author: Breaux, J.

text:
    No. 13,787.
    Joseph Theolin Landry et als. vs. The Caffery Central Sugar Refinery and Railroad Company, Limited.
    Syllabus.
    On Motion to Dismiss.
    The ground is that the court is without jurisdiction ratione matwiae.

    Bach of the appellants asked for a judgment on appeal in an amount less than the lower limit of the Supreme Court’s jurisdiction. There was no privity of interest among the different parties. Appellants did not ask for one judgment for all, but each prayed for a judgment for himself.
    APPEAL from the Twenty-Third Judicial District, Parish of St. Mary- — Allen, J„

      Breaux & Qordy for Plaintiffs, Appellants.

      Guy M. Ilornor and Charles A. O’Niell for Defendant, Appellee.
   The opinion of the court was delivered by

Breaux, J.

This is an action for damages which plaintiffs claim as having grown out of the breach of a contract.

Plaintiffs are cane planters at or near Deleambre in the parishes of Iberia and Vermilion. The defendant, as its name indicates, is a sugar manufacturer and in connection with its business it owns a branch railroad on which it carries the cane it buys from the cane planter to the sugar refinery.

The terms and conditions of the contract between the plaintiffs and the defendant, in part, is that each plaintiff is to deliver at the sugar refinery of the defendant a stated number of acres of “good, sound and unfrozen cane, free from leaves,” and in such other condition as is stipulated in the contract. The parties agreed in this contract as to the time plaintiffs were to commence to deliver the cane and the rate of tons per day relatively, and in proportion to the entire crop, each plaintiff bound himself to deliver.

The defendant agreed to pay the plaintiffs “eighty cents per cent, (per ton) of two thousand pounds of cane for each and every cent that IH'ime yellow clarified shall,bring on the New Orleans market; the average price per week ending each Saturday of the New Orleans Sugar Exchange to be the basis of settlements under this contract for the receipt of cane during said week.” The parties also agreed on an additional fifty cents on each ton delivered.

The contract contains other conditions of payment for the cane and time and manner of delivery which it is not necessary to insert here. One of the stipulations in the contract bearing directly upon the issues hereafter passed upon is the following: “It is agreed that in all cases where delivery of cane is to be made by the railroad, that a failure to supplyf ‘the necessary cars shall not constitute a violation of the contract.”

The following is the amount claimed by each petitioner for cane which he alleges he lost:

Joseph Theolin Landry.................................. $781 87
Drozin Landry.......................................... 104 25
Evariste Miguez........................................ 208 50
Eelicion Duhón . ............. 208 50
Celistian Cornier ....................................... 208 50
Victor, J............................................... 208 50 .
Adrien Carlin.......................................... 62 55
Alfred Deleambre....................................... 521 25
Duprelon LeBlanc ...................................... 227 77
Duplexis LeBlanc....................................... 132 05
Ceasaire Broussard ..................................... 70 35
Evariste Vincent ....................................... 34 75
Total ..............................................$2768 84

Each prays for judgment against the defendant for the sum opposite his name.

The defendant filed an exception of no cause of action which was referred to the merits. The answer is a general denial.

Motion to Dismiss.

Defendant and appellee filed before this court an application to dismiss the appeal on the ground that this court is without jurisdiction rations materias. The complaint of plaintiffs is that the defendant violated its contract by failing to deliver necessary cars (o carry cane from their fields to defendant’s factory, and that, in consequence of this breach, each has suffered damages charged opposite his name.

The contract itself is not attacked. Defendant’s! failure to execute its terms and conditions is the complaint made. While it is true that this contract was signed by all the plaintiffs, yet each bound himself personally to carry out its stipulations in so far only as each was concerned. The contract is neither solidary nor joint. The petition sots forth the respective rights claimed by the plaintiffs, and each asks for judgment for the amount of his claim. They stand exclusively on their respective rights. If a judgment were rendered in favor of plaintiffs, it would be for the amount and to the extent each claim would be sustained by sufficient testimony. There is not the least privity among the plaintiffs. Each is a separate and distinct plaintiff, as much so as if lie alone had sued on the contract. To illustrate: A. may recover and B. may not, and neither would have the right to complain of the success or •failure of the other.

In the District Court no objection was urged against the consolidation of these claims for damages on an asserted breach of contract. Properly, the District Court had jurisdiction of each claim, independently the one of the others. On appeal, it is different as relates to jurisdiction. If there is no privity of interest whatever, the joinder of demands would not have the effect of conferring jurisdiction. It should be borne in mind, in considering the question involved, that each of the plaintiffs stipulated for himself and secured a separate and distinct-obligation; that each sues for the asserted non-performance of the obligation by the defendant, and each must succeed, if he succeeds at all, in recovering an amount which has nothing about it in common with other plaintiffs.

Each claims independently of the other plaintiffs that the defendant has caused him damages by not carrying out the contract to which it is bound in his regard.

If a separate suit had been instituted by each appellant, it is manifest enough that they would not have been entitled to a consolidation of each suit in order to secure jurisdiction on appeal. By joining in one suit, the right, as relates to jurisdiction, is not enlarged. Tague vs. Insurance Co., 38 Ann. 456.

It is therefore ordered, adjudged and decreed that the appeal taken in this case be dismissed.


source: Caselaw Access Project

author: Monroe, J.

license: Public Domain

text:
    No. 13,795.
    State of Louisiana vs. William Logan et al.
    Syllabus.
    1. When two. defendants, charged with the same offense, are- tried together, and a bill of exceptions to the admission of evidence is reserved by one of them, who is thereafter acquitted, the other defendant is not entitled to- claim any advantage under the bill so reserved unless it Is thereby made to appear, upon the face of the record, that an error has been committed to his prejudice.
    2'. In Act No. 63 ©f 1S84, the word “extort” is used in its ordinary, as contra-distinguished from the technical, sense, in which it is used in Section 868 of the Revised Statutes, and, as so used, applies to persons generally, and signifies “the taking or obtaining of anything from another by means, of illegal compulsion,” whether upon a claim of right or otherwise.
    3. Where there is no hill ©f exceptions It must Be clear upon the face- of the record that an error has been committed to the prejudice of the defendant or the judgment against him will not Be reversed. A doubt will he resolved in favor of the validity of the action of the trial court.
    APPEAL from the Third Judicial District, Parish of Claiborne— Edwards, <7.

      Walter Guión, Attorney General, and J. O. Thews, District Attorney. iLewis Guión, of counsel), for Plaintiff and Appellee.

      Richardson & Richardson for Defendants, Appellants.
   The 'opinion of the Court was delivered by

Monroe, J.

It appears from the record in this case that Wm. Logan'. Lee Slaton and Thomas Holly were charged in the same indictment with having, on the 5th of October, 1900), wilfully alnd feloniously threatened to kill Eobert Thurmond, with the intent to extort money, goods and chattels, etc.

Logan was not placed on trial, but Slaton and Holly were tried together, with the result that Slaton was acquitted and Holly was convicted, with a recommendation to mercy, and sentenced to one year’s imprisonment at hard labor. His case is presented here by means oí two bills of exception.

The first bill was taken to the ruling of the court on the following question propounded by the State to E. S. Thurman, a State witness, to-wit: “What statement or threats did the defendants make against him ?” to which the counsel for the defendant objected, on the grounds, that there was no allegation or charge of conspiracy, and that no state; ments or threats could be received against a defendant not making them unless the jury were instructed that they were received only as against the defendant by whom they were made; which objection was overruled by the court, for the reason, as appears from the bill, that “a statement “ made by one defendant in the presence of the others that all parties “present when the statement or threat is made is bound by them (sic) “ and the said statement or threat is receivable in evidence', and is to be “ considered by the jury as against all such parties,” It further appears from the statement of the judge that the bill was reserved on behalf of the defendant, Slaton, who was acquitted. It is fair to assume from this that whatever threats may have been testified to in the answer to1 the question propounded to the witness were made by the' other defendant, Holly, who had, therefore, mo just ground for complaint. If, however, he had reason to complain, he should have embodied his- complaint in a bill of exception, since the hill reserved on behalf &f ins co-defendant cannot avail him.

The second bill presents the following questions, to-wit: Counsel for' defendant requested the court to charge the jury, substantially, that if» it appeared that the person threatened owed the' amount demanded, a threat by the latter, conditioned upon the non-payment of the amount due, should not be regarded as a threat tcf extort money, within the meaning of the statute; which request was refused; and the court charged the jury (according to the bill prepared by defendants* counsel)' “That it made no difference whether he owed the party making the “ threat or not; that he could not sue for his debt, and that if he tlireat- “ ened the party who owed him, he was guilty under the -statute,” to which refusal to charge, as given,, the defendant, through Ms counsel,excepted.

“The ordinary meaning of the word extortion is the taking or obtain- “ ing of anything from another by means of illegal compulsion, or “ oppressive exaction. * * * But the word has acquired a technical “ meaning in the common law, and, in this sense, may bo defined to be “ the corrupt and unlawful taking by any officer of the law, under color “ of his office, of any money, or thing of value, that is not due to him, or “ the corrupt or unlawful taking of any money or thing o r value under “ color of his office, in excess of what is due to him, or before it is due to “him. Extortion, in its technical sense, is also made the subject of “ statutory enactment, substantially declaratory of the common law, in “ England and in most jurisdictions in the United States.” Am. & Eng. Ene. of Law, 2nd Ed., Yol. XII, pp. 576, 577.

“Extort. 1. To obtain as from the holder of desired possessions or “knowledge, by force or compulsion; wrest or wring away by any “ violent or oispressive means, as physical force, menaces, dureses, • “«torture, authority, monopoly, or the necessities of others.

“2. In law, to take illegally under color of office. * * *

“Extortion 1. The act of extorting. * * *

“2. In law, strictly, the crime of obtaining money or other property, " or service, from another under color of public office, when none is due, “ or not so much is due, or before it is due. In some of the United “ States, moreover, a wider signification is given to the word by statute.”

Century Dictionary.

In this State the technical offense known to the common law as “extortion” was punishable under Section 868 Revised Statutes — which, by its terms, applied exclusively to officers. State vs. Lubin, 42 Ann. 79. By Act 63 of 1884 it was declared that “any person,” who “shall threaten to kill * * * with intent to extort money * * * ” shall, upon conviction be imprisoned, etc.” This statute has been held to be constitutional in an opinion in which Mr. Justice Miller, as the organ of the court, said: “It defines the offense of attempting to extort-money by threats or other unlawful devices.” State vs. Rushing, 49 Ann. 1532. There is no question, then, of the application of the law to the defendant, and we can find no sufficient reason for holding that if does not apply to the act which he is charged with having committed; since the threats charged against him are within its terms whether he claimed that the money demanded.was due to him or not. Cases decided in other States in which it is said that a contrary view has been held are, perhaps, based upon the language of particular statutes, which may have admitted of the exceptions for which 'the defendant’s counsel here contends.

The foregoing presents, substantially, the questions reserved in the bill as they are set forth by the defendant’s counsel. The judge a quo, however, made some addition to the bill, as prepared, reciting, in slightly different language from that used by defendant’s counsel, certain testimony tending to show that something was due to the defendant by the party whom he is charged with having thioatened, and showing that the defendant had said that, if ho did not get it in one way, he would in another; that “he would shoot it out,” which recital concludes with the statement by the judge: “The court charged the “ jury that this was not the way to collect debts, that the law provided “ the mode and manner of collecting debts. That if Thurmond owed “ITolly anything, he could have obtained the same in a legal and “proper manner.” And, to this statement, the objection is urged, in the brief, that it embodies an unwarranted comment upon the evidence, and was prejudicial to the defendant. Taking the statement of the counsel as to what the judge charged, in connection with 'the judge's statement upon that subject, it is not" altogether clear to us in exactly what language the charge was expressed. And, inasmuch as no objection was made and no bill of exceptions taken at the time, on the ground that the language used imported a comment on the testimony, we arc bound to suppose that it did not so impress the counsel at the time. And, from the presentation of the matter in the record, we are not prepared to hold that it did import such comment.

The judgment appealed from is, therefore, affirmed.

Rehearing refused.


text:
    No. 13,720.
    Mrs. Julia Kling vs. Mason’s Fraternal Accident Association.
    Syllabus.
    The burden of proof rests upon the plaintiff to establish, with reasonable cer tainty, the facts essential to his recovery»
    APPEAL from the Twenty-First Judicial District, Parish of Iberville— Talbot, J.

      Lozano & Hebert for Plaintiff, Appellant.

      Calvin K, Schwing for Defendant, Appellee.
   The opinion of the court was delivered by

Monroe, J.

The plaintiff, as beneficiary of an accident policy, for $5000, issued by the defendant company upon the life of Gabriel Kling, her husband, alleges that the assured died from injury resulting from a peril insured against, and prays judgment according to the contract., The answer admits the issuance of the policy, but denies that the death of the assured was caused by violent and accidental injury.

The' plaintiff’s theory of the case is that the assured, while paring the nail, accidentally cut the little toe upon his left foot; that senile gangrene resulted therefrom, necessitating amputation of the leg; and that death ensued, within the terms of the insurance. The policy insured the deceased, subject to the by-laws of the company and to the conditions indorsed thereon, against personal injuries effected during its life “through external, violent and accidental means,” and obligated the company to pay to the beneficiary $5000 in case death should result from such injury within ninety days. One of the conditions bars liability" in case of death “from disease of any form.”

The questions presented for our consideration are:

1. Has the plaintiff proved that the deceased, in paring the nail, cut his toe?

2. Should the cutting in such case be considered an accident within the meaning of the policy ?

3. Can it be held to have caused the senile gangrene ?

! Considering the first of these questions, the evidence relied on as showing that the deceased cut his toe is the testimony of the attending physician and that of the son of the deceased. The p>hysician, upon his direct examination as a witness for the plaintiff, had apparently indicated that he intended to testify to what his patient had told him as to the origin of the trouble, and the counsel for defendant objected “to “ any evidence by the witness as to what Kling had told him as to his bodily condition or any wound accidentally inflicted upon himself in “ trimming or cutting his corns,” and the court overruled the objection. And thereupon the witness made the following statement, to-wit: “I “ inquired as to the cause of it, and was told by the family that in cut- “ ting his toe nails, or corns, a few days previous, he had injured his “ toe. At the time that I saw him, it was not possible to distinguish the “ injury on account of the condition of the toe, due to this gangrene.” And on cross-examination he says “I do not know of my positive knowl- edge, that there was any cut on the toe at( all. This disease could “ have started without any cut at all. * * * In Mr Kling’s con- “ dition, that disease would not (have been) likely to have broken out “ without some accidental cause,” etc.

Seymour Kling, the son of the deceased, and of the plaintiff, gives the following testimony on the subject, to-wit: “Blood poison was the “ cause of my father’s death. The blood poison was caused by his cut“ting his toe while paring his toe nails. It was in the beginning of “ May, 1899, that he cut his toe. Prior to the cutting oí his toe, my “ father was in perfect good health.” Cross-examined: “I know that “ the cutting of his toe caused blood poison because the doctor told me “so. I don’t know that-of my own knowledge. * * * I saw my “ father when he cut his toe, it was his little toe on the left foot. I don’t remember whether it was in the morning or evening that my “ father cut his toe. I just happened to go up stairs and I saw him sit- “ ting down in the hall, smoking his pipe and paring his toe nails. I “ did not see him when he cut his toe * * * I saw the toe of my “ father very often. I never examined it before it was cut. It must have been three or four days after my father cut his toe that I heard “ him complain. The toe did not bleed profusely when it was cut. I “ did not see any blood, but I saw the cut.”

There is no other testimony upon the subject. It appears, therefore, that the physician knew nothing of the cutting save whar he was told by “the family.” But if there were others members of the family, besides the son, who knew as -much as, or more than, he, it is fair to presume that they would have been put upon the stand. As they were not, we take it for granted that the doctor obtained his information from Seymour Kling, whose testimonj1- we have quoted, so that what that witness says is practically all there is to show that the deceased cut his toe. But Seymour Kling swears in one breath, “I saw my father when he cut his toe, it was the little toe on the left foot”, and in the next breath, says, “I did not see him when he cut his toe * * * The toe did not bleed profusely when it was cut. I did not see any blood, but I saw the cut.”

The judge a quo found the evidence on this point “unsatisfactory'”, and we are of the same opinion. When the witness says, first, that he saw the cutting, and, then, that he did not see it, it creates an impression of thoughtlessness or irresponsibility; but when he again turns about, and, after giving it to be understood as a last word, that he did not see the cutting, tells us “The toe did not bleed profusely when it was cut”, and that he did not see any blood, but saw the cut, we are at a loss to know what he means. If he did not see the cutting how does he know that the toe did not bleed when cut? He does not pretend to say that his father told him that he had cut his toe whilst paring his nails; how then does he know what he took to be a bloodless cut was in reality a cut inflicted at the .time and under the circumstances testified to by him?

On the other hand, if it be true that a cut upon his father’s toe produced no blood, it would indicate a lack of circulation, which could mean nothing but gangrene whether the toe was cut or not. And, if the toe was in that condition, it is not unlikely that his father was aware of the fact, or at least felt that there was something wrong, and the cutting done by him may not have been accidental, but may have been in the way of experimental surgery. This seems not unlikely from the testimony of the physician as to the condition of affairs when he was called in.

With difficulties and doubts such as are thus suggested, as to the testimony of the only witness who pretends to have any personal knowledge of the alleged accident to the ioe of the deceased, and in view of the fact that no one, not even the attending physician, has undertaken to say that the deceased himself ever said that he met with such an accident, we find ourselves unable to go any further in the case. It is useless to consider the questions, whether cutting one’s toe, whilst paring a nail, is an accident within the meaning of the policy; or whether senile gangrene necessarily results from such cutting, when the fact of the cutting is not established with that reasonable certainty with which the plaintiff is expected to make out his case. The judge a quo, though apparently dissatisfied with the proof upon this point, rejected the plaintiff’s demand upon other grounds. The judgment is correct and is affirmed.


text:
    No. 13,752.
    Eugene Mugnier vs. Theodore Dendinger.
    Syllabus.
    On the Pkincipal Demand.
    X. When an employee, whose pay has not been fixed, has rendered services (evidently services rendered for remuneration), the employer is liable for their value. The court sustains plaintiff’s demand for services rendered in an amount shown to be due by the preponderance of the testimony, it being evident that each party (employer and employee) contemplated, at the time the services were rendered, that something would be due in compensation.
    2. Plaintiff was in charge of business for the defendant, as made evident by the testimony, and the services of the former were not those of a mere workman, laborer, or servant, for his wages, and are, therefore, not subject to the prescription of one year.
    On ti-ie Keconventional Demand.
    3. Plaintiff and defendant were in account, one with the other. Selecting the items of the account and allowing those that the evidence shows are due, the court holds that the defendant is entitled to the amount which is, therefore, credited on the judgment.
    4. There being a balance due after allowing the reconventional demand, a judgment is accordingly rendered.
    5. Judgment amended and, as amended, is affirmed at plaintiff’s and appellant’s costs.
    APPEAL from the Sixteenth Judicial District, Parish of St. Tammany — Reid, J.

      Benjamin Moore Miller for Plaintiff, Appellee.

      Stephen D. Ellis (Benjamin Rice Forman, of counsel) for Defendant.
   The opinion of the court was delivered by

Breaux, J.

This is an action brought by the plaintiff to recover a balance of two thousand and fifteen dollars, for services rendered by him to the defendant while in the latter’s employ.

Plaintiff avers that the work for which he claims remuneration was performed by him about defendant’s bar-room, butcher shop and other business in which defendant was engaged. He claims for this labor, as having been performed, from the 21st day of October, 1892, to the 6 th day of June, 1899, and sets forth that it was worth the amount of forty dollars per month, amounting- to the sum of three thousand two hundred and twenty dollars. In his petition, plaintifE admits that during1 the period he was in the service of the defendant, the latter furnished him board and lodging' which were worth the sum of ten dollars per month, amounting to eight hundred and five dollars, and that defendant paid him from time to time money and goods to the amount of five hundred dollars, entitling defendant to a total credit of one thousand three hundred and five dollars, leaving on this accouns .(that is the labor and service account) a balance due the iDlaintiff of one thousand nine hundred and fifteen dollars.

Plaintiff claims that in 1898 he loaned one hundred dollars to the defendant, which is still due him, thus making his claim, after deducting the credits to which he admits the defendant is entitled, two thousand and fifteen dollars.

The judge of the District Court found that the defendant is indebted to the plaintiff in the sum of fourteen hundred and twenty dollars. He allowed defendant’s credits to the amount of eleven hundred and five dollars on his reconventional demand. PlaintifE, in his answer to the appeal, sets out that the judgment of the District Court in his favor should be sustained and affirmed, save that the judgment should be amended by increasing the amount to the amount claimed and prayed for in his petition.

The defendant appeals from the judgment and urges that he, instead of being a debtor, is entitled to a judgment against plaintiff in the sum of-«twelve hundred and four 66-100 dollars.

Hereafter, in passing upon the plea of prescription of one and three years pleaded by plaintifE in bar of defendant’s reconventional demand and, on the other hand, the plea of prescription pleaded by defendant in bar of plaintiff’s demand, we shall take notice of the fact that plaintiff and defendant were in account, 'one with the other. In 1892, plaintifE became a servant or mere laboring employee of the defendant. Prom the position of mere laborer, plaintiff, while in the defendant’s employ, we have noted, rose high enough to become a money lender to his employer. There were different pursuits which required the attention and care of'this employer. lie was the owner of a bar, a butcher shop, a barber shop; he was a farmer, he hauled freight, drove cattle, dug wells, and followed other pursuits as they presented themselves.

It appears that plaintiff was young, active, and industrious. He was useful as an employee and was trusted by his employer. He had charge of some of the varied pursuits of the employer, and, we infer, managed them as he, to some extent at least, deemed proper. He had a place at his employer’s table and for a considerable time occupied' one of his employer’s houses. The daughter of the employer became his wife and it follows that he became one of his employer’s family.

We have seen that the plaintiff values his services at forty dollars per month. This brings up the first question for our consideration, being the claim for services rendered by plaintiff to defendant as an employer. lie values these at the rate of forty, dollars per month, making the total allowed by the judgment for three years prior to the date the suit was brought. (There were claims for work performed and services rendered, prior to the three years before the suit was brought, which were rejected, as prescribed, by the District Court). We agree with this part of the judge’s decision, as well as the decree in so far as it found the value of plaintiff’s services as being as before stated. - We also agree with the judgment as relates to the one hundred dollars lent. The amount of this loan is not denied by the defendant, who virtually admits that it has not been returned. This completes our review of plaintiff’s claim for work and services.

With reference to the reconventional demand, plaintiff specially attacks three items allowed by the judgment appealed from,' on the ground that these claims are not sustained by the evidence. We will give these claims- further consideration and decide them in a moment, while passing upon defendant’s argument in support of his claims pleaded in his reconventional demand.

The defendant filed an exception that the plaintiff’s petition is vague and indefinite. We pass to his answer, as we have not found that his exception raises objections sufficient for the dismissal of plaintiff’s suit.

We do not consider that defendant’s claim for board should be increased. The facts of the case lead us to infer that the amount admitted by plaintiff as due by him for board is ample compensation. Tire question of whether it was defendant’s intention to charge is not one, in view of the circumstances, to which we deem it proper to give a controlling effect in any event. A number of the debits and credits of plaintiff and defendant seem to have been charged without giving notice of the intention to charge lor the value of the work done or service rendered. As relates to the debits and credits, one of the .parties was as silent and indifferent as the other. There is testimony sustaining defendant’s charge that plaintiff rendered services of very little, if of any, value. Others, and they constitute the weight of the testimony, are equally as positive that they were worth the amount before stated. Several witnesses testified that they were worth the amount charged and his board. We think it proper, as before stated, not to make any change as relates to the item for board.

• Plaintiff admits! that the defendant paid him at different times in goods and money the sum of five hundrpd dollars, including, as we take it,- a bill for groceries of one hundred and seventy-seven dollars, not included, defendant urges, in the first mentioned amount. The facts show, we thirds, that it must have been included in the amount just stated above. The evidence sustains the admission as to its correctness only in case this last sum be taken as going to make up these five hundred dollars.

The charge for rent allowed is larger than is claimed in the pleadings. In the answer, and in the defendant’s brief, the sum is set out as being one hundred and eight dollars, which appears correct when considered with reference to the testimony as relates to this item.

Plaintiff owes for watermelons which were cultivated and sold for account of his employer, the defendant, in the amount of twenty-five dollars. The item for the swine slaughtered by plaintiff and disposed of for his account is increased to sixty dollars. Plaintiff took possession of thirty-two head and has eleven remaining. The value of those slaughtered, it is stated in evidence, is three dollars each.

Thej facts in evidence render it evident that the friendship which existed between the employer and the employee was succeeded by anger and dislike. Such conditions and changes are unfavorable to correct accounts running over a number of years of business between parties. We have selected from the testimony, which is exclusively oral, such items of debit or credit as we think supported by the preponderance of the testimony. Stating the account, it stands as follows:

Amount due plaintiff ...................................$1450 00
Due defendant for money and goods admitted by plaintiff to have been received.................................. 500 00
House rent ........................................ 108 00
Cash received from sale of hides.......................... 58 00
Bill collected for meat.................................. 50 00
Stoves ................................................. 14 00
Hogs .................................................. 63 00
Chickens ............................................... 5 00
Watermelons ........................................... 25 00
$ 823 00
Board ................................................. 330 00
Total amount allowed on reconventional demand........$1153 00

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended by allowing the demand on reconvention to eleven hundred and fifty-three dollars ($1153.00), leaving a balance due by defendant to plaintiff of two hundred and ninety-seven dollars ($297.00).

As thus amended the judgment appealed from is affirmed at appellee’s costs.

Rehearing refused.


text:
    No. 13,758.
    Receivership Sheets Lumber Company, Limited. Final Account of Receivers and Rules by Creditors.
    Syllabus.
    On Motion to Dismiss the Appeal on Ground op Want op Jurisdiction Rations Materias.
    1. Appellant sought to have the funds re-distributed in order to collect an amount less than the lower limit of this court’s jurisdiction. A re-distribution of the funds was the object, and, to that extent, brought the case within the court’s jurisdiction.

      On the Merits.
    1. A final account was homologated. The proceedings were en concurso and the judgment had the effect of res ju/Mcala.

    2. Creditors who have contested one another’s claims ere concurso, in proceedings arising on a receiver’s account, are bound by the decree.
    APPEAL from the Sixth Judicial District, Parish of Ouachita— Rail, J.

      Andrew Augustus Gunby for Joseph Bowling Co. and other creditors, Plaintiffs in Buie, Appellees.

      Hudson, Potts & Bernstein and Wise & Herndon for Receivers, Defendants in Rule, Appellants.

      Stubbs & BRussell for Ouachita National Bank, Mrs. Elvira Arrant, W. L. Morris & Co. and Isaac Baer, Defendants in Rule, Appellees.
   The opinion of the court was delivered by

Breaux, J.

The receivers appeal from a judgment' of the District Court dismissing an account which they had filed after the cause had been decided both by the District Court and by this court on appeal. Receivership Sheets Lumber Co., Ltd., 52 Ann. 1337. And this appeal is, also, from this judgment rejecting the credit of nineteen hundred and eighty dollars claimed by the receivers. After the cited case had become final, as just stated, attorneys for the receivers filed an account which had been prepared, the receivers aver, in accordance with the decree in the case cited supra, showing a percentage of 61.84 to be paid each ordinary creditor.

A number of creditors averred that they were willing to settle on that basis, but the receivers, in the end, declined to pay any of these claims. Other creditors opposed this account from the first, on: a number of grounds and asked for a rule to issue on the receivers to show cause why writs of execution and distringas should not issue against them individually on their failure to pay to them the amounts to which they were entitled from the funds in the possession of the receivers. After this opposition had been filed, the receivers appeared in court and alleged that since the filing of their previous account as receivers of the Sheets Lumber Company, Limited, and since the judgment before mentioned had been rendered, they had discovered that a note paid by them, amounting to one thousand nine hundred and eighty-two dollars, was erroneously omitted from their account; that this note had been given by the Sheets Lumber Company, Limited, for the purchase price of the real estate upon which its saw and planing mill plant was located and constructed and it was secured by a special mortgage and privilege upon the real estate in question and entitled to be paid as a privileged claim by preference to the ordinary creditors; that when this note was paid, it was deposited with the clerk of court, for the purpose of cancelling the mortgage and vendor’s lien and, through error, was omitted iiom thejist of credit items of their account; that no distribution of the funds of the Sheets Lumber Company, Limited, has as yet been made among the creditors.

They ask to be allowed to file a supplemental account and for credit in the sum before stated.

A number of the creditors of the Sheets Lumber Company, Limited, alleging the amount to which they are entitled under the judgment rendered in the case cited supra, interposed the plea of res judicata and estoppel against the supplemental account. They averred that the receivers, after selling all the property of the company, filed a final account of their administration and a tableau of distribution which was, as before stated, duly homologated. They further averred that the liabilities of the receivers was fixed by a final judgment.

In addition to the receivers who claimed an amount, as before mentioned, another creditor appeared before the court and he also alleged, in substance, that he had a right to recover as creditor, although his claim had not been carried on the receivers account. This creditor, O. M. Keck, claimed ten thousand dollars, evidenced by a promissory note given, he averred, by the company in question to him. He sets up that the receivers inadvertently and erroneously omitted to place him on the list or tableau of creditors. He claimed the right to intervene in the proceedings to protect his interests and to join defendant in the rule and ask that his claim be allowed.

The receivers filed answers to the rules before mentioned and reiterated their claim for the amount of one thousand nine hundred and eighty-two dollars not carried on their account as before mentioned, and further alleged that the amount claimed by O. M. Keck was left off of their account, as before mentioned, and that he is entitled to be carried on the account as one of the creditors. The opposition of C. M. Keck was rejected. He has not appealed. The pleas of res judicata and estoppel to the amended account were sustained and the supplemental account was disallowed and rejected. The receivers were ordered to make settlement under the decrees of the District Court and the Supreme Court. Erom this decree the receivers have taken this appeal.

We take the averment of receivers’ counsel that the appeal is from the, judgment of the District Court, dismissing their supplemental account, and rejecting the credit of nineteen hundred and twenty dollars as clearly indicating the extent of appellants’ claim on appeal This is the only amount mentioned in the supplemental account which appellants sought to have allowed after the account which it sought to amend had been homologated. There was a concurso of creditors which was brought to a close by a final judgment and a decree ordering payment to be made as stated in the decree. None the less, the purpose in presenting the supplemental account and the issue arising relate to the amount to be distributed. We do not consider that the court is without jurisdiction, and we therefore overrule the motion filed to dismiss the appeal on that ground.

This brings us to a consideration of the pleas of res judicata and estoppel.

The receivers presented to the court a final account for homologation and a litigation ensued to which, from the first, they were parties. They were bound by the judgment rendered contradictorily with them. The judgment decreed the fund in their hands to be paid to the creditors in rank and amount as set forth in the decision cited above. Not an issue was left open or unnoticed, as relates to the mass of the estate or the distribution to be made. The receivers cannot now raise issues and demand that other credits be allowed. They, particularly, are bound by their account after it has been homologated and the judgment has become final. The rule which holds good in proceedings en concurso holds good here. When the creditors'have contested the validity of each other’s claims in proceedings en concurso, they are bound by the final decree rendered.

The court sat in judgment on all claims. The judgment found that the total amount to be distributed was eighteen thousand three hundred and three 69-100 dollars, and allowed credits to which the receivers are entitled. We do not think it permissible to reopen the judgment in order that other credits of a date anterior to the judgment may be deducted. A final disposition was made of the cause of each. The receivers who have stood by their account as correct cannot be heard to urge that it was not correct for the reason that they overlooked a claim which they held. The rule that the thing adjudged must be taken as true is inflexible. We have no authority to set aside that which has been settled and has become final, and in every respect the thing adjudged. No supplemental account can be filed with a view of amending an account which has been homologated and has received the final approval of the court.

The other creditor who, also, sets out that, through error, his claim has not been carried on the account, as we have noted, is not an appellant, for, though he intervened in the proceedings, he did not perfect his appeal to this court.

For the reasons assigned, the judgment appealed from is affirmed.


text:
    No. 13,686.
    State ex rel. Charles C. Buck vs. Robert Hingle, Judge Twenty-Ninth Judicial District Court for the Parish of Plaquemines.
    Syllabus.
    Writs issued under the supervisory jurisdiction of the appellate court will not be made peremptory when the question involved is brought up for review on appeal after the rule nisi has been issued.
    In view of the facts, the restraining effect of the rule wisi, which was issued, remains in full force and effect until the issues shall have been decided ou appeal.
    PPLICATION for a Writ of Mandamus.

      Gurley & Mellen for Eelator.
    Eespondent Judge pro se.

      E. Howard MeGaleb for Jessie H. Massie and Frank C. Mevers, Sheriff, Eespondents.
   The opinion of the court was delivered by

Breaux, J.

Under the foreclosure proceedings, property 'of the Plaquemine Tropical Fruit Co. had been seized and was advertised for sale. An injunction was applied for to stop the sale on the ground that two notes of which Charles Louque was the maker, one for ten thousand dollars ($10,000) and the other for five thousand dollars ($5,000) were without consideration, having been given in payment for kind to which the vendor had no title.

It appears that in 1891, Eobert M. White, claiming to be the owner, sold lands described in relator’s petition to Charles Louque and that Louque sold these lands to the Plaquemine Tropical Fruit Co. Eelator avers that Louque acted for him, Louque having no individual or personal interest in the transaction.

Eelator represents in his application for .this writ that he was evicted from nearly all the land which White, through Louque, sold to him, that instead of having acquired about thirty-two thousand acres, which relator contends were embraced within the description of the proper Ly sold, the Plaquemine Tropical Fruit Co. acquired only one thousand three hundred and twenty acres.

The judge of the District Court refused to grant the injunction for which the relator applied. Upon his refusal, relator applied to this court for an alternative writ of mandamus commanding the district judge to issue writs of injunction prohibiting the sheriff from selling the property seized and prohibiting the seizing creditor from proceeding further in the foreclosure suit, and relator prayed for a writ of certiorari in the alternative, directing the district judge to send up the record.

The usual order nisi issued on the application. This court further ordered as part of the rule: “And in the meantime, and until the further order of this court, let all proceedings on the part of said Jessie II. Massie in said two foreclosure suits, first above mentioned, be restrained and prohibited, and that Frank C. Nevers, sheriff of the parish of Piaquemine, be prohibited from making the sale of the property advertised by him under writs issued in said suits, and described in the proceedings therein.”

About the time that the rule nisi was issued, relator obtained an appeal to this court from the order of the District Court refusing to grant an injunction. The cases were argued on appeal and were submitted for decision.

On appeal the questions are precisely the same as .those presented on this application. For this reason, and also for the reason that it is settled that writs issued under our supervisory jurisdiction will not go to a court to remedy an asserted error reviewable on appeal and that the right of appeal will exclude other remedies, it is ordered, adjudged and decreed that the writs applied for be rejected and the order nisi dismissed, but that the restraining order remain in full force in aid of the appellate jurisdiction until the final disposition of the ease on appeal.

It is further ordered, adjudged and decreed that the costs be taxed on the one cast in the anneal.


text:
    No. 13,654.
    Leonard S. Frere et al. vs. Ham'lton Derouen.
    Syllabus.
    In a petitory action, where the plaintiff claims a small tract of land, which, as a fact, forms a part of a large plantation, and appears to have been so considered for nearly thirty years, during which the plantation has changed hands several times, such plaintiff, in order to recover, must identify the tract claimed by him and must show, affirmatively, that it could not reasonably have been included in the description whereby the plantation was sold. Otherwise, the defendant in such action is entitled to the benefit of the doubt.
    APPEAL from the Nineteenth Judicial District, Parish of Iberia — ■ Hacker, Judge ad hoc.

      Broussard, Dulaney & Dunbar for Plaintiff, Appellant.

      Todd & Davis for Defendant, Appellee.
   The opinion of the court was delivered by

Monroe, J.

This is a petitory action brought by Leonard S. Erere and Leopold Smith, as heirs of Leonard J. Smith, deceased, to recover two tracts of land, situated in the parish of Iberia, now in possession of the defendant; the one tract being described as thirty acres, included in the “Parc Perdu Plantation,” and the other tract, as lots 3, 4, 9, 10 and 11, Section 3, Township 12, S. Range 5 E., containing 58 60-100 acres. It is admitted that the title of the defendant to the thirty acre tract is good. The court is, therefore, called upon to determine only as to the title to the tract secondly described.

The defendant sets up title by purchase and pleads the prescription of ten years, acquirendi causa.

The following evidence appears in the transcript, viz:

1. An act of sale, of date April 18, 1857, from Philip Hickey and the heirs of Anna Hickey, his wife, to Leonard J. Smith, of certain land described as lying on the northeast side of Bayou Parc Perdu, in Townships 11 and 12, South, Range 5 East, originally granted to Pierre Petit-, and measuring twenty arpents front on the bayou by forty ar~ pents in depth; also thirty acres, to be selected by the vendee from a tract owned by the vendor lying on the southwest side of said Bayou Parc Perdu in said townships 11 and 12, originally granted to Pierre Petit, and measuring thirty arpents front by, eighty in depth.

2. An act of sale, from Joseph N. Young to Leonard J. Smith, of date J an. 8th, 1866, of a “certain tract of land or plantation * * * “ known as the ‘Parc Perdu Plantation’, containing 3000 arpents of “land, more or less, bounded, North, by lands of Emile Stout and “ others; East, by Victoria Romero, L. J. Smith and public lands; “ South, by Francis Segura; and West, by public lands * * * be- “ ing the same acquired from Philip ITickey and the heirs of * * * “his wife * * * on the 4th day of March, 1859 * * * and “ being the same upon which the vendor now resides”.

3. An act of sale, of the same date as the above, and from the same to the same, of “a certain tract of land adjoining the Parc Perdu “ Plantation * * * on the West side of the Petit Ansc Bayou, and “ containing 93 acres, more or less, being the same acquired from John Rykosky in 1860.”

4. An act of sale, of date April 9th, 1870, from William Robertson, Testamentary Executor of Leonard J. Smith, deceased, (confirming an adjudication of April 6th, 1870), to John Bilingslea and H. J. Souder of the Parc Perdu Plantation, and the 93 acre tract, both as hereinbefore described.

In this connection, it may be remarked that the proces verbal of the auctioneer, contains the following recital, to-wit: “I, J. Narcisse Landry, auctioneer, * * duly authorized and empowered by the “aforementioned commission to sell * * * all the property be-" “ longing to the succession of Leonard J. Smith, deceased.”

It further appears that the property as thus acquired by Billingslea and Souder passed through different hands, and was purchased by David Sandoz, March 10, 1877, and that, Sandoz dying, it "was inherited by his daughter, Mrs. Duchamp, wjio sold it, April 10, 1896, to the present defendant. In this last sale the parties seem to have gone out of the way, for reasons which are not apparent, to add something to the description by which the title had previously passed, though, with the exception of fifty arpents, which had been conveyed to one Ilulin, in 1891, we think it reasonably certain that the property sold was the same as that which had been adjudicated in the succession of Leonard J. Smith in 1870.

The description referred to is as follows, to-wit:

“ The Pare Perdu Plantation, situated on Bayou Pare Perdu in “ Iberia Parish, * * * being section 43, in township 11, S. R. 5, “ East, (less fifty arpents sold in 1891 to Hulin and others * * y) “ said plantation consisting further of sections 38 and 39, entire, in “ township 12, South Range 5 East, containing about throe thousand “ arpents; also fractional section 4, Township 12, South, Range 5 East, “confirmed to John J. Smith by certificate No. 7097, comprising 93 “ acres, adjoining the aforementioned section No. 38 on the North; and “also lots 3, 4, 9, 10 and 11, section 3, T. 12, S. R. 5 East, adjoining “ section 4 mentioned, containing 58 60-100 acres, as per patent to “ Leonard J. Smith, March 4th, 1858, from the State of Louisiana, No. “ 5285, held by Mrs. Duchamp, vendor, and herewith delivered; the “ land described in the first three sections 48 T. 11 and- 38 T. 12, all “ Range 5, being covered by the original confirmations to Pierre Petit “as per Nos. B1966 and B2070 of the American State Papers; said “ various tracts containing three thousand one hundred sixty-three “ 25-100 (3163.25) arpents of land, acquired by vendor by inheritance “ as sole heir of her father, David Sandoz, deceased.”

The foregoing (which is transcribed literally, errors of punctuation, etc., included) contains the only reference which we find in the evidence to the particular tract which is the subject of this litigation. There is an absolute failure to identify the lots which are claimed by the plaintiffs; and as we assume that the map found in the record is the best that can be done in that direction, it would seem to follow that the plaintiffs would take nothing even if they had judgment for said lots according to the prayer of their petition. The evidence does show, however, as we think, and as the judge a quo thought, that the lots in question as incorporated in section 3, T. 12, S. R. 5 E., have been merged for more than thirty years into the Parc Perdu Plantation and were thus sold in the succession of Leonard J. Smith, in 1870.

It will be observed that the sale in the succession of Leonard J. Smith was made under an order to sell all the property belonging to the succession, and was a sale of the Parc Perdu Plantation, containing three thousand arpents of land, more or less, between designated boundaries; in other words, a sale per aversionem. The evidence, such as it is, does not inform us that the lots here claimed are not within that description; on the contrary, we understand that, as a fact, the section 3, (within which said lots arc supposed to exist, and which is distinguished on the map filed in evidence, though the lols are not), forms part of the continuous body of land, under the same fence, which is known -and dealt with as the Parc Perdu Plantation.

It is true that the prooes verbal of the auctioneer adds to the description, as given above, the statement, “The plantation * * * herein “ conveyed being the same acquired by the late Leonard J. Smith from “ Joseph N. Young, per act of sale before William Robertson, notary, “ on the 8th of January, 1806,” etc. And it is suggested that this language controls the description, and that no other property passed under the title, as made, than such as had been acquired from Young. To which it is added that the 58 acres in controversy were acquired by Smith, in 1858, from the State of Louisiana, and hence, could not have been acquired by him from Young in 1866, as part of the Parc Perdu Plantation.

These conclusions, we think, would be entitled to more serious consideration if the plaintiffs had identified the tract which they are claiming, but they have not done so, and we are not prepared to hold, from any evidence before us, that said tract is not included in the description by which Smith purchased from Young, notwithstanding the alleged previous acquisition from the State. Assuming that it is included in Section 3, as represented upon the map which we find in the record, it could, naturally and geographically, form part of a plantation made up of the Pierre Petit tract, and we entertain no doubt that it did form part of the Parc Perdu Plantation as made up of that tract and as owned by plaintiffs’ ancestor, Leonard J. Smith, and that it was believed to have been included in the sale of that plantation at the instance of Smith’s executor. The case is one, which, from any point of view, demands conclusive proof on the part of the plaintiffs. They have not supplied it, and their demand was properly rejected. The judgment appealed from is, therefore, affirmed.

Breaux, J., recuses himself, having been of counsel in matter of investigation of the title at the time that Sandoz and other,-, became the owners of the Pierre Petit tract.


text:
    No. 13,596.
    Clement Dabezies vs. Bernard Barthe et als.
    Syllabus.
    1. One may sustain an action to set aside a hinderanee to the execution of his judgment (which hinderanee is in the shape of a mortgage averred to be without consideration), defendant having no other property liable to seizure.
    2. The action was en declaration de simulation and the allegations of the petl tion were not such as rendered it necessary for the court to order the plaintiff to elect whether he would proceed by way of a revocatory action, or en declaration dc simulation.

      3. Plaintiff, alleging that a mortgage is simulated, attacked all the asserted consideration of the mortgage, including the asserted consideration of an old mortgage which entered into and formed part of the new mortgage specially attacked. In effect, both mortgages were attacked.
    On the Merits.
    4. Plaintiff's claim had not been novated. It dated from a time anterior to the claim of defendants, and is not subject to the objection that plaintiff could not attack an act of a prior date to that of plaintiff’s claim. Besides, one not a creditor at the date of the execution of an act may yet show its simulation.
    5. The facts and circumstances were such as to shift the burden of proof from the plaintiff to the defendant. After the onus of proof had shifted because of the evidence of simulation, defendants failed to sustain then-position in the cause by proving that the mortgage had the consideration alleged.
    APPEAL from the Civil District Court, Parish of Orleans — 81. Paul, J.

      Charles J. Theard and Emile J. Metal for Plaintiff, Appellee.

      James B. Rosser, Jr., and Geo. W. Flynn for Defendants, Appellants.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff had attacked two mortgages as simulated. They were executed in the conventional mortgage form -by Bernard Barthe, one in favor of his son for fifteen hundred dollars and the other in favor of his daughter for the sum of thirty-five hundred dollars, and each is dated the 21st day of February, 1899.

Plaintiff avers that he has obtained a judgment against the mortgagor, Bernard'Barthe, for the sum of twenty-two hundred and two and 5-100 dollars with five per cent, interest per annumand costs, and that Bernard Barthe, in order to prevent its execution, and to escape from the payment of his judgment made the mortgage attacked and had it recorded, as well as the mortgage for fifteen hundred dollars, xo which we will hereafter refer.

He further avers that Barthe, his debtor, has no other property; that these mortgages are simulated and fraudulent and without the least consideration; that in order to execute his judgment as ho desires, it is necessary that these simulated acts of mortgage be erased from the records.

Defendant, in the first place, sought to meet plaintiff’s demand by interposing an exception setting out that plaintiff’s petition is vague and indefinite; that this action is premature; that plaintiff has never attempted to execute his judgment against his debtor, Barthe; and that plaintiff should be ordered to elect his action, either revocatory or en declaration de simulation.

Before taking up the decision on the merits, we will review the grounds of the exception and decide whether or not the exception was correctly overruled in the District Court.

■ As relates to the first objection in the exception, viz: that plaintiff’s petition is vague and indefinite, we think that the cause of action is stated clearly enough to enable defendant to meet plaintiff’s suit. Nothing in the pleading or in argument shows in what respect the defendant had cause to complain on this score. Defendant’s brief is entirely silent on the subject.

We pass to the next ground contained in the exception, viz: that the action is premature and that plaintiff has never sought to execute his judgment, and that, if he had, there is enough property owned by defendant, Bernard Barthe, to satisfy his judgment. In our view, plaintiff is now seeking to lay the foundation for the execution of his judgment. There is nothing premature in this step looking to the enforcement of his judgment. Preliminarily, he may have a mortgage can-celled if it be void and stands in the way of recovering an amount to which he has a right.

Instead of a direct seizure under a ft. fa., he may resort to a suit and by it avoid, or seek to avoid, costs and delay and even damages which may grow out of an illegal seizure in case the act attacked is not simulated as he has conceived it to be. The debtor’s property being the common pledge of Ms creditors, a direct action may be brought to remove prejudicial impediments put on the title.

While, by the direct action, plaintiff may, also, perhaps, be made to pay for an error in his attack (in the way of costs and other expenses,! the probabilities are that they will not be as large in a suit such as this as in a direct seizure. There can be no possible objection, under the rules of pleading, to the assertion of a right by a direct action instead of by a direct seizure, when the creditor avers that the only, property which the debtor owns is that upon which his mortgage '■■ests and that it is illegally encumbered as before stated.

In answer to the ground set up by way of exception (hat plaintiff’s debtor, Bernard Barthe, had enough property to satisfy the debt without the necessity of this action, we can only say that the assessment o f the property for taxes, the amount of insurance on the property, and other testimony relating to the value of the property mortgaged do not sustain the averment to which we have just referred; that is, in substance, that a seizure should have been made and no direct action should have been instituted.

The application for an order to compel plaintiff to elect, which is made the third and last ground of exception, is, in our view, equally as untenable. If simulation be not fraudulent, it is because it is not prejudicial to the rights of the creditors. It concerns no one, Hut if it be to the prejudice of any one, then it is fraudulent; and the fact that one alleges tliat a mortgage is a fraudulent simulation, does not, by characterizing it thus, set forth a revocatory, instead of an aclion to have the simulation pronounced. The action is an action en declaration de simulation. We, therefore, conclude that the -exception was properly overruled by the judge of the District Court.

After the exception had been overruled, defendants filed ah answer admitting that Bernard Barthe was indebted to plaintiff as alleged, but denying all of plaintiff’s charges of simulation and pleaded the verity of their mortgage.

On ti-ie Merits.

The issues are issues of fact almost exclusively. The mortgage for fifteen hundred dollars (one of the mortgages attacked by plaintiff), was executed by the mortgagor in favor of his son, Louis E. Barthe, and the mortgage for three thousand five hundred dollars was executed by the same mortgagor on the same property in favor of his daughter. At the time oí the confection of these mortgages, priority was given to the mortgage for fifteen.hundred, dollars. The son of the mortgagor, Louis P. Parthe, testified that his father was indebted to him in a large amount and that he, the son, was indebted tq his sister; that he arranged it so as to pay his sister with his father’s note secured, by mortgage for thp thirty-five hundred dollars, before mentioned, and that he received the fifteen hundred dollar note in part payment of his father’s indebtedness. lie, however, although indebted to his sister, retained priority for the note of fiftoeit hundred dollars which he transferred, in the course of his own transaction, to a third person. The reason for giving this preference to tips note is not, under the circumstances, clearly and satisfactorily given by the testimony.

The brother, although he asserts that his sister was his creditor, has not established how it was that she became his creditor. To Che following' question: “Do you know where your sister got lior money she loaned to you?” he answered: “I gave her five dollars a week and now two dollars.” So that, according to this, the consideration, as relates to the sister, of the mortgage indebtedness to the brother secured on the father’s property was the money, the few dollars, given each week by the brother to the sister. At another time during the trial something was said about moneys earned many years ago by the sister, but this is equally as unsustained and unexplained as the other items of revenue which defendants assert constitute part of the consideration of the mortgage. We will not dwell on each of the items of asserted indebtedness of the father to his children growing’ out of asserted loans made by them to him. We have seen that the sister claims to have saved from her scant revenue a comparatively large amount. The testimony does not sustain the claim' to a sufficient extent as to enable us to pronounce judgment in her favor. Iler mortgage alone is bpfore us for review. The mortgage in favor of her brother, Louis P. Parthe, is held by an innocent third person and for that reason is not before us for review and decision. It was decided in the District Court that this mortgage indebtedness was in the hands 'of a third person by transfer of the mortgage and held in good faith, and that, in consequence, it became a valid claim. No complaint is made here against that portion of the decree of that court. It may he that the loans claimed were made by the sister as a consideration for the second mortgage, i. e., that for thirty-five hundred dollars, but if they were it is entirely exceptional and extraordinary. With the-testimony before us, the mortgage cannot stand the test of scrutiny. The age of the young lady, the character of her employment for which she received sums very little in amount, and the donations made to her render her claim too uncertain for judicial sanction. The reality of the loans and the mortgages is not rendered probable by experience or reason.

. Simulation is not susceptible of actual demonstration. The conflicting- evidence raised a presumption which the other testimony did not sufficiently explain and rebut. We have seen that defendants contend that the asserted indebtedness claimed by them and made the consideration of the mortgage in question is of a date anterior to the date of plaintiff’s claim and prior, to the date of the mortgage attacked. Defendants contend that as their claims are of a date prior in time to that of plaintiff, that he, plaintiff, cannot, for that reason, have their mortgage decreed void. This matter of prior date of defendants’ claim is not conclusively established by the evidence. The pleadings of plaintiff put at issue the validity of the mortgage and the validity of the consideration and by his averments and pleadings hé seeks to have both decreed unreal. These attacks relate back to the date of the asserted consideration. We are inclined to the opinion that plaintiff’s claim is of a prior date to that of defendants.

Moreover, a creditor can sustain a suit to annul a contract made before his debt accrued, if it appears that at the time of making the contract, the debtor sought to prejudice the rights of the future creditor. Fraus omnia corrumpU. A creditor, though not a creditor at the date of the simulated contract, may yet show its simulation. Mossop vs. Creditors, 41 Ann. 296.

Defendants also contend that there was nothing unusual or suspicious in connection with the execution of the second mortgage of date 21st February, 1899. (These mortgages embraced in a completely new form, mortgages that had been executed between the same parties in 1896.)'

To support the contention, they aver that the execution of the mortgage attacked by plaintiff was not conceived by any one of the parties defendant or appellant; that the new act came about entirely from the suggestion of the notary of Louis P. Barthe when he came to him to see if he could negotiate the fifteen hundred dollar note of March 10th, 1896. There is no question of the good or bad faith of the notary. He only did that which any well posted notary would Ijave done. He doubtless only suggested that, in order to enable him to succeed in negotiating past due paper (dating from 1896), it should he exchanged for new and unmaturéd paper. He, as we understand, had naught to do with the consideration of the paper. There is nothing in this which can possibly render it evident that the mortgage had consideration.

We agree with the district judge that the consideration of the mortgage claim is not at all evident, It only remains for us to affirm the judgment.

For reasons assigned, the judgment appealed from is affirmed.

Rehearing refused.


author: Nicholls, C. J.

text:
    No. 13,578.
    Mr. and Mrs. Frank Bryant vs. D. M., Thomas S. and Allan Sholars.
    Syllabus.
    1. A person who constructs a building upon his own property with windows in it upon the side facing his next neighbor’s property, so that the privacy of the latter’s residence is interfered with, cannot be made by his neighbor by injunction to close the windows. The latter’s remedy is to establish screens upon his own property.
    2. Where a person in constructing a wooden building on his property with windows in the side facing his neighbor’s property, places it so near the boundary line that a portion of its weather-boarding crosses that line over upon the neighbor’s property, the latter cannot on that account force the owner by injunction to close the windows in aid of the privacy of his establishment. He has the right to force the owner to move the building entirely back on his own property.
    3. Article 684 of the Civil Code which authorizes every proprietor adjoining a ’ wall to make it a wall in common by reimbursing the owner of the wall one-half of the value and one-half of the value of the soil upon which the wall is built, if the person who has built the wall has laid the foundation entirely upon his own estate, applies only to “walls” properly so called; it does not refer to enclosures in general; the Article was from public policy in aid of general interests for the safety and solidity of brick or stone buildings, not in aid of the right of one neighbor to secure the privacy of his property by restriction upon the rights of'ownership of his next neighbor. The side of a wooden building is not a “wall”. It may be made to give place to the right of the neighbor to have a wall built in lieu of it but under proper circumstances and conditions.
    4. One neighbor constructing a wooden structure on or near the line separating his property from that of his neighbor, with windows in the side facing the latter’s property, does so as an act of ownership and in subordination to the ultimate exercise by his neighbor of his own right of building. He acquires no right of servitude of view by prescription as against his neighbor’s legal rights in the premises.
    J^PPEAL from the Civil District Court, Parish of Orleans — King,

      Hughes & Favrot for Plaintiffs, Appellees.

      D. M. and Allan Sholars for Defendants, Appellants.
   The opinion of the court was delivered by

Nicholls, C. J.

Plaintiffs alleged that they were the owners of certain described property fronting on Philip street. That adjoining the same was a portion of ground forming the corner of Prytania and Philip streets, owned by the defendants. That on the line separating the said property there was a party fence and upon the property of the Messrs. Sholars are located a two-story shed-and other sheds. In the two story shed are placed living rooms of some kind in the upper story. That this two-story shed was built directly upon the line of the property of petitioner, and had always been without any openings save one small opening for the admission of light, and through which no view of petitioners’ property could be obtained; that the wall that adjoined petitioners’ property on this shed was, as petitioner believed and had reason to presume, and had always been, a party wall, but, that in order to avoid any contentions upon the score as to whether or not it was a party wall within the contemplation of law, petitioner had for greater certainty tendered to said Dennis M. Sholars and Allan Sholars, for the Messrs. Sholars, the sum of forty dollars ($40) for one-half the value of this wall, which forty dollars petitioner believed to be a fair compensation for one’-half the value of said wall, as she had been informed by competent persons versed in the values of such walls; and that said tender had been refused by the said D. M. and Allan Sholars for the Messrs. Sholars; that she had made the said tender in order to ensure to herself, and the future owner or owners of the properties, the rights of her interests in said wall as fixed by law; that on or about thcr 28th day of September, 1899, defendants, without lawful authority, or without securing from petitioner permission therefor, undertook to entinto the said wall three openings or windows for the living rooms of the upper story which gave to the defendants a full view upon petitioner’s property and into petitioner’s house; and immediately upon their undertaking to cut those openings petitioner made a protest to the defendants concerning the placing of openings in this wall which had been always intact, with the reservation above set forth.

She represented to them the inconvenience that would result to her and to her property, but the defendants persisted in cutting the said openings despite petitioner’s protests and objections thereto; that petitioner went further and was willing to make to the defendants concessions for venitilation if they would close from view of petitioner’s property the said opening by placing therein such stationary blinds as were suggested by petitioner, through her attorneys; that the defendants, having accepted these conditions with petitioner’s attorneys, and having agreed to put in the stationary blinds as set forth by petitioner’s attorneys, asked for delay wherein to consúmate the agreement amicably and to the satisfaction of petitioner and her attorneys, but, subsequently, informed petitioner’s attorneys that they declined to carry out the agreement they had verbally entered into with petitioner’s attorneys, and declined to put in the stationary blinds as set forth and previously agreed on by them, and they aggravatingly and unlawfully persisted in maintaining .the openings as originally fixed by them, disregarding petitioner’s convenience or her rights in and to the said wall.

That, finding all attempts to an amicable solution of the difficulty without avail, petitioner, in an abundance of caution, made to the defendants the tender of forty dollars for one-lialf the value of said wall as above set forth which tender had been absolutely and irrevocably refused by the defendants. That this tender was made after due notice given to the defendants, on the 29th of November, 1899, and refused by the defendants absolutely; that the damage, inconvenience and injury that resulted to petitioner by the said illegal maintenance by defendants of the openings referred to amounted to more than two thousand dollars ($2000), exclusive of interest; that the injury was irreparable to petitioner’s property as well by the right of view that was granted thereon as by the view into the openings made by the defendants.

That a writ of injunction was necessary to protect petitioner’s rights in the premises; because petitioner■ was disturbed in the actual and real enjoyment of her property and of the real rights in and to that property; and because the continuance of the acts of the defendants would result — had already resulted- — irreparable injury to petitioner and to petitioner’s property, which said property exceeded in value five thousand dollars.

In view of the premises, she prayed that a writ of injunction issue against defendants, the owners of the property adjoining, as set forth in the petition; first, commanding them to recognize petitioner’s rights as half owner of that wall; that in the event that the court should declare that petitioner was not already half owñer of that wall, then, commanding the defendants to accept the forty dollars tendered by petitioner, and that it be decreed thereafter to be a party wall owned in common by petitioner and the said defendants. Second, that the defendants be enjoined from maintaining the openings set forth in the petition, and that they be ordered to close the same within such time and terms as might be fixed by the court, and to keep the same closed entirely, placing the said wall in precisely and identically the same condition as found by said defendants at the time they purchased said property, and before they placed the openings there. That the said injunction-be maintained and made perpetual; that the defendants be cited to answer and after due proceedings had there be judgment in favor of petitioner, and against the defendants, decreeing the said wall to be a party wall, and commanding the defendants to close the openings as prayed for, and for all general and equitable relief.

After some intermediate exceptions and proceedings unnecessary to recite defendants answered, under benefit and reservation of the exceptions, they had already pleaded, further excepting that the demands in plaintiffs’ petition were inconsistent and could not be maintained in the same action. That the action for the half of the wall and the ground on which it was situated should be brought separately from and prior to the action to close the opening and could not be urged by way of injunction. That the injunction compelling defendants to close the opening could not be granted because plaintiffs were not part owners of the wall and the soil on which it rested, and did not seek to be so decreed. Still insisting on all exceptions and motions before filed and not waiving any of their rights thereunder defendants, answering, denied all and singular the allegations contained in plaintiff’s petition. Defendants admitted that they were tendered by plaintiffs forty dollars ($40) alleged to be the value of one-half of the wall, but specially denied that the forty dollars ($40) so tendered was the value of one-half of the wall. Defendants averred that, as a consequence of the illegal issuance of the injunction, they had been put to great trouble and expense and had been compelled to employ attorneys to defend the action; that the expense and damage resulting amounted to seven hundred and fifty dollars ($7S0).

In view of the premises they prayed that plaintiffs’ suit be dismissed at their cost; that the preliminary order of injunction be set aside, and for judgment against plaintiffs for seven hundred and fifty dollars ($780) damages, and for all costs and for general relief.

The court rendered judgment in favor of the plaintiff, Mrs. Sarah Bryant, wife of Frank Bryant, and against the defendants, perpetuating the injunction which had issued in the case to close the opening in the wall owned by the defendants, reserving plaintiff’s right at any time to have the two story shed removed entirely from her property.

After this judgment was rendered, but before it had been signed, defendants filed a plea of prescription, averring that they and the authors of their title had beeh in the open, continuous and uninterrupted possession of the soil upon which the wall in question rested for more than thirty years. They, therefore, set up in bar of plaintiff’s right to recover the prescription of thirty years.

The court refused to entertain this plea on the ground that it was as a substantive plea set up too late, but permitted the defendants to set it up in a motion for a new trial.

Defendants applied for a new trial on the ground that the judgment was contrary to law and the evidence in this, to-wit:

First — That the court was without jurisdiction ratione materiae, the value of the- wall in question, as shown by the pleadings and proof, being eighty dollars ($80), and the one-half ownership of said wall being the issue before the court.

Second-DIhat the defendants and the authors of defendants’ title had acquired by thirty years prescription the soil alleged to be the property of plaintiffs on which the wall in part rested, and which, by reason of plaintiff’s alleged ownership, was made the basis of the judgment rendered.

Third — That if said soil had not been acquired by defendants and the authors of defendants’ title, plaintiffs were not entitled to the remedy afforded by the judgment rendered herein, on the further ground that no such right was granted her by law, and for this reason that she was especially denied such right by Article 488 of the O. O. and the decision of the Supreme Court in 11 Ann. 465, and for the further reason) that she was specially given other rights and remedies in the premises by Article 508 of the O. O. and 26 Ann. page 366, and it was tp these she must look for relief.

Fourth — That the judgment was unauthorized, being predicated on an issue not before the court and afforded plaintiffs other and further and different relief than that prayed for or alleged to be her due.

The court overruled the motion and signed the judgment, and defendants appealed.

Plaintiffs moved to dismiss the appeal on the ground that — ■

First — -Because, if $2000 is the amount involved in this appeal, the bond is not such as is required for a suspensive appeal, and, as a suspensive appeal, it should be dismissed. No motion having been made for any other kind of appeal.

Second — If it be claimed that no specific amount was involved, then the Supreme Court has no appellate jurisdiction.

On Motion to Dismiss.

Had the plaintiff in this case been east in the District) Court, she would have been entitled, under her pleadings and prayer, to an appeal to the Supreme Court. It is a rule, subject to some exceptions, that where a plaintiff, if defeated on an asserted cause of action, would have had a right to appeal to this court, the defendant, if defeated on that same cause of action, would be entitled to a like appeal. The motion to dismiss is refused and the appeal maintained.

On the Merits.

The plaintiff and defendants own adjoining properties. Defendants’ property forms the lower river corner of Prytania and Philip streets and fronts upon the former street. Plaintiffs’ property fronts on the lower side of Philip street and runs towards Jackson street. The rear line of defendants’ property is the woods side line of the plaintiff’s. The contest in this case has arisen from defendants having opened several windows in a wooden structure built on their property, at or near its rear line, which windows enable persons standing at the same to look over plaintiff’s property. Plaintiff has a residence upon her property, but there is a wide open space between it and the rear line of that of the defendants’. The structure referred to is described by a witness as “a wooden structure” and as having been in its present position prior to plaintiff’s ownership and possession of the .property; it having been built about 1870. One of plaintiff’s witnesses states that he had made an examination of the building and gives the following as the result of the same: “I found that this shed belonged to the corner property, which fronts on Prytania street. It is practically on the division line between that property and the Bryant property. I found the foundation of the shed, or rather that corner of the foundation nearer Philip street, to be exactly on the line. I mean the brick foundation. The other corner was two inches on the Sholars property. I found that the wood work or weather boarding extended about an inch beyond the brick, over towards the Bryant side, so that midway of the shed, assuming the shed to be on a straight line from corner to corner, the weather boarding would be exactly on the line; at the end near the street the weather boarding would extend over the Bryant property one inch, at the other end of the shed the weather boarding would be away from the line and over on the Sholars side one inch. I took a plumb line and measured it and I found the wall leaning over on the Bryant side,' and that point was, I suppose, twelve or fifteen feet from the ground, just as high as an ordinary ladder would reach. I noticed the windows in it; I saw several openings apparently new windows — just windows of glass, the glass had, I think, been painted or colored in some way, I don’t think there were any blinds. The windows were in the second story; the shed is old, probably twelve or fifteen years— perhaps older; it is beginning to show age; there is a little decay in spots. I do not know how many of the openings or windows were in the first half of the wall beginning at Philip street. I did not look at the openings. I am satisfied at least one was there; whether there were two or three I could not say. It seems to me that the openings .are about equally distributed along the front of the wall. The projection of the wall or leaning over on the Bryant side increase as you approach Philip street. The Philip street corner is already one inch on Bryant’s side. On the corner further from Philip street I should say the top of it would probably be exactly on the line. Between the two ends there seems to be some projection on the Bryant property. The structure is not a brick wall, the foundation is brick and the superstructure is wood; just a brick foundation a few inches below the ground; it is a wooden wall — whát would be called a weather boarding wall.”

After the windows had been cut, the plaintiff tendered the defendants forty dollars as being one-half of the value of the wall; the object of the tender being to convert the wall into a “party wall.” Defendants refused to accept payment.

It seems that the structure had been, at some time prior to the defendants’ ownership and possession of the property, put into repair; some repairs had been placed upon the building, and that plaintiff had contributed something to the cost of the repairs.

The building, as a whole, is a wooden house or building belonging to the defendant; evidently intended to have been built entirely -upon defendants’ property. The pillars of the house are upon it, but a part of the weather boarding runs over the division line and upon plaintiffs property.

Defendants do not contest the right of the plaintiff to force them to move the structure further back upon their own property if any portion of it overlaps the division line, but the plaintiff asserts no such claim in this suit. Plaintiffs object is not to force the building entirely back upon the defendants’ property, but leaving it where it is, to insist upon defendants closing the windows which overlook her property and destroy, as she asserts, the privacy of her home. Plaintiff does not pretend to have an intention of erecting a wooden, still less a brick, building on the division line of the properties. The motive and purpose of the suit, as we have said, is the protection of the privacy of her establishment. Idas she, in aid of that object, the legal right to insist upon the defendants closing the windows which they have opened in the rear end of their building ? It is a misnomer to call it a “wall”; it is nothing more than the side of a wooden house.

Article 668 of the Civil Code declares that “although one be not at liberty to make any work- by which his neighbor’s building may be damaged, yet every one has the liberty of doing on his own ground whatever he pleases, although it should cause inconvenience. Thus he who is not subject to any servitude originating from a particular agreement in that respect may raise his house as high as he pleases, although by such elevation he should darken the lights of his neighbor’s house, because this act occasions only an inconvenience, but not a real damage.”

There can be no question that the defendants would have the right to tear this wooden structure down entirely and to rebuild a precisely similar one with the windows in its rear end situated just as are those in the existing building, without the possibility of the plaintiff objecting- thereto, nor of the right of the defendants to draw the existing building further back upon their property. If this were done, in what way would the situation of the plaintiff, as to "privacy ” have been bettered. A foot or two more or less backward or forward would not affect the situation at all in this respect. If the defendants’ properly up to date was a vacant lot and they were to build upon it an open platform in the centre of their lot, so raised as to give a full view of the plaintiff’s premises, plaintiff could raise no legal objection thereto, nor could she object to its position being gradually shifted towards the division line of the properties, certainly not until the division lino itself was reached. If the reaching of that line would work a change in the defendants’ rights, it would not be brought about by reason of any illegal exercise by them of an increased right of view, but in aid of the plaintiff’s right to make use of the division line for building purposes. Of course the defendants have no right tq cross the line with their building, for that would be an invasion of ¡plaintiffs ownership, and Article 697 of the Civil Code declares that no one shall build galleries, balconies, or other projections on ihe border of an estate so that they extend beyond the boundary line which separates it from the adjoining estates. Any one violating this provision of the law could be forced to draw back the buildings or projections. If the exercise by the defendants of a legal right to construct a building on their own premises, with windows looking into' or over the premises of the plaintiff, would subject the latter to annoyance from that fact their remedy would be to remove the annoj'ance by means of screens on their own premises (Taylor vs. Boulnare, 35 Ann. 469).

It is true that Article 696 of the Code is to the effect that “one neighbor cannot, without the consent of the other, open any window or aperture through the wall held in common id any manner whatever, not even with the obligation on his part to confine himself to lights, the frames of which shall be so fixed within the wall that they can not be opened,” but this presupposes the existence of a “party wall” held in common, and the side of a wooden house is not a party wall held in common. It is not a “wall” at all; and if it were, it. is not held in common between the parties.

Under the heading of “De quels murs la mitoyennement peut étre achetée. Dalloz & Vergé, under Article 661 C. N. (Nos. 7 and 8), says: “L’art 661 ne concerne que les murs proprement dits et non pas'toutes clotures en general (Civ. C. 15, Dec. 1857, D. P. 58, 1-56). Ainsi le máitre d’une cloture en planche peut. refuser d’en ceder mitoyenneté a son! voisin sauf a ce dernier dans les villes et faubourgs a exiger que cette cloture soit remplaeée par un mur etabli a frais com-mun suivant l’art 663.”

Conceding for argument that the side of a wooden house or building could be properly called a “cloture en planche,” and that in the condition and situation of the properties in the City of New Orleans the owner of a wooden fence could be forced to contribute to the substitution for it of a brick wall at common expense; there has been no such desire expressed and no such demand made upon the defendants.

The plaintiff claims that she has the right to demand of the defendants that the side of one of defendants’ wooden buildings, built on or near the division line, be made a “wall” in common by paying to them one-half of its value. "We are not of that opinion. The Articles of the Civil Code on the subject of party walls were enacted from public policy in aid of general interests for the solidity and safety of brick or stone buildings and not in aid of the rights of one neighbor to secure the “privacy” of his property by restrictions upon the rights of ownership cf ¡mother neighbor.

"Whenever, if evei-j the plaintiff should seek to build a brick or stone building upon her side line, it will be time enough for her to claim a legal right of controlling the defendants’ exercise of their right of ownership. We do not understand that plaintiff’s rights in this respect stand in any danger of the assertion by the defendants of a right of servitude of view acquired by prescription; that right, when! so exercised, will be found intact. This subject will be found discussed in Oldstein vs. Building Association, (44 Ann. 496).

For the reason assigned, it is ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed, and that the injunction which issued herein be and the same is dissolved and set aside, and that plaintiff’s demand, as asserted, be rejected at her costs.

The right of the plaintiff to have the two-story building referred to in the pleadings and evidence removed from her property entirely, if it trenches upon it, is reserved.

Eehearing refused.