source: Caselaw Access Project

author: Breaux, J. Nicholls, C. J.

license: Public Domain

text:
    No. 12,488.
    Mrs. C. Brown and Her Husband vs. Pontchartrain Land Company et als.
    On Motion to dismiss.

      Appellate Court-may exercise jurisdiction to interpret its o-wn decree.

    The appeal was a branch of the first case in which this court rendered judgment. The appellate court had jurisdiction in the matter of interpreting its own judgment. C. P., 6 N. S. 276; 9 An. 496; 6R.92; 48 An. 33.
    Statement or Pacts.
    while it is true that a statement of facts when relied on to bring the cause before the appellate court must be made out before the judgment Is signed, a motion to dismiss an appeal on the ground that it had not been made out before the ¡judgment must be filed within three (3) judicial days alter the filing of the record. 3 An. B26.
    On the Merits.

      The return of tax collector should include all sums,

    A tax collector can not be compelled to disobey the directions of the auditor besides violate the law in order that he may retain in his hands the purchase price of a tax sale, which may be pronounced null.

      Money should be returned by the State.

    If the money has been paid into the treasury it should be returned by the State; but no recovery can be had from the tax collector.
    The price is not due by him personally nor can it be paid out of any funds remaining in his hands.
    On Rehearing.

      Nichoiisy a y.

    It does not follow as a necessary consequence of the fact that some of the evidence adduced on a trial in the District Court was not preserved and transcribed in the record filed on appeal or brought up through bills of exceptions that the appeal should be dismissed. It frequently happens that issues are presented for decision on appeal in order to come to a knowledge of which the testimony taken in the case is not needed. State vs. Bank of Louisiana, 5 N. S. 341. Whether a (particular record presents sufficient data upon which the Supreme Court would be justified in avoiding or amending a judgment below can only be known after it shall have ascertained the contentions of the parties and made an examination of the transcript filed.
    After an appeal has been regularly taken the appellee is entitled to have a judgment rendered upon the issues raised. It is the duty of an appellant to place matters before an appellate court in manner such as to permit of such a judgment being rendered, and if he does not do so the logical sequence of the situation is that the judgment should be affirmed rather than that the appeal should be dismissed in limine. Appeals are frequently dismissed after hearing which it would be improper to dismiss in limine.

    Where defendant in a petitory action having called his vendor in warranty has been cast in the action, but has obtained a judgment over against his warrantor, takes an appeal in open court, the appeal carries the entire case, including the case in warranty, into the appellate court — though the amount directly involved in the case in warranty may be less than that which would be required to give the Supreme Court jurisdiction in an original andseparate and independent suit.
    Where the Supreme Court has on appeal disposed under such circumstances of the case in warranty, it has the power to supervise the execution of that part of the judgment and see that it be carried out according to its terms under Art. 629 of the Code of Practice, even though the question be presented in the “¡form” of an “appeal” Though the proceeding take that form it is really one supervisory in character in aid of and to make effectual appellate jurisdiction. State vs. Judge, 19 La. 180,181.
    The State is not subject to a call in warranty nor liable for costs of court.

      Act No. 82 0/1884 is not a general act covering all tax sales made in the State. Its provisions refer to the tax sales made under that special act. All its sections point to the funds out of which commissions, expenses, costs and the refunding of the purchase price to evicted purchasers of property bought at tax sales are to be met as those which will pass into the hands of the tax collector as arising from sales of that particular class of property under that act.

      A PPEAL from the Civil District. Court for the Parish of Orleans. Bightor, J.

      Benjamin Bice Forman for Pontchartrain Land Company, Plaintiff in Rule to tax costs and execute judgment, Appellee.

      F. O. Zacharie for B. T. Walshe, Tax Collector, Defendant in Rule, Appellant,
    Argued and submitted April 29, 1897.
    Opinion handed down May 10, 1897.
    Rehearing granted May 30, 1897.
    Argued and submitted on rehearing December 4, 1897.
    Opinion handed down December 28, 1897.
   On Motion to Dismiss.

The opinion of the court was delivered by

Breaux, J.

The appellee moved to dismiss on grounds, to-wit:

1. The amount in dispute is less than the jurisdictional amount.

2. The statement of facts was not procured before the appeal was granted, citing in support of this proposition the following: Scott vs. Blanchard, 8 N. S. 305; Hodge vs. Creditors, 3 L. 455; LeBlanc vs. Broussard, 16 L. 137, and Logan vs. Windsor, 20 An. 253.

The facts are, as relates to the first ground to dismiss, that on plaintiff’s petition the tax sale which had been made of her property in 1894 to the defendant was decreed null and void by the District Court, and the tax collector was expressly ordered to return the amount of the purchase price. This judgment was rendered in March, 1896. The tax collector did not appeal.

On appeal to this court the judgment was affirmed in May, 1896. Mrs. Brown and Husband vs. Land Co., 48 An. 1188.

Before the District Court the defendant, in October, 1896, filed a rule on the tax collector, (who had been called in warranty in the case in which the judgment of nullity of the tax title was pronounced) , to compel him to pay the purchase price and costs to the mover. This rule was filed after the tax collector had paid the amount to the Auditor of the State.

The rule was made absolute, and the tax collector was condemned to pay the purchase price and costs, quoting from the judgment, out of any funds in his hands, and that the said company have any writ of process, authorized by law, to enforce this order.”

The appellant’s contention is, that this court is without jurisdiction.

The appellant, in support of his appeal as relates to jurisdiction, invoked Art. 629 of the 0. P., (conferring authority needful in matter of the interpretation and execution of the judgment it has rendered, irrespective of the amount involved), and urged that the present appeal was merely a branch of the case cited supra, in which jurisdiction was incontestable; that judgments of the court a qua interpreting the decree of this court are appealable.

Our attention was directed to the early case of Holstein vs. Henderson, 6 N. S. 276, in which the court asserted jurisdiction and the power of revision, if the court of first instance does not correctly interpret its judgment as rendered on appeal.

The question was considered in Lovelace vs. Taylor, 6 R. 92, and the court said in substance, if the one against whom the judgment was pronounced thinks himself injured by a mistaken interpretation of the judgment he must seek relief by a suspensive appeal. In relation to a final judgment, similar views were expressed in Hays vs. March, 11 Louisiana, 369.

The question was argued in the case of Dennistoun vs. Rist, 9 An. 464, and the court said, while indisposed to interfere with the court of the first instance, it would interfere in the matter of interpreting its judgment, if the record presented a clear case of denial of justice or oppression.”

The last utterance of this court upon the subject was in State ex rel. Construction Co. vs. Tax Collector, 48 An. 33, in substance reiterating the views expressed in the decisions from which we have quoted. The court asserted jurisdiction and control of the interpretation to be placed upon its judgment.

We pass to the next ground urged, i. e., that the statement of facts should be made before the appeal is obtained.

We think it in place to state that the statement of facts prepared by the judge after the appeal had been taken shows that the tax collector gave public notice that “incase the purchaser failed to obtain possession within thirty days after the sale, he would’ hold the proceeds and refund the price to the purchaser if applied to within that delay; that the purchaser did apply within the delay for a second extension of thirty days, at the end of which the defendant applied for a third extension of thirty days. When the time for the settlement of the tax collector with the Auditor had arrived, the tax collector referred the application for further delay to the Auditor, who refused and ordered the tax collector to turn the funds into the State treasury in his settlement, which was past due. The tax collector complied with the law and from that time he was without funds to refund the purchase price; that he. was without authority to divert any other funds from tax sales or tax collections to the reimbursement of the purchase price, and that if he was obliged to pay the amount he would have to pay out of his private funds.”

To the ground to dismiss because df the delay in applying for and procuring the foregoiug statement of the facts, the appellant interposes the objection that it was too late to have any effect.

It is true, as stated by the appellee, that the motion to dismiss was filed after tne delay for filing such motions had elapsed. The ground not being jurisdictional, we can not entertain it. This court said: “A motion to dismiss on the ground of any informality in the mode of bringing up an appeal must be made within three judicial days after the filing of the record.” Hall vs. Nevill, 3 An. 326. This rule has been enforced in a number of cases.

The motion to dismiss is overruled.

ON THE! MERITS.

The question before us for determination is whether, in view of the delay in this case, the tax collector can be held responsible for the price.

It must be borne in mind that it is the duty of this officer to make settlements of all amounts he has received for the State, at stated times.

A failure to comply exposes him to arrest and criminal prosecution, at the instance of the officer of the State with whom the settlement must be made. The final settlement he is ordered to make should cover all amounts received; this includes the purchase price of property sold at tax sale. It was necessary, in order that the purchaser might protect whatever rights he had acquired under the judgment, to take immediate steps for its enforcement.

Granted that, prior to the judgment, the amount had been retained, the tax collector could not, without an open violation of the statute, continue to retain it after the judgment had been rendered. It devolved upon the purchaser at once to call upon him for payment. After the delays had elapsed it was not unreasonable to assume that as against him the right to require restitution had been abandoned, and that it only remained for him to comply with the statute and turn the amount into the State Treasury.

But it may be said in answer that the amount had already been accounted for and a settlement made with the State previous to the judgment.

We may state at this time that, had that fact been made known on the trial, that an account had been rendered and a settlement made as required, the officer would not have been ordered to return a price no longer in his possession.

We are now dealing with delays which elapsed after the judgment, and as to these, it does not appear to us unreasonable that they should operate as an estoppel preventing recovery, without regard as to whether settlement of this price was made by turning in the amount into the treasury prior or after the judgment. There were prejudicial delays before and after the judgment. At least seven settlements had been made with the Auditor after the judgment was obtained. Should officers who are commanded by law to exact final settlements or to make final settlements be compelled to make settlement, after settlement without closing their accounts completely, although so ordered, in order to await the pleasure of a tardy purchaser at tax sale?

After the judgment, the officer was required to pay over to the State. A delay at that time is equally as fatal as a delay prior to judgment. Referring to delay Mr. Oooley on Taxation says: But in general, if the money, though actually collected under compulsion, is paid over to the proper receiving officer before the suit is brought, the treasurer is protected, and this principle has been applied to cases in which the officer’s authority was void for unconstitutional or other reason.”

The authorities all hold that after the money has been paid into the treasury no recovery can be had from the tax collector. Houston vs. Tax Collector, 39 An. 33; Eng. and Am. Ency. of Law, Vol. 25, p. 443.

But there is a consideration far more controlling than the foregoing, we think.

It is that the judgment appealed from decrees that the claim of appellee be paid out of any funds in his hands.

That is not possible under the law as we interpret the statutes upon the subject.

We understand that the collectors of taxes in making their return to the Auditor (which must be sworn to) of amounts collected for the State and parish taxes, must state separately in the returns upon suitable blanks for the purpose the amount of the general fund, interest and other funds. Interest funds, for instance, can not. be applied to the payment of the price of a tax sale, which has beers, annulled.

It follows that the tax collector can not pay out of any fund Such payment would disturb balances and effect the verity of his affidavit to the return.

The judgment of this court (iu the case beiore decided between these parties) ordered payment, but not from any fund nor from the State Tax Oollector individually or personally.

The amount is unquestionably due, and although small it should not be overlooked by the legislative branch in appropriating funds to-meet legitimate claims against funds to which the State has no right.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and plaintiff and. appellee’s rule dismissed.

' ON Rehearing.

Nicholls, C. J.

It is contended on rehearing first that the court erred in not sustaining the motion to dismiss the appeal, and second (assuming the case to be before it properly on the merits) that the judgment below should have been affirmed, not reversed.

On the first point is said “ it is conceded that the record does not contain all the evidence adduced on the trial,” and in view of that fact the appeal should fall, but independently of this “ the matter in dispute is too small in amount to bring the case within the appellate jurisdiction of the Supreme Oourt.” It does not follow as a necessary consequence of the fact that some of the evidence’adduced on a trial below was not preserved and transcribed in the record filed-on appeal, or brought up through bills of exception, that the appeal should be dismissed.

It is true that the Supreme Oourt can only exercise its jurisdiction in so far as it shall have knowledge of the matters contested below (Art. 896, O. P.), but it frequently happens that issues are presented for decision on appeal in order to come to a knowledge of which the testimony taken in the case is not needed. State vs. Bank of Louisiana, 5 N. S. 341. Whether a particular record presents sufficient data upon which we would be justified in avoiding or amending a judgment below we can only know after we shall have heard the contention of the respective parties and made an examination, of the transcript filed.

After an appeal has been regularly taken the appellee is entitled to have a judgment rendered upon the issues raised. It is the duty of an appellant to place matters before an appellate court in manner such as to permit of such a judgment being rendered, and if he does not do so the logical sequence of the situation is that the judgment should be affirmed, not that the appeal should be dismissed in limine. We are aware that courts frequently, after having ascertained that the situation was not such as to enable it under any view of the case to render a judgment altering or modifying that appealed from, to declare the “ appeal dismissed,” but this is because it is assumed that such a decree is substantially one of affirmance.

There is no ground for dismissing this appeal in limine, even i f the statement of facts made out by the judge, which we find appended to the transcript, was made out improperly or illegally, and should be ultimately disregarded.

The demand for-a dismissal of the appeal on the ground that the matter in dispute is insufficient to enable the Supreme Oourt to entertain jurisdiction is based upon the position that the original judgment in this case as between the defendant and the State Tax Collector did not come before this court at all, and has never been anything else than a judgment of the District Oourt, when the Pontchartrain Land Company appealed the main case. That this court was not called upon or authorized to pass upon it on the appeal of the land company, and that our judgment of affirmance rendered at that time did not deal with the judgment of the Dictrijt Court as between the defendant and the tax collector. That the theory, therefore, of the present appellant, that that judgment by the said affirmance became that of this court, and that therefore, we are authorized, under Art. 629 of the Code. ofjPractiee to supervise and control its execution and see that it be carried out accordingly is without a legal basis on which to rest.

It is not disputed that at the present time both the judgment on the main demand and that between defendant and the tax collector are beyond the power of control by appeal from the judgments themselves, whether they be considered as judgments of this court or of the District Court.

The property which gave rise to this controversy was held by the State with other properties under adjudications made to it in enforcement of delinquent taxes. By Act No. 82 of 1884 the tax collectors of the different parishes were directed to sell these properties under the provisions of that act. This particular property was sold on the 21st day of June, 1894, and adjudicated to John H. Griffith, to whom a deed was given on the 6th of August, 1894. The latter on the 16th day of August, 1894, sold the property to the Pontchartrain Land Company. On that company’s applying to the court to be placed in possession Mrs. Brown, claiming to be the owner of the property, and that the adjudication to the State and that by the State to Griffith had not divested herself and her authors of their title, enjoined the land company and the civil sheriff from further acting in the premises — attacked the adjudications as null and void and of no effect, and prayed that she be decreed the owner of the property. The Pontchartrain Land Company in answer to this attack asserted the validity of the adjudications and the legality of their title and called in warranty B. T. Walshe, the tax collector who had made the sale to ■Griffith, praying in the event of a judgment adverse to them that he be condemned to pay them forty-four dollars with interest and costs. The amount claimed was made up of thirty-six dollars, the price of the adjudication to Griffith, two dollars for tax researches, six dollars copy of deed and plan.

The suit terminated in a judgment of the District Court in favor of Mrs. Brown against the Pontchartrain Land Company, declaring the adjudications null, void and of no effect, and recognizing her as owner of the property, and in favor of the Pontchartrain Land Company against B. T. Walshe, State Tax Collector, ordering the said tax collector to refund to the Pontchartrain Land Company the sum of thirty-six dollars, the same being the amount of the purchase price.” The judgment further decreed that the Pontchartrain Land Company pay the costs of the proceedings.

The Land Company moved for and obtained in open court an appeal from the judgment to the Supreme Coürt. The Supreme Court on this appeal “ affirmed the judgment.”

In the return of the judgment of the Supreme Court to the District Court the Pontchartrain Land Company alleging that by judgment of the District Court, signed 16th March, 1895, it had ordered B. T. Walsh, State Tax Collector, to pay them thirty-six dollars, which the said B. T. Walshe refused to pay although demanded that costs follow judgment and clerk’s costs amount to—

Judgment.$36 00
44 00
Short-hand testimony. 6 00
Oosts Supreme Court.. 16 00
Sheriff’s costs. 6 00
Total.$108 00.

caused a rule to issue to B. T. Walshe, Tax Collector, to show cause why said costs should not be taxed and why he should not pay said amounts, or in default thereof be punished for contempt of court; a writ of distringas issue, a fieri facias issue, or such other orders be made.

After hearing the court made the rule absolute, ordering Blaney T. Walshe, Tax Collector, to pay to the Pontchartrain Land Company the sum of one hundred and eight dollars out of any funds in his hands, and that the said company have any writ or process authorized by law to enforce this order.

From the judgment on this rule the State Tax Collector appealed to the Supreme Court.

There is no doubt that when the Pontchartrain Land Company moved in open court for and obtained an appeal from the judgment of the District Court setting aside the sale by virtue of which it was claimed that the title of Mrs. Brown arid her § authors had been divested from them and had become vested in that company, that the effect of the same was to make the warrantor whom she had called into the case a party to the appeal. The warrantor was made a party in the District Court only through the call in warranty, and we think that the proceedings in warranty ¡¡necessarily formed part of the case when it went to the appellate court. The plaintiff was authorized on appeal to ask for an amendment of the judgment in any respect in which she conceived herself aggrieved and defendants were entitled to have made corresponding change in the judgment of the lower court as between themselves’and the warrantor should the amendment asked be granted and injuriously affect them in their relations with their warrantor.

The relations of the parties were so interdependent and connected — the rights and obligations of the one so much affected by the rights of the others as not to be easily separated. There are not involved in this litigation separate and independent titles held on the one hand by Mrs. Brown and on the other by the defendant, the State. The issue was simply whether a certain title held by the authors of Mrs. Brown, and which she presently set up as being in herself, was legally divested by certain tax proceedings directed against them and said property by the State, and had thereby vested in the Pontchartrain Land Company. In the attack made by the plaintiff against those proceedings and the sale thereunder, the property was declared to be over two thousand dollars in value, and the main suit fell legally within the appellate jurisdiction of this court. The call in warranty invoked by the defendant involved substantially, though not in express terms, a contingent demand as against the warrantor for the annulment of the title, which the latter had conveyed to them of the same property coupled with certain resulting personal demands against their vendor. The main demand with the call in warranty was an entirety, the latter being a mere incident of the former.

This court acted on that theory in Walshe vs. Harang, 48 An. 984, considering that the situation of parties was such as to call for a simultaneous general adjustment of their respective rights and obligations.

Appellees appear themselves to have been of that opinion, as in the rule taken after the appeal on the tax collector that officer was sought to be made liable through that judgment proprio vigore for the costs of that appeal.

Viewing the judgment on the call in warranty as having come to this court with the main demand, the proceedings taken in the Dis - triet Court in its execution fall under our supervision under Art. 629 C. P. independently of the amount involved in the particular matter of which complaint is made.

The complaint comes before us in the form of an “appeal,” but the proceeding is not in reality such, but one supervisory in character as matter connected with our appellate jurisdiction in order to aid and make it effectual. [State vs. Judge, 19 La. 180, 181.] The matter we think would have been more appropriately brought before us through certiorari and a qaasi-prohibition and under a return and answer of the District Judge than as it has been; but we see no particular objection as to the form of the proceeding, if the rules which the court would have followed had the form been different from what it is, be followed.

The motion to dismiss is overruled.

Having prefaced this much, we now direct our attention to the rule taken in the District Court on the tax collector in attempted enforcement of the judgment in warranty. The rule shows on its face that the mover was aware that the judgment was not enforceable by writ of fieri facias on funds of the State in the hands of the tax collector.

The judgment on the warranty call was not a money judgment for debt in any sense of the word. In the fourth section of Act No. 82 of 1884, under the provisions of which act the adjudication to Griffith was made, it was enacted that “in case the State shall fail to give to the purchaser an absolute title to the property sold, or if said property shall be declared null and void for any cause, the amount paid by the purchaser to the State for such property shall be refunded by the tax collectors to the purchaser.” The judgment in question is nothing more than a repetition of this mandate to the tax collector made in a proceeding to which he was a party. It threw no obligation upon the tax collector other than that which the law itself threw upon him. What was that obligation? Was it to pay costs in the proceeding to which he was so made a party? The District Oourt originally was of the opinion that it was not, and in that opinion it was correct, and we were not called on appeal to correct its judgment. It was only upon the return of the cause to the District Oourt that the views of that court changed. The State does not pay costs, and there is nothing in the provisions of the law in question which indicates any intention to make a change in that respect in favor of tax purchasers. The Pontchartrain Land Company asserts that the lawmaker declares in express terms that the tax collector should, upon the annulment of the tax title, refund to the purchaser the amount paid by the purchaser to the State. So it does, and so did also the original judgment of the District Oourt which was affirmed, but that judgment did not declare when, how nor under what circumstances this refunding was to take place. To ascertain these facts the judgment would have to be construed by the law itself. When so construed it is clear that neither this court nor the court below would be authorized to direct the tax collector to pay out the moneys of the State in manner as he had been directed by the District Court to pay them out. In the first place there is nothing in the law which would justify tax collectors in retaining State moneys in their hands-to contingently meet possible demands for the refunding of the price of annulled tax sales.- The law has fixed the time at which moneys in the hands of tax collectors have to be turned into the treasury, and it is the duty of those officers to comply with the law in that respect. Counsel of the land company say that the construction placed by this court on this subject as expressed would, if adhered to, practically make a dead letter of the law, inasmuch as all funds-would necessarily have to be paid into the treasury before a final judgment could be obtained as to the validity of a title.

We understand counsel’s contention to be that if the tax collector has-(in spite of what he claims was his duty) paid over the particular moneys which he received on account of these annulled sales into the treasury, he is authorized and directed by the law to refund to the purchasers the price thereof out of any moneys whatever which he might thereafter have in his hands. We think there is no warrant for this position. .Act No. 82 of 1884, in which this provision for refunding is found, is a public act, it is true, but it is not a general act covering all tax sales made in the State. It has refer- . enee to the tax sales to be made under the provisions of that particular act of the properties found in the precise situation which that-law refers to. All its sections point to the funds out of which expenses, costs, commissions, etc., are to be met as those which will pass into the hands of the tax collector as arising from the sale of that particular class of property.

We are of the opinion that the tax collector would be only justified in refunding to the purchaser the price which he had paid in the event that he should have at the time of the demand upon him for a-refunding of the price, based on the judgment of annulment of title,, funds in his hands arising out of the sales of lands made under the-provisions of Act No. 82 of 1884. It is not alleged in the rule taken upon the tax collector that a demand had been made upon him for payment out of funds arising from that source then in his hands, and that he had refused to make payment, or that he had any such funds in his hands. The theory of the mover, concurred in by the District Court, was and is that under the judgment in warranty the tax collector could be made to refund the price which the purchaser had paid, with costs, out of any moneys whatever which the collector might have in his hands. In this the court erred.

Eor the reasons assigned, it is ordered, adjudged and decreed that the judgment or decree of the District Court herein appealed from, upon the rule taken upon the tax collector, be and the same is hereby annulled and set aside, and the rule discharged without prejudice to further proceedings to be legally taken for refunding of the price paid by the Pontchartrain Land Company for the property adjudicated by the State to John H. Griffith, on the 21st of June, 1894, out of funds in the hands of the tax collector legally applicable to the refunding of such price. Costs of both courts to be paid by the Pontchartrain Land Company. Our original decree remains unchanged except in so far as herein modified.


author: McEnery, J.

text:
    No. 12,283.
    Metropolitan Bank vs. New Orleans Brewing Association.
    If several breweries are in in the hands of a receiver, and the amount of business of each brewery is estimated, and upon the aggregate the license tax demanded by the State is paid to the tax collector, where the general business of the receiver is conducted, this is a sufficient payment, and the tax collector can not after such payment sue for the tax due by each brewery. It was paid with the aggregate estimate upon which the 'amount for the license tax was estimated.
    APPEAL from the Civil District Court for the Parish of Orleans, Monroe, J.

      E. H. MeCaleb, Jr., for State of Louisiana, Appellant.

      Dinkelspiel & Hart and Buck, Walsh & Buck for Receiver, Appellee.
    Submitted on briefs November 16, 1896.
    Opinion handed down November 30, 1896.
    Rehearing refused January 4, 1897.
   The opinion of the court was delivered by

McEnery, J.

In the above entitled case the defendant corporation, which had been placed in the hands of a receiver, filed through said receiver an account. The State Tax Oollectors for the Pirst, Second, Third and Pourth Districts, filed oppositions to the account, alleging that the State of Louisiana had a privilege, outranking all others, for licenses due by said association for conducting business in the several districts in which breweries were located.

On motion, presumably by consent of all parties, the oppositions were transformed into rules and consolidated, and there was one answer and one judgment.

The Tax Oollectors urge that a license tax should be collected from each brewery, and the receiver claims that the payment of the license tax on the business done by all the breweries, at one place where the general business is conducted, was a compliance with the law.

The evidence shows that the gross business done by the association, in all the breweries, was, for the year 1896, six hundred and eighty-one thousand eight hundred and fifteen dollars. This is the aggregate receipts of all the breweries. One of the breweries to which the receipts of the business done by the others were delivered, was located in the Pirst District.

The Tax Collector of this district was paid the license which the State demands for the amount of business done by the association. Each brewery paid its license tax in the aggregate estimate. The tax on the amount of business done by each brewery has been paid to the State. The.State, therefore, has no demand against the association.

Judgment affirmed.


text:
    No. 12,208.
    Mrs. Carrie Augusta O’Neill vs. Conrad Leinicke.
    Prescription only begins to run in favor of the father wh*» has received money for his daughter from tlie time demand has been made for the same, or from the date of settlement between them, showing balance due.
    When money has been remitted to the father by the grandfather of his daughter, and is foliowed by a letter of advice which directs the investment of the capital, or a part of it, for the benefit of his granddaughter, the child of his daughter, with full discretion to the son-in-law to invest and control the disposition of the money, and there is nothing said in the letter, other than as to the use of the interest by the son-in-law for household expenses, about the money being for the individual use of the son-in-law, it will be interpreted to be as to the capital a donation to the granddaughter and not to the father.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Saunders & Miller (and Walter Hyde Saunders, of Counsel), for Plaintiff, Appellee.

      Frank L. Richardson and Philip H. Mente, for Plaintiff, Appellee.
    Argued and submitted December 4, 1896.
    Opinion handed down December 14, 1896.
    Rehearing refused January 4, 1897.
   The opinion of the court was delivered by

McEnery, J.

The plaintiff brought this suit to recover from her father the sum of twelve thousand three hundred and fifty-seven dollars.

The grandfather transmitted to her father this amount of money which she urges was intended for her. The father claim's the amount, less a certain amount which he invested for his daughter. The mother of the plaintiff died before this sum was transmitted. The money was left in the father’s hands, without objection on the part of plaintiff, until the institution of this suit.

There was judgment for plaintiff for the amount of the sum transmitted, less amount invested.

The money was sent without any letter of advice. It was followed by the following instructions to the father:

“ Father to save costs of court did not want to call it (the remittance) an inheritance; and in any event (uberhaupt), father was of the opinion that you would keep it secret, and make no communication of it to any one, not even to Carrie; for only too easily, on such occasions, there appear flatterers (parasites) of every kind (shape) ; but things that happened can no more be changed. But, as you now, as Lina’s rightful heir, are unconditional disposer, and have the right to dispose of it by testament, father only desires the wish expressed that you should, apply (invest) and administer this capitaL entirely according to your own will and judgment, without allowing yourself to be influenced by any one; whether you will use the interest (income) in your household, or donate it as dowry (marriage gift) to Carrie, is left entirely to your discretion (judgment). Only father would wish (would like) that you would invest surely (securely) a fixed amount for Carrie, that it may in age afford a certainty and not slip through the fingers. In any event, father expects positively that Carrie, for her own advantage, conform unconditionally to the dispositions (unerdnungen) of her father. You know father well enough to know that he is distinctly not in accord with the American woman-emancipation."

There is a conflict, in fact a contradiction in the testimony of the daughter and father in this case. Happily, we are not called upon to say which is the more reliable, the declarations of daughter or father. The contradictions in this testimony relate more particularly to the construction which the father placed upon the letter, advising him as to the disposition of the sum remitted. This letter is not a contract or agreement of dubious import to be interpreted by the conduct of the parties in relation to it and the interpretation they placed upon it.

The language and declarations of the grandfather are alone to be considered. If the money was intended as a donation to the father, but construed by the parties to be for the daughter, their construction could not destroy the donation and take it from the father, when discovering his error, he asserted his claim to the money. Nor would the father’s belief, and his acts based upon it, that it was a donation to him, and acquiesced in by the daughter, who gave the same interpretation to the language of the grandfather, destroy the daughter’s right to assert her claim when she discovered her error and that of her father.

We will therefore eliminate the testimony of both father and daughter, except so far as it relates to the immediate production in evidence of the declarations of the grandfather contained in the above letter.

The father was not heir to his deceased wife. There was no estate for him to inherit through her from the grandfather, as he was alive. Even admitting that he was heir to his wife, the letter says nothing about the remittance being an advance to the father as heir.

The only reasonable interpretation that can be given to the expression in the letter: “But as you now as Lina’s rightful heir are unconditional disposer and have the right to dispose of it by testament, father only desires the wish expressed that you should apply (invest) and administer this capital entirely according to your will and judgment without allowing yourself to be influenced by any one,” etc., is that the grandfather considered the father, as the surviving spouse, the guardian of his daughter’s welfare, as his wife had been whan living. The sentence, we believe, was used as a synonym to express the power of the father over the daughter, thus impressing upon him that as the guardian of his daughter, her will should be subjected entirely to his own in the disposition of the money. He was to invest the capital, and the use of the interest was left to his discretion to be employed in his household expenses or for the dowry of his daughter. “ In any event father expects positively that Oarrie, for her own advantage, conform unconditionally to the dispositions of her father.” Here is a declaration that in the investment of the money the daughter will not oppose her will to that of her father. This declaration is totally at variance with the dominion which the father would have over the money had it been intended as a donation to him.

Through the whole letter of advice there are expressions which indicate that the remittance was not intended as a donation to the father. The letter exhibits a fear on the part of the grandfather that the money would “ slip through the fingers” of his daughter, if she had control of it, and she was not to be made acquainted with the receipt of the money for fear that “flatterers” would despoil her of it.

There is not, as we have said, a syllable in the letter to indicate that the remittance was intended as a donation to the father, except, perhaps, the language quoted “ as Lina’s rightful heir,” etc. This declaration follows that part of the letter in which the grandfather desires the remittance to be kept secret from “Carrie” for fear of “ flatterers,” showing, in our opinion, that the grandfather had in his mind the duties which the father, as surviving parent, owed to the daughter, and admonished him of them.

It is argued that the father had taken care of his brother-in-law, an unfortunate brother of the wife, and the grandfather had intimated his pleasure to make compensation. But there is nothing in the letter to show that the remittance was intended as a remunerative donation. If it had been, the donor could not and would not have placed restrictions upon its disposition.

The letter of advice means, in a just interpretation of it, considering its language in connection with the relationship of the parties, that the grandfather remitted the money for his daughter, the capital to be invested for the daughter, and the interest to be at the disposal of the father for household expenses, to defray in part the expenses of the daughter, unless the father saw proper to use it for her as dowry. If there should be a demand upon the father to use a part of the capital for his daughter, a certain part of it, at all events, had to be invested for the daughter.

The letter in the record is a translation, but we doubt not that the original text would more exactly define its meaning, and accord with our interpretation.

The defendant pleads the prescription of ten years. It has no application to the facts in this case. The father was the custodian of the money for his daughter. The prescription could only commence to run from a demand for its return to the daughter, or from a settlement between them. He held the money as a fiduciary.

The daughter does not claim the revenues of the money. The District Judge declined to give judgment decreeing the daughter the owner of the house purchased in the father’s name with part of the money, but gave judgment for the amount due, after deducting investments which had been made by the father in the name of his daughter.

Judgment affirmed.


text:
    No. 12,189.
    Michele Sciortino vs. Crescent City Railroad Company.
    This case involves a question of fact. The defendants' car injured a child of tender years on its track, and there was an entire absence of negligence on the part of defendants’ employees. The accident was unavoidable.
    A PPEAL from the Oivil District Court for the Parish of Orleans. Monroe, J.

      Benjamin Riee Forman and B. R. Forman, Jr., for Plaintiff, Appellant.

      Farrar, Jonas & Kruttsehnitt and Hewes T. Gurley for Defendants, Appellees.
    Argued and submitted November 4, 1896.
    Opinion handed down November 16, 1896.
    Rehearing refused January 4, 1897.
   The opinion of the court was delivered by

McEnery, J.

The plaintiff brought this suit to recover of defendants the sum of ten thousand dollars damages, for the use and benefit of his minor child who was injured by defendants’ car.

The child was eighteen months old when the injury was inflicted. He was on defendants’ track.

The car was going at the rate of five miles an hour. It was forty feet from the child when it was discovered that the child was on the track. It is in evidence that an electric car going at that rate of speed can only be checked or stopped not at less than that distance.

The testimony is that the motorman did everything in his power to avoid injuring the child, after he saw it on the track. A passenger in the car gives the most satisfactory account of the efforts of the motorman to stop the ear. There is no contradiction of his testimony. The mother and brother of the child attribute the accident to the fact that the motorman was not looking “straight down,” or he would have seen the child in time to avoid the accident, but they say he was looking forward, which was the proper direction for him to view the track.

The mofcorman saw the child about as soon as it was practicable for him to do so, which was about the time the mother saw the child on the track and screamed to the motorman to stop. We are satisfied that the defendant company was in no way negligent, and that the accident was unavoidable.

Judgment affirmed.


text:
    No. 12,062.
    Scottish American Mortgage Co., Ltd., vs. Wm. P. Ogden, Individually and as Tutor, et. al.
    A party who advances money to a tutor is not bound to go behind the deliberations of a family meeting, and the judgment thereon to inquire into the truth of the facts recited. Nor is he required to follow the destination of the money advanced.
    A broker acting for one party in a particular transaction and who induces another party to accept a proposal made by his principal, the partyjaeeepting the proposal can not be charged with constructive notice of facts, which if known would make the acceptance a nullity if attacked by the principal making the proposal through the agent.
    Where a tutor cultivates for minors their property and petitions for the convening of a family meeting to deliberate upon the borrowing of money for the education and maintenance of the minors, and the meeting advises the borrowing of money which is approved by the judge, the papers on their face, by such recitals, do not disclose the fact that the money to be borrowed is beyond the revenues of the minors. The tutor has tbe right to cultivate the plantation, and the net proceeds constitute the revenue. It is essential Jto cultivate the place to create this revenue.
    Where the family meeting authorizes the making of ten notes for the money borrowed payable in instalments, and twenty are made, ten being for the Interest calculated to maturity with eight per cent, interest from maturity, there is no excess of authority exercised by the tutor, when the transaction shows only the amount authorized to be borrowed was evidenced by the-sales, and the separation o£ interest from principal was, in reality, beneficial to the minors.
    The interest notes so drawn, with eight per cent, interest from maturity, do not bear usurious interest. The interest was capitalized.
    The family meeting had the authority to provide for brokerage for the negotiation of the loan.
    Tutors when they contract in pursuance of the advice of a family meeting and the judgment thereon, must confine themselves within clear and distinct instructions given. The contract gets its binding force from the family meeting. Therefore, in the act of mortgage, when the family meeting did not recommend the waiving of appraisemont, the tutor in the mortgage can not waive it.

      A foreign corporation lending money to a resident of this State, through brokers domiciled in Mississippi, do not como within the meaning of Art. 236 of the Constitution.
    A PPEAL from the Eighth Judicial District Court for the Parish of Concordia. Ellis, J.

      Lazarus, Moore & Luee for Plaintiff, Appellee.

      John S. Boatner for Defendant, Appellant.
    Argued and submitted November 6, 1896.
    Opinion handed down November 16, 1896.
    Rehearing refused January 4, 1897.
   The opinion of the court was delivered by

McEnery, J.

In 1882 W. F. Ogden, as tutor of his minor children, had a family meeting convened, and its deliberations were homologated in the interest of the minors.

The meeting advised the borrowing of one hundred and twenty - five thousand dollars, to be secured by mortgage on a plantation owned by the children.

The proceedings convoking the meeting and the deliberations show that the money to be borrowed was for the support and education of the minors.

A mortgage loan was secured in accordance with the recommendation of the meeting and the order of the judge homologating the same.

This mortgage debt was not paid. The tutor in 1888 petitioned! for and obtained an order for another family meeting, which was convoked for the sole purpose as urged in the first meeting. The deliberations were approved by the judge. This family meeting recommended the taking up of the first mortgage debt and the borrowing of twelve thousand dollars, and the payment of twelve hundred dollars for brokerage in negotiating the loan, and authorized the execution by the tutor of the mortgage to secure the loan, to be evidenced by ten promissory notes. Francis Smith &Co., who were doing business in Vicksburg, Miss., were selected by the tutor to negotiate the loan. Their business was that of mortgage brokers, to receive proposals for loans, investigate titles and values of property and the safety of the investment, which they reported to the company or corporation from whom they solicited the money. This company, on the report, either accepted or rejected the loan. In this instance the plaintiff corporation was solicited to make the loan, which was accepted and the mortgage executed, the ten notes for the principal issued and ten notes for interest separately issued.

The mortgage was executed and accepted in Louisiana, and the notes executed in Louisiana, but made payable in Vicksburg. The acceptance of the proposition to loan was made by the company, either in Scotland or in Vicksburg, by the brokers for the company or corporation. It is immaterial for the purposes of this case, where the contract of loan was accepted, so it was beyond the jurisdiction of this State.

The tutor failed to pay all the mortgage indebtedness, and the plaintiff corporation foreclosed its mortgage. The suit was met by an injunction from the children of W. F. Ogden, who were minors when the loan was negotiated and the mortgage executed.

The grounds for the injunction are:

1. That in executing the mortgage the tutor exceeded the authority given to him by the family meeting in- executing twenty instead -of ten promissory notes, and that the ten interest notes bear 8 per cent, interest from their maturities, thus making compound or usurious interest, and that the act of mortgage contains more onerous stipulations than authorized by the family meeting.
2. That the act of mortgage contained the stipulation that the mortgaged property should be sold without benefit of appraisement, which was not recommended in the deliberations of the family meeting.
3. That plaintiff in execution is a foreign corporation, and had not complied with Art. 236 of the Constitution, and that the act of mortgage is null and void, having been executed in violation of a prohibitory law. '
4. That the minors never received any benefit from the money secured by act of mortgage.
5. That the money borrowed from plaintiff in executory proceedings was obtained for the purpose of paying the debt of their tutor.
6. That there was no consideration for the twelve hundred dollars authorized by the family meeting to be paid for brokerage, as Smith & Co. were the agents of the plaintiffs.

The lower court dissolved the injunction, except as to that part in reference to the sale without appraisement, and ordered the sale of the property with benefit of appraisement.

The plaintiffs in injunction have appealed. Defendants in same have prayed for an amendment to the judgment, reversing that part of the judgment relating to the sale with appraisement.

The proceedings in both family meetings are regular, and the deliberations were on the facts alleged in the petition for the meeting. The plaintiffs in injunction contend that the money raised on the first mortgage was to pay a debt of the tutor, and the second was but a continuance of the first; the taking up of the debt of the tutor in the first mortgage granted, which was for the purpose of paying the individual debt of the tutor, and that no part of the debt secured by either mortgage inured to'the benefit of the minors.

This may be true, but the petition of the tutor and the deliberations of the family meeting emphatically declare that the money to be raised by the mortgage was for the education and maintenance of the minors. The creditor, the party with whom negotiations were opened for the purpose of borrowing the money, was not compelled to institute an investigation beyond the recitals in the proceedings of the family meeting.

The import of their meaning is absolute verity, and there must be something in the proceedings suggesting fraud, or the mortgage creditor must be charged with knowledge of the intent to defraud the minors.

Cane, Tutrix, vs. Cawthon, 32 An. 953.

Gilmer vs. Winter, 47 An. 37.

The creditor can not be made responsible for the funds because he has no control of them. His responsibility ceases after the money has been advanced, and to invalidate the mortgage it is essential that he should have known before the mortgage was executed of the iatended diversion of the funds and of the fraud intended to be practised upon the minors. Id.

There is no evidence in the record that the mortgage creditor had any knowledge whether the first mortgage was for the individual debt of the tutor, nor is there any evidence charging them with notice that the second mortgage debt was given for any other purpose than that stated in the deliberations of the family-meeting.

But the plaintiffs in injunction urge that Smith & Co., the agents of the tutor, in negotiating the mortgage were also the agents of the corporation lending the money, and therefore they were constructively charged with notice. In the record there is a power of attorney from the tutor to Francis Smith & Co., specially authorizing them to borrow the monej'- from the plaintiff in executory process. That they were authorized to accept the mortgage, investigate title and value of property for this purpose, would be, on this account, carrying the doctrine of constructive notice to an unreasonable extent.- But there is no evidence that Francis Smith & Co. had any knowledge that the money had been raised on the first mortgage to pay the debt of the tutor.

There was nothing in the proceedings of either family meeting to suggest to them that the money was destined for the individual use of the tutor. This point, however, is put at rest by the fact that Smith & Co., mortgage brokers, were the special agents for plaintiffs in injunction, that is, the tutor, and solicited the loan from plaintiffs, and therefore any knowledge the agent had could not be charged to plaintiffs in executory process unless communicated to the lender. Seixas vs. Citizens Bank, 38 An. 424.

Article 3017, Civil Code, says the “ obligations of the broker are similar to those of an ordinary mandatory, with this difiéranos that his engagement is double and requires that he should observe the same fidelity to all parties, and not favor one more than the other.” There is no evidence in the record that the mortgage brokers failed in fidelity to either party. It is certain that a broker acting for one party in a particular transaction, who induces another party to accept a proposal from his principal, that the party so induced to accept the proposition can not be charged with constructive notice of facts which, if known, would make the acceptance of the proposition a nullity if attacked by the prcipal. This is the condition of this case.

It is urged that the amount borrowed in itself shows that the amount was not for the maintenance and education of the minors, and that it was in excess of their revenues.

Article 346, C. C., says that “ if among the property of the minor there be any which it may be nece33ary to work as a plantation or a manufactory, the tutor shall not be bound to administer them or cause them to be administered, but he shall be permitted to let them for an annual rent proportioned to their value.” Under this article the tutor had authority to cultivate the plantation. It was necessary to have money to cultivate it to raise a revenue for the education and support of the minor. The place not having been leased, the revenues of the minor were evidently to be derived from its cultivation. He had the undoubted right, with the advice of a family meeting, to borrow money for this purpose.

We do not think the tutor exceeded his authority in multiplying the evidences o,f debt so long as he did not increase the debt or place addititional burdens upon the minors. He was authorized to execute ten promissory notes for the amount to be borrowed. He executed ten, payable in instalments for the principal, and ten for the interest, which decreased with each year. This arrangement of the debt was, in our opinion, advantageous, as it provided the convenient payment of interest and thus made it easy to prolong the term of payment with the consent of the mortgage creditor. At any rate no injury was done to the minors. The interest notes were made to draw interest at the rate of eight per cent, after maturity.

It is true that the interest of eight per cent, is on the interest. But the same would be true if the interest had been capitalized and added to the principal debt, and eight per cent, interest had been made payable on the notes after maturity. In both instances the interest is capitalized, which brings this case under the provisions of Art. 2924 of the Civil Code. Martin vs. Sheriff, 37 An. 763.

The family meeting authorized the payment of brokerage commissions to amount of twelve thousand dollars. It is not likely that the amount authorized to be borrowed could have been obtained without; the intervention of a broker. It would have been competent for the stipulation of the commission by a capacitated person.

In the case just cited this court said: “The legal object and the legal effect of the authority conferred by the law to tutors, when advised and empowered thereto by a competent court, under the advice of a family meeting, to perform certain contracts for and in the name of the minors entrusted to their charge, are to assimilate such contracts in every particular to the acts of persons of full age.” As an incident to the borrowing of the money the services of a broker were deemed necessary by the family meeting. They advised the employment of one and the payment of the commission. It was within the limits of their power and to the advantage of the minors. The contract would be legal by one of full age. It is, therefore, legal on the part of the tutor, acting for and on behalf of the minors, who, for that particular contract, were authorized through their tutor as though they had attained majority.

Tutors, when they contract in pursuance of deliberations of a family meeting, must confine themselves within the clear and well - defined instructions given. The contract gets its binding force from the family meeting. Any departure from the recommendation inflicting the least injury upon the minors, or waiving any right they may have, is as though it had never been entered into, and is of no effect. The family meeting did not recommend a sale without benefit of appraisement.

This stipulation in the mortgage is null and void. That the minors or some of them have since attained majority, and made no objection, until proceedings were instituted against them, can not have the effect of making this stipulation valid. It was such an agreement, not authorized, and never entered into by them that they could resist its attempted enforcement at any time.

The record shows that Smith & Co. were mortgage brokers, with an office in the city of Vicksburg, Miss.; that they were employed by the tutor to negotiate the loan authorized by the family meeting; that they borrowed the money for the tutor from the plaintiff corporation, and that this corporation in a foreign jurisdiction accepted the security tendered and made the loan. The act of mortgage was executed in this State, and also the notes, but they were payable in Vicksburg. The salient fact is that the proposition was to a foreign corporation to advance the money, and it accepted, as its domicile, thus making the contract to advance, an agreement entered into beyond the jurisdictional limits of this State. In other words, it was a foreign corporation lending money to a citizen of Louisiana through brokers, agents of the borrower, in Vicksburg.

This case can scarcely be distinguished from that' of Reeves vs. Harper, 43 An. 521. In that case we said: It would be a gross injustice to the people of Louisiana were we to hold that the Constitution denied them the privilege of borrowing money outside of the State from foreign corporations, and securing the loans by mortgage of their property in this State.”

The prescription pleaded by defendants in executory process was interrupted by an authentic act executed by the tutor.

Judgment affirmed.


author: Watkins, J.

text:
    No. 12,226.
    State of Louisiana vs. Octave Thibodaux.
    The jury law of 1891 authorizes a trial judge, when, in his discretion, he thinks it necessary and proper, to require the jury commission to select additional-jurors for service, either as regular jurors or as talesmen, and they shall be summoned without delay, or within such time as the judge may indicate; and in interpreting a similar law, this court held this to be a proper exercise of legislative authority, and a sound public policy.
    In a motion for new trial only such matters can be availed of as shall have transpired during the progress of the prosecution, and its refusal because of allegednullities in the proceedings not adverted to during the trial, nor brought to-the attention of the jury, will not be reviewed by this court.
    The use of the words “ then and there” in an indictment for perjury are not so-sacramental that they should appear in exact conjunction therein, and being separately employed in the same sentence of the portion of the information-charging the taking of the false oath, it will be deemed sufficient.
    In such an indictment it is not essential that the authority and jurisdiction-of the court administering the oath should be expressly averred if they sufficiently appear from the facts set forth, and when the presentation for perjury is in the same court in which the perjury was committed, it may take judicial cognizance of its own jurisdiction if the indictment sufficiently sets forth the ' facts.
    A PPEAL from the Eleventh Judicial District Oourt for the Parish of Acadia. Dupré, J.

      M. J. Cunningham, Attorney General, and R. Lee Garland, District Attorney, for Plaintiff, Appellee.

      Philip S. Pugh for Defendant, Appellant,
    Submitted on briefs November 7, 1896.
    Opinion handed down November 15, 1896.
    Rehearing refused January 4, 1897.
   The opinion of the court was delivered by

Watkins, J.

Having been convicted of the crime of perjury and sentenced to hard labor in the penitentiary for a term of five years, the defendant has appealed.

The grounds upon which his counsel relies are the following, as extracted from his brief, viz.:

“The defendant relies for a reversal on the following points:
“ 1. That the jury which tried him was unlawfully constituted, because the panel from which it was drawn was illegally constituted, for the reason that the judge and the jury commissioners had neither power nor authority under the law to draw a panel in the middle of the term.
“2. That the motion for a new trial should have been sustained, for the proceedings in which the perjury was alleged to have been committed had been declared absolutely null and void by the Supreme Court, and that, under the law, no conviction of perjury could lie in a prosecution which had been finally terminated by a decision of that character.
“3. That the indictment is fatally defective in not alleging that the oath was taken before an officer having authority to administer oaths, as required by law, and that the time and place where the oath was administered was not described by the use of the technical words ‘then and there.’ ”

The charge of perjury consists in a certain alleged false statement made in a matter material to the issue in the cause entitled State of Louisiana vs. Octave Thibodeaux et als., the present defendant and. Auguste Thibodeaux being therein jointly indicted with the murder of Hugh Geiger — the homicide having been caused by the wrecking of a train on the Midland Branch of the Southern Pacific Railroad connecting with Eunice.

On the first trial of said cause the defendant is alleged to have sworn that he was present at the wrecking of said train, whereas at a subsequent trial of the same cause he swore as a witness to an exactly contrary statement, viz.: that he was not present but was at his own home.

I.

Preliminarily, the defendant’s counsel filed a motion to quash the venire of jurors drawn from the third week of the term, and challenged the array for the following reasons, to-wit:

“That on the 17th of June, 1896, the court ordered the drawing of a jury panel for the fourth week of the term, the week for which they were drawn being the following week, commencing June 22, 1896,” and that the drawing of said jury was ultra vires and void, for the reason that the jury commissioners had no power or authority under the law to draw said panel, and that if the defendant is tried before a jury drawn from said panel it will result to his great injury, and that any verdict or sentence thereunder rendered would be likewise illegal and void.
“ That Sec. 6 of Act 89 of 1894, under which the panel was apparently drawn, contains no provision under which same could be legally drawn.”

The trial judge overruled the motion to quash on the ground that Sec. 6 of Act 89 of' 1894 authorized the drawing of the jury as it was done, and that a like statute was so interpreted by this court in State vs. Wright, 41 An. 600.

The section of the statute referred to is of the following tenor, viz.:

“ That whenever the District Judge, thinks proper he shall require the jury commission to select additional jurors for service, either as regular jurors or as talesmen, and they may be summoned without delay, or within the time the judge requires,” etc.

In disposing of a similar motion to quash the array we said in the ease above cited, that “as a matter of public policy the Legislature saw fit to authorize the judge during the term, when he deemed it necessary, to order the additional jurors.”

There is practically no distinction between the two statutes. The motion to quash the array is not well taken.

II.

The motion for new trial is chiefly directed to the effect of the annulment of the judgment and sentence pronounced in the case of State vs. Thibodeaux, in which the perjury of the defendant is as - signed, same having been annulled and reversed by the decree of this court. And the point is made in the motion that, under the law and settled jurisprudence, no conviction of perjury could lie upon testimony given in the course of a prosecution which was subsequently'declared null and void.

There was no objection made to the indictment on that ground, and no testimony tendered in the course of the trial tending to establish the nullity of the aforesaid judgment.

Whether the perjury was committed in a prosecution which was subsequently annulled by a decree of this court, on account of an invalid indictment, was a question of fact for the jury to determine; and upon administration of proof upon the subject on behalf of the defendant, it would have become the duty of the trial judge to have charged the jury upon that subject.

But the record discloses that no proof was adduced upon that subject before the jury, and it does not appear that this question was mooted in their presence. Consequently, it was not disposed of by the verdict of the jury.

It seems evident to our minds that some objection should have been interposed at the trial to the introduction of testimony on behalf of the State, or an effort made by defendant to bring to the attention of the jury the alleged nullity of the judgment and sentence in the case of State vs. Thibodeaux (48 An. 600) as affecting the present prosecution for perjury.

For it is elementary that a jury can pass upon nothing but evidence in disposing of a criminal case; and it is equally plain that the trial judge is powerless to grant relief upon a motion for new trial, except for causes arising in the course of the prosecution.

But counsel insist that as a matter of law, it was the duty of the trial judge to have taken cognizance of the evidence — the record and opinion of this court which were introduced on the trial of the motion — and finding the verdict and judgment to have been annulled, and declared absolutely void, he should have granted a new trial to have afforded the defendant relief.

Reviewing the authorities we find the trend of them just the other way.

Mr. Wharton says:

“ A suit which is actually void and hull for want of jurisdiction, or other incurable defects, is not one in which perjury can be committed. But if the proceedings are merely voidable, even though there be such defects as require a reversal on error, false swearing in its conduct is perjury, if such false evidence could by any contingency be introduced as testimony.” 2 Wharton’s Crim. Law, Secs. 2225, 2212; 2 Bishop’s Crim. Law, Sec. 1028.

Now it appears that the verdict and judgment in State vs. Thibodeaux were annulled and reversed because of an illegality in the drawing of the grand jury by whom thie indictment was found. There was no want of jurisdiction of the court, or informality in the indictment. Our decree annulled the verdict and sentence, and “ remanded the case to be proceeded with according to law.”

State vs. Thibodeaux, 48 An. 600. The motion was properly refused.

III.

The defendant’s motion in arrest of judgment assigns, that the information is fatally defective in not setting out specifically that the defendant did “ then and there ’’’ before the Hon. W. O. Perrault, presiding judge, take his tcorporal oath — the information simply employing the word “ then ” only. And that said information is further fatally defective in not setting forth that the defendant was sworn by an officer, or by any one having authority to administer oaths — same being absolutely essential to the validity of the information.

The information contains the following declaration, viz.:

“ On the twenty-seventh day of June, A. D. 1895, a certain issue was joined in the Eleventh Judicial District Court of Louisiana in a certain action wherein the State of Louisiana was plaintiff, and Octave Thibodeaux and others were defendants; and that afterward, to-wit, on the day and year aforesaid, at the sitting of said court in and for the said parish of Acadia, the Hon. W. C. Perrault, presiding judge, that said issue came on to be tried,, and was there tried in due form of law by a jury of the said parish of Acadia, in that behalf duly taken and sworn between the said parties; and upon the said trial, upon the issue aforesaid, one Octave Thibodeaux did then appear and was produced as a witness in his own behalf and in behalf of his co-defendants on trial of the issue aforesaid, and the said Octave Thibodeaux did then, before the Hon. W. C. Perrault, presiding judge as aforesaid, take his corporal oath and was then duly sworn,” etc.

Now, while it does not appear that the words “then and there ” —and which defendant’s counsel insists are sacramental — were conjunctively used in the information, yet they were both employed separately in the same sentence of the information. For instance: “ Said issue came on to be tried and was there tried in due form of law;” and “ upon the said trial upon the issue aforesaid, one Octave Thibodeaux did then, before the Hon. W. O. Perrault, presiding judge as aforesaid, take his corporal oath and was then duly sworn,” etc.

In our opinion the quoted language of the information suffices and fulfils the requirements of the law.

Upon the next proposition there appears to be even less difficulty, as it clearly appears that the case of State vs. Thibodeaux, in which the perjury is assigned, and the instant case were both tried before the same court, the same judge presiding at the trial of both cases. And from the foregoing extract from the information it fully appears that defendant was charged with having taken his corporal oath and being duly sworn before the Hon. W. C. Perrault, presiding judge.”

The alleged false oath having been taken before, or in the presence of the presiding judge, in open court, same was a judicial oath; and it has been settled by adjudications of this court and the opinions of text writers that when perjury is assigned on a judicial oath, it is sufficient that the person acting is one of a class of officers having prima facie authority, and does administer the oath with due formality and solemnity, in the presence of the court, it having jurisdiction of the proceedings. State vs. Dreifus, 38 An. 877.

In the absence of formal averment, that the court in which the false oath is alleged to have been taken had competent authority (R. S., Sec. 858), it has been held sufficient that the jurisdiction and authority of the court fully and substantially appear from the facts set out in the indictment. State vs. Schlessinger, 38 An. 564; 2 Bishop, Criminal Practice, Sec. 914.

In the case cited we said:

If a court may take judicial notice of anything, surely it may do so of its own jurisdiction in a case which was pending before itself.”

And in the immediate succeeding case we repeated and emphasized what was said in Schlessinger’s case, employing this language, viz.:

“ That, in an indictment for perjury, it is not essential that the authority and jurisdiction of the court administering the oath should be expressly averred, if they sufficiently appear from the facts set out; that when the presentation for perjury is in the same court in which the perjury was committed, it may taka judicial cognizance of its own jurisdiction, if the indictment sufficiently sets forth the facts,” etc. . State vs. Grover, 88 An. 567.

The foregoing decisions appear to have solved the proposition contended for by defendant’s counsel, unfavorably to his pretension.

To such a case as is here presented, the provisions of Revised Statutes, Sec. 858, does not apply.

There is discoverable in the proceedings no serious charge of error, and the defendant is entitled to no relief at our hands.

Judgment affirmed.


text:
    No. 12,200.
    George Meyers vs. Illinois Central Railroad Co.
    A railroad company having had transient cars of other companies in its use or employment regularly inspected, condemned and ordered to be sent to its shops for repairs, and had them properly tagged so as to warn its employees of that fact, has not fully discharged its obligation of due care toward one engaged in the performance of night service as a car coupler unless the tags are of such a size and character as to bring the condemnation of the cars to his attention, or he is otherwise informed of the fact.
    A PPEAL from the Civil District Court for the Parish of Orleans. Bightor, J.

      F. M. Gill, for Plaintiff, Appellee.

      Farrar, Leake & Lemle, for Defendant, Appellant.
    Argued and submitted on November 5, 1896.
    Opinion handed down November 16, 1896.
    Rehearing refused January 4, 1897.
   The opinion of the court was delivered by

Watkins, J.

This suit is for the recovery of fifteen thousand dollars damages for personal injuries sustained by the plaintiff, whose left arm was crushed while engaged in coupling an oil tank car to an ordinary freight car in the defendant’s government yard in the city of New Orleans at 1:05 A. H., on the 81st of July, 1895.

On the trial there was a verdict of the jury in favor of the plaintiff for five thousand dollars and the defendant has appealed. . The defendant’s counsel filed a motion for a new trial on the ground that the verdict of the jury is clearly contrary to the law and the evidence, but the judge a quo- declined to grant it on the ground that, during the twenty years he had occupied the bench, he could not “recall a single instance where the second trial, or even the third verdict, differed materially from the preceding one. * * * It is of interest to the republic that there shall be an end of litigation.”

In this court the plaintiff and appellee has filed an answer to the appeal, and prays that the amount awarded be increased to fifteen thousand dollars, as originally claimed.

The averments of the petition are substantially that, being engaged as an employee of the defendant “as freight car coupler,” and, in consequence of having his arm crushed while engaged in coupling defendant’s cars, it was necessarily amputated just below the elbow.

The charge of fault and negligence on which he rests his claim to damages are as follows, viz.:

“ The machinery and appliances of the freight car were worn and defective, the draft timbers broken, and the drawhead gave way and went under the car; and the bumper of the oil tank car, on the right side of the train, came in contact with the deadwood of the freight car, to which petitioner was to couple the same, causing the aforesaid casualty.
“That said casualty occurred in the city of New Orleans, in the government yard of said company, on the old main line, and con - tinuation of Calliope street, about half a mile beyond the site of the old depot.
“Petitioner is informed and believes, and so alleges, that on or about the 26th of July, 1895, said freight car and its machinery and appliances had been inspected, condemned and ordered to the shops by the inspector of said company.”

His petition then particularizes the defects in said freight car and the causes of the accident thus, viz.:

“That said freight car was without grab-irons, or hand-holds, not only usual and necessary but required for the greater security of the men in coupling and uncoupling cars, and for the prevention of all accidents. That it was dark and no light to guide petitioner save that of a small lantern held by himself.”

Petitioner avers that he was guilty of no fault, but that the aforesaid injury and damage were occasioned solely by the worn and defective machinery and lack of requisite appliances, and by the gross carelessness, fault, negligence and want of skill on the part of the defendant, its officers and agents.

Defendant’s answer avers that plaintiff was not injured through the negligence of its officers or agents, but, on the contrary, that any injury he suffered while he was engaged in coupling its cars was solely due to his own negligence and want of due care.

It specially denies that plaintiff suffered any injury on account of the want of hand-holds or grab-irons on the said cars, or that said alleged injury was caused by the want of proper light. That if said cars were defective or unfit for service, or had been examined, condemned and ordered to be sent to the shops, such fact or defect was patent upon the cars themselves, and if plaintiff had used his sense of sight he would have had full knowledge thereof. But that if such was not the case the defendant’s answer shows that the plaintiff, by taking employment in (its) service, assumed the risks incident thereto.”

The facts gleaned from the record are substantially as follows, viz.:

At 1:05 A. M. of the night of the 31st of July, 1895, the plaintiff and another employee of the defendant were engaged as switchmen in coupling cars in the government yard; and whilst thus employed in coupling a box car of the Richmond & Danville Railroad Company No. 1406, to an American Cotton Oil Company’s car No. 521J the accident happened to the plaintiff. The R. &D. car was attached with other cars to a locomotive which was, at the time, slowly moving, while the A. C. O. car was stationary.

The plaintiff is a professional switchman and car-coupler, and had been employed as such, for many years by the Louisville & Nashville and Northeastern Railroad Companies, prior to his employment in that service by the defendant a few months since.

He had assigned to him a night watch, which was the occasion of his being engaged in coupling cars at the hour of 1:05 A. M.; and the only light afforded him was that of a small lamp, which he customarily carried in his hand or under his arm while thus employed. This service may be deemed hazardous aud consequently dangerous, requiring the exercise of skill and care on the part of employees; and it may be correctly assumed that such employees take the risk of such dangers as are necessarily and commonly incident thereto.

Appertaining to the accident and the cause of it, the plaintiff as a witness states, that in attempting to make the aforesaid coupling, he took a position on the right side of the track, coupling with his left arm; and the drawhead closing in, the bumper caught his arm and mashed it, so that it had to be amputated.

Explaining further Jie states, that draft timbers are used for the purpose of holding the drawhead in position so that the coupling of the cars can be effected. That one of the draft timbers is placed on one side of the drawhead, and one on the other.

That they are made of wood, 4x6 generally, and about three feet in length. The deadwood is the block on top of the drawhead.

On this occasion he says the draft timbers gave way, and consequently the drawhead dropped down and went under the A. O. O. car and missed the coupling, and the bumper caught his arm and crushed it. That his arm was caught between the deadwood of the R. & D. car and the bumper of the A. O. O. car. That the bumpers are so placed as to save the car coupler from getting hurt. That he attempted to make the coupling by setting the pin on the A. O. O. ear, which was standing still, and when that ear and the R. & D. car came togetherhe threw the link upward to catch the pin and complete the coupling. That the pin did not fall when he threw his hand up, and the cars came together so quick that he did not have time to get his arm out. Says he had set the pin in the oil tank car, and held his lantern in his right hand and threw the link of the R. & D. car up as it approached, with his left hand, but the pin would not drop, as it was fast in the hole; but he could not say what caused it.

He affirms that if the drawhead of the R. & D. car had been in good conditi n, in his opinion the latter and the bumper of the oil tank car would not have come together.

Another employee of the defendant says that when the moving car is slacking up to a stationary car for a coupling and the draw-heads meet each other, there is a spring which gives way slightly, so as to allow them to meet gently, but that the bumpers do not come together.

That it is impossible for a man to couple the cars when they come together to any extent.

Another of plaintiff’s witnesses, and an employee of the defendant as foreman of the switch gang in the government yard, states that he saw and examined the'ears in question on the morning of the accident at about the hour of eight o’clock.

“ Q,. What was the condition of the R. & D. car, No. 1406?
“A. It was shopped; it was on the shop track; and, also, a tank ear next to it. The draft timber on the south end of the car and on the up-town side was smashed and broken in, and that allowed the drawhead to go in from its place — the draft timber being smashed.”

States that the drawhead of the R. & D. car had gone in some three or four inches, out of its regular position for coupling; that this permitted the deadwood and the bumper to come together.

Another of defendant’s witnesses, and an employee of the defendant as inspector of freight cars, states that he was in the service of the company at the time of plaintiff’s accident, and was engaged in inspecting cars in defendant’s government yard. States that on the 26th, previous to the happening of the accident on the 81st of July, 1865, he examined and condemned R. &. D. car No. 1406, and ordered it sent to the shop for repairs, ana prepared and placed upon it .a shop-card marked “Shop O. D.,” with this further endorsement, viz.: “ R. & D. 1406, D. bolts and D. timb. B-K.” He explains this last endorsement to mean, “ draft bolts and draft timber broken.” He states that the writing on the card is his own, and that, at the same time, he made the following entry in his memorandum book, which he identified, viz.:

“ 1406 R. D. One deadwood and one draft timber, two draw sills split. One draft timber broken, and one draft timber split and broken. One draft timber strap gone. Four draft bolts broken.”

The testimony of several witnesses supports the statement of the last witness with regard to the posting of a shop card on the R. & D. car, notwithstanding the plaintiff’s denial of any knowledge of its existence.

But conceding the fact, that the R. & D. car had been previously examined and condemned as unfit for service in the particulars that are enumerated, and that an appropriate card had been prepared and posted, the fact remains that the appliances for the coupling of the cars were badly broken and in a very crippled condition, and wholly unsuitable for use, to the knowledge of the company, and had been for five days prior to the date of the accident.

There is no doubt of the fact that these broken and defective appliances was the proximate aud immediate cause of the accident and of plaintiff’s injury, and the question to be solved is whether plaintiff had due and proper notice of the aforesaid defects, or could, by the exercise of proper care and caution, have ascertained their existence and avoided the accident.

In our opinion the plaintiff did not have proper notification of the defects in the draft timbers which caused the accident. The weight of the evidence supports the proposition that in the then condition of the draft timbers a coupling of the cars was a practical impossibility. That the broken aud split draft timbers failed to hold the drawhead of the R. & D. car in a proper position, and consequently when it approached the A. O. O. car the pin in the latter refused to drop into its place, thus preventing the coupling of the two cars.

Accepting this theory it seems quite apparent that there was no' mode of escape for the plaintiff other than to have declined the attempt to make the coupling at all, and this he affirms he would have done had he been advised of the true situation.

One of the witnesses says that, in his opinion, the accident could have’ been avoided by making the coupling underneath the draw-head — holding the link under the car. But he does not say that this is an usual or customary manner of making a coupling, and no other witness affirms that proposition; and no witness undertakes to affirm that the plaintiff was unskilful or careless in the performance of his duties.

Conceding that the shop card was properly posted and endorsed, and that this was full and complete warning to ail switchmen and car-couplers that the R. & D. car was disabled and unfit for service, it did not convey notice of the’ existence of broken and split draft timbers which rendered the coupling extra hazardous, if not well nigh impossible.

An inspection of the. original shop-card, which was brought up with the transcript in the original, discloses that the endorsement thereon, viz.: “No. 1406 D. Bolts, and D. timb. B. K.” are written with a pencil, and very indistinctly; so much so that the characters can not be readily deciphered, except by the aid of explanatory testimony. To our thinking, if the plaintiff had been sufficiently an. expert in that line to have deciphered them with ease — which, however, is not shown — it was a physical impossibility for him to have done so, with the aid of the light of a small lamp to dispel the darkness, and on the spur of the moment, the car slowly approaching.

It seems to us to be perfectly clear, that the duty was imposed upon the defendant during the 'five days which intervened between the date of inspection and that of the accident, to have taken some better means than those employed, to warn its employees on a night watch of the danger that existed in attempting to couple this R. & D. car, notwithstanding it was in its government yard and destined to the shop for repairs.

The facts of this case bring it fairly within the principles announced in Towns vs. Railroad Company, 37 An. 630, which" involved quite a similar question of damages for personal injury suffered by the plaintiff’s son while engaged in coupling idle cars on the company’s track.

In stating the law applicable to such a case the court said that the controlling weight of authority consecrates the principle that while the railroad company is not the insurer of its employees and is not necessarily bound to employ the best possible means and appliances, it is bound to exercise reasonable and ordinary care to provide such; suitable and safe apparatus as common experience shows to be proper in order to avoid exposing the lives of their employees to unnecessary danger in the discharge of their hazardous duties.”

Now while the cars in question did not belong to the defendant in the sense of property, they were in its government yard, and had been inspected and condemned by its inspector and tagged for its shop for repairs. And while it was under no duty to see to it that they were furnished wich proper appliances for coupling, it was under an obligation to properly and sufficiently forewarn its employees and ear couplers who were employed in night service, of the hazard and peril there was in coupling them in their then defective and unsafe condition.

The case of Britton vs. Railway Company, 47 Minn. 340, is applicable also. Clairain vs. Telegraph Company, 40 An. 178.

In .Myhan vs. Electric Light Company, 41 An. 964, we said that “the servant is not required to know latent, but only patent defects. Actual knowledge must be established by the master, on whom rests the burden of proof.”

In Hough vs. Railway Company, 100 U. S. 213, the Supreme Oourt said the obligation is on “ the master not to expose the servant when conducting his business, to the peril3 or hazards against which they may be guarded by proper diligence upon his part.”

The distinction between the instant case and that of Railroad Co. vs. Bowles, 71 Mississippi, 1003, is found in this, that in the latter case it was found as a fact, that the cars to be coupled “ were without drawheads and chained together; ” and this fact was appreciable on casual inspection, as the accident did not occur at night.

The two cases are easily differenced by the instructions the defendant’s counsel requested the judge to give to the jury, but which was refused, viz.:

“That plaintiff could not recover if Bowles knew of the defective condition of the cars that killed him and voluntarily exposed himself to danger; that if he was careless, and guilty of contributory negligence, causing injury, plaintiff could not recover” (p. 1005).

And so in Arnold vs. Canal Company, 125 N. Y. 15, it was said:

“In attempting to couple the cars, one of which had a broken drawhead, in order that the latter might be placed on the (cripple) track, plaintiff was injured. The defect might easily ha,ve been seen.”

In Goodrich vs. Railroad Company, 116 N. Y. 398, the court said that “ plaintiff, a brakeman in defendant’s employ, while engaged in coupling a car received from another road to cars on defendant’s track, was injured. In an action to recover damages it appeared that the accident resulted from the fact that the bumper of the said car was out of order so that it hung lower than the one of the car to which it was being coupled. Held: That the company was chargeable with negligence.”

In that case no inspection and condemnation of the foreign cars had been made so as to relieve defendant from the obligation of care 'to defendant’s employees; but had such an inspection and condemnation been made, as was done by the defendant in this case, the defendant in that case would not have relieved itself from responsibility without taking adequate means to advise its employees of the ex sting defects.

Having given all the authorities cited due consideration, under the facts we have related, oar opinion is that defendant is chargeable with negligence, and consequently responsible in damages to the plaintiff.

The plaintiff is a comparatively young man of thirty or thirty-five years of age, and has the prospect of twenty-five or thirty years longer to live. At the time of the accident he was in excellent health, and by means of his avocation was earning $2.50 per day, or an average of $65 per month of twenty-six working days, or $750 per annum. By reason of this accident he suffered great pain and his left arm was amputated just below the elbow, thus rendering him incapable of performing the duties of his avocation. He is and has been since the accident out of employment, and has an aged mother dependent on his exertions for support.

We are of opinion that the award of the jury is correct and should remain undisturbed.

Judgment affirmed.