author: Todd, J. Poché, J.

text:
    No. 7680.
    State of Louisiana vs. G. R. Finlay & Co., In Liquidation, et al.
    The Charity Hospital of How Orleans, originally founded by the private bounty of Don Andrés Almonaster y Koxas, became, by Acts of the Legislature since the year 1811, a State Institution.
    As such, it is owned by the State, and, whether or not the title to the property from which it derives revenues for the charitable purposes of its creation, is literally in the State, that property is, at all events, held in trust by the State for the use of those intended to be benefited by the Institution.
    Under the laws organizing said Charity Hospital of Hew-Orleans, its property is not liable to seizure and sale under execution.
    APPEAL from the Fifth District Court, parish of Orleans. Rogers, J.
    The Attorney General for the State, Plaintiff and Appellee.

      Max Binkelspeil for the Charity Hospital, on the same side.

      Sami. P. Blanc and H. G. Morgan for Defendants and Appellants.
    Hirst — That tlie property acquired by a public or quasi public corporation, by donation or other absolute title, does not belong to tbe State which created tbe corporation. Therefore, that tbe cotton press and yard acquired by tbe Charity Hospital from tbe heirs of Stephen Henderson, and by partition with several institutions, never was and is not now tbe property of tbe State of Louisiana.
    Second — That where the charter of an institution fully empowers and authorizes the administrators thereof “ to enter into any kind of contract (sales of real estate exoepted),” the administrators are powerless to execute contracts of sale of the real estate; that this incapacity applies exclusively to those officers, and prevents them from making a voluntary or extrajudicial sale of any of the realty. But that nothing In the language quoted or the effects stated inhibits the seizure and sale of such property to pay a judgment in favor of a creditor for a lawful debt of the corporation. Therefore, that nothing in the language of Seo. 389 B. S., or the charter of the Charity Hospital, prevents the seizure and sale of its real property to satisfy the judgment of Einlay & Co.
    Third — That the language above quoted, as it authorizes tbe administrators of the corporation to enter into any kind of contract, except only contracts of sale of the real estate, the inhibition is restricted to tbe latter kind of contract only, not to other contracts as of loan or mortgage.
    Hourth — That, where the power exists to contraot debt or to mortgage property, tbe right of the creditor to sue thereon and seize and soil the property of the debtor to satisfy his debt, is necessarily implied and given,

      Fifth — That where the charter of a corporation authorizes its administrators to “ sue and to implead and he * 'impleaded in all its affairs and actions, ’ the right of the creditor to have the judgment rendered in his favor, executed in the usual mode, by seizure and sale of property of the debtor or distringas, is necessarily implied and exists.
    Sixth — That if it be admitted that the real property of the Charity Hospital cannot ho sold under execution, because of an inhibition against sales of real estate, and the charter of the corporation fully authorizes and empowers the administrators to rent and lease its property, then may a creditor execute and satisfy his judgment for debts by causing said property to he rented and leased for that purpose, or he may seize and sell the right of occupation of the property for such time as may he necessary to realize the amount of his judgment.
    Seventh — That where the right of occupation has been separated from the naked right of disposal, or is possessed by one who controls the former without having the latter, the right of occupation is susceptible to execution for debt. «
    Eighth — That a court having rendered a final judgment against the Administrators of the Charity Hospital, condemning'them to pay the debt of Finlay & Co., must enforce and execute it by writ of distringas or other writ, upon and against such rights and property under the control of said administrators susceptible to he applied or used to provide a revenue.
   The opinion of the Court was delivered by

Todd, J.

G. R. Finlay & Co., the defendants herein, obtained in May, 1878, in the Fifth District Court of the parish of Orleans, a judgment against the Board of Administrators of the Charity Hospital, for $11,299 65.

On this judgment they caused a writ of fieri facias to issue, under which certain real estate, described in the petition, Was seized and advertised for sale to pay the debt.

The State of Louisiana, through the Attorney General, obtained a writ, of injunction prohibiting the sale of the property seized, and asked for a decree declaring the property in question exempt from seizure and sale under execution. And it is the question of the exemption thus claimed for this property that is presented for our solution, and it is the only question involved in the case.

In 1838, Stephen Henderson, by last will, bequeathed to the Charity Hospital an annuity of four thousand dollars. Certain heirs of the testator instituted suit to have the will declared null. After some litigation the suit was compromised, and by an act of partition passed on the 3d of April, 1841, in pursuance of the compromise, the Charity HospitaLbeeame possessed of the property seized in lieu of the annuity devised by the will.

The Charity Hospital was founded in 1784 by Don Andres Almonaster y Boxas. It remained under the patronage and direction of the founder till 1811, when it was formally ceded to the public. By the act of the Legislature accepting the cession, it was placed under the direction of a council of administrators, nine in number, of whom the Governor was to appoint six and the City Council three.

By an act passed in 1813, it was enacted that all the members of the board of administrators should be appointed by the Governor, and that the Governor himself should be a member and president of the board. Since that time the institution has been under the control and management of this board, the members of which are annually appointed by the Governor, by and with the consent of the Senate.

To provide for the support and maintenance of the institution, the Legislature has from time to time made appropriations of money from the State treasury, and has in various ways sought to increase its revenues by requiring certain fines, forfeitures and penalties to be paid directly to the hospital; by imposing taxes on theatres, circuses, balls, concerts, etc., for its benefit; by authorizing the board of administrators to accept legacies and donations made to it, and by other methods creating or increasing its sources of revenue.

We find, also, a statute prohibiting the contracting of any debts beyond the revenues of the institution and the annual appropriations made by the Legislature, and another containing an indirect but plain prohibition against the sale of any' real estate to which it might be •entitled.

These are facts touching the history of the institution, and the policy of the State in relation to it. We have deemed the recital of them essential, in order to arrive at the true original character of the institution; for it is upon an ascertainment of its true character and exact status that a settlement of the issue, presented by the record, mainly depends.

Under our system the Constitution of a State embraces but the general frame-work of the government, outlining as it were only the great powers intended to be permanent, but leaving to the Legislature the task of establishing the lesser or subordinate powers, to be exercised according to the necessities of the government, and for the purpose of carrying into effect the great object for which all governments were instituted — the well-being and happiness of the governed. The Legislature may also, in its wisdom and discretion, delegate some part of its powers to inferior or local authorities the more efficiently to execute its purposes. We see instances of this in the powers delegated to municipal and other public corporations for the government and' police of towns and cities, for the facilities of travel and transportation, for the establishment of universities and colleges and eleemosynary institutions, etc. It is the highest duty of every well ordered State to make suitable provision for the maintenance and well-being of certain unfortunate classes of society, such as the insane, the deaf and dumb, blind and indigent sick. And, indeed, in modern times the true measure- o f the progress, enlightenment and humanity of a people or a nation is the provision made for these classes of persons.

To carry out these beneficent objects the State may found asylums, established at its own expense and under its direct control, management and supervision; or it may commit this important work, or a part-of it, to public corporations, expressly created for such purposes, and to-which a part of the powers pertaining to the sovereignty are delegated by law the more effectively to carry them into execution. And whether these institutions are established by the State by direct appropriations from its own treasury, and administered and controlled by direct governmental authority, like the asylums for the blind and deaf and dumb in our own State, or are under the management and administration of a public corporation, as is the Charity Hospital of New Orleans, they all stand upon the same footing, are all equally State institutions, under the-care and guardianship of the State, and equally entitled to its aid and protection. And this principle is expressly recognized in the case of Featherman vs. La. State University, 2 Woods, 71. All such institutions-are owned by the State, with all their appurtenances. It may not be-that the title to the property, from which their revenues may, in whole- or in part, be derived, is literally in the State; but, nevertheless, the State owns them or holds them, in trust though it be, for the benefit of those they were established to serve, just as it holds all its constitutional or governmental powers, in fact, as trusts to be executed for the-benefit of the people.

The Charity Hospital, as we'have seen above, was formally dedicated ’ to the public by its original founder. For more than half a century it has been virtually under State control and management, through its-board of administrators, appointed by the Governor, and of whom the-Governor, the Chief Executive of the State, is president. It has been maintained, as we have seen, directly or indirectly by the bounty of the State; and- to-day it stands as a monument of the beneficence of the State, the great instrumentality through which the noblest of charities-have been dispensed and relief extended to thousands of the distressed and afflicted, not only of our own State, but of other States, who have availed themselves without return of our benevolence, and which, as a-source of just pride to the citizens of the State, has survived the calamities of war, seasons of the greatest financial depression, and years of disorder and misrule.

That we may realize how completely the property, from which the revenues óf the hospital are, in part,derived, belongs to the State, though, in trust, as we have said, we have only to suppose that the public corporation that administers its affairs were dissolved, as it could only be by State authority, and the institution ceased to exist, to whom, then, would this property belong ? It would not revert to the original donors; it could not be held by individual members of its board of administrators; but the State, and the State alone, could lay any legal claim to it.

If, then, this hospital is a State institution, maintained and administered, as we have seen, by State authority, it is the first duty of the State to secure and 'preserve to it the essential conditions of its existence for the puposes for which it was established. This duty is a paramount duty that rises above all other considerations, and especially ■considerations that affect only interests of private individuals. It is utterly inconsistent with this duty and the protection that the State -owes to this institution to suffer it, from any cause, or at the instance of creditors or other persons, to be deprived of its property, without which its work of beneficence and charity cannot be accomplished. Eor all practical purposes, the exercise of the right claimed by the defendants -to seize and sell the property from which it derives its support, and on ■which its existence depends, would destroy the institution and abrogate its charter as effectually as if that charter was repealed by law. The means of support of the institution, whether derived from the bounty ■of the State or from legacies or donations made to it by authority of law, are, of course, indispensable to its existence, and, in fact, constitute its very life.

The Legislature recognized this principle, and sought to consecrate those means of support and debar any diversion of them, when it declared that “ all moneys coming to the hospital shall be exclusively appropriated to the use of the patients,” excepting only the funds that .might be required for buildings and repairs.

Revised Statutes, Sec. 396.

The property seized, representing as it does the annuity already mentioned, must be enjoyed as the annuity would have been without the compromise.

Under this view of the subject, we are forced to the conclusion, that the property in question was exempt from seizure, and that the injunction against its sale must be maintained.

We do not doubt but that the claim of the defendants, the seizing creditors, is a strictly meritorious one. Nor have we reason to question the statement of their counsel, that the defendants came to the rescue ■of the institution in the time of its sorest need by advances of supplies necessary for its maintenance, for which they have never been paid; and it is not without deep reflection that we have come to the conclusion •expressed. There is something repugnant to the moral sense that a corporation can contract a debt and that its property should not be ■subject to legal process for its payment. But this consideration must yield to the sternest legal necessity. To grant the relief in the manner sought is beyond the power of the judiciary.

The judgment of the lower court, which was in favor of the plaintiff, perpetuating the injunction, is affirmed with costs.

On Rule to Dismiss Application for Rehearing.

Poché, J.

Defendants having filed an application for a rehearing from the decree rendered in this cause, on November 29th, 1880, and having also applied for an extension of time for the filing of briefs in support of their application, plaintiff moves that the order granting the delay prayed for be rescinded, and that defendants’ petition for rehearing be dismissed on the ground of the following agreement, which was made, and was entered on the minutes of this Court on the 21st of May, 1880, in reference to this case:

It is agreed by counsel for both parties in open Court, that the delays within which to apply for a rehearing are waived, and that the judgment to be rendered by this Court shall become final and executory mmediately on its rendition.”

Defendant, G-. R. Einlay, and his two attorneys, have filed affidavits in which they urge in substance, that their understanding of the above-agreement was that the case was to have been decided at the term of the Court which expired on the 31st of May last, 1880, and that the agreement was entered into by them for the sole purpose of securing or facilitating a final decision of the case at that term of the Court.

We have no reason, to doubt the good faith and the truth of the statement made by affiants, but we are called on to interpret and enforce-an agreement which is of record in our minutes, which is clear and unambiguous, and glaringly exclusive of, and inconsistent with, the interpretation invoked by defendants. The agreement is sweeping, definite and complete, and suggests no restriction, exception or qualification* and must be construed as law unto the parties thereto.

As defendants intended their waiver- to have effect only on a decision to be rendered at that term of the Court, they should have inserted some provision justifying such a restriction, in default of which their opponent be secured in the rights which he thus acquired, as. sacredly as defendants would have been maintained in the corresponding right in the event of a decision favorable to them.

It is, therefore, ordered, adjudged and decreed that our order of December 13th, 1880, allowing delay for filing briefs in support of defendants’ application for a rehearing be rescinded; and that their application for a rehearing in this case be dismissed, and that they be condemned to pay the costs of this proceeding.

Levy, J„ absent.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 8079.
    Paul Lacroix vs. Martial Bonin.
    An extension of time of thirty days being granted by this Court, to file the Transcript oi Appeal, the Appellant on the day after the thirtieth day of the extension allowed, applied for additional time: held that the application is too late, and the Appeal should be dismissed.

      A. J. Ker for the Appellant.

      Frank D. Ghrétien for the Appellee.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is a rule on the clerk of this Court to show cause why he should not deliver the certificate provided by Art. 589, C. P., showing that the transcript of appeal herein was not filed. This rule was notified to the appellant, who answers “that he has employed all due diligence to have the transcript completed and filed; that the last day of the term should not be counted;” and he “ prays that the rule be dismissed.”

The appeal was returnable here on the first Monday of November last. On the fourth of November, which was the last of the three judicial days which followed the return day, the appellant, on a showing, obtained from this Court an extension of thirty days. That term ex- ' pired on and with the fourth of December. The fifth was not a judicial day, but the sixth of December was.

It is on that day that the,appellant moved for a further extension, and that the Court, under the impression that the application was seasonably made, granted an additional delay of fifteen days, which .expired on the 20th of December.

It is on this last day that the present rule was taken. On the following day, the 21st, the appellant moved this Court for an additional extension of ten days, but the motion was taken under advisement, to be passed upon with the rule now before us.

It is clear that the extension granted on the sixth day of December was inadvertently allowed. The motion for it came too late. It should have been made on th'e/owri7i of December.

The rule that when an act is to be done within a given time it may be done afterwards, if nothing occur to prevent it, and that neither the day of serving the notice, nor that on which the act is to be done, are included, do not apply to this case. C. P. 318; 12 R. 421; 8 L. 206; 6 R. 79; 10 R. 319; 9 A. 21; 10 A. 75,147; 24 A. 126; 19 A. 122; 21 A. 210, 213, 20 A. 229,18 A. 651; 28 A. 901.

There exists however an exception, when the last day on which the act to be done is a dies non. 24 A. 333. The first, second, third and fourth of December, ult., were judicial days. The last day was not a dies non.

The plaintiff in rule is entitled to the certificate claimed.

It is, therefore, ordered that the order allowing an extension of time to the appellant, made on the 6th of December, ult., be rescinded; that the motion filed on the 21st Dec. ult. for a farther extension be refused; that the appeal herein be considered as dismissed, and that the clerk of this Court do issue to the appellee the-certificate provided for by article 589 C. P., at appellant’s costs. . .

Levy, J., absent.


author: Poché, J.

text:
    No. 8082.
    State of Louisiana vs. William Everage et al.
    In a criminal prosecution for larceiiy, it is sufficient to lay the title of the property stolen in the ostensible or apparent owner of it.
    And, for the purpose of such prosecution, cattle at large in the woods or prairies, must be considered as in the possession of the owner.
    The Proviso of Act bTo. 36 of 1880, allowing the State three peremptory challenges for each defendant, is unconstitutional, under Article 29 of the Constitution, because the object of the Proviso is not expressed in the title of the law.
    APPEAL from the Eleventh Judicial District Court, parish of Natchitoches. Pierson, J.

      P>. C. Scarborough, District Attorney, and J. G. Egan, Attorney General, for the State, Appellee.

      Wm. JS. Jack for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

Under an indictment for larceny of a hog, alleged to be the property, jointly, of C. A. Presley and N. Puller, Nelson King and William Everage were tried and convicted by a jury of five, at a term “not a regular jury term,” provided for in Act No. 35 of the Legislature of the year 1880, enacted under the authority of article 7 of / the Constitution.

Nelson King, having been recommended to the clemency of the court, was sentenced to imprisonment for thirty days in the parish jail, and does not appeal; but William Everage, who was sentenced to imprisonment in the State Penitentiary for one year, seeks by appeal the reversal of the verdict and sentence on several grounds, enumerated in four bills of exception, in a motion for a new trial, and a motion in arrest of judgment.

After analyzing the several bills of exception reserved by the accused, and the facts interwoven in those bills, we gather in substance the following facts, which must be considered as blended with the questions ■of law to be determined.

That the hog, which is charged to have been stolen by the accused, was part of a herd of hogs owned by A. J. Page, ‘‘.running at large in the woods,” " marked in the ear with mark of said Page;” and that at the death of Page, who left a surviving wife and partner in community, •and several minor children, the herd of hogs, “ as they ran in the woods,” were sold for cash to Presley and Puller by Widow A. J. Page, acting in said transaction through the agency of her brother-in-law, Daniel Page.

The accused complains of the refusal of the judge to charge the jury on the question of the alleged ownership of the property stolen, in substance, as follows:

First. That a verbal authority from the owner is not sufficient for ■an agent to sell movable property.

Second. That the surviving widow in community owning but one half of the community property cannot make a valid sale of the same, though it be movable property, by private act and extrajudieially.

Third. That larceny cannot be proved unless the property charged to have been stolen was in the actual or natural possession of the alleged owner.

Afte): a careful examination of the able brief submitted by counsel for the accused, and of all the authorities quoted by him, we find no error in the course of the judge in refusing to charge as requested. We know of no law which requires a written mandate to authorize the «ale by an agent of movable property. The accused asked the judge to charge that the authority of the agent to make such a sale must be shown to be express and special; which charge was given by the judge, but he properly added the words “ verbal authority in such case is good.” The objection of the accused to the insertion of these words is therefore unfounded.

And his position is equally untenable in his request for the chargé ' -denying the widow’s right to sell and dispose of a lot of hogs belonging to the community. We are clear that hogs, like money, grain, liquors ■or provisions are, in a case like this, subject to the imperfect usufruct •of the surviving widow, who has full power under the law to consume, •sell, or dispose of them as she thinks proper.” And we, therefore, conclude that the alleged owners .had thus acquired legal ownership of the hogs, fully sufficient to justify a charge of larceny against any third person who took and appropriated them without their consent. It has been held that the possession of a thief was sufficient to prove larceny against another thief who stole from him; a fortiori will this rule apply to a purchaser in good faith, even if in a test with another claimant his title might be found defective.

The reasoning urged by counsel for the accused might have some strength or applicability if the title of Presley and Fuller was contested in a civil suit on behalf of the Page minor heirs, but it has no application in a case of larceny, where the felonious taking, more than the perfect legal title of the alleged owner, forms the essence of the issuepresented to the jury. The judge gave the charge covered in the third ground of complaint, but inserted the word “constructive” so as to read “actual, or natural, or constructive possession;” and, we think, there was no error in the qualification added by him.

The hogs were running in the woods, and were sold “as they ran;”' they were marked by the ear mark of Page, and were thus identified by the purchasers, and the unlawful severance from such possession is larceny in common law. To require corporeal possession by a purchaser of that kind of property, as a test of the unlawful taking of such property, would be equivalent to licensing the pillaging and utter destruction, as to the owners, of the immense herds of cattle and other stock, bred, reared, and owned in the prairies and in the forests of this State, whence our markets are in part supplied.

The motion for a new trial was predicated on the grounds herein-above enumerated and disposed of.

The motion in arrest of judgment was based on the alleged uncertainty of the indictment, for insufficient description of the animal charged to have been stolen; which is described as “one hog then and there being found of the value of ten dollars, the property of N. Fuller and C. A. Presley.” But in his brief counsel for the accused fails to elucidate or develop this point of his defense, which we understand is-virtually abandoned by him, especially as he concludes with the prayer that “ the case be remanded to be proceeded with according to law.”

The accused reserved another bill of exception, and that is levelled at the ruling of the judge in allowing the State to exercise more than three peremptory challenges, which is the number allowed to the prosecution by section á of Act No. 35 of 1880, under the provisions of which law this trial was held.

In support of his ruling the judge refers to Act No. 36 of the sameyear and of the same day, at the end of which is found a proviso, reading as follows: 4

“ Provided this act shall not apply to trials to be tried by a special jury at other terms than regular jury terms of the court, in which cases of trials for crimes and offenses not necessarily punishable at hard labor or death, the accused shall be allowed six peremptory challenges and the' State three for each defendant on trial.”

Under Act No. 35, the accused is entitled to five peremptory chailenges and the State to three, without reference to the number of defendants on trial.

It is very evident that the two provisions are inconsistent, and that the trial of cases “at other terms than regular jury terms” must be-regulated by the one exclusively of the other. The District Judge adopted the proviso in Act No. 36 as containing the latest expression of-legislative will. In this he may be correct, but the latest expression of legislative will, in order to have the force and effect of law, must be clothed in accordance with constitutional regulations and inhibitions.

Now Act No. 36 is entitled “An act to amend and re-enact section 997 of the Revised Statutes of 1870, in regard to challenges of jurors in trials of criminal cases.” And that section refers to regular jury terms or juries of twelve, and refers to cases where the punishment may be by imprisonment at hard labor for twelve months or more; and it is amended so as to allow to the State six peremptory challenges for each accused on trial; and the amendatory act, in clear language, disclaims any application “ to the trial of cases at other terms than regular jury terms,” for which class of cases ample provision is made in Act No. 35;- and yet in the face of such formal declaration it contains a provision on the subject of peremptory challenges in that very class of cases, and that provision materially differs from the rule laid down in Act No. 35, which from its title and tenor is the very act intended by the Legislature for the regulation of criminal trials at other terms than regular jury terms.

The two provisions are clearly inconsistent, and cannot co-exist— one must be the governing rule to the exclusion of the other. The-provisions contained in section 4 of Act No. 35 are in keeping with „the tenor of the act, and are expressed or covered in the title of the act.

By inserting the provision in Act No. 36, under which, in the identical class of cases, the State is allowed three peremptory challenges for each accused on trial, the Legislature manifestly intended to amend the provision on the same subject-matter in Act 35, under which the State-is allowed only three peremptory challenges and the accused five instead of six.

But that intention or object is not expressed in the title of Act No, '36, and is therefore stricken with nullity by Art. 29 of the Constitution,

The title of the act proposes to amend and re-enact a statute on an entirely different subject-matter, and cannot be stretched under any possible construction to cover an amendment of a different statute, enacted in furtherance of a new constitutional provision, and brought to light two years after the enactment of the amended statute. Our conclusion is, therefore, that the provision in Act No. 36 is absolutely null and void, as though not written at all; and that the court should llave been guided by Act No. 35 in the whole trial on the subject of peremptory challenges. The court therefore erred in allowing the State to use more than three peremptory challenges, and for that reason the sentence must be avoided.

It is, therefore, ordered, adjudged and decreed that the verdict of the jury be set aside and the judgment of the lower court annulled, avoided and reversed, and that this case be remanded to be proceeded with according to law, and to the views herein expressed.

Levy, J., absent.


author: Bermudez, C. J. Todd, J.

text:
    No. 8038.
    State of Louisiana ex rel. Jacob Meyers vs. Board of Liquidation.
    A Motion in this Court, before the case is on trial, to strike out of the Transcript of Appeal documents alleged to have never been offered in evidence, is without precedent and will not be entertained.
    Having obtained judgment from the District Court against the Board of Liquidation, declaring certain State bonds and warrants legal, and ordering the funding of them, under Act Ho. 3 of 1874, and the judgment of the District Court not being appealed from, the [Relator applied for a Mandamus to compel the Board of Liquidation to fund said bonds and warrants and issue in their stead the Consolidated Bonds provided for by law.

      ¿Held that, under Act Ho. 11 of 1875, the Board of Liquidation is to fund bonds or warrants, the legality of which is questioned, only alter said bonds or warrants have been declared legal and valid by the Supreme Court j and, therefore, the judgment of the District Court, though final, is not, under the special provision of said law, binding upon the Board of Liquidation.
    'The [Relator himself, though the judgment of the District Court was in his favor, had the right to bring said judgment up for review by this Court, to meet the express and special requirement of the Statute.
    j^PPEAL from the Fifth District Court, parish of Orleans. Rogers,

      Kennard, Howe & Prentiss for the Relator and Appellant.
    First — [Relator, having obtained on the 28th February, 1879, a final judgment against the Board of Liquidation, under the 3d section of the Act Ho. 3, of 1874, declaring his warrants “ to be legal and valid obligations of the State of Louisiana and fundable under Act Ho. 3, of 1874/’ and directing said Board “ to exchange the said warrants under and in accordance with the provisions of said Act Ho. 3, of 1874, for consolidated bonds under tbe provisions of said act,” and more than one year having elapsed from the rendition of said judgment, and no appeal having ever been taken; and the said Board having on the 7th July, 1880, adopted a resolution to fund said warrants; and having received the said warrants into its possession and destroyed them, and having given the usual receipt for them, which is made part of the petition herein, it was and is its plain duty to deliver the corresponding 60 per centum of bonds to relator.
    ■Second — Under the Articles of.the Code of Practice 829-844, the modern theory of mandamus in the other States of the Union is specially established in Louisiana, to the extent set out in these articles.

      a. The writ is directed to public officers, to compel them to fulfill any of the duties attached to their office, or which may be legally required of them. C. P. 834.
    &. The party who obtains the alternative writ is required to make full prima facie proof of his right by affidavit. He makes " oath of the facts thus alleged.” C. P. 840. The judicial mind acts at once on this proof. The writ is issued, directing the defendant to do the act, or show cause to the contrary. C. P. 841. If he show no cause the writ is-made [peremptory. State ex rel. Marin vs. Judge, Opinion Book Ho. 45, p. 575. If the answer is considered insufficient the writ is made peremptory. C. P. 843.

      c. So far as the answer is concerned, anything in the nature of a general denial is of no avail. The relator being required to make oath to “truth of the facts thus alleged,, has the correlative right to have this oath respected, unless it is shown to be untrue, or that, if true, it does not justify the writ/ Watts vs. Police Jury, 11 An. 141. And this is the plain rule in the other States whence mandamus was derived. Levy vs. English, 4 Ark. 67; Bank vs. Canal Commissioners, 10 Wendell, H. Y. 25.
    Third — In the case at bar the answer or return of the Board contains merely a verv vague general denial, and then a new and substantive defense, which seeks to go behind the matters, which, if they have any existence, were concluded by that judgment. All the allegations of fact, then, in relator’s petition, may be taken as true, and they are fully corroborated, if need be, by the documents, made part of the petition, and those offered • and filed with the exception of res judicata at the trial. Semple vs. Barrow, 2 An. 141 ; Canal Bank vs. MeGloin, 10 An. 241.
    Fourth — On the 16th of July, 1880, at the trial, the relator, with excess of caution, filed the exception oí res judicata to that portion of the respondent’s answer which sought to go-behind a solemn final judgment between the same parties, and set up matters which, even if proved, (and they are not proved), are conclusively presumed to have been concluded by the relator’s judgment of February 28,1879. The exception was plainly a good one, and should have been maintained. Lev. C. C. 2286; Plicque vs. Pqrret, 19 La. 318 j Parker vs. Scrogin, 11 An. 629, 632; Prescott vs. Lewis, 12 An. 197; Baker vs. Frellsen, 32 Am p. 830; Granger vs. Singleton, 32 An. 898.
    Fifth — Even if tbe respondent could he heard to prove the allegations to which the relator’s objection oí res judicata applies, no such proof was offered.
    Sixth — The judge a quo in his written reasons, admits that the respondent should not be permitted to go behind the final judgment of relator. Yet he dismisses the relator’s suit. This was evident error. The judgment in the case at bar should he reversed, and judgment rendered for relator as prayed for.

      J. O. Egan, Attorney General, and H. N. Ogden for Defendant and Appellant.
    " The true object of the writ of mandamus is to enforce a clear legal right by compelling an officer to perform a legal duty, which he has no discretion to decline.” See Dictum of Mr. Justice Howe, in concurring in the decision in State ex rel. Smith & Co. vs. Board of Liquidation of the Floating debt of tbe State, 23d An. p. 390.
    “ The party who applies for a mandamus must show that he has a clear legal right to the re* lief sought, and that he has no other adequate remedy.” 26th Ark. p.482.
    The relator in a mandamus proceeding must make out his case. See recent decision in Hart-well vs. Johnson.
    “ The party who desires to have a judgement, of which he complains, reversed, should have the testimony reduced to writing or a statement of facts made out; otherwise the presumption is that appellees fully made out their case below." Johnson vs. Spearing, 15 La. 232.
    Facts which appear in the record only from a statement in the. opinion of the inferior judge that they were proved, are not i/n evidence. Tbe evidence itself must be produced. See authorities on p. 76 of Honnen, 1st vol.
    A party must not only produce evidence, but see that it is received and noted. James Stafford vs. W. 3?. Harper, Sheriff, and James M. "Weymouth, recently decided.

      Evidence, although in the record, if not offered below will not be noticed, Sargent vs. Slatter, 6th. An, p. 72.
    If documents are to be considered in evidence, merely because they have been annexed as partof a petition, then a party desiring to use as proof documents clearly inadmissible, could secure his end by merely filing them before the trial as part of his petition, the right to object to their introduction would thus be destroyed.
    Act No. 3, of 1874, section 3d, provides that “if any member of said Board of Liquidation shall knowingly audit and fund any illegal claim against the State, he shall be deemed guilty of a misdemeanor, and shall, on conviction, be fined not less than five thousand dollars and be imprisoned not less than two years, at the discretion of the court” — and the supplemental act No. 11, of extra session of 1875, declares that “ the Board of Liquidation, constituted by the second section of act No. 3, approved January 24,1874, entitled an act to provide for funding obligations of the State, by exchange of bonds, etc., is hereby prohibited from issuing any bonds in exchange for outstanding bonds of the State, or warrants drawn previous to the passage of said act by the respective Auditors of Public Accounts of the State on the treasury thereof, forming items of State indebtedness, the legality or validity of which may have been or may be hereafter questioned, until such bonds or warrants shall first by final decree of the Supreme Court of the State of Louisiana, have been declared legal and valid obligations against the State, and that the same were issued in strict conformity to law, and not in violation of the constitution of this State or of the United States, and for a valid consideration.”
    -In the face of such a provision the judgment of an inferior court could never warrant or protect the Board of Liquidation in funding outstanding bonds or warrants, and this court could not order their exchange for consolidated bonds until it had seen and passed upon the warrants themselves.
    ‘There is no evidence in this case to contradict the full and explicit return, and no pretense that the warrants sought to be funded have ever been seen by the Supreme Court.
   On Motion to Strike Out.

The opinion of the Court was delivered by

Bermudez, C. J.

The motion made to strike from the transcript documents which are alleged to have never been offered in evidence, is without precedent, and cannot be entertained at the present stage. "When the case will be on trial on its merits, whatever the same may be, it will be time enough for the mover to call the attention of the Court to their improper insertion, and to object to their being given any effect. We would otherwise be called upon unnecessarily to examine twice cases which should receive our consideration only once, and we would, •therefore, be uselessly and onerously taxed.

It is, therefore, ordered that the motion be declined without prejudice to the right of parties to act as suggested on the trial of the case x>n its merits.

On the Merits.

Todd, J.

The relator alleges substantially that by virtue of a final judgment rendered in the Fifth District Court of the parish of Orleans, in a case entitled “Jacob Meyers vs. Board of Liquidation,” the said board provided to exchange the warrants mentioned in the judgment for consolidated bonds of the State under Act 3 of 1874.

That the board, by resolution, did fund the said warrants and ¡receive them from relator, and then and there cancelled them, and gave to the relator a certificate to that effect annexed to and made part of the petition.

It was further alleged that the relator was entitled to receive the ■consolidated bonds under said acts, and that it was the duty of the 'board to deliver them, but that the board refused to deliver them, and •declared that it would not do so. Whereupon a mandamus was prayed for to compel the board to perform this alleged duty.

The return or answer made by the board is substantially to the following effect:

It denied that the bonds in question were legal and valid obligations ■of the State, but averred, on the contrary, that they were illegal, unconstitutional and void, and had been so declared by the highest judicial tribunal of the State. It was further denied that the relal or had any final judgment requiring the Board of Liquidators to fund said warrants, and averred that such final judgment could only be rendered by the Supreme Court of the State; and that such judgment of the Supreme Court establishing the validity of such warrants was an essential prerequisite to their funding.

The court a qua refused the mandamus, and the relator has appealed.

There has been a question raised as to the sufficiency of the evidence in the record to authorize a review of the ease by this Court; and there is an issue between the parties, extensively discussed, as to what is or is not in evidence. From the conclusion we have reached touching the merits of the controversy, we deem it unnecessary to decide this question.

■The Board of Liquidation was established by Act No. 3 of 1874, commonly known as the “ Funding Act.” It was through this board that the bonded debt of the State was to be consolidated, and the holders of the bonds or warrants were required to present them to this board for examination and exchange.

Section third of this act provided, that “if any member of said Board of Liquidation shall knowingly audit and fund any illegal obligation against the State he shall be guilty of a misdemeanor and shall, on conviction, be fined not less than five thousand dollars, and be imprisoned not less than two years, at the discretion of the court.”

Act 11 of the extra session of 1875, supplemental to Act 3 of 1874, in its first section provides:

“ That the Board of Liquidation constituted by the second section of Act No. 3, approved January 4, 1874 entitled an act for funding obligations of the State by exchange for bonds, etc., is hereby prohibited from issuing any bonds in exchange for any outstanding bonds of the State, or warrants drawn previous to the passage of said act by the respective Auditors of Public Accounts of the State on the treasury 'thereof, forming items of State indebtedness, the legality or validity of which may have been, or may be hereafter questioned, until said bonds or warrants shall first, by final decree of the Supreme Court of Louisiana, have been delared legal and valid obligations against the State of Louisiana, and that the same were issued in strict conformity to law, and not in violation of the Constitution of this State or of the United States, and for a valid consideration.”

In the case of the State ex rel. Forstall vs. Board of Liquidation, where the construction of this last act was before the Court and the required judgment on the bonds not rendered, the Court said that the board “ had the right to refuse to fund any and all bonds and warrants. Its duty is to refuse to fund all that come to them tainted, without regard to the fact whether they are in the questioned list or not.” The questioned list mentioned being the list of bonds and warrants that by the second section of the Act of 1875 are specially designated and declared “ questioned and doubtful as to their legality and validity.”

The object and intent of the act seems manifest. It was to afford the surest protection to the State against outstanding invalid or fraudulent obligations, many of them known to have been issued in times of misrule and maladministration of our State officers, by requiring that their validity should be recognized and declared by the highest judicial tribunal of the State, and at the same time protect the holders of bonds and warrants of the State against any unjust exclusion of the claims by the board.

But what is meant by the words “ that may have or may be hereafter questioned ” employed in the Act of 1875 ? By the terms of the Act of 1874 establishing-the Board of Liquidation, it was required to exchange the, bonds to be prepared under the provisions of the act “ only for valid outstanding bonds of the State and valid warrants drawn previous to the passage of the act; ” and the members of the board were declared guilty of a crime, and subjected to heavy fine and imprisonment, if they funded any other kind of bonds or warrants except valid ones.

This looks like investing the board with a very large discretion touching the character of the bonds that might be presented to them for funding, and conferring on them, in no stinted measure, the right to “question” such bonds which, in its judgment, did not meet the requirements of the act.

The Board of Liquidation in this case did question the validity of the relator’s warrants, and took a very summary and effective way to make its questioning felt, and it is its acts, in this respect, that are complained of by the relator in this proceeding. And the answer or return to the mandamus, in which the validity of these warrants is so vigorously assailed, was made by the then Attorney General, the highest law officer of the State. It seems, therefore, that these warrants have been " questioned,” and seriously questioned, by very high authority, and, we think, by competent authority, and in a manner to meet and satisfy the requirements of the law. Nor does the act prescribe the time within which such bonds or warrants may be questioned. Its language, in this respect, is of the broadest description, and allows an indefinite term for contesting their validity. The counsel for the relator, however, contends that the judgment of the District Oourt, upon which his proceeding is based, is conclusive as to his right to have the warrants funded and exchanged, inasmuch as the judgment was not appealed from, and the delays for an appeal had expired, and urges that the judgment is, therefore, final, and has the force of res adjudicata. We think otherwise. It is only to a judgment rendered in a proper suit by a court clothed with complete jurisdiction over the subject matter thereof, between the proper parties, and after regular proceedings, that the force of the " thing adjudged ” can be ascribed where the lapse of time required therefor has made it final.

Do these requisites concur with respect to this judgment 1 By the express terms of the act, bonds and warrants “ questioned ” may be funded, but it is only after a final decree'of the Supreme. Court has pronounced them legal and valid obligations, “ issued in strict conformity to law, and for a valid consideration.” This is the prescribed authority to the board, and the only authority that is sufficient to empower it to fund the bonds or warrants in such contingency. By language the most explicit, and which cannot be misunderstood, such decree is made a prerequisite, a sine qua non to any action of the board looking to the funding or exchange of such obligations.

The effect of a decree of any other court, a District Court for instance, ordering the funding of such warrants, is not to be judged according to rules applicable to ordinary cases. The State cannot, as a rule, be sued in her own tribunals. No one has a legal right to prosecute or enforce a claim against the State except by her permission, and in the manner she may prescribe. The establishment of the Board of Liquidation for the purpose of determining the liability of the State, and adjusting demands against her, and the investing the board with the necessary authority to determine and fix her obligations, was an act of grace on the part of the State towards her creditors. So, too, was the privilege given them to prosecute their demands against the State by proceedings in her highest judicial tribunal. The State in her sovereign capacity had the power to prescribe the manner of the proceeding, and to designate the Court whose decree should be respected, and whose authority should be acknowledged as paramount and controlling over the subject, with respect to which her power was exercised and permission granted. And she has done so. And the State having thus determined and declared her will through her legislative department, the privilege conceded could be exercised in no other way than that prescribed, and the end in view reached through no other tribunal than that designated and appointed.

It is not for us to say how the proceedings should be conducted and how the required decrees be obtained in all cases. The relator’s counsel may think that it would be a very irregular and novel proceeding for him to bring a case before the Supreme Court from a judgment in his favor in the court of the first instance. We reply, “ita soripta est less.” We fail, however, to perceive any insurmountable obstacle in the way of obtaining a decree of this Court, even where a favorable judgment has been rendered by an inferior court, and why, in such case the proceeeding could not be transmitted to this Court to meet the express and special requirement of the statute in a manner conformable to the letter and spirit of the act. The question relating to the mode of procedure is, however, not now before us. It is sufficient to say that the right to bring the judgment up for review by this Court, even by the party in whose favor rendered, existed; and in a proper case would have been enforced.

The warrants of the relator having been questioned as to their validity, and the same not having been declared legal and valid obligations of the State by a final decree of this Court, we cannot grant the relief sought and compel the Board of Liquidation to exchange them for consolidated bonds, as provided by the act invoked; but we reserve all the rights of the relators otherwise.

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

Levy, ¿T., absent.


text:
    No. 8040.
    Eugene Chretien vs. Benjamin Poincy.
    •Oil the last day for applying for an extension of time to file the Transcript, the Appellant filed his application in the Clerk’s office, the Court not being in session. Rive days after, the Court being in session, granted the time asked for. Held that this time is to be computed from the day the application -was filed in the Clerk’s office.
    APPEAL from the Civil District Court, transferred from the Third District Court, parish of Orleans. Mónroe, J.

      Paul JE. Théard and Geo. EC. Théard for Plaintiff and Appellee.
    First — That the transcript of appeal was filed, too late, no days of grace being allowed after an extension of the return-day. Cane vs. Caldwell & Kahn, 28 A. 790; Beckmver vs. Eckelman, decided in May, 1879, by this Honorable Court, but not reported — Opinion Book No. 53, f. 193.
    '■Seoond — That in order to obtain a second extension of time, the appellant must apply to the oourt on or before the last day. On, when the oourt happens to be in session; before, when the appellant is aware that there will be no session of the Court ou the.last extension day. Same authorities j Bien venue vs. Factors, 28 A, 901 $ Sun vs. Bynum, 32 A. 28,
    Third — That when appellant has filed a motion for extension during recess of the court, the new extension runs from the day of the filing of the motion, and not from the day when the motion was entertained by the court aud spread on the minutes; otherwise there would be an interval during which no extension at all would exist.

      Bioliardson & Magruder for Defendant and Appellant.
    Where a devolutive appeal was made returnable on the first Monday of November, and an • extension of time was granted to the Gfchof December, anon-judicial day, and an application was filed for a further extension in the clerk’s office, on the 6th, that return day, and ¡the motion made in open court, on the first day of the next sitting of oourt, and granted, ‘that, if it appears that no fault was imputable to the appellant, and the appeal is devolu,tive and appellant would he entitled to another appeal, the order granting extension of ¡time will not be set aside on a motion to dismiss the appeal on the ground that the transcript was filed too late.
   Motion to Dismiss.

The opinion of the Court was delivered by

Poché, J.

Appellee moves to dismiss this appeal on the ground •that the transcript was filed too late.

The appeal was made returnable on the first Monday of November last, 1880.

On the 3d of November, within proper time, and on proper showing, appellant obtained an extension of time to the first Monday of Decern-' ber following for filing his transcript. On the day on which this delay expired, the Court being not in session, appellant filed in the clerk’s office a motion for a further extension of time of thirty days, on which ¡motion the Oourt ruled at the next court day, the 13th of December, and allowed an extension of fifteen days. On the 24th of December,, appellant applied for a further extension of fifteen days, on which motion the Court acted on the 27th of December, by granting a further extension of fifteen days, and the transcript was .finally filed on the 7 thof January inst., whereupon appellee moved for the dismissal on the-10th, within the legal delays.

The only question presented for solution is as to the date from which must be computed the extension of time applied for on the 6th,. and granted on the 13th of December.

Appellant contends with confidence that the time must be computed from the thirteenth, and did not, therefore, expire before the 28th. If his reasoning be correct, and he cannot deny that the limit of his first extension was on the 6th, we are at a loss to conceive what disposition he expects us to make of the intervening week between these two dates. Either he obtained a renewal of extension to take effect from the 6th, on which his first extension expired, or he did not; if he did, then the renewed delay must have expired on the 21st following, fifteen days thereafter, and his application of the 24th came too late. If he did not obtain’ a renewal on that day, or to take effect at least from that day, then his extension obtained on the 3d of November up to the first Monday of December, had expired, when he renewed it as he contends, on the 13th of December, in which case our order of that date was inadvertently granted, and was a nullity.

Our version is that his application filed with the clerk on the. 6th of December, while the Court was not in session, was seasonably made, and justified our order granted on the next court day, the 13th, and that the effect of the order retroacted to the day on which the application had been made, and that the delay therein expired on the 21st. 31 A. 162.

It therefore follows that the application made on the 24th, and granted on the 27th'of December, came too late, and that our order of that date was inadvertently granted, and is an absolute nullity. See-cases Succession of Kuntz & Lacroix vs. Bonin, recently decided, and not yet reported.

The Court can grant no valid order in contravention of law, and when surprised as in this case, into an error of computation of time, will rescind its own orders without special motion to that effect.

In making such motions, attorneys must be careful to be within the plain requisites of the law, or else they will eventually be deprived of any relief whieh may be granted inadventently.

It is, therefore, ordered that this appeal be dismissed at appellant’s costs.


author: Fenner, J.

text:
    No. 8129.
    State of Louisiana ex rel. Edward Sigur vs. Judge 19th Judicial District Court, Parish of St. Mary.
    7The order of court dissolving an injunction on bond, may work an irreparable injury and is appealable, when tbe act enjoiñed, as alleged, amounts to a trespass, and tbe effect oft dissolving tbe injunction'would be to change tbe possession oft immovable property. Affirming previous decisions.
    ApPLICATION for Writ of Mandamus.
    D. Caffrey for the Relator.
    Where the effect of an order dissolving an inj auction is to deprive the owner of land, or one claiming to be owner, of its possession, pendente lite, the order is appealable from. 11 An. 59; 14 An; 847; Ifr. 57; 22 An. 512; 24 An. 154; 30 An. 970; O. P. 307

      F. S. Goode, judge, etc., Respondent, propria persona.

   The opinion of the Court was delivered by

Fenner, J.

The police jury of the parish of St. Mary having traced and laid out a public road across and over the plantation of relator in accordance with the provisions of Sec. 3369 Rev. Statutes, the relator, as authorized by section 3370 Rev. Statutes, appealed to the District Court for the parish by petition, and applied for and obtained a writ of ■injunction staying proceedings and prohibiting the police jury from entering upon his lands for the purpose of opening and constructing the .proposed road.

He averred that there was already a good and sufficient public road •along the lower boundary of his plantation, which had existed and been used by the public without complaint for over a quarter of a century; -that he contributed one-half the land over which said road runs; that he has erected his dwelling house, sugar house, buildings, orchards, etc., and has located his fields and pasture with reference to said road; that if the proposed road be run through his enclosures, he would be compelled -to erect fences-and gates along the same to protect his fields from invasion by stock, etc.; and that the time allowed under the notice given would be too short to enable him to protect his growing crops.

He denies the necessity of the road and the right of the police jury >to open it through his plantation. He averred that the opening of the road would work him irreparable damage and injury. The injunction -was granted as prayed for.

Thereafter the police jury applied to the court to dissolve the injunction on bond under article 307 C. P., and the Court ordered the "dissolution.

Relator, averring that the dissolving order was erroneously granted' and worked him an irreparable injury, applied for a suspensive appeal to this Court, which the judge refused.

The relator applies, In the present proceeding, for a writ of mandamus commanding the judge to grant the suspensive appeal as prayed for. ■

The judge answers that he granted the dissolving order, because after careful examination, he considered that the act prohibited could: not work an irreparable injury to relator; that, inasmuch as appeals-from interlocutory judgments are only allowed when such judgments; would work an irreparable injury, and as in granting his dissolving order he had decided that there was no such injury, he naturally denied the appeal therefrom.

He basis his action upon our recent decision in the case of C. C.. Slaughterhouse Co. vs. the Police Jury of the parish of Jefferson, and on Jure vs. Municipality, 2 A. 321.

We find nothing in either of those decisions inconsistent with the-well-settled principle that “ when the acts complained of amount to a trespass, and, the effect of dissolving the injunction would be to change-the possession of immovable property, the injury is irreparable.”

Marion vs. Johnson, 22 A. 512.

Boedicker vs. East, 24 A. 154.

The law jealously guards the owner’s possession of immovable-property, and restrains and even punishes as a crime, all unauthorized-interference with it. Disturbance of such possession, no matter under what color or claim of right, is not permitted in the case of individuals, under any circumstances, in advance of judicial determination of the right made in pursuance of -prescribed forms of action.

The conceded right of- eminent domain invests the sovereignty with the power of disturbing and divesting possession in a more summary-manner; but in delegating to subordinate agents the privilege of exercising this sovereign right, the State has imposed upon them certain, restrictions and conditions with which they must absolutely conform.. When they are acting in violation of those restrictions, they lose the • protection of the sovereign authority, and their invasions of private-property, are, in such cases, as much trespasses as if committed by private individuals.

In conceding to police juries the right of opening roads, the State-has made careful provision to protect the rights of private persons by requiring them to be laid out “as little as may be to the prejudice of" inelosures,” and also by directing a proper assessment of the damage which any party may sustain. Rev. S. § 3369.

It is "further provided that whenever any individual through whose-land a road laid out may pass, is dissatisfied, either with the course the road is to take, or with the damages assessed to him, he may have an appeal to the District Court, and, when the case requires the same, may have an injunction to stay proceedings.

Relator has availed himself of these rights. He complains of the course which the road is to take as being unnecessarily and wantonly to the prejudice of his inclosures, and inflicting upon him an irreparable injury.

The controversy between him and the police jury is whether the latter has the legal right to construct the road through his plantation in the course proposed. He is in possession as owner of the ground over which the road is to run. Under the allegations of his petition, which must be taken as true, and on which the injunction issued, the police jury is without right to disturb his possession, and would commit a trespass in doing so. The effect of dissolving the injunction is to authorize the commission of this trespass, and to change the possession of the immovable property. Such acts, under the jurisprudence of this Court, work an irreparable injury. The adverse possession during the pendency of the proceedings is inconsistent with the absolute right of relator as claimed on the face of his petition, and cannot be permitted prior to final adjudication, because it is impossible to restore the obliterated possession during the period in which he has been deprived of it. The question of damages is a separate and subordinate one already fully protected by the law itself, which makes them a charge upon the parish treasury independent of any bond.

It is, therefore, ordered that the mandamus issued herein be made peremptory.


author: Levy, J.

text:
    No. 8090.
    State of Louisiana vs. Walter Russell et al.
    An accomplice of the accused is a competent witness for the State even when he has pleaded guilty, if he has not yet been sentenced, and if he and the accused against whom ho testifies, are tried separately.
    The accused may be legally convicted on the uncorroborated testimony of the accomplice, because the jury is sole judge of his credibility.
    The accused having gone to trial without objection, cannot, after conviction, object to the time when the copy of the indictment and list of the jury were delivered to him.
    It is not necessary to make a separate conclusion, in each case, in a single count, in an indictment.
    The concise endorsement of the character of the offense upon an information or indictment is for convenience only and forms no part of the substance of the charge, and cannot be objected to by tbe accused.
    APPEAL from the Third Judicial District Court, parish of Union. Graham, J.

      J. O. Egan, Attorney General, for the State, Appellee.
    First — It is not necessary to make a separate conclusion in eaok oase in a single count in an indictment. Bishop on Crim. Procedure, vol. 2, p. 5; note.
    Second — When the information commences with the words “in the name and by the authority of the State of Louisiana/’ etc., all acts and charges therein contained are in the name and by the authority of the State of Louisiana.
    Third — The inscription on an indictment does not affect the accusation contained in the body of the instrument. 12 A. 743.
    Fourth — The testimony of an accomplice need not be corroborated to give the jury the power to find a verdict of guilty. The jury are the sole judges of the evidence. Greenleaf, vol. I, sec. 280; 25 A. 522; 1 Denio, 86; Wharton, vol. 1, sec. 763; 2 Barb, 216; 1 IN'. Y. 379.
    Fifth — The accused waived those rights which are created in his interest and for his benefit, when he proceeds to trial without objecting. 6 A. 690; 12 A. 679; 14 A. 667.

      J. A. Ramsey for Defendant and Appellant.
    First — A party already indicted for a felony is not a competent witness to testify for the State, against an accomplice in said felony, when it appears that the party sought to he introduced as a witness, is the principal offender. Greenleaf, 1st vol. § 379; Starkie, 1st vol. § 379.
    Second — In prosecutions for the crime of beiDg accessory before the fact of a felony, the principal in said felony is not a competent witness against the accessory, for the reason that the said principal is necessarily guilty in order that there should be an accessory to his crime, and being necessarily guilty under the law of a felony, he is bound to be infamous, and, therefore, incompetent as a witness. Greenleaf, 1st vol. § 372.
    Third — When a party is being tried for tbe crime of being accessory before the fact of burglary and grand larceny, and the principal who committed said crime is permitted to testify against the accessory, it is the duty of the presiding judge in his charge to advise the jury not to convict the defendant upon the testimony of the principal alone, and that il they believed that there was no evidence introduced on the trial corroborating the testimony of said principal, they ought not to convict upon his evidence alone. Greenleaf, 1st vol. § 380; Starkie, 1st vol. § 380; Wharton, 1st Vol. § 789.
    Fourth — When a party is on trial for being accessory before the fact of burglary and grand larceny, evidence is inadmissible to show that the accused bad committed the crime of burglary, or that the accused was present aiding and abettiDg the principal in the commission of said offense.
    Fifth — An accused charged with being accessory before tbe fact of burglary and grand larceny, is entitled to have a copy of the indictment against him and a list of the jury summoned to try him served upon him two entire days before his trial, unless he waives that right. B. S. Sec. 992; 3 A. 51.
    Sixth — In indictments against accessories before the fact, the charge against the principal should ho as full, complete and explicit, as if the principal alone was concerned and upon trial. Bishop on Crim. Procedure, vol. 2, § 8.
   The opinion of the Court was delivered by

Levy, J.

The defendant, Walter Russell, was found guilty, by a jury, of the crime of being accessory before the fact to burglary and larceny, and sentenced to the term of three years imprisonment at hard labor in the State Penitentiary. From this sentence and judgment he has appealed.

The bills of exception filed embrace, substantially, the grounds set ■forth in the motions for new trial and in arrest of judgment, on which the defendant relies in his appeal.

The first bill is taken to the competency of the witness Bradley, who testified on the part of the prosecution, because the said Bradley, who was indicted, in a separate indictment, as principal, and had plead guilty, but had not yet been sentenced, is alleged to be incompetent to testify in the case against defendant, who is indicted as accessory before the fact to the same alleged crime, and “ an accomplice who is charged as principal in a felony is not competent to testify against an accomplice in the same felony, whether that accomplice is charged with being ac-cessory before and after the fact, or with being principal in first or ■second degree;” and the said Bradley “ having been legally indicted, and having plead guilty to the indictment, is thereby infamous and in■competent to testify in any case.” The judge a quo, in his reasons given •for admitting the testimony of this witness, says: “ The defendant Russell and witness Bradley were not being tried together, but on separate •indictments. Bradley had plead guilty to the charge of burglary and 'larceny, but had not been sentenced by the court, and, under the law, he is not considered infamous until sentenced, and, therefore, was comipetent as a witness. The law permits accomplices not indicted together to testify for or against each other. See Wharton, vol. 1, p. 763, et seq."

The second bill of exceptions was taken to the refusal of the judge to •charge, as requested by defendant’s counsel, that they ought not to render a verdict of guilty on the evidence of Bradley, an accomplice, •alone, and that “ the testimony of a principal in a felony who has pleaded ■guilty of said felony is not sufficient, uncorroborated and 'alone, to justify a jury in convicting an accessory before the fact of said felony.”

The third bill was taken to the admission of testimony offered by the State proving that the accused was, at the time witness was committing the burglary and larceny, just outside the store watching for •the witness while the witness was committing the act; and this evidence •was objected to on the ground that it did not correspond with the charge against the defendant. These objections were overruled by the judge ■a quo for the following reasons: “That it was competent to show that the accused, previous to the time at which it was charged that, he “ counseled, abetted and commended ” the burglary and larceny, had himself ¡attempted to commit the crime and had failed, for the purpose of showing a circumstance rendering the present charge against him probable. 'The evidence was not offered to show his guilt of an offense not charged against him, but to show a circumstance going to show his guilt of the ■crime that was charged against him. The proof that one remained outside and was not present aiding in the larceny is admissible to show accessorial guilt.”

We do not think there was error in the rulings of the court to which these exceptions were taken.

On the subject of the testimony of accomplices the authorities, to-our mind, not only authorize its introduction, but justify conviction by the jury on such testimony although it may not be corroborated by other. Archbold, Crim. Practice and Pleading, vol 1, pp. 500, 501, 502, 503; 2 McLean, 431; 2 Paine C. C. Rep. 161; Porter (Ind.) Rep. 326: 3 McLean, 224; 2 Martin N. S. 466. In Louisiana, this Court held in State vs. Prudhomme, 25 A. 522, that: “We have already said that the accomplice was a competent witness for the State until he had been convicted and sentenced, if the party against whom the accomplice is offered as a-witness be put upon his separate trial. The circumstance of the witness being an accomplice of the party on trial affects his credibility only, of which the jury are to judge;” also: “The judge correctly charged that a jury may convict on the uncorroborated testimony of an accomplice; that they are the judges of his credibility, and that the rule requiring the judge to charge the jury that the testimony of an accomplice needs confirmation, is rather a rule of practice than a rule of law.”' And again: “ The rule requiring corroboration is a rule not of law but of general and useful practice, the application of which is for the discretion of the judge by whom the case is tried; and in its application much depends on the nature .of the offense and the extent of the witness’s complicity.” Fisher’s Digest, 563, etc.

The grounds, other than those contained in the bills of exception,, on which defendant seeks a reversal of the judgment, are set forth in the motions for new trial and in arrest of judgment, and are, first, that “ no copy of the indictment in this case or list of the jury drawn to try this case was delivered to the defendant two entire days before the trial,, as the law directs.” Second, that there is not a sufficient charge in the-bill of information setting forth that the offense of the principal was-done “ contrary to the form of the statute,” etc.; and the endorsement on the bill does not sufficiently show the offense with which the defendant, Bussell, is charged.

When the accused goes to trial without objection, it will be too late-after conviction to urge, as error, that he had not been served with a copy of the indictment and a list of the jurors who were to try him. 12 A. 679 ; 6 A. 693. In 14 A. 667, State vs. Fuller, it was held that “ the objection, that a copy of the venire and indictment were not served on him two entire days before he was tried, however good it may be when urged before going to trial, loses its efficacy when the party seeks to avail himself of it after verdict rendered in the case. This right is waived when not claimed before trial.” See authorities cited in that case.

It is not necessary to make a separate conclusion in each case in a single count in an indictment. Bish. Crim. Pro. vol. 2, p. 5. In this case the conclusion of each count “against the form of the statute, etc.,” was sufficient, and embraced and was applicable to the allegations contained in such count; and the information commencing with the words “in the name and by the authority of the State of Louisiana,”' was sufficient, and embraced all the charges contained in the bill.

“ The concise endorsement of the character of the offense upon an information or indictment is for convenience only, and forms no part of the substance of the charge.” “ The prisoner is never called to answer to the condensed title of a bill or information. He is arraigned and tried upon the bill or information itself.” 12 A. 743.

The judgment of the lower court is affirmed with costs.


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

text:
    No. 7755.
    Henry Bacas vs. Thomas Smith.
    This Court will dismiss the Appeal ax officio when there is no copy of the judgment appealed’ from, in tbe Transcript.
    "When tbe Appellant goes to trial on an insufficient Transcript, without suggesting a diminution of tbe record, and the Appeal is, therefore, dismissed, be shall not be permitted,, after tbe judgment of dismissal, to complete tbe Transcript.
    A rehearing will not be granted in such a case.
    Tbe right of parties before this Court, under agreement of Counsel, to supply tbe deficiency of tbe Transcript, must be exercised before and possibly during submission, but surely not after judgment•

    ^PPEAL from the Fifth District Court, parish of Orleans. Rogers,.

      F. Michinard for Plaintiff and Appellant.

      F. W. Balter, J. P. PLornor and W. 8. Benedict for Defendants and Appellees.
   The opinion of the Court was delivered by

Bermudez, C. J.

We are asked by the plaintiff to reverse the judgment, which he states was rendered against him by the lower court, and to render judgment in his favor according to the prayer of his petition..

On the other hand, the defendants ask the affirmance of the judgment complained of by the plaintiff.

We have diligently searched the transcript to find what the judgment is, which we are asked either to reverse or to affirm, and which we might have amended, but have been unable to discover any trace of it.

This Court has, in many instances, dismissed appeals ex officio, when, a final judgment found in the transcript did not appear to have been signed by the judge a quo, treating it as inchoate. 17 An. 97; 7 L. 513; 20 An. 394, 500, 511, 583; 21 An. 261; 28 An. 26; 23 An. 219; 22 An. 410; 25 An. 7; 23 An. 400, 262; 4 R. 47; 7 R. 451; 9 An. 42; 27 An. 665.

What different course can be pursued in a case in which no judgment •at all is to be found in the transcript?

How can we be asked to review that which it is impossible for- us to view ?

We cannot reverse, affirm, or amend a judgment blindly and unintelligently.

We are, therefore, constrained to apply the maxim: De non appa:rentibus et non existentibus eadem est lex.

It is, therefore, ordered that the appeal in this case be • dismissed with costs.

On Application for a Rehearing.

Bermudez, C. J.

The appeal in this case was dismissed on our own motion, no copy of the judgment complained of being found in the transcript.

Since the dismissal the appellant has filed a motion to produce a ■copy of the wanting judgment, and under an order thereon, what purports to be a copy of that judgment was annexed to the transcript. Had the motion been more distinctly stated, and had the Court better understood its object, the order would not have been made. Having been inadvertently granted, the document sought to be produced must be considered as though not before us at all, and the transcript must be deemed as it stood previously

The plaintiff has applied for a rehearing., He contends:

That the omission is attributable to the clerk; that under the agreement in the transcript he has the right to complete the same at any time, and that both parties ignored the omission.

We will consider those grounds simultaneously. The omission is not imputable to the clerk. It is true that he did not make the transcript as it was his duty to prepare it, but for that he is not blamable. He made and certified it in accordance with the agreement of parties, which is in these words:

“ It is agreed that this case be tried upon this transcript, reserving to either party the right to bring up any other portion of the record not copied hereiD, and which may be found necessary hereafter at the expense of appellant.”

By this agreement it is clear that knowing the transcript to be defective the parties reserved the right of completing it for the purpose of a decision; but this right was to be exercised up to the time of submission, possibly even during submission, but surely not after judgment.

Parties may agree to submit a case for determination on an incomplete transcript if they choose; but that they do, at their risk and peril. They cannot require this Court to pass upon a case on a defective transcript, known to them to be such, as though it was complete, when it does not contain even the judgment appealed from, which is sought to be affirmed or reversed, or amended, as the case may be, and be permitted, afterwards, to throw the blame of the incompleteness on the clerk, charge error upon the Court, put ex parte in the record the omitted portions, and insist upon a rehearing and a new judgment.

' A rehearing can be asked and allowed only where the Court has erred.

How can it be claimed that this Court has erred in dismissing the appeal in this case, when the judgment complained of on one side and insisted upon on the 'other, and which was the corpus upon which its action was asked, was not in the transcript, which is the only record which the Court can consider ?

It was the duty of the appellant to see that the defective transcript contained all the elements necessary for a revision of the judgment against him, as he controlled the clerk in the preparation of the transcript. He had no -right to presume that the clerk had made a full transcript when he had himself given directions to the contrary.

The plaintiff and appellant says in his brief on the application for a rehearing, that both parties are now, in the fairest spirit, seeking the solution of an important controversy; but we nowhere discover the' consent of the defendants and appellees to set aside_ the decree of this Court to reinstate and try the case with the alleged copy of judgment appended as part of the record. .

A defective trancript can always be perfected upon seasonable application, 15 A. 717; but if a diminution of record be not suggested at the proper time, the appeal will be dismissed. 7 An. 442; 8 An. 439.

When an important document (and a judgment appealed from surely is such), should have been copied in the transcript in accordance with agreement of parties, but was not, an appellant who, without suggesting any diminution, thinks fit to go to trial on an incomplete record, can derive no benefit from the omission. He cannot profit by his wrong to have the judgment reversed to the prejudice of appellee. 10 An. 767; 18 An. 229; 8 An. 433; 11 An. 72; 14 An. 67; 16 An. 40; 18 An. 229, 232; 27 An. 68.

We know of no instance in which an appellant even asked, after a judgment of dismissal, for authority to complete a defective transcript, the incompleteness of which is his act, and was the basis of- the decree.

We cannot permit ourselves to be influenced by the unauthorized production and filing of the copy of judgment which was wanting in the transcript when our decree was rendered, and which has not since, -either with the consent of the appellees or our legal sanction, become a component part of it. 2 R. 37; 5 An. 389; 25 An. 509.

This Court will not allow itself to be asked to set aside a decree of ■dismissal which was correctly made against an appellant when it might not have been rendered had the appellant not placed himself voluntarily ¡in default.

Rehearing refused.


text:
    No. 6687.
    W. J. McCall, Administrator, vs. Merchants’ Insurance Company.
    The burden, of proving seasonable and proper notice of the loss .by fire, under the terms of the policy of insurance, or valid reasons for not giving such notice, is upon the insured.
    ^PPEAL from the Sixth District Court, parish of Orleans. Bightor,

      J. O. Nixon, Jr., for Plaintiff and Appellee.
    Tlrst — The law does nob favor forfeitures, but leans strenuously towards holding insulano* companies to the payment of legitimate losses.
    ¡Second — “ When notice of loss is required to be giran forthwith, or at once, these terms are not to be construed with absolute strictness, so as to require a literal compliance, but, reasonably, in view of tbe loss, and the circumstances surrounding it." Wood on Insurance, § 412, 693. See, also, § 414; May on Insurance, 565.
    Third_When the insured, immediately after the fire, was wrongfully arrested and imprisoned for arson, and prosecuted and brought to trial, these oircumsfcances will excuse, pending such proceedings, delay in furnishing notice, or proof of loss under the policy.
    [Fourth — 'When delay complained of has been caused or contributed to by the insurer, it is estopped from setting it up. “ In other words, the insurers will not be allowed to insist upon a deficiency, which they have contributed to produce." May on Insurance, § 469 ■p. 574.
    Tilth- — Where the individual interests of the agent become such that they do, or mayconfliot with those of his principal, he loses the right of representing the latter in matters where euoh conflict may or does exist. Story on Agency, § 219.
    Sixth —“ There would seem to be no doubt, that whenever tne insurer has done or said that whioh is oaloulated to mislead the insured, or iuduce him to believe that proofs of loss would be of no avail, and are not required, suoh acts operate as a waiver, etc." Wood on Ins., $ 419, p. 724.
    .Seventh — Where the property insured belonged to a community, both spouses being dead and represented by an administrator, and the property is insured in the name of the husband’s estate alone, this is sufficient, and the applicant need not disclose the residuary interest ■of the wife, unless specially interrogated upon that subject. 17 La. 238; 12 An. 222; 21 An. 486; 23 An. 424 ; 25 An. 380; 26 An. 294; 26 An. 230; 26 An. 391.
    [Eighth — When the insured at the time of making application for the policy explained fully the character of his title to the clerk of the insurer, who fills out the application and declines or neglects to include some of the statements in the application, upon the ground that it is unnecessary, the insurer is estopped from setting up the omission as a forfeiture of the insurance. Insurance Co. vs. Wilkinson, 13 Wallace, 323; May on Ins., p. 610* Wood on Ins., pp. 277, 278.

      Miller, Finney & Miller for Defendant and Appellant.
    The assured forfeits his rights under .the policy if he fails to comply with its condition requiring notice and proofs of his loss to be furnished forthwith.
    First — “Forthwith ” means a reasonable time.
    •Second — To constitute a waiver of the condition, there must be some act done by the assured clearly evincing that waiver.
    Third — The pendency of a prosecution against the assured for arson, charged to have been committed with respect to the property insured, does not dispense or excuse the noncompliance with the condition of the policy.
    Fourth — A policy in favor of the estate of J. O. M. covers only the one half of the deceased on the community property, when his wife had died before him and before the taking out of the policy, leaving heirs.
    Fifth — property thus held by the heirs of the deceased wife, and the estate of the husband in equal portions, is misdescribed in an application for insurance, as property of the estate of the husband, and misdescription avoids the policy.

      Thomas H. Kennedy on same side.
    First- Policy void, ab initio, because containing no mention of the interest of Mrs. McCall's succession. See condition 16, Pec. p. 17.
    ^Second — Interested, uncorroborated, testimony of plaintiff incompetent ; if not incompetent, insufficient to vary and expand the contract so as to embrace interest of Mrs. McCall’s estate.
    'Third — Plaintiff without remedy, except by action to reform policy. In suoh an action, with such testimony, he would fail; he must fail here.
    .Fourth — His testimony here, if competent and entirely reliable, could only save the contract, as made, from forfeiture by reason of concealment.
    Fifth — The contract, as made, covers only the interest of J. O. McCall’s estate, equal to one-half the amount insured. If not void ab initio, nor forfeited by subsequent events, it belongs jointly and equally to plaintiff and his brother Thomas, unconditional heirs in possession of Mr. McCall’s estate. Unempowered to represent Thomas, plaintiff can recover, at best, only one fourth of the whole amount insured, with interest from judicial demand. Condition 15, Pec. p. 17.
    Note — The question “whose agent was, ‘ clerk,’ in writing application,’’ involved in the foregoing, is discussed in the brief.
    .Sixth — Policy, if originally good for whole amount, forfeited by failure to comply with essential conditions precedent to give notice of loss “ forthwith,” and furnish proof and nearest magistrate’s certificate “ as soon after loss as possible.” Condition 8, Pec. p. 14.
    •Seventh — In the petition, no averments of excuses for untimely notice of loss, or untimely proofs of loss; in the evidence, no sufficient showing of excuses for either.
   The opinion of the Court was delivered by

Bermudez, C. J.

On the 14th of April, 1873, the defendant issued to the plaintiff, in his official capacity, on payment of the premium, a policy of insurance for $6300 on buildings belonging to the estate, which he was administering.

On the 25th of May following, a fire broke out in. the buildings, which resulted in a total destruction and loss.

On the 21st of May following (1874) nearly a year after the occurrence, the plaintiff, alleging a state of facts disclosing a right of- action, ■sued the company for the amount of the insurance.

The defense is the general issue; the discharge of the company by the failure of the plaintiff to give the notice and furnish the proof of loss required by the terms of the policy; deception on the part of plaintiff in this, that only one half of the property insured belonged to the succession of J. O. McCall, and the limit, in any event, of the liability of the company to that half.

The reply is, that the plaintiff was prevented by the contributory acts of the defendant from gi ving the notice and proving the loss seasonably; that the company had sufficient knowledge; that the policy covered, under the verbal' understanding at the time, and without it, under the law, the interest of the successions of both, husband and wife, in the property insured.

There was j udgment for the.plaintiff, and the defendant has appealed.

The policy contains the following provision, which forms an essential condition of the contract:

“ Persons sustaining loss or damage by fire shall forthwith give notice thereof in writing to the company.”

The meaning and purport of the word “ forthwith ” has often been the subject of judicial interpretation. Courts have considered that it contemplated reasonable delay, but that, at times, under certain circumstances beyond the control of the insured, excuses were admissible to justify its omission. 8 R. 446; Woods on Ins. 411 et seq.; May on Ins. 565; Flanders on Ins. 512.

The death of the assured, his non-residence, his absence, his ignorance of the fact, his confinement by an injury, his insanity, the refusal of the insurer to surrender papers, have been accepted as sufficient justifications for delays of notice and preliminary proof. 74 Penn. St. 17; 17 Iowa, 176; 3 Bush, Ky., 33; 31 Wis. 161; 47 Mo. 54; 11 Mo. 291; 12 Wallace, 433; 9 Wend. 163.

Due diligence is always required, under the circumstances of each case. Wood, 696.

The excuse offered by the plaintiff is, that he was prevented by the act of the defendant from'giving the notice and furnishing the proof.

The evidence shows that the plaintiff was, on a charge of arson, arrested, tried and acquitted. The plaintiff says that he was imprisoned under the charge, which was a capital.offense, and claims that the condition of his mind was such that he could not give the notice sooner than he did, i. e. seven months after the occurrence, and that he was prosecuted at the instance of the defendant.

We find no evidence that the plaintiff was imprisoned; that his mind was deranged; andnone that the company caused the prosecution.

If it be true that the. plaintiff remained in duress during the seven months which intervened between the fire and the notice, which he gave after his acquittal, that circumstance could not of itself justify the absence of a proper and seasonable notice. The first thought that should have come to the mind of the plaintiff after the excitement and emotions of the moment had subsided, should have been, in vindication of his innocence of the offence charged, to have formally asserted that sentiment by notifying the company of the fire, and by signifying his intention to hold it responsible, the more so, as he occupied a fiduciary capacity, and, no doubt, was in frequent consultation with counsel.

Under the requirement that notice shall forthwith be given, it has been held that a delay of six, eleven, eighteen, twenty days, a month, five weeks, four months, was fatal. 12 Wendell, 452; 7 Jones Law; 44 Ind. 460; 6 Blatch. 249; 20 Barb. 468; 5 Casey, 198; 3 Gill, Md., 176; 11 Mo. 278; 18 Ill. 553; Wood on Ins. 696, 701; Flanders on Fire Ins. 512.

In this case the fire occurred on the 25th of May, 1873, and the notice was given in the latter part of December following, more than seven months after the occurrence.

Knowledge of the accident by the company does not dispense with the notice required by the contract from the insured, and which should be in writing. Wood, 414, 699.

There is nothing to show that the company authorized, still less instigated, the prosecution. The petition is reticent on the subject of excuse. If no averment was necessary it certainly was essential to prove not only the fact but to establish also that the company designed by such prosecution to intimidate the insured, so as to frighten him out of all intention of claiming and recovering the amount of the insurance.

The burden of proving seasonable and proper notice was upon the plaintiff. He has not done so. Griswold Fire Underwriters Test Book, pp. 524, 594; 12 Wend. 452; Wood, 701; 13 Maine, 265; 26 O. St. 74; 2 Woods, C. C. 272.

We do not find that the company has contributed to the delay set up in exoneration by the plaintiff.

It is not probable that the company ever could have conceived that by prosecuting and intimidating the plaintiff a surrender of rights to recover on the loss could have been accomplished. The plaintiff was acting in a fiduciary capacity as administrator of a succession, and could not, by any act of his, have legally prejudiced the interest which he represented officially.

We think the plaintiff cannot recover. Wood, 413, 414.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be reversed, and that there be judgment in favor of defendant rejecting plaintiff’s demand with costs.