author: Watkins, J. MoBneky, J.

text:
    No. 10,767.
    The State of Louisiana vs. Dunc. Garig et als.
    1. In case a prisoner’s objection to a juror for cause is overruled, and. he subsequently perempt him, and it does not appear that he was thereby necessitated to accept on the panel persons inimical to his interest, he fails to disclose injury entitling him to relief.
    2. Notwithstanding the challenge thus employed is his last one, it appearing that the accused tendering it is jointly indicted with two others, for the same crime, who are on trial with him, and who have twelve remaining challenges, special reasons ought to be assigned in the 'bill of exceptions why same were uncuvailing to him, otherwise relievable injury is not disclosed.
    3. Though a person tendered as a juror, when interrogated on his voir dire, confesses that he has formed a fixed opinion in regard to the guilt of the accused, and that it was such an opinion as to produce a prejudice in his mind against the accused, yet it is not a disqualifying opinion if, on being questioned by the trial judge, he states that it would yield readily, provided he believed the testimony.
    I. The prisoner’s counsel having, at the close of the District Attorney’s opening argument, proposed to submit the case under the charge of the court, without argument, he objected and excepted to an additional argument being made by the District Attorney; held, that by appearing before the jury and making an argument in behalf of the accused subsequent to the ruling of the couit, they renounced and waived the benefit of their exception.
    5. The counsel for the accused complained to the court of certain alleged misstatements of fact, on thepart of the District Attorney, in his closing argument, and claimed the right to make a statement to the jury correcting them; held,, that to have permitted such an explanation made to the jury would have been to give them an impression in reference to the judge’s opinion as to the facts of the case.
    6. It is too late, after verdict, to raise the question of the minority of a juror.
    7. A new trial will not be awarded for the purpose of admitting newly discovered evidence, when its purport and object are to discredit, by extra-judicial statement, the testimony of witnesses on the trial.
    8. To justify the quashing of a verdict, on the ground that the jury were allowed to separate during their deliberations, the proof must be clear and convincing that there was such a separation as might have operated injuriously to the accused.
    9. To justify the quashing of a verdict on the ground that it was improperly influenced through fear of violence or by means of intimidation, similar proof must be adduced. Proof which merely superinduces vague inferences, of undue influence will not suffice.
    APPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Buckner, J.

      W. II. Rogers, Attorney General, for the State, Appellee.

      H. F. Brunot and K. A. Cross for Defendants and Appellants:
    1. A juror, who lias a bias or prejudice, and wlio has formed an opinion, which ‘ can not be removed by circumstantial evidence, is incompetent. State vs. Jackson, 37 An. 768; State vs. Hunger, 11 An. 607. See State vs.Dugay, 35 An. 27; State vs. McGeheo, 36 An. 206.
    2. The right of one accused, who exhausts his challenges, is not affected by the fact that his eo-dofendants have unused challenges. State vs. McLean, 21 An 546.
    3. Oases may arise where the misconduct of a jury may be shown by one of its members. State vs. Wallman, 31 An. 149; 'VVharton, Criminal Pleading, Sec. 847.
    4. Any communication by a deputy sheriff, affecting the case prejudicially to the accused, is ground for new trial. State vs. Dallas, 35 A?}. 899; See 23 An. 148.
    5. The State has the right to open and close the argument; but when the District Attorney opens, and the defence waives reply, this is opening and closing, and he has no right to make another argument after such waiver.
    6. If, in the closing argument, the District Attorney makes an incorrect statement of the evidence, the defence has the right to call the attention of the jury thereto. Wharton, Criminal Pleading, Sees. 562-3, 577.
   The opinion of the court was delivered by

Watkins, J.

The three defendants were indicted for murder, convicted of manslaughter, and sentenced each to twenty years’ imprisonment at hard labor in the penitentiary, and from that judgment and sentence they have appealed.

I.

The first bill of exceptions to which our attention is attracted is taken by one of the three accused to the overruling of his objection to the competency of a juror. His objection was that the person tendered as a juror had, on his voir dire, confessed that he had formed and expressed an opinion, and that same was fixed and deliberate, and his contention is that such an opinion is a disqualifying one, and that the judge erred in not sustaining it.

But the bill discloses that after the judge ruled that he was a competent juror, this accused challenged him peremptorily, employing his last challenge.

There is nothing in the bill to show the stage of the proceedings at which this occurred, or that this accused suffered any injury from being necessitated to use his last challenge, or that he was compelled to accept on the panel persons inimical to his interest. On the contrary, it appears from the statement of the judge that “ there were two other accused on trial'who had, at the time, over twelve challenges at their disposal.”

In the absence of any reason or cause being assigned why those •challenges were unavailable to this particular accused by their being employed by his co-defendants in perempting objectional persons, we can not' perceive in what way he was injured.

The three defendants were jointly indicted and tried for the same, identical crime, and, presumably, objections urged to a juror by one, would be-a common objection for all. If, on the contrary, the objection was specially applicable, to one only of the accused, that fact should have been stated in the bill.

But if these reasons be deemed insufficient in law to sustain the judges’ ruling, we think the juror was competent under repeated decisions of this court.

The bill recites the following, viz:

“ He (the juror) declared that he had formed a fixed opinion concerning the guilt of the accused; that it would not yield to circumstantial evidence; and that the effect of his opinion was to produce, to some extent, a bias and prejudice against the accused, but on being interrogated by the court, he said his opinion would yield readily to evidence, provided he believed the testimony offered to counteract such opinion.”

But the judge observed thqt “the juror did not intend to say that he had no prejudice against the accused, but had a prejudice against the crime which they were charged with having committed. I then questioned him, as stated in the bill, and he made the answers as stated.”

If, under the circumstances this accused can be heard to complain, we are of opinion that the complaint urged is not well founded. State vs. Farrar, 35 An. 315; State vs. Dorsey, 40 An. 470; State vs. Dent, 41 An. 1083.

II.

The second bill relates to the judge having allowed the District Attorney to make two arguments before the jury. It appears that the District Attorney made an opening argument, whereupon the defendant’s counsel proposed to submit the case to the jury under the charge of the court and without argument. The District Attorney claimed the right to present an additional argument and that right having been accorded him, counsel for the accused excepted.

Bat the judge states: “I ruled in this case that the State had the opening and closing argument and the defense had the right to reply if they saw fit. They did reply in a lengthy argument, and the case was closed on the part of the State.”

It is quite impossible to conceive the grounds of the defendant’s complaint.

Whether the judge ruled correctly or. erred in permitting the District Attorney to make a second argument after the defendant’s counsel had proposed to submit the case without argument on their part is of no practical importance, because they accepted the situation and made an argument, to which the District Attorney replied.

Defendants had the full benefit of an argument, and nothing useful to them could be accomplished in this regard by remanding the cause.

III.

In the third bill, 'the defendants complain of e.ertain alleged misstatements of fact, made by the District Attorney in the course of his closing argument and which the judge declined to allow their counsel to correct.

The judge says: “ I ruled that the testimony of the witness was for the jury as they had heard it, and I, as judge, could not instruct the jury as to who was right.”

While the defendants may feel aggrieved at the course pursued by the District Attorney, and the statement complained of may have been to their disadvantage, it is not easily perceived how the judge could have permitted an explanatory statement by their counsel without placing the jury under the impression that one or the other was correct.

In State vs. Washington, 30 An. 49, a case was presented where the trial judge during the course of the argument “denied the assertion of counsel and prevented him from commenting on the disputed fact and the prisoner excepted and on that ground moved for a new trial,” and the court said “the interruption was unauthorized and irregular and, as it come from one who is justly presumed to stand indifferent and disinterested between the prisoner and the State; one in whom an impartial jury is justly inclined to believe and trust, it may have influenced their minds and verdict.”

So, in this case had the judge acceded to the wishes of the prisoner’s counsel and permitted him to have made an explanation to the jury, in violation of the questioned statement of the District Attorney, they might have received the impression that the judge conceded its correctness, and allowed such impression to have influenced their verdict.

This was doubtless the theory on which the judge’s ruling was based.

In State vs. Duck, 35 An. 704, a similar question arose. In that case an exception, was taken by prisoner’s counsel, to the judge’s refusal “ to stop the District Attorney in the course of his argument * * * charging that the District Attorney was making an improper and unfair argument to the jury.” But we said: “ There is no force in the complaint. This court can not and will not interfere with District Judges in the manner of controlling their courts or of enforcing rules of propriety and decorum on the officers of the court.”

Mr. Bishop and other common law authors state the rule differently, but as our law is exceptional those authorities can not apply.

We observe that, so far as the record discloses, the defendant’s counsel requested of the judge no special charge, made no objection to the charge he gave the jury, and failed to make mention, in his application for a new trial, of the prejudicial effect of said ruling as a reason why a new trial should have been granted him.

It thus appears that they practically abandoned their exception, or have rather conceded its want of force and efficacy; for if the judge’s ruling had been injurious in its effect, he could have guarded the jury against it in his charge, or given defendants relief by a new trial.

IV.

The fourth bill relates to the judge’s refusal to grant the prisoners a new trial.

The motion presents the following grounds, viz:

1. That since the trial they have discovered that one of the jurors was a minor.

2. Newly discovered evidence.

3. That the jury separated during the trial.

4. That the verdict of the jury was improperly influenced by a show of intimidation and violence on the part of friends of the accused.

5. That the jury were permitted to hold unauthorized communications with persons outside while in the jury room.

(а) With regard to the first grou rid, it is sufficient to quote the language of the motion which says of the juror, whom they allege to be a minor: “ Petitioner accepted him in good faith thinking at the time that he was a competent juror.”

They had the opportunity of interrogating the juror on his voir dire and of thus ascertaining his want of qualification then; and objections come with indifferent grace from the accused since their conviction.

(б) The allegations of newly discovered evidence are wholly insufficient, because they purport to be. solely for the purpose of contradicting or impeaching the testimony of witnesses who testified on the trial; and, further, that the witnesses’ testimony was proposed to be thus contradicted and impeached by certain alleged extra judicial declarations of theirs, made before the trial occurred.

For such a purpose a new trial can not be granted.

This question was fully-considered, and all the pertinent authorities collated in State vs. Burt, 41 An. 787, and they are decisively against the contention of the prisoner’s counsel.

(c) For the purpose of proving a separation of the jury, and that they slept in separate rooms during the progress of the trial, three members of the jury were called as witnesses. By them the accused proposes to prove that arms were distributed to the jury also.

On the objection of the District Attorney their evidence was rejected, under the well established rule of law that jurors are not competent as witnesses to impeach their own verdict. The evidence was correctly disallowed. It is quite impossible for courts to examine into and consider the varying circumstances and facts under which verdicts are proposed to be impeached by jurors themselves; it is sufficient to say, that if anything improper or irregular was done, by all, or any single member of the jury, whereby the vires of their verdict was impaired, or destroyed, the unbending rule of jurisprudence is, that proof of it can not be received from any member of the jury. Their lips must be kept sealed, and courts of justice will not listen bo their evidence.

On the main question, there is no proof. The jury did not separate. The whole twelve occupied, as sleeping apartments, three communicating rooms of an adjacent hotel, all outside approaches to which were closed; and there was no possible means of access to them.

(<2) The proof does not show that the verdict of the jury was improperly, or unduly influenced by a show, or fear of intimidation or violence.

The facts are, that there were rumors in circulation that friends of the a'ccused intended a resort to violence for the purpose of liberating the accused from custody. The deputy sheriff carried firearms to the jurors’ quarters and deposited some in their rooms; but he made no explanation to the jury. He also gave them pistols on the following day, but he says that these arms were intended for use in protecting the jail. This was a most unusual circumstance, but there is nothing to connect it with the verdict, or to indicate any prejudicial effect on the minds of the jury.

It is not every irregularity that will vitiate a verdict; it must appear to have resulted injuriously. Motions for new trials are always addressed to the discretion of the trial judge, whose action in denying them will not be reversed in the absence of a showing that the court abused its discretion to the detriment of the appellant. This has been the uniform opinion of this court as expressed in many cases. State vs. McCort, 23 An. 326; State vs. Breckinridge, 33 An. 310; State vs. Fulford, 33 An. 697; State vs. Fisher, 33 An. 1334; State vs. White, 35 An. 96; State vs. Washington, 36 An. 341; State vs. Bird, 38 An. 497; State vs. Walker, 39 An. 19.

But while holding that it is not apparent that any influence prejudicial to the accused was exerted by the mere introduction into the jury room of firearms, and the delivery to them of pistols, we can not refrain from expressing, in the strongest possible terms, our disapproval of the occurrence, and of the action of the court officer in so doing without the consent of the trial judge.

(e) There is no proof of the fifth ground of complaint. The defendants have had a fair trial.

Judgment affirmed.

Dissenting Opinion.

MoBneky, J.

In my opinion the verdict and sentence in this case should be set aside and the case remanded.

The testimony in the record which was offered on the motion for a new trial, shows that rifles were introduced into the jury room on Saturday night, and on Monday morning pistols were distributed among them. The deputy sheriff who furnished the arms to the jury says that the rifles were deposited in the jury room because of an apprehended attack on the jail. That he conversed with another party in the presence of the jury in relation to this expected attack on the jail by the friends of the accused. He did not know whether the jury heard this conversation. But they must have heard it and understood it, and that they believed also that they were threatened, is evident from the fact that they asked for the pistols which were' distributed among them. I can not reconcile this conduct of the jury, standing as armed sentinels in the jury room, with my ideas of that impartiality which should prevail in their deliberations. They were evidently alarmed and were in fear of an attack from the friends of the accused. It is not reasonable to suppose that such fear did not influence them.

The rumor of an attack was, it is true, totally unfounded, but the jury evidently believed in its existence.

I therefore respectfully dissent from the opinion and decree rendered in this case.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 10,784.
    Union National Bank vs. John Evans.
    1. Verbal acknowledgment of a note, before prescription accrued, interrupts prescription; but tlie acknowledgment must be clear and unequivocal. On tlie trial tliere was no legal acknowledgment proven.
    On application por new Trial.
    2. If the defendant obtained immunity from tlie annoyance of his creditors by specially invoking his mortgage indebtedness, tlie opportunity will be given to prove the acknowledgment by admissible evidence, to ascertain whether prescription has been interrupted.
    APPEAL from the Sixteenth District Court for the Parish of St. Helena. Brame, J.

      Carleton Hunt for Plaintiff and Appellant:
    Tlie promissory note in suit, having been given in pledge, and being actually now in pledge as collateral security, prescription can not run on tlie note. Posses- ■ sion of the pledge by the plaintiff is a constant recognition of defendant’s debt, and which prevents prescription even from beginning to run, 42 An. Rep., No. 8, p. 733.

      Aside from the foregoing the ease is with the plaintiff. The evidence shows interruption of prescription. Verbal acknowledgment by the debtor is interruptive of prescription if made before the same has actually accrued. R. S. 1870, Sec. 2821; 31 An. 188; 21 An. 742; 23 An. 785 ; 2Hennen’s Digest, p. 1224, No. 1.
    Should the evidence for plaintiff be deemed insufficient, the court will grant a new trial where the record discloses the existence of newly-discovered evidence, but which was entirely unavoidable to plaintiff in the court below.

      S. D. Ellis and J. H. Stone for Defendant and Appellee.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff brought suitwa ordinaria May 16, 1890, against the defendant on a promissory note of which he is the maker for the amount of $3173.58 with interest from maturity, dated March 5, 1884, and made payable on the 25th day of December of that year to the order of E. M. Hogan & Co., and secured as to its payment by mortgage.

No payment was made on the note subsequent to January 5, 1885. On that day, the sum of $657.70 was paid on account.

It was at the time held by the Union National Bank, to whom it was transferred.

The defendant excepted to plaintiff’s demand and especially pleaded the prescription of five years.

The case was tried on the 20th of October, 1890, on the exception of prescription.

After trial there was judgment sustaining the exception.

A motion for a new trial was overruled.

Erom the judgment plaintiff obtained a devolutive appeal.

The note is prescribed on its face. It devolves upon the plaintiff to 'take it out of the rule of prescription by proving previous acknowledgments and interruption.

The principal witness, a member of the late firm of Hogan & Co., interested as an owner, testifies that the defendant at various times between 1885 and 1888 has assured him of his willingness to deliver the property mortgaged in part payment of the debt.

The defendant as a witness emphatically denies having made any statement to this witness acknowledging the claim, since the 15th day of March, 1885, at a time more than five years before service in the present suit.

Plaintiff’s witness states that conversations with reference to this indebtedness were held in New Orleans, in certain years, at a certain commission house.

The defendant unhesitatingly contradicts plaintiff’s witness, and says unhesitatingly that he was not in the city of New Orleans at any time during the years stated, and that he never was at any time present at the commission house named.

The testimony of a witness was introduced to corroborate plaintiff’s witness.

He testifies about hearing a conversation but is not fortunate in the statement of the dates and does not materially corroborate the testimony on important points.

An acknowledgment to interrupt prescription must be direct, specific and absolute. A clear acknowledgment oí the right. Lackey vs. Macmendo, 9 An. 17. It is not proven that prescription has been interrupted, and the case with the evidence before the, court is with defendant.

New Trial.

A motion for a new trial was filed and refused.

It is is alleged in the motion (under oath) that since the trial and' since, judgment, evidence has been discovered important to the cause-(showing promise to pay the note). Two letters are annexed and a statement made of testimony discovered.

We deem it equitable and just to remand the case to enable plain - tiff to prove legal interruption, if the defendant has made the acknowledgments alleged.

If, as sworn to in his application for a new trial, plaintiff has since-judgment was rendered found out that the defendant has, at stated times, asserted Ms indebtedness to plaintiff to protect himself frprn the annoyance' of Ms other creditors, and that his assurances, about, this indebtedness had impressed them with the uselessness of taking-steps to have property seized and sold already mortgaged for as, much as it was worth, no one will be injured by remanding the case. Norres vs. Hayes, 42 An. 860. If the defendant has derived an advantage, and has acknowledged the debt -as alleged under-oath, he should bear the burthen.

If he obtained -immunity from the annoyance of his creditors by-specially invoking this mortgage indebtedness, the opportunity will;, be given to prove the acknowledgment, and the extent, in order to ascertain whether or not prescription has been interrupted thereby.

It is therefore'ordered, adjudged and decreed that the judgment appealed from be annulled and reversed; and it is further ordered that the cause be remanded for further proceedings, according to law, and that defendant and appellee be taxed with the cost of appeal, and those of the lower*court to await final judgment.


author: Bermudez, O. J.

text:
    No. 10,798.
    Francis V. and Clara N. Hunstock vs. Mrs. L. A. Hunstock and Miss A. E. Latil.
    An appeal lies from a judgment dismissing a suit, although, on motion of the party in whose favor rendered, it is subsequently amended notwithstanding objections.
    A judgment of dismissal is a final judgment which disposes of a- controversy.
    In exceptional cases, presenting unusual features, in which emancipated minors seek redress, charging that they have been imposed upon, the court in the absence of evidence on the record, justifying a judgment, will reverse the judgment and remand the case.
    APPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Buckner, J. ‘

      Kernan & Laycock and J. A. Addison for Plaintiffs and Appellants:
    1. A judgment of dismissal is final.
    2. A remittitur filed after judgment can not affect right of appeal. Gayden vs. L., N. O. & T. R. It. Co., 39 An. 269.
    3. A judgment to be final need not settle all the rights of the parties. If it determine issues involved on the merits of the action, it is final and therefore appealable. Cary vs. Richardson, 33 An. 506; State ex rel. Ikerd vs. Judge, 35 An 212.
    4. A special tutor must take the oath, otherwise the judgment affecting the minor whom he represents will be absolutely null. Killilea vs. Barrett, 37 An. 865.
    5. Error, fraud, minorty and lesion beyond moiety are .not inconsistent pleas. Beale vs. Ricker, 7 An. 667.

      K. A. Cross and Bead & Coodale for Defendants and Appellees:
    The court can modify an interlocutory decree. A remittitur, by consent of court of a portion of an interlocutory judgment which is ultrapetinonem, and which dismisses the suit, is a modification of the judgment and divests some of its appealable character.

      A judgment emancipating a minor can not be attacked collaterally. 15 An. 505; Reis ys. Reis, Manning’s Unreported Cases, 175.
    To an attack upon suck a judgment a special tutor must be a party. 28 An. 569; 26 An. 156.
   The opinion of the court was delivered by

Bermudez, O. J.

Relying upon a judgment of emancipation and dispensation from the time required for attaining the age of majority, the plaintiffs have brought this suit to annul a certain like judgment which they, for reasons assigned, charge to be absolutely void, and to have set aside two -acts which they signed on the day on which the judgment attacked was rendered.

The defendants moved to strike out of the petition the averment of emancipation and dispensation by the second judgment, by reason of the existence of the first judgment which, until set aside, has full force and effect, and they asked also that the attacks upon the acts of sale be also expunged, except for lesion beyond moiety, because the plaintiffs by making the plea have admitted the validity of the sales and are estopped by their judicial admission from contesting the same.

This motion was treated as an exception and accordingly tried; judgment being rendered sustaining the same and dismissing the suit.

It appears that after the judgment was rendered the defendants were allowed by the court to “enter a ‘ remittitur ’ of all that portion of the judgment rendered on the exception, motion to strike out, etc., filed December 8, 1890, which dismisses plaintiff’s suit, this remittitur not to be construed as affecting that portion of said interlocutory judgment Which sustains said exception merely.

The plaintiffs objected, and on the overruling of their objections, reservecj a bill.

Subsequently, on motion of counsel for plaintiffs, it was ordered by the court that they be allowed to appeal from the judgment.

The motion in this court to dismiss the appeal charges that since the filing of the remittitur there exists no definitive judgment in the case; that the allowing of the remittitur was a virtual revision and modification of the judgment to that extent, and that the interlocutory judgment appealed from is not such as to work irreparable injury.

The judgment dismissing the suit was and is a final judgment, whether correctly rendered or not, from which the plaintiffs had a right to appeal.

The circumstance that, after it was rendered, the defendants, with leave of court, amended it, can not produce the effect of divesting the plaintiffs from their rights of appeal, particularly as they objected to the remittititr being permitted, and reserved a bill.

Had the defendants abandoned the entire judgment the plaintiffs would have had no reason to complain and therefore none to appeal; but that is not what was done or whattook place.

If plaintiffs had not appealed, under the circumstances they could not have proceeded to attack the first judgment of emancipation; they would have foregone the second judgment and have had to stand on the first, thereby abandoning one of the objects of their action.

They could not appeal from the order on the motion for a remittitur, which is interlocutory and can cause no irreparable injury, particularly by reason of the appeal from the judgment of dismissal of the suit.

This court is not therefore called upon to review this last decree and it considers that the appeal from the main judgment is authorized and must be sustained.

Motion to dismiss overruled.

On the Merits.

The transcript does not contain any evidence or statement of facts, to justify the judgment of dismissal.

The entry of the rendition of the judgment on the exception, however, recites “that the law and evidence being in favor thereof” the exception is sustained and the suit dismissed.

Admitting, nevertheless, that evidence was received and considered, we are at a loss to perceive how it could support the exception, which in its first part, is, on its face, ill founded, as the suit is not a collateral bufa direct attack on the first judgment of emancipation, with a prayer for its nullity.

Until this first part of the' exception is determined it. would be premature to consider and pass upon the other, which assails in the alternative the charge of nullity of the sales because of lesion beyond moiety.

The case presents grave features. It is one in which emancipated minors claim that they have been imposed upon, averring that they have been fraudulently and illegally deprived of important rights, previous to a regular and valid emancipation and dispensation, and claiming redress at the hands of the court.

We should be slow in closing the doors of justice upon them without a full understanding of their complaints and an appreciation of all the facts connected the.ewith, and we think, under the unusual circumstances of the case, that in furtherance of the ends of justice, they should not be left without relief.

It is therefore ordered and decreed that the judgment appealed from be reversed and that this cause be remanded to the lower court to be further proceeded with according to the views herein expressed and according to law, and that appellees pay costs of appeal; those of the lower court to abide final result.


text:
    No. 10,800.
    S. N. Goodrich vs. Henry Newell et al.
    In the absence of evidence in the transcript from which it may be ascertained whether the demand is or not inflated, so as to confer jurisdiction on this court by asking more than $2000, and in the presence of a petition sworn to in which averments are made in support of a claim in excess of that sum, and which is uncontradicted, a motion to dismiss can not prevail on the ground of want of jurisdiction.
    A judgment will be aillrmed when the transcript contains no evidence, no statement of facts, no bill of exceptions and no assignment of error, and shows that the judgment was rendered, “ the evidence and the law being in favor” of the party in whose favor it went.
    APPEAL from the Seventeenth District Court for the Parish of East Baton Rouge. Buckner, J.

      J. & O. W. Burgess for Plaintiff and Appellant:
    In a suit to annul a judgment brought within a year from its-date the judgment attacked can not be pleaded as res judicata. 82 An. 13, Holbrook vs. Holbrook. Otherwise the action of nullity would be a farce anda mockery, since the existence of the judgment attacked (which alone’givcs the right and the occasion to the action of nullity) would be itself a bar to proceedings to annul it. In other words, the same fact, to-wit: the existence of the judgment would be at one and the same time the foundation and destruction of a right of action. 29 An 597, Edwards vs. Edwards.

      It is further to be considered that defendant offered no evidence to sustain his plea. He who alleges should sustain his allegation by proof. 1 Hennen, p. 495, Evidence 8, No. 4; 24 An. 288; 15 An. 493, 663.

      K. A. Cross for Defendants and Appellees:
    Appellant must show jurisdiction affirmatively. 2 An. 293, 956; 8 An. 70; 4 An. 28, 366; 8 An. 282, 456; 12 An. 87; 33 An. 304. An appellant can not inflate his demand by a fictitious claim for damages. Bright vs. Thompson, 38 An. 801.
    Injunction does not lie to cover defences available before judgment. 3 An. 125; 26 An. 42; 30 An. 230; 33 An. 333.
    Action in nullity of judgment lies only when it is against good conscience to execute the judgment. 3 An. 646; 6 An. 799; 31 An. 213.
   On Motion to Dismiss.

The opinion of the court was delivered by

Bermudez, O. J.

The defendant and appellee moves to dismiss, on the ground that the amount involved is less than $2000, and that in order to confer jurisdiction on this court the appellant has inflated his demand with a fictitious claim for damages.

In the absence of any evidence from which it could be ascertained whether the claim has been, or not, inflated, and as the petition is sworn to by the plaintiff therein, and states a claim exceeding $2000, the motion has no bottom to stand upon.

Motion denied.

On the Merits.

This is an injunction suit to arrest the execution of a judgment and to claim its nullity, with $2100 damages.

The plea of res judicata was filed in bar, tried and sustained.

The injunction was dissolved, with some damages as attorney’s fees, and the demand of plaintiff in injunction was rejected, with costs.

It is from that judgment that this appeal is taken.

The transcript contains no evidence, statement of facts, bill of exceptions, or assignment of errors.

The judgment states that the cause came up regularly for trial, and the law and evidence being in favor of defandants and against plaintiff, by reason thereof it is ordered, adjudged and decreed that the suit be dismissed, the injunction dissolved, with $25 attorney’s fees as damages, and costs.

It is impossible, on such a bald transcript, for this court to determine whether or not the judgment appealed from is correct. From its face it appears that evidence was adduced and considered sufficient to maintain the plea of res judicata.

A judgment appealed from is prima facie correct. It stands until reversed. It is reversed only when the facts and the law do not justify it. The presumption is that the proof established the defence. The appellant is at fault íd not having put of record the judgment and pleadings constituting res judicata, or in not having had a statement of facts prepared and put of record before appealing, or in not having taken a bill of exceptions, or filed here an assignment of errors.

We have passed on the motion to dismiss because it put at issue our jurisdiction. The merits of the case could not have been reached without maintaining our jurisdiction.

Judgment affirmed.


author: Bermudez, C. J.

text:
    No. 10,825.
    The State ex rel. Aitken vs. Rightor, Judge, etc.

      'Certiorari does not lie, under Article 90 oí the Constitution, to a District Court exercising its appellate jurisdiction over city courts, to determine whether oral or written proof should or not have been admitted and to correct an error, if any was committed, by the judge.
    Such question could only be considered, if the case were appealable and on appeal, and this case is unappealable to this court.
    ^PPLICATION for Certiorari.

      August Bernau for the Relator.
   The opinion of the court was delivered by

Bermudez, C. J.

This is an application for a certiorari. The complaint is that the District Judge has, while reviewing a judgment on appeal from a city court, admitted oral testimony, when written evidence only should have been received.

Under Article 90 of the Oonstitution, the jurisdiction of this court does not extend over inferior courts, so as to review questions of this character, which can only be considered' when properly prosecuted on appeal from the judgment on the merits, which does not lie in this case.

Application refused.


text:
    No. 10,806.
    Simon Block vs. Eugenie Kearney et als.
    Engrafting a fictitious demand upon an appealable claim, thereby inflating it so a to bring it nominally within the appealable jurisdiction of this court, can not bo sanctioned. An appeal in such a case will be dismissed.
    APPEAL from the Eleventh District Court for the Parish of Natchitoches. Pierson, J.

      Cunningham & Tucker for Plaintiff and Appellant:
    On Motion to Dismiss.
    A bond for devolutive appeal is sufficient [where its conditions are that appellant will prosecute his appeal with effect, or pay all such costs as may be awarded against him. O. P. 579.
    The amount in dispute is the highest sum for which judgment may be rendered under the allegations,and prayer of the petition. 39 An. 286.
    The amount claimed in the petition is the test of jurisdiction. 35 An. 1039; 39 An 830; 32 An. 1003; 33 An. 1051.

      Chaplin, Breazeale & Chaplin and Scarborough & Carver for Defendant and Appellees:
    1. An appeal bond which'does not bind the appellant and his surety to prosecute the appeal is defective. C. P. 579, 33 An. 422.
    2. It is defective if it fails to cover costs of both courts. 3d An. 422 ; 28 An. 805.
    3. The real amount in dispute is the test of jurisdiction. Fictitious claims made only to confer jurisdiction are ignored. 32 An. 929 ; 37 An. 541; 38 An. 802; 39 An. 504; 41 An. 306; 33 An. 418.
    4. It is not more permissible to endeavor to confer jurisdiction by averments of fictitious values than by averments of fictitious claims. March vs. McNeely, 36 An. 288.
    5. Where a notarial act of mortgage recites that a loan was made “this day,” notes being taken bearing interest from date secured by mortgage, and the indebtedness being unequivocally acknowledged, themortgagee can notprove by parole that the loan was made not that day, but a long time afterwards. Civil Code, 2276 ; 37 An. 204; 31 An. 240.

      6. Kspeeially when that mortgagee has executed the act as making full proof o£ the indebtedness, by suing out executory process without the other proof of the debt than that afforded by the act. He can not thus play fast and loose. 42 An. 522.
    7. A party to a suit is not permitted to allege a state of facts contrary to and inconsistent with those set up in a former suit. The law does not permit him to falsify his own solemn judicial declarations. 37 An. 307; 31 An. 158; 38 An. 1198; 40 An. 186.
   On Motion to Dismiss.

The opinion of the court was delivered by

Bermudez, O. J.

The defendant and appellee, in her double capacity of widow in community and of tutrix administering the succession of her deceased husband, moves to dismiss this appeal on the main ground, that the claim is inflated, is fictitious, and whatever it may seriously be, is below the jurisdiction Of this court.

The suit is one sounding in damages, and for §2191.77.

The pith of the elaborate petition in the ease is, that the plaintiff' loaned one DeBlanc §1494.23, secured by mortgage on certain real estate of his, in the parish of Natchitoches, which, by reason of the recorder’s clear certificate, he believed was free from all anterior mortgage, when in fact said property had been previously encumbered and the act had been recorded.

That when the plaintiff came to execute his mortgage, he ascertained the fact that the property was sold by the sheriff for §1050, the net proceeds being absorbed by the claim of the anterior mortgage creditor, which amounted in capital to §1200 exclusive of interest and charges.

That the consequence was that the plaintiff realized nothing on his claim, which amounted to §1494.23 in capital, to which interest ’and attorney’s fees being superadded, forms an aggregate of §2191.77.

It is evident that the widow and heirs.of Kearney, the delinquent recorder, are not liable for the debe due DeBlanc; but if responsible, they can only be held for the damages, or injury sustained by the plaintiff in consequence of the omission by the recorder to mention, in the certificate, the inscription of the preexisting and preinscribed mortgage of §1200 in favor of one Givanovich.

That injury, at best, consists in his having not received, and thus lost, the amount which went to the anterior mortgage creditor, which was less than §1050, the price of adjudication, for that creditor only received from the sheriff the net proceeds, amounting to. §992.50.

Had there not existed a previous mortgage this balance would have accrued to plaintiff, and his claim would have been reduced to §1199.29, but against DeBlanc.

The only amount for which the widow and heirs of Kearney could be successfully sued would be §992.50. The difference is evidently a fictitious claim superadded -to inflate it so as to bring it, if possible, within the jurisdiction of this court.

It is proper to state that the property was adjudicated to the plaintiff, who can not be heard to say that it was worth more than he paid: If this were true, he would realize the benefit and thus would have no right to complain.

It is useless to cite authorities to show that in a case like this the appeal can not hold. The case must go to another jurisdiction, as is yet in time.

It is therefore ordered and decreed that the appeal herein be dismissed, with costs. ' .


author: Fenner, J.

text:
    No. 10,756.
    The State of Louisiana vs. James Robinson.
    1. A statute authorizing the accused to waive the right of trial by jury and to ele'et to be tried by the judge, does not violate Article 7 of the Constitution. Affirming State vs. White, 33 An. 1218.
    2. If convinced that the waivcrhas been inadvertentlymade, it might be the duty of the judge to permit its withdrawal on timely application, i. e., made in such season as not substantially to impede or delay the course o£ justice; but a defendant who, with full benefit of counsel, has persisted in his waiver until after trial and judgment, certainly stands in no ease to complain.
    A PPEAL from the Criminal District Court for the Parish of Orleans. H Baker, J.

      W. H. Rogers, Attorney General, for the State, Appellee.

      J. J. Foley for Defendant and Appellant.
   The opinion of the court was delivered by

Fenner, J.

The sole question presented on this appeal is the constitutionality of Act No. 18 of the General Assembly of 1890, which provides that “in all cases of indictment or information originating and filed in the Criminal District Court for the parish of Orleans, when the penalty is not necessarily imprisonment at hard labor or death, the accused shall be called upon immediately after arraignment or before he is required to file any motion, plea or other defense, to decide and declare in open court whether he will waive the trial by jury, to which he would otherwise be entitled under the Constitution and laws of this State, and consent to be tried by the judge alone; whereupon the answer or decision shall be entered upon the minutes of the court; and if the accused shall decide and elect to waive trial by jury, and to be tried by the judge alone, the court shall fix and try the case without a jury, according to such rules as it may prescribe.”

The defendant in this case, who was indicted for wounding less than mayhem, which is not necessarily punishable by imprisonment at hard labor or death, elected to waive the trial by jury and to be tried by judge alone. He never at any time sought to withdraw his election.

When the ease was called for trial, the defendant, being then attended by the same counsel who appears on his behalf in the present appeal, announced his readiness for trial. The case was tried and resulted in a judgment of guilty and a sentence of four months’ imprisonment in the parish prison.

He now seeks to reverse the judgment on the grounds that the Act No. 18 was unconstitutional and that the proceedings before the judge, without the intervention of a jury, were coram non judice and void.

The article of our Constitution is in the following words: “In all criminal prosecutions the accused shall enjoy the right to a speedy public trial by an impartial jury,” etc.

Has this legislative act deprived the defendant of his right to a trial by jury? Evidently it has not.

The question is not new to this court. Act No. 35 of 1880 contained a provision applicable to the District Courts in other parishes than that of Orleans, authorizing the accused in like cases, to waive trial by jury and to be tried by the court alone. The constitutionality of the provision was sustained by this court on very full con - sideration of the principles and authorities applicable. States vs. White, 33 An. 1218; State vs. Askins, id. 1253.

We are aware that there exists conflict of authority on the subject; but both Mr. Bishop and Mr. Wharton sanction the view taken by those courts which coincide with our own. 1 Bishop Or. Prac. Sec. 893; Wharton Cr. Pl. Sec. 733.

We have taken care to intimate our determination to protect the constitutional right of accused parties to be tried by jury and not to suffer them to be deprived of it otherwise than by their voluntary election.’

Thus, where a party had waived his right and after trial and conviction by the judge had obtained a new trial, we held that he had then the right to withdraw his waiver and. demand that the new trial should be by jury. States vs. Touchet, 33 An. 1154.

We then said: “His waiver of jury as to the first trial may be presumed to continue as to the new trial, unless timely application be made to revoke the same; but he can not be deprived of his right of revocation on timely application. The only limitation on his right would be that his application should be timely, that is, made in such season as not substantially to delay or impede the course of justice.”

The evils suggested by the counsel as likely to arise from requiring ignorant accused, at the moment of arraignment and often unattended by counsel, to make .election in so vital a matter, will not occur under a proper administration of the law. Whenever the court is convinced that a waiver, has been unadvisedly made and proper and timely application is made to withdraw it, it would be the duty of the court to permit the revocation and to restore to the accused his constitutional right.

But it is very clear that this, defendant who, with full benefit of counsel, persisted in his waiver until after trial and judgment, stands in no ease to complain.

Judgment affirmed.


author: Eennbr, J.

text:
    No. 10,801.
    J. F. Hayden vs. Slaughter, Sheriff, et al.
    1. When execution has once issued on a judgment, ■when the judgment debtor has* made no opposition thereto, but has bid at the sale of property seized, and has become the purchaser thereof, his subsequent plea that the judgment does not authorize execution will not be considered.

      Although in a suit to revive a judgment the judgment debtor may plead extinction of the judgment by payment as a cause why the judgment should not be revived, his failure to do so will not estop him from settingup such payments as ground of injunction against an execution of the judgment. All other defenses than that of prescription continue against the judgment after, as before the revival.
    3. In order to maintain the homestead exemption under the Act of 1865, it is an indispensable condition that the place should bo “occupied as a residence” by the debtor at the time of seizure.
    A PPEAL from .the Seventeenth District Court for the Parish of ii East Baton Rouge. Buchner, J.

      L. D. Beale and Q. W. Burgess for Plaintiff and Appellant:
    1. Where the payment of a debt of a succession is secured by collateral security which the creditor neither attempts to collect nor deliver to the representative of the succession, and refuses to receive the money for the debt when tendered, he can not pursue the property of the executor and universal legatee which said property is claimed as a homestead.
    2. This is strengthened by the further fact that in consideration of the payment of a sum of money he released his mortgage (and recourse) upon that homestead property and took a mortgage on other property.
    3. A party entitled to and claiming a homestead is not obliged to live continuously on the homestead; he or they may leave it for health, business or pleasure, so that they act in good faith and without the intention of changing or abandoning the home. 37 An. 725, Burch vs. Sheriff.
    4. The best evidence of intention to retain the homestead is when one resorts to judicial proceedings in good faith to retain it, as in this case.

      K. A. Cross for Defendant and Appellee:
    In whatever form the issue is presented, a judgment between parties properly in ' court is res judicata. 19 L. 318; 12 An..197; *22 An. 162; 24 An. 104; 32 An. 537; 33 An. 411; 29 An. 291; 14 An. 798; 26 An. 236.
    Injunction will not lie where the demand is harred by judgment. 38 An. 333; 21 An. 560; 16 L. 289; 6 An. 799; 31 An, 213.
    And payment after judgment can not be set up. 5 An. 648; 6 An. 471; 10 An. 734; 14 An. 333.
    A party setting up payments on a twelve months’ bond is estopped from claiming that the judgment did not authorize execution. 2 An. 269,927; 28 An. 107; 12 An. 445; 13.An. 286, 545; 22 An. 36S; 28 An.139; 30 An. 711; 15 An. 535; 31 An. 561; 26 An. 711; 30 An. 486; 32 An. 512, 979; 15 An. 684.
    The homestead exemption can not be invoked by an executor. 37 An. 410; nor by one not residing on the property. 37 An.263; 40 An. .290; nor can homestead under Constitution of 1879 be invoked against a debt originating in 1873. 32 An. 980; 34 An. 337; 38 An. 65; and the Act of 1865 protects farmers alone. 26 An. 646; 28 An. 575, 641.
   The opinion of the court was delivered by

Eennbr, J.

1. That the original judgment of 1873 did not authorize an execution, and that the judgment of revival, in so far as it adds to or amends the original judgment, is unauthorized by law, and is null and void. The defendant responds that the judgment Of revival is res judicata as to the whole relief granted, and can not be collaterally attacked. We do not find it necessary to pass on this point (which is not free from difficulty), because we think plaintiff is not in position- to deny that defendant was entitled to execution on his original judgment. The terms of that judgment are somewhat obscure; but nevertheless, shortly after its rendition the defendant did issue execution thereon and seized property of plaintiff, who, not only made no opposition, but appeared at the sale made pursuant thereof and bought in the property under a twelve month’s bond, which was subsequently released on partial satisfaction of the judgment. It is too late for him now to deny that the judgment authorized execution.

2. 'He pleads that the original judgment is reduced by payments made. The defendant opposes this plea on the ground that the payments should have been set up in the action to revive, and that, not having been so pleaded, ■ the judgment of revival is res judicata against all defenses which might have been set up therein.

The authorities undoubtedly authorize the defendant in the action to revive 'to plead extinguishment of the judgment by payment or otherwise. Bell vs. Elder, 35 An. 1022; Folger vs. Slaughter, 33 An. 341; Marburg vs. Pace, 30 An. 1330; McStea vs. Brown, 29 An. 69. But they do not go so far as to hold that he is bound to make such pleas, or that he loses any valid defenses he might have against the original judgment by not pleading them in the suit to revive. On the contrary, the terms of the statute and the whole tenor of the authorities are to the effect that the sole purpose and effect'of the revival proceeding are to prevent prescription and to revive and continue in force the original judgment unaffected by the lapse of time. Any other defenses, which were competent against the original judgment before revival, may be set up after revival, unless actually pleaded and determined in the suit to revive.

Thus we have held that the proceeding to revive is not a new suit, but part of the original action; that the judgment of revival does not cure any defects of the original judgment, which may be urged, after revival as before; that the writ of fi. fa. may issue either under the original judgment or under the judgment of revival; that the action to revive will lie notwithstanding the pendency of an appeal' from the original judgment; that the timely reinscription of the original judgment preserves the mortgage without necessity of inscribing the judgment of revival. Scherrer vs. Carnega, 33 An. 314; Carroll vs. Seip, 25 An. 141; Marburg vs. Pace, 30 An. 1330; Arrowsmith vs. Durell, 21 An. 295; Walker vs. Hays, 26 An. 176; Folger vs. Slaughter, 33 An. 342; McStea vs. Rotchford, 29 An. 69.

On the whole, our conclusion is very dea», that the judgment of revival operates no estoppel against the pleading now of the payments which had been made on the original judgment. The payments are fully proved and are properly allowed.

3. The final ground is that the property seized is exempt from seizure as his homestead. As the exemption is claimed against a judgment rendered long prior to the Constitution of 1879, it is governed by the Homestead Act of 1865. Thomas vs. Guilbeau, 35 An. 927.

Under this Statute we have heretofore'said: “The debtor who claims the exemption must combine in himself four indispensable conditions: (1) he must be the bona fide owner of the land;. (2) he must occupy-the premises as a residence; (3) he must have a family or person or persons dependent on him for support; (4) the property.must not exceed in value $2000. The absence of a*ny one of those conditions will defeat his claim for exemption, and to entitle him to the homestead all the conditions must coexist at the very time that the claim is propounded.” Denis vs. Gayle, 40 An. 290.

The evidence in this case does not establish that plaintiff occupies, or ever occupied, this property as a residence. His own statement shows that before he bought the property, and ever since, he has been employed by the lessees of the penitentiary in the city of Baton Rouge'; that his duties require his time; that he only occasionally visits the place; that his wife, who is the only dependent member of his family, “ has -made her home with her son and other children most of the time,” only occasionally going to the place. The only real resident on the place is the lady, whom he permitted to stay there and take care of it. We-do not doubt that plaintiff contemplates ultimately to occupy the place as his residence, and would probably move there if he lost his situation in Baton Rouge; but it is clear as yet, it has never been occupied by him as a residence,” as required by the express terms of the law.

The case of Burch vs. Sheriff, 87 An. 725, wherein *we held that temporary absences, animo revertendi, from an established home, for purposes of health, business or pleasure, does not vitiate the homestead, presents a very different state of facts, and is inapplicable.

On the whole, we conclude the judge a qit,o has done justice.

Judgment affirmed.


text:
    No. 10,797.
    Wm. H. Chaffe & Co. vs. V. M. Purdy.
    1. The pledgor, who is present during„litigation, consented to collect the notes he had pledged, and who is cognizant of the facts ’and difficulties growing out of the litigation, is not relieved from all concern in the management, and he can not recover damages from the absent pledgees, because they did not institute suit to recover on bonds taken in injunctions sued out to prevent foreclosure; particularly as they left the matter in the hands of the attorney employed at the suggestion of the pledgor and acted in accordance with his counsel.
    ■2. The pledgee is responsible for the damages sustained by the pledgor, and is bound to take the care which a prudent person', diligens paUr familias, takes of his own; but he is not to exercise harsh diligence.
    8. The pledgee is responsible for damages sustained by the pledgor, and for the net sum he was legally able to collect.
    It is not proven that the pledgees.could have collected more .than they-did.
    4. The dwelling seized was occupied by the debtor. The sheriff was not at fault in not collecting rent from the proprietor, who was permitted to occupy the house while binder seizure.
    5. Hither the pledgor or the pledgees may sue for the injury done to his pledge.
    APPEAL from the Eighth District'■Court, Parish of East Carroll. Montgomery, J.

      Jos. E. Bansdell for Plaintiffs and Appellees;
    1. When a debtor agrees to pay a.certain sum at a speeilied time, less the amount which pledged collaterals may realize, the creditor may as pledgee take legal steps to enforce the payment of the securities, but he is under no legal obligation to do so in tlie absence of any special understanding for that purpose. His failure to act can not be opposed to him when maturity haying arrived he seeks payment of his claim. And, generally speaking, the pledgee of collateral paper is justified in taking measures to recover same at maturity, but is under no legal obligation to do so in the absence of a special agreement to that effeot. Eriedlander vs. Schmalinski, 35 An. 520; Mechanics’ and Traders’ Ins. Co. vs. Louis Lozano, S9 An. 321; C. C. 3170; Edwards on Bailments, page 225; Ticdeman •on Commercial I’aper, par 304.

      2. Even when the pledgee agrees to collect the collateral, he is hound to take only such care thereof as a prudent man would of his own property. He is not hound to use the utmost diligence. The pledgor can take the “ weapons or war in his owns hands by paying the creditor,” if dissatisfied with the creditor’s management of the collateral. Commercial Bank of New Orleans vs. Martin et al., 1 An. 344 ;t McElmore vs. La. State Bank, 1 Otto, 27.
    3. A creditor holding a mortgage note of a third person as collateral security is compelled to credit the debt due him, only with the net sum he was legally able to cóllect on said note, when he sues on same in his own name as owner. Mrs. M. F. Blouin et al. vs. Liquidators of Hart & Hebert, 30 An. 714.
    4. A pledgee using reasonable care and diligence in selecting an agent, whom, from his professional skill he is compelled to employ, is not bound by the latter’s misconduct or neglect, especially if the pledgor names the agent. Commercial Bank vs. Martin et al., 1 An. 344; Mitchell, executor, vs. A. Levi, 28 An. 496.
    5. The measure of damages for not putting a note in suit, supposing the pledgee were under an express or implied obligation to do so, would be the injury sustained by the pledgor, and the pledgee may excuse himself by showing the insolvency of the parties to the instrument; the rule being that the pledgee is responsible only for the damages sustained by the pledgor. Grove vs. Robert, 6 An. 210.
    6. The rules relative to the duty of a pledgee will not he strictly enforced whore it is shown that the pledgee acted solely in the interest of the pledgor and with his approval and consent. And this is especially true when the pledgee is a non -resident, while the pledgor resides at the domicile of the maker of the col-laterals, and when the collaterals are placed for collection in the hands of the attorney suggested by the pledgor. Mitchell, executor, vs. A. Levi, 28 An. 946.
    7. The pledgee of notes secured by mortgage, who brings suit thereon, and is restrained by injunction, is hot bound tp sue for damages arising from said injunction. Even if he made an express contract to sue on said notes, he could not be required to sue for damages on the injunction bond, as the two causes of action are separate and distinct.
    8. The right to claim damages in the above event is personal to the pledgor, for it is he, and not the pledgee, who is injured. And should the pledgee see fit to sue, he would be compelled to give the pledgor the benefit of whatever he recovered. The pledgor can sue oij.said bond in his own name with or without the consent of the pledgee.
    9. Ho rent can be collected on a house under seizure when it is occupied by the debtor as a residence, and the sheriff is not liable for failure to collect rent in such case. 34 An. 862.
    10. Either the pledgor or the pledgee may have an action against a third person for an injury done to the pledge. Story on Bailments, 8th Edition, Sections 94 • 95 and 352; Kent’s Commentaries, 11th Edition, Yol. II, Section 585. Hence Purdy could have sued on the bonds, etc.
    11. “Where the promissory note of a third person is deposited by the debtor, with his creditor, as collateral security for a debt, such a note is a pledge; the pawnee has merely a special property interest in it, and his authority extends no further than to receive the amount of the note from the maker; he is not obliged to take measures to collect the note.” Edwards on Bailments, page 225; Tidoman on Commercial Paper, par. 304; Field on Damages, page 314.

      2. Loss or depreciation in value oí'the thing pledged, oven through negligence of the pledgee, does not operate to extinguish pro tcmto the debt secured. Cooper vs. Simpson (Minn.) 42 N. W. 601; 41 Minn. 46; Hotelier vs. Harmon (Me.) 7 An. 271.
    13. The improper admission of testimony will form no ground for the reversal of a verdict, if, in the opinion of the Supreme Court, its rejection would not have varied the result; and it will be disregarded where the objecting party is not prejudiced. Briggs vs. Stafford, 14 L. 382; 9 L. 300; 3 N. S. 509 and 082; Bissell vs. Erwin, 10 R. 94; Rowly vs. Berard, 11 R. 478.
    14. A ease will not be remanded though material evidence was received below which was inadmissible, where, fi-om the circumstances of the case,’the only effect of remanding it would be to delay the plaintiff without promoting the ends of justice, Union Bank v.s. Jones, 4 An. 220.
    15. Testimony of witnesses taken contradictorily at first trial may be offered at subsequent trial if witnesses are absent from parish, or from any cause can not be present. Prane.is vs. Levine, 26 An, 313; Heffner vs. Hesse & Hoi-zogg, 29 An. 140.
    16. The verdict must always be understood with reference to the pleadings and as responsive to the issues made by them. 5 M. 546; 3 L. 70; 3 R 84; 9 An. 70; 6N. S. 689; 17 An. 166.
    17. Admission in answer relieve plaintiff from proving his demand. Uennen’s Digest, pp. 1150,1151. An admission in answer that plaintiff .received the note from payee, entitles transferroe to judgment againstmakei-. Moore & Simonas vs. Polk, 24 An. 128; also 19 An. 182. Judgment on notes will be resjiulicuta against any one who might afterwards claim an interest therein, hence defendant can not contest plaintiff’s interest in note, unless he alleges a good defense against real owner. Ricard vs. Harrison, 19 An. 182; 18 L. 92.
    18. A judgment in lower coxirt or defective vei'dict can not be sustained, but in reversing it the court will not remand, but will render proper judgment if record presents all facts necessax-y to a decision of the case. Hozéa vs. Miles, 13 La. 109; Collins vs. Hamilton, 14 La. 343; 39 An. 891; Miller, Lyons & Go. vs. Oappell et al.; also Maloney Brothers & Co. vs. Rxxgeley, Blair & Go., 21 An. 330, which says; “When the Supreme Court lias all the facts before it, and is passing on the merits of the case, it will not notice irregularities in charge to the jury.”..

      E. J. Delony and C. S. Wyly for Defendant and Appellant:
    When a party receives mortgage paper as collateral,’and assumes control of same as owner, and sues out an order of scizux-e and sale thereon in his individual name, he is hound as pledgee for the wixole amount of said collateral to the pledgor, and for all loss or damage which the pledgor has sustained through his fault or neglect to collect the claim placed in his hands.
    He is responsible for the rents and revenues of the property under seizure upon said collaterals, when ho fails to require the sheriff to collect the same, from date of seizure to day of sale.
    And also for all damage sustained by the pledgor by reason of his failure to sue xxpon the injunction bonds executed in his favor by the mortgage debtor, who enjoins the seizxire and sale, when the injunction is dissolved and the right to sue for damages is granted him (at his request) by the court dissolving the injunction. “ »

      To be exonerated he must show reasonable diligence on his part to collect the whole claim placed in his hands, and taken charge of by him, or that he has retured the same to the pledgor and transferred to him the injunction bonds, and thereby placed him in a position to collect said balance and exercise the right granted him by the court to sue upon said bonds. C. I\ 656, 658; It. C. O. 466, 2295» 8167; 6 An. 7C8; Pothier’s Nantissmcnt, No. 86; Story on Bailment, Sec. 851.
   The opinion of the court was delivered by

Breaux, J.

Plaintiffs, owners of all the assets of John Chaffe & Sons, former owners, instituted this suit against the defendant to recover of him a balance, alleged to be due on three notes, the face value of which aggregate an amount of §2700 in principal, dated 6th September, 1882, and bearing 8 per cent, interest from March 1, 1882. These notes show certain credits endorsed, the correctness of which is denied.

The defendant in his answer denies the 'allegations of the petition and only admits the execution of the notes sued on.

He contends that he is released from his obligation as maker of the notes for the reason that he transferred to John Ghaffe_&Sons three certain promissory notes as collateral security, signed by M. DuBose as drawer, and secured as to their payment by mortgage on property in the town of Lake Providence. These notes thus transferred amounted to §2000, and bore 8 per cent, interest per annum from December 10, 1878.

The attorney of defendant had these notes in collection.

They remained in his possession with the consent of the defendant.

The pledgees brought suit via executiva on these notes on November 3, 1882.

The proceeding of foreclosure was enjoined by Dubose.

From that judgment appeal was taken to this court. Vide, Chaffe & Sons vs. V. Dubose, 36 An. 257.

Afterward a second injunction suit was brought by the same plaintiff in injunction.

These two injunctions having been dispósed of, the property mortgaged to secure the payment of the pledged notes was ultimately sold on June 6, 1885, for §1500.

The sheriff’s return made at the time show that he deducted costs, taxes and fees, leaving an 'amount of $1049.26 to the credit of the seizing creditor. *

No objection was made to the deduction.

A short time after the sale, in 1885, the pledgees furnished a statement to the defendants in which was included the items charged by the sheriff in his return as well as others, amounting altogether to §562.47, and leaving a balance to defendant’s credit which was afterward endorsed on his-notes, due to the plaintiffs, of §987.53.

The statement was enclosed by mail to the defendant who was requested, to examine it and let them know if correct.

The request was complied with, and the statement was accepted as satisfactory.

The defendant now claims that plaintiffs made themselves the owners of the DuBose notes, pledged by him to them, and responsible for the whole amount; and besides he claims.and charges that it was the duty of Chaffe & Sons to require the sheriff to collect rents upon the property during the seizure, and having failed so to do, he alleges that they became responsible to him for the amount, viz: §30 per month for thirty months, and he prays that he be credited with this amount.

He also alleges that plaintiffs owe the balance due on the Dubose notes, because they failed to sue him for this balance; that they should be held for not having brought suit for costs and damages on the injunction bonds furnished b;y Dubose, the debtor of the pledged notes.

The amount of this last claim is limited to §1500.

The ease was tried by jury and a verdict was found for plaintiffs for the amount claimed.

On motion for new trial the verdict was set aside for defect of form.

On new trial judgment was pronounced for plaintiffs from which the defendant appeals.

********

It is in place to decide the questions presented in several bills of ■exceptions.

Upon the last trial counsel for plaintiffs offered the testimony of two witnesses taken upon the former trial.

One of the witnesses was sick and unable to be present, the other absent.

Counsel for defendant objected upon the grounds that it was not shown that this evidence could not again be taken either in person or by commission; that be would be limited to this testimony, and denied the right of interrogating these witnesses.

The issues in the first and second suits were identically the same, not the least amendment had been made; the evidence was taken contradictorily with the defendant, who only claimed the right to' interrogate the witness upon other matters tha-n those testified to in the first suit.

.The defendant had ample opportunity for the cross-examination of the witnesses in the first suit.

We do not discover the least surprise or advantage. Conway vs. Erwin, 1 An. 391. Even if this evidence were excluded, the damages claimed would not be proven.

Without it, the record discloses the insolvency of the debtor of the collateral security; 'and it is not proven that the loss of the bonds, if any, was one for which the plaintiff could be held.

The counsel for the defendant, it is shown by a second bill, offered to prove by his own testimony that he had received a proposition from M. Dubose 'to transfer him property by which the whole amohnt of the Dubose notes placed in the hands of Chaffe & Sons by him could be realized, also to prove the answer made by the latter.

The defendant did not obj^pt when the sheriff credited the proceeds under the foreclosure proceeding before mentioned; he also expressly approved the distribution of the funds as' made; he did not allege in term that Chaffe & Sons declined to accept a proposition of compromise, made through him, whereby the whole claim would have been settled.

The evidence was not admitted and was properly excluded.

On The Merits.

There was nothing extraordinary in the business transaction which gave occasion for this litigation.

The defendant offered his notes to plaintiffs his creditors, in order to obtain time, and offered certain notes, secured by mortgage, as collateral security.

They were accepted.

In accordance with agreement between pledgor and pledgees, the pledged notes remained in the hands of the attorney, who had them for .collection at the time the pledge was made and suit brought on the pledged notes. Not the least disagreement arose between pledgors and pledgees 'during the foreclosure and injunction proceeding. The defendant was at the place; plaintiffs resided at some distance.

The defendant in his answer sets forth that “ said Ohaffe & Sons took full and complete control and possession of said notes, and exercised all the rights of ownership over them — even denying unto your respondent any right to stipulate or dictate what sKould be done with them.”

These allegations are not supported by apreponderance of evidence.

The testimony of one of the plaintiffs and of the attorney is uncontradicted in many respects. It does not corroborate that of the defendant about the ownership of the notes and the management of the suit. It is not shown that plaintiffs attempted to exercise rights of absolute ownership.

Defendant earnestly contends that plaintiffs are responsible for the whole of the amount of the pledged notes, for the reason that after the property mortgaged had been sold-to satisfy the collateral security, suit was not brought for the balance due.

The debtor owned only this mortgaged property. He was insolvent at the time. The pledgees can not be held responsible for not having brought suit against an insolvent debtor.

“The pledgee is responsible only for the damages sustained by the pledgor, and for the net sum he was legally able to collect.” Blouin v. Harter & Herbert, 30 An. 714; Grove vs. Robert, 6 An. 210.

* * * * * ijs * sfs

The defendant complains that the rent was not collected while the sheriff had the property in hjs possession under the foreclosure proceeding. He hastily assumes that it was the duty of the sheriff to collect rent, and charges up damages to plaintiff’s account.

The dwelling seized was occupied by the debtor; i. e., the debtor of the collateral security, and his family.

“The sheriff * * * can be held responsible only where the property is occupied by tenants who are bound to pay rent, or where the property being vacant or susceptible of being rented, he fails to take proper steps to rent it for a limited time.” Conte vs. Handy, sheriff, 34 An. 863. As there was no authority in the sheriff to collect rent from the proprietor for the occupancy of his own dwelling house, before divesture of Ms title:, Ms authority being limited to needful acts to secure possession, the defendant, can not recover any d'amages-from the pledgees upon the sheriff’s failure to collect rent from the proprietor, who is permitted to occupy his dwelling while under seizure.

The attorney (named by pledgor), employed to sue on these pledged notes, testifies: “I never took any proceeding to force the collection of rent while the property was under seizure, because it was the residence of defendant Dubose, in which he resided, and owned by him — was neither vacant nor occupied by tenants, and under the law, in my opinion, the sheriff could not force him to pay rent while he occupied it as a residence.

“ I brought two suits on the injunction bonds. I never interfered with Mr. Purdy’s bringing proceedings for damages. .1 consulted with Mr. Purdy during, all this litigation frequently. Mr. Purdy never instructed me to bring suit for damages on the injunction bonds.”

Lastly, defendant alleges that plaintiffs are responsible in not having brought suit for damages on the injunction'bonds taken in two suits to arrest the foreclosure proceeding.

The pledgor could have controlled these bonds and could have brought suit on them to prevent loss.

The pledgee has merely special property in the note' pledged to secure the principal obligation. He is not obliged to take measures to collect it.

Either the pledgor or the pledgees may'sue for an injury done to the pledge, a fortiori, he may sue to recover a right incidentally arising during' the time the property is in pledge. Story on Bailments, Section 94.

The defendant has not shown any actual loss on these bonds. True, it is alleged that the sureties once solvent, are no longer, solvent. This is not proven.

In some respects this case has features analogous to that of Commercial Bank vs. Martin, 1 An. 345.

As in that case, the plaintiffs were obliged to act through an attorney.

He- counseled with the pledgor, and in all things connected with -the foreclosure his counsel prevailed.

The plaintiffs used reasonable diligence in the choice.

The pledgor was consulted and indeed suggested his employment. The evidence discloses he was left at liberty to act and to recover everything possible on these bonds.

Plaintiffs are not responsible in damages.

We think the judgment should be affirmed.

Judgment affirmed.


text:
    No. 10,799.
    Mrs. Mary C. Mason vs. James Benedict et al.
    Plaintiff having been placed in possession of the realty, described in an act of agreement to exchange, more than sixteen years ago.
    Having delivered the property, she promised in exchange and executed a titlo deed and placed it in possession of the owners, with whom she made the exchange. She has the right to he quieted in her title as ownerof the property for which site made the exchange, although the defendants refuse to execute a titlo deed in accordance with the agreement to exchange.
    The proceedings being virtually inrem, the defendants can he brought into court by service on a (motor ad hoc, appointed to represent the absent defendants, . who are concluded by the judgment, in so far as relates to the title totheproporty, and the consideration which maltes it legal.
    APPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Buchner, J.

      J. G. W. Burgess and Kernan & Laycock for Plaintiff and Appellee i
    An absentee may he validly cited, through a curator ad hoc, to answer in the court, within whose territorial jurisdiction is situated property belonging to him, when the purpose of the action is to enforce some real right against the property, orto enforce a contract respecting the same; and in such eases attachment is not necessary to vest the court with jurisdiction. Young vs. Upshur, 42 An. p. 3G2; Durruty vs. Mussacchia, 42 An. p. 357.

      Louis E. Droz, Curator, ad hoc, for Defendants and Appellants:
    An absent defendant can not he brought into court by substituted service on a curator ad hoc, unless in the same suit, property of his is subjected to the control of tile court by attachment. 35 An. 1184; 95 U. R., 714; 9 An. 34; 2 An. 562; 3 An. 101; 3 An. 417.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff institutes this action against the defendants for specific performance of an agreement of exchange, dated 14th day of October, 1874.

By its terms, plaintiff agreed to exchange with the defendants, residents of the State of New York, certain real estate near Webster station, on the Missouri Pacific railroad, in the county of St. Louis, in the State of Missouri, for a certain plantation known as the “Audubon,” situate in the parish of East Baton Rouge, and State of Louisiana.

' The plaintiff bound herself to pay the mortgages and liens on the property transferred in exchange, and to pay defendants, on terms of credit, the sum of $10,000. In accordance with the agreement, she entered into possession on the-day of--, 1874, and is in possession since. She has made a deed transferring the property she bound herself to transfer in exchange.

The exchange never was consummated. The plaintiff alleges and has introduced evidence to prove that she has complied with the terms of the agreement, but that defendants have refused to comply.

In 1876 she placed them in default.

Decision is for plaintiff, from which the defendants appeal.

The defendants being absentees and not represented by agent,, a curator ad hoc was appointed to represent them, in pursuance of the provisions of Article 56 and other articles of the C. P., upon whom substituted service of citation was made.

The only defence he makes and the only issue presented, is the following:

That an absent defendant can not be brought into court by substitute service on a curator ad hoc, unless property is subjected to the control of the court by attachment.

Crops have been made and' gathered, and plaintiff has exercised unquestioned.all the rights of an owner these many years.

When called upon to execute a deed, defendants had promised to execute prior to March, 1876, or as soon thereafter as possible, they silently remained in default and made no attempt to comply with their obligation, and to carry out the agreement of exchange.

’ It is not to the interest of any one, nor the policy of thé law, that the title to property should remain unsettled and undetermined so great a length of time.

If there be any cause to oust the plaintiff, and to set aside and annul the agreement of exchange, it should have been pleaded long since. The agreement having remained without objection of record, we conclude that plaintiff has title bo the Audubon plantation, and that the’recital of the deed that “ it is agreed to exchange the within described property, one for the other,” on certain conditions, is binding on the defendants in so far only as relates to the property in this State, the title to which plaintiff prays to be recognized.

Contradictorily with a curator ad hoc we prefer to limit the effects of the'decree to that property, and to especially reserve to the defendants any rights they may have, and to the plaintiff any rights she may have to set np in defence to any action defendants may bring for the recovery of claims other than the title settled by this judgment.

The defendants are bound, by the judgment appealed from, in so far as relates to the property described therein, and for which they have received property in exchange.

We are led to make that limitation from the fact that the evidence does not enable us to determine the rights of the parties further than above stated. Thus limited, the action becomes one strictly in rem and the absentees were validly cited, through a curator ad hoc, to answer in the court within whose territorial jurisdiction is situated the property belonging to them.

The purpose of the action is to. enforce a real right against the property and to enforce a contract relating to it.

Attachment is not necessary to vest a court with jurisdiction.

In the leading case of Pennoyer vs. Neff, 95 U. S. 730, the Supreme Court announced the principle that substituted service of citation is effectual “ when the action is in the nature of a proceeding in rem."

A nón-resident can be brought into court by constructive service to perfect the 'title to real estate; otherwise a cloud upon it by a claim of a non-resident will never be removed, unless he chooses to consent to an adjudication. But no such imperfections attend the sovereignty of the State. It has control over property within its limits; and the condition of ownership of real estate therein, whether the owner be stranger or citizen, is subject to its rules concerning the holding, the transfer, liablility to obligations private or public, and the modes of establishing title thereto.

“ It can not bring the person of a non-resident within its limits— its powers goes not out beyond its borders, but it may determine the extent of his title to real estate within its limits, and for the purpose of such determination may provide any reasonable methods of importing notice.”

“ The well being of every community requires that the title of real estate therein shall be secure.” Arnolt vs. Griggs, 134 U. S.

The constructive servicé contemplated by certain articles of the Code of Practice is ample when complied with to give reasonable notice to an absentee, and until the contrary appears the court must presume that the attorney appointed to represent the absentees as curator ad hoc has complied with the law’s requirements.

If the defendants were not absentees an action could compel them to deliver a deed in accordance with the terms of the-agreement of exchange.

To that extent it would refer strictly to the property.

By constructive service, being absentees, they are made to comply with their obligation so far as relates to the property.

Delivery of the property has been made, and other conditions of the contemplated exchange complied with.

It only remains to determine whether the plaintiff has title to the property. This can be decided contradictorily with a curator ad hoc; the sole object of the suit is property within the court’s jurisdiction.

In the case of Young vs. Upshur et. al., 42 An. 365, this court announced the governing principle to be that substituted service is legal and will bind defendants as to the property affected. “That a judgment pronounced thereon contradictorily with a curator ad hoc will bind the absentee defendant quoad the property in controversy.”

The object of the proceedings was to define the status of the property in order to enforce a contract respecting it. The court decided: “He can not be reached by personal service, and we therefore hold that he was validly cited through service on the curator, and will be concluded by the judgment. Duruty vs. Mussacchia, 42 An. 360.

The judgment appealed from is limited to the title to the property. This leaves the other issues not affecting the title, which may arise, undecided, and secures as to them to the parties, their rights.

Judgment is therefore affirmed.


text:
    No. 10,817.
    The State of Louisiana vs. Jim Ware.
    The Supreme Court has no authority to consider the evidence adduced helow, on the trial, tending to establish the guilt or innocence of the defendant. It has power only to determine whether or not the procedings wore regularly brought and conducted.

      The allowance of a motion for a new trial, based on a charged misapprehension and disregard of the facts by the jury, and on the discovery of material evidence since the trial, is within the discretion of the District Judge. ■
    This court is not concerned with the motion attacking a verdict, as contrary to the evidence; and will not interfere with the refusal of the judge to grant a new trial, on the ground of newly discovered material evidence, unless in extreme and clear cases, where injustice was done.
    The jury tries the prisoner on the charge against him, and this court trios the judge, on the rulings made by him and complained of, on questions of law only.

    APPEAL from the First District Court for the Parish of Caddo. Hicks, J.

      W. H. Rogers, Attorney General, for the State, Appellee.

      Robt. J. Looney, appointed by the Court a qua, for Defendant and Appellant.
   The opinion of the court was delivered by

Bermudez, O. J.

The defendant was indicted for rape, convicted and sentenced to the extreme penalty.

On appeal, he relies solely on a motion for a new trial, in which the jury is' charged with a misapprehension of the facts, and the judge, with error in disregarding the affidavit of newly discovered evidence since the trial, which if adduced, would influence the jury to a new finding.

To the refusal of the judge to grant the new trial, a bill of exception was reserved.

In an elaborate opinion, the District Judge has taken pains to show that the grounds relied on for a new trial are untenable.

It has been repeatedly held that this court has no authority to consider the evidence adduced below, tending to establish the guilt or innocence of the defendant, and have power only to ascertain and determine, on proper showing, whether or not the proceedings were regularly instituted, carried on and consumniated.

It will not interfere with the discretion of the District Judge exercised in refusing a new trial on the grounds of newly discovered material evidence since the trial, anless in extreme cases, in which otherwise injustice would be done. Those features are not presented in the present instance.

The jury tries the accused on the charge against him, and this court tries the judge for his ruling but on questions of law only.

Judgment affirmed.


author: MoEnery, J.

text:
    No. 10,771.
    The State of Louisiana vs. William Green.
    Where tlieproqcs verbal of the drawing of the jury shows that the acts of the jury commissioners were in accordance with Act No. 44 of 1877, it is sufficient. It is not necessary that the proees verbal should contain the evidence upon which their acts arc based. Where the proees verbal shows that the jurors were selected from qualified voters it is sufficient. That some of the jurors drawn are not qualified is not good grounds for setting aside the panel.
    Where the jury commissioners draw the jury in a room adjoining the clerk’s office, and which opens into it, and is a part of the office, this is a compliance with Act 44 of 1S77.
    The granting of continuances in criminal eases is a matter within the sound discretion of the trial judge, and will not be interfered with by this court, unless a manifest injustice has been done.
    It is a matter within the discretion of the trial judge to order the summoning of jurors in advance of the trial.
    When the accused challenges a juror for cause, which is overruled, and then challenges him peremptorily, when his challenges have not been exhausted, he is not aggrieved by the decision of the court, and has suffered no injury, as the juror did not participate in the trial.
    A motion for a now trial simply that the verdict is contrary to the law and the evidence will not be considered.
    Motions in arrest of judgment only can be considered when there are errors patent on the face of the record.
    APPEAL from the Twenty-sixth District Oonrt, Parish of Jefferson. Rost, J.

      W. H. Rogers, Attorney General, for State and Appellee.

      H. N. Gautier for Defendant and Appellant:
   The opinion of the court was delivered by

MoEnery, J.

The defendant was indicted for murder, tried, and on the return by the jury of an unqualified verdict of guilty, sentenced to be executed. He has appealed.

His defences are (1) motions to quash the indictment and set aside the panel, both of which are based on the same facts; (2) a motion to draw and summon additional jurors, which was overruled; (3) that he had not been served with a list of jurors who were to pass upon his case two entire days before his trial; (4) the denial of his motion for a continuance; (5) that the tales juror, Philip Pierce, was not a qualified juror; (6) the denial of his motion in arrest of judgment; (7) the overruling of a motion for a new trial; and (8) an objection to the charge to the jury.

1. It is urged in the motion to quash the indictment and set aside the jury that two of the jury commissioners who assisted in drawing the jury were disqualified, the first for -having accepted the office of school director after his appointment as jury commissioner, and the second on account of not being a citizen of the United States.

The office of school director was accepted by the jury commissioner before his appointment to the latter position. He was appointed levee inspector by the Board of Commissioners of the Pontchartrain Levee District. This is not an office within the meaning of the Constitution. He held no appointment from the State.

The jury commissioner Weeks was a naturalized citizen of the United States when appointed to the office of jury commissioner. Both grounds are untenable.

The second ground is that the jury commissioners did not draw the jury from all persons residing in the parish, as the list was made from qualified voters alone, to the exclusion of all other persons duly qualified.

Section 4 of Act 44, of 1877, directs the jury commission to select the names from persons qualified as jurors under the act.

Section 1 of the act defines the qualification of a juror “to be a citizen and a bona fide male resident of the parish in and for which the court is to be holden, for one year next preeeeding such service; not under indictment or charged with any infamous crime or offence punishable by hard labor.”

The accused has failed to show that the jury was not legally qualified. The objection is that the jury was drawn from the qualified voters of the parish. The act does not direct from what source the commissioner shall obtain its knowledge of qualified jurors. The fact of selecting jurors from the qualified voters of the parish does not show that any particular class of persons is excluded from the jury list. On the contrary, it is the best evidence that the intention of the commissioner was not to exclude any class. It is to be presumed that the names of all citizens of the parish who are.qualified to serve as jurors are to be found among the voters of the parish.

He also urges that there is no evidence that prior to and at the drawing of the jury, the venire box contained the names of 300 good, competent men taken from all persons residing in the parish having the necessary qualifications of jurors; that there is no evidence in the proees verbal of the drawing of the jury, of the number of the names of dead or disqualified jurors and the number of those supplemented; that the proees verbal contains, instead of facts, conclusions of law.

Section 4 of Act 44, of 1877, requires the names of 300 jurors, originally deposited in the venire box to be kept up to that number by the placing therein the names of qualified 'jurors to replace those who have died, removed from the parish, become exempt or disqualified.

The proees verbal shows that the jury commissioners “ erased front the ‘ general venire ’ list the names of such persons as having served as jurors at the last term of court, as well as the names of others on the list who are known to have died or removed from the parish, or became disqualified to serve as jurors since their names were entered thereon, and said names having been taken from the 1 general venire’ book, the commissioners then supplemented the general venire ’ list and the ballots in the box with names of the same number of good and competent men, the qualified voters of the parish as have been taken from the box and erased from the list, after which the jury commissioners drew from the general venire ’ box, one name at a time and according to law, 110 names.”

This proees verbal is in accordance with the provision of Act 44 of 1877. It states the acts of the commissioners as required by said act. It was not necessary that the jury commissioners should embody in the proees verbal, the evidence which was the basis of their acts.

There were 300 names originally contained in the box. This number must be presumed to be in the box from the act of the jury commissioners when they first drew the jury, within thirty days after their appointment. The proees verbal shows that the number of dead, removed and disqualified and exempt jurors on the original list, was supplemented by an equal number of qualified jurors, thus keeping the number to 300.

The last objection to the manner of drawing the jury is that the commissioners failed to meet and draw the jury in the clerk’s office proper; but met and drew the jury in the fire-proof vault of the clerk’s office.

This vault is a part of the clerk’s office, with two windows and as well lighted as the main room, and affords the same facilities for drawing the jury as other parts of the office. There was free access to this room, which,communicated with the main room, and no one was excluded from it during the drawing of the jury.

As the room was a part of the clerk’s office, and the jury commissioners were not secluded therein for any improper purpose connected with the drawing of the jury, the law was complied with.

These objections of the defendant to the drawing of the jury, except as to the qualifications of the jury commissioners, are disposed of by Section 10 of Act 44 of 1877, the defendant having failed to show that some fraud has been practiced that would work him a great and irreparable injury.

2. The defendant, alleging that out of the thirty jurors drawn for the week in which he was to be tried, only twenty-three jurors had appeared, moved the court, to have drawn and summoned thirty additional jurors for the second and third weeks of the term. This matter was within the discretion of the court. It related to the order and discipline of the court, and we will not interfere with it.

3. The defendant was served with a list of the jurors two entire days before his trial. The case was continued for the purpose of allowing the two full days to run.

4. The granting of an order to continue the case was within the sound discretion of the court.' The facts alleged in the application did not warrant the granting of the order.

We have repeatedly held that in criminal cases, in matters of continuances, the court will not interfere with the discretion vested in the trial judge, unless the ruling complained of is manifestly unjust. State vs. Johnson, 36 An. 853; State vs. Clark, 37 An. 128; State vs. Wilson, 33 An. 262; State vs. Primeaux, 39 An. 673.

5. The juror, Philip Pierce, was not qualified to serve as a juror. He was peremptorily challenged by the defendant, before he had exhausted his challenges, and did not serve on the jury. The defendant suffered no injury in his having been summoned as a tales juror.

6. There are no errors patent on the face of the record. Therefore the motion in arrest of judgment was properly overruled.

7. The motion for a new trial is that the verdict was contrary to the law and the evidence. There is nothing in the motion and there is no evidence introduced, and we can not, therefore, take anynotice of this plea.

8. The special charge asked for by the accused was allowed. He excepted to the general charge that it was “ insufficient and not full enough.” We are not advised of any errors in the charge.

The counsel for the defendant, who was appointed by the court to defend him, earnestly appeals for .the reversal of the sentence and verdict, on the authority of the ease of State vs. Gunter, 80 An. 540, decided by our predecessors. That case was exceptional. The decree rendered therein was evidently induced by the belief entertained by the court that the defense of the accused had been neglected, and that he had a good defense which had not been urged.

No such reasons can be urged in this case. The accused has been ably represented by the counsel appointed to defend him. The record shows his zeal and ability. No possible defense has been overlooked.

Judgment affirmed.


author: McEnery, J.

text:
    No. 10,810.
    The State of Louisiana vs. Frank Aarons.
    Tlie ruling of a trial judge in rejecting jurors for cause under challenge by the State affords no legal grounds for complaint on the part of the accused, unless after the exhaustion of his peremptory challenges an obnoxious juror has been selected to try him.
    APPEAL from the Sixth District Court, Parish of Ouachita. Richardson, J.

      W. Rogers, Attorney General, for the State, Apeellee.

      Stubbs & Russell for the Defendant and Appellant.
   The opinion of the court was delivered by

McEnery, J.

The accused was convicted of murder without cap ital punishment, and sentenced to hard labor for life. He has appealed.

His only defence is that the trial judge for canse erroneously sustained several challenges to jurors by the State.

The accused has no legal grounds of complaint, unless the ruling in the rejection of a juror worked him an injury in the selection of a juror obnoxious to him on legal grounds, after the exhaustion of his peremptory challenges.

He can protect himself by the use of his peremptory challenges. He certainly has no right to select a particular juror.

State vs. Cazeau & Blanchard, 8 An. 109; State vs. Ford, 37 An. 443; State vs. Shields, 33 An. 1410; State vs. Carrus, 39 An. 931; State vs. Dunn, 39 An. 751; State vs. Creech, 38 An. 481; State vs. Lewis, 41 An. 590; State vs. Wm. Ford, 42 An. 255; State vs. Green, not yet reported.

Judgment affirmed.