author: Nichols, C. J.

text:
    No. 13,167.
    State of Louisiana vs. Andy Harris.
    Syllabus.
    1. A letter of a person claiming to act by authority of the prosecuting witnesses in a criminal case which contains a proposition purporting to be made by them to the defendant to testify in his behalf and differently from the manner in which they had testified on the preliminary examination is inadmissible for the purpose of impeaching the testimony of the witnesses. It is hearsay testimony. It was particularly inadmissible when the writer of the letter was in court at the time, having been subpoened there as a witness.
    2. The statements of a person that he was on any particular occasion the agent of another is not"evidence of that fact.
    3. When defendant in a criminal case predicated error on appeal on the ground that the trial judge had illegally controlled him in the order of his proof by rejecting evidence which he tendered until he had first established certain other facts which would be essential to be shown to make the same admissible, he should make it affirmatively appear that he was prepared to show and had subsequently offered to show such essential facts. He can show the facts on trial of motion for a new trial.
    4. In order to determine whether the judge erred in refusing to charge the jury as to the law of the case the bill of exceptions to his ruling must show that the circumstances or facts-before the court justified a request for the charge.
    In the absence of such a statement the Appellate Court has no authority to say that the charge was improperly declined. (State vs. Hamilton, 41st Ann., 317.)
    ON APPEAL from the Fourth Judicial District Court for the Parish of Grant. Machen, J.

      M. J. Cunningham, Atorney General, and A. B. Iiundley, District Atorney, for Plaintiff and Appellee.

      J. A, Williams, for Defendant and Appellant.
    Submitted on briefs May 6th, 1899.
    Opinion handed down May 15th, 1899.
   The opinion 'of the court was delivered by

Nichols, C. J.

The defendant, Andy Harris, was indicted jointly with his wife, Anna Harris, for the murder of -Jesse Brown.

Before the trial a severance was granted on the application of the -wife.

The defendant was tried and convicted of murder without capital punishment, and sentenced to the penitentiary for life.

Appellant’s counsel informs us in his brief that the severance was granted on the ground that the defenses of the husband and wife ■were contradictory and conflicting.

He says that the wife had set up in her defense that in firing the-shot which killed Brown, she was under the influence of the husband. That the husband, on his part, denied criminal liability, asserting his innocence upon the ground that he was simply présent when the shot was fired.

He says that the fact that the wife had fired the shot was disclosed by the Bill of Exceptions.

During the trial a letter written by one “Jim Brown” to the defendant was offered in evidence by the latter, but was excluded ou Abjection made by the District Attorney.

i fTo this ruling a Bill of Exception was reserved and error in the ruling is set up as one of the grounds for reversal.

The bill recites that “the letter was offered after the defendant had shown that ‘Jim Brown’ was a relative of all the prosecuting witnesses; that he had been to the jail where defendant was confined and represented to the defendant that he was the agent of the prosecuting witnesses and had seen them all and that they had agreed for a consideration in money to change their evidence on the final trial, and would swear the truth, which would be different from what it was ■on the preliminary examination, and proving that Brown had submitted to defendant the written proposition to that effect, that the handwriting and signature thereto had been proven and the letter had been traced from Brown’s hand through the jailer to the defendant.’'

The court assigned as its grounds for refusing to allow the letter to be introduced in evidence that it was offered for the purpose of .attacking the credibility of the witnesses mentioned in the letter and to contradict and impeach their evidence; that it had not been shown that any agency or authority from the witnesses had been given to Brown or any one else to make any such propositions and for the greater reason that Brown, purported author of the letter, had been ■subpoenaed in the case by defendant and was in court at the time when the letter was offered, and during all the trial was present in the court room and could have been placed on the stand as a witness, and if admissible at all the State could have had the benefit of cross-examination; that it considered the letter wholly inadmissible under the eircumstnces.

The action of the court was correct and based on well grounded reasons. (Bue vs. Splane, 9th Rob. 6.)

Even had Brown been absent the letter would have been totally iu•admissible hearsay evidence. Hennen’s Digest, p. 502, No. 9; Morgan vs. Yarbrough, 13th La. 76; Moussier vs. Zuntz, 14th Ann., 15.

Defendant claims that the letter was but the commencement of proof; that he would have followed the matter up subsequently by proof of Brown’s agency; that the court had no right to control him in the order of his proof.

The offer of the letter in this ease was not accompanied by any declaration by counsel that he would undertake to thereafter show the agency of Brown in the premises; nor did he in fact at any time subsequent attempt to show it; Brown’s own statement in the letter that he was an agent of the parties, was of course totally unauthorized ■as establishing such fact.

It is true that there are many decisions to be found in the reports that a party is not to be controlled by the court in the order in which he introduces his evidence; but when the the court has in fact done so, and he predicates reversible error by reason thereof, he should show ¡affirmatively even in civil matters that he was prepared and had offered. to prove, that which would have made the evidence admissible ab initio.

The importance of imposing upon him, at the very least, this obligation is obvious in jury trials, particularly in jury trials in criminal cases where the Appellate Court is restricted to the consideration of matters of law.

Matters favorable to the accused once brought to the knowledge of a jury are bound to have more or less effect upon it, however irregularly it may have been brought, and this effect is not done away with by finally striking the evidence out.

A practice of this kind if permitted, would lead inevitably to finessing to get improper evidence before the jury.

We have no idea that any such intention was in the mind of counsel in this case.

We simply assign reasons in support of refusing to recognize the absolute right which be asserts, of parties to select the order of their proof.

Appellant presses upon us as a ground for setting aside the verdict and sentence, the refusal of the court at the request of his counsel,, to submit the following special charges to the jury:

“1st. The presumption that the wife acts in her husband’s presence-under his coercion is only prima facie and is liable to a rebuttal by evidence.

2nd. A married woman under coverture of her husband, has not lost by her marriage her general capacity for crime.

3rd. Coverture does not protect a married woman from the act of murder unless it appears that she was under her husband’s influence- and acted under the same.”

The court refused to give the charges “for the reasons that Andy Harris, the accused, and his wife, Anna Harris, were jointly indicted as principals in the crime of murder and Andy Harris, the defendant, the husband of the wife, was being tried sapara-tely, there having been a severance by the court.”

The wife not being on trial the court considered the charge inapplicable to the case and that it could at most, confuse the jury.”

The charges requested were not prefaced by a statement of any particular facts as furnishing a predicate for the same.

The only fact in the case which has come to our knowledge, is the-single one recited in defendant’s Bill of Exception, that “on the trial it liad been shown that the fatal shot was fired by tire wife of the -defendant, in the presence of the accused, her husband.”

In xhe syllabus of the defendant the following propositions are advanced:

1st. It is the duty of the court to instruct the jury upon every phase of the case made by the evidence. (State vs. Tucker, 38 Anl., 536. State vs. Levigne, 17 Nevada, 435).

2nd. The Bill of Excexition disclosing the nature of the defense ns admitted by the judge in his reasons, it was. error for him to refuse to charge what defendant holds is the law governing the case. (State vs. Hill, 28 Anl., 311).

3rd. An accused in a criminal case is entitled to have the jury understand and have their attention directed to the legal rule established for his protection and governing- the case on trial, and when the judge is requested to state such rule in his charge to the jury .and declines, the judgment of conviction following should be reversed.

A judge’s refusal to give a charge for the reason that it is inapplicable will not be sustained unless he states that it refers to facts of which there was no evidence whatever. (31 Anl. 82, State vs. Melton; 38 Anl., p. 536, State vs. Tucker).

Opinion.

Appellant asks us to assume under the situation of things disclosed '.by the record, that the special charges which he unsuccessfully sought to have made were correct principles of law7, legally supporting a theory of defense which lie had advanced and on which he relied, and that he had sustained this theory by evidence adduced on the trial, sufficient to entitle- him to have had his theory submitted to the jury for decision under the requested charges.

He maintains that the declaration made by the judge- that the charges asked for were “inapplicable” w7as not a specific denial of the existence of sucli a theory and of there having been evidence in support of it, and contends that “it amounted to nothing more than a statement as to his appreciation of the credibility or sufficiency of ■such evidence.”

Parties seeking to7 set aside the verdict of a jury and the rulings •of the trial court aro called upon to .overcome the presumption of ■correctness, which on appeal attaches to them.

The District Judge refused to give tli© charges asked for by the-defendant; he states that they were “inapplicable io the case.” We must give to those expressions (unless the record itself would show otherwise), a meaning which would go to justify the court’s action..

We do not know, except through defendant’s brief, what his theory of defense was, and even there it is very vaguely referred to.

We do not know, either, what the evidence on the trial actually was, or what it was claimed by defendant to have been.

We would not be authorized to build up a defense such as is indicated from the simple and singlo fact that the shot by which the deceased was killed was fired by the defendant’s wife, in his presence.

Non constat that the verdict of the jury was made to rest upon a presumption of guilt resulting simply from his presence at the time the shot was fired. Such a conclusion would violate all probabilities.

We are bound to assume that there must have been other evidence adduced, connecting him with the crime.

His counsel does not pretend to say that there was not such, rtozthat his client’s conviction rested on any such presumption.

He malees no recital in his bill, of any of the evidence adduced on the trial, nor did he seek (as he should have done), to have the charges submitted under a statement of facts made to serve as a-predicate for the same. (State vs. Canciennne, 50 Anl., 847).

In State vs. Melton, 37 Anl., 82, the court, discussing the duty of a judge in charging a jury, said: “That hypothetical charges based

upon the jury’s belief of certain facts are not to be entirely excluded, but when such hypotheses embrace facts not supported by evidence- and foreign to the case, the propositions of law become purely abstract questions and under well settled jurisprudence the judge is not bound-to charge them.”

Unless the propositions of law submitted by appellant were made-to be properly connected by evidence, with the case then before the court, so as to make them relevant and pertinent to defendant’s defense, refusal to submit them gave rise to zio legal cause of complaint, however con-ect the propositions in themselves might have been.

Had the defendant prefaced the charges asked by an assumed statement or recital of facts in the usual form to serve as a predicate, stating that if the jury found such facts to have been established by the evidence adduced, it would be their duty to acquit or to reduce-the charge, and had there been in fact any evidence taken on the trial tending to support the legal propositions and malee them applicable to the ease, and the propositions were legally correct, it would have been the duty of the judge to have instructed the jury as requested, however little value he may have attached to the evidence as to the credibility or otherwise.

The syllabus of this court in State vs. Tucker, 38 Anl., 536, is as follows:

“When a bill of exceptions recites the facts which the counsel had contended before the jury had been established by the evidence and refers to the evidence in support thereof and asks for charges applicable to the state' of facts recited,.the judge’s refusal to give the charges on the ground that they were inapplicable to the ease, is error unless the judge states that there was no evidence in the case supporting or tending to support the contentions of counsel.”

“It is the duty of the judge to give full instructions to the jury covering the entire law of the case as respects all the facts proved or claimed by counsel to be proved, provided such claim is supported by any evidence.”

The judgment was reversed and the case remanded. (See on the same subject, State vs. Wright, 40 Anl., 593).

On the return of the cause to the Supreme Court it re-affirmed its former opinion, holding further “that where the charges asked are applicable to the facts and contentions of counsel as recited in the bill of exceptions the judge is not authorized to refuse the charges because while not denying the material facts- stated he disputes the correctness of the contentions of couusel based thereon. Counsel has the tight to urge his own theorv as to the inferences of motive and intention to be drawn from the fa.cts*and to impress the same upon the jury, and though the judge may take a different view, the question is to be determined by a jury, and defendant has the clear right to have them instructed as to the law applicable to such cases.”

When the judge refuses to do what, under a prima facie showing-made by defendant, he had the legal right to ask him to do, the latter reserves a bill and tenders it for. the judge’s signature, the judge should be careful to state that there was no evidence adduced on the trial in support of such instructions.

He should not leave it uncertain as to whether his refusal to charge was not based upon conclusions by him as to the weight and credibility of evidence which had actually been admitted; matters which it is the exclusive province of the jury to deal with,-

It would have been better in this case for the judge to have made his statement more specific than he did, but he obviously did not do this for the reason that neither the special charges asked nor the' bills of exception contained a recital of the facts claimed to have been shown by the evidence on the trial.

Defendant has overlooked that portion of the opinions in State vs. Tucker, 38 Ann., 539 and 791, which referred -to the recitals, facxs and contentions of counsel as those which were to be made by him concerning the evidence which had been introduced in the case.

That particular branch of the subject is commented on in State vs. Cancienne, 50 Ann., 847, and particularly in State vs. Dunn, 41 Ann., 1074 and 1075, and incidentally in State vs. West, 45 Ann., 21.

In State vs. Hamilton, 41 Ann., 817, we said: “In order to determine whether tho judge erred in refusing' to charge the jury as to.the law of the case the bill to his ruling must show that the circumstances or facts before the court justified a request for the charge. In the absence of such a statement the Appellate Court has no authority to say that the charge was improperly declined.”

We are powerless to act in the present case for just this precise reason.

Finding no sufficient grounds for setting aside the verdict of the jury and the judgement of the court thereon rendered, the judgement appealed from is hereby affirmed.


source: Caselaw Access Project

author: Niciiolls, O. J.

license: Public Domain

text:
    No. 13,133.
    State of Louisiana vs. Willie Baum.
    Syllabus.
    1 To justify an appellate court in reversing the action of the trial judge in refusing to grant a new trial, parties complaining have to make a very strong showing.
    2. When the special charges which a defendant asks the trial court to submit to the jury contain an exposition of the law which is correct, but only undef a special state of facts and with direct reference to such facts, the court correctly refuses to submit them unless prefaced by a recital of the particu lar conditions which would make them correct.

      Tile trial judge lias Llie right but is not forced to modify, limit or qualify special charges tendered him so as to make them applicable to the particular case before the court. (State vs. Jackson, 35th Ann., 769 ; State vs. Riculfl, 35th Ann., 770; State vs. West, 45th Ann., 19.)
    ■3. When an appellant complains of the ruling of the trial judge refusing to permit him to introduce testimony as to the reputation of the deceased foi peace and quiet and submits a particular act "done by the deceased at the time of the homicide as evidence of an overt act of dangerous intentions, the act must either be one of such character as would per se be indicative thereof, or it must be shown affirmatively to have been done under eircum stances such as to have reasonably led to a belief that.it was of that character.
    4. The refusal of a trial court to permit an answer to be given to a question propounded by an accused to a witness as to tbe reputation of the deceased for peace and quiet is not reversible error unless there be evidence somewhere, tending to show that an answer to the question would have been favorable to the defense.
    .5. Tbe refusal of a trial court to continue a case to afford the defendant an opportunity to obtain the testimony of a witness whom the sheriff has declared in his return on a subpoena to be a fugutive from justice, is not reversible error where there is no evidence to show where the witness was ot where he would be likely to be found in the future. Cases cannot be continued upon the bare possibility that a witness may at some uncertain time in the future K? found and produced.
    ■6. Where a sheriff in his return on a subpoena recites that the witness sough! for was “a fugitive from justice,” without reciting the facts and circumstances on which that statement was based, the regular course is to havs the court require him to amend his return and give details.
    'The return does not carry such force as to cut off parties interested from disproving, if they can, the facts therein stated. If the privilege of doing so be refused to the prisoner on a motion to “traverse the sheriff’s return,” lie should attempt to prove the actual facts on an application for a new trial.
    ON APPEAL from the Twelfth Judicial District Court for the Parish of Calcasieu. Read. J.

      M. J. Cunningham, Attorney General, and D. B. Gorham, Acting-District Attorney, for Plaintiff and Appellee.

      Paul A. Sompayrac for Defendant and Appellant.
    Submitted on briefs May 6, 1899.
    Opinion handed down May 15, 1899.
    Rehearing refused May 29, 1899.
   The opinion of the court was delivered by

Niciiolls, O. J.

A regular session of the District Court for Calcasieu parish opened' on the 7th of February, 1899.

On the 10th the grand jury returned a true bill against defendant charging him with murder.

He was arraigned on the 6th of March following, and tried on the-10th. The jury returned a verdict of guilty without capital punishment, and upon that verdict he was sentenced to the penitentiary for' life.

He appealed.

On the 10th of March, the day fixed for trial, he applied through a petition supported by his affidavit for a continuance for a reasonable time, or until the next term of court.

In the petition he averred he had exercised great diligence in endeavoring to prepare for trial, but that he was not then ready, and. to force him to trial would be a great injustice, as his principal ■witness, one Dan Johnson, was not xiresent.

That he had exercised all diligence possible to have said Johnson present. That it was important and indispensable that he should be present, as he expected to prove by him that he, defendant, was leaving the saloon in which Charvey Pujo, tlio deceased, was killed. That’Pujo called him; 'that he went peaceably to him when be grabbed, defendant and cut him.

That defendant was in great danger of suffering great, bodily harm when he shot the deceased.

That he knew of no other witness by whom ho could prove'the said' facts; that he should he allowed a reasonable time to find said Johnson.

That a continuance to' the next regular term could not possibly operate to the injury of the State, whereas to force defendant to trial, without the presence of Johnson, would be to operate to the greatest possible injury of defendant.

That he had only known within the last few days that Johnson could not be found by the sheriff of Calcasieu.

That he had hoped to have Johnson present on the next day for' which the case would he fixed for trial.

On the same day he filed a supplemental verified application in which he averred that a summons for Johnson had issued on thfe 6tlr of March, 1899; that to the best of affiant's knowledge Johnson had always resided in Calcasieu parish, and that he did not then know whether Johnson was residing in said parish or not.

The record shows that a subpoena for Johnson was issued by the-District Court on the 6th of March, commanding him to appear at court on the 10th.

This subpoena was placed in the hands of the sheriff on the Jth, and' he, on the same day, made return that Johnson was a fugitive from justice and therefore service could not be made on him.

Defendant asked the court to permit him to traverse this return and, the application being refused, he reserved a bill.

The court overruled the application for a continuance, to which, ruling- a bill was also reserved.

The reason assigned by the court for .refusing- permission to traverse the return was that it was irregular to do so, and, further, because whether the, facts shown by the sheriff’s return were true or not the application was essentially insufficient.

No written application for traverse appears in the record, nor are the grounds thereof recited in the bill.

It was, doubtless, a verbal application.

The reasons assigned by the court for refusing the continuance-were that tho application was essentially insufficient; it is stated conclusions rather than facts to be testified to by the witness; it failed to show that he expected to secure witness by any future day; it failed to show that witness’ absence was not with the consent, procurement, or contrivance, of accused; it failed to show that delay was asked for only that justice might be done, etc.

On the trial of the cause defendant asked one Talbert Frazier, a-witness for the State, “whether he knew the general reputation Charvey Pujo (the deceased) bore for peace and quiet in the community in which he lived ?”

The court, on objection made, refused to allow the question to be-asked, assigning as its reason for so doing- that “no evidence had been introduced tending to show that accused had ever been in imminent (or even remote) peril, or serious bodily harm, from deceased (or otherwise).”

In support of his hill defendant annexed thereto the stenographer’s-notes of the testimony of Talbert, given on his cross-examination just prior to having been'aslied the question which was objected to.

His testimony was as follows:

“Q. What is the first thing you saw Charvey Pujo (deceased) or .this defendant, Willie Baum, make?

“A. 1 saw Charvey Pujó make the first move; jumping off the pool table, he grabbed Willie Baum around the neck and then Will Baum ducked out from under his arm and shoved him down and .said: ‘You son of a bitch, Pll kill you/ and he went back in his pocket and got his gun aud shot him; then Charvey begged him not to shoot him any moro, and he shot him again. When he shot him .again he said: ‘You son of a bitch, Pll kill you/ and backed out of the cloor.”

“Q. Do you know the general reputation of Charvey Pujo for peace and quiet in the community in which he lived?”

“Objected to on the ground that no overt act or hostile demonstration has been shown of such a character as to induce the accused to believe that at the time of the killing he was in imminent peril of his life, or about to receive great bodily harm, and that until such foundation is laid all evidence as to previous character, or-threats ei ■ cetera, are inadmissible.

Objection sustained; the accused reserves'his bill of exceptions.”

Defendant complains in a bill of exceptions to the refusal of the ■court to submit, at his request, the following special charges to the .jury:

“If you find that the killing was done under the heat of passion, your verdict should be guilty of manslaughter.”

“If you find that the accused had reason to believe that he was iñ -danger of bodily harm, and killed the deceased under that belief, you -should acquit.”

The court assigned as its reasons for refusal that “neither clause sets forth the law in its fullness, as heat of passion should itself be -excusable in order to mitigate, while unprovoked ‘heat’ tends to aggravate, rather than mitigate.”

And however great or convincing the grounds accused might have 'had that he was in serious peril, yet the killing should not be excused unless the jury should also find, with proper application of the law with regard to reasonable doubts, that the peril was imminently impending and secure retreat to a place of safety was not apparent. 'Therefore the charges were misleading as to the law.

Defendant applied for a new trial, which the court refused.

The application was based upon the allegation that he had newly discovered evidence which was not made known to him before his trial, hut only after his conviction; that it was important and materia], as it would show that Strauss and Erazier, the two principal witnesses of the State in the case, had made statements to one Cullen which differed'widely from the testimony which they gave on the witness stand, and which showed that the witnesses were wholly unreliable and unworthy of belief.

In his application defendant made a detailed recital of what the statements so made to Cullen were.

Cullen’s affidavit, annexed to defendant’s bill, was simply to the effect that acting in his capacity of reporter of the Lake Charles Daily Press, ho had questioned Strauss on or about the 28th of October, 1898, with reference to the killing of Pujo.

That he heard said witness testify on the trial of the defendant for • said killing; that the testimony of said witness was widely different from his statements to him, especially with reference to the relative - positions of the two men, and the character of the attack made by Pujo on defendant.

He did not attempt to enter into any detail as to what the statements so made were.

Opinion.

We have repeatedly said that parties complaining, on an appeal, of ' the rulings of the District Court refusing to grant a new trial, would be required to make a very strong showing to justify us in reversing-its action.

The district judge has seen the witnesses, and heard the testimony throughout, and knows whether a complaint on some particular point,. even though well founded, would he of a character such as should outweigh all the other facts and circumstances testified to going to ■ convince him that the verdict was just and right.

Defendant’s application for a new trial was based upon the claim that he would show that Strauss and Erazier, State witnesses, had ‘ made, out of court, statements contradictory to those they made in court.

Granting that to he true, and that it could he proved, with what propriety could this court send the case hack for a hew tn 1 when the testimony in the cause, independently of these particular witnesses,. might have overwhelmingly established the guilt of the accused ?

This court in so doing would, from a partial view, undertake to act •differently from the trial judge, who would have acted advisedly with .the facts of the whole case before him.

Under such circumstances judgments of the upper court would be much more likely to be erroneous than those below.

We see nothing in the vague, indefinite, affidavit of Cullen which would warrant us in reopening the issues.

The special charges which defendant asked to have the court submit .to the jury, if tendered under a special state of facts and with direct reference to such facts, might enunciate correctly the law which .should govern a particular case (State vs. Tucker, 38 Ann., 540), but the court properly declined to give them in manner and form as asked.

They were preceded by no recitals to serve as a predicate for the .same, and unless modified, qualified, and explained, would be utterly wrong (State vs. West, 45 Ann., 18; State vs. Cancienne, 50 Ann., 847; State vs. Harris, 51 Ann., 1105.)

The trial judge has the right, but is not forced to give a charge which requires qualification, limitation, or explanation (State vs. West, 45 Ann., 19; State vs. Jackson, 35 Ann., 769; State vs. Riculfi, 35 Ann., 770).

We do not think appellant's complaint, that the court improperly refused to have testimony received as to the general reputation of the deceased for peace and quiet in the community in which -he lived, is placed before us, under such circumstances, as to show it to be well founded.

We have no recitals in the bill as to any of the details of the occurrence which resulted in Pujo’s death.

The only fact sworn to is that mentioned by Frazier that “Pujo jumped off the pool table and grabbed Baum around the neck, and Baum ducked out from under his arm, and shoved him down, and said: ‘You son of a bitch, I’ll kill you,’ and he went back in his pocket and got his gun and shot him.”

Counsel refers to this “grabbing around the neck” as being an overt act of hostility, but we are not justified in assuming it to have been such. It may well have been, as the Attorney General says (though the fact is not shown by the record), that Pujo being drunk and staggering threw his arms, in his maudlin condition, around the neck of the accused causing the latter to fall into such a violent rage as to make him draw his weapon and shoot.

If that was really the ease it would have been entirely out of place ,to have invoked, as being present, a condition of things which would .have warranted the introduction of testimony as to the reputation of the deceased for peace and quiet.

Besidés, though the question was asked of Fimier as to what Pujo’s reputation for peace and quiet was, it is nowhere charged and averred that he was, in fact, a dangerous character, or so regarded.

The question seems to have been a chance one, and had an answer been allowed non constat, that it would have appeared that he was otherwise than peaceable and quiet, and yet upon the bare possibility .of a different answer we are urged to send this case back. We think the appellant should have made this refusal of the judge a ground of • complaint on application for a new trial, and then showed, by testimony, what kind of a man deceased really was.

The court would, unquestionably, have allowed such testimony at that time to support the bill taken, and we would then have had •something more than a mere possibility as to what the answer to a •question asked would have been on which to predicate, our action.

Defendant complains of the action of the judge in refusing a con-tinuance.

Here again we are called upon to deal with a matter which rests very much upon the discretion of the trial judge.

We are of the opinion that the court was over-technical, and over--exacting, in some of the reasons assigned for this refusal, but some of them are of such a character as to make it impossible for us to afford relief.

Appellant did not make this action of the court one of the grounds for a new trial, but rested upon the original bill of exception taken.

Defendant say he expected to prove by the witness, Johnson, that Pujo had cut him, and asserted that no other witness could prove the fact.

A fact of that kind must have made itself manifest to every one at the time, or immediately after it had occurred.'

The record discloses that there were several witnesses present at the time of the shooting.

Had the appellant, on application for a new trial, shown by testimony that he had, in fact, been cut. at that time, by some one, and ■that Johnson had been present when Pujo was killed, he would have fortified his application for a continuance and made some kind of a showing, hut though the case went to trial, we hear nothing of a claim of defendant’s having been cut by any one, outside of the application for a continuance.

Again no attempt was made, through the application for a new trial, to prove where Johnson was then; where he had been, and where he could or would, in likelihood, be found.

If the return of the sheriff was incorrect in any way, if Johnson was in the parish when summoned, if he was not a fugitive from justice, but a resident of Calcasieu, or if his residence elsewhere was-known, appellant had opportunity to have then established it.

We think he would have been entitled to have established this if he could.

We do not think a sheriff’s return on a subpcona carries such force as to cut off parties interested in proving the facts stated therein if they can.

Those facts could have been shown on trial of motion for a new trial as facts, independently of being urged as a traverse of the sheriff’s return. The more regular course in the earlier stage of the cause -would have been to have primarily asked the court to hare required of the sheriff a detailed statement of the facts and circumstances on which he based his return, but we by no means say that after this had been done that accused could not have shown, by testimony, the real, actual situation as to the witness.

W© do not know, by the record, the exact scope intended of what is-called the “traverse to the sheriff’s return.” Defendant made no complaint so far as we are informed of any want of diligence on the part of the sheriff, nor did he attempt to have a second subpama issue. He obviously did not know kmself where Johnson was, and was unable to-give the sheriff any information about him.

If Johnson was really an important witness in defendant’s favor it was unfortunate for him that he could not be found at the trial, but the fact that there is such a witness, and that he is an important witness, would not justify the continuance of defendant’s case for an indefinite time to ascertain where he is, and whether and when he-could be produced.

Were we to send the case back it would have to be upon the mere-possibility that the witness might at some uncertain time in the-future be found -and produced.

Criminal cases would never come to trial were continuances granted under such conditions.

We find no legal ground upon which to reverse the judgment, it is therefore affirmed.


author: Nioiiolls, C. J.

text:
    No. 13,155.
    Mrs. Fannie B. Randolph vs. Mrs. Dora Stark, Wife of T. O. Stark.
    Syllabus.
    1. The joint nature ol the principal obligation does not necessarily negative the indivisibility of the mortgage by which the obligation is secured. An indi visible mortgage frequently secures a divisible debt.
    2. Where two persons joining in a joint personal obligation secure the whole indebtedness by a mortgage on certain property in its entirety .which belongs to them in indivisión, each owner stands as surety for the other for the portion of the debt beyond that owed personally by herself.
    3. If two debtors bound only jointly have mortgaged their common property in its entirety for the whole debt, each of the debtors is bound “with the other,” the mortgage being indivisible. If one pays the whole debt, subrogation takes place in his favor.
    4. The subrogation acquired under Art. 2161 of the Civil Code by a purchaser who employs the price of his purchase in paying the creditors to whom the property is mortgaged is a special one. It is an equitable defensive subrogation intended to consolidate the property in the hands of the purchaser and protect him from eviction therefrom at the instance of other creditors. When the amount paid by the purchaser to the mortgage creditors does not exceed the purchase price, the subrogation acquired by him is limited to the-property purchased and does not confer rights upon him to be actively exercised against third parties.
    ON APPEAL from the Tenth Judicial District Court for the-Parish of Avoyelles. G-ullom, J.

      Wm. Hall and Wm. H. Peterman for Plaintiff and Appellant.

      E. Howard McCaleb for Defendant and Appellee.

      A. J. Lafargue, Attorney and Curator ad hoc-, pro se.

    Argued and submitted May 4, 1899.
    Opinion handed down May 15, 1899.
   The opinion of the court was delivered by

Nioiiolls, C. J.

As this case comes before us on appeal by plaintiff from a judgment of the District Court sustaining an exception of no cause of action', and to ascertain the correctness or incorrectness of the judgment a critical examination of the petition is necessary, it is copied in full.

The plaintiff alleges:

That defendant, Dora Stark, wife of l1. O. Stark, from him separated in property by ante-nuptial contract, is indebted to her in the sum of four thousand two hundred and seventy-three dollars, with interest thereon at eight per cent per annum from the 1st of March, 1884, until paid, for this, to-wit: That she and the defendant, Dora Stark, who are sisters and forced heirs of their father, Wni. 31. Lambeth, became jointly indebted to Mrs. Rosetta Rhea, widow of John Rhea, of Madison County, State of Indiana, in the sum of •eight thousand and nine hundred and seventy 12-100 dollars, with eight per centum, annual interest thereon from January 1st, 1868, •until paid, which indebtedness was evidenced by the joint promissory •note of Mrs. Randolph and her sister, then Dora Lambeth, the same heing secured by mortgage upon two tracts of land known, 1st, as the •“Leinster” plantation, and 2nd, as the Fauckland tract inherited by them from their father and at the aforesaid date of said mortgage Tield by them in indivisión as his heirs, a certified copy of which said mortgage showing a detailed and accurate description of said lands is hereto annexed and made part hereof for proof and certainty.

Now your petitioner further shows that the amount due by the •terms of said note and mortgage was reduced from time to time by payments made in equal proportions from funds belonging to your petitioner and her sister, the defendant, Dora Stark, until the 28th day of April, 1878, when by notarial act executed on that, date before one Trist, Notary Public in and for the city of New Orleans, T. O. Stark, husband of defendant, Dora Stark, and then acting as agent of his said wife and of your petitioner, declared that said note secured by the aforesaid mortgage has been reduced by partial payments, all arrears in interest having been paid, to the sum of seven thousand five hundred and seventy-seven dollars and thirty-four cents, and payment of this balance was by the terms of said act extended by Victor Oliver, Esq., agent of said Mrs. Rosetta Rhea and party to said act to the first day of March, A. D. 1884, interest thereon to be paid at .the rate of eight per cent per annum, from the said 28th day of .April, 1893, all which appears from a certified copy of said act hereto annexed for proof and certainty.

Now your petitioner further shows that on the ninth day of Janu.ary, A. I). 1873, she and her said sister, the defendant, Mrs. Dora Starke, made a voluntary partition of the lands burdened by the aforesaid mortgage of Rosetta Rhea whereby your petitioner took .as her part and share of said lands lot described in act of partition .as number one, containing- the sugar, house field on Leinster plantation and lands north of it and west of the public road leading to Marksville, and her said sister, Dora Stark, took inter alia as her share .in the division of saidT lands, lot described as number 2 in the act of partition, being that part of Leinster plantation in sections 13, 14, 23 and 24, south and east of the public road leading past Stanley’s Mill towards Marksville; and also lot described as No. 3 in said act of -partition, being that part of Leinster plantation in sections 34 and. 35 as appears by said act,'passed January ninth, 1873, and filed of .record of said parish of Avoyelles on February 1st, 1873, to which .reference is hereby specially made.

Now your petitioner further represents that some two years after -the date of said partition, to-wit, in May, 1875, petitioner mortgaged the lands allotted to her therein to a certain commercial firm, ■ domiciled in the city of New Orleans, and known as Johnson & Goodrich, to secure the principal sum of eight thousand dollars, which mortgage was subsequently, in October, 1875, acquired by G. W. Sen--tell & Go., in liquidation by subrogation from said Johnson & Goodrich, and on the 24th day of December, 1883, judgment was rendered in suit No. 7049 of the docket of your honorable court, entitled G. W. Sentell & Co., in liquidation, et al., vs. Fanny B. Randolph et al., in favor of the plaintiff therein and against the defendant, your petitioner, accompanied by a decree for the sale of the said mortgaged •property.

Your petitioner further shows that under this decree on the 1st day of March, A. D. 1884, the sheriff of the parish of Avoyelles sold that portion of the Leinster plantation allotted to your petitioner by the terms of the partition aforesaid and included in the said Johnson & Goodrich mortgage, and that the same was adjudicated to George W. Sentell for the price and sum of $12,002,

Your petitioner further shows that the foregoing mortgage of Mrs. Rosetta Rhea, being on record at the date of the adjudication as-aforesaid to George W. Sentell, and ranking in lien the said J oluison & Goodrich mortgage, Sentell, adjudicatee, retained in his hands from the amount of his bid a sum sufficient to pay the same, being in principal the amount of $4873. •

Your petitioner further shows that said principal sum so retained by the said Sentell, was by final decree of the Supreme Court of the United States rendered on the 14th day of May, A. D. 1894, in the case of Groves vs. Sentell, 153 U. S., p. 4657, No. 278 of the docket for October term, 1893, on appeal from the Circuit Oourt of the United States for the Eastern District of Louisiana, awarded said appellants, heirs or legal representatives of said Rosetta Rhea, and went to the payment and satisfaction of her above described mortgage indebtedness.

Now your petitioner further shows that all the obligations assumed by her and her said sister, Dora Stark, under and by virtue of the-act of purchase and mortgage heretofore recited, executed January 1st, 1868, in favor of the said Rosetta Rhea, was a joint obligation, that the purchase therein and thereby made was a joi2it purchase, and that the price for which your petitioner and her said sister bound themselves by said act and the note given in evidence of the obligation therein contained was a joint and not a several liability, and therefore in no event as against the said Mrs. Dora Stark, could your petitioner he liable for more than one-half of the same.

Your petitioner further shows that by various payments made by her individually and out of her separate and individual funds and from the proceeds of sale of her individual and separate property made from time to time, she overpaid her while share of the said; R-osetta Rhea debt and mortgage, and paid on account of the virile-share of her co-debtor, the said Mrs. Dora Stark, the aforesaid sum of four thousand two hundred and seventy-three dollars, and that the amount of this overpayment existed on the 1st day of March, A. D.-1884.

Your petitioner further shows that in virtue of this overpayment arising from moneys advanced by your petitioner, as well as from-the proceeds of the sale of her separate property, she became and is legally subrogated to all the rights of the said Rosetta Rhea or her heirs, assigns or representatives, under said,promissory note of $8000' and the accessory mortgage securing same, both of date January 1st, 18(ib, and heretofore particularly described against said Mrs. Dora Stark, petitioner’s joint co-debtor, and is by law entitled to have said Rhea mortgage recognized as existing upon and enforced against such part of the immovable property described in said Rhea mortgage .as was taken by and allotted to the said defendant, Dora Stark, under the terms of the act of partition made between your petitioner and .the said Mrs. Stark, of date January ninth, 1873, said note, debt and mortgage having been kept alive and subsisting by payments on account and by _re-inscription.

Your petitioner further avers that said Rhea mortgage was passed .and executed by your petitioner and the said Mrs. Dora Stark prior to the time and date of said Mrs. Stark’s marriage, and while she was a femme sole, and that the consideration of the same enured accordingly to her separate benefit and to the benefit of her separate paraphernal estate.

Petitioner further avers that the said Mrs. Dora Stark, defendant, is an absentee who has no known agent in the State of Louisiana. 'The premises considered, petitioner prays that service hereof be made upon the said defendant, Mrs. Dora Stark, and upon her said husband, T. O. Stark, for the purpose of aiding', authorizing and assisting his said wife herein and that she be cited in tbe manner» and form required by the law, to appear and answer to petitioner’s said demand; ¡and that after hearing there be judgment in favor of petitioner and against the said defendant, Dora Stark, in the full sum of four thousand two hundred and seventy-three dollars, together with interest- thereon at the rate of eight per cent per annum from the first day of March, A. D. 1884, until paid, and that petitioner be recognized "as legal subrogee of the said Rosetta Rhea mortgage in so far as the same affects the following described separate property of said Dora Stark covered by said mortgage and allotted to said defendant, Mrs. Dora Stark, in the act of partition- aforesaid, to-wit: Lot number 2 being that part of Leinster plantation in Sections 13, 14, 23 and 24, south and east of the public road leading past Stanley’s Mill towards Marksville. Lot number 3 being that part of Leinster plantation in sections 34 and 35, and further described on the tax rolls of said parish of Avoyelles, assessed in the name of said defendant, Mrs. Dora Stark, as six hundred and fifty acres on Bayou Clear, Sections 34, 35, T. 3, S. R. 3 E., and three hundred and forty-five acres, twenty improved, in Sections 33, 34, 23 and 24, T. 1, S. R., 2 E., and that said mortgage be recognized as existing upon said above described lands and be enforced against the same to pay and satisfy the amount, of petitioner’s aforesaid demand with interest as above set forth.

Your petitioner further prays that a curator ad hoc be appointed to defend the said Mrs. Dora Stark in this suit, and that necessary process be served upon said curator ad hoc, according to law.

Petitioner also prays for all such other and further orders and decrees as the nature of the case requires, as law and equity permit,, and for general and equitable relief.”

Opinion.

We understand defendant to contend that’ the note executed in • favor of Mrs. Rhea by Mrs. Randolph, the plaintiff, and her sister,. Mrs. Stark, was given for a joint indebtedness, that the mortgage granted by the act as it affected Mrs. Randolph’s individual half of the property, was limited to the securing- of her personal indebtedness of one-half of the note and was not intended to secure nor did it secure any part of Mrs. Stark’s indebtedness, and that as it affected the latter’s undivided interest in the property, it was limited to Mrs. Stark’s personal indebtedness on the note and was not intended to secure nor' did it secure any portion of Mrs. Randolph’s indebtedness,, in other words, that the mortgage like the note, was divisible.

That when (after the partition in kind between the two sisters') Mrs. Randolph granted a mortgage securing an individual debt of her own to Johnson & Goodrich, on the portion of the property mortgaged which had been allotted to her, and that mortgage was foreclosed at the instance of G. W. Sentell & Co., who had acquired the-Johnson & Goodrich claim, and G. W. Sentell, a partner in that firm, became the adjudicatee of the property and paid the price of his adjudication, defendant’s sister, Mrs. Randolph, lost all recourse of every kind against her.

The reasoning by which this conclusion is reached by her we understand to be, that if at the time of the adjudication to Sentell any portion-of the Rhea debt was due personally by Mrs. Randolph, that-portion was finally and completely extinguished as to everybody by the sale and the purchaser’s payments.

That as to any portion of the Rhea debt remaning- still unpaid by Mrs. Stark at the date of adjudication, the payment of the same-was made not by Mrs. Randolph, but by Sentell or Sentell & Co.

That if subrogation of any kind to Mrs. Rhea’s rights of mortgage or other sprung from the payment of that claim by Sentell or Sentell & Co., that subrogation was to Sentell or Sentell & Co., who made the payment, and not to Mrs. Randolph, and that the liability of herself or her property is to the former.

That under Art. 2161 of the Civil Code, “subrogation takes place of right for the benefit of tile purchaser of any immovable property who employs the price of his purchase in paying the creditors to whom the property was mortgaged.”

That if Sentell or Sentell & Co. paid a portion of their purchase price to Mrs. Rhea or her heirs as holding a prior mortgage on the property adjudicated to them, due by Mrs. Stark, they became as purchasers so paying subrogated to those rights against Mrs. Stark.

The first proposition to which we direct our, attention is as to the extent and character of the Rhea mortgage.

The mortgage in question came under the examination of the Supreme Court of the United States in the case of Groves et al., the Heirs of Mrs. Rhea, vs. Sentell, (153 U. S., 482), and that court, speaking through Mr. Justice White, declared for reasons assigned, that the mortgage covered the whole property indivisibly.

That decision is criticized, but we think its coreetness is unquestionable.

As the court said, “the joint nature of the principal obligation does not negative the indivisibility of the mortgage by which the obligation is secured.”

An indivisible mortgage frequently secures a divisible debt. See 23 Ann., Doyal vs. Doyal.

While it is necessary for the existence of a mortgage that there should be an existing principal obligation which it supports, that obligation need not be the personal obligation of the party granting the mortgage.

It is no unusual thing for persons to mortgage their property by way of real security to secure the debts of third persons without coming under any personal obligations themselves. C. C., 3295, 3296. C. C., 2112, 2013, 2019.

Where two or more persons joining in a joint personal obligation secure the whole indebtedness by a mortgage on certain property belonging to them in its entirety, each owner of the property stands as to his property as surety for the others for the amounts not owed personally by himself.

This is as true in a joint debt secured in its entirety by an indivisible mortgage as in a solidary obligation. C. 0. 2106.

Iíolding as we must that the Rhea mortgage was ail indivisible mortgage covering in its entirety all the property mortgaged to secure it, although the debt secured was the joint debt of Mrs. Randolph and ■of Mrs. Stark, there could be no question, we imagine, that if Mrs. Randolph had been forced, in order to save her own property, to pay herself directly the indebtedness due by Mrs. Stark, that she would have had recourse back on the latter for all amounts paid for her benefit to the mortgage creditor with subrogation to the rights of that mortgage creditor. C. C. 3032, 3053, 3054.

“Si deux débiteurs simplement conjoints out hypotheque un fonds commun Vun esk kenu avec Vautre 1’hypetheque etant indivisible; si Pun paye le tout il y a done lieu a subrogation. Ainsi lorsqu’un un immeuble ayant étó vendu partiellement a plusieurs Puu des acquéreurs pour écliapper a la demande en resolution at déguerpissement formé contre lui par le vendeur non payó le montant integral de ce qui est du a ce dernier il se trouve par le simple fait de ce payement subrogó contre les autres acquéreurs aux droits du demancleur comme ayant acquittó une dette au payement de laquelle il etaifc tenu avec d’autres at pour d’autres.” (Dalloz, Les Codes Annotés, Code Civil, Vol. 1, under Art. 1251. C. N., Nos. 117-118).

We do not think it would be claimed that the situation would be changed if instead of Mrs. Randolph’s paying herself the debt her property had been seized and sold by the mortgage creditor to satisfy Mrs. Stai-k’s debt and the proceeds of the sale had been applied for that purpose.

It seems, however, to be assumed that matters would be.entirely different if an individual creditor of Mrs. Randolph holding a mortgage on the property allotted to her in the partition, should have seized that property to satisfy his own debt and bought it in himself, and finding a portion of the mortgage debt due to Mrs. Rhea priming his own, still unpaid and due by Mrs. Stark, he should have, paid the same.

Under such circumstances it is supposed that the adjudicatee by ■paying this mortgage debt would have become himself subrogated to the rights of Mrs. Rhea (right of mortgage or otherwise) against Mrs. Stark and entitled to actively enforce the same against the latter and her property. .

Defendant misconceives, we think, the character, scope and extent x>i the subrogation acquired under Article 2161 of the Civil Code, by .a purchaser, who employs the price • of his purchase in paying the creditors to whom this property is mortgaged.

The subrogation here referred to is á special one; it is a “defensive, equitable subrogation intended, as Laurent says, (Laurent, Vol. 18, “De la Subrogation,” Section 85), to consolidate the property ..of the immovable property in the hands of the purchaser and secure him against attacks upon the same, based upon antecedent or subsequent mortgage creditors: it is designed to protect him from eviction from the property.

When Sentell (or Sentell & Co.) became the adjudicatee of the property in execution of their debt, he became debtor to Mrs. Eandolph .(the owner of the property) for the purchase price.

' When he paid his bid he paid simply his own debt for which he had received an equivalent consideration.

That fact remained unaffected by the circumstance that being a .creditor of Mrs. Eandolph or holding mortgage rights upon the property purchased, he applied the proceeds as to a part primarily to Mrs. Ehea as holder of a prior mortgage, and next to payment of himself (or his firm) as creditor. Sentell or Sentell & Co., by payment ■of the prior mortgage, were placed in position to hold that particular ■property in its entirety secured in their favor as far as said prior mortgage could afford protection from claims (either antecedent or subsequent) of other mortgage creditors. They would deter other judicial proceedings being brought against it by holding up that claim ..as entitled in their hands to payment by priority should it be seized -and sold He novo, and the proceeds of sale distributed.

A subrogation of that character is something other and different ‘from an ordinary subrogation which would entitle the holder of rights •acquired through its medium to take active measures against third ■parties or other property.

Sentell or Sentell & Co.', through their purchase of the property . and their payment to Mrs. Ehea, acquired no active rights against Mrs. Stark or the property allotted tó her in the partition. Laurent (in the work cited) in Section 81, referring to that subject, says: '“L’acqueur qui en payant les créanciers aequitte sa propre dette peut il invoquer ie benefice de P Article 1251 ? La Cour de Cassation a decide la question négativement dans Pespece suivante. Un créancier hypotliécaire se rend adjudicataire de Pinnneuble bypothéque; son prix étant absorbé par un créancier autérieur il u’est pas utilemcnt colloqué. Pour arriver au remboursement de la créance il se fait subroger aux droits du créancier qu’il a payé. Ce créancier avait encore d’autres co-débiteurs de la méme créance. En vertu de la subrogation Pacquéreur resté créancier de son mendeur prétendit exercer les dre/ts appartenants au créancier par lui payé son prix. La Oour d’Aix a juge qu’il n’avait droit ni a la subrogation légale ni a la subrogation conventionelle parceque en payant le premier créancier inscrit Pacquéreur avait payé sa propre dette.

“En effet, Pacquéreur s’aequittait du prix dont il était débiteur coniine adjudicataire, et en payant sa propre dette, il éteignait en memo temps la dette qu’il acquittait, non seulement a l’égard du vendeur, mais aussi a l’égai'd des autres co-débiteurs; or une créance éteinte iPest pas susceptible de subrogation, lorsque le payement en est fait par eelui qui en Pacquittant ne fait que se libérer de ce qu’il doit. Veut-on avoir une preuve certaine, dit la cour, quo la subrogation est impossible? Que Pon suppose que Pacquéreur soit subrogé, en vertu de la loi ou de la convention, il aurait en un recours pour obtenir le remboursement d’une partie de le croance qu’il devait payer avec son prix; c’est dire qu’il ne se serait point liberé de la totalité de son prix d’acquisition.

“Cette decision, tres jurisdique parait néanmoins, au premier abord en opposition avec le text© de l’Art. 1253. La loi accorde la subrogation a Pacquéreur d’un immeuble qui emploie le prix de son acquisition au payement des croanees auxquielles cet immeuble était hypothequé. Or, Pacquéreur ne fait que payer en l’acquit de son vendeur, le prix qu’il lui devait. .Done, dira-t’on, il n’est pas vrai que la subrogation ne puisse exister au profit de celui qui paye un créancier a l’aide de deniers qu’il doit lui meme au debiteur. L’objeetion repose sur une fausse interpretation de Particle 1251, No. 2, ot do la subrogation toute spéciale qu’il établit. ' II est bien vrai que Pacquéreur qui paye son prix paye ce qu’il doit et qu’il est cependant subrogé au créancier qu’il désinterosse, mais en quel sens Pest il et a l’égard de qui? II est subrogó a l’égard des créanciers hypotbécaires non payés qui le poursuivraient hypothécairement; le seul but de la subrogation est d’empecher l’éviction de Pacquéreur mal?. L’acquéreur 11’est pas subrogé aux droits que les créanciers qu’il a désinterressé pourraient avoir contre des tiers. Une pareille subrogation supposeraient que l’acquéreur subrogé a un recours a exercer a raison du paiement qu’il fait; et comment aurait il un recours alors qu’il n’a fait que payer ce qu’il doit? La situation de l’acquéreur est tres simple, il est subrogo a l’liypotheque des créanciers pu’il a payé aveeson prix pour se défendrc contre la poursuite hypothécaires des créanciers qui u’ont pas pu etre payés.

Yoila toute la subrogation du No. 2.

Si l’acquéreur lui meme se trouve parmi ces créanciers, il subirá la loi commune de tout créancier qui ne peut pas etre payé sur l’immeuble liypothéqué, par ce que cet immeuble est g’róvé de charges au dela de sa valour; c’est dire qu’il rentre dans la classe des créanciers chirographairc-s, Il n’a qu’une action personelle, puisque Faction hypothécaire lui fait défaut. Conune créancier persone! il pourra exercer Iesdroits de son débiteur. Si done le vendeur a des droits contre les eodébiteurs des dettes acquittés moyennant le prix de vente, l’acquéreur pourra les exercer en vertu de l’Article 1166; mais en exergant cette action il vieudra en contribution avec les autres créanciers de son débiteur; ce ne sera pas le bénéfíce de la subrogation, ce sera 'le droit conunun.”

Now if Laurent’s views be correct and Sentell or Sentell & Co. did. Hot acquire through the adjudication made to them and the application of a portion of-the purchase price to the payment of the Rhea, mortgage debt a right of offensive personal action against Mrs. Stark or a. right of real action against the particular property which was-allotted to her in the partition, and if defendant’s contention be also-true that Mrs. Randolph has no right of action of any kind against her on her property, the result will be that Mrs. Stark’s debt will have-been wholly paid by others tiran herself and out of property other-than her own, with no resulting liability or accountability to any one..

When we say paid entirely out of property other than her own, it will be borne in mind that at the time of the adjudication the undivided half of the property which was so adjudicated and which had' originally belonged to Mrs. Stark and stood mortgaged for Mrs. Stark’s debt, had ceased through the partition to belong to her and' had gone into the ownership of Mrs. Randolph, who, in order to acquire this ownership, had been compelled to transfer toiler sister property of her own of equal value; therefore was it that. the portion of the Rhea debt due by Mrs. Stark at the time of the .adjudication was paid entirely out of Mrs. Randolph’s property.

It is perfectly dear that Mrs. Stark is indebted to some one by reason of the payment of her debt. It is a matter of indifference to her who that person is, the only legal interest she has in the matter is that she should not be placed in a position where she would be liable to be called upon to pay twice.

We are of the opinion that she has nothing- whatever to apprehend from offensive 'proceedings to be hereafter directed against either herself or her property by Sentell or Sentell & Co., under a subrogation of rights to them under the Rhea mortgage.

If she really apprehends trouble from that direction it will be easy for her to protect herself by making Sentell or Sentell & Co. parties to this suit. i

We are not called on in this proceeding to examine into and discuss what the exact positions of Sentell or Sentell & Co. are under •the right of equity or subrogation acquired by payment of the Rhea debt through a portion of Sentell’s bid, nor to see in what manner .that equity is to be worked out in their behalf should it become neees-sary to do so, nor the legal principles or theory upon and by which its enforcement will rest, nor to follow up and trace the legal conse'quences either as between Mrs. Stark and her sister, Mrs. Randolph, •or as between them and the other parties of the partition in kind .made between the two sisters. (C. C. 1338, 1382, 1383). Our duty jn the premises will have ceased when we have ascertained as we have •done, that this right of equity of subrogation, whatever it may be or whatever may be its scope, is not such a right as can be used hereafter by either Sentell or Sentell & Co., to the prejudice of Mrs. Stark or •the property now' owned by her.

The present action is one brought via ordinaria.

If the plaintiff has asked more relief or other relief than she is ■entitled to, that fact (which we do not intend to intimate as being the fact), would not have the effect of throwing- her out of court ■on an exception of no cause of action.

Defendant will have full opportunity of defending herself as -against any claims not well founded or well grounded which may have been set up.

For the reasons assigned, it is ordered, adjudged and decreed that vthe judgment of the District Court be and the same is hereby annulled and avoided and reversed, and it is now ordered, adjudged and decreed that defendant’s exception of no cause of action be dismissed and the-cause re-instated on the docket of the District Court to be there proceeded with according to law.


author: Nicjholls, O. J. Nicholls, C. J.

text:
    No. 12,838.
    John Wilson vs. Louisiana and North Western Railroad Company.
    Syllabus.
    Original judgment amended as to amount to $1,000 : otherwise re-Affirmed.
    1. It is the duty of the party controlling a railroad train to advise himself be fore it starts not only as to one part of the existing situation, but of the-whole, and govern himself accordingly.
    2. Though a train be a “repair train” and the employees thereon may have as sumed in accepting employment thereon that they may be in greater danger of accident than they might be under other circumstances, they have the right to assume that this very fact of increased danger being known to the-conductor, he will guide his conduct so as to minimize the danger by the increased care and precautions which the occasion calls for.
    Á railroad company which permits its tracks to become unsafe should be held, to an increased responsibility for the manner in which its trains are run on. such a track.
    ON APPEAL from the Third Judicial District Court for the-Parish of Claiborne. Barksdale, J.

      J. Q. Theus, Dorman, Reynolds & Dorman, and McGlendon £■ Seals, for Plaintiff and Appellee.

      John A. Richardson for Defendant and Appellant.
    Argued and submitted June 3rd, 1898.
    Opinion handed down June 21st, 1898.
    Rehearing granted November 21st, 1898.
    Argued and submitted on rehearing January 24th, 1899.
    Opinion handed down on rehearing May 29th, 1899.
   The opinion of the court was delivered by

Nicjholls, O. J.

Plaintiff asked for a judgment against the defendant for damages for injuries received by him through the derailment of a car operated by officers and employees of the defendant ■company, on which car he was riding at the time. He averred that he was an employee of said company at the time and on said car in the discharge of his duty as such. That the accident was caused by the negligence and carelessness of the parties in charge. The case was tried by the court, which rendered judgment in favor of the -defendant. Plaintiff appealed, and on appeal the judgment was al.tered to one of non-suit. The pleadings and facts of the case were identical with those of Smith against the same company, reported in 49th Ann., 1325 — the case itself is reported in the same volume, page 1330.

Plaintiff renewed his demand in the present suit. Defen da rj pleaded the general issue.

After defendant had answered pleading the general issue, defend.ant filed a plea of estoppel, alleging that plaintiff had instituted suit .against it for the identical cause of action in which he set up -.the cause of the injury — that he could not change the judicial admission of his first suit; that he could not add to nor take from the same so as to show a different cause for the injury. *

This exception was based upon the claim that the allegations of plaintiff in his second were inconsistent with those in his first suit, .and sought to change the issues between the parties.

Plaintiff’s allegations in his first petition, touching the accident, -were as follows: ' •

“That said derailment and injuries and loss were occasioned by the gross, wanton and criminal negligence of said railroad company and its servants, agents and employees who were superior in authority •to plaintiff. That at said time and place said train and car on which plaintiff was riding was thrown from the track by one or more pieces •of timber or wood falling or being carelessly dropped by the employees from the engine tender or bin, or other places of storing for carrying wood or timber on said train or locomotive or some of the attachments thereto, which caught under the wheel or wheels of said train of cars or locomotive, or both, which derailed and threw said car on which petitioner was riding and all or a part of the train, in-•eluding locomotive and tender, from the track, and in the wreck he was damaged by the fall and being' struck by falling timbers and •cross ties and the car or cars and other parts of the train or locomotive or tender and other causes occasioned by said wreck. That die wreck and damage to petitioner was caused by. the said defendant company failing to provide proper and safe places or apartments for storing or carrying said wood or timber and from the failure of said company and its employees who were in command of the train to have .said wood or timber properly loaded or stored, and from the careless and negligent handling of said wood and timber by the employees and servants of said company, and which wood or timber, fell from the place where it was stored or piled or by the servants or employees of said company’s careless and negligent handling of said wood or timber while said train was running or in motion. That it was no part, of petitioner's duty to superintend the loading of said wood or timber, and that said injury and loss was caused by no negligence or fault ■of his, but wholly by the negligence and fault of the defendant company or its servants and employees in charge of the train, or for the want of necessary appliances for the safety of the employees of the company.

In plaintiff’s second petition he averred that at said time and place said ear on which petitioner was riding was thrown from the track by a piece of timber or wood falling from the tender or usual place of •carrying wood on said train, locomotive or attachments thereto, which caught under the tracks or wheels and axles of said car on which petitioner and others were riding which derailed said car — which car after running off the rails on to the road bed and rotten ties, ran on to or struck a rotten bridge or trestle of said company, which gave way and precipitated petitioner and others and said car and cross ties to the ground a distance of about twelve feet. That at the time of said wreck said train was being run at a high and dangerous rate of speed ■over a dangerous and unsafe track with rotten cross ties, and the rails on said tracks were low and sunken in places and high in other places, and the cross ties and road bed, together with the unsafe condition of the rails and the great and dangerous rate of speed caused violent rocking, jumping and shaking of said locomotive, tender and cars. That the defendant company did not provide safe and proper apartments for storing and carrying said wood, and said company and its agents and employees who were in command of petitioner caused -said fire wood to be improperly loaded and carelessly and negligently piled, at least, three feet above the outer wall or rim of said tender or wood bin without there being any guard or other protection to prevent said wood or timber from failing' over the outer wall or rim of said wood bin or tender, and that said wreck was caused by the fall of said wood or timber and the above alleged reckless running and defective road bed, etc., etc.

That it was no part of petitioner’s duty to superintend the loading or storing of said wood or timber, or to control the rate of speed, or to examine or repair the track, road bed, or anything in connection therewith, and his only duties were to obey bis superiors in command, he being a common laborer and having- no dominion or control over any part of said train or road bed, or anything connected therewith other than as a common laborer,' and that the said injury and loss was caused by no negligence or fault of his, hut wholly by the fault of the defendant company and its agents and vice principals in charge of said train, and for want of necessary appliances for the safety of the employees of said company, and the defective road bed and track and reckless running, etc., etc., as above stated.

In defendant’s plea of estoppel, it asked that all allegations of plaintiff’s petition, which were different from, or changed, the allegations and judicial admissions in the suit first filed, be stricken out, and that no evidence be permitted to. be received under the same.

No separate action was taken upon this exception. The case was tried twice before a jury. The first trial resulted in a verdict of five thousand dollars for the plaintiff, but the verdict was set aside and a new trial granted.

The second trial resulted in a verdict of twenty five hundred dollars for plaintiff, and judgment was rendered in accordance therewith, though the court, in refusing an application to have the verdict set aside and a new trial ordered, expressed its disapproval of the verdict, assigning as its reason for entering judgment that it .thought the litigation should he brought to an end.

The first suit of the plaintiff against the defendant was by consent of parties, taken up at the same time with that of Smith vs. The La. & N. W. R. R. Co., and upon the same testimony, except in so far as testimony as to the extent of injuries received by each and the amount of the damage claimed by each, made special testimony necessary.

In the opinion in the Smith case (49th Ann., 1328) the court said: “As the case was left by the witnesses it seems clear that the piece of wood was the proximate cause of the accident, but without showing directly that the stick of wood was on the track'through the fault of the defendant, its servants or agents, the company is not connected with the proximate cause so as to make it responsible. The break in the continuity of the testimony is in the manner in which the stick, occasioned the derailing of the train, and by whose fault it was placed in position to produce the same.”

It was in view of the possibility of plaintiff’s being able in a second suit to supply this missing link that the judgment, originally a final one against him, was altered to one of non-suit.

The testimony taken upon the first trial was considered in the second, both sides introducing additional evidence. Plaintiff introduced two new witnesses whose, testimony was to the effect that, at the time of the accident, they were riding upon a flat car directly in rear of the tender on which the fire wood for the train was piled up; that as they were sitting, they faced the tender; that directly in front of and facing one of them, a man by the name of Crawford was sitting on the rear end of the tender. Each one of them testified to having seen the piece of wood which the pleadings .refer to, fall from the rear end of the tender to the track between the tender and the flat ear just behind, and upon which they were sitting; that, immediately after-wards, there was a violent jerking of the cars, followed by the derailment of the same. Neither saw the piece of wood strike the ground, nor knew how or where it came in contact with the cars. Both say that Crawford did not touch the wood, or have anything to do with its' fall. They differ somewhat as to the point from which it fell; one stating it fell from a point near the eastern side of the tender, the other, from the western side, but, we think, the establishment of the particular point from which it fell an immaterial fact, except in so-far as it might tend to effect the credibility of those witnesses. We-do not understand defendant to attach any importance to it, other' than for that purpose.

The character of those two witnesses was not impeached. The effect of their respective statements is weakened only in se far as the fact that they were not in accord as to the point from which the stick of wood fell, might be calculated to throw doubt upon their accuracy— if that fact were important — Crawford was not put upon the stand.

From whatever side the piece of wood fell, it obviously struck m such a manner as to occasion, as the immediate and direct result of its falling, the derailment of the cars.

The question is, how came it to fall! Plaintiff, in his pleadings, says the wood upon the tender was piled three feet high upon a tender and left there without guards, while defendant undertook to show that it was only two feet high at the middle, and that the fireman straightened it out after it had been placed upon the tender. There is very considerable difference in the testimony as to the rate of speed at which the train was running at the time of the accident. It is claimed by plaintiff that the train being behind time in consequence of. having had to taire on a quantity of cross-ties, was being hurried forward in order to reach Athens before the passenger train, coming from Homer, should reach that place. One of the witnesses said that Mr. Beardsley, the manager of the road, hurried the conductor, giving him (he said) the “high ball” (orders to go faster) several times. Mr. Beardsley, though on the train at the time, did not take the stand as , a witness. The testimony, we think, shows that the road-bed, the ties, . and the track, were in very bad condition at the point where the aeci- . dent occurred, and for some distance in front and- in the rear of that place. We are satisfied that the stick of wood was detached from its position by the rocking of the cars, caused by rapidly running nars over the uneven and defective road-bed and track at that point. We are also satisfied that the immediate cause of the derailing of the cars was the falling of this piece of wood, and its being caught under the wheels or trucks of one of the cars. It is contended that the plaintiff was one of the parties who loaded the tender. That he went on the train voluntarily as an employee of the corporation, with knowledge of the situation and condition of the road (if, in fact, it was in bad condition),- and that in accepting service he assumed the risks of employment taken under such conditions. Employees entering the service of a railroad company have a right to assume, should it fail to comply with its duty of keeping its road-bed, ties, and track throughout, in ¡safe condition, that it will at least meet and compensate its failure in this respect, by steps taken by it and those having charge of its trains, to remedy and save the situation from danger for the benefit of its passengers and employees by a special care taken and precaution -resorted to in the running of the trains themselves over dangerous places.

We do not think that employees, by accepting service with a badly equipped railroad corporation, accept as a matter of course, the double risk of insufficient and bad tracks, and careless and negligent handling of cars over dangerous places. Two juries have found the facts of the case in favor of the plaintiff, and we see no good reason for holding them to have been in error in their conclusions. We see no questions of law standing in opposition to an affirmance of the judgment on the facts so found, though we are of the opinion that the amount found as damages is too high. No action was taken in the lower court upon defendant’s plea of estoppel. It is insisted that the exception was well founded. We do not think so. It is rarely possible for a person injured by the derailment of a car to know with certainty .to what particular cause it was attributable. In cases of that character a plaintiff’s pleadings are made usually as general as safety will permit them to- be made, so as to enable him to take advantage of the facts which may develop on the trial. He may sometimes, by too-minute particularity, be held down on a first trial to specific allegations as then existing, but, if on plaintiff’s demand, being met by a genera] denial, the case should terminate in a judgment of non-suit, plaintiff would have the right in drafting a second petition to avail himself of knowledge of the actual facts of the ■case as made known to him through the testimony taken on the first trial. The allegations made in the first case as to the facts of the occurrence could certainly not be classed as “admissions” made by him from which he could not recede. In the case at bar, plaintiff insists still that the falling of the stick of wood was the direct, immediate, cause of the derailment of the car on which he was riding — he simply adds thereto certain other facts as concurring contributing causes.

We think the judgment should be amended by reducing the amount •of the damages accorded to the plaintiff by the verdict and judgment from twenty-five hundred dollars to fifteen hundred dollars, and it is hereby so ordered and decreed.

On Rehearing.

Nicholls, C. J.

A rehearing was granted in this- ease for the reason that in examining the testimony scattered through three different transcripts, a portion of the same had escaped the court’s attention. The statement made by the court that Beardsley, the manager of the defendant company, was on the train at the time- of the aeci■dent, and that he had not testified in the case, was- erroneous. The Beardsley who was on the train was the son of the manager, or superintendent, and not the superintendent himself, and he was placed upon the stand and positively denied having given the orders to increase the speed of the train, to the giving of which orders several of defendant’s witnesses testified.

The engineer, to whom the order was declared to have been given, made a similar denial.

The testimony in the case is utterly irreconcilable.

We do not know the witnesses, nor did we have the advantage- of seeing them upon the stand.

Two juries have returned verdicts in plaintiff’s favor.

The first verdict was set aside by the district judge, and plaintiff's counsel calls our attention to the fact, that while declining to set the second one aside on motion for a new trial, the judge expressed, very strongly, his disapprobation of the result reached, stating that lie was more convinced than ever that plaintiff had no right to a judgment. That is true, but the judge’s remarks seem to refer more to-what he seems to have considered the.law applicable to the case than to the facts.

He was of the opinion that although the track was out of order, yet the particular train to which the accident happened was a “repair train”; that plaintiff knew the condition of the track, and the dangerous character of the duty in which he was engaged, and therefore-assumed the risk of the dangerous service.

He did say that he did not think the accident was occasioned by the bad condition of the track.

We are inclined, ourselves, to think that the latter fact, standing by itself and independently of the falling off from the tender of the-piece of wood which the testimony shows did so fall off, would not have caused the derailment of the train, even at the rate at which it was going.

That the aec-ident was occasioned by the concurrence of three fac-ts-

—the bad condition of the track, the speed of the cars ,and the particular manner in which the wood was placed on the tender.

W© did not think the wood, as placed, would have fallen from the-tender simply as the result of the speed of the train, had the track been in good condition, ñor that it would have fallen even with the track in the condition in which it was, had the speed been regulated so-as to conform to what was required by the entire actual situation.

We thought that the wood was n,ot placed on the tender in the manner in which it should have been placed there, to meet the requirements of a rapidly running train over a bad track.

That as it was, rapid running over a bad track had caused some of .the wood in the tender, which had not been placed there in the manner to meet such a condition of things, to gradually work its way to the back of the tender, and to fall out, and by falling out to pass under the wheels of the car, and derail the train.

One of the difficulties in the ease was that the wood, as placed in the tender, was placed there by the plaintiff himself, and the other parties who-were working as laborer's ir repairing the track, in putting ties on the train, and, incidentally, in placing the wood in the tender.

We were of opinion that these men, however, could not have known in advance that the train would be run as it was afterwards probably run, and, besides this, the fireman, Sol Sephus, testified that after it .was placed in the tender he had himself, to some extent, straightened it out.

Our judgment proceeded upon the theory that it was the duty of the party who controlled the train to have advised himself, beforé it started, not only as to one part of the existing situation, but of the whole, and to have governed himself thereafter accordingly, and that while it was true that this train was a “repair train,” and the parties thereon may have assumed, in accepting the employment, that they might be in greater danger of accident than they would have been under other circumstances, they had the right also to assume that this very fact being known to the conductor, he would guide his conduct so as to minimize the dangers by the increased precautions, and the care which the occasion called for.

We did not think that the conductor, as' representing the defendant company, had afforded to its employees the full measure of protection to which they were entitled.

We are of the opinion, and are still of the opinion, that a railroad company which permits its tracks to become unsafe, should be held to an increased responsibility for the manner in which its trains should be run over such-a track.

The direct contradiction of the witnesses of the parties as to most important facts brought especially to our attention in our last examination of the transcripts in the case, coupled with the disagreement 'between two juries, and the district judge, have caused us to hold this cause under advisement a longer tipie than is usual, for the reason that we have been in great doubt as to what the proper course would, be to pursue under the circumstandes.

After a most careful consideration of this case as presented to us,, we adhere to our original judgment, except as to amount. We are of the opinion that the amount for which we have rendered judgment in favor of the plaintiff, against the defendant, is too large, and it is hereby reduced from fifteen hundred to one thousand dollars. As so amended, our original judgment must remain undisturbed, and it is-so ordered.

Mr. Justice Monroe taires no part, as the case was submitted previous to his appointment to this court.