author: Breaux, J.

text:
    No. 13.125.
    The New Iberia Telephone Exchange vs. The Cumberland Telegraph and Telephone Co.
    Syllabus.
    On Motion to Dismiss.
    1. Order or Appeal. — While in an order of appeal it should be made to appear to which court the appeal is returnable, the oversight may be cured by the recital of the bond of appeal and by other proceedings.
    2. Notice or Appeal. — A notice of an appeal made returnable on the first day of the term is not violated by the insertion by the clerk of court, in addition, of an erroneous date.
    S. Jurisdiction. — The property involved, as made evident by the evidence, uncontradicted, was more than $2,000 in value.

      On the Mekits.
    1. Evidence. — One claiming damages should, when called upon for proof of the different items, sustain each with sufficient proof, and not rest on the idea that he may recover a round sum without proof of the different items going to make up the round sum.
    2. Plaintiff's Agent Concluded by His Utxebance. — The agent of plaintifi having expressed himself as satisfied and that after having complained oi wrongs done him and repairs made or attempted, the court concluded that there were no grounds upon which to base a judgment for damages.
    ON APPEAL from the Twenty-Fourth Judicial District Court for the Parish of St. Mary. Allen, J.

      Milling & Sanders for Plaintiff and Appellant.

      Shades A. S’Niell for Defendant and Appellee.
    Argued and submitted April 17, 1899.
    Opinion handed down May 1, 1899.
   On Motion to Dismiss ti-ie Appeai.

The opinion of the court was delivered by

Breaux, J.

Defendant filed a motion to dismiss the appeal on the •ground that the order of appeal was defective, for the reason that it did not designate to which court it was taken and the return day of the appeal; and on the further ground that the Supreme Court is ■ without jurisdiction ratione maieriae.

The record shows that on account of plaintiff’s counsel the appeal was made returnable “to the proper court, according to law.”

Two days after the appeal had been granted, plaintiff filed a bond ■ of appeal, reciting in the bond that it had obtained an order of appeal from the judgment, which had been made returnable to this court.

In our view, this order is scarcely the order required under the statute. We think, in such orders, it should be made to appear to which court the appeal is returnable, whether to the Circuit Court or to the Supreme Court, otherwise the appellee might have just ground to complain.

We do not, however, dismiss the appeal on this ground, as the appeal ' bond was filed almost immediately after the order of appeal had been granted as before stated.

We will not dismiss this appeal, as the bond and a notice of appeal cure the defect. The ruling, we must say, applies only to the state of facts here.

As relates to the notice of appeal, the second ground urged to dismiss the appeal, and the mistake made as to date, if appears that, notice was given to the appellee to appear before this court at its next regular return day. A date was superadded, which was erroneous; it was, however, mere surplusage; it was not misleading; besides, it. was the error of the clerk of the court, and not an error which should prejudice plaintiff’s right of appeal, as he had nothing to do with the-error.

This brings us to the question of jurisdiction ratione maieriae raised by the appellee. Its contention is that the petition prays only for five hundred dollars damages, and, therefore, the case does not come within'the jurisdiction of this court.

We have analyzed the petition as relates to this ground urged for dismissal. Plaintiff alleged that if is the owner, and in possession of various telephone exchanges and is lessee of the Teche and Vermillion telephone line running through the parishes of Iberia, Vermillion, Lafayette, and St. Mary; that the plaintiff corporation has an exchange in the town of Eranklin, connected by wire with its other exchanges; that there is another company, known as the Cumberland Telegraph and Telephone Company; that it has been reconstructing its wires in the town of Franklin; and that its agents have maliciously and wantonly, against the protest of plaintiff, pulled and dragged the-wires belonging to the defendant company, over plaintiff’s telephone wires, injuring, breaking down and crossing them, making it impossible for its patrons and customers to get connection with the central station and possessories; that these agents have cut guy wires which support the poles of plaintiff; that defendant in thus crossing plaintiff’s wires has caused plaintiff great damage, resulting in causing its customers and patrons to be displeased with the telephone system; that in many eases, they refused to pay their rent, in consequence-that the act of defendant will cause it to lose many of its customers; that it has caused great annoyance, trouble and expense; that these illegal acts have caused damages already to the sum of $500.00; and' that if defendant is not restrained, it will result in the loss of all plaintiff’s customers and the entire destruction of its telephone system in the parish of St. Mary.

Plaintiff having alleged that the trespass and injury complained of upon its telephone lines and exchange would result in the total loss if the injunction did not issue, and having shown, by evidence of one-of its witnesses, that this telephone exchange is worth $3000.00, we think that the court has jurisdiction.

The motion to dismiss the appeal is, therefore, denied.

On the Merits.

The facts are that the suit was brought to recover damages and to have an injunction made perpetual to prohibit the injuries complained, of.

Defendant filed an answer, pleading the general denial and specially averred that one of its agents clipped a guy wire as a matter of necessity, in order to pass their own wires; that before clipping the wire they connected the space with one equally as strong as that which they had clipped. They made other allegations in their defense, going to deny the charges made by plaintiff against them.

The evidence discloses that in some places in the town of Franklin, plaintiff’s wires are suspended'on poles immediately above -those of defendant’s. Plaintiff obtained a franchise from the town and defendant also held its right from the town.

Plaintiff, in so far as the evidence discloses, is not injured by the fact that defendant’s line in some places is strung above its own. It complains of the manner the re-stringing was done. These respective rights are not in dispute. Plaintiff complains of the manner in which, fhe defendant undertook to reconstruct and restring its lines.

It appears that in rebuilding telephone lines, frequently the wires-are thrown over the wires of other lines and afterward they are drawn: up and made tight. This usually is not objected to. On this occasion, plaintiff particularly complains of the length of time the line remained loose and touching its own, and thereby interrupted telephonic communication on its lines.

There is evidence going to show that" even prior to the days that' defendant was engaged with its employees in reconstructing and reestringing its lines, customers made complaints similar to those which were made when the defendant’s lines were being restrung.

The guy wire was clipped, as admitted by defendant. There may-have been some delay in replacing this wire.

PláSméiff, in the course of the trial, objected to evidence going- to show that the defendant did not cross the wire of the plaintiff and to ■evidence tending to prove that the telephone system of plaintiff did not work well, or was not satisfactory prior to the construction of the wires by the defendant. Eor the reason that the defendant company .admits having- crossed the wires of the plaintiff, it pleads adjustment ■or settlement of the differences, which buries the general issues and the other pleas of care not to injure plaintiff.

The objection was overruled by the court.

The employee, Giles, who had charge of the repairs of the lines and instruments of plaintiff, swears: That his or plaintiff’s exchange is

going on the same as before, and that it is considered permissible in telephone, telegraph and electric light business to throw wires over the wires of other lines. This witness also about the time of the crossing- of wires and the cutting of a guy wire, held conversation with an agent of defendant, in which the latter claimed that he (plaintiff’s agent) only complained of the cutting of the guy wire, and that upon his assurance that this would be repaired, the witness declared that he had no further cause of complaint.

The District Court held that there was no proof that the telephone wires of the plaintiff company have either been injured or broken, and, in consequence, it rendered a judgment rejecting plaintiff’s demand.

Plaintiff’s agent claims a round sum of five hundred dollars as damages. Upon examination we did not find that the items of damages were proven. While damages may be alleged in globo, yet when proof •of the different items making up the total is called for from those ■who testify regarding the round sum claimed, it would be reasonable for them to furnish statements of items and to give needful details, in ■order that it may be determined with reasonable certainty just how much should be allowed as damages.

Unquestionably, one claiming damages should prove the different items mailing up the total claimed. It will not suffice to say that one 'has lost time and paid expenses because of the acts of which he com-plains. He should give needful details when called upon, as a witness, -to give them.

When the agent of plaintiff was requested to state, as a witness, how much he had spent in traveling from plácelo place because of the acts of defendant of which he complained, his answer was that he kept no .account of it, and that as a matter of fact he didn’t know how much .that item of damages would amount to. The testimony of this witness was equally as indefinite in many other respects.

We have given attention to plaintiff’s contention that defendant having pleaded justification, must be held to that plea, and, in consequence, to have waived his general denial.

It is quite true, as contended by plaintiff, that the general issue is waived by special plea. We are not convinced that the plea here is special to the extent that defendant abandoned all rights under'the general issue. Be that as it may, even in case of a downright waiver of the general denial growing out of the fact that a defendant has interposed a special plea, he is not thereby precluded from showing in defense and in endeavoring to meet the issues pressed against him, that the damages adjusted were not as great as claimed, the court’s ruling, permitting the defendant to make that proof was not, in our view, erroneous.

Should we grant all that plaintiff claims in regard to defendants admissions and limit the latter’s defense to a question of adjustment and settlement vel non, we are greatly inclined to the opinion that the weight of the testimony is with the defendant, and that he has satisfactorily established that defense.

From the time that plaintiff’s agent, who was present and saw the progress of defendant’s work, expressed himself satisfied that no particular harm was done to plaintiff, we think that his claim for damages, not made evident by the testimony at best, was at an end.

Parties must be held to their acknowledgements unless made in error. There was no error shown, nor- does it appear that plaintiff’s agent was not aware of the facts when he, in substance, declared that he was satisfied and that no damages had been committed of which he should complain. The judge of the District Court saw and heard the witnesses and came to the conclusion that plaintiff had no right to the amount claimed, or to a permanent injunction. We have not found error in his conclusion, and must, in consequence, affirm his judgment.

The court, plaintiff urged, having not only dismissed its suit, but rejected its demand; if the judgment became res judicata, then the right of plaintiff to sue out an injunction against the defendant to prevent it from trespassing upon and interfering with its telephone system will be lost.

We are constrained to differ from counsel in this particular.

The effect of the decision -will not be so far-reaching as the decree covers only those acts of which plaintiff complained.

We do not think that the facts of the case would warrant us in changing the decree to one as in case of non-suit.

For reasons assigned the judgment appealed from is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    No. 12,826.
    The Liverpool and London and Globe Insurance Company vs. Board of Assessors et als.
    Syllabus.
    Taxes imposed on a non-resident, whose property is not in the State, are null, as tax laws can have no extra-territorial effect.
    Debts due to a non-resident (still in non-concrete form) have their situs at the domicile of the creditor and not at the domicile of the debtor.
    ON APPEAL from the Civil District Court for the' Parish of Orleans. King,- J.

      Saunders <& Miller and E. W. Huntington for PlaintifE and Appellee.

      F. G. Zacharie for Tax Collector and Board of Assessors, Defendants and Appellants.

      J. J. McLoughlin, Assistant City Attorney, for City of New Orleans, Defendant, Appellant.
    Argued and submitted December 8, 1898.
    Opinion handed down January 9, 1899.
    Rehearing refused May 15, 1899.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff brought this suit to have the assessment of its ’'credits’* cancelled, for the year 1897.

Plaintiff was assessed for money loaned on interest, all “credits” and *11 bills receivable for money loaned or advanced, or for goods sold, and all “credits” of any' description.

We understand' that the issues now relate to the assessment of “debts” that were due for premiums, and that the other items of property assessed do not give rise to any question for our decision.

The plaintiff corporation has no domicile in this State.

But it has a resident board of directors, a resident secretary, and an assistant secretary; the latter is secretary of the board, but not of the company.

They are an advisory board to the home board.

The resident secretary, it appears, manages the business and renders his accounts, and makes remittances to plaintiff.

The company complied with the requirements of Act 24S of 1897, by opening an office in this State for the purposes stated in the article of the Code.

The position of plaintiff is, that credits due the company for uncollected premiums are only taxable at the domicile of the company.

This is controverted by the defendants, who urge, in substance, that the plaintiff’s “credits” fall within the grasp of the revenue law adopted in 1890, taxing the property of non-residents.

The whole theory of taxation under the Constitution of 1879, which^ governs in this case, was based on the idea that the taxes were a property tax, and that the property assessed should be seized and sold to satisfy the taxes for which it was assessed. '

The old method of recovering taxes by suit against the debtor was abolished, and in its place the Constitution ordained, that the properi y assessed should be seized and sold for the taxes.

No great difficulty should now arise in assessing and collecting the taxes on every item of property stated in the revenue act as subject to taxation.

Now, as to debts; a mere debt, a promise to pay, has no value within the limits of the State, if it be due to one not domiciled in the State.

Its value is at the domicile of the creditor, where it has its situs.

It is not property, save at the domicile of the creditor.

If assessed and sold for taxes, we are inclined to think that the title would be greatly wanting in essentials to a perfect legal title.

If treated and considered as a license tax for carrying on business, collection may bo effected, perhaps, but that would only prove that the proposition is correct, for a license tax is not a property tax.

The opinion from which we will quote in a moment, is broader in its scope than needful to sustain our view. The fact in that case is, an attempt was made to tax foreign creditors.

The court decided against it, and held that the debts owed by individuals are not property of the debtor in any sense; that they are promises, obligations, duty, and only possess value in the hands of the creditors where they are property, and in whose hands they may be taxed. “To call debts property of the debtors is a mis-user of terms.”

“Debts have no situs separate from the domicile of the creditor. This principle might be supported by citations from numerous adjudications, but authorities could’ not add to the manifest truth.” Justice Fields, organ of the court, 15 Wallace, 300.

This question of taxing “credits” was considered by Mr. Cooley. He, in language not ambiguous, gives it as his opinion, that debts owing to foreign creditors by individuals, are not taxable at the domicile of the debtor. Cooley on Taxation, page 15.

Upon the same subject we extract from the book of another commentator :

“A debt not evidenced by negotiable paper, according to our view may be taxed at the residence of the debtor; according -to another view, at the residence of the creditor.

“The weight of authority sustains the latter view.” Burroughs on-Taxation, p. 41.

“The situs of the debt is the creditor’s domicile.” Wharton- Conflict of Laws, Section 80.

“Debts have no other situs than the residence of their owners.” Desty, p. 326.

The decisions of this court have repeatedly held, that “credits” have their situs at the domicile of the creditor, as will be seen by the following extracts:

“The tax collector affirms the validity of the tax on the ground, that the section of Act 98 of 1896, directs that movable property shall be assessed in the parish where it is located. This applies' to tangible movables, but. not to incorporated rights generally, which follow the-person of the owner and are not susceptible of physical location.”

“It is well settled, that the situs of a debt as property, is at the-domicile of the creditor ; citing Murray vs. Charleston, 96 U. S. 432; Railroad Company vs. Pennsylvania, 15 Wallace 300, and Cooley on; Taxation.”

Justice Fenner was the organ of the court in the case from which we have just quoted: Mayer & Co. vs. Sheriff, 41 An. 646. It is well to bear in mind that, under the revenue law of 1886-1890, “debt” was included as property subject to taxation.

This decision was rendered in June. In December of the same year, Justice Foche, as the organ of the court, said: “In the case of Meyer vs. Pleasant, 41 An. 645, hereinabove referred to, it was held in-harmony with settled jurisprudence, that the situs of á debt is at the-domicile of the creditor.”

Also — “And on that subject, it is beyond question, the rights cf a-corporation, as well as of a neutral person, to have a legal domicile,, and that domicile is in the State where it was incorporated.”

“With the leave of other States, a corporation can extend its operations to other States — but it does not, thereby, acquire a new domicile in every State in which it does business.”

“It retains the domicile of birth, and, like neutral persons, it is at that domicile that its obligations for, and its liability to taxation for debts or other incorporeal rights which it owns, must be tested and settled.” Citing 104 U. S. — , and 32 Federal Reporter, 183.

Again, the court in that case in substance says: That'the corporation was a foreign one and continued as a foreign corporation without any change in its status growing- out of its compliance with Art. 235 of the Code.

The question came up again in 1892. Justice Fenner, whose opinion is entitled to great weight, particularly in view of the fact that he had considered the question in Meyer vs. Pleasant, cited supra, was the organ of the court, and said: “There is no doubt of the legislative power to modify the rule of comity mobilia personam sequuntur in many respects.

“Movables having- an actual* sites in the State, may be taxed there, though the owner be domiciled elsewhere.

“Even debts may assume such concrete form in the evidences thereof, that they may be assessed when such evidences are situated in the State, as in the case of bank notes, bills of exchange, or bond.

“But as to mere ordinary debts, reduced to no such concrete forms, they are not capable of acquiring any situs distinct from the domicile of the creditor, and no legislative power exists to change that situs, so far as non-resident creditors are concerned. As said by the Supreme Court of the United States: ‘To call debts property of the debtors ig simply to misuse terms.5 All the property there can be, in the nature of things, in debts, belongs to the creditors to whom they are payable, and follows their domicile wherever they may be. The debts can have no locality, separate from the parties to' whom they are due.” Railey vs. Board of Assessors, 44 An. 769.

In the case of Clason & Co. vs. City, 46 Ann., 1, this court said: “‘Under the principles enunciated in those cases, the fact that the plaintiff has a resident clerk acting for it in the city of New Orleans, <and that it has an office and pays a license there, is unimportairi. For the purpose of a determination of the issue involved herein, we have to deal with the plaintiffs as non-residents, and in so dealing with them, we are of the opinion that the judgment of the lower court io .correct.55

The court in this case held, substantially, that the credit owing to a foreign firm is not subject to taxation.

In State ex rel. Insurance Company vs. Board of Assessors, 47th Ann. 1545, the court held: “But it has never been decided that tangible personal property could not be assessed at the owner’s domicile, notwithstanding its actual situs was abroad, in some other State or country.”

A proposition not before us at this time. If it were it would meet with our entire approval. There is no question here of the situs of personal property which has a visible existence as stated in the case from which we have quoted.

This was not a case involving a “mere, ordinary debt,” as subject to taxation. The other cases decided by this court, subsequent in date, made no question of the right to assess tangible movables.

The court said in one of the cases: “The defendants cite the case of Clason vs. City, 46 Ann., 1, to sustain their contention. The decision in the Liverpool & London & Globe Ins. Co. vs. Board of Assessors, 44th Ann., 760, is of more direct application. The decision gave full recognition to the exemption from taxation here of debts due the foreign corporations, but maintained the assessment on the cash of the company necessary here for its business purposes.”

The principle of the decision in Bluefields Banana Co. vs. Board of Assessors, 49 Ann., 43, applies to this case.

We cannot hold that cash thus liable to taxation is exempted.

There is no question in the case before us for decision of cash, which is undeniably a tangible, movable subject of taxation.

The defense urges that the doctrine mobilia sequuntur personam is subject to so many exceptions, that it can be applied only in the simplest cases. A proposition to which we have not the least objection to offer. It is unquestionably true. None the less, it does not apply in the following case. Let us suppose that a person domiciled in England binds himself to insure an owner of property who has a domicile in this State, on condition that the owner pays him an amount fixed within a stipulated time; the promise of the assured to pay for this insurance would not be subject to taxation in this State.

For the same reason, the assured’s promise to pay in the case now before us for decision, is not subject to taxation here.

The defence also urges, that the decisions (Meyer vs. Tax Collector, 41st Ann., 646, and Barber Asphalt Paving Co. vs. City, 41st Ann., 1015,) do not sustain subsequent decisions, because, under the tax acts of 1886 and 1888, there were no provisions'in conflict with the doctrine mobilia sequuntur personam.

In a former law, i. e., law of 1886, all “credits” were subject to taxation due by any “person, company, association, or corporation in and ■out of this State,” and all “credits” held, controlled or administered by “agents” and others in this State. Section one of the act, as in the Act of 1890.

The revenue law enacted in 1888 is substantially the same, and was not less broad than the Act of 1890.

In the law requiring “debts” owed by the foreigners to be assessed for taxation, as we take it, it was intended for all such debts as are evidenced by note or by mortgage, or that are in such other concrete form ■as to render it possible to subject them to taxation under the present laws.

No attempt has been made since the cited decisions were rendered to localize the “debts,” “open accounts,” such as those~'upon which the taxes are now claimed.

The State of Louisiana possesses jurisdiction for purposes of taxation under present laws over bonds owned by corporations actively engaged in business within the State, without regard to the owner’s demands, also judgments; such bonds and judgments being in themselves property which may have a situs away from the owner’s domicile.

As to “open accounts” with a foreign company, for such protection, as it may offer, the law to date has not localized them so as to- render it possible to assess them here and sell them for taxes.

While it may be that a domicile in the State as to those accounts may well be required as a condition precedent to a foreign company’s business in the State, they can not, in our view, be assessed here as foreign “credit?” under the wording of the present law.

We have reviewed the decisions of the Supreme Court of the United States,, of date comparatively recent, which the defense contends show a chango in the jurisprudence since the decision rendered in the 15 Wallace before cited.

We found in the first ease reviewed that the company sought to be taxed was a corporation created by the commonwealth of Kentucky for the purpose of erecting a railroad bridge with its approaches over the Ohio river, between the city of Henderson, in Kentucky, and the Indiana shore.

The court held “that the tax controversy was nothing more than a tax on tangible property of the company in Kentucky, consisting of tax franchise.”

The company was a Kentucky company, and under the revenue law of the State, tax is levied on the home company, i. e., “on all property of corporations organized under the laws of the State ” whether such property be in or out of the State, including the intangible property of such corporations, which property, that is, the intangible property, • whether situated in or out of the State, shall be considered and estimated in fixing the value of the corporate franchise, as we understand all property tangible or intangible of home companies.

This decision sustains our view.

The franchise and other intangible property, it holds, is subject to taxation a.t the domicile of the owner — where it is situs. Henderson Co. vs. Kentucky, 166 U. S., 150.

Another case of the same court, from -which the defense quotes, was an Ohio case. It purports to provide for a tax upon property within the State, of Ohio, and a mode of assessment to ascertain the value of the property in Ohio, and not to assess intangible property, having itssitus in another State.

Adams Express Co. vs. Ohio, 165 U. S., 228.

We take it, that the Supreme Court of the United States in Home Silver Mining Co. vs. New York, 143 U. S., 315, was concerned with-the question of a franchise, an'd found under the law of New York that the company was bound for the tax upon its franchise property, which the courts have repeatedly held has a situs within the limits of the-State by which it was granted.

We find no error in the judgment; it is afiirmed.

Nicholls, C. J., absent.


author: Breaux, J. Monroe, J.

text:
    No. 12,830.
    Charles H. Hamilton vs. His Creditors.
    Syllabus.
    On Motion to Dismiss.
    1. Where a devolutive appeal was tafeen from a judgment approving a syndic’s account, and sometime afterward a judgment was rendered by the court of the first instance, discharging the syndic; Held : On a motion to dismiss the appeal — whatever effect the judgment may have on the proceedings hereafter, it does not offer good ground to dismiss the appear
    2. A motion to dismiss an appeal having been denied, can not be renewed or thereafter treated as a pending motion, but this court, in considering » ease upon its merits, may deal with such denial as an interlocutory order, which may, then, be reviewed.
    5. The distribution of the fund and the discharge, by the lower court, of the syndic, pending devolutive appeals from a judgment on oppositions to account, do not justify the dismissal of such appeals.

      4. The test of the appellate jurisdiction of this court where creditors have litigated "in concurso ,” is the amount of the fund to be distributed.
    G. Where a motion to dismiss an appeal, made when a case is called for trial on its merits, on the ground of acquiescence, involves a question of fact, which would necessitate the remanding of the case; and when, the case being heard on the merits, it appears that the appellant would not be entitled to a reversal of the judgment, the motion to dismiss will be denied and the case decided on its merits.
    On the Meeits.
    6. Creditors in insolvency proceedings claiming privileges to the prejudice oí others, must establish their claims by satisfactory evidence. And a foreign-creditor, claiming a vendor’s privilege, must prove a contract entitling him to it, and identify the goods.
    7. An assessment on "Merchandise and Stock in Trade” gives the city of New Orleans no privilege on the proceeds of the “counters, fixtures, and wooden partitions” in a barroom.

      ON' APPEAL from the Civil District Court, for the Parish of Orleans. Theard, J.

      Dinkelspiel & Hart for Frank Marquez, Civil Sheriff, Syndic, Appellee.

      D. M. Sholars, for Paul Jones & Co., Opponents, Appellants.

      Robert G. Dugue for Morris Building and Land Improvement Association, Limited, Opponent, Appellee.

      Samuel L. Gilmore, City Attorney, and W. B. Sommerville, Assistant City Attorney, for City of New Orleans, Opponent, Appellant.

      Harry H. Hall for Mrs. Widow James Fahey, Opponent, Appellee.

      Rouse & Grant, in propria persona, Opponents, Appellees.

      F. G. Zaeharie for C. Harrison Parker, State Tax Collector, Opponent and Appellee.
    Submitted, on motion to dismiss, November 23, 1898.
    Motion to dismiss overruled December 5, 1898.
    Argued and submitted April 20, 1899.
    Opinion handed down May 1, 1899.
   On the Merits.

The opinion of the court, on motion to dismiss, was delivered by

Breaux, J.

The syndic of the creditors of Charles IT. Hamilton filed an account of the affairs of the insolvency- in his charge as syndic. Oppositions to the account were interposed by several of the creditors.

On the 11th day of March, 1898, the oppositions were heard. The provisional account was amended as ordered, and it was approved by the judgment of the court.

On the 26th day of April, 1898, Paul Jones & Co., who alleged that they are creditors of the syndic, moved for and obtained-an order .granting them a devolutive appeal returnable to this court.

On May 2nd, following, their appeal was filed.

On this same day, the city of New Orleans, also an opponent to the account of the syndic, applied for and obtained an order of devolutive appeal, without bond, as the law authorizes.

In this court, the syndic, appellee, moved to dismiss the appeal,, alleging that his account was approved by a judgment in the court a qua; that the judgment had become executory; and for that reason that it was executed by him; that he had paid out, in accordance with authority granted by the judgment, the money of the estate of the insolvent.

That he was granted a discharge by the Civil District Court, as shown by a copy of the judgment which he annexed to his motion for the dismissal; and that there was no longer any person before the court competent to represent the appellee.

A copy of the judgment was annexed to the motion to show that the syndic was discharged, as he alleged.

The appeals being devolutive, there is no question here of staying the proceedings in the District Court.

Whether the appellants can still apply to have the judgment reversed from which they have appealed, presents the issue before us for determination.

Repeated decisions have well settled the rule of practice, that the court a qua can not affect the appeal by any judgment it may render.

After the appeal lodged here, it passed out of the jurisdiction of the lower court.

Any order it may grant can not have the effect of compelling the court to dismiss the appeal. - ’

The appeal having been granted, and it being before us, we must decline to dismiss it upon proof of a judgment of the court which has no longer jurisdiction in the matter of the appeal.

The propositions argued by counsel in the briefs for syndic, are:

First — That the syndic was regularly discharged, and that in consequence the appeal must be dismissed, as he is a necessary and interested party in all proceedings attacking his account.

Second — That the court is without jurisdiction mtione materiae. With reference to the first proposition it may well be that the syndic has been regularly discharged in the lower court, and yet be a party to the appeal. He, as an appellee, moved to dismiss the appeal. He is an appellee, and the judgment of the lower court, discharging him, can not, of itself, have the effect claimed, in motion to dismiss the appeal.

With reference to the second proposition, that the court is without jurisdiction ratione materiae. The judgment of the lower court can not have the effect of maintaining a claim so as. to divest the Supreme Court of its jurisdiction, if it had jurisdiction when the appeal was lodged before that tribunal. A case before it can not be disturbed by ■the subsequent judgment of the lower court discharging- the appellee. . Conceding all that is claimed by appellee, it may be that the creditors, who are appellants, if their demand should be granted, would have rights against the other creditors overpaid, despite the discharge •of the syndic.

The motion to dismiss is denied.

Reconsideration of Motion to Dismiss.

Monroe, J.

The syndic filed an account May 10th, 1897, presenting for distribution a fund exceeding $2,000. Oppositions were filed by several creditors, and, among others, by Paul Jones & Co., and the ■city of New Orleans.

Paul Jones & Co. claimed a vendor’s privilege, for $401.77, on the •proceeds of certain goods, and objected to the amount and rank of certain attorneys’ and notary’s fees. The fees complained of were reduced by the court a qua, apparently to the satisfaction of the opponents, who have confined themselves in this court to the question ■of their privilege.

The city of New Orleans claimed taxes for several years, in part on real estate and in part on movables, and its claim was allowed in part •and dismissed in part. The complaint here relates to a claim for $50. tax of 1894, assessed on movable property, with respect to which the opposition was dismissed.

There was judgment amending and homologating the account, March 11th, 1898, and the opponents above mentioned appealed, ■devolutively, April 26th and May 2nd, 1898, respectively.

There being no other appeals, the syndic proceeded to make a distribution, agreeably to the judgment of the lower court; and having ■completed the same, was discharged November 22nd, 1898. The following day he appeared here by counsel, and moved to dismiss the pending appeals, on the grounds that the fund to which they related 'had been distributed, and. he having been discharged, there was no appellee before the court. These grounds were duly considered, and the motion to dismiss was denied, by judgment of this court, December 5th, 1898.

When the ease was called for trial, upon its merits, on April 20th, 1899, counsel urged a reconsideration of the judgment mentioned, and has since urged it by brief. On the same day another motion to dismiss the appeal of the city of New Orleans was filed on behalf of Mrs. Widow Fahey. In this motion it is alleged that the only question involved iu said appeal is whether or not the city shall be paid the amount claimed by it by preference -mt of the proceeds of property on which the mover was accorded a lessor’s privilege, and it is further alleged that the city has acquiesced in the judgment appealed from by receiving the amount for which judgment was rendered in its favor.

On the Motions to Dismiss.

The motion made on behalf of the syndic having been denied, could not, under the practice of this court, he renewed; nor can it now be urged as a pending motion. Duncan vs. Duncan, 29 Ann., 829; Succession of Edwards, 34 Ann., 216. The judgment of this court, however, denying the motion to dismiss, is to be regarded as in the nature of an interlocutory order subject to revision in the rendition of the final judgment on the merits. This being the case, whilst wo think the reasons already given for such denial sufficient, we will consider the matter somewhat further in deference to the earnestness with which it is pressed.

The first proposition is that the appeal should be dismissed because, since it was taken, and lodged here, the syndic, being appellee, has obtained his discharge. This is clearly a non-seguiiur. If the syndic represented all the appellees, for the purpose of the appeal at the time it was taken, and thereafter died or ceased, for some other reason, to represent them, the remedy would be, not to dismiss the appeal, but to make proper parties. If, upon the other hand, the syndic should be the sole appellee, representing himself alone, as, for instance, in a case where the only oppositions are based upon charges of misappropriation of funds by him, and the opponents choose to take devolutive instead of suspensive appeals, from a judgment dismissing their oppositions, and the jurisdiction of this court attaches by reason of -the filing of such appeals, it would hardly he claimed that the syndic could defeat the proceedings against him by obtaining a discharge from the court whose jurisdiction over those proceedings had been divested by such appeals. It is clear that so far as any personal interest which he may have in the matter is concerned, his status, as an appellee, when once fixed in this court, can not be changed by anything which may take place elsewhere, except his death, and in case of his death, his place would be supplied by his legal representatives. The question then remains: does he, for the purposes of the appeals, represent all the creditors, and does his discharge by the court a qua after the filing of such appeals, in this court, render it necessary that those creditors should severally be summoned and made parties ? It is very certain that he does not represent those creditors who appear here as appellants, for, if he did, the appellants and appellee would be-united in the same person, and there would be no contestatio litis —an extreme view which has not been urged. As a matter of fact, and of law, each of the appellants represents himself here, as each represented himself in the lower court. But in the lower court, these appellants were not the only parties to the litigation. There were other creditors making- claims' contradictorily with each other, in concurso, the only difference between them, so far as the syndic is concerned, being that he approved the claims of some and disapproved those of others; but he could prevent no one of them from representing himself.

They were all cited and were all before the court, each being, at the same time, plaintiff and defendant, and the merits of their respective claims were determined by the same judgment, so that, when an appeal,was taken from that judgment, those who were not appellants, were, necessarily, appellees. It is true that they might have been content that the syndic should represent them here, just as they might have been content to have him represent them in the court a qua, but they were not obliged to rely upon him for the protection of their interests, nor have they all done so in this case, two of them having appeared by counsel, and one of them having filed a separate motion to dismiss the appeal taken by the city of New Orleans.

That the foregoing views import no novelties into our jurisprudence may be seen by reference to the following authorities:

“Notification of the filing of an account operates as a citation to all' persons concerned.” Succession of Bougere, 29 Ann., 378.

“The opponents to a tableau of distribution are all plaintiffs and defendants.” Succession of Gayle, 27th Ann., 553.

“All parties interested, that the judgment should remain undisturbed, must be made parties to the appeal, or it will be dismissed.” I Hen. Dig., Vol. 1, p. 63, No. 7; Louque’s Dig., p. 43, V. No. 3, p. 13, No. 1.

“A motion of appeal and bond in favor of the clerk makes all persons interested parties to the appeal.” Succession of McKenna, 23rd Ann., 370.

“Since the passage of that act,” (requiring appeal bonds to be made in favor of the clerk) “our predecessors have constantly held, aud we think correctly, that when an appeal is granted in open court, and the bond is made payable to the clerk of the court, any persons having an interest are, by law, parties to the appeal, those who are not appellants are appellees." Webb vs. Keller, 39 Ann., 59.

The remaining proposition urged in support of this motion to dismiss is, that, since the appeals were taken, they being devolutive, the fund affected by the judgment appealed from has been distributed, and as the claims of the appellants do not amount, in the aggregate, to $2,000, this court is without jurisdiction rations materias.

The fund offered for distribution, and ordered to be distributed, exceeded $2,000, and the judgment appealed from directed and regulated the distribution of the whole fund. It is not claimed that an appeal did not lie at the moment the judgment was signed, but it is argued that the right to a devolutive appeal was cut off by reason of the subsequent execution of the judgment; this argument being based, to some extent at least, on the circumstance that the fund in dispute consisted, in part, of money, which, being the purchase price of certain effects, which were subject to lessor’s privileges, was retained by the lessors, to whom the effects were adjudicated, instead of being paid over to the syndic, and, by operation of the judgment, inured to said lessors before the appeals were taken. The answer, as we think, to this, is, that the right to a devolutive appeal, if taken within a year after the signing of the judgment, is not affected either by the fact or by the timé of the execution of such judgment.

It differs from a suspensive appeal only in that it does not suspend the execution of the judgment, and in that, by reason of the possible execution of the judgment pending such appeal, the eventual remedy of the appellant, in case of the reversal of such judgment, may be different from what.it would have been, if he had appealed suspen•sively.

It is further said, however, that as the claim of the appellants, Paul Jones & Co., is for only $401.77,.the fund to be distributed can not be •affected beyond that amount, and that the jurisdiction of this court is, therefore, to be determined by the amount claimed. In other words, if we understand the proposition correctly, it is, that no matter what may be the amount of the fund to be distributed, unless the actual amount involved in the appeal, or appeals, from the judgment ordering the distribution, exceeds $2,000, this court has no jurisdiction.

The Constitution provides that the appellate jurisdiction of this court “shall extend to all cases, where the matter in dispute, or the fund to be distributed, whatever may be the amount therein claimed, shall exceed $2,000 exclusive of interest, etc.” Art. 85.

The Constitution of 1879 provided that the jurisdiction “should extend to all cases when the matter in dispute or fund to be distributed, whatever may be the amount claimed,.shall exceed $1,000, exclusive of interest,” etc. (Art. 81.) (This amount being subsequently increased by an amendment.)

By the Constitution of 1868, the jurisdiction extended “to all cases when the matter in dispute shall exceed $500,” etc. (Art. 74.)

Under the Constitution of 1868, it was held, although the words, “or “ fund to be distributed, whatever may be the amount therein “ claimed,” were not used, and the jurisdiction was made to depend upon the amount “in dispute,” that, when there was a fund to be distributed, the amount of such fund represented the amount in dispute. Thus, in Succession of Cloney, 29 Ann., 337, Grenon was placed on the account as an ordinary creditor for $350; he filed no opposition, .and some oppositions that were filed, were subsequently withdrawn, .and the account was homologated; whereupon, Grenon appealed. It was held, on motion to dismiss, that the amount of the fund to be distributed, and not the amount claimed by him. determined the right of .appeal; and there are many other cases to the same effect.

Under the Constitution of 1879, the question was presented in the •case of Renshaw vs. Stafford, 34th Ann., 1138, where an opponent claimed $1,000, out of a fund of $12,500. The court, at first, held that it was without jurisdiction, and the case was dismissed. Upon, rehearing, however, the following views were expressed by Mr. Justice Todd, as the organ of the court, to-wit: ,

“A careful examination of the authorities bearing- on this point “ satisfies us that we erred in our previous decree, dismissing the “ appeal for want of jurisdiction.

“By Article 81 of the Constitution, this court has jurisdiction, “ ‘when the matter in dispute, or the fund to be distributed, whatever “ may be the amount therein claimed, shall exceed $1,000, exclusive of “ interest.’

“That part of the article relating- to the ‘fund to be distributed’ was ■“formulated to correspond with the jurisprudence on the subject, “ settled by a long line of decisions of this court. These decisions we “have diligently reviewed, and find that the question of jurisdiction “ on this point, in such cases, is controlled by the amount of the fund “to be distributed; that this constitutes the object of dispute; that if “ the entire fund is claimed by one party, and that sum exceeds the “ amount required to give j urisdiction, that the jurisdiction vests, “ though only a part of that fund is claimed by the other party, and “that part is below the amount which, under other conditions, is “necessary to give jurisdiction. In such a contest, it is considered “ that a question has arisen that involves the distribution of the ' “ entire fund, one side demanding the whole of it, and the other deny- “ ing such right, leaving for decision how the fund is to be divided, “ and how disposed of. The decisions are uniform in support of this

"view. 8 L., 167; 11 L., 462; 2 Ann., 190; 29 Ann., 327; 30 Ann., 625;“ 31 Ann., 453.

“In a recent case decided by us, Succession of Duran, not yet "‘reported, the majority of the court did not think that the decisions “ above cited were applicable to that case, inasmuch as, by the effect “of a prior judgment, not appealed from, homologating the account ■“ and ordering the distribution of the fund wherein not opposed, the “ dispute had been restricted to a sum remaining much below the “ appealable amount.

“Our previous decree, dismissing the appeal, should therefore be “ set aside.”

The case thus decided is one of the cases referred to by the court in the case of .Liquor and Tobacco Company, Limited, in Liquidation, 49 Ann., 1455, upon which the mover relies, and both cases differ from the instant case, in that, in both cases, when the judgments homologating the accounts, so far as not opposed, become final, there was but ■ one opponent before the courts, respectively, claiming less than the appealable amount, and, hence, as it was held, no concurso, whereas, in the case now under consideration, when the judgment ordering the distribution was rendered, there were a number of contestants whose claims affected the entire fund, and amounted to considerably more.

We, therefore, find no good reason for changing the ruling heretofore made upon this motion to dismiss.

Another motion was presented, upon the day upon which the case-was called for trial, upon its merits, on behalf of Mrs. Widow James Fahey, one of the creditors of the insolvent, to dismiss the appeal of the city of New Orleans, upon grounds which have been already stated. This motion involves a question of fact, which, if we considered that the interests of justice required it, would necessitate the remanding of the ease. Rut, as the case has been, in the meanwhile, argued upon its merits, and as, upon the merits, we have reached a conclusion adverse to the appellant, no good purpose could be sub-served by remanding the case in order to solve the question — has the-appellant acquiesced in the judgment appealed from ? This motion to-dismiss is therefore denied.

On tiie Merits.

Paul Jones & Co. claim a vendor’s privilege on certain goods which were contained in room “N,” “Uennen Building,” and which had been seized by them under a writ of sequestration, before the cession.

These goods were sold separately, and realized $401.77. The syndicappears to have accorded to the opponents the rank of privileged-creditors to the amount of $200, without, however, specifying any particular fund upon which the privilege was to bear. The claim which the opponents make is that the privilege should cover the entire-proceeds of the property sold by them to the insolvent; that said-property consisted of the liquor found in room “N,” and sold separately, and that the proceeds amounted to $401.77, as stated above.

Privileges are stricti juris, and can be enforced only when clearly established. Thé domicile of the opponents is in Louisville, Kentucky; they appear to have conducted their business here through Mr.. G. J. Crawford, and it is claimed that the sale to the insolvent of the-whiskey in question was a Louisiana contract made by him. The oppositions to the account appear to have been first called for trial in the lower court on December 2nd, 1897, at which time counsel for Paul Jones & Co. offered to testify as to a conversation which, he had, .at one time, had with Mr. Crawford, concerning the latter’s authority to make binding contracts on behalf of his principals, and as to the contents of a letter which Crawford was said to have written to his principals, presumably upon the subject. This testimony was, however, objected to, and properly excluded, but the judge a quo ruled .that time should be given to the counsel to prepare his proof. When, therefore, the case was again called for trial, upon December 16th, 1897, counsel for opponents offered in their behalf, the testimony of Lawrence Jones, which had been taken under commission,at Louisville, Kentucky, and also examined Charles Morel, a deputy sheriff, as a witness.

Morel testified that he was charged with the execution of the writ of -sequestration under which he seized certain whiskey, pointed out to him by Hamilton, before his cession, and that the whiskey thus seized was the same that was sold separately, by the syndic, after the cession.

There was no other evidence in the record to identify the whiskey thus seized and sold, as whiskey which had been purchased by Hamilton from Paul Jones & Co. Morel had no personal knowledge of the matter, and Hamilton was not called upon to testify. Lawrence Jones testifies quite fully concerning the sale made by Crawford, though it is evident that he was in Louisville, or elsewhere, -when the transaction took place, and Crawford was in New Orleans; hence, being asked by the counsel representing the Morris Building Company:

“Q. If you know anything of the matters touching which you have been interrogated, state fully how your knowledge thereof was acquired.” He answers:

“My knowledge of the facts stated was acquired through our rep'“resentative, O. J. Crawford.”

This answer, apparently, applies to all the testimony given by the witness, and taken in connection with the fact that he nowhere states that he is, or was, a member of the firm of Paul Jones & Co., renders it difficult to attribute any fixed value to his testimony.

Aside from that, however, his answers upon the main issue are unsatisfactory. Merchants established elsewhere and making sales here, through agents, ought not to be allowed to hold themselves in a position to call such sales binding, when it suits them to do so, and only tentative or conditional agreements, subject to approval, when it will subserve their interests. This witness was asked, by the counsel for Paul Jones & Co., the following question, to-wit:

“State specifically, whether or not Paul Jones & Oo. reserved them- “ selves the right to reject the sales made by the said Crawford, as “ their agent, to the said Hamilton, or whether the said Crawford was “ authorized to bind his said principals absolutely to the sales made “ by him to the said C. II. Hamilton and which constitute the indebt- “ edness claimed by the said Paul Jones & Co., of the said C. H. “ Hamilton.”

And to this he answers: “C. J. Crawford was authorized by us to “ sell C. H. Hamilton, and spent considerable money with Hamilton to “ effect the sale, and as we had authorized him, we felt legally and “ morally bound to make the shipment.”

It will be observed, however, that he does not “state specifically,” as he was requested to do, “whether or not Paul Jones & Co. reserved themselves the right to reject the sales made by Crawford.”

It will also be observed that the letter, upon the subject of Crawford’s authority in the premises, as to the contents of which opponents’' counsel proposed to testify, was not produced, nor was there produced, any answer to such letter by Paul Jones & Co., and yet, it is apparent that whatever authority Crawford had' was conferred upon him by written communications. Upon the other hand, the whiskey in question was shipped, not to Crawford, to be by him turned over to Hamilton, but direct to Hamilton, so that the delivery was made in Kentucky.

Under these circumstances, we are of opinion that the opponents-failed to administer the proof necessary to establish the privilege claimed by them.

The city of New Orleans claims $50 and a tax privilege therefor,, on the proceeds of certain "counters, fixtures, wooden paHUion, etc,” found in the premises No. 160 Common street.

This claim is based on an assessment on “merchandise, or stock in-trade,” and the learned counsel representing the city argues that such-an assessment entitles the city to a privilege on the proceeds of the-“counters, fixtures, and wooden partition,” which were sold separately, at his request.

It is true, as he says, that Article 233 of the Constitution mentions only movables and immovables, as general divisions of property for purposes of taxation, but it does not preclude subdivisions, such as are necessary to make- an assessment intelligible. And the very bill upon which the opponent sues subdivides movable property as follows, to-wit:

“Horses, Cows, etc.”

“Vehicles.”

“Merchandise or stock in trade.”

“Money at interest, capital, bills receivable.”

“Money in possession.”

“Shares of stock.”

“Furniture, etc.”

“Statuary, paintings, etc.”

“Diamonds, jewelry, etc.”

“Stock or interest in water craft.”

“Trackage, etc., of railroads.”

“Judgments, suits, and causes of action.”

“Franchises, patents, copyrights, trade marks, privileges.”

“And charters, all canals and other ways of communications.” “Bonds of all kinds.”

It would hardly be claimed that, upon a bill containing such an enumeration, an assessment upon “horses, cows, etc.” would entitle the city to a privilege upon the proceeds of “vehicles ” or that an assessment upon "diamonds, jewelry, etc.” would apply to "bonds of all hinds”; nor, unless we distort the meaning of the very commonplace words “merchandise or stock in trade,” do we think that they could be made apply to either “counters, fixtures, or wooden partitions.”

If so, then, with equal propriety, they could be applied to the machinery of a planing mill or sash factory; to the plate glass show windows of a jewelry store; and, as far as we can see, to the building in which a merchant conducts his business, and the words “merchandise or stock in trade” would lose the value which they now have, in that they distinguish certain things from other things which also have specific names or terms to designate and differentiate them.

The estate, is entirely insolvent; otherwise we might change the judgment rejecting this claim into a judgment recognizing it as an ordinary debt, or dismissing it, as in case of non-suit. As the matter stands, we will affirm the judgment appealed from.

For these reasons, we are of opinion that the oppositions of Paul •Jones & Co. and of the city of New Orleans are not well founded, and that the judgment of the court a qua was correct, and it is accordingly affirmed.


text:
    No. 12,934.
    Mrs. Susan A. Saufley, Wife, etc., vs. Leon Joubert.
    Syllabus.
    The lender who lends money to a married woman is not required to inquire into the purpose oí the loan, when she is duly authorized by the court to borrow a specific amount.
    The judicial admission of the wife when being examined by the judge, that the amount she was about to borrow, when she appeared before the judge, was to be used for her separate advantage, and the preponderance of testimony showing that the lender was not aware that the purpose of the wife was other than that shown by the certificate, will conclude the wife, and render it impossible for her to have the mortgage decreed a nullity.
    The judge of the District Court saw the witnesses, heard them testify; the review of their testimony on appeal led to the conclusion arrived at by him.
    Under the rules of evidence, witnesses for each party being about equal in number, the burden of proof being with plaintiff, and plaintiff’s declarations when the loan was gotten, not being in harmony with allegations made in her pending suit: Held .- That plaintiff has no right of action to set aside the act of mortgage attacked.
    ON APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Frank E. Bainold for Plaintiff, Appellant.

      A. J. Villere for Defendant, Appellee.

      JDinkelspiel & Hart for Civil Sheriff, Defendant and Appellee.
    Argued and submitted February 23, 1899.
    Opinion handed down March 7, 1899.
    Rehearing refused May 15, 1899.
   The opinion of the court was delivered by

Breaux, J.

The object of plaintiff in instituting this suit was to annul and have decreed void a mortgage which she signed to secure a loan made by the defendant, also to obtain a judgment annulling a sale made in foreclosing the mortgage, and pronouncing the note of mortgagor, identified with the act of mortgage she executed, null and of no effect.

We are informed that plaintiff’s husband was the principal owner ol a factory for creosoting wood by a process of which he is the originator and patentee; that the charter of the company was a nullity, and that, in fact, the interested parties were only partners and owners of the .business in tho proportion of $50,000 of the firm owned by plaintiff’s husband, and $5,000 by the other partners; and in consequence of the large interest of her husband, plaintiff in this suit .alleges that the business of the firm was, in reality, his own.

Owing to the financial embarrassment, the company had to close ■down and stop its business. Plaintiff sought to prove that, about that time, her husband sought a loan from defendant, and to secure it offered a mortgage on the company’s property, which defendant ■declined after having found out in course of a talk with her husband that the company was not a going concern, and would remqin idle until the money was obtained.

That, therefore, he made known to defendant that plaintiff had improved property which he would mortgage to secure the loan; that he held plaintiff’s power of attorney, and that he had, moreover, an ■equitable interest in the property of his wife, growing out of the payment by him of a mortgage of $9,000 resting on the property at the date of their marriage.

The testimony discloses that defendant consented to make the loan, and accept the mortgage offered. He informed plaintiff’s husband and agent that his lawyer, after an examination, made a favorable report as to the title. He, at the same time, asked him to call on the lawyer the next day with his wife to have the petition signed, which, it appears, was done.

Defendant’s lawyer is also a notary. Plaintiff’s husband employed him as notary, and, as such, directed him to draw up a mortgage upon the property of the company to secure the wife.

The contention of the plaintiff is, at this ’point in tips case, that the notary, who was defendant’s lawyer, was fully informed of the facts before recited. The acts were written the same day, and plaintiff avers that the check handed over by the lender, the defendant, was made out in her favor, and that immediately it passed into the hands of the secretary of the Oreosoting Company.

It appears of record that the company went into liquidation; that it was insolvent, and that plaintiff never got anything out of the insolvency.

Defendant, as a witness, testified that he did not know anything about the use the plaintiff intended to make of the money, and that he loaned it in the regular course of business; that plaintiff’s husband came to his office and offered the mortgage, which he accepted; that plaintiff’s husband talked at some length, but that if he had said anything about wanting the money for himself, to be secured by mortgage on his wife’s property, the loan would hot have been made; that he had. experience as a lender of money, and knew that that was not sanctioned by. law.

Defendant’s lawyer and notary swore, that, at whatever-time his-client, the defendant, makes loans, he leaves it to him to examine the title, and if he is satisfied of its legality, he is usually directed to prepare the deed, and that when a married lady is the borrower, she is required to furnish the certificates of the judge, authorizing her to-borrow the money. That he, in this ease, made the usual examination; that he prepared the deed, and that then the mortgagor signed the act. He had the usual certificate in his possession authorizing her to-sign; that the act of mortgage to the defendant was signed in the morning, and the act of mortgage on the Creosote Company, in favor-of the wife, was signed in the afternoon of the same day the mortgage-to the defendant was signed. The witness testified that plaintiff’s husband never told him that the two acts were in any way connected,, one with the other, and that he, the witness, had no reason to suspect that there was any connection between them; that when plaintiff’s son came to his office to sign the second act, there was no conversation held, as stated by the former, that the money borrowed from the defendant was to ge in-to the business of the Oreosoting Company.

One or two suits grew out of defendant’s foreclosure proceedings1 under the mortgage he.held against plaintiff. One of these was decided by this court. Joubert vs. Sampson, 49th Ann., 1003.

The judgment of the District Court was in favor of defendant.

From the judgment plaintiff appeals.

For a long time in the history of jurisprudence of this State, it was not enough to prove that the wife received the money to recover on a mortgage signed by her as mortgagor; proof that it was for her separate advantage was required.

In 1855, the adoption of a statute effected a change which has been repeatedly interpreted by the Supreme Court as relieving the creditor from the necessity of proving, in order to recover, that the amount loaned was applied, as the act of mortgage imported, to the borrower’s benefit and advantage.

Although 'the money, after the loan was effected, was placed to the credit of a corporation in which the husband of the plaintiff was principal stockholder, or (if the charter of this corporation was a nullity, as contended by plaintiff,) to the credit of a partnership, in which he (the husband) was the principal owner and partner, it would not have the effect of rendering the mortgage given by the wife, a nullity, provided the lender, prior to the loan, had no knowledge of thfl intention of the borrower to apply the amounts to the payment of her husband’s debts.

In the ease of Dougherty vs. Hibernia Insurance Company, 85th Ann., 629, the position of the married woman was that, as she could not mortgage her iwoperty, for the benefit of her husband, as she had done, the burden of proof was on the lender. The court, meeting this contention, held, that in the absence of fraud, or complicity on the part of lender, the latter is not bound to look behind the judge’s certificate; citing a number of decisions in support of the interpretation.

Here the weight of the evidence shows that the defendant had uo such knowledge as plaintiff charges in her petition.

The importance sought to be given to conversations said to have-been held many years ago, between the plaintiff’s husband and defendant, and the talk the son claims to have had with the notary andlawyer, lose all force in the presence of the positive denial of two witnesses for defendant, as far as we know, equally as credible as the two witnessed first mentioned, who testified for plaintiff. We have seen that the-burden of proof on this point was with the plaintiff. She obtained a. certificate from the judge on her own testimony, that the loan was made to her in her own interest and for her advantage. The judge of the District Court after hearing these witnesses decided that the weight of the testimony was with the defendant.

Having given these grounds due weight, and after an attentive reading of the testimony of the witnesses, we did not find that our learned brother of the District Court erred.

Plaintiff pitched her case exclusively on the ground of defendant’s knowledge of her husband’s intention to use the money loaned, in his business, and to appropriate it to himself. Having failed to sustain this ground by preponderance of proof, no alternative is left us save to affirm the judgment.

There was no question before the court of complicity, fraud or persuasion, only the one question of knowledge of plaintiff’s intention when she borrowed the money. Her judicial agreement in this regard, we have seen, is supported by the testimony of two witnesses, contradicted, it is true, by the husband of the plaintiff, also in part by her son.

In our judgment, under no rule of evidence, would we be justified in reversing the judgment of the District Court.

The law and the evidence being with the defendant, the judgment .appealed from, is sustained.


author: Blanchard, J.

text:
    No. 12,775.
    Succession of Louisa Aronstein. On Application of J. F. Irvin, Jr., to be Appointed Administrator.
    Syllabus.
    1. One haying an Interest to oppose the application of another to open and administer a succession is not confined to merely resisting the application on the ground of a better right in himself.
    •2. He may go further and resist the application by raising the Issue of a succession to administer, or that of necessity vel non of administration.
    •8. Where the administration of a succession has been closed and many years afterwards the heirs of the deceased, suing as heirs, recover property, a creditor of the deceased will not be permitted to reopen the succession and bring the property thus recovered under administration as belonging to the succession, and himself appointed administrator.
    4. The heirs fake by inheritance the property thus recovered from adverse claimants. But this is not to say that they take the property free from the pursuit of the creditors of the succession.
    .'5. Creditors with valid, existing claims have their recourse clearly pointed out by the law.

      APPEAL from the Thirteenth Judicial District Court for the Parish of West Feliciana. Stone, <7., ad.hoc.

      ' Olivier 0. Provor.ty for J. F. Irvine, Jr., Applicant to be appointed Administrator, Appellant.

      S. McO. Lawrason for A. Aronstein, Opponent, Appellee.
    Argued and submitted January 10, 1899.
    Opinion handed down May 1, 1899.
   The opinion of the court was delivered by

Blanchard, J.

Louisa Aronstein, a married woman, separate in property, from her husband, died in 1878. She left a small estate. She owed debts. Her succession was insolvent. Her surviving husband qualified as natural tutor of her minor children, and, as sucia, was permitted by the creditors to administer the succession.

In the course of this administration he obtained an order to sell the property to pay the debts of the succession. At this sale a tract of land known as i;the Neville plantation,” was bought by Julius Aron-stein. This anan was the tutor and administrator. He bought in his individual capacity. He was not surviving paartner in community. His purchase was, therefore, in contravention of a prohibitory law and an absolute nullity.

After his purchase he conveyed to other parties, and in 1895 John F. Irvine, Sr., was in possession thereof as owner.

In that year, the heirs of the dead woman brought an action against Irvine to have the succession sale of the Neville plantation to Julius Aronstein, and the subsequent conveyances of the same through which Irvine acquired title, declared null and void, and to have the ownership of the property decreed to be in themselves as her heirs.

This suit was prosecuted to final judgment and concluded by decree of this court handed down in May, 1897. See 49 La. Ann., 1478.

The Neville plantation was declared to be the property of the succession of the dead wife. It was held that the title of the tutorship had never been divested. The purchase by the tutor was decreed null ah initio, and his subsequent conveyances of the property likewise absolute nullities.

Following this, John F. Irvine, Jr., alleging himself to be a creditor of the succession of Louisa Aronstein, that the debts of the succession were unpaid, its immovable property still undisposed of, and the necessity for administration, applied to be appointed administrator.

Aaron Aronstein, one of the heirs of the deceased, and one of the plaintiffs in the suit at which the nullity of the tutor’s purchase of the Neville plantation had been decreed, opposed this application on the following grounds (abbreviated) to-wit,:

1. That the succession of his mother had already been fully administered.

2. That the suit of the heirs of Aronstein against Irvine to have decreed the nullity of the purchase of the Neville plantation-by Julius Aronstein and his subsequent conveyances thereof, -was an acceptance by them of the succession, doing away with the necessity of an administration.

3. That John F. Irvine, Jr., the applicant for administrator, is not a creditor of the succession, and the Metropolitan Bank, of whose claim he avers himself to be the transferree, was not the owner or holder of any note or debt due by the dead woman, and if it were, the same has been extinguished by the prescriptions of five and ten years.

4. That the question as to the right to have the Neville plantation (the only property appraised in the inventory taken in these new proceedings) returned to the succession of Louisa Aronstein for administration, was an issue tendered in the suit tcfannul its pretended purchase by the tutor and by the defendant in that suit; that this issue was decided adversely to the defendant therein, and the property adjudged to the heirs of Mrs. Aronstein, with the condition that they should pay to the possessor the sum of $501, representing the amount the heirs had been benefited by the sale as being that which in the course of the former administration had been paid to the Metropolitan Bank, mortgagee of the property; and that J. F. Irvine, Jr., present applicant for administration, was a person interposed for his father, defendant in the suit to annul, and against whom res judicata is pleaded.

5. That the Metropolitan Bank (transferror of the applicant) having accepted the proceeds of the sale of the Neville place in the succession proceedings, was estopped to claim an administration of the .property again, which estoppel bound its transferree; and if not estopped, that no tender of the said proceeds had been made.

The judgment' of the court a qua, sustained the opposition and rejected the application to administer. The applicant appeals.

One having an interest to oppose the application of another to open and administer a succession is not confined to merely resisting the . application on the ground of a better right in himself. He may go further and resist the application by raising the issue of a succession to administer, or that of necessity vel non of administration.

The opponent herein had such an interest to oppose this application to administer.

He had evinced by his acts an unconditional acceptance of the succession. 49 La. Ann., 1482.

In March, 1879, a year following the offering at public sale of the Neville plantation and its purchase by the tutor, the latter filed a-final account of his administration of the succession, and a tableau of distribution of its assets. In April, 1879, this account and tableau was homologated so far as not opposed, and in December, 1880, the opposition of L. Bloom, the only opposing creditor, was overruled, and final judgment of homologation entered up. The distribution of the assets according to this account and tableau followed.

This closed the tutor’s administration of the succession. The creditors took no further interest in it, and no steps to make amenable to their claims the immovable property held adversely under the void purchase of the tutor.

It was left to the heirs to do this, and, accordingly, we find that when several of the heirs became of age and others emancipated by marriage they brought suit to have decreed the nullity of the pretended titles by which the tutor and his transferrees held the property, and to have themselves declared the owners, joining with them as parties plaintiff, through the appointment of a special tutor, three of the heirs who were still minors.

And now when they have succeeded in this suit to recover the property as heirs of their deceased mother, a transferee of one of the creditors of the succession who has remained silent for many years, appears, seeking to reopen the succession and to have the property thus recovered brought 'again under administration as belonging to the • succession, and himself appointed administrator. 34 La. Ann., 1168.

We do not think this can be done. The succession of Louisa Aron-stein, as such, must be considered closed and as no longer existing. See 30 La. Ann., 139; 31 La. Ann., 506; 35 La. Ann., 313; 38 La. Ann., 716. The heirs take by inheritance the property of the dead woman which they have recovered from adverse claimants, those of them of age and those emancipated taking as heirs who have accepted the succession unconditionally, those who are minors taking as beneficiary heirs. See Succession of Sarazin, 34 La. Ann., 1168.

This is not to say that they take the property free from the pursuit of the creditors of the succession of Louisa Aronstein. Creditors who have valid, existing claims have their recourse clearly pointed out by the law.

The applicant. for this administration has mistaken his remedy. Instead of seeking to reopen the succession long since concluded, his course was rather to proceed against the major and emancipated heirs who by accepting unconditionally have become his debtors, and against those who, as minors, accept conditionally, to subject the property in question, now vested in the heirs, to the payment of whatever legal claim he may have as creditor of Louisa Aronstein, deceased, and as creditors of these heirs of hers, who, legally capable of accepting unconditionally her succession, have done so. Soye vs. Price, 30 La. Ann., 93; Lemmon vs. Clark, 36 La. Ann., 744; C. C. 1422 et seq.

The judgment appealed from reserves to the applicant, Irvine, the right to prosecute what claims he may have against the succession of Louisa Aronstein by direct proceeding against her heirs. This is well. •

Judgment affirmed.

Mr. Justice Monroe takes no part, as he was not a member of this court when the case was submitted.


text:
    No. 12,862.
    J. A. Woodville vs. Mrs. Wilhelmina Klasing, Wife of Henry H. Brinkman.
    Syllabus.
    (1) The District Court has jurisdiction to determine the appellees have a right-to proceed with their execution. , Its dismissal of the suspensive appeal had only.that effect, and left the judgment debtor to whatever right sh«may have to a devolutive appeal. The dismissal of the suspensive appeal did not prejudice whatever right she may have had to a devolutive appeal.
    (2) A suspensive appeal bond must be one-half over .and above judgment and-interest.
    (3) While it is true that the amount of the bond, as fixed by the district judge; will suffice for a devolutive appeal, though not enough for a suspensive appeal ; it will not be sufficient if it is not preceded by any order whatever.
    (4) An order was entered, dismissing the appeal. Prom that judgement, only,defendant appealed. Defendant did not appeal from the moneyed judgment rendered against her. It follows appellees could not join in an appeal from-a judgment from which no appeal had been lodged before the Supreme-Court, and the amendments prayed for remained without effect, as related to a judgment not before the court.
    ON APPEAL from the Civil District Court for the Parish of' Orleans. Theard, J.

      Edwin, T. Merrick for Plaintiff and Appellee.

      J. B. Rosser, Jr., for Defendant and Appellant.
    Argued and submitted March 7, 1899.
    Opinion handed down March 20, 1899
    Rehearing refused May 1, 1899.
   The opinion of the court was delivered by

Breaux, J.

This is a suit by plaintiff to collect a fee for services' rendered by him as an attorney at law in obtaining a judgment for' defendant against her husband, of separation from bed and board, and separation of property.

Judgment was rendered in favor of the plaintiff, Woodville, for $2,500, with legal interest from judicial demand and costs.

A suspensive appeal was taken from this judgment upon a bond for $3,850. Plaintiff moved the court to dismiss the appeal on the ground, that the bond was insufficient in amount.

The motion was granted, and appeal dismissed.

A suspensive appeal was taken from the judgment dismissing the appeal.

Plaintiff here answered the appeal, alleging, in the first place, that he is entitled to a judgment of $5,000, instead of $2,500, and that defendant had no cause to appeal.

Appellee’s prayer is for an increase of $2,500, if, he averred, in these proceedings, an increase is permissible; but in ease the judgment is a finality, plaintiff prays for ten per cent, damages for a frivolous appeal.

The bond, as alleged by appellee, was not sufficient for a suspensive .appeal.

.'Principal and interest amount to ......................$2,598 75

«.’One-half over the bond ................................ 1,299 37

-

$3,898 12

The suspensive appeal bond, signed by defendant, we have seen, was for less than the amount just stated.

Appellant endeavored to meet plaintiff’s position regarding the insufficiency of the bond by the defense, that a bond for a suspensive appeal is sufficient to sustain the appeal as devolutive.

As the bond was insufficient in amount, it follows that appellant was ¡not entitled to a suspensive appeal. The decisions sustaining that view on the subject are clear enough, and the article of the Code of Practice being positive, leaves but little, if anything, to interpretation.

The requirement is that the appeal bond be for a sum exceeding by ■one-half the amount for which the judgment was given. Code of Practice, Art. 575.

Here, if account be taken of the interest on the amount of the ■judgment, the bond was for less than the law requires. It is well settled that, in making up the bond, interest should be held as forming ■part of the judgment. Ross vs. Pargaud, 2nd La., 85; Brown vs. Brown, 9th Ann., 310; Paland vs. R. R. Co., 42nd Ann., 290.

The right vel non of the lower court to dismiss the appeal for insufficiency in amount of the bond, is' the next question in order for •our decision.

The contention of the defendant is, if the amount of the bond is found insufficient, the appeal should not have been dismissed, but that .it should have been held to operate as a devolutive appeal.

Generally, the only effect of the party’s failure to comply with the .requirements of the law, as relates to the amount of the bond, is to render the appeal devolutive. The District Court, in such a case, has .jurisdiction to authorize the judgment creditor to take out his execu-* ■lion. Here, it is manifest that plaintiff had the right, after the suspensive appeal had been dismissed, to take out an execution, and that to that extent, at least, this right is recognized by the judgment of ■dismissal of defendant’s appeal. The judgment was legal.

This was the only effect the order of dismissal had. It left defendant at liberty to prosecute a devolutive appeal, if she had such a right, .under the order of appeal granted.

In answer to position assumed by appellant; that prayer for an ¡amendment and an increase of the judgment of $2,500 appealed from to $5,000, is a waiver and abandonment of the motion to dismiss the .appeal, and, likewise, the prayer for ten per cent, on the amount of the judgment appealed from; we deem it proper and sufficient to say that defendant has not appealed from the judgment rendered in the case against her and in favor of plaintiff. She appealed solely from the judgment dismissing her suspensive appeal, and it follows not from the judgment itself. It is not before us at all, and, for that ¡reason, is not considered by us.

¥e are constrained to decline affirming, amending or reversing a •judgment from which no appeal has been taken.

We are not inclined to the opinion that a devolutive appeal lies in all cases in which the amount of the bond is less than is required for a suspensive appeal.

When the appeal bond is given as required in amount fixed -by the order of the court, the appeal is devolutive, though the amount thus fixed by the court does not exceed by half the amount of the judgment.

But it is different, in our view, when, as in this ease, no such order is to be found of record.

We had in mind the case of Poydras vs. Patin, et al., 5th La., 127, and other cases sustaining a similar rule of practice, when we stated, ‘ as we did, in Michener et als. vs Reinach, 49th Ann., 361: “The-amount of the bond is that fixed by the judge a quo.” (Italics ours).-

When there is no' order, the mere fact that one has attempted to-give a suspensive appeal bond, but failed, as to the amount of the bond required, we very much qudstion his right to a devolutive appeal after the court has decreed that the bond is not large enough in-amount for a suspensive appeal.

If there yet remained a right to a devolutive appeal, without any preceding order fixing an amount, it might give rise to some uncertainty, even confusion, in matter of appeal, in that it might be claimed-that a bond for any amount, entitled a bond for a suspensiveappeal, was enough security for the costs, and for a devolutive appeal. Such, we take it, never was the intention. The weight of the decisions, conservatively, requires an order from the court. When it has been-the court required bond in an amount sufficient to cover costs, but it is not left to the party appealing to determine the amount of the bond' for suspensive appeal, however small, and, in case it is not large enough, claim the right to a devolutive appeal.

The appeal from the order dismissing defendant’s appeal was not, in our view, frivolous, and 'not such an appeal as entitled appellee to damages.

The judgment appealed from is, therefore, affirmed.


text:
    No. 12,963.
    Tousain P. Boscher vs. Barbara Faucht.
    Syllabus.
    Evidently, defendant in two suits, in which she sued out provisional seizures-before one of the City Courts, was in error as to the amount due her, and was absolutely without right to the rental claimed.
    The writs were dissolved.
    Damages growing out of a provisional seizure made on a claim which had already been paid, are due by defendant.
    ON APPEAL from the Civil District Court for the Parish of Orleans. Right or} J.

      O. B. Bansum for Plaintiff and Appellant.

      E. Howard McCaleb for Defendant and Appellee.
    Argued and submitted March 11, 1899.
    Opinion handed down March 20, 1899.
    Rehearing refused May 1, 1899.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff sues defendant, an old, widowed lady, whose ■means are limited, for the sum of $10,000 damages.

He charges, that about the 1st of September, 1896, defendant maliciously and without probable cause, brought suit in the First Oity Court of New Orleans against plaintiff, for an amount, she claimed, was due for rent, and caused plaintiff’s stock in trade to be seized and taken out of his possession until the cause was heard by the court, and finally determined in his favor. This was for rent due at the end of April, under the contract.

Plaintiff further charges that about the 3rd of September, 1896, the defendant brought a certain other suit in the same court for rental for the month of September following, and a second time had his goods and chattels seized and taken possession of by the sheriff, by whom they were kept until the cause was tried and again decided in plaintiff’s favor.

Plaintiff avers, that defendant’s intention in instituting these two suits was to harrass him, and injure and destroy his good name and •credit.

Defendant in answer filed the plea of general denial.

The facts are, that defendant had been paid on the day that she ■sued plaintiff the first time, and took a writ of provisional seizure. This was shown by a receipt introduced in evidence.

Although the evidence regarding the payment of her rent by plaintiff, when she brought the second suit and took out the second provisional seizure, is not as conclusive as in the first ease, yet, it does appear that she had been paid.

George Dact, a lad, testified, that the rental claimed by defendant was paid on the second day of September, and that he wrote the receipt for the amount, which receipt was introduced in evidence.

The date of the receipt was torn off.

The following- is a copy:

“New Orleans, Sept, (date torn off).

“Received from Mr. T. Boscher, the sum of twenty-eight dollars for one month’s rent. The month beginning on the 1st of September, and ending on the 30th of September, 1896.

“Received payment in full,

(Signed) "Leoktine Faucht.”

There is some conflict in the testimony regarding this receipt. Plaintiff and the other witnesses testify that it was given for rent paid before the seizure. The defendant swears that it was paid after the seizure of the property had been made. It was proven that plaintiff (defendant here) acted under the advice of an attorney-at-law.

Plaintiff valued his stock in trade at the date of the seizure at about $700.

Ills goods were under seizure about twenty days. He usually bought for cash. He claims that he had credit among the merdiants which -was injuriously effected by the seizure. His sales would average about $125 per month. He kept no books.

The plaintiff as a witness in his own behalf, was asked by his counsel to tell the jury, as near as he could, the amount of damages he had’ sustained by the seizure.

He answered, that he had about $800 worth of goods in the yard, and they were damaged by rain; that his credit and his name were good; that he had been in business twenty-three years. He valued his credit and name at $8,000 or $9,000; and he had no more credit.

He is the only witness who testified regarding the value of his credit and name, and this, in general terms as stated above.

The case was tried before a jury.

From the verdict and the judgment of the court, condemning the defendant to pay damages in the sum of $100, plaintiff prosecutes this appeal.

As the amount of rent had been paid in full, defendant was at fault in taking out the two -writs of provisional seizure, under, which she caused plaintiff’s property to be seized.

The facts do not show any particular motive on her part. Her anxiety evidently was, to collect closely all due her, and in her apprehension that she had not collected, she sought to recover too much. She was not careful enough.

Counsel urges in her defense that under Article 287 of the Code off Practice, a lessor may take out a writ of provisional seizure, whether the rent be due or not, “provided, that in case the rent be paid when, it falls due, the cost of seizure shall be paid by him, and that the measure of damages is the cost of the seizure.” This article does not apply to the case before us for decision. Manifestly the lessor may take out a provisional seizure prior to the maturity of his claim when the lessee is about to remove the property on which he has a lessor’s privilege.

Here no such question arises. Defendant had no claim to become due and exigible in the future; no debitum in praesenti solvendum in futuro; no privilege, for she had been paid, and, therefore, she had no cause to apprehend that her lessee would remove his property, and> thereby, that she would be made to lose the amount due her as lessor.

With reference to the first seizure, it is'true that it was discontinued the day after it was made, and it does not appear that plaintiff thereby suffered damages to any great extent; there was, none the less, some negligence on the part of the defendant in thus instituting proeedings for an amount not due, which must meet with the disapproval of the courts of justice. Another article of the Code of Practice directly applies: The lessor “shall be personally responsible for all damages by the defendant, should the seizure be wrongfully obtained.” C. P. 259.

As relates to the first suit, unquestionably the writ was unlawfully obtained.

The second seizure, also, was issued, without cause, at defendant’s instance.

The weight of the evidence shows that defendant had been paid for September, as well as for all preceding months.

There remains for decision only the question: What is the amount of the damages which the plaintiff has suffered? His business was-small; he sold second-hand goods; his monthly profits were quite limited, considered from a most favorable view.

His limited stock was bought for cash. We are not informed of the profits he usually made on his sales, whether small or large. Judging from the amount of monthly sales, the profits were not large.

Under the circumstances we think that a small increase in the-judgment will do justice between the parties.

Therefore, the verdict and judgment appealed from are amended, by increasing the amount of the verdict and judgment from $100 to $250, with interest on the last stated sum at the same rate and from the same date as heretofore. As amended, the judgment is affirmed.