author: Bermudez, C. J.

text:
    No. 8317.
    The State of Louisiana ex rel. Thomas B. Pugh, Coroner and Acting Sheriff, etc., vs. The Judge of the Twentieth Judicial District Court et al.
    A judgment of this Court, declaring a State officer ineligible and his office vacant, commanding nothing to be done and upon which no writ issues, needs not be recorded in the court below to produce its legal effect. Such judgment becomes, upon its rendition, instantly operative.
    In the case at bar, the judgment of this Court was rendered on a rehearing and no delay was necessary for its finality.
    The writ of Error from the Supreme Court of the United States, was necessarily issued in the premises after the judgment of this Court had become final and definitive and produced its legal effect. Such writ of Error could not, therefore, act as a supersedeas, which, under the legislation of Congress and jurisprudence of the U. S. Supreme Court, is not intended to interfere with the judgment of a State Court when the latter has already received its execution, or, as in the instant case, has produced its effect.
    It does not appertain to the inferior courts or judges of the State to determine or reoognize the operation and effect of a writ of Error directed to this Court- by the Supreme Court of the United States.
    This case is a proper one for the exeroise, by the writs of Mandamus and Prohibition, of th e plenary powers granted to this Court by Article 90 of the Constitution.
    .¿APPLICATION for Writs of Mandamus and Prohibition.

      Pugh & Howell for the Relator:
    . Eirst — The judgment of this Court of the 28th of May, in the matter of State of Louisiana ex rel. Howell vs. A. J\ Echeverría, on rehearing, was final and absolute at the instant of its rendition. Sec. 1007 B. S. U. S. has no application to judgments and executions of State Courts; it refers solely to United States Courts. (4th Otto U. S. 52.)
    Second — The decree in said matter was selt-executory; it ordered nothing to he done; it simply declared existing facts, defined the law, and the law executed itself. Const. 1879, Art. 118.
    Third — The suspensive appeal taken by relator herein on the 4th of Juno, kept in full force and effect the first order for the books and keys, etc., granted herein, and vested this Court with full jurisdiction of the cause, and all subsequent orders issued by the District Judge were absolute nullities, and an infringement upon the appellate jurisdiction of this tribunal. 33 An. 929; 32 An. 1278, 1185; 19 L. 172; Hennen, p. — .
    Fourth — Judges cannot delegate their judicial powers to any one; but must exercise them personally. 27 An. 663.

      B. N. Sims and Walter Guión for the Respondent:
    The judgment of this Court in the Echeverría case (No. 8123,) could not become executory until after it had been filed in the clerk’s office of the District Court. C. P. Arts. 617, 618, 619, 623, 915; Green vs. Van Buskerk, 3 Wall. 450 ; Freeman on Execution, § 13; Wells vs. Merz, 23 An. 392. *
    The defendant, Echeverría, lodged his writ of error and filed his "bond for a supersedeas on the morning of the 3d of June. Erom that moment this Court was divested of all jurisdiction and control of the case or any part thereof. State ex rel. Jumel vs. Johnson, 29 An. 403.
    No attempt was made by the coroner to act in the place of tho sheriff until after the writ of error had been granted and the bond filed. (Affidavit of Alfred Tete).
    When the ex parte order of the District Judge was served on the sheriff’s deputy at 3 o’clock in the afternoon on the 3d of Jane, this Court no longer had jurisdiction.
    “Writs of error from, the Supreme Court in oases authorized by law, shall he issued in the same manner and underthe same regulations, and shall have the same effect as if the judgment or decree complained of had been rendered or passed in a court of the United States.” U. S. ¡Revised Statutes, Sec. 1003 5 29 An. 403, Draper vs. Davis; U. S. Supreme Court, Central law Journal, Jan. 28th, 1881, p.j91; Desty’s Federal Procedure, p. 215.
    The judgment appealed from is suspended, as a matter of law under the act of Congress by filing the supersedeas bond. Goddard vs. Orderay, 94 U. S. 672; Williams vs. Bruffy, 102 U. S. 248. Honnen, p. 73, (effect of appeal) No. 3 and cases cited. 11 An. 728; 5 La. 314; 14 La. 292; 10 Rob. 147-419.
    In a late case this Court said: “Although we are the creatures of the Constitution of the State, the judicial trust confided to us embraces a faithful administration of all the laws of the land; and our duty, as welt as our solemu oaths, hind us to obey equally the Constitution of the United States and the Constitution oí this State.” Saloy et al. vs, City of New Orleans, 33 An. 84.
    The decree of this Court in the Echeverría case being suspended, there was no vacancy in the office of sheriff and the coroner was without authority, under the law, to aot for or in place of the sheriff.
    Alter the writ of error was perfected, by pretending to aot as sheriff, he became a more trespasser, liable in damages for his tortious acts. Durbridge vs. Wentzel, 17 An. 20); Freeman on Executions, § 105; Supersedeas signifies: Suspend, set aside, stay. Webster’s Diot. Verbo Supersedeas.
    In the Jumel case, 29 An. 403, this Court refused to execute the judgment pending tho writ of error.
    “It is better for individuals, better ior the public to suffer the incouvenience of delay and temporary suspension in the enforcement of aright than to incur tberisk of depriving one of the right to have his complaint hoard and determined in the highest judicial tribunal having jurisdiction.” 29 An. 403.
    An application for a writ oí error, in proper form, was filed in this Court on the 31st of May, but was refused by the Chief Justice. The Supreme Court of the United States having granted the writ of error and approved the bond for a supersedeas, on the 2d of June, the effect of the writ related back to the time when the application was originally made to this Court.
    The refusal to grant the writ then stood as if the order denying it had been reversed and an order entered granting the writ. Williams vs. Bruffy, 102 U. S. 248.
    The case of Doyle vs. Wisconsin, 94 U. S. 50, is not in point. In that case, the order or mandate of the Supreme Court had been executed before a writ of error was granted, and the application for the writ was filed nearly sixty days after the execution of the decree.

      Xu. case of a vacancy in the office of sheriff, the coroner does not become sheriff, but merely acts ior and in the place of the sheriff. Const. Art. 118.
    The coroner's status is the creature of the law, and no act that hehiight do could in any manner add force to the decree of this Court in suit 8123. And we contend that the moment the supersedeas bond was filed, the coroner was divested of all authority to act for or in the place of the sheriff of the parish of Assumption.
   The opinion of the Court was delivered by

Bermudez, C. J.

The relator applies for a mandamus to compel the ■defendants to recognize him as the acting sheriff of the parish of Assumption, and for a prohibition to prevent them from interfering with him in that capacity. .He substantially avers that, on the rendition of the judgment of this Court, on the 28th May last, in the case of State ex rel. Howell vs. A. J. Echeverria, 33 An. 723, he became entitled to discharge the functions of sheriff of said parish; that he took possession of the room, papers and keys pertaining to that office; that the District Judge for the Twentieth Judicial District has entertained proceedings from the defendant east in said suit, which obstruct the effect of the judgment of this Court, and which restore said defendant to the office from which he was excluded by this Court, to the prejudice of relator who is entitled to fill the office until the vacancy declared to exist shall have been filled in the manner prescribed for by law; that by acting as they have done the judge and said defendant have become guilty of a contempt of the authority of this Court, and should be punished accordingly; that they should be commanded to recognize him, the relator, as such acting sheriff and prohibited from interfering with him as such, and that all the orders and decrees made by the judge, which prevent him from discharging the functions of the office, and which restore the ousted defendant thereto, should be annulled to all ends and purposes. On this application the defendants were ordered to comply with the prayer of the petition or show cause to the contrary, and a preliminary restraining order was made.

The defendants have answered purging themselvs from all intention to commit any act of contempt, and averring that the acts sought to be avoided are valid, having been done in furtherance of law, the judgment of this Court never having become operative for want of recording in the lower court, and because of the granting of a writ of error removing the cause to the Supreme Court of the United States; that the relator had no authority to assume to discharge the functions of the office and to take possession of the incidents thereof; that the District Judge, on the application made to him, had a right to enjoin the relator from acting as such sheriff, and from interfering with defendant in the discharge of the duties of that office.

As disclosed by the pleadiDgs and the record, the facts of the case are the following:

On the 28th of May last, on a rehearing granted in the said case of the State ex rel. Howell vs. Echeverría, this Court annulled its previous judgment. It decreed the defendant Echeverría ineligible to the office of sheriff of the parish of Assumption, and declared that office vacant.

On the 31st following, the defendant, upon averments, applied to the Chief Justice of this Court for a writ of error to the United States Supreme Court, but his application was declined the same day, the case not being considered as one within the appellate jurisdiction of that tribunal.

On the 2d of June following, the relator, who is the coroner for said parish, with an authentic copy of the mandate or judgment of this Court in hand, applied to one claiming to be the deputy of the defendant Echeverría, then absent, for the possession of the room, books and papers of the office, and for the keys of the court-house and jail, claiming to be, in his capacity of coroner, the acting sheriff of said parish in consequence of the vacancy declared by this Court by said judgment to exist therein. This application was refused, and was not to be granted unless upon an order obtained from the District Judge directing the delivery

On the same day the relator, on averments, prayed for the order, but the judge, taking the matter under advisement, made the order on the following day, viz: the 3d of June.

On presentation of that order the same day the possession asked was delivered.

On the 2d of June, an application having been made by the defendant Echeverría to his Honor, Associate Justice Woods of the Supreme Court of the United States, a writ of error had been granted, and the required bond had been furnished and accepted.

On the 3d of June these proceedings were lodged in the clerk’s office of this Court.

On the same day, after the order of the District Judge for delivery of the incidents of the sheriff’s office had been complied with, the defendant Echeverría, on averment of the writ of error granted and lodged as aforesaid, and of rights claimed in consequence thereof, applied for and obtained an order rescinding the decree for the possession of the room, books and keys aforesaid, and recognizing him as entitled to continue in the functions of sheriff of said parish. .The relator then applied for, obtained and perfected a suspensive appeal from the rescinding order. On the other hand, the defendant Echeverría sought,, obtained and perfected a suspensive appeal from the order of delivery.

On the 17th of June, on averments, the defendant Echeverría sought and obtained, from the District Judge, an order directing the relator to deliver to him the room, books, papers and keys pertaining to the said office, and enjoining him, the acting sheriff, from interfering with him, Echeverría, as the sheriff of said parish of Assumption. Upon the rendition of these orders Echeverría assumed to discharge the duties of such sheriff, and to take possession of the paraphernalia of the office. It is at this juncture that the relator laid his complaints before this .Court.

We have stated the substantial averments of his petition, the orders rendered thereon, and the main defenses set up adversely to his demands.

Before proceeding to the consideration and determination of the cáse presented, we propose to dispose of the rule for contempt. From the showing made by the defendants, we think we are authorized to release them from the charge. 24 An. 213.

We will add, that we deem it proper to say, that, in the present proceeding, we cannot be asked to pass directly upon the correctness of the two orders from which suspensive appeals have been taken returnable, to this Court and that we will not do so, although we may ex necessitate, unavoidably, have, in a collateral way, to express an opinion as to their validity.

Those matters being thus disposed of, we will now proceed to consider the questions presented for determination by the litigants. We. take it, that the question submitted for solution is substantially : Whether the District Judge, made defendant herein, with said Echeverría, was authorized by law to entertain and countenance, as he did, the proceedings inaugurated by said Echeverría, under the averments touching the writ of error, and thus to prevent the judgment of this Court ousting said Echeverría from said office and declaring it vacant— from producing its full effect ; in other words, whether the District Judge, by acting as he had, has or not exceeded the bounds of his authority and usurped a jurisdiction which his Court could not legally exercise.

The determination of that question depends solely upon : whether the relator, as coroner, was or not lawfully and actually in possession of the office of sheriff of the parish of Assumption, when the writ of error was lodged in this Court.

From the view which we have taken, it is immaterial whether the copy of the judgment of this Court was or not filed or recorded in the lower court on the 2d or 3d of June, or was ever at all filed and recorded.

We consider that a judgment in which the State, representing the whole commonwealth, is concerned, which orders nothing to be done, which forbids nothing from being done, upon which no writ can issue, the effect which could 'not be kept in suspense by any omission on the part of any one to have it filed and recorded, — did not require any filing and recording in order to produce the effect which, under the law and the Constitution, it was bound to have.

We consider that, upon its rendition, such judgment became final and instantly operative; that consequently, by the force of the law aloné, Echeverría was at once ousted from the office, by being declared ineligible thereto; that the office by being declared vacant, was so absolutely; that it ceased to be filled by any incumbent; that by the express provision of the Constitution, the coroner had authority to replace the ousted de facto functionary and to act in his place until the vacancy declared to exist would be filled as directed by law.

The proceedings for the writ of error necessarily took place after the judgment of this court had become final and definitive and, in the abstract, had produced its effect. They could not and therefore did not undo what had previously taken place. Things or facts as they sprung into existence by the force of the law on the 28th of May, when our judgment was rendered, could not be and were not altered by the subsequent application for, and granting of, the writ of error, or by any other proceeding in the case.

The judgment declaring Echeverria ineligible and pronouncing the office vacant, was rendered on a rehearing.. It became instantly final and absolute without the expiration of any delay subsequent to its rendition. The Governor would have had the power, by appointment, to fill the'declared vacancy. 24 An. 622. As he did not then do it, the coroner, eo instanti, by reason of article 118 of the Constitution, had the right to replace the ousted sheriff de facto, and to act in his place until the vacancy was legally otherwise filled.

The effect of the judgment, which is one of absolute ouster, under a special statute, R. S., was to constitute, as it did, a full and complete amotion from office of, the party thus removed of all official authority and to exclude him altogether from office holding. It is not a judgment as must be regarded as an effectual bar to proceedings to procure a restoration to office. High on Ex. Rem., p. 540, $ 748, 750; p. 546, g 756; 8 Mod. Rep. 332; 40 Geo. 164; 11 Mod. Rep. 390.

Such a judgment decrees the status of a person and is not susceptible of execution by writ. It is one which takes immediate effect and requires no action to put it in operation. The status being determined, the consequences follow. By the rendition of that judgment, Echeverria was pronounced ineligible to the office to which he claimed to be entitled; he was instantly excluded from it and it was declared absolutely vacant.

Under article 118 of the Constitution, framed in contemplation of the occurrence of precisely such a case, the coroner was fully empowered to act for and in place of the sheriff until the vacanoy was filled, and he had authority to demand, eo instanti, in his capacity of acting sheriff, not the office which the Constitution had given him and which he held, but the possession of the room and the delivery of the books and keys belonging to it. 7 How. N. Y. Pr. 282; 6 Abbott N. Y. Pr. 220 In other words, the moment that the judgment of this Court blew out of the incumbent all official character and existence, the Constitution breathed both in the person of the coroner, who thereby at once became the acting sheriff of the parish.

The refusal of the late incumbent to make such delivery might have been met with a proceeding by mandamus to compel the surrender, C. P. 833; and is made a misdemeanor punishable by fine and imprisonment. R. S. 2588, 2599.

The articles of the Code of Practice, 617 et seq., which declare that appellate courts must send their judgments to the inferior courts to be executed, and that such judgments cannot be executed unless recorded in the court which first had cognizance of the cause, refer, vi terminis, to judgments which order something to be done, which requires execution, for the enforcement of which writs in the name of the State have to be issued; and not to judgments which, as in the instant case, are self-operative and admit of no carrying out by process of law.

This distinction is manifest, and was announced as existing ever since 4 L. 325, where, in the Ourtis case, Mr. Justice Porter, as the organ of the Court, said; “The enregistry of the judgment in the inferior tribunal is only necessary to obtain execution, but the decree derives no additional force from that formality, no more than placing an execution in the hands of the sheriff would add to the effect of a judgment of the District Court. The obligations of the parties commenced from the moment the judgment became final, and any act done by them inconsistent with it is contrary to those obligations and can confer no right on them.”

This saying is the more remarkable and cogent, as, at the date of ' the decision (1832), the Code of Practice expressly required (which it does no more since 1852, Act No. 305), a motion in open court to render executory the judgment of an appellate court.

We do not wish to be understood as saying the judgment of ouster by the District Court in Assumption parish could become executory when signed, and that before the ten days following the signature had expired, within which the defendant could take a suspensive appeal, the coroner could have assumed the functions of the office of sheriff in place of the ousted incumbent. The effect of judgments rendered by such a court and that of judgments rendered by this Court are regulated by different provisions of law.

The titles of the coroner to the office were the final, absolute judgment of this Court in force at the time, ousting the defendant, declaring a vacancy as complete as in the case of death or resignation, and the Constitution of the State, which authorized him, in cases of vacancy, to act as sheriff until the vacancy shall be filled. Both constituted his commission, his authority to demand possession of the accessories or incidents of the office. Before them the defendant should have promptly yielded. Resistence on his part and continuance in tenure made him once more an intruder. 15 Minn. 221; 32 H. 246; 15 Cal. 120; 60 Barb. N. Y. 234 (1871).

Title to an office is one thing and title to the accessories or incidents of that office is another. C. P. 833; 21 An. 18, 187, 338; 2 An. 401; 12 An. 719; High on Ex. Rem., pp. 61 and 73; Dillon on Munic. Corp., I 684.

It is, therefore, apparent that, on the 28th of May, the judgment of this Court had gone into effect and that, by accepting the discharge of the new functions superadded to his duties as coroner and imposed upon him by article 118 of the Constitution, the relator was, by the power of the law, in possession of the vacant office, although he had not as yet obtained delivery of its accessories, which took place on. the 3rd of June following.

The condition of things in existence before the proceedings for the writ of error had been perfected, therefore, was a vacancy declared by a final judgment of this Court, filled temporarily by the coroner, under article 118 of the Constitution.

The proceedings were not consummated until the writ was lodged in this Court on the 3rd of June, therefore until after the judgment in question had taken effect, after the coroner had accepted the discharge of the new functions, until after the declared vacancy had been actually filled. It cannot, therefore, be claimed that what had thus been done before the writ had been lodged, has been, or has to be, undone, and consequently that the ousted ineligible defendant should be restored to the office from which he was judicially absolutely excluded. “ The judgment (rendered to that end by this Court) is such as must be regarded as an effectual bar to proceedings to procure a restoration to office.” High on Ex. Rem., p. 546, (j 756.

We do not understand that it ever was contemplated by Congress or by the Supreme Court of the United States, as the highest judicial expounder of the Constitution and laws of the United States, to interfere at all, by the legislation on this subject, with the practice of the States, as to the effect of their judgments.

Indeed, in the case of Doyle vs. Wisconsin, 94 U. S. p. 50, that exalted tribunal, well realizing the magnitude of the subject, wisely held, that section 1087 of the R. S., which, as amended by the Act of February 18,1875, provides that, where a writ may operate as a supersedeas, execu - tion shall not issue until the expiration of ten 'days after the rendition of the judgment, has reference to the judgments, of the courts of the U. S. and, therefore, did not apply to State courts.

In 19 Wall. 664, the same tribunal had even held that, if an execution was issued upon a judgment in the courts of the IT. S. after the expiration of ten days, a supersedeas, afterwards obtained, would not interfere with what had been done, but would only prevent future proceedings.

A writ of error is “brought,” not when it is allowed, but when it is filed in the court which rendered the judgment. 11 How. 294. It is then only that it can be enforced. 10 Wall. 273; 1 Woods R., 51, 234.

The reason is obvious. It is, that by the lapse of that delay, the judgment creditor had acquired a right to take steps for the enforcement of his judgment, and the proceedings subsequently had could not have the virtue of undoing what had been done by him in the exercise of that right, under a writ to which he was entitled; thus consecrating the principle that what has been done in consequence of an executory judgment and in furtherance of law, cannot be destroyed or annihilated or even altered, by a supersedeas subsequently obtained. 24 An. 403; 29 An. 403.

Such being the law and the jurisprudence of the United States, as to cases originating and conducted in their own tribunals, how can it be claimed, with any plausibility, that State tribunals are not equally protected, but are forced in a worse predicament, regardless of local constitutions and laws ?

The authorities relied upon by the defendants cannot, therefore, receive the application claimed for them. 2 How. 74; 3 Wall. 450; 6 Otto, 672; 23 An. 392; 24 An. 600; 29 An. 403; 94 U. S. 672; 102 U. S, 248.

If the judgment of this Court, which pronounced Echeverría ineligible, which declared vacant the office to which he claimed to be entitled, be one which is self-operative, which does not, therefore, require recording in the court of first instance to produce full effect; if, upon the rendition of such judgment, under the Constitution, the coroner had authority to act in place of the ousted sheriff until the declared vacancy was legally filled, and if he accepted and entered upon the discharge of his functions as acting sheriff, before the proceedings for a writ of error were actually perfected and lodged in this Court, the irresistible conclusion is, that the condition of things or the state of facts then in existence bad to remain in statu quo until the declared vacancy were filled or the judgment of ouster reversed and Echeverría recognized as entitled to the office from which he had been excluded.

But, even if it were true that the effect of the granting of the writ of error and the lodging of it in this Court, would be to undo what had been done (a proposition which we in no manner concede), it certainly did not appertain to the defendant to assert, and to the judge of the lower court to recognize such effect, and thus to prevent the judgment of this Court from producing the consequences which, under the law, were to and did flow from it.

It was the duty of the District Judge and of the defendant to respect the judgment of this Court, the former as a member of the State judiciary, subordinate and ancillary to the authority of this Court, the latter as a litigant bound by the finding of this Court against him, until such finding were reversed. Neither had authority to nullify and set at nought, or even interrupt or suspend) the effect which that judgment was entitled to produce. In obstructing the effect of that judgment, both have committed a grave and almost a reprehensible mistake. The writ of error is directed in the name of the Supreme Court of the United States to the Judges of the Supreme Court of Louisiana, and is not addressed to the judge of the District Court for the Twentieth Judicial District sitting in Assumption parish. To this Court alone it appertains primarily to determine and regulate its effect, subject to correction by superior but not by inferior authority.

In rescinding the order given by him for the delivery of the incidents of the office of sheriff to the relator, in allowing a suspensive appeal from that order for possession, in directing the relator to turn over to the defendant those incidents and in enjoining him from interfering with the defendant as sheriff, the judge a quo has assumed to suspend, if not to nullify, the effect of the judgment of this Court. He has thereby clearly exceeded the bounds of the jurisdiction of his court and has usurped the exercise of powers with which the law has not clothed him-and which are vested in higher authority.

The relator is clearly entitled to relief. He has applied for both a Mandamus and a Prohibition.

We deem that, in the sound exercise of the plenary powers vested in this Court, by article 90 of the Constitution, which provides that it shall have control and general supervision over all inferior courts,”— we can grant him both reliefs.

It is true, as a rule, that a mandamus does not issue, unless to coerce the performance of a ministerial duty, but that rule, like all others, has its exceptions. Shortly after organization of this Court under the present Constitution, we had occasion, in two cases brought to our notice, to consider the object and purport of that constitutional provision (Art. 90), and to lay down some general rules by which we were ordinarily to be guided. We then prudently made an express reserve of the rights to make exceptions to those general rules in cases in which urgent considerations of public policy might demand our interference. 32 An. 553.

The case now before us is one in which the whole community is highly interested, one in which, — under constitutional provisions adopted and under laws enacted, to prevent office-holding by a certain class of persons — an erring magistrate and an ineligible and ousted incumbent are asked to be prevented from arresting and thus nullifying the effect of a final judgment of this Court and paralyzing a constitutional provision.

The object of the writ of Mandamus is to prevent a denial of justice. It should, therefore, be issued in all cases where the law has assigned no relief by the ordinary means and where justice and reason require that some mode should exist of redressing a wrong, or an abuse of any nature whatever. It issues at the discretion of the court, even where the party has other means of relief, if the slowness of ordinary legal forms is likely to produce such a delay, that the public good and the administration of justice will' suffer from it. C. P. 830, 831.

We think that, under the emergencies which have arisen, the public interest requires speedy and efficacious remedies to suppress the disorders which have been brought about and to restore things to their normal condition. We, therefore, feel empowered to direct the defendants to recognize the relator as the acting sheriff of the parish of Assumption and not to interfere with him, in that cap icity, provided that the declared vacancy which the Constitution authorized him to fill, has not been heretofore filled, in a manner pointed out by law.

Under the unprecedented circumstances of this case, we consider that it was the duty of the District Judge, not only to recognize, as he at first did, the relator as such acting sheriff, but also after such recognition, to have abstained from interfering with him, at the instance of Echeverría, his co-defendant herein, as he has done. It is not pretended that, but for the writ of error lodged in this Court, the relator would not have had the right of replacing the ousted sheriff. ■

The defendants have, without authority, overleaped the barrier which our¡¡judgment, the law and the Constitution had raised before them. ' They must now submit to the solemn behests of justice.

It is, therefore, ordered, adjudged and decreed that the alternative writ of mandamus and the provisional writ of prohibition herein issued be made peremptory, at the costs of defendants.


source: Caselaw Access Project

author: Todd, J. Levy, J.

license: Public Domain

text:
    No. 8211.
    Succession of Walter O. Winn. Oppositions to Account of Executor.
    ,Au executrix who has, by error, acknowledged in writing on the back of a note that the same was still due, may be heard as a witness to prove that the written date of such acknowledgment is false and that, in fact, she signed the acknowledgment at a time when the note was already prescribed.
    Under the principle of stare decisis, this Court will not disturb the rule established by numerous Decisions, that prescription was not suspended during the late civil war in this country.
    This Court does not consider the rule of suspension of prescription established in section 1048 of the United States Devised Statutes, as intended by Congress to be acknowledged and enforced by State Courts. The isolated case of Stewart vs. Cohn, 11 Wall. 493, is not acknowledged as authority, and that of Aby & Catchings vs. Brigham, curator, is overruled.
    APPEAL from the Twelfth Judicial District Court, parish of Rapides. Barbin, J.
    Merrick, Bace & Foster and B. A. & Bob’t P. Hunter for Opponent Mayfield, Appellant:
    First — Prescription did not run against a resident within the Federal lines holding a claim against a resident within the Confederate lines, from April 19th, 1861, to April 2d, 1866. U. S. Devised Statutes, seption 1048; 12th Wallace, 700 ; 6th Wallace, 532; 11th Wallace, 244, 493, 508; 15th Wallace, 177; 18th Wallace, 155; 22d Wallace, 576; 28th Louisana Annual Deports, 840, case of Aby <fc Catchings vs. J*. Harvey Brigham.
    Second — Botchford Brown & Co. being residents of the City of New Orleans, and Mrs. Mary E. Winn, testamentary executrix and universal legatee of W. O. Winn, being in the State of Texas, prescription did not run against the notes now owned by Mayfield untiL April 2d, 1866.

      Third — Oontra non valentem agere prcescriptio non currit.

    Fourth — A claim against a succession being once acknowledged by the representative of a succession, prescription is suspended as long as the succession remains open and in the process of administration. Succession of Bomero, 29th Annual, page 493; Henry Benshaw vs. G-eo. W. Stafford, Executor, 30 Annual, 853,
    Fifth — An executrix cannot be heard to deny, fifteen years after it was made, her own official endorsement on the notes. Her oral testimony in the record should he excluded. Hor could any one else attack it except upon the allegations of error or fraud, which are not pleaded here.
    Sixth — Witness contradicting his own act not credited; Puckett vs. Daw, 25 An. 597; Elbert vs. Wallace & Co., 26 An. 706; Howell vs. Sheriff, 27 An. 701; Beynes vs. Zacharie’s Succession, 10 D. 329 ; Mathews vs. Boland, 5 B. 200 ; McMasters vs. Stewart, 11 An. 547.

      B. J. Bowman for the Executor, Appellee.

      Jas. Andrews, Jr., for Opponent DuBois, Appellant.

      W. T. Blackman and Breaux & Hall for the universal legatee, Appellant :
    j'.jxst — The right of the several claimants to the succession of Winn, including Mayfield, to assert their claims according to law, if any such they have, and of the succession, and all parties in interest to contest the same, and each of them be reserved forfuture adjudication. Succession of Winn, 20 An. 794.

      Second — Placing'Mayfield’s claim on the tableau was therefore an error and a violation of this decision, and cannot, therefore, avail Mm.
    Third — The notes of Mayfield and all notes of that series, were prescribed in December, 1865. The recognition of a debt of the succession, as of November 1st, 1865, is nevertheless proven not to have been made until after January 1st, 1866, when prescription had accrued; and when sued on, as in the Gasquet claim, prescription should have been pleaded.
    Fourth — 2Jb executor or administrator has the right to renounce an acquired prescription, even by the most solemn written acts. 21 An. 373 ; 22 An. 465; 23 An. 194; 24 An. 33; 24 An, 380. Prescription was not suspended or interrupted by the war. Jacquet vs. Webb, Eevert & Co. 22 An. Ill; Mearson vs. Robertson, 19 An. 170.
    Fifth — The plea of prescription, which should have been interposed in bar of a judgment in the Gasquet suit, may now be interposed by any party having an interest. Succession Winn, 30 An. 702.
    Besides, the law will not permit the rights of heirs, legatees and third persons to be prejudiced by the inaction or improper conduct of executors.
    Sixth — Prescription is not interrupted by filing an account, without authorization of the rep- * resentative of the succession. Succession Piper, 26 An. 206.
    Seventh — Acts of Congress, libe acts of other States, are not binding upon the courts of this State in the administrtion of local laws; only when such laws are made in pursuance of the Constitution have they any binding force. Story on the Cons. § 1830; Miltenberger vs. Witherow, 24 An. 184.
    Eighth — An inspection of the authorities will show that the act of Congress referring to prescription has "been enforced by the IT. S. Supreme Court, only in cases tried in the Federal courts, without pretense that it would govern State tribunals where State statutes of limitation exist.
    Einth — Prescription of-a judgment can only be interrupted-by suit to revive. Smith vs. Palfrey, 28 An. 615; Samory vs. Montgomery, 27 An. 51.
   The opinion of the Court was delivered by

Todd, J.

On the 5th of July, 1880, J. M. Wells, Jr., executor of the succession of Walter O. Winn, filed in the District Court of the parish of Rapides a provisional account of his administration of said succession.

This account was opposed by J. D. Dubose, John S. Turner and Widow Gasquet, claiming to be judgment creditors of the succession, and by Mary E. Richards, wife of A. Keene Richards, formerly Mary E, Winn, surviving widow and universal legatee of the deceased.

The alleged judgment creditors opposed the account; first, because their judgments had not been recognized by the executor and placed on the account as first claims against the succession. In common with Mrs. Richards they opposed certain claims allowed in the account, the principal one of which was the claim in favor of John S. Mayfield, based on nine promissory notes, amounting, exclusive of interest, to $45,000, andl against which the prescription of five years was pleaded.

Mrs. Richards and Mayfield also pleaded the prescription of ten years against the judgments mentioned. .

The District Judge amended the account by recognizing the judgments in favor of Dubose, Turner and Gasquet, and ordering them to be paid, and dismissed the opposition to Mayfield’s claim, and homologated the account as amended.

From this judgment Mrs. Richards, Dubose and Mayfield .are appellants.

I. The judgment in favor of Turner was signed on the 12th of March, 1866, and that in favor of Gasquet on the 7th of March, 1868, and neither was ever revived, and both were, therefore, clearly prescribed; and- in allowing and recognizing them as subsisting claims against the successions the judgment was manifestly erroneous. C. C. 3521. '

II. In relation to the claim of John S. Mayfield, the facts pertinent to the plea of prescription urged against it, which is the sole issue respecting it to be tried, are as follows:

On the 30th of March, 1860, Walter O. Winn executed, in favor of Ratchford, Brown & Co., ten promissory notes, secured by mortgage on a plantation in Carroll parish for $5,000 each, one-half of said notes payable on the 10th of November, and the other half payable on the 10th of .December of the same year, nine of which notes were transferred to Mayfield in the year 1866.

Winn died in 1862, leaving the notes unpaid, and by last will constituted his surviving widow, Mary E. Winn, (now Mrs. Richards), his universal legatee, and appointed her executrix of his estate.

On each of the nine notes held by Mayfield appears the following acknowledgment indorsed thereon, to wit:

“ I hereby acknowledge this note to be a debt due by the succession of Walter O. Winn, deceased, secured by mortgage upon the property named in the act of mortgage, in Carroll parish, and I promise to pay the same in due course of administration.
“Alexandria, La., Nov. 1st, 1865.
(signed) Mary E. Winn.”

The opposition of Mrs. Richards (Winn) to these notes is couched in the following language:

“She opposes the ordinary claim of nine notes for $5,000 each, amounting to $45,000, which is allowed by the public administrator, (executor), and which he proposes to pay.
“ Opponent says that the notes are prescribed, and were prescribed at the date they were accepted by the executrix, the date of the acceptance being written on the back of‘the notes long before they were accepted by the executrix, and accepted in error; the prescription of five years she specially pleads as a bar to said claim.”

Mrs. Richards, who was sworn as a witness on the trial, fully sustains by her testimony the allegations of her opposition as to the time of the acknowledgment of the notes, and her error or ignorance with respect to the date expressed in the writing signed by her, — showing that the actual date of the signing was in 'January, 1866, instead of 1st November, 1865. And she is fully corroborated with respect to the real date of the signing by the testimony of Judge Byan, also in the record.

The testimony of Mrs. Eichards was, however, objected to by the counsel for Mayfield, and a bill of exceptions taken to its admission. The first objection is “ that Mrs. Eichards was estopped from denying her written acknowledgment or contradicting any part of the same.” We have carefully examined the authorities cited by counsel to sustain their objection, but do not think them applicable.

The executrix of Winn’s succession was wholly without authority to acknowledge a claim against the succession which was barred by prescription. If she did so, and the written acceptance showed that it was allowed after prescription had run, it would palpably be without effect as to the rights of otner creditors, heirs or legatees of the succession. If, however, though the acknowledgment' was made after prescription, yet the writing showed a date of acceptance before prescription had accrued, and was, therefore, false and the signature of the executrix to such false writing had been induced by error, and such error expressly alleged,, it would certainly be competent for the executrix to expose the falsity of the writing and correct the error, and it would be her duty to do so ; and the right of any other party interested to do the same and, by such exposure, protect themselves from loss, would seem plainer still.

*In this case, the proof is offered by Mrs. Eichards as universal legatee, in which capacity alqne, her opposition is made. The preparation of a written acknowledgment of the notes in question, and the insertion therein of a false date, and the presentation of the same to the executrix with this false date, without calling her attention to it, was a fraud upon the succession and its representative and subject to be exposed by any one interested.

The next objection urged to the testimony, was that the claim of Mayfield had been twice contested on the ground of prescription, and it had been decided that it was not prescribed and, therefore, the matter was res adjudicate and closed to further inquiry. This question is not free from difficulty ; but from a careful study of the cases in which it is contended the decisions were made, we have reached the conclusion that they do not sustain the plea.

The first case cited in support of the plea, is that 'of the succession of W. O. Winn : On petition of J. S. Mayfield to destitute Mary E. Eichards, executrix; reported in 27 An. 687. In this proceeding, May-field charged that Mrs. Eichards had forfeited the executorship of the succession by quitting the State, becoming a non-resident of the same, and leaving no agent to represent her under a power of attorney duly recorded. Mrs. Richards denied the right of Mayfield to institute such proceeding, on the ground that he was not a creditor of the succession, and averred that, if his claim ever existed, it was prescribed. There was judgment rendered destituting her of the executorship.

The object of that suit was solely the destitution of the executrix. There was no judgment sought or asked for on the notes ; but the question whether Mayfield was a creditor or not was a mere incident of the proceeding, raised with reference to the right of the plaintiff therein, as an interested party, to demand the removal of the executrix or rather to have declared her forfeiture of the executorship by reason of removal from the State. So far as related to the existence of the claim in question or its extinguishment by prescription or otherwise, neither the succession nor its creditors were properly represented, and any ruling on the point could in no manner affect them.

This is the view taken of this identical question by our immediate-predecessors in the other case cited and relied on by the counsel for Mayfield. We refer to the case entitled Succession of Walter O. Winn, reported in 30 An. 702.

In that case, a rule had been taken by persons claiming to be creditors of the succession to cause the property thereof to be sold to pay their debts. This was opposed by Mayfield. These creditors then denied his right to oppose them and pleaded prescription against his claim. Mayfield resisted the plea on the ground that the question was res adjudicata, and cited in support of it the decision in 27 An., to which we have referred.

The Court in ruling on the question said :

“ It is also denied that Mayfield is a creditor, and averred, if he ever was, his debt is prescribed. He claims that the question of prescription was judicially determined in his favor in a suit brought by him to remove Mrs. Winn from the administration of the estate; and that his debt which is evidenced by several promissory notes, has been legally acknowledged both by the former and the present executor. The evidence supports the latter allegation ; but we do not consider the adjudication in the amotion suit as determining finally, for other purposes and against other creditors or parties interested, the matter of prescription.” The Court dismissed the entire proceedings, and in their decree used this language : “ That the right of the several claimants, including Mayfield to assert their claims according to law, if any such they have, and of the succession and all parties interested to contest the same, be reserved for a future adjudication.”

This disposes of the plea of res adjudicata, and with it of the objections to the admission of Mrs. Richards’ testimony. This testimony, supported as it is by Judge Ryan, as before stated, leaves no doubt that the acknowledgment of the claim by the executrix was made after the expiration of five years, the prescriptive term, from the maturity of the notes.

We would remark, also, that the plea of prescription was urged in these opposition proceedings against the claim of Mayfield, not only by Mrs. Richards, but by those claiming to be judgment creditors of the succession.

III. The counsel for Mayfield and the executor, however, urge, with great earnestness that, even admitting that the acknowledgment of the notes was not made within the five years, prescription on the notes was suspended by and during the war, and also by the effect and under the operation of the Act of Congress embraced in section 1018, United States Revised Statutes.

'Upon the first ground of suspension urged, whatever opinion we might entertain respecting it were the question a new one, we must con - sider it put at rest by repeated and uniform decisions of this Court running through many years. These decisions declare, in unmistakable terms, that the war between the States did not operate a suspension of prescription. Upon the principle of stare decisis we do not feel authorized to disturb them. 19 An. 187; 20 An. 280, 363,113,127 ; 21 An. 76, 106, 126; 22 An. 111; 23 An. 553, 718.

The Act of Congress, relied on as operating a suspensioh of prescription in this case, reads as follows:

“ In all cases where, during the late rebellion, any person could not, by reason of resistance to the execution of the laws of the United States, or of the interruption of the ordinary course of judicial proceedings, be served with process for the commencement of any action, civil or criminal, which had accrued against him, the time during which such person was beyond the reach of legal process shall not be taken as any part of the time limited by law for the commencement of such action.”

The most natural inference to be drawn from the reading of this statute is, that it is applicable alone to actions and proceedings in the Federal courts and intended to establish a rule of practice therein on the subject mentioned. We cannot readily conceive that it was designed as a law to govern the States and State courts, and that, in fact, it was virtually to constitute an amendment to our Code, making an addition to the causes of the suspension of prescription therein enumerated. We supposed, if there was any one subject exclusively within the control of the State governments, it was that which related to the organization of State courts, defining the different kinds of actions, prescribing the time within which they must be instituted, and, in fine, establishing a system of practice for the regulation and government of such courts. This was a power inherent in all sovereignties and which the States had exercised to the fullest extent before they became members of the Federal Union, and which it was not supposed they had -parted with or impaired by any delegation of the.power, express or implied, to the Federal government. Indeed, it would be difficult to the mind, uninformed on this point, to imagine under what particular clause of the Federal Constitution the Congress of the United States could claim the right to regulate, the prescription of actions in the States; that is, to determine within what time actions were to be brought and to declare that any particular cause, condition or circumstance could modify such rule of practice or suspend its operation. The statute in question, if applicable to State courts, is just one of this kind, and necessarily involves such an assumption of power. Opposed to such authority, in our opinion, are the plain terms of the Constitution itself, and the as plain teachings of the framers of that instrument, and of the writers on the subject of its construction and the relative powers of the States and the Federal government under it. And equally opposed to it we believe to be the jurisprudence — Federal and State — established by an unbroken series of decisions on subjects strictly analogous to the one involved.

State courts, acting on matters within their jurisdiction, under State laws regulating their practice in them and the right and form of actions to be prosecuted before them, and in no manner impinging on the inhibitions of the Federal Constitution, are just as independent and free from Federal control and interference as the courts of a distinct sovereignty or of another country. And, notwithstanding our profound respect for that august tribunal, we cannot yield our firm and conscientious convictions on this subject to an isolated decision of the Supreme Court of the United States, (Stewart vs. Kohn, 11 Wall. 493), which held that this Federal statute was applicable to proceedings in State courts; nor are our convictions changed by the legal subtlety displayed in that decision, which locates the constitutional authority of Congress thus to legislate for the government of the State courts, and to fix the prescription of actions therein in or under the war making power. We say isolated decision, for the reason that it is the only one we And in which the decision was rendered on appeal from a State court, and where it is distinctly announced that the statute in question applied to and controlled proceedings in State courts — every other case in which the effect of that statute'was at issue having been instituted in the Federal courts, and such effect not having been expressly extended to the State courts.

Nor are we any more impressed with the authority of a decision of. the Supreme Court of this State, 28 An. 840, Aby vs. Brigham, curator, invoked, which contains a mere dictum on the point without comment or reason, and shows nothing on the face of it but an acquiescence in an authority which, if universally conceded and exercised in pari materia, can successfully invade every subject heretofore acknowledged to pertain to the domestic affairs and institutions of a State, and supplant the rights of action, the mode of procedure or practice in the State courts, by other systems, modes and methods, framed and supplied by Con-, gressional legislation. The case last referred to, to the extent of the authority of this Court, may be considered overruled. -

Under this view of the subject, we conclude that the claim of May-, field was prescribed when acknowledged by the executrix, and that the acknowledgment made after prescription had run, was without legal effect- against the succession or any person interested therein.

This disposes also of the questions raised by the opposition of Mayfield, who, being without interest, has no right to oppose the claims of others, or raise issues touching any of the proceedings.

IY. The claims of Mayfield, as also of Turner and Gasquet, being, disposed of, the only parties left before the court áre the executor and the opponents, Mrs. Richards and Dubose.

We do not understand that the judgment of Dubose is opposed by Mrs. Richards, inasmuch as no objection thereto is, urged by her counsel in their brief. But, however, even if we consider her opposition as extended to this claim, it is without effect, since it is limited to the.plea of prescription against the judgment; and we find that ten years have not yet elapsed since its rendition.

Y. The only other items of the account opposed are four, consisting of the charges for attorney’s fee of R. J. Bowman (item 30), $919; taxes, $266 62; (ítem 1), and costs of certain suits.

The evidence sustains the charge for attorney’s fees, and the ground of opposition to the costs is not on account of their incorrectness but of their not enuring to the benefit of the estate, which allegation is unsustained by proof and is, therefore, overruled. The item for taxes is supported neither by a voucher nor by proof, and must be rejected.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be amended by rejecting the claims of Jno. S. May-field, John S. Turner, Widow Gasquet, and the item of $266 66 for taxes, as proper charges against the succession of W. O. Winn, deceased, and sustaining the oppositions of Mrs. Mary E. Richards and J. D. Dubose thereto, and, 'as thus amended, it be affirmed the costs of the oppositions of Mayfield, Turner and Gasquet in both courts, to be paid by these opponents respectively, and the balance of the costs by the succession of W. O. Winn.

On Application nor Rehearing.

Levy, J.

In our original judgment we rejected the claim for $266 26 (item 4) for taxes, on the ground that it was “ neither supported by a voucher nor by proof.” On his motion and brief for a rehearing, the executor urges that the vouchers, as to l^his item, were filed in the lower court and that evidence was taken in reference thereto — not this evidence but the voucher itself, is contained in the record; that the plea of prescription was made against the item, which is a virtual admission that the debt once existed.

Counsel for the opponent, Dubose, in an addendum to the brief in behalf of executor, admits that item 4 for said taxes “ was supported on the trial in the District Court by the receipt of the tax collector of Caddo for that amount of taxes paid by the executor on the land in that parish, sold in 1878.” There was no contest in the lower court as to the verity of the payment, but simply upon the question whether the taxes were prescribed when paid by the executor.

An examination of the record on this point satisfies us that prescription had not accrued at the date of said payment. Our original decree must, therefore, in respect to that item, be amended.

We find no reasons advanced to justify any change in our opinion and decree on the other points and matters decided by us.

It is, therefore, ordered that our original decree,herein be amended so far as it rejects the item of $266 62 for'taxes paid by the executor, which item is now recognized as a just claim against the succession, and in all other respects our former opinion and decree are to remain undisturbed.


text:
    No. 7271.
    Josiah Fisk vs. L. Soniat et al.
    Charges of dishonesty against the Parish Attorney made in good faith and in the discharge of their official duties by members of the Police Jury, do not render them liable in damages for libel. '

    APPEAL from the Second Judicial District Court, parish of Jefferson. Pardee, J.

      Ghs. Louque for Plaintiff and Appellant:
    Pirst — A general denial does not admit that defendant was guilty of a libel. 28 An.238. Second — On proof of the libel, damages should follow. 27 An. 219 ; 19 An. 194.

      Spencer & White and H. Ghiapella for Defendants and Appellees :
    Pirst — The matters charged as libellous were said, published and done by the defendants in the discharge of their official duties. They were privileged. Townsend on Libel and Slander, p. 414, sec. 235, p. 420; Harrison vs. Bush, 5 El. and Bl. 344 j Whitely vs. Adams, 15 C. B. N. S. 292; Cook vs. Hill, 3 San. (N. Y.) 341; Van Wycke vs. Gurtlirie, 4 Duer (N'. Y.) 268; Hale vs. Parsons, 23 Tex., 9; Larkin vs. Noonan, 19 "Wis. 82.
    Second — -The communication to the Governor, who was vested with the power to remove, and whose action was beyond the pale of judicial inquiry, was absolutely privileged; whence not actionable. Larkin vs. Noonan, 19 "Wis. 82; State ex. rel. Martin vp. Lamantia, 33 An. 1149.
    Third — If not absolutely, the communication was conditionally privileged; hence, threw on plaintiff the burden of showing express malice and want of probable cause. Townsend, p. 348, and authorities already quoted.
    Fourth — There was no malice, and there was probable cause.
    Fifth — The evidence of justification is in the record, and was admitted without objection; it can be considered, and is not governed by Harrison vs. Jurgielewiez, 28 An. 238.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an action for damages claimed to have been sustained by the plaintiff, in consequence of alleged tortious acts. The damages are assessed at $14,500, and the defendants are asked to be condemned to pay in solido.

The tortious acts charged are: That the defendants, who were members of the Police Jury of Jefferson parish, have maliciously caused to be entered on their minutes, resolutions to the effect that the plaintiff had swindled the parish out of some tax collections.

From the evidence and the statement of facts, we gather that the plaintiff was the parish attorney pro tern..; that, in tax cases in which twenty-five per cent, in cash had been collected, he paid, ten per cent, only into the parochial treasury; that the Police Jury, at a.regular meeting, appointed a committee to inquire into the facts; that the committee reported that, in a case the tax collected by thesattorney was, or should have been, twenty-five per cent, in cash and the remainder in warrants; that the report of the attorney shows but ten per cent, in cash were accounted for, while the parties averred that they paid at the rate of twenty-five per cent, in cash.

On this report, a resolution was adopted raising a committee to wait on the Governor and request the revocation of the attorney. The committee presented a petition to that end, on the grounds that the attorney was ineligible under article 105 of the Constitution; that twenty-five per cent, had been collected on certain taxes and only ten per cent, had been paid in by him; that judgments for large amounts had been rendered against the parish during the incumbency of the attorney, of which he claimed to be the owner of a considerable sum, and that the Police Jury had lost confidence in his ability to faithfully represent the parish.

The Governor then empowered a practicing attorney of recognized ability and independence to investigate the charges. This gentleman, after doing so, reported that he thought the charges were substantiated and that the attorney should be removed.

Acting on the matters before him-and in the exercise of a discretion vested in him, the Governor made the removal.

Charging malice, want of probable cause and the falsity of the chargés, the plaintiff brought this suit.

This is clearly an action to saddle responsibility on the defendants for acts done by them-in the discharge of their official duties.

Entrusted with the administration of parochial affairs, it was their duty to see that the revenues of the parish were faithfully collected and accounted for, and, to that end, to take all proper and necessary steps. Had they proved derelict in such duty they would have exposed themselves to liability.

They had a right to appoint the committee, to hear and receive their report, to act upon the same and to apply as they did to competent authority for the displacement of an officer whom they thought was delinquent and no longer trustworthy. ,

For the honest and bona fide discharge of such duties, they are shielded from responsibility, as they acted in an official capacity, regularly, and under what seems to be due sense of their functions.

It does not appear that the attorney received twenty-five per cent, and accounted for ten per cent, only in tax matters. The evidence rather tends to show that the justice collected the first and that he received the last percentage, and that he paid what had come to his hands. Be that as it may, he was not charged with having collected twenty-five and paid ten per cent. The alternative charge was that the tax collected by the attorney was or should have been twenty-five per cent, in cash and the remainder in warrants. If twenty-five per cent were collected, and he knew it, the attorney should have forced the justice of the peace who made the collections to account accordingly.

Even if they erred in their conclusion in withdrawing their confidence, the Police Jury did so honestly and had a legal right to act officially as*they have done.

The plaintiff has alleged, but has not proved any malice, express, or implied, on the part of either of the defendants. They were clothed with a quasi judicial authority. They had probable cause and acted bona fide in matters pertaining to their functions and which required their action. Under English and American authorities and common sense, they are privileged, and are fully protected and exonerated. Townsend on L. and S., 348, 414, 420; 19 Wis. 82; 33 An. 1149; Cooley on Torts., pp. 403 et seq.; Jacob’s Dig., vol. 3, p. 402; 3 same, N. Y. 341; 4 Duer N. Y. 268; 17 N. Y. 190; 23 Tex. 9.

The District Judge properly rejected the claim. ■

It is, therefore, ordered that the judgment appealed from be affirmed with costs.


author: Todd, J.

text:
    No. 8322.
    The State of Louisiana vs. John Wittington.
    It affords no ground of challenge to the array, that the names of deceased and incompetent persons were placed in the box, or drawn therefrom. The accused can only take advantage of ithy a challenge to the poll. The incompetency of one of the Grand Jurors cannot be urged by the accused after he has pleaded to the indictment and been convicted, in the absence of averment and proof that he, (the accused), only knew of the incompetency after trial and conviction.
    APPEAL from the Twenty-second Judicial District Oourt, parish of St. James. Gheevers, J.

      F. B. Farhart, District Attorney, for the State, Appellee.

      J. L. Gaudet for Defendant and Appellant:
    The names of incompetent persons, especially those charged with crime punishable in the Penitentiary, should not remain in the box from which the jury is drawn. 20 A. 356, ib 442, Act 2Sb. 44, Regular Session of 1877; Act bTo. 54, 1880.
    A person charged with larceny cannot act as a grand juror, and a subsequent trial arid acquittal of such person will not establish bis status. 21 A. 251; 30 A. 884.
   The opinion of the Oourt was delivered by

Todd, J.

The defendant was indicted for the crime of rape, and convicted of an assault with intent to commit a rape ; was sentenced to six months imprisonment at hard labor in the Penitentiary, and has appealed from this sentence.

He relies on two errors suggested in the proceedings below for relief: The first is the overruling by the judge a quo of his challenge to the array ; and second, the denial of his motion in arrest of judgment.

The challenge to the array was based upon the allégation that the jury commissioners had drawn the s.everal names of persons then deceased, and also the name of a party then under a charge of arson ; it was also urged that there were certain irregularities touching the custody of the venire list and box, and want of completeness in the process verbal of the commissioners, which last seems to be abandoned in the argument.

It afiords no ground of challenge to the array that the names of deceased and incompetent persons are placed in the box or drawn therefrom. This fact could not vitiate the entire drawing. It could only be taken advantage of by a challenge to the poll, as relates the incompetent jurors. This has been repeatedly ruled, and is .the accepted doctrine, and accords with the express language of the statute. Sec. 10, Act 44 of 1877; 31 An. 94; 26 An. 581. -

In regard to the motion in arrest of judgment, it contains no other ground than an averment, that one of the grand jurors who found the bill, under which the accused was convicted, was incompetent to serve, for the reason that there was a charge of larceny pending against him at the time of his selection. This was more properly a ground for a new trial, since it did not involve an irregularity patent on the face of the record. Though waiving this, it is the settled doctrine that such irregularity cannot be urged after the accused has formally pleaded to the indictment and been tpied under it, in the absence of any averment or proof that the iact relied on was not ascertained until after these proceedings.

On this point wg> quote the following from Bishop : “ Thus after a party has pleaded to an indictment and been convicted, it is too late to object to the constitution of the grand jury, or to the disqualification of any particular member, more especially if it was known before.” 14 An. 827; 28 Miss., 687; 2 Barb, 427; 2 Parker, C. C. 235; 7 Eng. 630.

The case of State vs. Parks, 21 A. 251, cited in opposition to this view, is not in point, as in that case it distinctly appeared that the incompetency of the grand juror was only discovered after the trial, and the irregularity was taken “ advantage of by a motion for a new trial,” and not by motion in arrest. In the present case there is no averment or pretense that the fact of incompetency was not known to the accused before arraignment and trial.

Judgment appealed from affirmed.


text:
    No. 8018.
    Mrs. Harriet R. Mellor vs. T. Gilmore, Executor.
    The Court below having sustained tbe Exception to its jurisdiction and refused to bear and determine the differences between tbe parties, tbis Court can only pass upon tbe said Exception and cannot, in tbis Appeal, decide tbe other issues of tbe case.
    Tbe character of a suit is to be ascertained by tbe prayer rather than by tbe allegations of tbe Petition.
    Tbis action is not one of partition, but one for a money judgment against a succession, and tbe Court below, as a court of probates, bad jurisdiction. Tbe case must, therefore, be remanded
    A PPEAL from the Second District Court for the parish of Orleans. A Tissot, J.

      Nicholls & Carroll for Plaintiff and Appellant:
    The question before tbe Court is simply one of jurisdiction. Tbe action of plaintiff is not * for a partition, but for a sum of money due by a succession.
    Such an action must be brought in a court of probate jurisdiction. Tbe Second District Court for tbe Parish of Orleans — a Court solely of probate jurisdiction — bad jurisdiction in tbe premises.

      T. Gilmore & Sons for Defendant and Appellee:
    Eixst — This is in effect an action of partition of ■which the late Second District Court for the Parish of Orleans, had no jurisdiction, Boutté vs. Boutté, 30 An. 177; Buddecke vs. Buddecke, 31 An. 572; Ereret va. Ereret, 31 An. 506; Benedict vs. Elorat, 30 An, 1337; Louque’s Digest, p. 160.
    Second — The allegations of the petition and the proot show that plaintiff has no cause of action — she having previously sold and conveyed all her rights in the succession of her dangliter, Mrs. Stanley, to her co-proprietor. Petition, page 5; Act of partition, p. 179; Civil Code, Arts. 1380, 1372, 1412, 2650, 2651; 20 An. 358; 15 An. 585; 6 E., 488.
    Third — The heir is a necessary party to an action for partition. The executor cannot repre-. sent the heir; and the executor was functus officii. Boutté vs. Boutté 30 An. 182, and authorities there cited.
   The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiff brings this action as the universal legatee of her daughter, to recover $8246, as the alleged value of money, effects and property belonging to the community between her and her deceased husband, Stanley, which were not included in the act of partition between the plaintiff and the latter’s executor and which she did not then know to exist.

The executor pleaded: want of jurisdiction in the court, want of proper parties and no cause of action.

The lower court sustained the first plea and dismissed the suit. The plaintiff appeals.

Considering that it had no jurisdiction over the case, the lower eourt properly abstained from passing upon the questions presented by the second and third exceptions. It could not logically do otherwise, as the determination of those pleas implied jurisdiction and would have had the court to occupy antipodal and self-destructive positions. All we can do now is to examine whether the District Court erred or not in refusing to hear and determine the differences of the litigants.

It is claimed that this Court has several times decided causes or points different from that on which the lower court acted. This is true, but there bad been a hearing, an examination of the controversy, which had been gone into and passed upon, so as to settle the differences. The point determined to justify the judgment was immaterial to this Court. A court having jurisdiction can hear and determine, but it may hear without determining, and it may determine without hearing, all the points raised. 6 Pet. 691; 12 Pet. 657, 717; 10 Cal. 292; 43 Tex. 440; 44 Cal. 84. It may decide a case on a single point whether made or not. In the eases referred to, it will be perceived that a judgment had been rendered susceptible of acquiring the force of res judicata. That was sufficient .to authorize the appellate court to adjudicate upon the issues presented, whether of fact or of law, or both. Such adjudication could also be made, in such cases, even if only a nonsuit had been rendered. This Court revises the judgments and not necessarily the reasons of lower courts on appeal.

Pleas to the jurisdiction, however, are different.' "When sustained they withdraw the whole case from the court.

In the exercise of its appellate powers, this Court reviews the judgments of lower courts, 1o affirm, reverse or amend them, or to remand a case.

We cannot, in the present phase of this action, decide what the rights of .the parties are, for that would be assuming and exercising an original j urisdictioh, which we do not possess in that class of cases.

This Court can exercise its appellate jurisdiction only in so far as it shall have knowledge' of the matters argued or contested below. C. P. 895; 8 N. S. 52; 5 R. 82; 1 L. 323; 3 L. 516; 6 L. 402; 24 An. 223.

We do not think that the lower court properly declined jurisdiction.

' The character of the suit is not to be ascertained and determined so much by the allegations of the petition as by the prayer for relief.

In the present action, the plaintiff seeks a money judgment for the causes enumerated in the petition. What the grounds for recovery are, is insignificant. They may not justify the prayer; they may be destructive of it; they may be such as would require a rejection of the demand on the face of the petition; but, from this the only inference that could be drawm would be that the court should, in the exercise of its powers, quiet the defendant. It is only after the court shall have taken jurisdiction that the other defenses can be adjudicated upon.

The suit being one for money against a succession, not only was properly brought before -he Second District Court for the parish of Orleans, which had exclusive jurisdiction, but could not be instituted before any other court. 33 An. 692.

The record does not show that the heirs had been put and were in actual possession at the bringing of this suit. The order of the 31st of December, 1879, directing such possession, was in suspense on the 9th of January following, when the petition herein was filed. An order had even been made three days after, on the 12th, directing the executior to make provision for the demand of the plaintiff as it had then been presented and existed on the docket of the court.

It is, therefore, ordered and decreed that the judgment appealed from be reversed; and, accordingly, that the exception to the jurisdiction be overruled; that the case be referred to the Civil District Court for the parish of Orleans, which has superseded the Second District Court for that parish, there to be further proceeded with according to law; defendant and appellee to pay costs of the lower court from the filing of the exception to the jurisdiction, and the costs of appeal.


text:
    No. 8345.
    The State of Louisiana vs. Alonzo Wells.
    A venire drawn by a majority of the Jury Commission, in the absence of a member who has not yet qualified, is legal and regular.
    APPEAL from the Seventeenth Judicial District Court, parish of East Baton Rouge. Sherburne, J. •

      J. C. Egan, Attorney General, for the State, Appellee:
    First — The non-qualification of one of the appointees on a jury commission does not invalidate the organization of said commission, nor the proceedings thereof, if said appointee does not participate therein.
    Second — It is only necessary that three members of a jury commission be present and transact the duties imposed on the commission. Sec. 3, Act No. 44, of 1877.
    Third — It is a presumption of law that public officers perform the duties, and it is incumbent on the complainant to prove dereliction.

      OrosS & Jones for Defendant and Appellant:
    The process verbal of jury commission must show that the formalities of law required in drawing the jury are complied with.
    The commission must be organized as a whole before a majority can form the venire.
    The verdict of the jury must appear on the indictment in proper form — and where there is no verdict endorsed in proper form the informality is not helped by the statement of the minutes.
    The accused is entitled to the charge that the name of the deceased as stated in the indictment should be proved.
    Where the record does not show that the indictment was brought into open court by the grand jury, the defect is fatal.
   The opinion of the Court was delivered by

Bermudez, C. J.

The accused was prosecuted for murder, found guilty without capital punishment, and sentenced to hard labor for life in the State Penitentiary.

On appeal, he seeks to have the verdict and judgment thereon set aside on the ground that the motion which he made to quash the venire was illegally overruled. The motion charges that the j ury commission was not organized by the acceptance of one Yon Phul, and the majority could not act until the commission was thus completed.

It is sufficient to say that the law does not contemplate as a condition precedent, sine qua non, that the members of a jury commission should all accept and qualify, before a majority of them, who have accepted and qualified, can act in the discharge of duties which the statute expressly imposes upon them. It is only necessary that the three members who compose such majority of the commission have accepted, qualified, be present and fulfill the functions assigned to them. The omission of one of the members of that body to qualify or to participate in the discharge of such duties, does not strike fatally the existence, or invalidate the official acts, of that body. Act 1877, No. 44, Sec. 3.

The speedy and impartial administration of justice, to which both the State and the accused awaiting trial are entitled, cannot be permitted to be impeded and thwarted by the happening of such irregularities. It was, no doubt, in prevision of the occurrence of such contingencies, that the law has wisely lodged in a majority the whole powers of the entire organization.

Judgment affirmed.


author: Levy, J.

text:
    No. 8341.
    The State of Louisiana vs. Narcisse Green et al.
    In a criminal prosecution where two defendants are jointly on trial, the State is entitled to. six peremptory challenges for each twelve challenges to which such defendants may be entitled. Act No. 24 of 1878 is not unconstitutional and governs this point.
    The presence of the accused in court is not necessary during the filing, trial and disposition of a motion for a new trial. Previous Decisions affirmed.
    APPEAL from the Twenty-fifth Judicial District Court, parish of Lafayette. Clegg, J.

      J. C. Egan, Attorney General, for the State, Appellee:
    Pirst — Act No. 36 of 1880, is the law which governs the challenges of jurors in trials of criminal cases at regular jury terms, where the punishment may be death or imprisonment at hard labor for a term of twelve months or more.
    Second — Secs. 997 and 998 R. S. are repealed by Act No. 36 of 1880 ; and Sec. 4 of Act No. 24 of the D. S. of 1878, p. 282.
    Third — That the presence of accused in court on the trial of the motion for a new trial is not essential. 32 An., 560, and authorities there cited, etc.
    O. G. Mouton and G' DeBaillon for Defendant and Appellant:
    pirat — State is only entitled to six peremptory challenges regardless of the number of defendants in the prosecution. Sec. 998, R. S. 1870; 24 An. 38; 25 An. 472.
    Second — Provision in Act No. 36 of 1880 which allows more than six peremptory challenges to the State is unconstitutional, null and void, contravening articles 29 and 30 of the Constitution of 1879.
    Third — That said Act No. 36 amends section 997 and not section 998 Revised Statutes of 1870.
    Pourtb. — That the title of said Act embraces no amendment or repeal of said section 998.
    Pifth — Record must show presence of accused in court, when motion for new trial is filed, tried, evidence in support thereof introduced, and when submitted and overruled.
   The opinion of the Court was delivered by

Levy, J.

Narcisse Green and Arthur Meaux were jointly indicted for the crime of larceny, tried and convicted, Green being sentenced to hard labor in the Penitentiary for the term of eighteen months and Meaux for two years. Green has alone appealed.

The ’principal ground on which he relies for a reversal of the judgment is, that the judge a quo allowed the State to exercise more than six peremptory challenges. He contends that the provision in Act No. 36 of 1880, which allowed more than six peremptory challenges to the State, i. e., six for each defendant when more than one is on trial, is unconstitutional and void and contravenes Arts. 29 and 30 of the Constitution of 1879, which articles are as follows : “ Art. 29. Every law enacted by the General Assembly shall embrace but one object, and that shall be expressed in the title.” Art. 30. “ No law shall be revived or amended by reference to its title, but in such cases the act revived or section as amended shall be re-enacted and published at length.” He also contends that Act No. 36 of 1880 amends section 997 and not section 998 of the Revised Statutes of 1870 ; also, that the title of said act embraces no amendment or repeal of said section 998.

It is unnecessary to consider the arguments advanced both by counsel for the defence and the prosecution as to the effect of Act No. 36 of 1880, because the question is disposed of by Act No. 29 of 1878.

This last act was passed while the Constitution of 1868 was in force, and in that Constitution there was no inhibition against the Legislature incorporating more than one object in one bill. Art. 114 only requires that “ Every law shall express its object or objects in its title.” Act No. 24 of 1878, among other articles embraced in its title, contains the following : “ And to provide that in all criminal trials, where two or more defendants are jointly on trial, each defendant shall be entitled to twelve peremptory challenges, and that the State* shall be entitled to six peremptory challenges for each twelve challenges to which such defendants may be entitled under this act, and to repeal all laws in conflict herewith.”

Section 4 of that act enacts : “ That in all criminal trials, where two. or more defendants are jointly on trial, each defendant shall be entitled to twelve peremptory challenges, and that the State shall be entitled to six peremptory challenges for each twelve challenges to which such defendants may be entitled under this section.” And Sec. 5, “ That all laws and part of laws in conflict herewith, be and the same are hereby repealed, and this Act shall take effect from and after its passage;”

This then repealed sections 997 and 998 of the Revised Statutes of 1870, which were clearly and expressly in conflict therewith.

The presence of the accused is not necessary in court during the filing, trial and disposition of a motion for a new trial. 32 An. 560 and authorities there cited.

The judgment appealed from is affirmed at appellant’s costs.


author: Fenner, J.

text:
    No. 8344.
    The State of Louisiana vs. Jake Shields.
    The law provides no delay for arraignment after indictment or information, and the accused is required to plead when arraigned, which is his only time as of right.
    The excusing of a juror by the Court, even if the latter committed an error in so doing, cannot be taken advantage of by the accused.
    APPEAL from, the Seventeenth Judicial District Court, parish of East Baton Bouge. Sherburne, J.

      J. O. Egan, Attorney General, for the Stat e,Appellee:
    First — When an accused refuses to plead to an indictment, the order of the court to enter t» plea of “ not guilty ” is right and proper.
    Second — The objection of accused that he has not had sufficient time to prepare his pleas is worthless when he has already been tried for the same offense, and is about to undergo a new trial.
    Third — This Court is without authority to disturb the sentence of the court a qua because o the penalty when the penalty therein imposed in conformity with the statute.
    ¿Fourth — Dying declarations are admissible in evidence.
    ¿Fifth — This Court will not remand a case because of the refusal of the judge a quo to charge the jury as requested by the accused, when the record fails to disclose the possible basis of said request, or that some injury resulted to the accused by said refusal.
    Sixth — It is in the discretion of the judge a quo to excuse from jury duty any juror who presents an excuse. Bishop on Crim. Pro., vol. 1, Sec. 926, and authorities there cited. IS Iowa, 435.

      Cross & Jones for Defendant and Appellant:
    Accused should have a reasonable time to plead. Archbold Criminal Pleading, pp. 63, 73, 74.
    An. exempt fireman in Baton ¿Rouge is not excused from jury duty.
    A dying declaration is admissible only under the same conditions as if the deceased were on the stand ; ‘ ‘ anything the murdered man in articulo mortis may say to facts is receivable, but not what he says as matter of opinion.” Wharton’s Criminal Law, Old ¿Ed., p. 182.
    Accused is entitled to the charge that the name of deceased should be proved as alleged. Greenleaf, 3d. vol., 2d parapraph; and the judge erred in withholding such charge on assuming as a fact, that the name was actually proved as laid.
   The opinion of the Court-was delivered by

Fenner, J.

The errors urged in this Court are the following : ■

1. Exception is taken to the ruling of the court in requiring him to plead at the time of his arraignment and, on his refusal, in ordering the plea of not guilty to be entered in his.behalf — the complaint being that he was arraigned on the same day on which the information was filed, and had not had time to determine on his plea. The law provides no delay for arraignment after indictment or information, and the defendant is required to plead when arraigned, which is his only time as of right. 1 Bishop Crim. Proc., 734.

Indulgence is often granted in the discretion and leniency of the court, but there is no láw controlling such discretion. In the present case, the judge states in his reasons for refusing time, that the prisoner had been previously tried and convicted for the same offense, and had remained in custody under an order of this Court remanding the case,- and should have been ready to plead to the new proceeding. No suggestion is made of any special injury suffered by the prisoner fr.om the ruling, and we see no ground for our interference.

2. Exception is taken to the action of the court in excusing a juryman, for a cause which the defendant contends was not sufficient under the law. Admitting the cause was not sufficient, the judge exercised his discretion in determining the question, and his error in such matter would afford no ground for relief. 1 Bishop Crim. Proc., § 926; State vs. Ostrander, 18 Iowa, 435.

3. The exception to the admissibility of the dying declaration of the deceased, on the ground that it consisted of the simple statement “ Jake Shields shot me,” without giving the facts on which the statement was based, is frivolous.

4. In regard to the exception to the refusal of the judge to charge that “ the indictment giving the name of the deceased as Peter Plores, if the State only proved the death of one Plores, the variance is fatal.” We think that the charge was substantially covered by the court’s instruction that the “jury had to be satisfied of -the identity of the deceased.” The judge states that he saw no reason for giving the charge as requested, because the District Attorney in examining the witnesses began by stating : “ This is the case of the State of Louisiana against Jake Shields, charged with the murder of Peter Plores — tell the jury all yb^. know about it.” The record failing to show any ground on which the request for the particular charge was based, no objection to any particular evidence appearing, and no suggestion of any special injury to the accused being made, and there being no variance between the verdict and the indictment, we see no reason for disturbing the verdict on this ground.

Judgment affirmed.


author: Bermudez, O. J.

text:
    No. 8414.
    The State of Louisiana ex rel. Henry Williams vs. John Pertsdorf, Constable of the Seventh Justice of the Peace for the Parish of Orleans.
    A prisoner arrested by virtue of the mittimus of a committing magistrate, cannot, in an application for a habeas corpus, raise tbe question of the legality of said magistrate's title to-office, when the latter is the regular incumbent de facto, acting and presiding over a tribunal of recognized legal existence and competency.

      APPLICATION for writ of Habeas Corpus.

      JR. G. Harris for the Relator.

      A. JE. Billings for the Respondent.
   The opinion of the Court was delivered by

Bermudez, O. J.

This is an application for a habeas corpus.

The relator charges that he was illegally arrested, confined, and is held for an offense within the appellate jurisdiction of this Court, and that he is entitled to be restored to liberty. The illegality propounded consists in this: that the mittimus is signed by one I. W. Falls, who has ceased to be a committing magistrate, and who was replaced by one A. P. Keller, under executive appointment, the term of office for which Falls had been elected, commissioned and qualified having expired, and Keller having been commissioned and qualified and being in the discharge of his functions. The return of the constable is, substantially, that the mittimus is in due form and signed by one in authority.

From the showing made, it appears that Falls was elected and commissioned in December, 1878, to serve under the law, for the term of two years, or until his successor be duly commissioned and qualified; that there was no election at the expiration of the term for which he was elected and at the time when one should have been held; that the Executive has, in November, 1881, appointed and commissioned A. P. Keller his successor, his term of office, having expired; that Keller upon being commissioned and qualified, entered upon the duties of a committing magistrate and acts in that capacity; that Falls has continued to act as committing magistrate, and that both Falls and Keller are each recognized, to some extent,’by the authorities.

It is, therefore, manifest, that a question of title to the office is raised by the issues. It cannot be agitated in this proceeding, either by the relator or by the respondent, or even by Keller, had he been made formally a party to this proceeding and had he joined issue.

The only questions which can be presented in a habeas corpus proceeding are issues between the State and the prisoner. The remedy cannot be converted into one for a quo warranto or certiorari.

It is sufficient that the prisoner was committed and is held by the authority of one who was duly elected, commissioned and qualified, and who has continued unmolested, under color of office, at least in the discharge of the functions of a committing magistrate, presiding over a tribunal of recognized legal existence and competency. 33 An. 263; State vs. Carroll, 38 Conn. R.; State vs. Douglas, 50 Mo. 593.

It is not because another person was appointed and commissioned and has qualified as the successor of Falls and claims to be in office that Falls has ceased to be a committing magistrate. It may be, on the one hand, that such person is entitled to the office by virtue of his appointment, while, on the other, it is not impossible that Falls may have better rights to it. That person is not recognized by Falls as his successor.

There exists between them a difference, a conflict of pretensions, exclusive the one of the other, which this Court, in this proceeding, cannot adjust, and which can only be inquired into by a court of original jurisdiction and under special legislation enacted for the speedy determination of such matters.

The right of a prisoner in a habeas corpus case to put at issue the existence and competency of the court from which the mandate issued is formally recognized, 32 An. 1234; 28 An. 82; C. P. 822 (1); but, in such a proceeding, he is precluded from raising an issue affecting the right of a regular incumbent de facto, who holds over as presiding over such a court, when its existence or jurisdiction is not questioned. If the-right to hold office be contested, it must be disputed at the instance of the State, in the manner and form pointed out by law. It is a mistake to suppose that it is the duty of everybody to attend to public affairs. 34 An. 263; Wells on Jurisdiction, p. 158; 122 Mass. 445; 25 Ark. 624; 3 Head, Tenn., 690; 29 Pa. St. 138; Acts 1873, No. 11.

As to the prisoner it is indifferent who is entitled to the office. The cause of his uneasiness is his detention for judgment. But, for the law, it suffices that he is confined under the mittimus of an officer holding over at least de facto, whose authority neither the State nor any one else, not even Keller, has so far judicially attacked.

If, however, a mere usurper should, without any color of right, attempt to imprison a person, the legality of the restraint could be inquired into on habeas corpus. 17 Wis. 528; 29 Pa. St. 129.

It has been decided that a question of title to an office could not be raised in a mandamus proceeding. High on Ex. Rem. 77; 29 An. 399; 12 An. 719; 21 An. 18, 336.

It was also held that such a question cannot be inquired into on a habeas corpus granted in favor of a party arrested on a writ issued by an acting officer de facto holding over. Sheean’s case, 122 Mass. 445, ex parte Strohl, 16 Iowa, 369; see, also, Russell vs. Whiting, N. C. L. No. 1, 463; 9 Wis. 264; 17 Wis. 521.

It is likewise settled that the authority of a judge de facto to hear a prosecution and convict the accused, cannot, on habeas corpus to procure a discharge of the accused, be questioned on the ground that the judge was not lawfully elected. A direct proceeding to try his title is necessary. Ex parte Call, 2 Tex. App. 560; C. P. 822; 2 Kent 23; 28 An. 82.

We, therefore, expressly decline to pass upon the question of title to office, leaving it to be determined in due form at the proper time and place. We simply decide that the mittimus emanating from one who Indisputably was elected and commissioned and qualified, and who has continued uninterruptedly to act as a committing magistrate, is sufficient authority to the respondent for the detention of the relator. See Hurd on Habeas Corpus, p. 293, and n. á; p. 296, and note 2.

It is ordered that the application for a habeas corpus be refused and that the prisoner be remanded to custody to await his trial. ■

Mr.' Justice PooHh, absent during the trial of this case, takes no part in this opinion and decree.