sum of money or property, but for his faithful administration during the whole period of the tutorship. Speaking of this general mortgage, the court, in Barnard vs. Erwin, 2 Rob. 407, said:' “A general mortgage, says the Code, is that which binds all the property present and future. A special mortgage is that which binds only certain specified property. A mortgage may be stipulated for the fulfilment of any obligation whatever, even for the completion of an act. It may be given for an obligation which has not yet risen into existence, as where a man grants a mortgage by way of security for endorsements which another promises to make for him. It was clearly the intention of the Legislature to secure to the minor the faithful administration of the tutor up to the moment of his final discharge, and therefore the amount secured by the mortgage is not necessarily to be ascertained at the moment the mortgage was executed. If other sums should come into the hands of the tutor the property mortgaged would stand as security. The amount found due by a settlement in the Court of Probates during the minority of the pupil is not conclusive upon him. It may be examined into afterward on settling the tutorship and rendering a final account. It was as clearly the duty of a faithful tutor to correct such an error as was discovered in this case (an error in the tutorship account) as it would be to recover from a third person the same amount discovered to be due. In both cases the sum found to be due is the property of the minor, and its administration and final payment to the pupil at his age of majority are secured, in our opinion, by the mortgage in question; ” and in Holmes vs. Henken, 6 Rob. 53, the court said: “ The mortgage of a minor can be enforced against a tutor only at the termination of his functions in one of the modes provided for by law.”

In Skipwith vs. Glathary, 34 An. 33, the court, discussing the effect of the Constitution of 1868 upon minors’ mortgages, said: “It now becomes necessary to determine whether the general mortgage resulting from the registry of the inventory extract secures all rights of the minors as will those in existence at the date of the inventory and therein specified as those accruing thereafter. * * * The convention did not propose to destroy existing lavs and jurisprudence on the subject matter, but merely to render express a mortgage which was previously tacit or occult, the registry being intended solely to notify third persons of the existence of the tutorship and of the eventual liabilities of the tutor at the end of the tutorship in order that when contracting with the tutor they might be on their guard. The requirement of the registry was intended for the protection not only of third persons but also of minors, but not beyond the amount so recorded in any event, except by a new or additional inscription. The law has always been and is that minors have a legal mortgage upon the property of their tutors from the day of their appointment until the liquidation and settlement of their final account. C. C. 3314.

“That mortgage now to exist must be recorded and takes effect against third persons only from the time of inscription. The registry does not liquidate the amount appearing on it, but warns such parties that on a settlement with their tutors the minors’ claim may rise to the amount stated in the registry. The mortgage formerly existing without registry in favor of minors has been held to cover not only amounts due and the liabilities of the tutor at the time of his appointment, but also the rights of the minors accruing subsequently, the mortgage being allowed as a security for the tutor’s administration from the time of qualification and continuing until the liquidation and settlement of their account, when it is ascertained what amount is due the minor.

The mortgage which springs into existence at the date of the tutorship and of the registry of the certificate or bond has this remarkable feature, that it is assimilated to and operates like the conventional mortgage given to secure obligations which have not yet risen into existence (R. O. O. 3292), and affects third persons who have had knowledge of it, so as to subject property encumbered by it when it is necessary to do so for the satisfaction of the rights of the minors as liquidated and found at the end of the tutorship.”

We think it beyond question that the mortgage resulting from the inscription of the certificate of the clerk was not intended by the law-maker to represent simply a debt then due to the minors, but was to secure up to the amount mentioned the faithful administration of the tutor and to cover his eventual liability when the tutorship shall terminate and a settlement with his ward shall be made. Succession of Kuntz, 34 An. 855.

We are of the opinion likewise that from the date of the inscription up to the closing finally of the tutorship account, the minor’s mortgage up to that amount will strike all of the immovable property of the tutor owned by him during the tutorship, whether it was acquired before or after the receipt by him of particular funds, and whether at the time of that receipt he was still the owner of the property or had already sold the same.

What we here say does not of course extend to cases in which the tutor has been permitted to restrict the legal mortgage to specific property by the giving of a special mortgage. Oases of that kind would fall under the operation of the statutes providing for and regulating them and would not be controlled by general principles.

We can only apply such rules to cases before us whose actual facts fall under the statute. The proceeding is statutory, and we can not act outside of the. precise terms of the law. We can not reason or act by analogy. When, therefore, the plaintiff argues, as we understand her to argue, that, had the account, which in this case has been homologated, shown a balance in favor of the minor of $50 to $75, she could have applied for and obtained a decree for the substitution for the legal mortgage on all her property of a special mortgage on particular property, and limiting the amount of this special mortgage to the small amount as shown by a present liquidation of the minor’s affairs, and releasing the balance of her property from mortgage, we simply answer that whilst that may be true for the reason that ita lex seripta est', and we could point to the source of our authority for so doing, her argument fails for the reason that she has not in fact done the thing from which she argues, and we know of no law which would justify us in entirely releasing or declaring entirely released, prior to the end of the tutorship and final settlement, the legal mortgage on a tutor’s property resulting from his tutorship.

Even in cases where by law, in consequence of á substitution of a special mortgage on specific property for the general mortgage of the minor on the balance of the tutor’s property, the court is authorized to release all but the property specially mortgaged from the minor’s mortgage, its decree would have to conform in its terms to the wording of the law, and nothing in the law would justify courts in declaring the legal mortgage of the minor entirely released. The actual result of a decree properly rendered would in each case have to be governed by its own facts.

There is no inconsistency in the legal mortgage and the special mortgage coexisting on the specific property specially mortgaged. See Barnard vs. Erwin, 2 Rob. 407; Gurlet vs. Jure, 15 An. 417; Fleetwood vs. Bordis, 19 An. 56; McDaniel vs. Guilory, 23 An. 544; Isaacson vs. Mentz, 33 An. 595; Skipwith vs. Glathary, 34 An. 33; Succession of Kuntz, 34 An. 854.

We have alluded to the radical error which plaintiff has fallen into as to the conclusive character of tutorship accounts homologated during minority. As we have seen, they are subject to revision and correction up to and after the majority of the pupil.

When so corrected the law-maker contemplated that the minor, now come of age, should find in full force, standing as security for correction of this error, the minor’s mortgage, given for the faithful administration by the tutor of his trust from its commencement to its end. Barnard vs. Erwin, 2 Rob. 407.

The defendant is not called upon to take any risks in this matter.

If plaintiff desires to have this particular property declared released from mortgage it is possibly in her power to do so by giving the special mortgage, on the right to give which, she argues to her conclusions.

As matters stand we are not authorized so to declare, nor was the -district judge. Stafford vs. Villain, 10 L. 329; Bordis vs. Fleetwood, 19 An. 56.

For the reasons herein assigned it is hereby ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed, and it is now ordered, adjudged and decreed that plaintiff’s demand be and the same is hereby rejected at her costs.

Rehearing refused.


source: Caselaw Access Project

author: Nicholls, C. J.

license: Public Domain

text:
    No. 11,272.
    The State of Louisiana ex rel. Simon Abraham vs. The Judges of the Fifth Circuit Court of Appeals et al.
    1. Where a defendant against whom a judgment has been rendered in the District Court for an amount within the appellate jurisdiction of the Court of Appeals takes an appeal from the judgment returnable to the latter court, and the appellee moves in that court to dismiss the appeal on the ground that the allegations of the petition show a “matter in dispute” within the jurisdiction of the Supreme Court, the Court of Appeals has, for the purposes of a decision on the motion, the right to examine the nature of the cause of action, the pleadings as a whole, and the evidence and course of proceedings in the lower . court, and is not restricted to the prayer of the petition.
    .2. When from such an examination, reaching the conclusion that allegations were inserted in the petition solely as a pretext to have recourse to the Supreme Court where the true matter in dispute is below its constitutional jurisdiction and within its own, it overrules the motion to dismiss and retains jurisdiction, its action will be sustained on application for. writs of prohibition and certiorari where the record shows that had the appeal been brought to the Supreme Court it would have been dismissed exproprio niotu for want of jurisdiction.
    y^PPLIOÁTION for writs of Certiorari and Prohibition.

      Olay Knobloch and Lazarus, Moore & Lemle for the Relator.

      Beattie & Beattie for the Respondents.
   The opinion of the court was delivered by

Nicholls, C. J.

Relator represents that on the 1st of June, 1892, he filed in the District Court of Lafourche his suit against Arthur Gossin for the specific performance of a written proposition of sale made by him and duly accepted by Gossin, by which agreement relator agreed to sell and Gossin agreed to buy the steamboat “Alexander” for the fixed price of $1750, whereof $500 was to be paid cash, $850 by Gossin’s transferring to relator ten shares of the Jackson Brewing Company of New Orleans of the face value of $100 per share but of a market value of $85 per share, and the balance of the purchase price ($400) by a note of Gossin to the order of relator, payable January 1, 1893, with 8 per cent, per annum interest from date of passing the act of sale, said act to be passed immediately after the boat had passed inspection of the United States inspectors. That in his petition he averred that by said agreement he bound himself to have the boiler of the boat inspected at a cost of $145, and he caused said repairs to be made; that the boat passed inspection May 7, 1892; that Gossin declined to accept the boat and complete sale as agreed on; that relator placed him in default; that in said suit for specific performance, after alleging the refusal of Gossin without just or legal cause for not complying with the agreement, he also alleged that the said refusal had caused relator damages in the sum of $550— that is, for attorney’s fees in prosecuting the suit at $250, relator’s traveling expenses at $10, costs of notarial protest at $15, loss of time at $25, and exemplary damages for said Gossin’s gross bad faith at $250. That in said suit he not only prayed for specific performance showing an amount in contestation of $1750, but also prayed for said damages, amounting in the aggregate to the sum of $550, making the total amount in dispute the sum of $2300. That the case was tried pursuant to assignment and resulted in a judgment on the 30th of September, 1892, in favor of relator — -1st, for the sum of $500 with 8 per cent, interest from 17th May, 1892; 2d, transferring to relator the ten shares of the Jackson Brewing Company’s stock, which were worth $850; 3d, condemning defendant to give his note to relator for $400, with 8 per cent, per annum interest from 17th May, 1892, until paid — all of which was in compliance with relator’s petition for specific performance, but, 4th, rejecting relator’s claim for damages as in case of non-suit and disallowing defendant’s claim in reconvention.

That on the 1st of October, 1892, Gossin moved for a suspensive and devolutive appeal in the alternative from said judgment, returnable according to law, and later on at his own suggestion the same was made returnable to the Fifth Circuit Court of Appeals, which appeal was perfected by his giving bond for a suspensive appeal, returnable to “the Fifth Circuit Court of Appeals,” “returnable according to law.”

That relator, believing that said appeal had been made returnable as it should have been to the Supreme Court on the third Monday of January, 1893, when appeals from the parish of Lafourche are returnable according to law, was present through counsel on that day and there awaited until the delay of filing an appeal had expired, whereupon he obtained from the clerk of the Supreme Court a certificate of non-filing, dated January 20, 1893, which he annexed to his petition.

That to his great astonishment he discovered when he filed with the clerk of the court of the parish of Lafourche the said certificate of non-filing that the appellant had made his appeal at his own solicitation returnable to the Fifth Circuit Court of Appeals, which, under the law, sits for the parish of Lafourche on the third Monday of February, 1893.

That on the return of said appeal in the Circuit Court of Appeals (20th February, 1893), he filed his motion to dismiss said appeal on the ground that the court was without jurisdiction ratione materiee, that the amount in dispute exceeded $2200, exclusive of interest, and that the appeal should have been made returnable according to law to the Supreme Court. That despite said motion to dismiss, the said Circuit Court and its judges have usurped jurisdiction of said appeal and have overruled relator’s motion and have proceeded under a rule of their court which compels appellee to submit both his motion to dismiss and the merits of the cause, to decide the merits of the cause, all to the great injury of relator and in violation of his just and legal rights in the premises.

That said Circuit Court placed relator in a position where he can not claim (1) his attorney fees of $250 to which he is entitled without proof, the court being competent to place an estimate upon such services; (2) notarial fees of protest, which courts are also competent to place value on without proof; (3) exemplary damages claimed by relator against Gossin, for gross violation of the contract sued on, which damages are never proved, and that the Circuit Court of Appeals has thus deprived relator of his claim for damages by usurping jurisdiction of a cause ’over which they had no jurisdiction ratione materiee, and which if it had been returned to the Supreme Court relator would have had an opportunity, of which he was willing, ready- and anxious to avail himself, of asking an amendment of judgment by increasing the amount awarded by the District Oourt to $1750 by (1) attorney’s fees, $250; (2) notarial fees, $15; (8) exemplary damages, $250.

In view of the premises relator prayed for writs of certiorari and prohibition directed to the judges of the Fifth Circuit Oourt of Appeals, to the clerk of the District Oourt for the parish of Lafourche and Arthur Gossin, ordering and commanding them to proceed no-further in the case of relator against Arthur Gossin until this court shall haVe rendered judgment on the regularity and legality of the proceedings had in said Circuit Oourt, and that all proceedings had in said cause in the Circuit Oourt be decreed null and void, and that the judgment in said cause, rendered by the Eighteenth Judicial District Oourt on the 80th of September, 1892, remain undisturbed and of full force and vitality.

Alternative writs issued as prayed for.

The judges of the Oourt of Appeals substantially answered that the-case of Simon Abraham vs. Arthur Gossin, No. 44 of the docket of the Fifth Circuit Oourt of Appeals, was passed upon by them, and was within the jurisdiction of the said court for the reason that-plaintiff’s demands for damages were unreal, and only intended to-afford a pretext for- a recourse to the Supreme Oourt in a cause-where the true matter in dispute was below the constitutional jurisdiction of that court, and actually within that of the Circuit Oourt.

When the appellee filed in the Oourt of Appeals a motion to dismiss defendant’s appeal, he invoked the action of that court and-necessarily placed it on inquiry for the purposes of decision.

He concedes that the court had power and authority to pass upon the question, but he' denies it had the right to examine into the nature of the cause of action — the evidence in the record or the pleadings as a whole, but maintains that it should have confined and limited itself to the prayer, and finding that the prayer showed a demand which would take the case on appeal to this court, it was-bound to assume that it legally and correctly represented “the matter in dispute.”

That even if the demand were inflated the Oourt of Appeals could only entertain jurisdiction in the case, subsequently to a decision to-that effect by the Supreme Oourt declaring a portion of the demand. fictitious — it being the right and the duty of this court to primarily determine that question.

This we understand to be substantially relator’s position and contention.

The convention of 1879, which ordained “that courts should be open and that every person for injury done him in his rights, lands, goods, person or reputation should have adequate remedy by due process of law, and that justice should be administered without denial or unreasonable delay,” well aware that the costs attendant upon litigation on claims for small amounts tended to deter suitors from entering into the courts, which were thus declared to be so freely open, conceived the idea of establishing for such cases an intermediate Court of Appeals, in which appeals would be tried more frequently than in the Supreme Court, and (differently from what is the case in this court) should be tried on the original record, pleadings and evidence, and not upon full and complete and expensive transcripts which have to be paid for by an appellant before delivery of the same.

This system, if the doctrine contended for by relator be correct, would not rest securely upon law, but would be essentially dependent for its execution upon the good faith of litigants. It would be in the power of plaintiffs in every ease by the simple use of fictitious allegations to force defendants to reach the court of actual jurisdiction by a circumlocution which would absolutely destroy the object and purpose of the convention.

We see no good ground upon which relator’s claim can be predicated.

A plaintiff’s rights are in no manner prejudiced or jeopardized by action such as was taken in this case by the appellant and the Court of Appeals. That court understands perfectly well that it can with no sort of legality or propriety assume jurisdiction of any ease which would fall under the operation of the rule announced in Lallande vs. Trezevant, 39 An. 830, where the seriousness and sincerity of the allegations present a fairly debatable question. We can not presume that it would retain a case on its docket unless the • fictitious character of the allegations was palpable and beyond question. Assuming, however, that it were to do so, an appellee’s remedy would be plain, clear and direct — he could always have recourse to this court, precisely as the relator himself has done in this instance, by way of certiorari and prohibition for the protection of his rights. It will not do for the relator to say that he has been himself forced to a circuitous course for the protection of his own right to an alteration of the judgment of the District Court. Had he really felt aggrieved by that judgment he could have had recourse to his own substantive right of appeal, and could through it have controlled at his own risk (just as the defendant has done at his own risk) the court to which that appeal should have been primarily returned.

Instead of relying for the alteration of the judgment upon an appeal to which he was entitled by way of right, he has thought proper to depend for this alteration upon what is simply granted him in the nature of a faculty or privilege incidental to an appeal taken by some one else. A judgment creditor who takes such a course has to take it with disadvantages as well as advantages.

We have examined the record and are of the opinion that the action of the Circuit Court of Appeals in overruling relator’s motion to dismiss and in retaining jurisdiction of the case of Simon Abraham vs. Arthur Gossin on appeal before it from the Eighteenth Judicial District Courtjfor the parish of Lafourche was correct.

The nature of the cause of action, the pleadings as a whole and the absence of any attempt in the District Court to prove up any claim under plaintiff’s allegations of damages all unmistakably show that those allegations were inserted in the petition solely, as was said in Poree vs. Valishe, 15 An. 292, as a pretext for a recourse to this court, where the true matter in dispute was below our constitutional jurisdiction.

In addition to this, relator’s course as appellee in obtaining from the clerk a certificate of the non-filing by defendant in this court of the transcript of appeal is a very clear indication that he did not seriously complain of the judgment of the District Court, or propose to appeal from it.

The procuring of such a certificate is the step provided by the Code of Practice as that preliminary to an enforcement by a judgment creditor of the judgment as rendered below in his favor. C. P., Art. 589.

Relator’s claim that without any evidence whatever in the record upon the subject of attorneys’ fees, and with no attempt on the part of the district judge to fix any value upon such services, an appellate court is authorized and justified for the first time on appeal to place an estimate upon them is not well founded. Courts have to a limited extent permitted their professional knowledge of the subject matter (when acted upon affirmatively by the lower’court, on evidence in the transcript), to influence them in their judgment on appeal, but they have not done so in manner and form ¡nor to the extent advanced here.

The issue presented to us by the relator is whether] or not the Circuit Court of Appeals is now entertaining jurisdiction and will continue to entertain jurisdiction by way of appeal over a case in which it has no jurisdiction ratione materise. We hold that it is not only not doing so, but that were relator’s case before this court on appeal, we would be constrained ex propria motu to dismiss the appeal to this court for want of jurisdiction.

For the reasons herein assigned it is hereby ordered, adjudged and decreed that the provisional orders and writs heretofore granted and issued be set aside and relator’s application be rejected at his costs.


author: Fenner, J.

text:
    No. 11,225.
    Charles P. Hurley vs. Southern Express Company, George E. Underwood et al.
    1. The facts of the case are fully discussed and the finding of the district judge approved.
    2. The defence that plaintiff acquired the lottery ticket involved under a contract of sale reprobated by the law of Massachusetts, was not alleged in the pleadings and is not sustained by any proof of Massachusetts law; and, moreover, even if originating in a reprobated transaction, the transaction is completed and the results fully accomplished, and the defendant is such aparticeps crmwnis as can not avail himself of such a defence under the doctrine of Brooks vs. Martin, 2 Wall. 80, and Antoine vs. Smith, 40 An. 567.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Rouse & Grant for Plaintiff and Appellee.

      L. C. Quintero and Clegg & Thorpe for Defendants and Appellants.
   The opinion of the court was delivered by

Fenner, J.

This suit was brought by Charles P. Hurley, of Boston, Mass., against the Southern Express Company, the Louisiana State Lottery Company, and George E. Underwood, also of Boston, this last named being made party to the suit by amended petition. The petition sets forth that Hurley is the owner of one-fifth part of ticket No. 48,807 of the Louisiana State Lottery Company for the monthly drawing of July 12, 1892, that it is entitled by said drawing to $15,000, and is in possession of the express company for collection without title, and prays for judgment of possession and ownership of said ticket against the express company and Underwood, and money judgment against the lottery company of $15,000. Upon affidavit and bond the ticket was sequestered in the hands of the express company and is in the custody of the civil sheriff of Orleans.

The express company answered that it held the ticket for collection for account of Underwood and was interested only as stakeholder.

The lottery company answered that the ownership of the ticket was in dispute and that it stood ready to pay the money to the party to whom such ownership should be finally adjudged.

Underwood answered that he received the ticket from James W. Sullivan, of Boston, its true owner, as whose agent he lodged it with the express company for collection. He prayed judgment rejecting plaintiff’s demand, and in reconvention for damages. The demand in reeonvention was withdrawn, with leave to sue for damages on the sequestration bond.

The evidence was submitted to the judge of the District Court, and judgment was rendered in favor of plaintiff.

George E. Underwood, the titular defendant, and James W. Sul- ' livan, the real defendant, prosecute this appeal.

The case presents a conflict of evidence so irreconcilable as to leave no doubt that there is a fraudulent conspiracy between one of the parties and his witnesses to rob the other of this winning lottery ticket. If Hurley and his witnesses are not lying conspirators, Sullivan and his witnesses are undoubtedly such, and vice versa. The question is which are the guilty perjurers?

The testimony of Hurley and Sullivan, and that of Fitzpatrick and Underwood, was taken in open court, and the judge saw and heard them testify. The other material testimony was taken under commission.

The judge weighed the testimony and sums up his conclusions as follows:

“ James W. Sullivan and George E. Underwood contradict each other on three material facts in this case about which they could not be mistaken. Their manner upon the witness stand, the narrative they relate and the way they related it, contradicted as it is by Hurley, Donahoe and M. P. Linnehan, convince the court that their testimony is not only untrue but given in conjunction with that of Daniel J. Linnehan to carry out a conspiracy to steal the lottery ticket sued for in this case from the plaintiff, and to collect the prize payable on its presentation, and that it is, therefore, the result of fraud and collusion. The testimony of Whicher is laconic, evasive and therefore unreliable. Arthur Saucier, a waiter in the liquor saloon in which Sullivan and D. J. Linnehan work, was evidently the tool they used to steal the ticket, and his evidence is pointedly contradicted by Hurley, Donahoe and M. P. Linnehan.

The court is convinced that Charles P. Hurley told the truth on the witness stand. He is corroborated by Donahoe and Michael P. Linnehan, two disinterested witnesses, in different occupations from that pursued by plaintiff and defendant. He is corroborated by his own acts when he discovered the fraud that had been perpetrated upon him. He is corroborated by the suspicious acts and conduct of Sullivan and Underwood, Sullivan’s brother-in-law and witness. He is corroborated by the appearance and condition of the lottery tickets offered in evidence, and further, he is corroborated by all the facts proved and the circumstances surrounding the case.

The court therefore finds from the testimony that Charles P. Hurley is owner of the lottery ticket No. 43,807 sued for in this ease, having purchased it from Dan. J. Linnehan, on the 9th day of July, 1892. That it was in his possession until the afternoon of July 16, when it was obtained from him on the pretext of comparing it with the prize list, by a fraud conceived and planned by Sullivan and Daniel J. Linnehan, and carried into execution by them with the aid of Arthur Saucier, their tool, after they knew that said ticket had drawn a prize.

Without exaggerating the weight naturally and justly due to these findings of the district judge, our patient study of the voluminous testimony has only served to confirm them.

Hurley’s story may be condensed as follows: that on July 9 be bought the ticket No. 43,807 from Dan. P. Linnehan, an old friend and acquaintance; that he folded the ticket and put it in the fob pocket of his trousers; that he went to New Hampshire on his annual vacation, carrying the ticket in his pocket; that he returned to Boston on Saturday, July 16; that on that afternoon, Saucier, a waiter in the saloon where D. J. Linnehan and Sullivan were employed, came to him and said that Linnehan had sent to get the ticket to compare it with the lottery list and see if it had drawn a prize; that he took the ticket out of his pocket, tore a piece of paper out of a blank book, and in the presence of M. P. Linnehan and Dona-hoe wrote on the paper the number of the ticket, 43,807, and then handed the ticket to Saucier with directions to bring it back; that on the following Monday morning he saw a list of the Louisiana Lottery drawing which had taken place on July 12, and taking out the paper on which he had inscribed the number of his ticket, discovered that it had drawn one-fifth of the capital prize, amounting to $15,-000; that he immediately went to D. J. Linnehan, at Englehart’s saloon, and demanded his ticket; that Linnehan said he had given it to Sullivan; that when-asked why he had done so, he said he had got it from Sullivan and had not paid him for it; that shortly afterward, he met Sullivan and demanded the ticket, who made denials and excuses, which need not be repeated; that he then went to the office of the lottery agent, was informed that Sullivan had presented the ticket, and was advised to telegraph and stop payment of the ticket, which was done and this suit was brought.

Now most of the facts stated by Hurley are admitted by defendant’s witnesses. They do not deny that he bought a ticket from D. J. Linnehan; that he did go to New Hampshire; that he returned on the 16th; that on that day Saucier was sent for the ticket and received it from Hurley and gave it to D. J. Linnehan; that on Monday morning Hurley called on Linnehan for his ticket, claiming that it had won the prize; and that he afterward called on Sullivan and demanded the ticket that he had got from Linnehan.

The appearance of the ticket, which is produced in the original, corroborates Hurley’s statement that it had been folded and carried in his fob-pocket for several days, and we are most unfavorably impressed with Sullivan’s statement, made after Hurley bad testified, that he (Sullivan) had folded the ticket and carried it in his fob-pocket for several days.

Hurley’s statement as to his interview with the messenger, Saucier, and particularly as to his having copied the number of the ticket on a paper, is confirmed by the evidence of M. P. Linnehan and Donahoe. It is infinitely more reasonable and natural than that given by Saucier, which is, on its face, almost incredible; and, moreover, the message which he says he delivered from Linnehan is entirely different from that which Linnehan says he sent. Hurley’s taking down the number of his ticket before delivering it to this irresponsible messenger certainly accords with the commonest dictates of prudence. It is further confirmed by another undisputed and significant fact, that on Monday morning, after seeing the prize list, he knew and claimed that his ticket had won the prize. How did he know that, if he had not preserved the number of the ticket? Linnehan denies that he told Hurley that he had given the ticket to Sullivan; yet Sullivan admits that shortly afterward Hurley demanded of him the ticket which he had got from Linnehan. Why should Hurley have applied to Sullivan if Linnehan had not told him that he had given it to Sullivan?

Linnehan claims that the ticket which he sold to Hurley and received back from him was one of ten that he had taken from the ticket dealer, Whicher, and was returned to Whicher as unpaid for. But Whicher, though he testifies for defendant and tells all about tickets that he sold to Sullivan, does not say a word about having given any tickets to Linnehan or having received back any from him. Indeed, one of the most significant facts against defendant’s testimony is the entire failure to identify or account for the ticket which it is admitted was sold to Hurley and received back from hi Eh.

We agree with the district judge that Hurley’s story is in harmony with every undisputed and independent fact in the case.

On the contrary, the testimony of Sullivan and his witnesses arouses suspicion at every step.

In the first place they admit that they knew the result of the drawing on the 14th or 15th of July, and that the ticket No. 43,807 had won, and claim that it was then in Sullivan’s possession.-

If that be true there does not seem to be any adequate motive for the promptness with which the messenger was sent after Hurley’s worthless ticket immediately after his return on the 16th, or, at least, none comparable in adequacy with that which would have resulted from a knowledge that Hurley’s ticket was a winner.

In the next place it is not altogether natural that, with knowledge that Sullivan held the winning ticket on the 14th or 15th, he did not approach the lottery agent until the 18th, the first business day after Hurley’s ticket was returned.

The anxiety to get the agent to cash the ticket at a discount, and the instant forwarding of the ticket by express in the name of Underwood instead of his own, are also suspicious circumstances.

It is difficult to define very accurately the reasons which produce on the mind the impression of vraisemblance or the reverse in the estimate of testimony, oral or written. We might extend our analysis and criticism of the testimony in this case and exhibit additional grounds for our concurrence with the district judge, but it would only encumber the pages of our reports without profit to any one.

It is claimed that we should not convict a party and his witnesses of criminal fraud and conspiracy without the clearest proof, but the stress of that proposition in this case is relieved by the inevitable alternative presented to us of pronouncing such a sentence upon one party or the other.

It is urged that Sullivan’s possession of the ticket affords too strong a presumption of his title to be overcome without the strongest proof; but, in this case, we consider his possession so accounted for as to be quite as consistent with Hurley’s title as with his own. His possession has no bearing on the question of title. Its only effect is to place Hurley under the necessity of becoming plaintiff, and thereby assuming the burden of proof. He has discharged this burden in a manner which convinced the judge a quo and satisfies our own minds.

An attempt is made in this court to impugn plaintiff’s right to stand in judgment on the ground that he is seeking to recover property acquired by him under a contract of sale of a lottery ticket made in Massachusetts and in violation of the law of that State. No such defence was' set up in the pleadings and no proof is made of the law of Massachusetts. Until the expiration of its charter the Louisiana Lottery Company is authorized by the Constitution and laws of the State to issue lottery tickets and dealing therein is within the protection of the law. If the law of Massachusetts is different, that should have been alleged and proved. We think, in any case, defendant would fail in such a defence under the principles laid down in Brooks vs. Martin, 2 Wallace, 80, and in Antoine vs. Smith, 40 An. 567. The transaction, even if reprobated, is complete and the results fully accomphished, and it does nob lie in the mouth of one of two parties equally guilty to set up such á defence against the title of the other See also Gibson vs. Knard (Ala.), 11 So. Rep., p. 842.

Judgment affirmed.

Rehearing refused.


text:
    No. 11,229.
    Flower & King vs. J. K. Skipwith.
    1. The facts shown in this case justify and sustain the writs of sequestration and attachment as against the defendant.
    2. Under the present Constitution, privileges on movables do not require to be recorded, but have the same validity and effect with or without registry.
    3. Act 89 of 1886 establishing the rank and order of privileges on crops can not be given a retrospective operation so as to give to a pledge of the crop under Act 66 of 1874 preference over an antecedent privilege valid and subsisting at the date of the pledge. The latter takes effect on the property at its date and subjeet to valid antecedent privileges, and the law only refers to privileges arising subsequent to the pledge.
    4. When a plantation is held by a party under a conditional agreement of sale, with authority from the owner to possess, use and cultivate the same, and under no contract of lease or rent, a merchant who advances and acquires a privilege on the crop under such conditions can not be affected by a subsequent change of arrangements and the execution of a lease creating a lessor’s privilege. The lessor’s privilege only arose after date of lease and took effect on the crop only as it then stood subject to the antecedent privilege.
    6. Plaintiffs’ right to arraign the transactions between defendant and intervenor are, under the facts of this case, limited to the extent necessary to protect his privilege — they are valid against ordinary creditors.
    APPEAL from the Eighth District Court, Parish of Concordia. Thompson, J., ad hoc.

      J. N. Luce and Harry H. Hall for Plaintiffs and Appellants.

      8. L. Elam contra.

   The opinion of the court was delivered by

Fenner, J.

J. K. Skipwith had been the lessee of Ashland plantation, belonging to R. F. Learned, during the year 1890, and Flower & King had furnished him supplies and advances for the cultivation of same during that year.

In September, 1890, an agreement was entered into between Learned and Skipwith, by which the former agreed to sell to the latter the plantation with all buildings, improvements, mules, implements, crop and movables, and all claims against hands or tenants, for the price of $20,000, of which $2500 was to have been paid in cash on December 1, 1890; $2500 in cash on January 1, 1890, and the balance in eight promissory notes maturing annually. It was agreed that Skipwith was to go into immediate possession, but that title was not to pass until payment of the $5000 cash as stipulated.

Skipwith paid $2000 on account of said cash payments, and it was agreed between them that the balance should be deferred until the fall of 1891. Under this agreement and extension Skipwith was in possession and control of the property, when in . January, 1891, he applied to Flower & King for advances for its cultivation during 1891. He represented to them his purchase on long time, and his partial payment of the price, and obtained their consent to advance him $3000 to make his crop, obligating himself to ship them all cotton raised or controlled by him, guaranteed at 300 bales, and subjecting the crop to their privilege as furnishers of advances and supplies.

Plaintiffs advanced the $3000 as agreed, and on May 19 they wrote to him the following letter:

“ J. K. Skipwith, Esq.:
“ Dear Sir — Enclosed we hand you the itemized statement of account, showing a balance to your debit of $3356. Please examine and report upon at your leisure. You see the account is overdrawn three hundred and odd dollars. This year promises to be a very close one, and we must adhere closely to the contracts as made. We have taken every dollar’s worth of-business that our means will stand, and to extend contracts will take it beyond the limit of our ability, and we have already been compelled to decline a large amount of new business and applications to extend contracts as closed. “ Yours truly,
“Flower & King.”

With tbelletter they enclosed an itemized statement of his account. They received no reply; but after the date to which the account was made up, they received several drafts from defendant which were duly paid.

So matters stood until about the beginning of the shipping season, when Skipwith called on plaintiffs and made some complaint of errors in the account, and then stated that he had a fine crop which would more than pay all his liabilities. The latter statement was repeated at another interview, with the additional statement that cotton was low and there was no hurry about shipping.

On November 3, receiving no cotton, plaintiffs wrote him as follows:

“ We have not had a letter from you for some time and no shipments. This is the season of the year when our 'load bears most heavily upon us,, and we expect relief from those whom we have aided during the year.”

They still received no reply and no cotton, and subsequently ascertaining that Skipwith was shipping the Ashland cotton to various other merchants in this city, they instituted this suit against him, accompanied by writs of sequestration and attachment, seizing under the sequestration cotton, cotton seed, corn and other products, and, under the attachment, the same and other property.

They, thereafter, learned for the first time that Skipwith and Learned had entered into the following transactions: On May 21, 1891, Skipwith sold to Learned all his mules on Ashland plantation for the price of $1250, which was retained by Learned on account of cash payment on plantation. On the next day, May 22, Learned leased to Skipwith the plantation, mules, etc., for $3000, payable on November 1, with the following stipulation:

“ The said Skipwith being desirous of purchasing the Ashland plan-' tation, and having entered into a written agreement with the said Learned, in which the latter has obligated himself to make title to •said Skipwith on certain conditions. Now should the said Skipwith pay to the said Learned the amounts agreed to be paid in said contract (to sell) and comply fully and faithfully with the terms thereof, and with a certain supplemental contract relative to the extension of the terms of payment made in the original contract, etc., then this obligation to be null and void, otherwise to -remain in full force and effect.”

On the 1st of June Learned entered into a contract by which he agreed to advance Skipwith $2000 for the cultivation of his crop and , took from him a formal pledge’ of said crop under Act 66 of 1874, which was duly recorded.

On October 3, 1891, Learned took another similar pledge from Skipwith for a further sum of $4000, which was also recorded.

On December 3, 1891, R. F. Learned, represented by same counsel who represented defendant, filed a petition of intervention, setting forth that he leased the Ashland plantation to defendant, May 22, 1891, for $3000; that in June and October, 1891, defendant pledged to him his crop; that he advanced $3700 under said contracts of pledge, and he claimed a privilege as lessor and as pledgee and furnisher of supplies, superior to all persons.

On December 9 the defendant, Skipwith, filed a motion to dissolve the attachment and sequestration on thé ground that the affidavit on which they were issued was untrue. This motion was heard and overruled by the judge.

On January 19, 1892, plaintiffs took out alias writs of attachment and sequestration, under which they seized the same property before seized, and also the mules and other property.

By an amended petition of intervention Learned avers the sequestration and attachment of mules, wagons, etc., and his ownership thereof, but says that if not his property he has a lessor’s privilege thereon.

The defendant moved to dissolve the alias writs of sequestration and attachment on the ground that the affidavit was untrue.

Plaintiffs answered Learned’s intervention, averring that the sale of stock and the lease were simulated and fraudulent, and that their privilege for advances primed and outranked the pledges of Learned on the crop.

After hearing the court rendered judgment maintaining the motion to dissolve the writs of attachment and sequestration, sustaining the intervention of Learned for lease and supplies, giving plaintiffs an ordinary judgment for the debt against defendant and sustaining the demand of plaintiffs to have the expenses of gathering and shipping the crop seized as costs, from which judgment plaintiffs have appealed to this court.

We think the judgment was clearly erroneous in dissolving the writs of sequestration and attachment. The acts of defendant, as heretofore detailed, fully justified their issuance. Defendant had disposed and was disposing of his crops and property with the plain purpose of defeating plaintiffs’ privilege and debt. As against him the writs should have been sustained.

We consider it equally clear that there was errror in denying plaintiffs’ privilege on the portion of the crop seized under their sequestration.

Plaintiffs’ privilege was antecedent both to the pledges of intervenor and to the lease, and was entitled to preference over both, so far as the crop is concerned. Their privilege is granted by the express terms of Art. 3217 of the Civil Code.

Art. 177, Constitution 1879, provides that “ privileges on movable property shall exist without registration of the same, except in such eases as the General Assembly may prescribe by law after the adoption of this Constitution.”

No action on this subject has been taken by the Legislature; therefore this privilege is perfect as to all the world without registry.

The Act 66 of 1874 authorizes the pledge of crops for advances and supplies, which take effect when recorded; but it does not repeal Art. 3217, C. C., nor does it require the record of such privilege as an essential to its validity. On the contrary, it expressly declares that the pledge is granted “in addtion to the privilege now conferred by law.”

Great stress is laid on Act 89 of 1886, which provides that “ privileges and pledges granted by existing laws of this State shall be ranked in the following order of preference: (1) Privilege of laborer; (2) Privilege of lessor; (3) Privilege of the overseer; (4) Pledges under Sec. 1 of Act 66 of 1874, in order of recordation; (5) Privileges of furnishers of supplies and of money and of the physician.”

It is claimed that, under this statute, a pledge of the crop, no matter when made, divests the rank of all antecedent privileges. We can not approve such a construction. Courts do not readily give retrospective operation to a statute. We think the act only refers to the future and gives a preference to the pledge over any privilege subsequently acquired. If Flower & King had continued to advance after recordation of the pledge, such advances might be subordinated to it in rank, even if made before the advances under the pledge had been actually made, and all privileges for supplies and advances subsequently acquired would share the same fate, even though but for the recordation of the pledge they might have been superior in rank. But to say that a privilege legally existent and valid as to all the world could be destroyed or impaired by a subsequent pledge shocks all sense of justice and would open a door for fraud under which every merchant, after advancing to the near completion of the crop, might find his privilege destroyed by the recordation, at the last moment, of a pledge to some third person for future supplies. Obviously, the crop passed under Learned’s pledge, subject to the pre-existent privilege of plaintiffs, which was not displaced or affected thereby.

It is claimed, however, that, in this case, Learned should have a preference, because the crop on which the advances of plaintiffs had been expended had been destroyed by overflow; that they had refused to make further advances, and that, but for Learned’s advances, there would have been no crop. This position can not be sustained for several reasons. In the first place, the advances of plaintiffs had not been expended merely in planting the destroyed crop. They had been used in organizing the place for cultivation during the year, in employing and feeding laborers and in like necessary measures which must be taken in the beginning of the year and without which no crop could be made. Moreover, Learned himself testifies that, at the date of his pledge, the crop had been planted and was then on the ground. Finally, it does not appear that plaintiffs had, or would have, refused to make further necessary advances. It is true they wrote the letter of May 19, but their subsequent payment of further drafts shows that it was a mere letter of warning, and everything indicates .that if Skipwith had made a proper showing of his situation they would not have refused him further necessary assistance. Skipwith’s conduct toward them was, to say the least, uncandid and deceptive. Instead of first giving them the chance to protect themselves, he hastens to deal with a third person and to take all possible steps to defeat their just rights. Nor can we exculpate Learned from complicity. He knew that plaintiffs had been advancing to Skipwith and if he chose to act without informing himself as to the fact, it was his fault and he should bear the consequences. He has already received and appropriated a large part of the crop and he can not contest the priority of plaintiffs on the portion seized. We think the same reasoning applies to his claim for a lessor’s privilege, so far as the crop is concerned. At the time when plaintiffs’ advances were made Skipwith held the place under an agreement of sale and with the full consent of Learned and with his authority to use it and raise at crop thereon without any lease or contract for the payment of rent. Learned could not thereafter impair the privilege acquired by plaintiffs by altering his arrangements, making a lease and thus subjecting the crop to an ex post facto lessor’s privilege. The latter privilege only came into being with the execution of the lease and took effect on the crop only as it then stood subject to the valid antecedent privilege of plaintiffs.

We think, however, that plaintiffs’ right to arraign,the transactions between Learned and Skipwith is limited to the extent necessary to the protection of their privilege on the crop. Considering the relations between them in regard to the plantation there was nothing wrong in Learned’s taking the mules as a partial payment or in his making the lease, which does not seem to us to be unjust or unreasonable.

It was fair that, in case the conditional sale was not carried out, Learned should receive a rent for the use of his property, and ordinary creditors have no right to complain thereof.

Plaintiffs are, therefore, entitled to a superior privilege on the cotton, cotton seed and other crops sequestered and attached, and to a privilege as attaching creditors on the balance of the property seized, subordinate however to the lessor’s privilege of Learned, which is to be first paid out of the latter property.

We may add, to avoid misapprehension, that plaintiffs’ take nothing by their so-called seizure of the interest in Ashland plantation and of store accounts. Defendant has no interest in the plantation subject to such seizure, and will have none unless the conditional sale shall be carried out. If not carried out, whatever claim he may have against Learned will be of a personal character and, like the store accounts, is an incorporeal right, which can not be seized in the manner here pursued.

We have considered all the other points made by counsel on all sides, but find nothing in them affecting our conclusions.

It is therefore adjudged and decreed that the judgment appealed from be and is hereby amended so as to maintain the writs of sequestration and attachment against the defendant, and further, so as to recognize their privilege on the crops sequestered and attached, with preference over R. E. Learned, intervenor; and with recognition of their privilege as attaching creditors on the other property seized, herein subordinate however to the lessor’s privilege thereon of Learned, intervenor; and that, as thus amended, and in other respects, the judgment be affirmed, appellees to pay cost of appeal.

On Application for Rehearing.

Plaintiffs call attention to failure in our decree to pass on costs in lower court, which was also omitted in judgment appealed from. They properly fall on defendant. They also complain of our failure to pass on their demand for recognition of their privilege on proceeds of cotton received by intervenor. Those proceeds were not seized under any process and were not in the hands of the court. We therefore did not consider or pass on that claim.

It is therefore ordered that our decree be amended by condemning defendant to pay costs of the lower court, and that as thus amended it remain otherwise undisturbed.


author: Watkins, J.

text:
    No. 11,261.
    The State of Louisiana vs. Faustin Fontenette.
    In the absence of an arraignment of the accused there can be no valid conviction.
    PPEAL from the Nineteenth District Court, Parish of Iberia. Voorhies, J.

      M. J. Ounningham, Attorney General, for the State, Appellee.

      A. <& Chas. Fontelieu for Defendant and Appellant.
   The opinion of the court was delivered by

Watkins, J.

The defendant was indicted for stabbing, cutting, striking or thrusting, and was found guilty of stabbing with intent to kill; and upon conviction was sentenced to three years’imprisonment in the penitentiary and has.appealed. .

Our attention has been attracted to one fatal defect in the record which necessarily disposes of the case, and that is the failure of the record to disclose that the defendant had been arraigned previous to trial.

The minute entries are as follows, to-wit:

“ Indictment filed and bench warrant ordered to issue.” October 11, 1892. “ Court met pursuant to adjournment * * * Case assigned for trial for the 27th inst.” February 28, 1898. “Case taken up on the day set for trial.” February 27, 1898.

There is no suggestion anywhere in the record of the defendant having been arraigned before the trial; nor is there anything to show that he urged any special defence or plea that is tantamount to an acknowledgment of the jurisdiction of the court, or a waiver of his right to arraignment.

In the absence of arraignment there can be no valid conviction. This is elementary. State vs. Revills, 31 An. 387; State vs. Christian, 30 An. 367; State vs. Epps, 27 An. 227; State vs. Robinson, 36 An. 873; State vs. Boyd, 38 An. 374; State vs. Harrison, 38 An. 501. *

The judgment appealed from must be reversed and the cause remanded for a new trial.

It is therefore ordered and decreed that the judgment appealed from be annulled, avoided and reversed, and it is further ordered and decreed that the cause be remanded to the lower court for a new trial according to law.


text:
    No. 11,278.
    The State of Louisiana vs. Pomp Joseph.
    1. Notwithstanding the proof shows that the general venire from which both the grand and petit juries were drawn was exclusively composed of persons of the white race, or of Caucasian descent, and did not contain a single colored person, or one of African descent, it does not furnish conclusive evidence of discrimination against the latter, on account of race or color, within the intendment to the Fourteenth Amendment of the Constitution of the United States, it being shown that only eighty names had been added at the term by the jury commissioners to the general venire for the purpose of keeping the general venire box up to the required maximum of 300.
    2. When the requested special charge to the jury is, that “if from all the facts and circumstances the prisoner honestly believed his life was in imminent danger,” same is fully responded to, and covered by the general charge, which declares that “ if from the acts, declarations and conduct of the deceased, at the time, the deceased had reasonable ground to believe that his life was in immediate danger,” and that “if he had apparent reason to believe, and did believe, that the deceased was about to make a violent attack upon him.”
    3. It is not sufficient proof of misconduct of a juror to justify the setting aside of the verdict of the jury, that he had taken, during the progress of the trial, a memorandum of parts of the testimony of some of the State’s witnesses, it fully appearing that same was not exhibited to other members of the jury, and was destroyed by him without making use of it himself.
    4. Neither precept of law or precedent in our own reports justifies the request of the defendant that the State’s counsel shall make written answer to a motion to quash an indictment, either admitting or denying the allegations thereof.

      5. Under exceptional circumstances it is permissible for the trial judge to correct a statement of fact in a bill of exceptions after same has been signed and filed.
    APPEAL from the Ninth District Court, Parish of Red River. Hall, J.

      M. J. Cunningham, Attorney General, and J. B. Lee, District Attorney, for the State, Appellee.

      J. C. Egan & Son and Pugh & Wilkinson for Defendant and Appellant.
   The opinion of the court was delivered by

Watkins, J.

The accused was indicted for murder, and was found guilty of manslaughter and sentenced to imprisonment in the State penitentiary for a term of five years, and from the judgment and sentence has appealed.

I.

The first proposition tendered for consideration is that embraced in the defendant’s motion to quash the indictment on the ground that the venire drawn by the jury commissioners from which the grand and petit juries were drawn was exclusively composed of persons of the white race and did not contain the name of a single person of the black, or African, race, and that the accused, being of African descent, he was discriminated against solely on account of his race or color, in violation of his civil rights under the Fourteenth Amendment to the Constitution of the United States.

On the trial of this motion to quash there was a great deal of testimony taken, and it is incorporated into the transcript; and it fully establishes the fact that there was not a single person of African descent drawn on the venire at the term of court at which the indictment against the accused was found, notwithstanding the fact that there are a greater number of colored than of white voters in the parish of Red River, and' that some of the.colored voters can read and write. ■

But the proof shows that, as a general rule, the negroes of that parish are illiterate, and that a large majority of them are employed as day laborers on cotton plantations and are frequently moving from place to place.

The clerk of court, one of the jury commissioners, was sworn as a witness and testified as to the manner of the drawing of the venire and said:

There is a general venire box, in which there are 300 names. On the 20th of January, 1893, the commissioners met to draw the jury for the March term, 1893, and we put in eighty names to complete the venire. There was not a negro’s name put in the box of eighty names. After these eighty names were put in the general venire box, eighty names were drawn out to serve at the March term, 1893, and out of the jury drawn for this term no negroes were drawn. When the jury commissioners met to draw the jury the time before the last, I do not know whether any negroes’ names were put in the venire box or not; but I do know that they were generally whites.”

Another member of the jury commission testified that “ there was no negro drawn to serve on the venire at this term. The commissioners put in the general venire (box) enough names to keep the number up to 300. The names were selected by the clerk before we came down. This is the way it is usually done (and) the jury commissioners ratified his selection. I do not think the colored people (were) excluded on account of their race and color. We usually take a few intelligent ones. * * * I don’t think there are many colored men in the parish that can read and write (though) there are some * * * It is a fact that some white jurors can not read and write. * * * The preference is given (to) the more intelligent.”

While it is undeniable that the exclusion from the general venire of all people of the African race on account of their color, or race, would be an abridgment of the privileges and rights of such citizens, within the meaning and intendment of the Fourteenth Amendment of the Federal Constitution, and would operate a denial to persons of that race who might be indicted, of the equal protection of the law, within the meaning of Strander vs. West Virginia, 100 U. S. 303; yet, in our conception, the evidence does not disclose such a case.

For it appears that there are in the general venire box three hundred names, from which are drawn the names which compose the general venire, from which the grand and petit juries are drawn. That at an ensuing term of court only a sufficient number of names is added by the jury commissioners to keep the general venire at that, standard; that following this rule, the jury commissioners on this occasion put into the box eighty additional names, and from the three hundred names therein, the grand and petit juries were drawn. It is quite true that all the names that were drawn from the box were those of white people, though it is not established by any testimony in the record.that all of the three hundred names in the general box were those of white people. This is destructive of defend-, ant’s theory, because he had the chance of some colored persons being drawn from the box, unless it was exclusively made up of the names of white persons. And in addition to this argument is the fact sworn to by one of the jury commissioners, that people of African descent were not excluded from the venire box on account of their race or color.

The motion to quash was properly overruled.

II.

The defendant’s counsel requested of the trial judge that he should give the jury the following special charge, viz.:

“ If you find from the evidence that the deceased and his brother were waiting at the gate, one or both armed for the purpose of provoking a difficulty with the prisoner, and in furtherance of such purpose, when the prisoner reached the gate arrested his attention, and made an effort to draw a pistol; and if from all the facts and circumstances the prisoner honestly believed his life in imminent ■danger, he was not obliged to wait until the deceased actually drew his pistol but was fully justified in drawing his pistol and taking the .life of the deceased.”

It was refused for the following reasons, to-wit:

“It is hardly a correct statement of the law. It makes the defendant’s belief sufficient to justify his act without requiring that such belief should have been even apparently well founded, or a reasonable belief.
“ It is not a correct statement of the facts or the evidence; but such a blending of those that were proved with those that were not proved as to be misleading to the jury. There was no evidence that the deceased and his brother were waiting at the gate to provoke a difficulty. Besides, the law applicable to the case is believed to have been fully and fairly stated in the written charge already given before this (special) charge was asked for, and that the special charge as far as applicable to the case was substantially covered by the general charge. The court is only obliged to charge the law applicable to the evidence in the case, and is not obliged to charge the law unsupported by any evidence.”

An examination of the judge’s written charge to the jury shows that he gave instructions to the jury in reference to the law of self-defence, and from the charge we make the following extract, viz.:

“ The defendant claims that the killing was done in self-defence and therefore no crime. The law of self-defence is that a person may repel force by force in defence of his person against any one who endeavors by violenee or surprise to take his life, or commit a known felony upon him; and in the exercise of this right, if a person is assaulted with a deadly weapon he is not obliged to retreat, but may pursue his adversary until he finds himself out of danger. A person has the right to act upon appearances, and if from the aets, declarations and conduct of the deceased, at the time, the accused had reasonable ground to believe that his life was in immediate danger, he has the right to defend himself without further delay, even though it should afterward appear that there was no danger at all. * * * Therefore, if you should believe (from the evidence) that the accused was attacked violently by Tom Vinson (the deceased), or that Tom Vinson drew or attempted to draw his pistol, and that he had apparent reason to believe and did believe that Vinson was then about to make a violent attack upon him, and that the prisoner then killed Vinson to save his own life, such killing would be self-defence and no crime.” (Our italics.)

In our opinion the judge gave to the jury correct instructions upon the law of self-defence; and, what is more to the purpose, in very nearly the terms of the requested special charge. For instance, the request of the special charge is that “ if from all the facts and circumstances the prisoner honestly believed his life was in imminent danger;” while the terms of the general charge are, viz.: “if from the acts, declarations and conduct of the accused, at the time, the accused had reasonable ground to believe that his life was in immediate danger;” and also, that if he had apparent reason to believe and did believe that (the deceased) was about to make a violent attack upon him.

. If there be any real and substantial difference between the terms of the charge requested and refused and the one given to the jury, the latter is the more favorable to the accused.

' The special request made by counsel for the prisoner was that the judge should charge the jury that it was sufficient that the prisoner “ honestly believed his life was in imminent danger,” whilst the instruction actually given was that “if the accused had reasonable ground to believe that his life was in immediate danger,” or “that he had apparent reason to believe and did believe that the deceased was about to make a violent attack upon him.”

■ It will be observed that the phrase “honestly believed” of the requested special charge is not employed in the general charge, but the phrases therein employed are “reasonable ground to believe” and “ apparent reason to believe and did believe.” And it seems apparent that the one selected by the judge is a stronger term than the one the.counsel employed.

In so far as the hypothetical statement of fact which prefaces the requested special charge is concerned, we must accept the theory of the judge; and particularly in view of the testimony that is brought up by the defendant in a bill of exceptions. A careful examination of the requested special charge and a comparison of it with the general charge-has satisfied us that the ruling of the judge below was correct.

III.

The next ground of objection taken to the ruling of the trial judge is that in refusing.the defendant a new trial. The only ground assigned for a new trial that is independent and not covered by other pleadings' and rulings in the ease is, that one of the panel of the petit jury made a memorandum of the testimony of some of the witnesses and carried same into the jury room with him. The contention of defendant’s counsel is that the juror in question did make a memorandum of the testimony of the first two witnesses on the part of the State and t carried it into the jury room with him; and that, on that account, great injury , was done'to the accused by such garbled and ex parte statement. As a witness on the trial of the rule for new trial, the juror in question testified as follows, to-wit:

“I was one of the jurors who tried Pomp Joseph. I took down some of the testimony. Took some of the testimony of the second witness. I noticed the counsel for the defendant looking at me, and one of the jurors behind me told me I had better quit writing. I then stopped writing and put the paper in my pocket. The testimony that I took down was of the first two State witnesses.”

On cross-examination he said: “WhatI wrote was on the backs-of letters. I wrote two or three lines — the principal part of what the first witness said — during the time the second witness was on the stand. I did not show the writing to any of the other jurors. The case lasted all day and up to 10 o’clock at night. I used it after I got into the jury room — I tore it up. They stopped me before I got enough to be (of) any benefit to me and I tore it up. I tore it up soon after going into the jury room, and about eight hours before the verdict was rendered.”

Q,. “ How much did you write?”

A. “I wrote three or four lines five or six inches long across note paper. The defendant’s counsel saw me and one of the jurors called my attention to it. The defendant’s counsel made no objeet5on to the court. * * * I looked at the memoranda after I went to the

jury room, and there was so little of it that it was of no benefit, and I tore it up.”

This evidence fails to support the charge of misconduct of the juror — at least such misconduct as will vitiate the verdict of the jury.

The memorandum made was short. It was not exhibited to other jurors. It was torn up after the juror went into the jury room, and several hours before the verdict was rendered. The juror states that there was so little of it it was of no use to him and he destroyed it.

It is impossible to conceive of any injury resulting from so slight an indiscretion, or that an irregularity such as this could have prejudicially influenced the jury, or caused them any bias in their deliberations.

It is not for every irregularity in the conduct of a juror that the verdict of a jury may be set aside. The testimony must show, at least presumably, that the irregularity gives rise to a presumption of injury having been sustained by the accused.

This objection is not well taken.

IY.

The next objection urged was that a confession of the accused offered in evidence was not free and voluntary, and consequently not admissible. But the judge states that the witness answered that the confession was free and voluntary, and that no threats or inducements were offered the accused to induce the confession made.

V.

Counsel having filed the motion to quash that is discussed in paragraph one of this opinion, called upon the district attorney to make a written answer to the same, either admitting or denying the allegations thereof, and he declined, and to his refusal he retained a bill of exceptions, the judge having declined to sustain the point made on the ground that there is neither rule of law or precedent to support the proposition.

This objection possesses the charm of novelty, but nothing more.

VI.

The counsel for the prisoner complains that the judge after having signed and caused to be filed a bill of exceptions, of his own motion, on the following day, without rule to show cause or other proceeding, made an addendum thereto, and to which they objected on the ground and for the reason “ that the judge has no right or authority to change the minutes of his court, or to amend, or add to his rulings, and more especially add to, amend, or alter bills of exceptions after the same become final and become a part of the record of the case.”

The judge overruled the defendant’s objections and maintained his right to make the alteration on the ground, to-wit:

“During the examination of the witness, Booth, counsel for the defendant asked that the proper basis b&laid before the confession was admitted, and the district attorney asked him the usual questions, in reply to which the witness said that it was free and voluntary, and that no threats or inducements were offered defendant to produce it. The defendant’s counsel then cross-examined him as to his remembering all that was said, and during this cross-examination asked that his evidence on the question of confession be taken down, which was done, from that point onward, ending with the words ‘ I don’t know, Mr. Booth, what I killed him for.’ This evidence was embodied in the bili of exceptions presented on yesterday by the defendant and signed by the court, without remembering, at the moment, to include what the witness had said before we began to write down his statement. This morning in open court, in presence of the accused and his counsel, the court announced the fact of this omission and its intention to add this statement of Booth’s evidence in the bill No. 1. Defendant’s counsel objected for reasons above stated, but made no suggestion or pretension that the witness ' did not so testify. To which ruling counsel excepted,” etc.

A bill of exceptions is merely an exception to the opinion of the court on some purely incidental question that arises during the progress of the trial of a cause, and involving either a question of fact or law, and to which the judge is required to make a concise statement of the reasons influencing his opinion. When thus prepared and signed by the presiding judge, it must be filed among the records of the suit. O. P. 488 and 489.

In the instant case the bill of exceptions referred to involves a question of fact, and the trial judge evidently sought by the amendment he made, to correct a mistake or omission which, in his opin ion, affected the question under consideration seriously. It was part of the statement of the accused which formed an essential ingredient of his confession.

It seems to us quite reasonable that the judge should have entertained this view; and that he had a right to make the amendment under the circumstances related we think is clear.

While a bill of exceptions constitutes, when signed and filed, a part of the record, yet, for the purpose of accuracy and correctness of statement, it is under the judge’s supervision and control, during the progress of the trial, like the minutes of his court. And it has been uniformly and repeatedly held that the latter may be corrected conformably to the facts; and no doubt is suggested by defendant’s counsel as to the accuracy of the amendment.

This cause appears to have been tried with great care, and a marked degree of industry and ingenuity has been bestowed on its preparation, but we have arisen from a careful study of the record with the clear conviction that the accused has had a fair trial.

Judgment affirmed.