author: Watkixs, J.

text:
    No. 13,356.
    Nancy Weathers vs. Paul Pecot, Sheriff, et als.
    Syllabus.
    where the third person enjoining a sale of real estate holds under a conveyance, valid on its face, accompanied by delivery and continuous possession as owner to the cíate of seizure, he is entitled to have his injunction sustained and perpetuated; and the creditor in such ease must resort to a direct action to set the sale aside.
    APPEAL from tire Twenty-Fomr-th Judicial District Court, Parish of St. Mary. — Allen, J.

      Milling & Sanders and John B. Roberts for Plaintiff, Appellee.

      Philip II. M-E7ÚZ for Defendant, Appellant.
   Tlie opinion of the court was "delivered ¡by

Watkixs, J.

This is a third opposition, coupled with an injunction, restraining a sale of certain real estate which had been seized by the defendant, sheriff, under a writ of execution; and the opponent claims ownership of the property in her own right, and that she is in possession under a title translative of property.

The issue involved is merely whether the plaintiff as possessor of Teal estate under a title translative of property and duly recorded, is entitled to require a creditor of her vendor to institute an action to annul the same; or, has the judgment creditor the right to disregard her possession and title, and seize the same, treating it as simulated.

Plaintiff’s claim is, that on the 20th of December, 1894, E. J. Gallery sold to her a house and lot in a village called “Freetown” in the Parish of St. Mary — said sale being evidenced by a notarial act. That she, as vendee, immediately went into possession of said property, and has since continuously held possession until a recent date, when same was seized under a judgment in a suit entitled Noveret vs. Gallery— said judgment having been rendered upon a promissory note- of a date more recent than the date of her acquisition of the property.

The seizing creditor filed an answer and alleged that the sale upon which the plaintiff claimed ownership was a fraudulent simulation and vested in her no title whatever.

On these issues, the case went to trial, and a judgment was rendered perpetuating the plaintiff’s injunction “in so far as it prohibits the direct seizure and sale of the property ■ described in plaintiff’s petition but reserved the right of the defendant to bring a direct action to set aside said transfer to the plaintiff. In the course of the argument, plaintiff’s counsel attracted our attention to the fact that the debt upon which the seizing creditor’s judgment was founded, was contracted subsequent to tbe date of her title and possession; and he contended that in such case a creditor of the vendee was without any interest to attack it, but that, in any event, conceding arguendo that the seizing creditor had the right, his further insistence is, that he had no right to disregard her title and seize the property as that of his debtor upon the assumption that her title was simulated; that on the contrary, his only remedy was by a suit to annul her title on making proof of simulation.

Upon these questions, counsel on both sides have cited quite a number of authorities.

The question here presented was examined and most exhaustively considered in the case of Willis vs. Scott, 33rd Ann., 1028, and the court, speaking through Mr. Justice Fenner as its organ, employed this language:

“In the following cases it has been distinctly decided that, where the third person enjoining held under a conveyance, valid on its face, accompanied by delivery and continuous possession, as owner, to the date of the seizure, and where the defense was, as in this ease, fraudulent simulation, a seizure, in disregard of such title and possession, could not be sustained, but the creditor must resort to a direct action, revocatory, or en declaration de simulation.

“Peet vs. Morgan, 6 N. S., 140, 580; Yocum vs. Bullet, 6 N. S., 324; Trahan vs. McMannus, 2nd La., 214; Weeks vs. Flower, 9 La., 385; Morton vs. Crosby, 14 La., 426; Presas vs. Lanatta, 11 Rob., 288; Kirkland vs. Gas Light Company, 1 Ann., 300; Collins vs. Shaffer, 20 Ann., 41; McAdam vs. Soria, 31st Ann., 864; Payne vs. Graham, 23rd Ann., 771; Samory vs. Hebrard, 17 La., 555; Laville vs. Hebrard, 1st Rob., 435; LeGoaster vs. Barthe, 2nd Rob., 389; Drummond vs. Commissioners, 7 Rob., 234; Fisher vs. Moore, 12th Rob., 95.”

In the principal case, the enjoining plaintiff claimed the ownership of immovable property, as in this case; and the Seizing creditor claimed the right to seize the property upon the ground that the plaintiff’s "title was a fraudulent simulation, as in this case.

Many cases can be cited, and were cited by the court in that case, of seizures having been justified on the ground of the claimant’s title being a fraudulent simulation, but those cases will be found to refer to that class of eases alone wherein the claimant was not in actual possession of the property at the time of the seizure.

On this question, the following cases may be consulted:

Erwin vs. Bank, 5th Ann., 1; Hughes vs. Winfrey, 5 Ann., 668; Maxwell vs. Mallard, 5th Ann., 702; Emswiler vs. Burham, 6th Ann., 710; Dosson vs. Bieller, 10th Ann., 570; Knight vs. Murchinson, 1 Rob., 31; Shadburne vs. Amonett, 7 Ann., 89; Bachemin vs. Chaperon, etc., 15th Ann., 5; Betts vs. Mougin, 15th Ann., 53; Davis vs. Stern, 15th Ann., 177; Viala vs. Burguieres, 19th Ann., 153; Guidry vs. Lyons, 29th Ann., 4; Hobgood vs. Brown, 2nd Ann., 323; Lindeman vs. Theobalds, 2nd Ann., 912; Emswiler vs. Burham, 6th Ann., 716; Simpson vs. Cleveland, 12th Ann., 173.

Afier having examined and cited authorities, the court, in the' principal case, makes this statement:

“In most of the cases in which g contrary doctrine has been indicated, it will be found that there was either entire absence, or interruption, or some infirmity or ambiguity of the possession established, which tended to rebut the presumption of ownership, and to create an indicium of simulation. Where the title, possession and control of the claimant have all been perfect and complete, on their face, it has never been held, in any well-considered case, that the transaction could be treated as such a pure simulation as to maintain a direct seizure.”

The case of Vickers vs. Block, 31st Ann., 672, is not at variance with Ihe rule stated in Willis vs. Scott, for the reason that the third person enjoining was the wife of the deceased debtor and held under a title which had not been recorded; and, consequently, that ease falls within the exception stated therein.

Very much the same may be said of Carter vs. Farrell, 39th Ann., 102, as the court referred to the opinion in Willis vs. Scott, and dif-ferenced it from the case then under consideration, as is fully shown by the following:

“In the argument of counsel it was stated that the judge a quo was governed in his ruling on this question of evidence by the authority of Willis vs. Scott, 33 Ann., 1026.

“We think he has extended the doctrine of that decision beyond its true limits.

“We there laid down the general rule, that immovable property held under a title translative of property, accompanied by 'actual delivery and continuous possession and control as owner, could not be directly seized by a creditor of the transferror; but we clearly indicated that, for the application of this rule, it was necessary that the possession and control should be ‘perfect and complete/ and when there was any interruption, or infirmity or ambiguity of the possession, established,, which tended to rebut the presumption of ownership and. create an indicium of simulation, the rule would not apply/’

In that case it was shown that the enjoining owner did not have possession of the property.

.Counsel for the defendant attracts attention to our decision in Pruyn vs. Young, 51 Ann., 320, as sustaining his view; but a reference to that opinion discloses that plaintiff admitted that he did not take corporeal possession of the property — consequently that case falls also within the exception stated in Willis vs. Scott.

The facts of this case clearly disclose that the plaintiff was in possession of the property seized at the date of the seizure under a recorded title translative of property; and therefore the decision of the District Court was properly based on the opinion expressed in Willis vs. Scott. We are, therefore, of the opinion that the judge a quo correctly held, that the seizing creditor of plaintiff’s vendor was without right to make a direct seizure, and that he should have resorted to a direct action in avoidance- of the sale. But, we are, also, of the opinion, that he properly reserved all the rights of the seizing creditor to attack the sale on the charge of simulation.

Judgment affirmed.


source: Caselaw Access Project

author: BlaNOIIAEd, J.

license: Public Domain

text:
    No. 13,281.
    State ex rel. State Pharmaceutical Association et al. vs. John T. Michel, Secretary of State.
    Syllabus.
    1. A Bill which has passed Both Houses of tñe General Assembly and been signed by tile presiding officers thereof is presented to the Governor within the meaning of the Constitution when the eicrk of the House of Representatives or Secretary of the Senate carries the same to the Executive office and offers or tenders it to the Governor, or his Secretary.
    2. The mandato of the Constitution is not that the Governor must act, in the way of a veto, within five days of his reception of a bill, but within five days of its presentation to him.
    3. The day on which the hill is presented is not to be included in the computation of the five days, but the last day of the specified period is to be computed.

      4. A “day” in this sense begins at 12 o’clock midnight and extends through twenty-four hours to the next 12 o’clock midnight.
    5. There is a general rule that where a limitation of time is fixed within which a particular act or thing is required to be done, if done at all, after which performance, or the doing of the thing, would be without effect, if the time limited exceed a week, an intervening Sunday is included in the computation ; if less than a week, Sunday is excluded.

    6. when the time stipulated is such that it does not necessarily include Sunday, Sunday is excluded from the computation without express mention of the fact; when the time stipulated must necessarily include Sunday, to exclude that day from the computation there must be an express declaration to that effect.
    7. It follows that if one of the five days accorded the Chief Executive in which to return a bill with his objections happens to be Sunday, the same is not to be computed as one of the constitutional “five days”.
    S. This view is strengthened by the general policy of the law in regard to the first day of the week, which by statute in Louisiana is made a day of “public rest”, and by the sentiment prevailing in Christian countries.
    0. whatever doubt may exist in the judicial mind as to the proper meaning to be given to the words used, it is safely resolved in favor of that construction sanctioned alike by the policy of the law and the moral sentiment of the people.
    APPEAL from the Fifteenth Judicial District Court, Parish of East Bation Rouge. — Brunot, J.

      Albert Voorhies for Plaintiff, Appellant.

      Milton J. Cunningham, Attorney General, (Charles M. Cunningham, of Counsel), for Defendant, Appellee.
   The opinion of the court was delivered by

BlaNOIIAEd, J.

This is a proceeding- by mandamus to compel the Secretary of State to promulgate as a law, duly enacted, an act of the General Assembly of the State of Louisiana, known as “House Bill No. 46” entitled “An Act to Amend and Re-Enact Act. No. 66 of the Acts of 1888, entitled “An Act to Regulate the Practice of Pharmacy; to regulate the sale of compounded medicines and drugs, preparations and prescriptions; to regulate the sale of poisons; to créate a State Board of Pharmacy, and to regulate the emoluments thereof; to prevent the practice of pharmacy by unauthorized persons, and to provide for .the trial and punishment of violators of 'this act by penalties and through civil process, and to repeal all laws contrary to, or in conflict with any of the provisions of this act.”

The contention of the relators is that at a late session of the General Assembly tbe aforesaid bill duly passed .botli Houses and was on the 8th of July, 1898, signed by the Speaker of the House of Representatives and by the Lieutenant Governor and President of the Senate; that the enrolled copy of the bill so signed was presented to the Governor of the State on the same day, July 8, 1898, for executive approval; and that the act not having been returned by the Governor within five days thereafter, the General Assembly continuing in session, it had become a law as though the executive signature in approval thereof had been attached.

The further contention is that application was made to the Secretary of State to promulgate the act in accordance with law, and that he refuses to do so.

To the preliminary writ, requiring him to show cause why the act should not be promulgated, the Secretary of State, through the Attorney General, answers, in effect, that he should not be required to promulgate the act as a law of the State for the reason that the same was vetoed by the Governor within five days after he received the same at' the hands of the Messenger of the House, and was not, subsequently, passed by the action of the two houses of the General Assembly, the Governor’s veto to the contrary notwithstanding.

The case was tried below on the following admission of facts:

“It is admitted that House Bill No. 46, after being signed by the Speaker of the House and Lieutenant Governor on the 8th of July, 1898, was carried to the Governor’s office about ten .or eleven o’clock on the night of July 8th. That the Governor’s private secretary had gone home and that the Governor declined to receive the bill at that hour. That this bill was in a batch containing a large number as shown by the receipts; that on the next day, July 9th, the bills were delivered to the Governor, and he signed a receipt which had been prepared on July 8th without noticing the date. That the engrossed copy of the bill, along with the copies of the other hills included in the same receipt, was delivered to. the Secretary of State at four P. II. on July 9th, as shown by memorandum made by the Secretary of State at*that time. That the Secretary of State also signed a receipt for this bill, together with the other bills, dated July 8th, without noticing the date.

“It is further admitted that the Governor’s veto reached the House • of Representatives at eleven-twenty P. M. on July 14th, just before adjournment, and that the House did finally adjourn that night at twelve o’clock without acting on the veto. That the Governor takes no note of the hour that a bill is received or the hour when a veto is sent in. But the Secretary of State noted the hour that he received the engrossed, copy of House Bill No. 46, and the Clerk of the House noted the hour at which the veto came in.”

There was judgment refusing to make the writ peremptory and dismissing the action at relators’ cost.

This appe'al followed.

The question first arising for determination is what constitutes a presentation of an act of the General Assembly to the Chief Executive for his action, under the Constitution.

If the act known as “House Bill No. 46” were, in the constitutional sense, presented to him on July 8th, and he did not return the same with his veto to the House in which it originated until more than five days after such presentation, then the act must (unless an intervening Sunday — one of the five days- — is excepted from the computation) be considered as having become a law, and the veto without effect to prevent that consummation.

Article 41 of the Constitution is imperative that: “As soon as bills are signed by the Speaker of the House and President of the Senate, they shall be taken at once, and on the same day, to the Governor by the Clerk of the House of Representatives, or Secretary of the Senate.”

The bill in question was signed by the Speaker of the House and President of the Senate on July 8th, 1898. It, therefore, became the duty of the Clerk of the House to take it at once, on the same day, to the Governor and he did so. It was between ten and eleven o’clock at night, it is true, but the Governor was in his office at 'the Capitol building and it was “the same day” on which the presiding officers of the two Houses had attached their signatures to. the bill.

If the Clerk of the House had not taken the bill that day, at once after its signature by the presiding officers of the two Houses — .certainly before twelve o’clock midnight — to the Governor, he would have failed in the duty prescribed for him by the organic law.

Article 16 of the Constitution declares that: “Every bill which shall have passed both Houses shall be presented to the Governor. If he approve it, he shall sign it; if not, he shall return it, with his objections in writing, to the House in which it originated, etc.”

The language is “every bill * * * shall be presented to the Governor.”

Here, the bill was carried to the Governor’s office; it was at night; the Governor’s private secretary had gone to his home, but the Governor himself was there; the Clerk of the House made known the object of his visit; the Governor declined to receive the bill; the clerk withdrew and returned with the bill the next day, July 9th, 'IS98, when it was received by the Governor and a receipt signed dated J uly 8th, 1898. It seems this receipt had been prepared by the clerk the evening previous, expecting the bill to be then received by the Governor, and the next day when it was signed the date was not noticed.

Undoubtedly the object of the Clerk of the House in going to the Executive office on the night of July 8th was to fulfill his constitutional duty of presenting the bill to the Governor on the same day on which the presiding1 officers of the two Houses had signed it. When he made known the purpose of his visit to the Governor and tendered the bill, it was a presentation of it in the constitutional sense, and the fact that the Governor declined to then, receive it did not render nugatory and ineffective this presentation.

To hold otherwise would put it in the power of the Chief Executive to delay at will the presentation of a bill to him, something the Constitution is careful to guard against.

“If any bill,” says the last clause of Article 76 of the Constitution, “shall not be returned by the Governor within five days after it shall have been presented to him, it shall be a law in like manner as if he had signed it, unless the General Assembly, by adjournment, shall prevent its return, in which case it shall not be a law.”

The mandate of the organic law is not that the Governor must act, in the way of a veto, within five days of his reception of a bill, but within five days of its presentation to him.

If it were the first, he might by not receiving a measure hold it up until within five days of the end of a session of -the General Assembly, then receive it, and the adjournment taking place would prevent its return, thus defeating its becoming a law, or in case it was returned with a veto message just prior to adjournment, action on the veto by the two Houses would be prevented.

But the presentation of the measure being made to him — an offer of it to him, a tender of it to him — it can make no difference that he does not receive it. The constitutional requirement is fulfilled and from that moment the delay begins to run and he must act, if his purpose be to veto, within five days.

See Opinion of Justices, 45 N. H. 611, et seq.

The bill in question having been presented on July 8th, the Governor was entitled to “five days” for its consideration. Within that period he must return it with his objections, or else it becomes a law the same as if he had signed it, unless the General Assembly, by adjournment, shall prevent its return, etc.

“Adjournment” as here used means final adjournment at the close of the session; not adjournment for the day, or for several days during the session.

Opinion of Justices, 45 N. H. 610.

If the House in which the bill, proposed to be vetoed, originated, should happen not to be in session when the Governor’s message arrived, delivery of the bill, with the Governor’s objection, to the presiding officer of the body, or to its clerk, would seem, according to the adjudicated cases, to suffice; and in case neither the presiding officer, nor the clerk, can be found, its deposit on the presiding officer’s table or desk, or in the office of the clerk would, doubtless, likewise suffice.

See 45 N. II. 609, 610.

The day on which the bill is presented to the Governor is not to be included in the computation of the five days, but the last day of the specified period is to be computed.

Sheets vs. Selden, 2 Wallace 190; Corwin vs. Comptroller, 6 Richardson (S. C.) 394; People vs. Hatch, 33 Ill. 14, 138; Price vs. Whitman, 8 Cal. 412, 417; Iron Mt. Co. vs. Haight, 39 Cal. 541; Dwarris on Statutes, 768, 769; In re. Senate Resolution, 21 Pac. Rep. 475 (9 Col. 632).

A “day” in this sense begins at 12 o’clock midnight and extends through twenty-four hours to the next twelve o’clock midnight.

2 Bl. Comm. 141; Black’s Law Dictionary, verbo “Day”; Opinion of Justices, 45 N. H. 610.

The Governor has the whole of the twenty-four hours constituting a day. He has what is called a natural or astronomical day — not an artificial day. Bouvier, referring to “a day” as a division of time, says in its natural sense it consists of twenty-four hours, or the space of time which elapses while the earth makes a complete revolution upon its axis. Law Dictionary.

See also Abbott's Law Dictionary, verbo “Day", and 33 Ill. 137.

In this case the bill is held to have been “presented” to the Governor on July 8th. Excluding- that day from computation, the five days given him by the Constitution for its consideration began at twelve o’clock midnight just as the twenty-four hours constituting the 8th of July ended, and the twenty-four hours constituting the 9 th of July began. Ordinarily, then, he was entitled to the twenty-four hours, respectively, of the 9th, 10th, 11th, 12th and 13th of July in which to consider it and return it with his objections.

But the 10th of July, 1898, was Sunday, and of this the Court takes judicial cognizance.

As a consequence, the question next arising for determination, is. does Sunday count in the computation of the five days? Is it to be included or excluded?

If the first, then the Governor’s veto of the measure on July 14th came too late; the bill had meanwhile become a law and thereafter its efficacy as such could not be destroyed by the veto message.

If the second, the veto message, reaching the House of Representatives, where the bill originated, at any time during the hours constituting July 14th, was timely.

There is a rule of general, though perhaps not of universal, acceptance, that where a limitation of time is fixed within which a particular act or thing is required to be done, if done at all, after which performance, or the doing of the thing, would be without effect, if the time exceed a week, an intervening Sunday is to be included in the computation; if less than a week, Sunday is to be excluded. Am. & Eng. Ency. of Law, vol. 26, p. 10; Haley vs. Young, 134 Hass. 366; Anonymous, 2 Hill (N. Y.) 375; Thayer vs. Felt, 4 Pick. (Mass.) 354; Hannon vs. Tourbillott, 10 Allen (Mass.) 494; 112 Mass. 59.

Consideration of this rule commends its wisdom.

The Federal Constitution allows the President of the United States ten days, Sundays excepted, to return a bill with his objections after its presentation to him.

Many of the States of the Union allow ten days, Sundays excepted.

Some allow a less number of days, Sundays excepted, and others a less number of days without mentioning 'Sunday.

Where there has been an omission to except Sunday in the constitutional provision, and cases have gotten into the courts, no authoritative announcement of the rule to be followed has been laid down, so far as our research has extended. Indeed, no decision covering the exact case has been found anywhere.

There appear to he no adjudications on this point by this court in the past, though for more than thirty years the constitutional provision has been as it is now, viz: — that if any bill shall not be returned by the Governor within five days after its presentation, it shall be a law, etc. — Sunday not mentioned.

The Constitutions of 1868, 1819 and 1898 all so declare, while the four earlier Constitutions — those of 1812, 1845, 1852 and 1864 — gave the Governor ten days in which to return a bill with his objections, Sundays excepted.

It would seem that since the earlier constitutions expressly excepted Sunday and the later constitutions did not, the intention of the framers of the later constitutions was that Sunday should be counted in the five days allowed the Governor.

.But this first impression is obliterated when we consider and apply the general rule above referred to.

Under the operation of that rule, had not the framers of the earlier constitutions expressly excluded Sundays from computation in the ton days given the Governor, then Sunday would have been counted; whereas since, in the later constitutions, five days only are allowed— a time which does not necessarily include a Sunday — that day (Sunday), happening to be one of the five days, is excluded from the count.

Where the time stipulated was such that it did not necessarily include Sunday, Sunday is excluded from the computation without express mention of the fact; where the time stipulated must necessarily include Sunday, to exclude that day from the computation there must be an express declaration to that effect.

Such is the effect of the general rule laid down, and the framers of she several constitutions under which the State has been governed are presumed to have intended the language and phrases used in consonance therewith.

It follows that if one of the five days accorded the Chief Executive in which to return a bill with his objections happens to be Sunday, the same is not to be computed as one of the constitutional “five days”.

This view is strengthened by the general policy of the law in regard to the first day of the week, and by the sentiment prevailing in Christian countries.

In law Sundays are generally excluded as days upon which the performance of any act demanded by the law is not required. They are held to be dies non juridici.

And in the Christian world Sunday is regarded as the “Lord’s Day”, and a holiday — a day of cessation from labor.

By statute, enacted as far back as 1838, this day is made in Louisiana one of “public rest”. Revised Statutes, Sec. 522; Code of Practice, 207, 763.

This is the policy of the State of long standing and the framers of the Constitution are'to be considered as intending to conform to the same. They had the power to have written in the provisions of the organic law, stipulating the time in which the Governor should return a bill with his objections, words which would have signified an intention to depart in such instance from the policy of the law, but it was not done. When they ordered merely that he must return the bill within five days after its presentation to him, they must be held to have meant days other than those of “public rest”.

Whatever doubt may exist in the judicial mind as to the proper meaning to be given to the words used, it is, we think, safely resolved in favor of that construction sanctioned alike by the policy of the law and by the moral sentiment of the people.

The Governor of the State has five days in which to consider a bill presented to him before he is compelled to return it with his objections, and in this computation of days he may exclude an intervening Sunday or other legal holiday.

lie vetoed the bill involved in. this controversy on the 14th of July, which was timely, considering that the 10th of July was Sunday.

As it was not thereafter passed by the two Houses of the General Assembly by the requisite constitutional vote, his veto to the contrary notwithstanding, the measure did not become a law, and the case of the relators falls.

In reaching the conclusions announced above the fact that there is no constitutional prohibition against the General Assembly sitting on Sundays has not been lost sight of. The General Assembly has not heretofore generally held sessions on Sunday, and consideration of what would be the effect of a session on that day, in so far as making' the same count, notwithstanding it was Sunday, in the computation of the five days allowed the Governor in which to return a bill with his objections, does not properly arise herein.

It is, therefore, unnecessary to determine the same now, and opinion is reserved.

Judgment aifirmed.

Rehearing refused.


author: Nicholls, C. J.

text:
    No. 13,431.
    O. R. Moss vs. Newhouse & Foraz.
    Syllabus.
    To warrant the Supreme Court in entertaining jurisdiction of an appeal ‘from a judgment in a justice court taken upon the ground that the legality or constitutionality of an ordinance imposing a fine or tax was in contestation therein, it must not only appear that pleadings in the case raised that issue, but the facts therein called for that issue and for a decision thereon.
    APPEAL from the Third Justice’s Court, Parish of Calcasieu.— Wasey, J.

      A. B. Mitchell for Plaintiff, Appellant.

      E. J). Miller for Defendants, Appellees.
   Statement of the Case.

The opinion of the court was delivered by

Nicholls, C. J.

The defendants are butchers, residing in the Third Ward of the Parish of Calcasieu, and slaughter their cattle in that ward.

The plaintiff’s demand against them was for three dollors and fifty cents, as inspection fees due him as an “inspector of butchered cattle and stock,” under an appointment as such from the Police Jury of the Parish of Calcasieu.

Plaintiff, in his testimony, declared “the account sued on was true and correct according to the charges fixed by the ordinance of the Police Jury, under which he was acting.”

The ordinance referred to was as follows:

“On motion duly seconded and carried: ‘Be it ordained by the Pólice Jury of Calcasieu Parish, that the Police Jury be and is hereby authorized to appoint an inspector of slaughtered cattle, or cattle to be slaughtered in the parish, and said inspector of cattle shall receive from the owner of such slaughtered cattle,” * * * (fixing rates).

The defendants, assuming that plaintiff’s demand was based upon the above ordinance, attacked its legality on various grounds.

The justice of the peace, after hearing evidence, rejected the demand, and plaintiff, under the belief that the case was appealable to this court, has brought it before us for decision under Article 86 of the Oonstitution.

The ordinance shows that the plaintiff was not appointed by the Police Jury “an inspector of slaughtered cattle,” or “cattle to be slaughtered in the parish,” but as “inspector for the Third Ward of the Parish of Calcasieu.”

The judgment of the justice of the peace was as follows:

“This cause coming up regularly for trial after issue joined by answer filed, and the law and the evidence being in favor of the defendants, and aginst the plaintiff, it is by reason thereof, ordered, adjudged and decreed that plaintiff’s demand be and the same is hereby rejected at his costs.”

The judgment does not pass upon the legality or constitutionality of the ordinance, and the particular grounds upon which it was based do not appear. It is true that the defendants, in their pleadings, attacked the legality of the ordinance of the Police Jury, but the evidence shows that plaintiff’s appointment was not based upon that, ordinance, and the only inspection fees fixed therein were those of the particular officer authorized to be hppointed thereunder.

Defendants’ attack on the ordinance was, therefore, uncalled .for by the facts, and any decision upon its legality would have been made independently ef any issue actually in the case.

It may well be, and we so assume, that the judgment rendered was based upon the facts which were developed in the evidence, and that the court held that the tariff of fees fixed by the ordinance did not apply to the services rendered by him, and, therefore, he could not recover.

To justify an appeal to this court, from a judgment on a claim of’so small an amount as that advanced by the plaintiff, the facts, which alone authorize the appeal, should affirmatively appear.

We can not take jurisdiction of a case simply because the pleadings in it have raised the question of the legality or constitutionality of a municipal ordinance. The judgment rendered must have turned upon that issue, and not upon issues of fact under which the determination of the question of the legality of the ordinance would entirely disappear.

We think this appeal should be and it is hereby dismissed.


author: Monroe, J.

text:
    No. 13,315.
    Mrs. Anna C. Wegmann vs. Peter Wegmann, Dative Tutor in Succession of Joseph Wegmann.
    Syllabus.
    Where a natural tutrix has been destituted of the administration of the minors’ estate and, thereafter, files a final account of her tutorship, which she asks to have homologated contradictorily with a dative tutor, appointed to the minors, who opposes the account, the amount in dispute is the difference between that admitted to be due to the minors and that claimed in their, behalf.
    APPEAL from the Civil District Court, Parish of Orleans.— Rightor, J.

      E. Howard McCaleb, Jr., for Plaintiff in Rules, Appellee.

      James B. Rosser, Jr., for Dative Tutor, Defendant in Rules, Appellant.
   On Motion to Dismiss Appeal.

The opinion of the court was delivered by

Monroe, J.

Mrs. A. C. Wegmann, appellee, moves to dismiss an appeal taken by Peter Wegmann, dative tutor, appellant, upon the grounds, to-wit:

1. Partial acquiescence, by the appellant, and resulting want of jurisdiction in this court, rations materiae.

2. Want of proper parties to the appeal..

There have been filed in this court, with the motion to dismiss and as proof of the partial acquiescence alleged, three documents, together with a certificate from the clerk of the District Court, to the effect that they were not included in the transcript of appeal, for the reason that they were filed after the rendition of the judgment appealed from.

It appears from the record that Mrs. A. 0. Wegmann was the widow in community of Joseph Wegmann, deceased, and natural tutrix of, her minor children, issue of the marriage; that, in this latter capacity, she administered the estate from 1893 to 1898, when she was desti-tuted of the administrative tutorship, though allowed to retain the custody of the persons of the minors, and that Peter Wegmann was appointed dative tutor, for the administration of the property. Mrs. Wegmann, thereafter, filed a suit for a partition as between herself and the minors, and a judgment was rendered decreeing the partition, ordering a sale of property to effect the same, and referring the parties to a notary for its completion. She, subsequently, and before the completion of the partition,' filed a final account of her tutorship, exhibiting a balance due to the minors of $7,627.71. This account was opposed by the dative tutor, on the grounds: (1) That in the matter of the sale of certain stock the accountant should be charged with $1,150.00, instead of $690, as appears on the account; (2) that certain disbursements, charged against the community and aggregating $623.80, should be disallowed, in so far as they affect the minors; (3) that the sum of $500.00, claimed by the accountant as paraphernalia, should not be allowed.

A few days prior to the filing of this account, Mrs. Wegmann had taken a rule to compel the tutor to allow, from the revenues of the minors, sufficient alimony for their support, and the opposition to the account and the rule for alimony were disposed of by the judge a quo, upon the same day, but by separate judgments. Application for appeals from both judgments was made, by means of one petition, and the appeals were granted by one order. The motion to dismiss, however, refers only to the appeal from the judgment on the opposition.

It seems to us that the only question which could be presented on this appeal is whether the tutrix, by reason of her gestión, owes the minors $7,627.71, as stated in the account, or whether she owes them $7,627.71, as increased by the amendments which they claim should be made to that account. But the total amount involved in these amend-meats is only $1,583.80, so that, if the account should he amended as prayed for, and the minors should benefit thereby to the extent of the whole amount involved, the amount in dispute could not be more than $1,583.80, which is below that necessary to give this court jurisdiction. It will be observed that this is not a case of an account filed by an administratrix, exhibiting a fund for distribution, in concurso. It is simply a case of a tutrix who has been destituted, and who contradictorily with the dative tutor, appointed in her place, has filed a final account of her tutorship, which, being opposed on behalf of her wards, presents the question whether she owes them the amount acknowledged on the account, or the greater amount claimed for them, and the amount in dispute is the difference between the amount admitted to be due and the amount claimed.

Under these circumstances, we are of opinion that this court was without jurisdiction of the appeal originally, and that said appeal should have been taken to the Court of Appeal.

We think it proper to remark, that the documents which are relied on by the appellee, for the purpose of showing acquiescence, appear to be original documents, which were filed in the Civil District Court, and which have now been filed in the clerk’s office of this court, at the instance of the counsel, in connection with the motion to dismiss. This is not a practice which we can approve, and whatever consideration properly certified copies of these documents might have been entitled to, if we had found it necessary to deal with that question, we should have felt constrained to decline to notice the originals, which, as we think, in the interest of an orderly administration of justice, should have been allowed to remain in, and should now be restored to, the court from which they were removed, and in which persons interested have the right to expect to find them.

For these reasons, it is ordered, adjudged, and decreed, that the appeal herein taken by Peter Wegmann, dative tutor, from the judgment rendered upon his opposition to the account filed by Mrs. A. M. Wegmann, as tutrix,'be dismissed, without prejudice, however, to any right which the appellant may have to prosecute an appeal from such judgment to the Court of Appeal for the Parish of Orleans, the costs of the present appeal to be paid by the appellant.

Rehearing refused.


text:
    No. 13,099.
    The City of New Orleans vs. Victor Kientz.
    Syllabus.
    1. The city of New Orleans having the undoubted right and authority to establish markets for public health and convenience by ordinance, and to lease the same, has the authority for the protection of its lessees, to pass an auxiliary ordinance, prohibiting parties from selling at or near the markets, products which are sold in the same. Morano vs. Mayor, 2nd La., 219-220; State vs. Saradat, 46r.h Ann., 700.
    2. Having the authority to absolutely prihibit parties from selling at the public markets the products sold thereat, it has authority with the consent of the lessees to permit them to sell the same at the markets, on condition of their paying each day for the privilege the price paid daily by the occupants of stalls, where the privilege is extended to all alike.
    An ordinance granting such privilege does not impose a tax or compulsory license, as parties determine for themselves whether they shall sell or not.
    APPEAL from the Second Recorder’s Court, City of New Orleans. —Grand] ean, J.

      Charles S. La Villebeuvre,. Assistant City Attorney, and Samuel L. Gilmore, City Attorney, for Plaintiff, Appellee.

      Buch, Walshe & Buck and Sambola & Dueros, for Defendant, Appellant.
   The opinion of the court was delivered by

Nicholls, C. J.

Defendant appeals from .a judgment against him by the Fourth Recorder of the City of New Orleans, condemning him to pay a fine of twenty-five dollars, or to an imprisonment of thirty days for having wilfully and unlawfully and maliciously violated Section 26 of Ordinance No. 4155, C. 'S., as amended by City Ordinance No. 12,632, which reads:

“That owners or persons in charge of any cart or wagon for the conveyance of vegetables to the public markets of this city, shall have the right to back the same up to the banquettes around said markets, except between the hours of seven o’clock and ten o’clock a. m., which time is set aside for the cleaning and keeping the markets in proper sanitary condition, and shall have the right to sell and deliver vegetables from such carts or wagons at wholesale only, by which is meant selling to dealers for resale, and shippers of vegetables; provided, that said owners, or persons in charge of carts or wagons, shall lease space and market room, not less than twelve and a half square feet in area, in said market, and pay to the Commissioner of Police and Public Buildings, through his inspector, collector or collectors, or the lessee or lessees, or his or their collector or collectors, for the space and market room so leased by them at the rate of two cents per day for each and every square foot of space or market.room leased; provided, that said sum shall not exceed twenty-five cents per day to each owner, owners or person in charge of carts or wagons; provided further, that said owner or owners, or person or persons, in charge of such carts or wagons may deliver goods previously sold to occupants of stalls or stands during- any hour without occupying space in said market, and without the payment of any market fees or dues, and, provided fuHher, that in taking 'their positions, said carts or wagons be separated at least three feet in order to allow pedestrians to cross from one side of the street to the other, and that any violation of the above shall subject the offender to the penalty stipulated in Section 32 of this ordinance; provided further, that the owner or owners, or persons in charge of carts or wagons, who do not lease space and market room in said markets, as herein provided for, shall be subject to all the provisions of existing ordinances, and shall have all the rights now secured to them by Section 26 of Ordinance No. 4155', as it originally reads.”

The article read, originally, as follows:

Section 26. “That each and every cart or wag-on, for the conveyance of vegetables to the public markets of this city, shall have the right to back up to the banquettes alongside of said markets; provided, however, that between the hours of seven o’clock a. m. and two o’clock p. M., they shall not be permitted to make sales therefrom; may deliver goods previously sold to occupants of stalls or stands during any hour, and no market fees or dues shall be collected from said wagons, and provided further, that in taking their position they be separated at least three feet in order to allow pedestrians to cross from one side of the street to the other, and that any violation of the above shall subject the offender to the penalties stipulated in Section 32 of this ordinance.”

Defendant filed an exception to the complaint, submitting to the court that all proceedings against him should be stayed and quashed, and the affidavit made be decreed null and void, illegal, and wholly defective, on which no prosecution can be had, for the reason that same is vague, and does not specifically charge the accused of what part or parts of the Ordinance No. 4155, Section 26, and amended by Ordinance 12,632, Council Series, he is accused and to be tried for. part or parts of the Ordinance No. 4155, Section 26, as amended by Ordinance 12,632, embraces a number of separate and distinct provisions and requirements, and the accused should be informed which of them, or which one of them, he is charged to have violated.

The exception was overruled.

Defendant, under reservation of the exception, answered. He pleaded “that he was not guilty of any matter provided for in Section 26, ns amended, which he averred was absolutely illegal, null and void, and unconstitutional, for the reasons assigned by him.”

He averred that he was engaged in the business of truck farming, or raising vegetables for daily consumption, and in the necessary management of his business brings the same, according to usage and custom which has prevailed in this city immemorably, to the public markets for sale to the retailers and persons having stalls in said markets, where they sell at retail prices to daily consumers; that he is informed, and believes, that the only violation of said pretended ordinance and ordinances, which he was charged to have violated, was the proviso that owners, or persons in charge of carts or wagons, shall lease space and market room not less than two and one-half feet in area in said markets, and pay to the Commissioner of Police and Public Buildings, through his inspector, collector or collectors, or the lessee or lessees, or his or their collector or collectors, for the space and market room so leased, both at the rate of two cents per day for each and every square foot of space or market room leased, etc.; that in so far as this ordinance under which he was attempted to be prosecuted imposes a payment of this sum per day, as a condition precedent to his right to sell at wholesale or retail to consumers, or others, the product of his own labor, it was absolutely null, void, and unconstitutional, for the reason that he could not be subjected, for the purposes of a condition precedent to his right to sell the products of his own labor, to the payment of any tax or license; that said ordinance, in this regard, purported and attempted to impose a tax or license for revenue, and that whether it be such tax or license for revenue, it was absolutely null and void and unconstitutional; and, further, said ordinance should have been held, in this regard, illegal, null and void, as absolutely unreasonable, inequitable, unjust and oppressive on its face; that market space, or area, is for the benefit of the public except that actually covered by stalls, and the pretense of making him, for the privilege of backing his cart against the banquettes around the markets, rent a certain space of area, at the rate of two cents per square foot, was absurd, preposterous, and unreasonable on its face, wholly ultra vires on the part of the city of New Orleans, and null and void for this reason as well as for the reason that, if said exaction was intended as a tax or license for revenue, it was illegal and unconstitutional for want of power on the part of the city of New Orleans to impose it.

In view of the premises, he prayed that his exception be maintained; that said Section 26 of said ordinance, and the amendment thereto, be decreed illegal, null and void and unconstitutional.

OPINION.

In the brief filed on behalf of the city, it is said, upon the authority of State vs. Dunbar, 43 Ann., 836, and 'State vs. Baker, 44 Ann., 79, that “the precision required in indictments for crime, before courts of record, is not applicable to affidavits against violators of municipal ordinances, before Recorder’s Courts.”

That is true, but we have nowhere said that an affidavit, charging a certain person simply with having violated a particular ordinance, and giving merely the number of the same, comes up to the requirements of the law.

An affidavit of that particular kind seems to be the one now generally adopted before the Recorders of the city of New Orleans.

We take this .occasion to say that an affidavit so worded is grossly insufficient, and the Recorders should insist upon a more definite one.

The complaint should state wherein and in respect to what the particular ordinance has been violated.

The Constitution of the State authorizes all parties threatened with a fine, under an ordinance, to appeal to the Supreme Court when the lgeality of constitutionality of the fine has been u^ged in the Recorder’s Court by the defendant.

Where that defense has been set up, and defendant has appealed from an adverse judgment, the record should be in a situation to enable this court to ascertain whether appellant is so situated as to entitle him to raise that particular defense.

An ordinance may be, to some extent, illegal or unconstitutional, and to some extent legal.

If the legal portion would have justified a charge and a judgment against defendant, he would have had no concern whether the other parts of the ordinance should be legal or not. State vs. Riley, 49 Ann., 1618.

If, however, the illegal portion should have been precisely that upon the strength of which the judgment had been rendered, the appellate court, not knowing upon what branch of the ordinance the judgment had been based, would assume, to defendant’s irreparable injury, that it was justified by the law and the facts.

In the case at bar the admissions of parties, and the judgment of the court, have brought us to a knowledge of the legal situation.

It was admitted that defendant is a gardener; that having a cart, with vegetables, he was stationed in a place where, if the ordinance was legal, he should have paid the fee.

It was further admitted that he did not pay, but had refused to pay the same, upon the grounds stated in the demurrer.

The Recorder found, as a fact, that he had sold at retail, and refused to pay the fee provided for by the ordinance.

The matter before us is the legality of the judgment appealed from, rendered upon this state of facts.

The action we are dealing with is not one seeking to recover the fee or license, or tax, from the defendant. He has not paid, and the city is not attempting to force him to do so.

As matters stand, defendant, owner of a cart for the conveyance of vegetables to the public market, has backed the same up to the banquette around the market, and sold goods from such wagon- at retail.

lie was prohibited from doing so by Section 26 of Ordinance 4156.

Was the City Council authorized to pass this particular ordinance?

We think it was, for the reasons assigned by this court in State vs. Sarradat, 46 Ann., 700.

The city having established a public market, and leased the same to parties who had paid it a large amount for the market privilege, it was its duty and its right to protect its lessee in the premises. The ordin-anee was an auxiliary ordinance for that purpose. As said in Morano vs. The Mayor, 2 La., 219: “No one would rent a stall to sell meat in the market house, or any of those stands, if butcher’s meat, or oysters, could be sold in a temporary stall near the market house, or elsewhere, or sell oysters at any other stand.”

But appellant says that the original Section 26 has been amended, and gardiners are now permitted to sell from their carts, each day, provided they lease, each day, a certain space in the market at a rate fixed, and pay the same to the Commissioner of Police and Public Buildings, or the market lessees or their collector, and the City Council is without authority to force him to lease such space and pay for the same.

There is no obligation imposed by the city on defendant to lease a space in the market, or to pay for the same.

Tie is perfectly at liberty, under the original ordinance, to back his cart up to the banquette and deliver his produce to, the occupants of stalls, to whom he had previously sold them, without payment of any sum to any person.

lie is under no obligation to make sales from his wagon at the banquette.

If he does so, it i's a matter of pure choice on his part. If the city has the right to absolutely prohibit the making of sales from carts at the banquette, defendant can not complain that an absolute prohibition should have been changed into a conditional permission, unless such conditional permission should work a discrimination between parties similarly circumstanced.

We do not perceive, in the ordinance complained of, that a special right or privilege has been given to any one. We think the object of this conditional permission is obvious. As the purpose of the absolute prohibition was the protection, by the city, of its lessee from sales made from wagons at the banquette to the prejudice of his rights under the lease, it was competent for the city, with his consent, to have either repealed the prohibition altogether or to modify it to an extent which he might deem consistent with that protection, provided all outside parties should be placed upon an equality.

It is apparent that the lessee has consented that sales should be made from the wagons, on condition of the parties selling from the wagons being placed in the same position which they would occupy if they each occupied a stall inside the market.

Tho space referred to, as that which the wagon owner is to lease, is evidently that covered by a stall, and the price to be paid daily is that chargeable for a stall.

If the market would be able to draw pay from the wagons corresponding to the same number of additional stalls, his reasons for objections to sales from the wagons would disappear.

The only parties who would have cause to complain of this state of affairs would seem to be the lessees of actual stalls inside the market, by the increased number of sellers of produce.

We do not see that defendant is injured in any way by the change. He says he has been illegally condemned to pay a fine for not paying the fee demanded of him, but we think there is error in this.

It is true that the Recorder has found the defendant guilty of selling, at retail, without paying the fee provided for in the city ordinance, and it is true also that if he had paid the fee there would doubtless have been no charge brought against him, but the actual fact is, none the less, that he has been condemned for illegally selling vegetables, at retail, from his wagon backed up against the market banquette.

There is no coercion brought against him through this proceeding to make him pay the fee — only coercion to make him desist from selling, at retail, from his wagon.

Should there be any coercion towards making him pay a daily fee or rent, it would only be by way of indirect conséquence or result, and an election to pay rather than to desist from making sales.

In one sense this may be said to be compulsory — that is to say unwillingly done by him, but in no sense can it be said that he was coerced by the ordinance into either making sales or paying for market space.

We are of the opinion there is no error in the judgment, and it is hereby affrmed.

Rehearing refused.


author: Breaux, J.

text:
    No. 13,371.
    Succession of Thomas Barber and Dorcas Barber; Application of Woodley Watson for Administration; and Opposition Thereto by Clara Barber.
    Syllabus.
    1. The order placing the surviving wife in possession as an heir of the property of her husband, is null and void. It appears that there are debts due by the succession, and that it is such a succession as should be settled by an administrator. This court holds that an administrator must be appointed.
    2. One of the two parties asking for the administration of the succession being the surviving wife who is an heir and the other being one who asserts that he is a creditor of said succession, the court, as held in repeated decisions, appoints the surviving wife and heir administratrix, as she has preference over any creditor.
    APPEAL from the Fifth Judicial District, Parish of Morehouse.— Potts, J.

      Andrew Augustus Guriby for Woodley Watson, Applicant, Appellant.

      Madison & Madison (William Andrew Collins, of Counsel,) for Opponent, Appellee.
   The opinion of the court was delivered by

Breaux, J.

Appellant, Woodley Watson, alleging that he is a creditor of the Succession of Thomas Barber, who died intestate on the 18th day of July, 1899, applied for the administration of his succession and of the succession of his first wife, Dorcas Barber, who died on the seventh day of May, 1899. It appears that on the third day of August, 1899, Clara Barber, second wife of Thomas Barber, addressed a petition to' the judge of the District Court to be-recognized as sole heir, and to be placed in possession of his property. The application was granted ex parte. Watson avers that no notice was given of this application; that no inventory was taken, and that no attorney for absent heirs was appointed, and that, in consequence, he is in time, to be appointed administrator of the succession, as the ex parte proceedings are void as to him.

In bis application for the administration, Woodley Watson alleges that Thomas Barber left debts which are still unpaid, and that he is one of the creditors in a stated amount, and for this reason he claims the appointment of administrator of the successions of both Thomas Barber and Dorcas Barber, husband and wife.

It appears that Americus Watson was the only child of Dorcas Watson, born prior to her marriage with Thomas Barber, and Woodley Watson was the child of Americus Watson and the grandchild of Dorcas Watson, afterward Barber.

Clara Barber, the second wife of Thomas Barber, opposes the application of Woodley Watson for the administration of the successions, denies that he is a creditor of the successions, and avers that the community of acquets and gains between Thomas Barber and Dorcas Barber has been settled between Americus Watson, the only child of Dorcas Barber, and Thomas Barber; that she, the opponent, has been judicially placed in possession of the succession property left by Thomas Barber; and she alleges further that there is cash to the credit of the succession greatly in excess of all and any debts the succession might owe.

She, also, alleges that Americus Watson was an adulterous bastard, and that Dorcas Barber died without lawful ascendants, descendants, or collaterals.

The opponent avers that in the event of its; being held that an administrator of the succession, and of the community, is necessary, that as heir and survivor in community, she is entitled to the appointment.

Woodley Watson was reared by Thomas Barber and his wife. He was sent to school by them, and acquired enough education to enable him to keep their books and see to other business in which they were interested. He was quite useful, as neither Thomas Barber, nor his wife, could either read or write.

At the death of Dorcas Barber, in 1889, her estate was not regularly opened, but the community which had existed between Thomas Barber and Dorcas Barber was settled by an act of partition entered into in the year 1899 between Thomas Barber and Americus Watson, the only child and heir of Dorcas Watson. To sustain his claim, that he is a creditor, Woodley Watson testified to some length, and other witnesses were also examined in his behalf.

The judge of tbe District Court pronounced judgment, rejecting the application of Woodley Watson for the administration of the succession of Thomas Barber, and of the community formerly existing between Thomas Barber and Dorcas Barber, reserving to him whatever rights he may have to sue Clara Barber, who is now in possession of the property under an ex parte order nf court.

From this judgment, Woodley Watson prosecutes this appeal.

We are informed, by the record, that these litigants are colored people, who, by thrift and industry, have accumulated some property, and we infer, from the evidence, that they enjoy the good will of the community in which they have their residence.

Three questions arise: First, the necessity vel non of appointing an administrator to settle the succession; second, whether the applicant, Woodley Watson, is entitled to the administration; and, lastly, is the opponent, Clara Barber, entitled to the administration?

While we entertain no doubts about the complete settlement of the succession of Dorcas Barber, as shown by the account of partition, to which we have before referred as having been made between Americus Watson and the late .Thomas Barber, we have arrived at a different conclusion regarding the Succession of Thomas Barber. There are debts due by the succession, which, in the present situation of affairs, should, in our view, be settled by an administration.

This brings us to the question, whether Woodley Watson is entitled to the said administration. He earnestly avers that he is a creditor of the succession, and that he is entitled to be appointed its administrator. While he may have sufficient 'interest in the settlement of the succession of Thomas Barber to provoke the appointment of an administrator, we are not certain that he is a creditor entitled to a judgment for his claims as a creditor. It appears that his right, in this respect, depends very much upon the weight to be given certain evidence, and is further dependent upon the result of a settlement; for, while it may he, for all we knew, that he is a creditor/it is also evident that he is a debtor of the succession. But, even if if we should concede for a moment that he is a creditor, he would still not be entitled to the administration.

Passing to Clara Barber’s application for the administration, presented in the alternative form, she being the surviving widow and heir of Thomas Barber, she must be held, under repeated decisions, to have the preference. As between one claiming as creditor and an heir, even though that heir he the widow of the deceased, the Civil Code recognizes the rights of the latter. It is clearly stated that the heir has preference. In this ease, the wife has preference, and a married woman, though not capable of civil functions, may administer a succession of which she is to he heir; and the right to administer gives her the right of preference over a creditor. “In contestations concerning the curatorship of vacant successions, and those of absent heirs, the judge shall grant the curatorship — to the surviving husband or wife, in preference to the creditors of the deceased; to the creditors in preference to those who are not.” C. C., 1121. The surviving wife shall be preferred to creditors. Malinda Sears vs. Wilson, 5 Ann., 689; Succession of Henry Block, 6 Ann., 810; Succession of Penney, 10 Ann., 290; Succession of Sloan, 12 Ann., 610.

The law and the evidence being in favor of Woodley Watson, as far as relates to the necessity of appointing an administrator, the order of the District Court refusing to make such an appointment is annulled and set aside.

The law and the evidence being in favor of Clara Barber in matter of the application for the appointment, it is ordered, adjudged and decreed that she be, and she is hereby appointed administratrix of the Succession of Thomas Barber, and is ordered to qualify within the legal delays.

. It follows, from the above, that the application of Woodley Watson for his appointment is rejected.

All the costs of both courts are to be paid by the succession.

Rehearing refused.


author: BlaNchaRD, J.

text:
    No. 13,372.
    Succession of Thomas Barber. Application of Clara Barber for Recognition as Heir, Etc.
    Syllabus.
    1. A surviving spouse, claiming to be heir of the deceased spouse by reason of the fact that the latter died intestate and left no heirs either In the ascending, descending, or collateral line, is not considered by the law as succeeding to the deceased from the instant of Ms death.

    2. The maxim "le mart saásit le vif", etc., does not apply to irregular heirs, such as the surviving spouse.

      3. The reason is, that this sort of heir has only a right of action to cause himself or herself to be put in possession of the succession thus falling to him or her.
    4. And formal proceedings to the end of being recognized as heir and sent into possession must be taken in the manner pointed out by law.
    5. A mere c® parte order of recognition as heir and putting into possession will be viewed as a nullity.
    6. And anyone having an interest, whether as heir or claimant owner of the property, or as creditor of the dead man, or of his succession, may appeal from such judgment.
    APPEAL from the Fourth Judicial District, Parish of Morehouse —Potts, J.

      Madison & Madison (William. Andrew Collins of Counsel) for the Applicant, Appellee.

      Andrew Augustus Gunby for Woodley Watson and Americus Watson, Opponents, Appellants.
   The opinion of the court was delivered by

BlaNchaRD, J.

Thomas Barber died in the Parish of Morehouse, Louisiana, in July, 1899, leaving an estate worth several thousand dollars.

Clara Barber, as widow in community, survived him. A fortnight following his death she presented a petition to the District Judge in which she averred that her husband had died intestate; that the greater portion of the property left by him pertained to the community of acquets and gains which had existed between them; that her husband left no heirs in either the ascending or descending line, nor yet in the collateral line; that there had been béíween them no separation from bed and board; and that she was owner in her own right of one-half of the community property, and was, in default of heirs, called by law to the inheritance of the other half, and of the separate property left by the deceased.

She averred her corporeal possession of all the property, her acceptance pure and simple of her husband’s succession, her desire to be judicially recognized as his sole heir, and as such placed in the possession of the estate.

The prayer of her petition was in accordance with these allegations.

She asked for no appointment of an attorney for absent heirs, for no proceeding's contradictorily with him, for no inventory, bond, etc.

Nor was there any allegation as to debts or no debts due or not due by the deceased, or by the community. '

Apipended to her petition were the affidavits of two parties — R. D. Marble and J. P. Madison — substantiating the allegations thereof.

On this ex parte showing the judge made an order, or rendered a judgment, decreeing that Thomas Barber had died without relations in either descending, ascending, or collateral line, that Clara Barber, as his surviving widow, was his sole heir, that she be recognized as such, and be placed in possession of all his property as owner by inheritance.

Something' over three months later, Americus Watson and Woodley Watson presented to the judge a petition for appeal from the aforesaid judgment.

This petition represents that there existed between Thomas Barber and Dorcas Barber, his first wife, a community of acquets and gains to which pertained a large portion of the property left by Thomas Barber at his death, and that the said community owed debts which had never been settled.

It set forth that Americus Watson, as the only surviving child and heir of the said Dorcas Barber, has an interest in that community and the settlement thereof, and that Woodley Watson is a creditor of the Succession of Thomas Barber.

The ex parte judgment putting Clara Barber in possession of the estate is averred to be null and void, and that they are aggrieved by the same.

Its reversal is prayed for.

Woodley Watson makes affidavit to the truth of the allegations of this petition for appeal.

An order for a devolutive appeal was made, and that appeal is now before us.

Clara Barber, appellee, files answer in this court denying the material allegations upon which the appeal is based.

She contests the right of an alleged creditor to question the regularity of the proceedings by which she was placed, as heir, in possession of the succession property, and insists that only those claiming to be heirs can raise the question; that one claiming as creditor has his remedy otherwise pointed out by the Code.

•She prays the dismissal of the appeal, and, in the alternative, for the remanding of the cause for the purpose of taking testimony upon the alleged right of appeal.

A surviving spouse, claming to be heir of the deceased spouse by reason of the fact that the latter died intestate and left no heirs in either the ascending, descending ór collateral line, is not considered by the law as succeeding to the deceased from Lhe instant of his death.

The maxim “le morfc saisit le vif,” etc., does not apply to irregular heirs, such as the surviving spouse.

The reason is, that this sort of heir has only a right of action to cause himself or herself to be put in possession of the succession thus falling to him or her.

C. C., 949; Succession of Allen, 44 La. Ann. 801; Willis vs. Elam, 28 La. Ann. 859.

And formal proceedings to the end of being recognized as heir and sent into possession must be taken in the manner pointed out by law. C. C. 930, 931.

See Succession of Nash, 48 La. Ann. 1574.

In the instant case, what was done was entirely informal and <?* parte.

Clara Barber, claiming the inheritance as surviving widow, is considered as having as yet exercised no “right of action” by which alone she could cause herself to be put into possession.

The judgment appealed from, rendered in no proceeding taken contradictorily with any one, preceded by no “true and faithful inventory to be made by a notary, duly authorized to that effect by the judge, in the presence of a person appointed to defend the interest of the absent heirs of the deceased,” succeeded by the giving of no “good and sufficient security” as prescribed by O. C. 931, and based on no legal and sufficient evidence to warrant, the decree entered, must be viewed as a nullity.

Succession of Allen, 44 La. Ann. 802-3.

Succession of Fleming, 18 La. Ann. 726; 41st La. Ann. 1093.

It gives Clara Barber no right of possession as heir. It leaves the Succession of Thomas Barber still unopened, unoccupied and unclaimed.

Any one having an interest, whether as claimant owner of the property, or any part of it, or as creditor of the dead man, or his succession, may appeal from such a judgment.

And when one, as claimant owner, or as creditor, appeals therefrom, making' oath as to ownership or ereditorship, it does not lie in. the mouth of the widow of the dead man, herself not in possession under any proceeding or decree that can be recognized as having any validity, to dispute the right of appeal, or to cause the' remanding of the ease to take testimony as to the right of appeal.

It is not considered that there is any one, as yet, with whom such a contest may be carried on contradictorily in the court a qua, and, therefore, the remanding would avail nothing.

We think, under the circumstances here disclosed, the petition of appeal and affidavit of interest suffice to maintain this appeal, to the end of vacating the void judgment appealed from. Cooley vs. Cooley, 38 La. Ann. 197; 41 La. Ann. 1093.

Were it necessary to pass upon, even remotely, the question whether or not the appellants had indeed any interest as owners or creditors, the proper course would be, under the settled jurisprudence, to remand the cause to try such issue in the court of the first instance, before the same could be considered on appeal.

But here the only question is, can this ex parte judgment stand, tested by the appeal -of parties alleging injury and averring under oath -a'n interest as owners and creditors.

In another proceeding on appeal, to-wit: — No. 13,371 on the docket of this court, being a controversy between Woodley Watson and Clara Barber, the one asking to be appointed administrator of the Succession of Thomas Barber, deceased, the other opposing, but, if the succession is to be opened, claiming .the superior right of appointment as administratrix, the conclusion has been reached to decree the opening of the Succession and awarding its administration to Clara Barber.

Accordingly, when she qualifies as administratrix, an opportunity will be offered all parties.to test, contradictorily with each other, their respective contentions and rights.

For the reasons assigned, it is ordered and decreed that the judgment appealed from be set aside, annulled and vacated, with full reservation of all rights claimed by Clara Barber as widow in community and as heir called to the Succession of Thomas Barber, in a proper proceeding taken pursuant to law, and that the costs of both courts be paid out of property belonging to the Succession of Thomas Barber, deceased.

'Rehearing refused.


author: Monkoe, J.

text:
    No. 13,415.
    Philip M. Kenner vs. The Leon Godchaux Company, Limited.
    Syllabus.
    Wliere the husband joins with the wile in the sale ol real estate acquired in her name, and held out to be her separate property, he will not he heard to assert the contrary in an action brought by him to recover such property, from innocent purchasers who have paid the price, upon the ground that it belonged to the community and that he allowed his wife to dispose of it in ignorance of his legal rights. “Error of law can never be alleged as the means of acquiring”, etc. (C. C., 1S46.)
    APPEAL from the Twenty-First Judicial District Court, Parish of St. Charles — Rost, J.

      Hiddleston Kenner for Plaintiff, Appellant.

      J. L. Gaudet and Rouse & Grant for Defendant, Appellee.
   The opinion of the court was delivered by

Monkoe, J.

This is a petitory action in which the plaintiff seeks to recover a certain plantation situated in the parish of St. Charles, and has appealed from a judgment maintaining a plea of estoppel interposed on behalf of the defendants.

The facts disclosed in the record are as follows, to-wit:

In May, 1867, plaintiff’s wife and her sister, Miss Fannie Hum-phries, purchased the plantation in question at sheriff’s sale, as evidence whereof a deed was executed, which contained the recital:. “ When P. M. Kenner being the highest and last bidder the said above “ and foregoing described property was adjudicated, for cash, to the “ said P. M. Kenner, as agent for Mrs. David Ella Humphries, wife of “ said P. M. Kenner, and Miss Frances A. Humphries”, etc.

Thereafter, in a certain judicial proceeding, in which Duncan F. Kenner was plaintiff and Mrs. David Ella Humphries, wife of P. M. Kenner, and Miss Frances A. Humphries were defendants, the prop-, erty was sold to the plaintiff, Duncan F. Kenner, who, at a later date, and by two separate acts, reconveyed the whole of it to Mrs. P. M. Kenner, the latest of said acts referring to the vendee in the following terms, to-wit: “Mrs. D. Ella Humphries, wife of lawful age of Philip “ M. Kenner * * * here present, authorizing and assisting his “ said wife, here also present, accepting and purchasing with her sep- “ arate and paraphernal funds, for herself, her heirs and assigns”, etc.

Plaintiff’s wife, being the owner of the entire plantation, sold a portion of it to Meyer Weill, and the remainder to Joseph, Charles and Daniel II. Weill, and the defendant acquired through mesne conveyances from those vendees. In the sale thus made by her, the vendor appears as “Mrs. David Ella Humphries, the wife, separate in property, of Mr. Philip M. Ivenner, and by her said husband, also present, duly authorized”, etc.; and the act appears to be duly signed by both husband and wife.

These facts are not denied by the plaintiff, but he alleges, in substance, that, under the law, the ownership of the property thus acquired in the name of his wife, vested in the community which existed between them at the date of its acquisition; that, as head and master of said community, he had the exclusive right to dispose of the same, and that he acted in ignorance and error in permitting and assisting his wife to mortgage and sell said property. And he further alleges that, should the court conclude that he was not in error, but that he knowingly permitted his wife to dispose of property belonging to the community, such permission must be regarded as in effect a donation inter vivos, and, as such, null and void, for the reason that it included all the property owned by him, was not in the form prescribed by law, and was a gratuitous donation of community property. He, therefore, prays to be decreed the owner of the entire property, and for judgment in the sum of $5,000 per annum as the rental value thereof.

To this, the defendant pleads that the plaintiff having concurred and assisted in the sale wherein his wife was represented as separate in property, and which was the joint act of both, is estopped to set up the claim now urged.

We arc of opinion that the plea is well made.

In Joubert vs. Sampson, 49 Ann., 1006, this court said:

“It has been held that, where a husband joins and authorizes his “wife in the execution of a mortgage on her separate property, he “ cannot afterwards, when the mortgage is sought to be enforced, set “ up, by way of defence, that the property mortgaged was community “ property, and his wife was without authority to encumber it. Hav- ing signed the mortgage himself, he can not be permitted to deny or “ gainsay his own solemn act. Stewart vs. Robinson, 23rd Ann. 83.”

And to tbe same effect are the opinions in Kirkland vs. N. O. Gas Light & Banking Co., 1 Ann., 299; Stewart vs. Mix, Sheriff, 30 Ann., 1036; Brown vs. Stroud et als., 34 Ann., 374; Benton & Milliken vs. Sentell, 50 Ann., 869; Lavedan vs. Jenkins, 47 Ann., 725.

If it be true, as alleged, that the property thus acquired in the name of the wife and held out by the plaintiff to be her separate property, in reality belonged to the community, it was nevertheless competent for the husband, as the master of the community, to authorize the wife, in whose name it had been acquired, to sell it. And the sale having been made with his concurrence and assistance, and the price having been paid, by innocent purchasers, to the person designated by the husband to receive it, the latter can not be heard to set up ignorance of his legal rights, as a basis upon which to reacquire the property, to the prejudice of such purchasers.

“But, if by an error, or ignorance, of the law, one has done himself “ a prejudice which can not be repaired without breaking in upon the “ right of another, the error shall not be corrected, to the prejudice of “ the latter.”

1 Story Eq. Jur., Sec. 139 (note, citation from Domat). See also D’Aguesseau on Mistakes of Law (in Pothier on Obligations, Yol. 2, p. 350). ’

Judgment affirmed.


text:
    No. 13,360.
    William R. Stevenson vs. H. W. Short and W. C. N. Burthe; T. L. Bayne, Third Opponent.
    Syllabus.
    On Motion to Dismiss the Appeal.
    A devolutive appeal bond containing the condition “to satisfy the judgment which may be rendered” secures the costs and is not invalid. The appeal will not be dismissed on the ground that it is defective because it does not, in terms, refer to costs.
    On the Mebits.
    when notes are extinguished by payment in accordance with an understanding with the parties to the payment, a third person is bound by the agreement made to have the payment taken in extinguishment of the claim. The foregoing rule of law governs as relates to notes “A” and “B”.

      The noto “C”, transferable by mere delivery, was transferred by plaintiff to third opponent who secured the amount and delivered the note without receipting it or stipulating that the amount was received for its extinguishment. He was a transferror of the note and of the mortgage with which it was identified. (Perkins vs. Liquidator, 40th Ann., G53.) The vendor must explain the extent of his obligation. (Heirs of Delogny vs. Mercer, 43rd Ann., 213.) The third opponent is entitled to preference over the proceeds of the sale as relates to note “C”. (Salzman vs. Creditors, 2 R.., 241.)
    APPEAL from tbe Sixteenth Judicial District, Parish of Tangi-pahoa. — Reid, J.

      Seniell & Davidson and Stephen D. Ellis for Plaintiff, Afipeilee.

      Denegre, Blair & Denegre for Third Opponent, Appellant.
   The opinion of the court was delivered by

Breaux, J.

The controversy is between the third opponent and plaintiff, the latter claiming to be paid by preference out of the proceeds of the sale of property sold at the instance of plaintiff with claim secured as to its payment by mortgage.

The following is a brief history of the case. Plaintiff was the vendor of the land to Anthony Hogan, for $6,750, for which the vendee executed six promissory notes, secured by mortgage and vendor’s privilege, of one thousand dollars each, and one for seven hundred and fifty dollars, maturing at different dates from October 3rd, 1895, to September 18th, 1897. PI. W. Short and W. C. N. Burthe bought this land, and went into possession. The first vendor, Stevenson, brought. suit, via executiva, to foreclose his mortgage on the last four notes; the others, those first due, he alleged in his petition, had been paid. An order of seizure and sale was issued, and under it the property was seized and sold.' T. L. Bayne filed a third opposition, claiming that he owned and had in his possession the notes first due, three in number. This opposition was met by plaintiff’s answer containing a general denial and alleging payment of the notes. These were the issues before the District Court.

The judgment was for plaintiff, and from it the third opponent prosecutes this appeal.

ON Motion to Dismiss ti-ie Appeal.

Tlie facts are, as related to tbe motion to dismiss the appeal, that the devolutive appeal was applied for some time after the judgment had been rendered, and an order accordingly issued. Under this order a bond was furnished, styled on its face a devolutive appeal bond, but its condition is to satisfy the judgment which may be rendered against the opponent, appellant, or “that the same shall be sat- “ isfied by the proceeds of the sale of his real estate or personal prop- “ erty, if he be cast in the appeal, otherwise the security to be held.” The appellee, in support of his motion to dismiss, urges that this bond does not conform to Article SYS of the Code of Practice, as it does not cover the costs of the court a qua. We have not found that the bond before us is totally defective'. The bond does not cover the costs of both courts. It is made to respond to whatever judgment may be rendered against the appellant. This necessarily embraces the costs of both courts in case judgment, on appeal, be rendered against the appellant. “It must be given to secure the payment of costs both of the Supreme Court and the inferior court.” (Rawle vs. Feltus, 33rd Ann., 421). Judgment carries costs with it, and a bond furnished to meet a judgment necessarily includes the responsibility for the costs, which must follow the judgment and-necessarily form a part of the judgment.

The motion to dismiss the appeal is denied.

On the MeRits.

Regarding the facts of this case, the third opponent, T. L. Bayne, testified, first, as to one of the series of notes identified by the letter “A,” that he bought it from Lillie and Company, bankers at Hammond, La., and directed them to draw on him for the amount required for its purchase, with note in question attached to the cheek. This witness, when recalled, corrected his statement as a witness, as given on first examination, by saying that he did not know whether he sent the dispatch to Short and Burthe, or to Lillie, and added that Mr. Lillie said it was to Short and Burthe, and he supposed that that was correct. In that telegram he authorized the drawing of a draft on himself, provided the mortgage note marked “A” was attached to it, uncancelled and that the note was attached to the check, which he paid.

L. R. Lillie, on the other hand, as a witness for plaintiff, testified that he remembered distinctly paying this note to plaintiff; that the debtor, Hogan, and Short and Burthe, who were real estate agents, and as such were connected with the sale of the land made by Stevenson to defendant, Hogan, on which Stevenson held the mortgage, came to him at the maturity of his note and borrowed one thousand dollars,* which they applied to its payment to the holder of the note, Stevenson; he had never before seen the notes; that after Hogan had borrowed the amount to pay Stevenson, the latter came, on the order of the former, and got from the witness the money he had loaned Hogan to pay the note.

With reference to the note identified by the letter “B,” the witness, Bayne, in his own behalf, testified as a witness, that some time after he had bought the note “A,” he bought note “B,” also, from Lillie and Company, by payment to this firm of a draft for the amount necessary to take it up; while Lillie, a disinterested witness, testified that the amount, as to this note, was loaned by him to the debtor, and that by the debtor it was paid to plaintiff.

Now, as to the third note, identified by the letter “C,” the facts are different. As to this note,' bought personally from the plaintiff by the opponent, the facts are that plaintiff, Stevenson, called upon the opponent, Bayne, a short time after the maturity of the note and received from him the amount due on the note. It does not appear, by the testimony of plaintiff, that the question of payment was discussed at all. He received the amount, he said, and handed the note to Bayne, the opponent, which was made payable to the order of the maker, and by him endorsed, and, therefore, was transferable by mere delivery. Bayne, on the other hand, testified that he agreed to buy the note from Stevenson. The judgment rejected opponent’s demand, and opponent prosecutes this appeal.

The evidence shows that the two notes, “A” and “B,” were paid and extinguished. The third opponent was the lender of an amount to pay plaintiff. Such may not have been his intention, hut the fact remains that, as to these notes, he was not a purchaser. The record shows that the amounts, which extinguished these notes, were paid by another who received them in payment and complete satisfaction of his claim, and that in the course of the business the amount paid by the third opponent was used in returning the amount to one by whom payment of plaintiff’s claim had been made. The third opponent is absolutely bound by the action of his quasi agent, Lillie. Plaintiff’s debtor, and all others concerned at the time of the payment, treated it as a payment, and received the two notes as evidence that the amount had been paid. These parties having thus agreed with the plaintiff, and having, in accordance with the agreement, paid and extinguished these notes, there was an end of the claim in so far as related to these two notes on his property. By payment made, as stipulated, the notes had served the purpose for which they had been made, and plaintiff’s property could not be subjected to a mortgage which had been absolutely paid by a third person. He, Stevenson, could not be considered, in view of his testimony as a vendor and- transferror of notes, estopped by his own acts, for he was neither a vendor nor transferror, but one who received an amount in payment and extinguishment of his claim.

He did not consent to the continued existence of the claim, on the contrary, by insisting upon payment, intended that it should be completely discharged.. This is also the meaning, as we take it, of the action of the parties who were present, and personally attended to the transaction as made. If the defendant allowed these notes, “A” and “B,” to be reissued and to go again into circulation, they could not do so to the prejudice of plaintiff’s rights, who had been paid his claim, and who had never transferred those rights, as made evident by his testimony. Payment by the maker cancels the instrument. The third opponent, in his negotiations for the notes “A” and “B,” corresponded exclusively with the debtor, or his representative. (Parsons on Bills and Notes, Yol. 2, p. 220). This being our conclusion as to the notes “A” and “B,” we pass to the note “0.”

The title to this note presents a different question from the one from which we have just passed. Plaintiff handed it to the third opponent in person. He handed it to the third opponent without receipting it and without informing the transferee, Bayne, whether he intended the payment to be one extinguishing the debt, or one whereby he was to become the owner of the note itself as well as of the mortgage by which it was secured as its payment. • The delivery, in conveyance, had the effect of transfering both the note and the mortgage.

It devolved upon plaintiff to notify the defendant in some way, so as to let him know that he, defendant, Bayne, was not 'to be the owner of this note. This he appears to have studiously avoided. “A vendor is bound to explain himself as to the extent of his obligation.” (Heirs of Delogny vs. Mercer, 43 Ann., 204). We have carefully read the evidence on this point, and have not found anything going to show that in thus paying plaintiff, and securing the note, the third opponent intended to make a loan to Hogan, the maker of the note, and plaintiff’s debtor, or to any one else. One who receives the amount of his note, and then delivers it to the payer, is a transferror. The subject of payment, under similar circumstances as these, was considered in Perkins vs. Sheriff, 49th Ann., 653, and the court arrived at the conclusion that the payment was made with reference to the purchase of the notes, and that the purchase carried the mortgage with it. The court; in the cited case, said: “We have the testimony of the original holder, of his impression, the notes were purchased, naturally not very distinct, with reference to a transaction years ago conducted for him by an agent. We have the accounts of plaintiffs, factors of the maker, in which the notes are charged to him, the natural course, if they had been paid. The agents of the original holders, from whom the notes were received, are dead, but there is the positive testimony of the plaintiffs that the note was purchased and not paid {the presumption, too, arising from the presentation of the notes by plaintiff). 3rd Randolph on Commercial Paper, Sec. 1438. (Italics ours).”

The vendor, Stevenson, having negotiated this note, and having retained the last three notes, can not recover the proceeds in preference to his assignee. Barkdull vs. Herwig & Smith, 30th Ann., 618; Abney & Co. vs. Walmsley, 33 Ann., 589.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed in so far as it rejects the demand of the third opponent, T. L. Bayne, on the note “C,” and it is further ordered, adjudged and decreed that plaintiff do have judgment for, and recover by preference, a sufficient amount to pay and satisfy the said note and interest, subject to such credits as were indorsed on said note as having been received by the holder at the time of the transfer. In other respects the judgment appealed from is affirmed, at appellee’s cost. The costs of the lower court, arising on the opposition, are to be paid by plaintiff.

Rehearing refused.